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

The government opposes those amendments. Amendments (4) and (5) relate to the aggravated offence in section 35P(2), for persons who disclose information relating to an SIO intending to cause or actually causing one of two forms of harm. Those are: endangering the health or safety of any person, or prejudicing the effective conduct of a special intelligence operation. These are circumstances of aggravation and, for that reason, in the government's view, the higher maximum penalty of 10 years imprisonment is justified.

Senator Leyonhjelm's amendment would remove from the exaggerated offence the element of causing prejudice to the effective conduct of an SIO. This would mean that the offence would not target a very grave wrongdoing. ASIO's ability to perform its functions effectively relies absolutely on its ability to conduct effective covert operations without compromise. It is appropriate that offences are enacted to create an appropriate disincentive to persons contemplating the disclosure of operational information of the most sensitive kind. I note that these offences are subject to rigorous safeguards. These include the ability to disclose suspected wrongdoing to the IGIS, and specific exemptions for persons seeking legal advice or participating in legal proceedings in relation to an SIO.

Senator Leyonhjelm, without repeating myself, may I remind you, as I pointed out to Senator Xenophon before, that this is a maximum, not a mandatory minimum, so, although the maximum has been elevated to reflect the potential gravity of the offence, obviously only in the most serious kind of case would a sentencing discretion be exercised to impose the most serious penalty.