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Wednesday, 23 November 1960

Mr CAIRNS (Yarra) .- Mr. Chairman,I point out to the committee that we are discussing together at this stage two of the most objectionable and obnoxious features of a very objectionable bill. We are concerned with the offence of espionage. Any ordinary man would think that that offence concerned the possession, collection, using, passing on or communicating in some way of some information or material which is relevant to defence, which is material to defence and which has some importance in relation to defence. The Opposition has proposed an amendment which would make the law so provide. If this amendment is agreed to, the matter which it is an offence to possess, communicate or pass on must be related to defence and material to defence. The provision which the Government has chosen to put before the committee, of course, is not of that nature. This provision contains the widest possible definition of " information " and " article " that the Government is capable of drafting.

Sub-section (1.) of proposed new section 77 of the principal act provides -

In this Part, unless the contrary intention appears - "article" includes any thing, substance or material; . . .

There is nothing whatever in existence that is excluded from that definition. An article that it could be an offence for a person to be in possession of or to communicate, that person thereby being liable to seven years' imprisonment for the offence of espionage, is so widely defined that it could include any thing, any substance or any material in existence. Nothing is excluded. When we turn to the definition of " information " contained in the same sub-section, we find that the views of the average man would seriously conflict with the definition given. The average man would think that the offence would be related to something which is secret or which has some element of secrecy - something which is even slightly material to defence. But the definition of " information " is expressed in these words - " information " means information of any kind whatsoever, whether true or false and whether in a material form or not, and includes -

(a)   an opinion; and

(b)   a report of a conversation; . . .

Consider the words " true or false ". How could any false information possibly be of any assistance to a foreign power? Are not these words put in rather deliberately in order to provide a trap - to permit false information to be left about in the hope that it will trap somebody and that, if it does, the Government will not lose anything?

Mr Whitlam - That was the illustration given by the Attorney-General on television.

Mr CAIRNS - That is so. The Opposition takes the view that the ordinary man would take, and says that anything which is secret or material to defence ought to be protected. But this Government says, " We shall throw the net as wide as we possibly can in order to include every person who could be in possession of any material or information ".

Several other elements are involved in this question. First of all, the matter, article or information must be of use, directly or indirectly, to a foreign power, lt can be said quite rightly that any information - economic information or information about the population, the distribution of the population, the rainfall or the number of members in this place - could be, directly or indirectly, of some use to a foreign power. That does not in any way narrow the wideness of the basic definitions on which this offence of espionage is to be based.

There is also the element of prejudicial purpose. The accused person who is in possession of information or who communicates or receives it, has to have a purpose prejudicial to safety or defence. This does not provide any safeguard, because a purpose prejudicial can be established by establishing known character. A person who is in possession of information, which may be broad and general and have no relation to defence and which may be of some use to a foreign power, will be convicted if his known character is of a kind to which the judge or jury objects. So there is no safeguard here.

Is it any wonder in these circumstances that teachers have seen a danger in this proposed new section of the principal act? A teacher may be in possession of information and may have a political record to which this Government and conservative courts object. Is it any wonder that research workers have seen a danger in this provision? Is it any wonder, finally, that journalists have seen a danger in this provision? At this point I shall quote briefly from a communication sent to me and to other honorable members by the Australian Journalists Association. On the second page of the communication, this question is asked -

How could these amendments affect the activities of journalists?

The answer given is -

First, the A.J.A. view is that the extension of the concept of " espionage " to the gathering of information in time of peace is objectionable.

I support that objection. The communication goes on -

Newspapermen can never accept happily any restriction on their activity in gathering news and publishing it, but they recognize that in time of war some restriction is essential. During World War II. Australian journalists had a good record of co-operation with the censorship, and this was made easier because there was machinery for the Press to put its point of view to the censorship and the censors were themselves journalists. Government roundsmen received much information in confidence and observed those confidences.

However, where there is no clear and present danger, newspapermen cannot accept readily the same restriction on their right to gather and publish information in the public interest. Where there is no clear and present danger, the effect of publishing any information must be too hypothetical to outweigh the newspaperman's duty to his employer and to the public.

That deserves emphasis, and I agree with it completely. These points have never been dealt with. Neither the AttorneyGeneral nor any other honorable member opposite has attempted to deal with them. The throwing of the net widely over any article and any kind of information, the intangible provisions which say, " It may be of assistance to a foreign power ", the wide use permitted of known character to complete the offence, the bringing together of these two or three most objectionable features in the whole of the bill and the attaching of a penalty of seven years to the offence lead to the conclusion that what the Government is out to do is not to protect defence secrets or something material to defence, but to protect bureaucracy and its exercise in the Public Service, so that it can be made an offence to obtain any information at all, and not information which may be secret or relevant to defence. The effect of the law, if it is passed, is to provide the opportunity for the Government, whenever it wishes to do so, to prosecute almost any person who may possess a known character at any time - that is the only requirement - for having any information in his possession, which may be of assistance to a foreign power - and that covers almost .everything.

The only additional element that the Government will be required to prove is known character, and when that is done all the elements of the offence are complete. The people to whom bureaucracy might object - we have seen case after case of this in recent times - are the people who may have the known character to complete an offence. The complete silence day after day of Government supporters on this matter, their willingness to accept these provisions from the beginning without any objection, and their unwillingness to accept the possibility that this offence could be unfairly and improperly applied in times of tension by a nervous government, provide the real test and show this Government's complete lack of concern with civil liberties and its willingness to use the power of the executive and the bureaucracy to cut down or to infringe civil liberties.

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