Thursday, 28 June 2018
National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018, Foreign Influence Transparency Scheme Bill 2018; Second Reading
I want to thank my parliamentary colleagues for their contributions to the debate on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018—the EFI Bill; and the Foreign Influence Transparency Scheme Bill 2017—the FITS Bill.
These two bills have been considered in detail by several parliamentary committees, and I thank those committees for their contributions. I particularly thank the Parliamentary Joint Committee on Intelligence and Security for their detailed consideration of these two bills. The committee has produced detailed and robust reports, having considered the bills over a period of some six months. It received a total of 143 submissions and 68 supplementary submissions, held multiple public and private hearings and received multiple classified briefings. The committee considered the detailed proposed government amendments to each bill provided to it by the Attorney-General, which were the subject of further public hearings and submissions. The committee tabled its report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill on 7 June 2018 and its report on the Foreign Influence Transparency Scheme Bill on 25 June 2018. The government has accepted all of the committee's recommendations, as it has for each of the previous 10 tranches of national security legislation.
With respect to the EFI bill, covert interference and espionage by nation states are global realities which have the potential to cause immense harm to our national sovereignty, the safety of our people, our economic prosperity and the very integrity of our democracy. To counter this threat, Australia must have a robust legislative framework to ensure our law enforcement and national security agencies are sufficiently empowered to investigate and disrupt malicious foreign interference. The reforms in the EFI bill are comprehensive. They represent the most significant counterintelligence reforms since the 1970s. The measures in the bill will fundamentally reshape our national security offences to protect Australia's sovereignty and information, and protect the democratic principles and values that underpin our society.
The EFI bill includes comprehensive new espionage offences that are designed to capture the full range of conduct undertaken to compromise sensitive information and prejudice our national security. The new offences will target not just the person who discloses the information but also the actions of the foreign principal who receives the information. The bill will also introduce an offence criminalising economic espionage, or the theft of trade secrets, which will apply to dishonest dealings with trade secrets on behalf of a foreign government principal.
Senator McKim expressed the view that the espionage offences might capture persons who disclose information about potential human rights abuses or breaches of international law to international advocacy organisations or the United Nations. Senator Wong addressed these issues in her contribution to the debate, as did the shadow Attorney-General in his contribution to the second reading debate in the other place. I will not restate the point that Senator Wong and the shadow Attorney-General correctly made. A person seeking to draw human rights concerns to the attention of the United Nations or other international organisations will not commit an espionage offence as they did not intend to; nor are they reckless as to whether their conduct will prejudice Australia's national security.
The EFI bill will introduce, for the first time, a suite of foreign interference offences into the Criminal Code. These offences will complement espionage offences by criminalising a range of other harmful conduct undertaken by foreign principals who seek to interfere with Australia's political, governmental or democratic processes to support their own intelligence activities or to otherwise prejudice Australia's national security. Senator Leyonhjelm set out a series of scenarios where a person might entirely properly communicate with a foreign government in private in the course of informing themselves on a matter of public importance before engaging in debate in Australia. I want to thank the senator for providing specific examples and for clearly identifying the legislative provisions that he is concerned may be engaged. I can reassure the senator that the scenarios, as he described them, would not constitute foreign interference offences. In the scenarios he sets out, a person will only commit a foreign interference offence if they seek to covertly or deceptively influence a political or governmental process on behalf of or in collaboration with a foreign government—that is to say: it is the act of influence in the process that must be covert or deceptive for the offence to be committed.
The EFI bill contains a suite of new Commonwealth secrecy offences, which replaces sections 70 and 79 of the Crimes Act. There will be separate offences that apply to Commonwealth officers and non-Commonwealth officers. The offences that apply to non-Commonwealth officers will be narrower in scope and attract lower penalties. Defences will apply to ensure the offences do not apply too broadly, including a defence specifically applying to journalists as well as editorial and support staff who reasonably believe that their conduct was in the public interest. The new secrecy offences ensure harmful information cannot be released, while appropriate defences protect freedom of speech.
The EFI bill will update and simplify the offences of treason and treachery, as well as archaic and outdated offences in part 2 of the Crimes Act. These are some of the oldest offences in the statute book. As such, they require modernisation and updates to the language to reflect the modern environment and international law concepts of armed conflict. The EFI bill will also introduce reformed sabotage offences into the Criminal Code. The new offences will criminalise conduct causing damage to critical infrastructure where it could prejudice Australia's national security. The new offences will apply higher penalties where sabotage offences are committed on behalf of foreign principals and will also contain offences that apply where a person's conduct leaves an item or system vulnerable to future misuse or exploitation. Senator McKim expressed the view that the sabotage offences might capture persons who picket a coalmine or port. Senator Wong addressed these issues also in her contribution to the debate, as did the shadow Attorney-General in his contribution to the second reading debate in the other place. A person engaged in ordinary and lawful protest will not commit a sabotage offence, as they did not intend to nor are they reckless as to whether their conduct will prejudice Australia's national security.
Finally, the EFI bill will amend the Telecommunications (Interception and Access) Act 1979 to ensure the powers under that act are available to investigate the offences contained in the EFI bill. While foreign actors are free to promote their interests in Australia's free and open society this must be done in a lawful and open way. The FITS Bill will provide transparency for the Australian government and the Australian public about efforts by foreign governments, foreign political organisations, and persons and entities closely related to foreign governments and foreign political organisations to use intermediaries to influence Australia's political and government processes. Decision-makers in the Australian government—and the public—should know what interests are being advanced in respect of a particular decision or process. For the first time, the public and decision-makers in government will have access to information to enable them to accurately assess how foreign sources may be seeking to influence Australia's government and political processes. The bill will empower the Secretary of the Attorney-General's Department to issue a transparency notice setting out whether a particular entity or individual is related to a foreign government. Transparency notices will assist potential registrants to understand whether they are required to register and will also shed light where a company or individual seeks to conceal their relationship with a foreign principal.
The FITS bill exempts a range of organisations and persons from registering under the scheme. The exemptions extend to humanitarian assistance, legal advice, diplomatic activities, religious activities, commercial or business pursuits, industry representative bodies, individuals making personal legal representations, registered charities, activities with an artistic purpose, certain registered organisations and certain professions. These exemptions appropriately restrict the application of the scheme to those organisations and persons which seek to influence Australian political and government decisions or processes in a way that threatens Australian institutions. Senator McCarthy raised the issue of Indigenous rangers working in collaboration with international charities such as The Pew Charitable Trusts. I am pleased to say that the bill, incorporating the Attorney-General's amendments as well as those recommended by the PJCIS, will place beyond doubt that Indigenous rangers are not required to register in such circumstances. The FITS Bill will introduce offences which will promote compliance with the scheme.
I would like to thank my parliamentary colleagues for recognising the need for these important measures in these two bills. Comprehensive criminal laws are a critical part of Australia's response to the threat of espionage and foreign interference. The EFI bill reflects the government's commitment to addressing this threat and ensuring that our law enforcement and security agencies have the powers they need to respond to the broad spectrum of foreign interference and related criminal activities directed against Australia's interests. Legislative reform is also a critical step in shedding light on foreign interference. The FITS Bill reflects the government's commitment to addressing this issue and to ensuring that the public and decision-makers in government will have access to information to enable them to accurately assess how foreign sources may be seeking to influence Australia's government and political processes. I commend both bills to the Senate.