Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I move Australian Greens amendment (2) on sheet 7297:

(2) Page 9 (after line 20), at the end of Part 1, add:

9A General defence

(1) A person does not commit an offence against this Act if:

(a) a physical element of the offence exists because information was, or is to be, disclosed (whether by way of supply of the information or otherwise); and

(b) without the existence of that physical element the person would not commit the offence; and

(c) any of the following apply:

  (i) the information has already been lawfully made available to the public, or to a section of the public;

  (ii) the information has been accepted for publication and/or submitted to a reviewer for the purpose of publication or presentation at a conference;

  (iii) the information was created as a result of the conduct of open research;

  (iv) the information was, or is to be, disclosed in connection with the conduct of open research;

  (v) the information was, or is to be,disclosed during, or for the purposes of, the conduct of a course of study at a higher education institution;

  (vi) the information was, or is to be, disclosed in connection with an application for a patent.

Note: A defendant bears an evidential burden in relation to the matters in subsection (1) (see subsection 13.3(3) of the Criminal Code).

(2) For the purposes of subparagraphs (1) (c) (iii) and (iv), research is open research if:

(a) the results of the research would ordinarily be published and/or shared broadly within the scholarly community; and

(b) the conduct of the research is not subject to:

  (i) a condition that the results not be disclosed; or

  (ii) a condition that the results only be disclosed with approval.

The reason I am proposing that is that after my amendment fails, I indicate now that I will support opposition amendment (1). It does not do exactly what we were hoping it would do, and I will speak about that in a little more detail when we get to it, but it made more sense to move this one first.

The opposition's view of this amendment is one that we have looked at in detail and one that I have some sympathy for. I believe it may also be the preferred option to some of the universities and some of those who have taken an active stance in this debate. My understanding is also that it is not acceptable to the government—and I will let Senator Feeney speak for himself—because it could be interpreted as switching off the whole act for the information that is listed. The Greens amendment, therefore, tries to strike a balance and tries to hear what both the government and Defence have been saying and also what the universities are saying. Our form of words carves out the information from the offences only by creating a defence, which I acknowledge is not the approach that Senator Johnston took.

I think this has merit because it is a more precise way of carving out where the offences are and where they are not, and we recognise that, by saying the whole act does not apply to the listed information, it is actually quite unclear what this means for the provisions—for example, in parts 5, 6 and 8 of the bill—other than that the offence provisions also operate in relation to information. I think the government feels that some of what is covered in our amendment is already covered in other parts of the bill and also that aspects of what we have proposed undermine the intent of the bill. The government has therefore proposed a statement of principle to supplement this, which goes some way towards allaying some concerns.

I say that the Australian Greens amendment did propose an effective balance between what I think everybody is trying to achieve here, which is simply the removal of the ambiguity that we have been speaking of all morning. So, without a great deal of hope unless there has been a late change of heart, I commend this amendment to the chamber.

Question negatived.