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senate vote 2014-09-25#6
Edited by
mackay staff
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2014-10-02 13:06:09
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Title
Bills — National Security Legislation Amendment Bill (No. 1) 2014; in Committee- National Security Legislation Amendment Bill (No. 1) 2014 - in Committee - Against increase in penalty for unauthorise disclosure
Description
<p class="speaker">Nick Xenophon</p><p>I move amendment (1) on sheet 7574:</p><p class="italic">(1) Schedule 3, item 3, page 69 (after line 23), after subsection 35P(1), insert:</p>- The majority voted against [http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Famend%2Fs969_amend_4a0236a1-49da-4d72-9d47-5694022fbd55%22 amendment (8)] moved by Greens Senator [http://publicwhip-rails.openaustraliafoundation.org.au/members/senate/wa/scott_ludlam Scott Ludlam], which means that it was rejected.
- The amendment was introduced along with four other amendments, which oppose the new provisions in schedule 6 regarding protection of information, which increase the penalties for unauthorised disclosure of intelligence related information from a maximum of two years to ten years imprisonment. [1]
- ''Background to the bill''
- The [http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s969 bill] is the first part of the Abbott Government's proposed national security reforms. The changes it makes relate to the powers of Australian intelligence agencies to obtain and gather intelligence and most are are drawn from recommendations made in the [http://en.wikipedia.org/wiki/Parliamentary_Joint_Committee_on_Intelligence_and_Security Parliamentary Joint Committee on Intelligence and Security]'s (PJCIS) Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation (2013 PJCIS Report).[2]
- The release of the 2013 PJCIS Report coincided with the leaking of classified information by a former system administrator for American intelligence, [http://en.wikipedia.org/wiki/Edward_Snowden Edward Snowden]. This context is significant in terms of the provisions in the bill that create new offences of unauthorised disclosure of intelligence information.[3]
- The bill amends the [http://en.wikipedia.org/wiki/Australian_Security_Intelligence_Organisation_Act_1979 Australian Security Intelligence Organisation Act 1979] (ASIO Act) and the [http://en.wikipedia.org/wiki/Intelligence_Services_Act_2001 Intelligence Services Act 2001] (IS Act). Key amendments include:
- * modernising and streamlining the intelligence collection powers of the [http://en.wikipedia.org/wiki/Australian_Security_Intelligence_Organisation Australian Security Intelligence Organisation] (ASIO);
- * enabling the [http://en.wikipedia.org/wiki/Australian_Secret_Intelligence_Service Australian Secret Intelligence Service] (ASIS) to collect intelligence on Australian persons involved in activities in relation to operational security;
- * enabling ASIS to cooperate with ASIO without ministerial authorisation when undertaking certain intelligence collection activities;
- * enabling ASIS to train certain individuals in the use of weapons and self-defence techniques; and
- * updating existing offences and increasing penalties, and create two new offences in relation to the protection of intelligence-related information.[4]
- ''References''
- * [1] Read more about these amendments in Senator Ludlam's contribution [http://www.openaustralia.org/senate/?gid=2014-09-25.278.1 here]. More information about schedule 6 can be found in the [http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd019 bills digest].
- * [2] Read the 2013 PJCIS Report [http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=pjcis/nsl2012/report.htm# here].
- * [3] Read more about this background context to the bill in the [http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd019 bills digest].
- * [4] Read more about these amendments, and others, in the [http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd019 bills digest].
<p class="italic">  (1A) A court must, in determining a sentence to be passed or an order to be made in respect of a person for an offence against subsection (1), take account of whether or not, to the knowledge of the court, the disclosure was in the public interest.</p><p class="italic">  (1B) Subsection (1A) does not limit Division 2 (general sentencing principles) of Part IB of the <i>Crimes Act 1914</i>.</p><p>This item relates to the new offence of disclosing information relating to special intelligence operations. The aim of this amendment is to require a court, when determining a sentence for this offence, to take into account whether the disclosure was in the public interest. It does not go to exculpating a person, but it does go to the issue of mitigation. I hope this amendment will be a satisfactory compromise, because I know the position of the major parties and the Palmer United Party not to support the earlier amendment that I supported, which was moved by Senator Ludlam and supported by both Senator Leyonhjelm and Senator Madigan as well as by the Australian Greens.</p><p>This amendment requires public interest to be taken into account when sentencing. In an ideal situation I would prefer to see the first part of this offence, which relates to general disclosure information, removed completely. While I acknowledge the need to protect sensitive information, I also believe that the public have a right to know certain facts. For example, in my view, it would be in the public interest to disclose corruption, malpractice, criminal activity, or similar and related matters. I believe the public interest must be taken into account in relation to this new disclosure offence, and introducing a requirement for a court to consider this when determining a sentence is a fallback position in a sense.