Thursday, 28 June 2018
National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018, Foreign Influence Transparency Scheme Bill 2018; In Committee
I would like to place it on the record that it's not my wish and I ask that the bills be considered separately in committee.
The TEMPORARY CHAIR: Okay. We'll deal with the national security legislation amendment first. Minister?
I'm just seeking some guidance as to the procedural way forward. These bills are being considered cognately, and we don't agree with them being separated—though obviously separate amendments will be considered separately. So I seek your guidance as to the procedure going forward. But we want to see these bills considered cognately, as was the understanding going into this debate.
The TEMPORARY CHAIR: Minister, effectively, leave is sought by the Senate to deal with them together, and Senator McKim's actions have effectively denied leave. So we will deal with the bills separately. We will deal with the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 first.
First, Minister, I'd like to go to the issue of urgency, which has been claimed repeatedly by the government and the opposition on what I believe to be totally spurious grounds. We've had numerous pieces of public commentary from government ministers over the last couple of weeks that said that these bills had to be passed before the by-elections occurred. So I'd like you, Minister, please, to explain whether that is still the government's position—that these bills are urgent because of the up coming by-elections. If you are still going to claim that as a position, could you explain why? If you are going to walk away from that position, could you explain why so many government ministers were on the public record as saying that these bills needed to be passed before the by-elections, when, if you are walking away from that position, that is an admission that they do not need to be passed before the by-elections?
In relation to the urgency: absolutely, the government believes that this is an urgent threat and it is important that we have legislation in place to deal with that threat as quickly as possible. Obviously, by-elections are major exercises in democracy. So, where we've been in a situation where we don't have strengthened laws, obviously that provides potential for interference in our democratic processes. So, whether it's the by-elections coming up or any other democratic event beyond that, this legislation is urgent and the government absolutely maintains that. That's why we believe it's important that it's passed through the Senate as quickly as possible.
Minister, thanks for that response. Can you confirm that the Attorney-General's Department gave advice to the Joint Standing Committee on Intelligence and Security that some of the frameworks that this legislation seeks to establish will take many months to put in place?
Presumably, the delayed proclamation is based on the advice that you've just confirmed was given to the Intelligence and Security Committee and which, presumably, was also given to government by the Attorney-General's Department. Are you able to provide a time frame for the implementation of those two frameworks? I acknowledge that the transparency scheme is not the bill that is currently before the committee, Minister. I'm happy if you want to defer until we consider that bill, but you might be able to provide some advice about that now.
I can answer both. The transparency has to commence within 12 months, and the secrecy within six months. But, obviously, proclamation provides flexibility as the details are finalised.
Thank you, Minister; I appreciate that. In response, I guess I'd make the obvious point that I'm not convinced that the argument we needed to get these in place for by-elections was anything other than a political argument. I note for the record that the statement of reasons for urgency that was tabled earlier this week by the government did not mention by-elections at all.
Minister, I want to take you now to some of the matters which have been contested between you and me in this debate, and that is the impact of these laws—should they pass as they currently stand—on things like peaceful protest and public interest journalism. I want to go first to the issue of peaceful protest. I note that in your summary on the second reading only moments ago, you were very careful to include the word 'lawful' in what you said, saying that this legislation would not have any impact on someone who was engaged in 'lawful' protests.
I want to remove that word from our discussions, Minister, because, as you know, blockading a road or an entrance gate to a particular industrial facility is actually not lawful; it's unlawful, under current law. So I want to ask, specifically, about those kinds of protests—peaceful, non-violent protests which are not lawful under current law. I think the easiest way for us to do that is to talk about examples. I want to use the example of a person or a group of people who blockade, unlawfully, a road or an access point that leads into a port that is being used for live sheep exports. Could a person or group of people who do that be charged with the sabotage offences currently contained in this legislation?
The short answer is no, and I'll just go through why. All of the sabotage offences need to be read together. The sabotage offences can only be committed where a person damages public infrastructure and intends for their conduct—or is reckless as to whether it does—to prejudice Australia's national security or to advantage the national security of a foreign country. There are a number of reasons why these offences wouldn't apply in that particular scenario.
