Andrew Hastie (Canning, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the committee's advisory report on the Foreign Influence Transparency Scheme Bill 2017.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—I am pleased to present the committee's report for its review of the Foreign Influence Transparency Scheme Bill 2017.

The Prime Minister introduced the bill into the House on 7 December 2017 and referred it to the committee for inquiry and report.

This bill works on the premise that transparent, lawful foreign influence is a good thing and an important part of Australian democracy.

However, we cannot tolerate foreign influence activities that are in any way covert, coercive or corrupt.

When foreign influence is advanced through an intermediary, the source of the influence is disguised. In such circumstances, decision-makers and the public alike may be unaware of the influences being brought to bear on Australian government decision-making.

That is the line that separates legitimate influence from unacceptable interference.

The bill seeks to address that problem by establishing the Foreign Influence Transparency Scheme. The scheme will involve a public register. That register is intended to provide visibility of the level and extent of covert or obscured foreign influence in the course of political and governmental decision-making in this country.

Under the bill, a person will be liable to register if they undertake certain activities that seek to influence Australian political or government decisions, on behalf of individuals and entities that are closely linked to a foreign government.

During the committee's review of the bill, a large number of stakeholders supported its objective: to provide transparency of the level and extent of covert foreign influence in Australia.

However, as the committee's report notes, stakeholders did express concern over the implementation of that objective in the text of the bill. A central concern was the breadth of key definitions that establish a person's liability to register under the scheme.

To address many of those concerns, the Attorney-General wrote to the committee proposing a number of significant amendments. The committee welcomed those proposed amendments as a substantial contribution to narrowing the bill.

The committee's report addresses both the bill as introduced and the Attorney-General's proposed amendments.

Like many in this place, members of the committee have been concerned about the possibility of foreign parties influencing elections and government decisions in other liberal democracies.

This committee supports the establishment of the scheme as part of a suite of responses to address that challenge.

In its report, the committee has made 52 recommendations. Broadly, these recommendations address the following matters: (1) they further refine the scheme's scope, and the actors and activities that would be captured; (2) the activities that should be exempt from the scheme; (3) registrants' obligations for reporting and registering; (4) recalibrating the offences that will underpin the enforcement of the scheme; and (5) establishing appropriate oversight, review and implementation measures to ensure the scheme's effective operation.

On the recommendations that address the scope of the scheme, the committee has recommended further tightening of the definition of foreign entities that will enliven a person's liability to register. These recommendations will provide greater clarity to the scheme's purpose, and to members of the Australian public when assessing their liability to register.

The committee has also recommended that former cabinet ministers, ministers, members of parliament, and former senior public servants should carry additional obligations and for a longer period of time.

This is appropriate as these former office holders continue to occupy positions of influence, after leaving office, in the Australian polity. The committee has also recommended that these obligations extend to senior staff working for ministers.

To ensure that the scheme is only capturing the activities of identified concern, the committee has recommended that a range of appropriately targeted exemptions be established in the bill. This includes an exemption for charities, arts organisations and for certain professions such as tax agents engaged in their ordinary representations to government.

The committee has also recommended a suite of measures to ensure that the obligations on registrants are appropriately framed. This includes amending the bill to provide clarity about ongoing disclosure requirements and reducing the time period for which records must be kept.

Noting the broad powers of the secretary, the committee recommends some refinement to the processes and matters to be considered by the secretary before exercising those powers. This includes the power to issue provision transparency notices to provide the subject of those notices adequate procedural fairness.

The committee further recommends that the government give some consideration to the development of an independent administrator after an initial period of operation.

The committee has also considered the oversight and reporting architecture that will underpin the effective operation of the scheme. To that end, the committee recommends that various reviews and reports be provided to the Parliamentary Joint Committee on Intelligence and Security.

Lastly, the committee has recommended that a new scheme be developed for members of parliament to register their representations on behalf of foreign governments and related entities. The committee is of the view that it would be inappropriate for members of parliament to register and report to a departmental secretary. However, it is essential that visibility and transparency is also brought to bear on decision-makers in the parliament. Accordingly a parallel, transparency influence scheme for the parliament should be developed and apply to sitting members of this House and members of the other place.

Following implementation of the recommendations in the report, the committee has recommended that the bill be passed.

Before I close, I'd like to thank the deputy chair, the member for Holt, a true patriot in the fullest sense of the word; and also the member for Isaacs, who has brought his considerable legal experience to bear in the improvement of this bill.

I thank the House and I commend the report to the House.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

by leave—I thank the secretariat of the Parliamentary Joint Committee on Intelligence and Security for their outstanding work in support of the committee members in this inquiry into what was and is a very complex piece of legislation. I'd like in particular to thank Anna, Lauren and James for consistently producing such a high quality of work under exceedingly tight deadlines.

I want to say a little about the process for this inquiry too, because it was clearly unsatisfactory for a piece of legislation that—in the form in which it was introduced at least—had potentially far-reaching and negative consequences for civil society groups and, more broadly, for democratic freedoms in Australia. We in Labor certainly agree that there is a need for this parliament to address the potential threat posed by malign foreign government interference in our democracy. However, complex legislation that sets up new structures and defences, with criminal sanctions to enforce compliance, should not be rushed, nor should such bills be developed in secret and then introduced without any form of consultation—as was the bill that is the subject of this inquiry—because, as the extensive amendments to the bill recommended in this bipartisan report of the intelligence committee make clear, the bill that the Prime Minister introduced on 7 December last year was riddled with problems.

