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Thursday, 28 June 2018
Page: 4400

Senator McKIM (Tasmania) (17:53): Minister, I haven't been in here during the entirety of the most recent questions Senators Siewert and Rhiannon were asking. I presume from your complete lack of response that your position would be that the questions have already been asked and answered. I'm interested in the answer to Senator Rhiannon's question. She'll be able to get up in a minute and tell you what she thinks about your lack of answer and her request again that you respond to her questions.

I don't believe that this matter has been raised, Minister. I think this is a new issue. I want to ask you about proposed section 91.1(2), which is espionage dealing with information concerning national security which is or will be communicated or made available to a foreign principal. This goes to the recklessness element. The heart of my questions here go to concerns around a chilling impact on freedom of speech by curtailing press freedom or media freedom in Australia. I draw your attention to paragraph 6.21 of the PJCIS report:

The Attorney-General’s Department also confirmed that the espionage offences could cover privately, professionally or commercially produced research, opinions, advice or analysis made available to foreign principals.

I then draw your attention to paragraph 6.154 of the PJCIS report where the committee refers to the Commonwealth DPP and Attorney-General's discretion not to prosecute as the relevant safeguard. Minister, I want to put to you that providing the Attorney-General with a discretion not to prosecute does not constitute a safeguard. Certainly that provision of a discretion to the Attorney-General not to prosecute is nowhere near as strong as a legislated safeguard would be. Are you suggesting that it's the government's view that providing that discretion to the DPP and the Attorney-General is enough of a safeguard here to protect media freedom in Australia? And, remember, I ask you in the context of the revelations today that, in fact, both the DPP and the Attorney-General have signed off on prosecuting Mr Bernard Collaery and Witness K for conspiracy.