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Thursday, 26 September 2002
Page: 4971


Senator PAYNE (11:00 AM) —I welcome the opportunity to participate in the second reading debate on the Criminal Code Amendment (Espionage and Related Matters) Bill 2002. The bill was introduced before the prorogation of the previous parliament and has been reintroduced by the government for consideration in these sittings. Its main effect is to establish new espionage offences in part 5.2 of the Criminal Code Act 1995. It is intended to strengthen Australia's espionage laws in a number of ways. There are four particular points in that regard that I wish to allude to.

Firstly, the bill refers to conduct that may prejudice Australia's `security and defence' rather than Australia's `safety and defence' and explicitly defines that term, consequently making protection available to a range of material that may not be protected under current laws. The term `security and defence' will apply to both the espionage offence and the existing official secrets offences contained in section 79 of the Crimes Act.

I want to make a brief further reference to the matter of security and defence which was alluded to by the previous speaker. The change to the term `security and defence' in the bill is, as I understand it, intended to reflect the more modern intelligence environment, if you like. The term `security' is intended to capture information about not only the operations but also the capabilities and technologies, the methods and sources of Australian intelligence and security agencies. It was the view of the government that the term `safety' was unlikely to include such information. The broad definition of `security and defence' is available in clause 90.1 of the bill.

The bill also expands the range of activities that may constitute espionage to include those situations where a person has communicated or made available information that concerns the Commonwealth's security or defence with the intention of prejudicing the Commonwealth's security or defence or advantaging the security or defence of another country. These are obviously very serious matters, as previous speakers have also alluded to. It also affords the same protection to foreign sourced information that belongs to Australia as it does to Australian generated information. As Senator Kirk alluded to, it increases the maximum penalty for a person who is convicted of an espionage offence from seven years to 25 years imprisonment. These are all particularly important components of the legislation.

I propose to speak briefly today about what is contained in the bill, because I think that is perhaps more relevant to consider than those areas that are not in the bill that is before the chamber. As I indicated, one of the key areas is the increase in penalty from seven to 25 years imprisonment. That is regarded as a recognition of the serious nature of the crimes of espionage and associated activities and in the current environment is a particularly appropriate step for this parliament to take.

The Senate Legal and Constitutional Legislation Committee, which I have the honour of chairing, considered this bill and inquired into it earlier this year and reported to the Senate in May. That report contained five particular recommendations, including one that the bill progress subject to the consideration of those recommendations. I want to acknowledge this morning and draw attention to the very important recognition that the Attorney-General has given to the work of that committee—of all of its senators—in bringing forward those recommendations and in the consideration of the amendments that the government has put in this bill as it is now presented. It is important to acknowledge that the committee process of the Senate is taken very seriously by the Attorney-General in that regard. Speaking on my own behalf, I am very grateful for the Attorney-General's interest in that process and for the support of the Attorney-General's Department in making information and material available to the committee to ensure our deliberations are well informed.

With respect to the first of those recommendations, the committee suggested that it be made explicit in the bill that a person would not be liable for prosecution under these espionage offences where they communicated information that was in the public domain. From the committee's perspective there was some concern that that had not been made clear in the drafting process. The government have indicated they propose to accept that recommendation, and the amendments contained in the legislation that is before us create a defence to the espionage offences where the information that is being communicated is already in the public domain with the lawful authority of the Commonwealth. From the committee's perspective, that is an important recognition of that particular recommendation.

The second of the committee's recommendations related to subclauses 91.1(1)(c) and 91.1(2)(c), which involved a person's action perhaps resulting in information being disclosed to another country or a foreign organisation. The committee noted the potential for an unintended consequence because of the use of the word `disclosed' in that context—that a person who communicates or makes available information to a foreign country with the intention of prejudicing the security or defence of the Commonwealth may not be liable for prosecution where that information is already known to the foreign country. So the committee recommended that the bill be amended to address any possible uncertainty arising from the term `disclosed to another country or a foreign organisation'. As a result of that, the references in the espionage offence provisions in division 91— those subclauses to which I referred previously—to information `disclosed' will be replaced with the words `information communicated or made available'. That does address the committee's concerns in that regard.

The third of the key recommendations from the Legal and Constitutional Legislation Committee report reflected the concern that an offence might be committed by a person who communicates information to another country, not knowing that the information is in the possession or control of the Commonwealth; that is, that there was not an element of knowledge in the provision as it was initially drafted.

The committee's recommendation was that the bill be amended so that an element of each offence in this category would be that a person knows that the information is, or has been, in the possession or control of the Commonwealth. The amendments that the bill comes forward with now will replace the reference that I have just cited with a reference to information that:

... the person acquired (whether directly or indirectly) from the Commonwealth ...

That is an acknowledgment of the committee's concerns in that regard. The fault element that will be present in that offence will be the element of recklessness—that is to say that the person was reckless as to whether they acquired the information, either directly or indirectly, from the Commonwealth. I am pleased also to welcome that amendment in the new bill before the Senate today.

An issue of some interest—and an area of new examination for some members of the committee—was the soundings provisions that were located in the bill. The committee recommended that those offences be repealed. There are a number of reasons for that. It is important and appropriate to acknowledge the expertise of my coalition colleague Senator Scullion on the committee in this regard. He has significant experience and expertise in this area, and committee members and some people in the Attorney-General's Department were very grateful for Senator Scullion's specialist knowledge in this area.

The intent of the amendments is that the soundings provisions that are currently in division 92 of the bill will be removed, but the existing soundings provisions in section 83 of the Crimes Act will be retained in their current form. That is because the government considers that it is not appropriate that the existing provisions be repealed until there has been an opportunity to assess the continuing utility of the provisions as they stand. As I understand it, the Attorney-General's Department continues to work with the Department of Defence to look at what the most appropriate legislative and administrative measures are to protect soundings. These are obviously very important issues for Australia's commercial, navigational safety and security interests, and it is important that they are taken very seriously by the departments concerned and, of course, by the government.

Finally, having this bill before the Senate now is a continuation of the government's commitment to protect Australia's national security, to deter the very serious crimes of espionage and to ensure that the penalty for any action aimed at betraying Australia's security interests is very serious. This is an important step in ensuring that the legal framework we have in place supports that commitment. Not only does the bill strengthen and restate the existing provisions in the Crimes Act that prohibit deliberate disclosure of national security information to a foreign power, but, as I said at the commencement of my remarks, it also increases the maximum penalty for those offences from seven years to 25 years imprisonment. It is worth noting that the report on this bill by the Legal and Constitutional Affairs Legislation Committee was unanimous, and I am sure all committee members will welcome the government's adoption of our recommendations. I commend the bill to the chamber.