'Public infrastructure' is a defined term set out in section 82.2 of the bill. This definition is unchanged since December, when it was first introduced. It includes Commonwealth facilities, premises and systems, defence premises, telecommunications networks and infrastructure that provides utilities or services to the public, such as the electricity or water grids. But I want to deal briefly and specifically with your line of questioning about the lawful versus the unlawful and whether or not that would, in and of itself, attract the sabotage offences. Obviously the government does not and would not condone behaviour that breaks state and territory laws in the context of protest. However, the fact that those laws may have been broken would not be enough to constitute a sabotage offence under sections 82.5 or 82.6. As stated earlier, these offences require a person to intend to, or to be, reckless as to whether they'll prejudice Australia's national security or advantage the national security of a foreign country. Simply breaking state and territory laws wouldn't be sufficient to satisfy that element.
Minister, thanks for that response. I want to take you to section 90.4 and the definition of national security. This goes to the argument you've just made about someone needing to be reckless as to the intent of their actions. Can you please confirm firstly that 'caught' in the definition of national security is something which would engage a country's political or economic relationship with another country or countries? If that is the case, wouldn't you agree that somebody who blockaded a port or an export facility in trying to prevent the loading of live sheep exports would impact on Australia's economic relations with another country and, therefore, be caught under this definition?
The answer to the first part of your question is yes. But there is a big difference between the actions you're suggesting—actions which are taken for the intention of animal welfare—and actions which are taken either intentionally or recklessly to damage the national security of our nation.
I don't accept that at all, and I want to talk you through why I don't accept that. Actually, perhaps we can do this in question and answer, which is the way the forms of this committee are established. If somebody took a protest action with the intent of damaging Australia's economic relations with another country would that be caught under the sabotage provisions because of the way national security is defined in section 90.4?
Again, we're distinguishing between different intent. You are talking about someone who intends to disrupt a particular trade for a particular reason as opposed to someone who intends to damage Australia's interests. That is quite a separate intention. That's why there's no prospect of that in circumstances where someone was acting in order to deal with animal welfare issues as opposed to the intent or recklessness that's needed. If you go to chapter 2 of the Criminal Code, obviously intent is pretty clear. But when we talk about recklessness the prosecution is required to prove that a person is aware of a substantial risk that their conduct will prejudice Australia's national security or advantage the national security of a foreign country, and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
Thanks. Even though I've still got some concerns around intent, I do want to ask some questions about the recklessness aspect of this. Let's say someone did want to make a protest for a political reason to make a point about animal cruelty, as you've raised in a couple of your responses moments ago, so they decided to do that unlawful protest by blockading a port where live sheep were being loaded for export. They were doing it with the intent of making a political point, but they knew that their actions would damage Australia's economic relations with the country to which these sheep were being exported. Wouldn't they then be caught by the sabotage provisions of this legislation because of the way 'national security' is defined in proposed section 90.4?
Obviously, ultimately these would be matters for the courts, but we've set out how the legislation applies. What we're talking about is that what this turns on is unjustifiable risk and unjustifiable actions. When someone is setting out or is reckless as to the fact that their actions are going to affect national security, potentially, then the elements are made out. But where someone sets out to make a political point, to protest about animal welfare, obviously that is in a different category in terms of what their intent is and what the fault element is in relation to an offence.
I invite you to reconsider the advice you've just given to this chamber, Minister. I think you were loose with the words you just used, and I'm concerned that you're placing inaccurate information on the record and potentially misleading this chamber. I thought I made my argument clear, but I'll make it again: proposed section 90.4 defines the 'national security' of Australia to mean any of the following—and then it goes through a series of criteria that you would think are reasonable in terms of how 'national security' is defined: the defence of our country, the protection of our country, the protection of the integrity of our country's territory and borders, and so forth. I want to put those aside and take you to section 90.4(1)(e), which catches a country's, including Australia's, 'economic relations' with another country.
So, again, I put to you: if someone, even though their intent may be to make a political point about animal cruelty—for example, in the context of the hypothetical that I've put to you—is 'aware' that their actions could or would damage Australia's economic relations with the country to which the sheep are being exported, by delaying and perhaps preventing, totally, the export of those sheep, wouldn't that place them in a category of being 'reckless' and caught under the sabotage provisions of this legislation because of the way you've defined 'national security' in section 90.4(1)(e)?
