Thursday, 26 March 2015
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015; In Committee
Senator Xenophon, I do not for a moment suggest—and I said this before—that you would wish to oppose a provision that protects the lives and health of ASIO officers. But you are directing yourself to subsection 35P(2), which is on the aggravated offence. It carries a penalty of imprisonment of 10 years. The problem with your argument, Senator Xenophon, is that, under subsubsection 35P(2)(c), there is an element that:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; or
(ii) the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.
That carries the higher range penalty of 10 years imprisonment.
Senator Xenophon, you detained the Senate for some time this morning arguing very persuasively, if I may say so, the case for having a purpose test and an effects test so that unintended consequences could be caught as well as deliberate conduct in relation to another provision of the bill before the chamber. The same logic that you advanced earlier on in the debate applies here. Disclosure may not be intended to or for the purpose of endangering lives or health. It is very unlikely to be. But that may be the incidental effect of it. That is why, if it is the inadvertent or incidental effect of it, we need section 35(1), which does not contain those limitations.
As well, although I spoke about life and health as the extreme case here, there are more consideration at play than merely that. For example, there are operational techniques. To disclose operational techniques is not necessarily to endanger the life or health of agents or officers engaged in an operation, although it could, either currently or in the future, but it certainly prejudices the capacity of ASIO to effectively carry out those operations if its tradecraft, if its techniques, if its wherewithal, are the subject of public disclosure.
Let us be realistic here, Senator Xenophon. ASIO is a covert intelligence gathering body. It was established in 1949 by the Chifley government to be a covert intelligence gathering body. That is what it does and because we are a liberal democracy that cares about values like personal freedom and the freedom of the press, when we establish a covert intelligence gathering body in the middle of a liberal democracy what do we do? We subject it to the most stringent limitations and oversight mechanisms and accountability mechanisms, and the architecture of those mechanisms, including the Parliamentary Joint Committee on Intelligence and Security, including the Inspector-General of Intelligence and Security, including various requirements of accountability to the Attorney-General, including reporting requirements to the parliament, has been integral to the confidence that the Australian people have had in ASIO since 1949. That confidence, I believe, has never been significantly prejudiced because although over the years ASIO has made mistakes, frankly it has not made many, in the scheme of things, since 1949. So, Senator Xenophon, the essence of your proposition is that it should not be against the law to disclose the special intelligence operation of an agency which was designed and built to operate covertly. That is what you are saying.