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

That is the purpose of section 35P of the ASIO Act, which was inserted, over the objection of crossbench senators, last year. It is no answer to say that perhaps prohibition should only apply to a current operation but not to a past operation, because often people need protection for years, or even decades, after an intelligence operation. You know, Senator Xenophon, the Australian government protected the identity of Vladimir and Evdokia Petrov until the day they died, 30 or 40 years after the Petrov affair.

It strikes me as a crowning irony in this debate that those who are extremely concerned to protect the confidentiality of journalists' sources would, in the next breath, expose the confidentiality of intelligence operations. I know that is not your motive, Senator Xenophon, but it is the effect of the argument against section 35P.

This was looked at by the first PJCIS report, recommendation 28, and adopted in a bipartisan manner. I should say that the section 35P protections of ASIO are modelled on the longstanding protections of the Australian Federal Police for protected operations by AFP officers; they are modelled on like protection provisions that exist under state and territory law for state and territory police officers. It should never be controversial, frankly, that the identity of officers involved in covert operations should be protected.

Lastly, this is not a provision about journalists, as I have said many times. This is no more a provision about journalists than the law relating to drink-driving is a law about journalists. This is a law that makes it an offence for anyone in the community to disclose or prejudice a covert operation. That is what section 35P does. We had that debate in this chamber last year. Section 35P was passed in the teeth of a reasonably furious media campaign. But, mindful of the sensitivity of the press freedom issue that some journalists and news organisations have raised, additional protections were added. In particular, the Director of Public Prosecutions himself issued a directive which is available on his website setting out certain public interest criteria that would be applied in enforcing section 35P.

As well, I made a directive to the Director of Public Prosecutions requiring the consent of the Attorney-General for any prosecution under section 35P. So if it were thought that a prosecution was in some way inappropriate or inimical to the freedom of the press, by requiring the Attorney's consent—that happens in a number of cases, but they are unusual—it would mean that the Attorney-General of the day, whoever he or she may be, as the responsible political officer would accept personal and public responsibility. So it would not merely be a matter of prosecutorial discretion exercised by the Commonwealth DPP; it would be a matter of the Attorney-General of the day accepting public and political responsibility as well. So there are safeguards. I will defend to the utmost, Senator Xenophon, the proposition that the confidentiality of covert operations ought to be protected, as it is in section 35P, by criminal sanction.