No. Again, I go back to the fault elements. You're dealing with recklessness here. I've dealt with it, but I'll deal with it again. The prosecution is required to prove that a person is aware of a substantial risk that their conduct will prejudice Australia's national security or advantage the national security of a foreign country, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk. We are not dealing with a low bar when it comes to that in terms of recklessness. We're not dealing with carelessness as is dealt with in other areas; we are dealing with recklessness or intent. I simply don't accept the proposition that you're putting—that there is such a low bar that activity such as you're describing would fall foul of that provision.
Your defence here relates to the establishment of fault, and you've just advised this committee—and please correct me if I've got this wrong—that there are two elements to that: one is that the person is aware that there is a substantial risk that their actions may impact on national security. Remember, we're talking about economic relationships here, within the very broad definition of national security in section 90.4. The first bar that needs to be cleared, if you like, is that the person needs to be aware that there's substantial risk that their activities might damage Australia's economic relationship with another country. I submit to you that, in the hypothetical I've given you, that bar is comfortably cleared, because the person is well aware that their protest may delay or entirely prevent the loading of the sheep for live export, and that therefore they have cleared that bar because they have an awareness that their actions constitute a substantial risk to Australia's economic relationship with the country to which the boat is being loaded to travel to. Am I not correct in that categorisation of the first bar that needs to be cleared?
Again, all of those elements need to be taken together. I'll take you back to one of the pieces of language you used, which was 'impact' national security. The legislation talks about 'prejudicing'. You are talking about a substantial risk that the conduct will prejudice Australia's national security, and, in all of the circumstances, it's unjustifiable to take the risk. No, I don't accept the proposition that you're putting.
We'll come to the second bar in a minute. By the way, I do accept that these elements would be considered together by courts if this hypothetical situation ever got to the courts—and I hope it doesn't but I suspect that it will at some stage in the future. I'll give a philosophical underpinning to my concerns here. A close reading of human history shows that, if parliaments create a particular power, power-hungry, desperate governments—including in Western democracies—have a track record of using those powers to the fullest extent to quash people taking action to hold governments to account. Your government has been guilty of this overreach on many, many occasions. If you want, I'll give you an ad hoc chapter and verse on that. In order to try to save us time, the philosophical underpinning of my expression of concern on behalf of the Greens here is that governments have a track record of utilising every last bit of power that parliaments make available to them if they feel politically threatened by the actions of a citizen or a particular group of citizens.
Having placed that on the record, and having said that I accept that a court would need to consider the fault elements together, I still want to take you to the first bar, which is the requirement that a person would have to have an awareness that there was a substantial risk that their action might—it's not 'impact', Minister, I'm sorry; the word you used was—
Prejudiced. Thank you, Senator McAllister and Senator Seselja. If the person is aware that there is a substantial risk that their actions might prejudice Australia's economic relations with the country to which the live sheep are being exported, surely you have to accept, Minister, that that first bar, the substantial risk bar, is cleared. Do you not accept that?
What you're now asking is for me to, in this forum, start to get into the realm of what a court would be doing and what evidence would be considered. I've put out very clearly, and through a range of processes we've put out clearly, exactly what those elements are. They are designed to deal with particular actions of sabotage. In terms of getting into the kinds of details that you're now inviting me to get into, I can't prejudge what kind of evidence might be put to a court in those circumstances. I think you're now asking me to get into that level of detail. We've set it out—I've set it out very clearly and it is set out very clearly in the legislation. The government believe and the opposition believe, having considered it as well, that these bars are at very reasonable levels before this offence is engaged. It is not aimed at the kind of political activity that you are referring to, but you are now inviting me to get into the realm of what a court would do. I don't believe that that's appropriate.
I'm actually not inviting you to do that at all, Minister. I'm putting a very specific circumstance to you and asking whether that circumstance would actually clear the bar that you have advised this committee exists? But, Minister, your response actually comes to the nature of the Greens' concerns, and the chilling effect that this legislation will have on participation in our democracy. That is because you're trying to now avoid answering entirely reasonable questions on this legislation on the basis that you don't want to start speculating about how a court might rule.
