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Wednesday, 25 September 2002
Page: 4910

Senator FAULKNER (Leader of the Opposition in the Senate) (6:23 PM) —I am pleased to speak on behalf of the opposition in relation to the Criminal Code Amendment (Espionage and Related Matters) Bill 2002. As long ago as 1991 the committee to review Commonwealth criminal law, headed by Sir Harry Gibbs, recommended that the Commonwealth's espionage offences, originally drafted on the eve of the First World War, be rewritten in a simpler form using modern language. Following the 1999 Wispelaere espionage case, the Inspector-General of Intelligence and Security, Mr Bill Blick, was commissioned by the government to undertake a comprehensive review of security procedures. Mr Blick's report confirmed the need to update our espionage laws and impose tougher penalties on those who choose to break these laws.

This is important legislation that deals with a fundamental aspect of our national security. The bill is designed to strengthen Australia's espionage laws and impose tougher penalties on those who break these laws. A somewhat different version of this bill was first introduced into the House of Representatives on 27 September last year. The bill was not debated, and lapsed when the parliament was dissolved for the November 2001 federal election. In addition to the espionage provisions, which I will mention in a moment, last year's version of the bill also transferred the official secrets provisions of part VII of the Crimes Act 1914 to chapter 5 of the Criminal Code Act 1995. This aspect of the bill was heavily criticised for containing jail terms for secondary disclosure or whistleblowing in relation to non-national security matters, even when the information was disclosed or published on public interest grounds. Given the heavy criticism, the government dropped those provisions from the bill like a hot potato. The official secrets provisions applied well beyond situations involving national security. They would have made it illegal to leak or publish the information that led to the infamous telecard affair involving the equally infamous Mr Reith or even the information about travel rorts— the bread and butter of accountability in political debate. In the end, the government was forced to remove those elements of the bill.

The opposition believes Australia's response to the new security environment must be strong, effective and consistent with our democratic values and freedoms. In assessing the government's other security legislation, Labor has been guided by the desire to protect citizens from terrorist attacks and to protect our rights from the attacks of the Howard government. That is why we insisted on strong and principled amendments to the five antiterrorism bills, and it is why we do not support the draconian and unprecedented powers proposed in the ASIO bill. The opposition believes the bill before us will modernise and strengthen Australia's espionage laws. Now that the sweeping official secrets provisions have been removed and other minor amendments have been proposed, it can be said that the bill strikes the right balance. The bill transfers the offence of espionage from the Crimes Act to the Criminal Code. The antiquated offences of harbouring spies, illegal use of uniforms and official permits and impersonation will disappear from the statute books.

A number of features of the bill are of note. First, by referring to conduct that may prejudice Australia's `security and defence', rather than its `safety and defence', and explicitly defining this term, the bill will give protection to material not protected under current laws. In particular, the term will include the operations, capabilities and technologies of, and methods and sources used by, the intelligence and security agencies. The type of activity that may constitute espionage will also be clarified. A person may be guilty of an espionage offence if they disclose information concerning the Commonwealth's security or defence and do so intending to prejudice the Commonwealth's security or defence. They may also be guilty of an offence if they disclose information concerning the Commonwealth's security or defence, without authorisation, to advantage the security or defence of another country.

These provisions will capture the Wispelaere type situation where the information that is compromised does not necessarily prejudice Australia's security or defence. Maximum penalties range from seven years to 25 years imprisonment for the most serious espionage offences. Penalties in comparable countries for equivalent offences range from the death penalty in the United States to 14 years imprisonment in the United Kingdom, Canada and New Zealand. The bill also covers a range of other matters—including initiation of prosecutions, holding hearings in camera and forfeiture of articles—which were originally enacted in the Crimes Act.

The Senate Legal and Constitutional Legislation Committee have considered the bill and their unanimous report was tabled on 10 May 2002. With the more controversial elements of the 2001 version of the bill having been excised by the government, the Senate committee raised four remaining issues of concern. The committee advised that, subject to their recommendations on these areas, the bill should proceed. The first area of concern identified by the committee is an element of the proposed offences relating to espionage involving communicating or making known information that `is or has been in the possession of the Commonwealth'. Essentially, questions were raised as to whether information both within the possession of the Commonwealth and in the broader public domain would still technically fall within the offence provisions. The Attorney-General's Department advised that the bill is not intended to inhibit the free flow of information in the public domain. However, given that this intention is not made clear either in the bill or in the explanatory memorandum, the committee recommended that the bill be amended to ensure that espionage provisions do not apply to the communication of information already in the public domain.