</p><p>To put this in context, if you are disclosing information where you are not a spy for another country, you are not getting remuneration, it is not done for malicious purposes but is done for a genuine public interest because an operation has been in some way unlawful or unethical, and it does not in any way compromise an existing operation, nor would attempt to identify any intelligence officers, which is what subsection 35P(2) does, then it ought to be taken into account by a court. The government and opposition may indeed say that there is a general discretion in sentencing to take these matters into account. But it ought to be acknowledged that by elevating this, by including reference to the public interest in determining the penalty for an offence, it would be a matter that the court must cast its mind to. What the court does with it is a matter for the court, but it would provide some degree of safeguard in the sense that the public interest must be considered in any sentencing. It is a fall-back position to that moved by the Australian Greens, which I supported. But let us bear in mind that practically every major news organisation in this country, including News Corporation, has very serious concerns with the proposed section 35P. There are many elements of this bill that I think are good, there are many elements of this bill that I think are important and needed, but to me this clause is a deal breaker because it strikes at the heart of the freedom of the press in this country.</p><p>The TEMPORARY CHAIRMAN: For the benefit of the Senate: I invited Senator Xenophon to seek leave because it was my understanding that he was going to move several amendments at once. Senator Xenophon, I am seeking clarification. You are only moving amendment (1) standing in your name?</p><p>That is correct. There is a reason for that, which I will go into once this is dealt with. I indicate to the chamber that, so long as I can get an indication from my colleagues where they stand on this, I do not propose to have a division in respect of this amendment.</p> <p class="speaker">George Brandis</p><p>The government does not support the amendment because it is entirely unnecessary. The amendment proposes that the following words be added to section 35P:</p><p class="italic">A court must, in determining a sentence to be passed or an order to be made in respect of a person for an offence against subsection (1), take account of whether or not, to the knowledge of the court, the disclosure was in the public interest.</p><p>Senator Xenophon, that is what courts would always and routinely do in a case of this kind. If a person were to be prosecuted and convicted of an offence of this kind and there was material before the court that enabled his counsel to urge on the sentencing judge that he was acting in the public interest, it is inconceivable that that consideration would not be had regard to as a potential circumstance of mitigation. The principles of criminal sentencing are a very, very, very well established discipline and the amendment you have proposed instructs by statute a court to do what a court always would do and since time immemorial has always done. So the government does not support the amendment because it is entirely unnecessary.</p><p>However, having regard to the concerns you have raised I have amended the explanatory memorandum to refer to the Prosecution Policy of the Commonwealth, which actually explicitly indicates that public interest is a factor to be had regard to in relation to a decision to prosecute. So I spoke about a judge considering a sentence in relation to a convicted person; but at a prior stage in the process it is also, under the existing Prosecution Policy of the Commonwealth, a matter to which a prosecutor must have regard in exercising a prosecutorial discretion.</p><p>Finally, I know that there have been some rhetorical flights from the crossbench tonight but might I remind you, as I pointed out before, that this provision does not take the law of the Commonwealth any further than it already stands. Under section 15HJ of the Crimes Act the same provisions apply, and have applied since 2010, to controlled operations by the Australian Federal Police. This provision merely applies the same regime as applies to controlled operations by the Australian Federal Police to special intelligence operations carried out by ASIO.</p> <p class="speaker">Nick Xenophon</p><p>Is the Attorney-General saying that APN News and Media, Fairfax Media, AAP, SBS, Bauer Media Group, Commercial Radio Australia, the Australian Subscription Television and Radio Association, the Media Entertainment and Arts Alliance, the West Australian, the ABC, Free TV Australia and News Corp Australia are wrong in relation to their interpretation of section 35P?</p> <p class="speaker">George Brandis</p><p>I am sure those media organisations would prefer that this provision not be enacted. But for the reasons that persuaded every member of the Parliamentary Joint Committee on Intelligence and Security—including, I might say, the independent member who sat on the committee during the last parliament Mr Andrew Wilkie—there are sound policy reasons to do so.</p> <p class="speaker">Jacinta Collins</p><p>Senator Xenophon, you are correct. Despite this being your fall-back position it does not change our principal position.</p> <p class="speaker">Scott Ludlam</p><p>For reasons that Senator Xenophon has expressed, the Australian Greens will be supporting this amendment. It is correctly described as a fall-back position. It is not as strong as what we sought to do in the previous amendment—and one I foreshadow which will probably be the last one we will deal with tonight—where we sought to remove these provisions from the bill entirely. Senator Xenophon seeks to add an additional layer where the public interest is firmly in the minds of the court or perhaps would lead to these things not even being prosecuted in the first place. For that reason the Australian Greens are in strong support.