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Thursday, 26 September 2002
Page: 4980

Senator ELLISON (Minister for Justice and Customs) (11:44 AM) —The situation is that the government opposes these five amendments, and I will deal with the last one first. What we are looking at here is a five-year penalty, and the Greens are proposing that it should instead be `10 penalty points'. Section 93.2 of the bill substantially replicates the existing provision in section 85B of the Crimes Act dealing with holding hearings in camera. That is a very important provision because from time to time proceedings are held in camera for very good reason. The five-year penalty for violations of an in camera suppression order has not changed and is consistent with other offences concerning the proper administration of justice.

Where a court has gone to the extraordinarily step of holding a hearing in camera and someone breaches that, their action is in the order of perverting the course of justice and in some cases the release of sensitive information could expose a person to harm. The penalty is an appropriate maximum penalty, and it goes without saying that in a particular case the court retains the discretion as to the particular penalty. The penalty is only expressed as a maximum. I reiterate that, where a hearing is held in camera, it is done for a good reason, and woe betide anyone who breaches the provisions of that hearing in camera. The court has said that it should be in camera—that it is not public—and someone who breaches that should then suffer the full consequences and the full force of the law. It is striking at the heart of the administration of justice. That is why we believe that a penalty of a maximum of five years imprisonment is appropriate.

In relation to amendments (1) to (4), the Greens are proposing to omit 25 years and substitute 14 years. These are espionage offences and they are maximum penalties. The court has a discretion to impose a lesser penalty. Any suggestion that the penalty for the most serious cases of espionage should be anything less than penalties for other serious offences, particularly when we are looking at the threat of the security of this nation, is totally misguided. What we have here are offences which could possibly involve the death of a human being, in that the commission of these offences in providing information could expose Australian operatives, could expose Australia's national interest, and could expose and make people vulnerable to harm—expose them not just to harm but to being killed. Bearing that in mind, 25 years maximum imprisonment is totally appropriate.

A person who spies for an enemy during a war may be imprisoned for life under the offence of treason. At the moment the maximum penalty for espionage during peacetime is only seven years imprisonment. It is imperative therefore that we increase that maximum. Increasing it just to 14 years is not appropriate. Twenty-five years is a penalty that the government says is appropriate, having regard to the fact that espionage could cause this nation great harm.

In the United States we have witnessed high-profile cases of American intelligence officers that have sold highly classified material. Their betrayal resulted in US security and defence being compromised and, in some cases, the deaths of US agents. It is alleged that the actions of Aldrich Ames, a senior CIA officer who was arrested in 1994 for espionage, resulted in the deaths of 10 US agents and the stalling of sensitive and confidential military projects. In that case information provided by Ames to his Russian contacts resulted in the execution of US agents based in Russia. There is increasing speculation that Robert Hanssen, the FBI agent recently arrested for espionage, may have also contributed to the deaths of US agents as a result of his disclosures. In the current heightened security environment, serious breaches of security may have catastrophic consequences. An act of espionage has the potential to place the lives of individuals and the security of a nation in jeopardy. For this reason it is important that the espionage offences be structured in such a way as to capture the types of activities that could cause such serious harm and attract a penalty that is commensurate with that potential harm.

The government regards this very seriously and believes that penalties for such offences as drug trafficking, where we have up to 25 years imprisonment and life imprisonment in some cases and 20 years for organised people-smuggling, are useful comparisons. In regard to that sort activity and the potential harm that I have mentioned, the government is firmly of a view that a maximum term of 25 years is entirely appropriate.