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Thursday, 26 September 2002
Page: 4990


Senator ELLISON (Minister for Justice and Customs) (12:41 PM) —Senator Brown asked a couple of questions about definitions and he referred to `prejudice', which is one of the elements of the offence that the prosecution would have to make out beyond a reasonable doubt. Of course, the disadvantage resulting from the action of another is something which would disadvantage the security or defence of the Commonwealth. Senator Brown also asked what `security or defence' means. In section 90.1, the `Definitions' section, `security or defence' is defined as follows:

security or defence of a country includes the operations, capabilities and technologies of, and methods and sources used by, the country's intelligence or security agencies.

That deals with the definition of `security or defence'. They are questions of fact; they are aspects which have to be made out by the prosecution beyond a reasonable doubt, and there are all the usual safeguards that apply in Australian criminal law. Questions of fact are to be determined by the jury beyond a reasonable doubt. That is quite clear.

Senator Brown also asked me a hypothetical question about the Tampa. Certainly, the government is not normally in the business of answering hypothetical questions. Senator Brown gave us an example of where he, I think, had made calls to the Tampa. I am sure, knowing Senator Brown, that he would be beyond question, because, to found a prosecution to begin with, under this bill the person would have acted intending to prejudice the Commonwealth's security or defence. I am sure Senator Brown never intended that, nor would he. In any hypothetical that Senator Brown puts to me about a person being caught by this bill, he might like to indicate at the outset whether the intention of the person he is talking about was to prejudice the Commonwealth. That is the nub of the question, not simply whether they made a call to the Tampa and not simply whether they provided information. There must be the attendant, requisite mental condition of intending to prejudice the Commonwealth's security or defence. Senator Brown did not tell us about that. I am giving him the benefit of the doubt that he did not intend that.