Thursday, 28 June 2018
National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018; In Committee
I'll try and step through this a little bit as to what the elements of this offence would be. Obviously journalists, like others, if they were to engage every element of the espionage offence, would potentially be liable. But there is a high bar. One of the reasons it's designed the way it is is that, of course, when we are dealing with espionage and when we are dealing with foreign agents, it's not easy to absolutely define every type of activity in a piece of legislation. If we go through the elements that would be needed—and that might help, and then no doubt there'll be further questions—the espionage offences in the case of a journalist—if we take that as an example, although it's certainly not aimed at journalists—would apply only where that person intends to or is reckless as to whether their conduct will prejudice Australia's national security or advantage national security of a foreign country. With espionage, there also in this case must be a link to a foreign principal, which does not include foreign businesses or individuals. If a journalist engaged in the relevant conduct and these circumstances existed then of course there'd be the potential for the espionage offences to apply. But it wouldn't capture a journalist engaged in the ordinary practice of their profession, where their intent is to report on matters of public interest. So it absolutely goes to, yes, links to foreign principals, and damage, through intent or recklessness, to national security, but not to someone who was acting in good faith, in order to bring issues of national interest into the public domain—unless they were deliberate or reckless as to doing national security damage to Australia—and then it wouldn't, in that circumstance, apply.
But I would just make this broader point. I made the point earlier that, when it comes to secrecy offences, there are specific defences in relation to journalists, but when we are talking about espionage, we are talking about a very serious offence, a very high bar, and the idea of potentially completely carving journalists out of that actually presents some serious national security challenges. I think it was the Director-General who made some comments—I'll check my notes in a minute—that, if you did have a complete carve-out for journalists, that would potentially be very, very dangerous and would actually put journalists at risk of some of those attempts at foreign interference. So, in relation to these specific offences, whilst there is not a specific carve-out that exempts journalists or gives them a specific defence, the bar is very high one, and, in those circumstances, someone simply reporting in the public interest and getting things to light would not be engaging that, unless all of those other elements that I've pointed to were in existence and were able to be proved.