Imagine how a citizen is going to feel, Minister, when they ask themselves, 'Should I actually participate in this blockade of a live sheep export? What legal risk am I exposing myself to?' How are they supposed to understand where the bar is set if you won't place it on the record in this committee? You refusing to answer these entirely reasonable questions is actually compounding the problem, because citizens who want to participate in our democracy, who want to express their justifiable abhorrence about the live sheep exports that your government so cruelly supports, are going to ask themselves the question: 'What is my legal jeopardy here? Am I likely to be charged with sabotage under espionage provisions simply because my actions actually carry a substantial risk that they will impact on Australia's economic relationship with another country?' I mean, can't you understand the terrible situation that you are placing people in here and, more broadly—and actually more importantly for our democracy—do you accept the chilling effect that these laws will have on public participation, including engaging in peaceful protest action, whether it be lawful or unlawful?
No. I'd just make a couple of points. I think we're going around in circles a little bit, but you're talking about people engaging certain defences. When people act unlawfully, as you are describing—that is the basis of the propositions you are putting—of course they potentially attract the law as it stands. But what you seem to be trying to suggest is that the definition of 'national security' in this bill is somehow going to open up people to prosecution that may or may not be intended in the way that you're describing. And I'll just make the point that there is absolutely nothing unusual about the definition of 'national security' in this bill. It is consistent with existing definitions in the National Security Information (Criminal and Civil Proceedings) Act 2004 and with the Australian Law Reform Commission's 2009 report recommending reforms to Australia's secrecy offences. So the very proposition you're putting, that somehow there's a change in definition here, is flawed for the reasons I've set out.
In fact, I have not put a proposition that there is a change in definition as you've just asserted, Minister, so I'll just place that on the record. Look, we could probably debate this all day. Unfortunately, your refusal to engage fully—although I acknowledge you've attempted to engage partially—on this issue has reinforced our concerns about the chilling effect of this legislation on political participation, freedom of speech and freedom of political expression in our country, and you've abjectly failed to convince me that I was wrong in any way with the arguments I was putting in my speech in the second reading, which you've rejected but failed to rebut. You've denied them, but you've failed to fully explain, in a reasonable way, why you think I was wrong. Talking about freedom of speech and freedom of political communication, has the government taken advice from the Solicitor-General on whether these laws breach the implied right of freedom of political expression in Australia enshrined in our Constitution?
Senator, I'm not going to get into specific advice, but obviously this has been a consideration for government. The government is absolutely satisfied that it doesn't breach the implied freedom of political communication.
You do presumably acknowledge, Minister, that that's not a view shared by other legal experts who have offered comment on this legislation? I think my colleague Senator Rhiannon is, if given the call, going to ask a question about Professor George Williams's publicly expressed views on this legislation. I believe Senator Rhiannon may ask whether you're aware of those views. But I want to ask whether you, or any of your departmental officials, are aware of any other views that have been publicly expressed by constitutional experts, including by Ms Kate Eastman SC. If you are aware, do you agree or disagree? If you disagree, could you place on the record, please, the reasons for that disagreement?
You've put a number of things in those questions. Obviously it's not a surprise that legal experts and lawyers disagree. That is often the case. In fact, that is virtually always the case when it comes to considering legislation and, in fact, things that may or may not be considered by the courts in the future. You cite a number of eminent experts. Of course they are entitled to their views. I'm aware that a number of those experts have expressed views in relation to a number of cases that have come before the High Court. Sometimes they get it right; sometimes they get it wrong. We have taken comprehensive advice on it, and we are firmly of the view that with all of the safeguards that are in the legislation, and because, fundamentally, this builds on previous legislation, we are absolutely satisfied, as a government, that it doesn't engage the implied freedom of political communication—well, it doesn't offend it.
Minister, I was concerned that you used the term that the debate was 'going round in circles'. These are very significant issues that go to the heart of problematic legislation. There has been such a range of groups' legal advice on this, and these groups advise that they are very troubled about where these two bills will take the fabric of Australian society and how our democratic processes work. To try to sidestep it by using terms like 'round in circles' doesn't do you justice or serve the debate well at all.
To go to my colleague Senator Nick McKim: he asked very clear questions; they weren't confusing questions at all. I would like to repeat those questions and put them in the context of some significant comments that have come from the dean of the University of New South Wales Law School and constitutional law expert, George Williams: This is what he said about the bill:
Even with the changes of the parliamentary joint committee, the bill will remain incomplete and dangerous. It will contain overbroad and uncertain definitions of critical concepts such as national security. The law also will undermine freedom of speech and of the press. As in past inquiries, the committee has given low weight to these values. It has failed to put forward amendments to prevent journalists being imprisoned. The possibility also remains that people who publish information about Australia's economic and political relations with other countries will face jail under new espionage offences.