The Senate committee also expressed concern as to whether the proposed offences would inadvertently cover government disclosure of protected information through lawful and official channels, such as under intelligence sharing agreements that Australia has with other countries—for example, with New Zealand or the United States of America. The Attorney-General's Department agreed that this was an unintended consequence of the bill's provisions. The committee accordingly recommended that the bill be amended to address the uncertainty arising from the term `disclose to another country or foreign organisation'. The Senate committee shared the concerns of the International Commission of Jurists that offences may be committed by a person who communicates information to another country not knowing that the information is in the possession of the Commonwealth. The committee recommended that the bill be amended so that an element of each offence is that a person knows that the information is or has been in the possession or control of the Commonwealth.

The other concern relates to the offence of illegal soundings. The Crimes Act contains an offence of communicating to any person outside of the Commonwealth hydrographic soundings of the sea surrounding Australia, and the bill proposed to translate that offence across into the Criminal Code. The 1991 Gibbs Review of Commonwealth Criminal Law recommended that, because of the questionable need for the provision in light of technical and technological developments, the soundings offence should be repealed. The Senate committee took evidence about the unintended application of such an offence—for example, by foreign owned fishing vessels sending soundings information back to their country of origin and thereby committing an offence. The committee also raised concerns that, where the taking and recording of soundings is required under law, ships' masters were inadvertently potentially committing an offence. It is currently a requirement, for the safety of crews and ships that lie within Australian waters, to maintain an ongoing record of the sounding of the ships at all times. The committee therefore proposed that the current provisions relating to soundings be repealed and that the bill be amended to delete proposed division 92. The government introduced amendments to the bill that substantially give effect to recommendations of the Senate committee. The House of Representatives unanimously agreed to those amendments. The government has also agreed not to proceed with the soundings provisions contained in the bill. The government is not prepared to repeal the existing soundings provisions without further consideration of the commercial, navigational safety and security implications. In fact, the opposition does not demur from the government's approach.

As I indicated at the commencement of my remarks, this bill relates to fundamental aspects of our national security. The capacity of the Commonwealth to deter and thwart espionage is vital to our nation's defence. It is vital to our foreign relations. Indeed I think it is vital to our national wellbeing. We must have both a strong legislative framework and appropriate administrative measures to safeguard sensitive national security information held by government and, in some cases, by private firms such as defence contractors. At the same time we must also ensure that the pursuit of tighter security does not trample over the civil liberties and the privacy of citizens. In this regard, I note that on 25 June this year the Minister for Foreign Affairs, Mr Downer, and the American Ambassador, Mr Schieffer, signed a new legally binding agreement governing the exchange of classified information between Australia and the United States. The General Security of Information Agreement replaces a 1962 pact between Australia and the United States and takes into account advances in information technology. In his press release of 25 June announcing the new security arrangement, the foreign minister, Mr Downer, indicated that it covers the appropriate protection and handling of classified information and includes:

... a requirement that personnel accessing such information be security-cleared to an appropriate level.

The parliament's Joint Standing Committee on Treaties will presumably examine this new security agreement before it is allowed to enter into force. Effective parliamentary scrutiny will be especially important if the introduction of any new security clearance procedures is contemplated as a consequence of this agreement. In this regard, I note that in September last year the Attorney-General announced that, following the Blick security review, ASIO had agreed to undertake an internal and voluntary trial of polygraph tests to evaluate the potential of such technology as a personal security tool. I have always thought Mr Reith would be a very good person to start the polygraph tests with—he would probably blow the thing off the scale.

Polygraph tests have of course been employed for many years by United States intelligence agencies including the Central Intelligence Agency and the National Security Agency. Such tests are indeed mandatory for US personnel having access to certain types of highly classified information. Some of this information is shared by the United States with Australia, and the new security agreement requires Australia to afford such information a degree of protection equivalent to that of the United States.

My colleague the shadow minister for justice and customs raised the issue of polygraph tests in the debate on this bill in the House of Representatives, but there has been no response from the government. It would be highly desirable for the Attorney-General to inform the parliament in general terms of the result of the ASIO polygraph trial and whether the government intends to proceed with mandatory polygraph tests in ASIO or elsewhere in our security and intelligence agencies.

The introduction of polygraph tests as a general security tool would be a significant development in our country's security arrangements. It is something that should not be pursued without very careful, indeed exhaustive, consideration of the administrative and legal implications. The opposition are pleased the government was forced by political and media pressure to remove the controversial official secrets provisions, and we are pleased that the government introduced amendments which give effect to the recommendations of the Senate committee. The opposition will support the Criminal Code Amendment (Espionage and Related Offences) Bill.