</p> <p class="speaker">David Leyonhjelm</p><p>For the reasons that Senator Xenophon has outlined I also support this amendment. I understand that there will not be a division but I want my support in <i>Hansard</i>. The general point is that ASIO is there to solve the public interest. The public interest test in the legislation does no harm; it just reminds the relevant authorities of who they are working for.</p> <p class="speaker">John Madigan</p><p>I wish to put on the record that I support Senator Xenophon's amendment.</p> <p class="speaker">Jacqui Lambie</p><p>I would also like it noted that the Palmer United Party will be standing behind Senator Xenophon on this amendment. Once again, as cross-benchers we have not been a part of this—and I say that Labor is calling this one wrong. Thanks very much.</p><p>Question negatived.</p> <p class="speaker">Nick Xenophon</p><p>by leave—I move amendments (2) to (7) standing in my name on sheet 7574:</p><p class="italic">(2) Schedule 6, item 1, page 81 (lines 4 and 5), to be opposed.</p><p class="italic">(3) Schedule 6, item 10, page 86 (lines 17 to 19), to be opposed.</p><p class="italic">(4) Schedule 6, item 13, page 87 (lines 3 to 5), to be opposed.</p><p class="italic">(5) Schedule 6, item 16, page 87 (lines 16 to 18), to be opposed.</p><p class="italic">(6) Schedule 6, item 18, page 88 (line 29), omit the penalty, substitute:</p><p class="italic">Penalty:   Imprisonment for 2 years.</p><p class="italic">(7) Schedule 6, item 18, page 89 (line 28), omit the penalty, substitute:</p><p class="italic">Penalty:   Imprisonment for 2 years.</p><p>I will be very brief on this. I think we know where people stand on it.</p><p>These amendments relate to the proposed increase in penalties for disclosure offences under the bill from two years to ten. I believe these increases are too large, apart from those that relate to putting lives or operations at risk—and I have already supported those. I think that these go too far in the circumstances. I have already indicated my support for the Palmer United Party amendments, also supported by the government, about endangering the life of officers in intelligence operations, but these are too broad. This is similar to the objections I had in relation to the earlier parts of the bill.</p> <p class="speaker">George Brandis</p><p>The government will not be supporting your amendments, Senator Xenophon. I am a little surprised, if I may so, given your support for Senator Lazarus's amendments, that you would persist with these amendments—because what you said about Senator Lazarus's amendments applies equally to these provisions. The disclosure of the identity of an officer and the disclosure of activities under the provision you seek to amend are, I would submit to you, criminal behaviour of equivalent gravity. For that reason, the government will not be supporting your amendment.</p> <p class="speaker">Jacinta Collins</p><p>I can indicate that the opposition will be opposing these amendments.</p> <p class="speaker">Scott Ludlam</p><p>I understand that these amendments are effectively consequential and are part of a package—that Senator Xenophon is seeking to move to increase the freedom of the press. I think it is a shame that none of our colleagues in the gallery are actually with us tonight to witness what is occurring down here. The Greens will be supporting this amendment.</p> <p class="speaker">Nick Xenophon</p><p>Can I just respond briefly to the Attorney's comments? I see a distinction in respect of these matters. They do not relate to the disclosure of the identity of an officer; they relate to broader matters. I can see Senator Brandis's point, but there is a distinction between the two—a distinction I have drawn and the reason I have moved this amendment. I am not proposing to divide over this amendment.</p> <p class="speaker">George Brandis</p><p>I thought I might take the opportunity to point out to Senator Ludlam that, again, he has fallen into error. He does not understand this legislation. These provisions have nothing to do with the press. What these provisions have to do with are officers of ASIO who communicate intelligence information, which would be a grave breach of trust on their part. It has absolutely nothing to do with the press.</p> <p class="speaker">Cory Bernardi</p><p>I am going to divide these amendments into two separate questions. The first question is that amendments (6) and (7) on sheet 7574 be agreed to.</p><p>Question negatived.</p><p>The TEMPORARY CHAIRMAN: The next question is that items 1, 10, 13 and 16 of schedule 6 stand as printed.</p><p>Question agreed to.</p> <p class="speaker">David Leyonhjelm</p><p>by leave—I move amendments (4) and (5) standing in my name on sheet 7579 together:</p><p class="italic">(4) Schedule 3, item 3, page 69 (lines 30 and 31), omit "or prejudice the effective conduct of a special intelligence operation".</p><p class="italic">(5) Schedule 3, item 3, page 70 (lines 2 and 3), omit "or prejudice the effective conduct of a special intelligence operation".</p><p>I indicate that I will move each of amendments (6) and (7) separately.</p><p>Amendments (4) and (5) relate to the special intelligence operation disclosure offence. They relate to the particular offence that gives rise to a maximum penalty of 10 years imprisonment. My amendments would mean that disclosures that do not endanger anyone's health or safety but nonetheless prejudice the effective conduct of a special intelligence operation do not give rise to a maximum penalty of 10 years imprisonment. Instead, such disclosures would give rise to a maximum penalty of five years imprisonment. The point I am making, and the point on which I am seeking support, is that 10 years imprisonment is unreasonable when no-one's health or safety has been endangered.</p> <p class="speaker">George Brandis</p><p>Mr Temporary Chairman, we are dealing with amendments (4) and (5) at the moment?</p> <p class="speaker">Cory Bernardi</p><p>Yes.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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