I want to take you back to that comment from Mr Williams, where he says:
referring to the bill—
will contain overbroad and uncertain definitions of critical concepts such as national security.
I ask: (1) are you aware of these views of Mr Williams, and (2) can you respond to these views, particularly in the context of the debate that we are having here about the bill and those sections of it relevant to the definition of 'national security'?
Professor Williams criticised the definition of 'national security' for being 'uncertain and overbroad'. The government rejects this. This isn't correct. Espionage offences currently refer to 'security and defence of Australia', with no definition. In this bill, this term is replaced by 'national security', which is in turn exhaustively defined in a way that is consistent with definitions in other longstanding acts, including the Australian Security Intelligence Organisation Act 1979 and the National Security Information (Criminal and Civil Proceedings) Act 2004.
Minister, I have some questions in relation to section 92.2. First of all, I'm grateful for your response to my earlier comments on that matter. Also, I express some sympathy for the fact that you have to seek advice to each response. I imagine that you've probably had no more time to consider this bill than we've had and therefore you are at the same disadvantage as we are. Nonetheless, section 92.2 says:
(1) A person commits an offence if …
(i) the person engages in the conduct … in collaboration with, a foreign principal or a person acting on behalf of a foreign principal—
… the conduct is directed, funded or supervised by a foreign principal—
and they intend that it will—
… influence a political or governmental process—
(d) any part of the conduct:
(i) is covert …
I was listening very intently during your summing up, although I wasn't in the chamber, and you commented that the covert aspect—and I note that 'covert' is not defined anywhere in the bill—had to relate to the influence in relation to the political or government process. How do you arrive at that conclusion? Section 92.2(1)(d) specifically says 'any part of the conduct'. That would seem to include covert conduct between the person and the foreign principal.
If we look at section 92.2, we can't simply take (d) in isolation. If you look at the entirety of the offence:
(a) the person engages in conduct; and
(b) any of the following circumstances exists—
… acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and
(c) the person intends that the conduct will:
as set out in (c). Taking (d) in isolation is what you are seeking to do. I would simply respond by saying that it is the entirety of it and all of that conduct, as set out in section 92.2.
Yes, I accept that it has to be read in its entirety. Nonetheless, I don't think the statement you made in your summing up, that a covert aspect referred only to the element in which the person is seeking to influence political or government process, is accurate. Any part of the covert process would seem to be sufficient as a component of the offence.
I acknowledge that it has to occur in collaboration with a foreign principal, supervised, directed or funded by the foreign principal, and seeking to influence a political or government process or a right or duty and so forth. It then specifically says: 'any part of the conduct … is covert'. That's in addition to those other elements, which I acknowledge. So it would seem to me that, as to your summing up—in which you said that the covert aspect only refers to the communication between the person and the influencing of political or government processes and so forth—it is required. I can't see how that can be accurate.
I am trying to better understand your question, because you seem to be suggesting that, if any part of the conduct is covert, that will attract the offence. But is it in relation to the communication that you're talking about? If you look at how the offence is structured, it involves a number of elements that are covert. I'm just not quite understanding your question. Perhaps you could just articulate it for me a little more clearly.
Perhaps it would be easier if I elaborated on it by means of an example. Assume, for the moment, that I am not exempt from this legislation. I'm not sure, actually; I may be confused between the two, being a senator. But, anyway, let's assume I am not subject to this legislation—or even let's assume that I am not a senator—and I am advocating, on behalf of Israel, that Australia's aid should no longer fund Hamas in the Palestinian Territories, and that I am advocating that Australia should cease that kind of funding. So I'm seeking to influence a political process. I'm working in collaboration with a representative of the Israeli government, because they have a common interest in that issue. I may be coordinating with them to ensure that I don't say anything which conflicts with what they're doing. I may be coordinating with them to ensure that the timing of my activities is complementary to anything they might do. And I may be communicating with the representatives of the Israeli government via means of WhatsApp, or telegram, or some other, encrypted, mechanism—which I would've thought would come within the definition of 'covert'. It would seem to me that all of that would add up to meeting the elements of the offence under section 92.2, for which there is, potentially, a 20-year jail sentence. Perhaps you'd like to address that example.
