Second Reading Speech
Senator IAN CAMPBELL (Parliamentary Secretary to the Treasurer)I table revised explanatory memorandum relating to the bill and I move:
That this bill be now read a second time.
I seek leave to have the second reading speeches incorporated in Hansard.
Leave granted.
The speeches read as follows -
In May 1999 an Australian citizen, Mr Jean-Philippe Wispelaere, was arrested in the United States and charged with a range of offences associated with the unauthorised disclosure of US intelligence material.
At that time the Government affirmed its commitment to protecting Australia's national security.
It announced a range of initiatives designed to further protect sensitive information held by Government agencies.
The Inspector-General of Intelligence and Security, Mr Bill Blick, was commissioned by the Prime Minister to undertake a review of security procedures.
In 2000 the Inspector-General provided a comprehensive report to Government in which he made more than 50 recommendations.
The recommendations were designed to enhance security arrangements on a public service-wide basis and improve security practice in intelligence and security agencies. The Government adopted these measures in principle, and then proceeded to give them effect.
The review of Australia's espionage laws had, in fact, begun before the Inspector-General made his recommendations.
In 1991, the Committee to Review Commonwealth Criminal Law, headed by the Right Honourable Sir Harry Gibbs, recommended that espionage offences be rewritten in a simpler form using modern language.
Since then, the Inspector-General's report has confirmed the need for this Government to strengthen Australia's espionage laws and impose tougher penalties on those who choose to break these laws.
This bill evolved as a result of both the Gibbs and Blick reviews.
The Government has also conducted a separate review, and extensive consultation, to ensure that the offences in the bill establish an effective legal framework that both deters, and punishes, people who intend to betray Australia's security interests.
As part of our review we have considered such things as technological advances in information management and communication as well as international standards.
As a result, the proposed offences are consistent with equivalent provisions in the United States, the United Kingdom, New Zealand and Canada.
This bill will strengthen Australia's espionage laws in a number of ways.
By referring to conduct that may prejudice Australia's security and defence, rather than safety and defence, and explicitly defining this term, we are affording protection to a range of material that may not be protected under the current laws.
In particular, the term will include the operations, capabilities and technologies of, and methods and sources used by, our intelligence and security agencies.
The type of activity that may constitute espionage has also been expanded.
A person may be guilty of an espionage offence if they disclose information concerning the Commonwealth's security or defence intending to prejudice the Commonwealth's security or defence.
They may also be guilty of an offence if they disclose information concerning the Commonwealth's security or defence, without authorisation, to advantage the security or defence of another country.
The latter will capture Wispelaere-type situations where the information that is compromised does not necessarily prejudice Australia's security or defence.
Instead, the compromise is designed to advantage the security or defence interests of another country.
The new offences will also protect foreign sourced information belonging to Australia. As a result, Australia can offer greater assurances to our information exchange partners that, when they provide information to us in confidence, we will protect that information in the same way that we protect our own sensitive information.
The maximum penalty for the most serious cases of espionage will be 25 years imprisonment, a significant increase from the current 7 year penalty.
This Government considers 7 years imprisonment to be a grossly inadequate punishment for the more serious acts of espionage during peace.
Penalties in comparable countries for equivalent offences range from the death penalty in the United States to 14 years imprisonment in the UK, Canada and New Zealand. We should regard espionage as seriously as these countries.
In addition to strengthening the offence provisions, the bill will also further support the process of bringing cases of espionage to trial.
The most important measure in this regard is to guarantee that only a judge of a State or Territory Supreme Court decides the question of bail.
In addition, the Australian Federal Police Commissioner will issue an order to all members of the AFP that, as a general policy, bail should be opposed in espionage cases.
The bill also covers a range of matters including initiation of prosecutions, holding hearings in camera and forfeiture of articles.
These provisions were originally enacted in the Crimes Act.
They have been substantially replicated in this bill except to the extent that the provisions have been modernised and re-packaged for the purposes of moving them to the Criminal Code.
Unlike the bill the Attorney-General introduced in September last year, this bill does not amend the official secrets provisions currently contained in section 79 of the Crimes Act.
I say 'amend', but of course the original bill did not actually change the substantive elements of the official secrets offences.
It simply modernised the language and lay out of the offences so that the offences were suitable for inclusion in the Criminal Code.
Recent inaccurate media reporting on the issue of the official secrets provisions has meant that, in the interests of progressing our primary purpose for the bill - strengthening Australia's espionage laws - we have had to excise those provisions from the bill.
Excising the provisions will not actually change the law in relation to unauthorised disclosures as the bill did not change the substance of the offences as currently contained in section 79 of the Crimes Act.
What it does mean is that we are missing an opportunity to modernise the language of our criminal law.
The public has been very badly served by a media that has generated a frenzy of opposition that has no basis in fact.
But the Government is mindful of the concerns of the public.
And so, in this case, the Government has no objection to removing the offending provisions from the bill because the law in relation to official secrets remains unchanged whether or not the amendments are retained in the bill.
I am not prepared to jeopardise the opportunity to make important amendments to Australia's espionage laws.
It is those provisions that send a clear message to those who choose to betray this country's security that this Government regards espionage very seriously.
I commend this bill.
Debate (on motion by Senator Buckland) adjourned.
Ordered that the bill be listed on the Notice Paper as separate orders of the day.