Nick Xenophon (SA, Independent) Share this | Hansard source

I indicate my support for this amendment for these reasons. This amendment does not touch clause 35P(2), which relates to committing an offence if you disclose information relating to a special intelligence operation and it could in any way endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation. So it is not just about the health and safety of our intelligence officers, which ought to be a very key and important consideration. That is why I supported Senator Lazarus's amendment to increase substantially the penalty in respect of that. This amendment seeks to delete the offence of up to five years imprisonment for simply disclosing a special intelligence operation. It must be read in conjunction with subclause (2), which ought to remain subject, I hope, to an amendment that I will be moving in respect of public interest considerations. That is the difference. If you disclose information, and that information prejudices an operation, prejudices the health or safety of intelligence officers, that will still be an offence. The Australian Greens are not seeking to get rid of that.

I think we need to listen to the fourth estate in relation to this. I think we need to listen to organisations as diverse as Fairfax Media, AAP, SBS, Commercial Radio Australia, the West Australian, the ABC, free TV and News Corp in relation to their concerns. They have set out very clearly and unambiguously:

The insertion of proposed section 35P could potentially see journalists jailed for undertaking and discharging their legitimate role in the modern democratic society—reporting in the public interest. Such an approach is untenable and must not be included in the legislation.

I am conscious of time and I will be as quick as I can, but I do want to make mention to what occurred almost 30 years ago.

Almost 30 years ago, Peter Wright, a counterintelligence officer from Britain's MI5—which is the UK's counterpart to ASIO—wrote a book entitled Spycatcher. The British government, in particular the British Attorney-General, Sir Michael Havers, in consultation with the Director of Public Prosecutions, decided to prosecute Wright for unauthorised disclosure of classified information. Heinemann, the UK publishing house, tried to avoid an injunction preventing publication by transferring the book to the Australian subsidiary. The British government decided to take legal action in Australia and in the United Kingdom. Accordingly, in September 1985, the British Attorney-General began proceedings in Australia against Peter Wright and the publisher, Heinemann Australia, seeking an injunction to prevent publication on the grounds that Wright was in breach of his duty of confidentiality to the Crown.

The Attorney-General admitted, for the purposes of those proceedings only, that all the allegations in Spycatcher were correct. The admission that Sir Roger Hollis, a former MI5 director-general, had been a Soviet spy was of considerable public interest in Australia, since Hollis had had a major role in the foundation of ASIO. The Spycatcher trial lasted five weeks. Peter Wright's counsel was a young—some would say brash—then 32-year-old lawyer named Malcolm Turnbull. On that historic occasion, Malcolm Turnbull was able to make fun—and rightly so—of the exaggerated levels of British secrecy. The Australian Cabinet Secretary, Michael Codd, in evidence at the trial claimed that, if Spycatcher were to be published in Australia, the intelligence agencies of Britain and other friendly countries would be unwilling to exchange secret intelligence with Australia. But Spycatcher was published and the sky did not fall in. The intelligence agencies of Britain and other friendly countries are quite happy to exchange secret intelligence with Australia.

My fear is that, under this bill, with this particular provision—the subject of so much concern by the media, the fourth estate in this country—Spycatcher could not be published in Australia. That is a situation we must not permit. This is where the bill is weak. It assumes a best-case scenario and impeccable behaviour by all concerned. I have referred to the witness K case in relation to East Timor—a different set of circumstances, but the principles are the same. The foundation of Western political thought, as the Attorney-General knows full well—and I say that as a compliment—is that we do not rely solely on individuals to be good or rulers to be righteous but on institutions to provide checks and balances. This has been known since at least the second half of the 18th century when Montesquieu, a French political philosopher, championed the need to resist tyranny by fragmenting government power, particularly through the device of the separation of powers. I have real concerns about the impact of this particular piece of the legislation on the freedom of the press.