Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Hansard source

Just so the nation understands what the member for Melbourne, representing the party of the Greens, is suggesting: they are seeking to remove from the National Security Legislation Amendment Bill (No. 1) 2014 an offence in section 35P(1) which applies to people who intentionally communicate information, reckless as to the circumstance that it related to a special intelligence operation. Clearly, we oppose the amendments.

As the PJCIS recognise, the offence in section 35P(1) is necessary and it is appropriate to protect sensitive information about the existence and conduct of intelligence operations, keeping in mind that there already exists a number of offences in a number of bodies of law. Section 18 of the ASIO Act makes it an offence to disclose intelligence information. Section 92 of the ASIO Act makes it an offence to disclose or identify the identity of ASIO agents. Under the Intelligence Services Act, there are offences in terms of disclosing intelligence related information. I note that there are no amendments, from the party of the Greens, to amend those two acts—the ASIO Act and the Intelligence Services Act. So it begs the question as to how serious the Greens really are.

We are talking about section 35P(1) 'special intelligence operations'. The very disclosure of the existence of these operations will create risks if they are compromised. It will impact the safety of participants and their families. It will put families in jeopardy. Such a risk could be immediate or, indeed, it could evolve over time. There is no way of controlling it once it is disclosed. The risk of harm is inherent in the very disclosure of information when it relates to special intelligence operations and it does not depend in anyway on the intention of the discloser, good or otherwise. As Justice Robert Hope observed in 1984 in his report on ASIO:

The disclosure of secrets or secure areas to risk through inadvertent or carelessness can result in just as much damage to the national interest as can result from espionage or sabotage.

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. This is because such harm is inherent in the very act of disclosure which places that information at risk. In addition, as the PJCIS has further recognised, the offence requires the prosecution to prove that the person who disclosed the information was reckless as to the fact it related to a special intelligence operation. As the PJCIS committee acknowledged, this is an 'onerous burden of proof'.

The government has not decided to put a range of offences in place to muzzle the media. Building on the offences in the ASIO Act and the Intelligence Services Act, an onerous burden of proof is required for an offence under section 35P1. The prosecution must establish beyond reasonable doubt that the person knew of a substantial risk that the information related 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'.

An offence with identical elements, inserted in 2010, exists in section 15HJ of the Crimes Act in relation to controlled operations. I note that in addition to there being no amendments from the Greens on the ASIO Act or the Intelligence Services Act there are no amendments on the Crimes Act. So offences in relation to media disclosure under those three acts is fine, but under this one apparently it is not. The hypocrisy is astounding.

There have been no prosecutions or referrals of prosecutions to date. This strongly suggests that the offences are not operating to unduly curtail media reporting or public disclosure in relation to security matters as it relates to section 15HJ of the Crimes Act. There are only a limited number of special-intelligence operations that can be approved by the Attorney-General, and they must be preapproved.

Let me give the member for Melbourne and the Greens party one example of what they are trying to get rid of. A special-intelligence operation may be extraordinarily covert. An example might be ASIO seeking to infiltrate a known terrorist organisation and then the media, for whatever reason—and I cannot think of a single journalist in the country who would do it—would blast that over the front page of a paper, putting that operative and their family at risk. That is what section 35P1 is all about. The Greens are saying it is fine to risk the lives of ASIO operatives and their families. Member for Melbourne: it is not fine. The nation does not think it is fine. That is why the provision exists.

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