In terms of that example, the conduct which would need to be covert would be the conduct where one is seeking to influence the outcome or the process. It is not merely in communicating using WhatsApp, in your example. It's impossible to see how that, in any way, could be seen as covert conduct which is engaging in the influence of these various processes. It's simply communicating with others. But you're not acting covertly in those circumstances, in the influencing of the process itself.
This is at the core of the dilemma. That's essentially what you said in your summing up as well—except that section 92.2(1)(d) says: 'any part of the conduct … is covert'. It doesn't limit the covert conduct to communications directed at the Australian government or the Australian political process. On my reading of the bill, any part of the conduct would include communication with the foreign principal. I'm struggling to understand how you can interpret it in the way that you're describing. Perhaps you can help me there.
Again, Senator, I understand the challenge, but it does take a stepping through of all the elements of the offence. So, starting with (1)(a), the person commits the offence if the person engages in conduct. Then, if any of those circumstances exist—that is, acting in collaboration with or on behalf of the foreign principal and, then, intending that conduct to influence the various processes set out in (c)—that conduct, going back to (a), is covert or involves deception. Simply communicating via an encrypted messaging service such as WhatsApp does not engage the covertness element when it comes to engaging in conduct and the other elements that make up the offence.
I will move on. Let's use a little more of that same example of communicating in relation to Australian aid funding terrorism in the Palestinian territories. Let's assume that I indicate my views. I have been communicating with a representative of the Israeli government, so that would qualify as collaboration. I have sent a message to the Minister for Foreign Affairs via WhatsApp or telegram or some encrypted option. What would constitute 'supervised by' in this section—section 92.1(1)(b)(ii)? I draw your attention to the fact that 'directed' is also there, so it's obviously not synonymous with 'directed'. How is 'supervised' distinguished from 'directed'?
Obviously, it's the ordinary meaning of the words—'supervised' versus 'directed'. 'Directed' would be 'taking instructions from'; 'supervised by' would obviously be akin to 'coordinated by' and 'reporting back to'. But, going back to the point you made at the beginning of this particular question, you talked about a WhatsApp message to the foreign minister. There is no prospect that that WhatsApp message would constitute acting in a covert or deceptive way to engage (d) and the other parts of the offence. There is nothing covert about sending a WhatsApp message, just because it's encrypted, when you are lobbying the foreign minister. You are not pretending to be someone you're not, which is the purpose of the offence. The fact that it is encrypted does not make it covert in those circumstances and wouldn't engage the offence under 92.2.
I note there's no definition of 'covert' in the bill and I don't recall whether there's any discussion of it in the EM either. I wonder whether a court would have the same view of 'covert' as you've just explained and whether perhaps a court would even look at this debate, read what you have said and take that into account in the event of a prosecution.
Obviously, Senator, courts interpret words all the time, as you're aware, and courts are very adept at interpreting those words, based on both common usage and usage in specialised circumstances. I'm advised that this term exists in other legislation as well.
I will move on with yet another example, although my focus is still on 92.2. I invite you to consider the situation where a Catholic priest is campaigning to oppose legislation allowing for assisted suicide. That Catholic priest is acting in collaboration with the Vatican. You could argue that that Catholic priest is being directed by or supervised by a foreign principal, being the Vatican. He may, in fact, be literally directed or supervised by the Vatican, so the priest may indeed be acting at the behest of somebody acting on behalf of the Vatican. They may, indeed, be seeking to influence—or they are seeking to influence—a political event; namely, the outcome of a vote in the parliament, and they may well be engaging in covert activity directed at that outcome. They may well be having quiet meetings, telling fairy stories and not necessarily engaging in open political dialogue—whatever it takes, as a book once famously said—to achieve the defeat of this legislation. Wouldn't that Catholic priest be in breach of this section?
The short answer is no. There is nothing in what you've described which would point to the priest in those circumstances acting deceptively or in a covert fashion. The provision we're referring to, obviously, deals with circumstances where things are deliberately remaining deceptive or hidden in a way that would cause confusion. The fact that the Catholic priest is talking to his church about an issue that he is concerned about and then making representations or campaigning in whatever way does not engage that definition in terms of being covert or deceptive.