The release of exposure drafts of complex legislation of this kind is one way to ensure that problems are identified and addressed before the bill is formally introduced. This process, which Labor often adopted in government, enables the parliament to call on the considerable expertise in the Australian community to strengthen draft legislation, and those with concerns to have the opportunity to air those concerns and have them addressed at an early stage. I think this process is particularly important when a bill introduces criminal sanctions with a potentially significant impact on longstanding rights and freedoms, as this bill clearly does. In any event the process of releasing an exposure draft has not been followed by the Abbott and Turnbull governments, and instead we have national security bills introduced in flawed form, which are then substantially amended following analysis and recommendations for change by the intelligence committee.

However, even the intelligence committee process for this bill has been far less than ideal, in large part because the time allowed for public comment was too short. The bill was referred to the committee upon its introduction on 7 December last year for report in February. Public comment was called for over the subsequent holiday period, with public hearings to occur on 30 and 31 January. The time for the committee to report was then extended to 23 March, with another public hearing held during that month. A long delay then occurred, with the government considering a range of amendments. Those amendments were finally produced six months to the day after the introduction of the bill, but, despite the significance of the changes in the amendments proposed by the Attorney-General, only a matter of days were allowed for public comment.

I conclude by saying that the bill as introduced to the parliament was clearly not fit for purpose. It contained an array of serious problems that, if left unaddressed, would have severely impacted upon the rights of individuals and would have imposed a massive administrative burden on civil society groups such as charities, who are working only to improve our nation. It was a bill that clearly showed all the hallmarks of the previous Attorney-General, who in his valedictory speech said that he had worked on the foreign interference legislation:

… with intense focus for most of the year—

and which he described as one of the:

… great pieces of law reform by which I had hoped to define my attorney-generalship …

I also extend my thanks to the current Attorney-General for listening to public concerns about the many flaws in the bill and for working constructively with Labor to produce amendments that deal with many of those concerns. I look forward to seeing the final form of this bill, and thank the other members of the intelligence committee for their work during the debates we had about this bill.

Anthony Byrne (Holt, Australian Labor Party) Share this | Link to this | Hansard source

by leave—I second the comments that have been made by the chair and the shadow Attorney-General. I too want to stress, particularly for those sitting in the gallery and elsewhere, the strongly bipartisan nature of this committee and, in reflecting on the bipartisanship of this committee, extend my deep thanks to the committee secretariat, many of whom laboured literally day and night to produce this report. This is a bill of amazing complexity. It has taken some period of time, as the shadow Attorney-General has said, to bring it to a form where it can be properly submitted to the House. There are some that will have disputations about how that happened, but the work of the committee and of those members that comprised that committee has effectively produced recommendations that will make this legislation palatable to this parliament and to the Australian people.

Make no mistake: the legislation that will, hopefully, be submitted with the appropriate amendments, I suspect, will be required by this parliament to safeguard the Australian people against foreign influence threats. We know that we live in a rapidly changing world, and it is a world in which, as we have seen overseas, great foreign powers have sought to influence democracies. I see the intent of the government's legislation, in the two bills that it brought before the parliament on 7 December, as to protect the Australian democracy from subversion by foreign influence. However, as the shadow Attorney-General said, they could have been brought to this parliament in far better form. I too thank the current Attorney-General for the work he's done and the very cooperative spirit in which he has worked with the shadow Attorney-General, with myself and with the chair of the joint intelligence committee. In this matter we need bipartisanship, and in this matter bipartisanship was shown by every member of that committee.

Bipartisanship is not an easy thing when you're dealing with a matter as complex as this, with differences of opinion about how best to implement this legislation to safeguard our nation's integrity. The mechanism that has been chosen by this government now for some 11 to 12 tranches of security and other legislation is a unique vehicle in many ways, particularly compared to other committees in Western democracies like the ISC, HPSCI and the Senate intelligence committee, with far more staff than those that are sitting over there from the secretariat. I would say one thing with respect to this legislation in particular: it is critical that there be independent oversight. I would urge the government, as we as a bipartisan committee have in these recommendations, that there must be an independent statutory authority that exercises this power, so that we can guarantee that this scheme remains transparent, open and free from claims of political interference, and not put the secretary of the department in what I believe to be an onerous position. The Attorney-General's Department is an oversight department. As you can see the government is aiming to ensure that the Attorney-General's Department is the protector and guarantor of civil liberties and protections in laws framed in this parliament. I think the independent statutory officer would give perfect effect to the desire was spoken about by the Prime Minister on 7 December last year.

I also commend the report to the House, and I would say to those who are listening and to the Australian people: bipartisanship is not an easy thing. We are talking about tax cuts and a whole range of other things, but I reassure those in the gallery, those listening and fellow parliamentarians that this committee, under substantial strain and duress, has produced a report which I think will stand the test of time and, in doing so, give us the laws our country needs to protect us from foreign interference into the future.