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

The Attorney has grossly misrepresented my position. If he remembers, during the debate in respect of section 35P there was an amendment moved, from memory, by Senator Lambie, then a member of the Palmer United Party, to increase the penalty from five years to 10 years in circumstances where lives were endangered by someone disclosing a special intelligence operation. I supported that. I supported that because there must be no ambiguity when it comes to information that could lead to a person involved in a special intelligence operation having their life endangered or, indeed, having the lives of their family members endangered by virtue of the disclosure of their identity. I just want to make that absolutely clear. I would be grateful if the Attorney would acknowledge this: I have never argued that endangering the life of a person by disclosing information should not be a most serious offence.

But I do draw the Attorney's attention to comments made by Tim Wilson, the Human Rights Commissioner—an appointment that the Attorney made. He has raised concerns about section 35P. He made the point in an opinion piece that:

As former independent national security legislation monitor Bret Walker has argued, in its most extreme form 35P could stop the reporting of a citizen being killed during a botched special intelligence operation. I have no doubt that is not the intention of the government, or any in the near future. But that shouldn't mollify critics.

He expresses real concerns in respect of that.

My concern is that section 35P in its current form does not give protection to journalists where there is no question of revealing the identity of someone involved in a special intelligence operation. We are aware of raids in the past that have been botched by our police and intelligence operatives. Things have gone wrong. It seems to me that in those circumstances there will be no protection for journalists reporting that. We have very fine journalists in this country such as Cameron Stewart who report on these matters. He is highly regarded. I think that he would be constrained in reporting on those sorts of issues.

The government seems to be coming from the position that intelligence agencies can do no wrong. Well, they are not infallible. They do make mistakes. We have seen throughout history that this is a very dangerous position to take. The media plays a vital role in exposing those intelligence operations which have gone wrong, where it is in the public interest to disclose them and where there is no question of any lives being endangered by that disclosure.

I just want to make it clear on the record that I supported an increase in the penalty from five years to 10 years in order that if disclosure endangered the life of someone involved in a special intelligence operation that should be treated seriously by the courts. But this is about ensuring that the media can do their job in cases where there is a clear public interest to disclose an intelligence operation that effectively goes wrong.