Thursday, 25 September 2014
National Security Legislation Amendment Bill (No. 1) 2014; In Committee
The government opposes all of the Greens amendments on sheet 7570. What the Greens propose is to retain the grossly inadequate maximum penalty applying to offences against section 18(2) of the ASIO act for entrusted persons who engage in the unauthorised communication of intelligence information and to remove from the bill the proposed new offences in section 18A and 18B in relation to entrusted persons who engage in activities which place intelligence related information at risk of compromise—that is, by unauthorised dealings with records or recordings of information. These proposed amendments will grossly diminish the bill.
A 10-year penalty for the unauthorised communication offence in section 18(2) is necessary to reflect the harm that is inherent in such behaviour. The current penalty of two years imprisonment was inserted in 1979 at a time at which the instant global dissemination of information via the internet was simply not contemplated. The offence applies only to entrusted persons being employees of ASIO or persons in a contract agreement or another arrangement under which legitimate access is provided to information.
These offences reflect a legitimate expectation that persons to whom sensitive information is entrusted will be held to a high standard of conduct. They also reflect the outrage of the community at the gross breach of trust that would be perpetrated upon our community were that trust to be violated. The offences do not override or displace the regime of internal disclosures in the Public Interest Disclosure Act. The government has moved amendments that create an express exception for persons who communicate information to the IGIS or his or her staff for the purpose of the IGIS perform his or her statutory oversight functions. This will ensure that the offences do not operate as a perceived disincentive to the making of complaints to the IGIS. As the Parliamentary Joint Committee on Intelligence and Security recognise, we need offences directed specifically to entrusted persons who place sensitive information at risk in breach of their authority. As I have said, these offences give effect to a legitimate expectation of such persons.
Like the unauthorised communications offence, the offence of unauthorised dealing with records or recording of information do not displace the regime under the Public Interest Disclosure Act. The Greens amendments would also create an arbitrary distinction to the proposed amendments to the Intelligence Services Act in schedule 6 to the bill. The offences are directed to exactly the same mischief in relation to all intelligence agencies and, for the sake of consistency, the penalty regime between the ASIO Act and the Intelligence Services Act should be equivalent.