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Thursday, 25 September 2014
Page: 7246


Senator XENOPHON (South Australia) (20:19): I move amendment (1) on sheet 7574:

(1) Schedule 3, item 3, page 69 (after line 23), after subsection 35P(1), insert:

   (1A) A court must, in determining a sentence to be passed or an order to be made in respect of a person for an offence against subsection (1), take account of whether or not, to the knowledge of the court, the disclosure was in the public interest.

   (1B) Subsection (1A) does not limit Division 2 (general sentencing principles) of Part IB of the Crimes Act 1914.

This item relates to the new offence of disclosing information relating to special intelligence operations. The aim of this amendment is to require a court, when determining a sentence for this offence, to take into account whether the disclosure was in the public interest. It does not go to exculpating a person, but it does go to the issue of mitigation. I hope this amendment will be a satisfactory compromise, because I know the position of the major parties and the Palmer United Party not to support the earlier amendment that I supported, which was moved by Senator Ludlam and supported by both Senator Leyonhjelm and Senator Madigan as well as by the Australian Greens.

This amendment requires public interest to be taken into account when sentencing. In an ideal situation I would prefer to see the first part of this offence, which relates to general disclosure information, removed completely. While I acknowledge the need to protect sensitive information, I also believe that the public have a right to know certain facts. For example, in my view, it would be in the public interest to disclose corruption, malpractice, criminal activity, or similar and related matters. I believe the public interest must be taken into account in relation to this new disclosure offence, and introducing a requirement for a court to consider this when determining a sentence is a fallback position in a sense.

To put this in context, if you are disclosing information where you are not a spy for another country, you are not getting remuneration, it is not done for malicious purposes but is done for a genuine public interest because an operation has been in some way unlawful or unethical, and it does not in any way compromise an existing operation, nor would attempt to identify any intelligence officers, which is what subsection 35P(2) does, then it ought to be taken into account by a court. The government and opposition may indeed say that there is a general discretion in sentencing to take these matters into account. But it ought to be acknowledged that by elevating this, by including reference to the public interest in determining the penalty for an offence, it would be a matter that the court must cast its mind to. What the court does with it is a matter for the court, but it would provide some degree of safeguard in the sense that the public interest must be considered in any sentencing. It is a fall-back position to that moved by the Australian Greens, which I supported. But let us bear in mind that practically every major news organisation in this country, including News Corporation, has very serious concerns with the proposed section 35P. There are many elements of this bill that I think are good, there are many elements of this bill that I think are important and needed, but to me this clause is a deal breaker because it strikes at the heart of the freedom of the press in this country.

The TEMPORARY CHAIRMAN: For the benefit of the Senate: I invited Senator Xenophon to seek leave because it was my understanding that he was going to move several amendments at once. Senator Xenophon, I am seeking clarification. You are only moving amendment (1) standing in your name?

Senator Xenophon: That is correct. There is a reason for that, which I will go into once this is dealt with. I indicate to the chamber that, so long as I can get an indication from my colleagues where they stand on this, I do not propose to have a division in respect of this amendment.