Thursday, 25 September 2014
National Security Legislation Amendment Bill (No. 1) 2014; In Committee
The Greens seek to remove from the bill the offence in section 35P(1), which applies to persons who intentionally communicate information reckless as to the circumstance that it relates to a special intelligence operation. The government does not support this amendment. It is inconsistent with the unanimous view of the PJCIS. As the PJCIS in its report recognised, the offence provision is necessary and appropriate to protect sensitive information about the existence and conduct of covert intelligence operations.
The very disclosure of the existence of such covert operations creates a risk. They may be compromised, and the safety of the participants and their families might be placed in jeopardy. Such a risk could be immediate or could arise over the longer term. There is no way of controlling it once it is disclosed. This risk of harm, potentially harm to life, is inherent in the disclosure of such information. It does not depend in any way on the discloser's intention. Justice Hope observed in his 1984 report on ASIO, if I may quote him:
The disclosure of secrets or secure areas to risk through inadvertence or carelessness can result in just as much damage to the national interest as can result from espionage or sabotage.
But here, unlike the observations Justice Hope made all those years ago, we have a higher threshold—that is, intention to disclose with reckless disregard of the circumstances.
The Australian Law Reform Commission has also endorsed the view that offences concerning unauthorised disclosure of intelligence related information should not be limited to those which require proof of harm or malicious intent. That is because such harm is inherent in the very act of disclosure, which places the information at risk.
As the PJCIS further recognised, the offence requires the prosecution to prove that the person who disclosed the information was reckless as to the fact that it related to a special intelligence operation. And, of course, Senator—it perhaps should go without saying but let me remind you—that this being a criminal offence, the burden of proof lies on the prosecution to prove every element beyond reasonable doubt. As the PJCIS acknowledged, this is an onerous burden of proof. The prosecution must establish to that standard of proof that the person knew of a substantial risk that the information resulted to a special intelligence operation. It must then establish that the person nonetheless and unjustifiably in the circumstances took the risk of making the disclosure.
Senator Ludlam, might I also point out to you that, although you claim in an exuberance of rhetoric that this is a new and extremely dangerous provision, it is entirely of a piece with a number of existing provisions in the law. In particular, the offence elements are identical to the existing provisions of section 15HJ of the Crimes Act, which creates the same offence in relation to the disclosure of controlled operations by the Australian Federal Police. That provision was inserted by the previous government in 2010. In fact, there have been no prosecutions or referrals for prosecution to date. That should tell you that this is a provision that would be very sparingly used. It should also give you a level of reassurance, I hope. It strongly suggests that the offences are not operating to unduly curtail media reporting or public disclosure in relation to security matters.
If I may say so, Senator Ludlam, you often raise a false fear. This is not about reporting on the operation of the intelligence agencies. It is about intentionally disclosing a covert operation with reckless disregard as to that circumstance and in circumstances where, because of the very nature of a covert operation, the persons involved in that covert operation are likely to be placed at risk of harm or, indeed, at risk of their lives.
Lastly, Senator Ludlam, you did say in your contribution that you were concerned that this would constrain or eliminate the rights of whistleblowers. That also, Senator Ludlam, like so many things you said, is erroneous. The existing protections of whistleblowers under the ASIO Act are preserved and are unaffected by this amendment.