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

Indeed, it is relative—very alarming, in any event.

You asked me what particular safeguards there are in relation to the offence of the disclosure of the identity of an officer of ASIO. This is governed by section 92 of the ASIO Act. Before I come directly to your question, might I point out that there are very good and sound reasons why there should be a prohibition on doing so. To identify an officer who may, for example, as part of their daily work engage in covert operations with dangerous people, could very easily place their life at risk. The work that ASIO does is, in many of its aspects, very dangerous work. To put into the public arena the identity of a man or woman engaged in a covert operation among, let us say, dangerous people could, as you can readily imagine, put their life at risk. So there are very sound policy reasons why there should be such a prohibition.

You asked me particularly what special protections there are. I can tell you there are two particular protections and then there are some more general protections. Section 92 of the ASIO Act is not excluded from the whistleblower regime. If a person who is a bona fides whistleblower reports a matter through the process established by the whistleblower regime, they do not find themselves in breach of section 92 of the ASIO Act. That is not a public declaration, of course, that is a private complaint. As you know, because I know you are very well informed about the whistleblower regime, in the first instance, a person who has a bona fides issue and wants to avail themselves of the protections of the whistleblower regime is able to do so without falling foul of section 92 of the ASIO Act.

Secondly, Senator Xenophon, there is another, very particular, protection in the existing section 92. That is subsection 92(3), which provides:

A prosecution for an offence against this section shall be instituted only by or with the consent of the Attorney-General.

I think you are aware that there is a small number of criminal offences in Commonwealth criminal law which, beyond the orthodox manner in which prosecutions are instituted by the Commonwealth director of prosecutions—on top of that—require the consent of the Attorney in his capacity as the first law officer of the Commonwealth. That is a super-added protection specifically in relation to this provision. The fact that the parliament has put that super-added protection there should indicate to you that the point you make—that prosecutions of this kind are a little unusual and do merit an additional layer of scrutiny and discretion—has already been accommodated by the existing act.

As well, there are multiple layers of executive and legislative oversight in relation to the exercise of powers under the ASIO Act already. Those levels of oversight and scrutiny have been increased, not decreased, by the legislation before the chamber today.