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Thursday, 26 September 2002
Page: 4987

Senator LUDWIG (Manager of Opposition Business in the Senate) (12:25 PM) —When I was sitting in my office I heard a matter raised in relation to the progression of Senator Brown's amendments to the Criminal Code Amendment (Espionage and Related Matters) Bill 2002. I thought it was incumbent upon me to come down and at least put the committee's position, as I understand it. I assume that you have had the opportunity of examining the report on the bill and have read the committee's view. The committee's view in relation to this part is clearly articulated in 2.37, under `Public Interest'. This is not a new controversy. As I understand Senator Brown's amendments, this is a controversy that was dealt with in the committee report. I think the committee did look at the submissions by the relevant organisations that Senator Brown mentioned but it also looked at a submission by the International Commission of Jurists, who raised concerns about public interest.

I will try to summarise the whole argument, because the committee had the benefit of having before it the civil liberties group, the International Commission of Jurists and the Attorney-General's Department, and did resolve not to support the inclusion of public interest in the recommendations that it made. Perhaps it is worth while, given that it does not seem to have been alluded to during this committee debate, to mention that the committee was told:

... these provisions may preclude the release, in the public interest, of information that is not in the public domain.

The actual controversy, as I understand it, goes to 2.39, which says:

The explanatory memorandum to the Bill explains that the reasons for the wording used in ss.91.1(2) and ss.91.1(4) is to “[afford] the same protection to foreign sourced information belonging to Australia as Australian-generated information.”

It goes on from there and at 2.41 it says:

The Attorney-General's Department has the view that disclosures which constitute offences but which are made in the public interest should remain as offences, in order to require people to use official channels.

It goes on to say:

Formal mechanisms exist for reporting activities that are illegal under international law. Leaking information is not one of those mechanisms.

It then goes a little further at paragraph 2.42. I am not sure whether you have a copy of that report before you, Senator Brown, but it is certainly worth reading those sections to perhaps get an understanding of how the committee thought about this, the arguments that were run by the civil liberties group and the international jurists, the response by the Attorney-General and the committee's thinking in relation to it. It is summarised best at paragraph 2.42:

The Attorney-General's Department has advised that there are checks and balances in the system which militate against the prosecution of people disclosing information in the public interest.

That was a matter that was raised at page 2 of submission 10, which was from the Attorney-General's Department. I assume that you have already had an opportunity to look at that argument. That was part of the committee's deliberations. One of the persuasive arguments that were put—and I think it is the one that in the end persuaded the committee, although I cannot speak for the committee as a whole—was about the prosecution policy of the Commonwealth and detailed the matters the Director of Public Prosecutions must consider before undertaking a prosecution.

I cannot quite recall, but I am almost sure that the totality of the DPP guidelines were provided to the committee. I have certainly seen them provided before; the Legal and Constitutional Legislation Committee seems to call on them quite regularly. At paragraph 2.8 the guidelines state:

The prosecutor must consider whether the public interest—

and I emphasise that phrase `the public interest'—

requires a prosecution to be pursued. It is not the rule that all offences brought to the attention of the authorities must be prosecuted.

So we already have a public interest test— the one that is now being sought to be put in the bill itself—in the Director of Public Prosecutions' guidelines. At paragraph 2.10 the guidelines state:

Factors which may arise for consideration in determining whether the public interest—

and I emphasise that phrase `public interest' again—

requires a prosecution include:

(a) the seriousness or conversely the triviality of the alleged offence;

... ... ...

(g) the effect on public order and morale ...

So there are two areas which specifically go to public interest contained in the policy of the Director of Public Prosecutions. Other ancillary matters are included in subparagraph (i):

(i) whether the prosecution would be perceived as counterproductive; for example, by bring the law into disrepute or else whether the alleged offence is of considerable public concern;

In essence, those were the arguments that were put. On the one hand there was the argument for the inclusion of the public interest test while on the other hand there were the answers as to why it would not be necessary for it to be included in it.

I am highlighting that the controversy was a matter that the committee did look at. It was a matter that we took seriously. It was a matter on which we questioned the Attorney-General's Department. We then looked carefully at the answers that they gave, in order to come to a conclusive view. The view that the committee came to in relation to this matter is perhaps summarised best in paragraph 2.43 of the committee's report:

The Attorney-General's Department advised that “an additional safeguard for anyone liable to prosecution for these offences” is the requirement, under s.93.1, for the Attorney-General's consent to be obtained before a prosecution can proceed.

So there is a second gateway. Not only can the DPP, which is independent of government, use their guidelines—which is what they are for—to come to a conclusion about this matter, but also there is that second consent required. Once the DPP have considered the prosecution policy—so the gateway occurs after that point—and, this requirement having been considered, have determined that a prosecution is appropriate, the Attorney-General has a further opportunity to consider whether to proceed with the prosecution. So there are two checks: firstly, the independence of the DPP and the guidelines that they have to look at, which is the prosecution policy; and, secondly, the further opportunity by the Attorney-General to consider the matter.

That was put to us by the Attorney-General. Short of any other argument, that was the controversial issue put by both parties. We concluded that, because the provision requiring the Attorney-General's consent is also included in other legislation, it is not a new provision. The DPP's normal role, as would be expected, is as a gateway under the existing Crimes Act. They act as a gateway for treason offences and other offences as well, before deciding whether a prosecution should be proceeded with. Of course, that is not in any way to diminish or reduce the DPP's independence.

The committee noted the advice from the Attorney-General's Department and considered, when looking at those two checks and balances and understanding that they are contained in both the DPP guidelines and the fact that the Attorney-General consents to the prosecution, that there were sufficient safeguards for activities carried out in the public interest. Therefore, the committee came to the conclusion that it did not support the inclusion of a public interest defence in the bill. The committee highlighted in paragraph 2.41 of the report:

The Attorney-General's Department has the view that disclosures which constitute offences but which are made in the public interest should remain as offences, in order to require people to use official channels.

So there was an underlying argument that we wanted to encourage formal mechanisms first for existing reporting activities rather than what might generally be regarded as the leaking of information—at least, that was the argument put by the Attorney-General.

I have spoken at some length in order to provide a broader picture. I expect the honourable senator would have had the opportunity to have read that but I think it was worth while stating, from my perspective as a member of that committee, how I viewed that particular area. It was well considered by the committee, at least in my mind. That may assist the debate in relation to these matters.