I don't want to simply disagree with you. What I'd like from you, please, is to explain to me why it wouldn't engage? What elements would the priest not satisfy in terms of how I've read that circumstance out to you?
Senator, it goes to the nature of the offence, and that is in relation to being covert and deceptive in seeking to influence the decision-maker.
Let's go back, again, to your example with the foreign minister—we could use other examples. If the situation is that the Catholic priest—in this circumstance; it could be a foreign minister or any other minister—was making the advocacy but in some way was being deceptive or hiding who they were and who they represented, then that is a different circumstance. What you are suggesting is that, simply because someone has meetings or private discussions which are not public, that would somehow engage that definition of being covert. What we're talking about here is that the offence is very clearly aimed at penalising deceptive and covert conduct in terms of that communication and that attempt to influence. It would clearly be designed to deceive or to hide the truth in terms of the nature of the representations, but most particularly to hide those who are making them and on whose behalf they do it.
Again, going back to your clearest example, the fact that it is communicated on a private messaging app or, indeed, behind closed doors, does not in any way make it covert or deceptive, because it's very clear the individual who is making the representations.
I rise regarding these two pieces of legislation: the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 and the Foreign Influence Transparency Scheme Bill 2017. I note that I will support the amendments proposed by the Greens and the crossbench. Unless the Senate is provided with further review of the legislation, I will be voting against these bills. I'm not opposed to checks on foreign influence on our politics or to steps to address espionage in the digital era, but the Senate deserves the time the major parties gave themselves to determine whether these measures are genuinely in the public and national interests. The threat of foreign interference is real and we must take it seriously, but we must be careful to balance the need to defend ourselves with the need to protect our fundamental freedoms, beliefs and civil liberties. Overreach is a real risk when considering these matters. For these reasons, I am disappointed that both the government and the opposition have voted together not to give the Senate more time to consider these bills and reviews.
There were 280 amendments to these bills put forward by the government in only the last days, and most of the 126 amendments proposed to the Foreign Influence Transparency Scheme Bill flow from the report of the Parliamentary Joint Committee on Intelligence and Security which was released only on Monday. Furthermore, the committee itself is a closed shop, only open to government and opposition representatives, not Independents like myself. I think it would have been entirely reasonable for these bills to have been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and to have also been considered separately, as was requested yesterday and today. So I cannot in good conscience vote for the bills and amendments that I have not had time to fully understand, particularly when there are freedom of speech and civil liberties issues at stake.
As constitutional law expert George Williams has noted, this law would undermine freedom of speech and freedom of the press—key rights in any functioning and healthy democracy. The definitions in these bills of critical concepts, notably and especially 'national security', are too broad and too uncertain, and so too are the secrecy offences. They go too far in criminalising the receiving and possessing of information, not just disclosure. It's a chilling warning for whistleblowers seeking to shine a light on malpractice and corruption. As drafted, the legislation could still ensnare journalists who are doing nothing more than what is regarded as entirely legitimate scrutiny throughout the life of the Commonwealth. Equally, not-for-profit organisations could still find themselves ensnared and punished merely for doing the work they have engaged in for decades in the public interest. So we should not, and certainly not without far greater scrutiny by this House of review, undertake such wholesale changes to our security and espionage laws which could further erode freedom of the press, criminalise dissent and undermine democratic safeguards.
I have a question that sort of relates to what Senator Leyonhjelm was talking about, in terms of some scenarios. I apologise if this is dealt with in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill. The two are very closely related, and I'll take your advice on that. I present a scenario that seeks to draw out an understanding of where the boundary exists between parliamentary privilege and the operation of the act. I'm aware that nothing in the bill seeks to affect privilege, but let me provide you with a scenario. Let's say that a foreign entity talks to a member of a political party in this place and says to them, 'Could you help me convince your party at its annual conference to take a position on a piece of legislation?' and perhaps offers some money for that to occur. Is that considered by the government to be something where the politician would be subject to the provisions in this bill? I note that there are recommendations to deal with how privilege might be managed, and that may be a matter for the House, but the question is: where is the line drawn?
