George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Section 35AB, yes. You have left out some very important words, Senator. The exemption is in relation to conduct engaged in by 'a person in the proper performance of a function of an Australian law enforcement or intelligence body'. We discussed this, I remember, in a different context during some of the earlier counter-terrorism legislation.

As you know, from time to time law enforcement officials and members of the intelligence community undertake covert operations in the proper performance of their duties as intelligence officers and law enforcement officers. In undertaking those covert operations, they might find themselves associating with terrorists or associating with people who are engaged in terrorism attack planning. In fact, the whole point of a covert operation of that kind would be to penetrate a group of people covertly planning a terrorist operation. In the ordinary manner in which intelligence officers and law enforcement officers undercover operate, they may have to, as it were, play along to ensure that their identity as an intelligence officer, for example, is not apparent or revealed to the people who are engaged in planning the terrorism operation. Technically, in those circumstances, they might commit the crime of participating in a criminal conspiracy or commit the crime of engaging in preparation for a terrorism act because they were playing along for the purpose of in fact discovering and stopping the commission of that act of terrorism. So, routinely, this is not an unusual provision at all. It is a routine provision both in Commonwealth law and in state law to protect undercover officers, undercover intelligence officers or police officers who are engaged in the penetration of criminal networks.