That's not a direct influence into this place but a direct influence to a party who may then vote in a particular way on the basis of a representation that took place at a party conference.
I might have to clarify: part of this, I think, would probably be better dealt with in the discussion of the other bill, because this, as opposed to the other bill, which talks about politicians specifically, has criminal offences in relation to certain conduct and so doesn't specifically engage parliamentary privilege in that way. It's difficult for me to answer all of what you've described, because, if I heard you correctly, you're talking about a situation where someone was actually offered money to try to get a specific outcome at a party conference. Obviously there are the corruption and bribery elements of that, and other offences no doubt would deal with that, and I'm not going to give a comment on that. In terms of foreign interference, it would go to some of the elements we've been drawing out in terms of whether all of the elements in relation to acting on behalf of a foreign principal et cetera were engaged. If you wanted to drill down a little bit on that, as Senator Leyonhjelm has, I'll do my best to answer those questions, but I think we're perhaps dealing with two slightly separate concepts.
Maybe if we take the money part out of it: a foreign entity seeks to influence a member—if you simply want to take these on notice for the next bill, I'm happy for that to occur. If someone were to come and talk to me very privately and they were from a foreign government, as happens from time to time—we have ambassadors visit us and so forth—and they were to, in some way, seek to influence my vote in this parliament, I presume that would be covered by privilege in the context that people have a right to discuss their views with a politician? I'm really going to the situation where it's perhaps one step removed, where they're seeking to influence a party outside of the parliament who will bring that influenced position into the parliament.
I think we are dealing primarily with the next bill, so I'm happy to come back to that. If I heard you correctly, you're now talking about someone who's maybe outside of the parliament, so it might be an official within a political party—I should go back. There is nothing which affects parliamentary privilege in one way or another in this legislation; I'll be clear on that. I'm not going to give advice on how parliamentary privilege would apply; that's a matter for another day and for others to answer. This bill does not affect parliamentary privilege in one way or another, so it would stand on its merits.
In terms of the specific example you're speaking about, where a foreign principal is perhaps trying to influence a party official, the elements as set out in the legislation would all need to apply—that is, the party official probably would be engaging in conduct on behalf of or in collaboration with the foreign principal; the conduct is directed, funded or supervised et cetera; the person intends that the conduct will influence the political processes of the Commonwealth or a state or territory; and any part of the conduct is covert or deceptive. You have to have all of those elements for this legislation and these provisions that we've been discussing to be potentially engaged.
Just to be clear, I'm not necessarily referring to a party official but a politician who is a member of a party. A party official may not normally attract privilege in all circumstances. Perhaps I get approached by a foreign entity who talks to me and convinces me of a particular position. I go and talk to my colleague, Senator Griff, and manage to influence him to vote in a particular way, so it's not direct in some sense—it's me then influencing my colleague. My colleague is completely unaware I've spoken to the foreign entity. I am just trying to simply see where the line is drawn between privilege and activities that might take place outside the parliament in a party context, not in a parliamentary context.
The first thing I would say is that there is nothing in what you've described which would appear to engage any elements of the offences within this. Simply lobbying someone and that person then taking a position is not what we're talking about here. There are a number of those elements that I have set out and there's nothing covert in that particular lobbying. There is no doubt that governments seek to influence things right around the world. We know that. Australia does that on behalf of our national interest in other countries. We are having legislation that would make certain acts unlawful where it is done in a covert way that is designed to undermine our national interest in one form or another. So simply lobbying on a policy proposal or an issue to a politician would not engage these particular offences.
Does that include even the circumstances where the person who might approach me is funded by a foreign entity? I'm just, in essence, going back to the broad objectives of the act, and this is why perhaps it fits within the second bill. Where it's clear, in that instance, that we've got someone who's operating in the context of a foreign entity or is associated with a foreign entity seeking to influence the outcomes of the political process, it's not openly declared. So, from the objectives of the act, I just wonder, again, how it all fits.
Yes. In this instance, it might simply be me being aware that it's a foreign entity that is trying to influence me. I'm very aware of that but perhaps when I pass it to my colleagues in the party they're not aware of that. So, in some sense, it's the politician who would normally be carved out through privilege, but this is an area where, I think, there's some uncertainty.
Yes. Again, where a member of parliament forms a judgement and that judgement may be informed by people from foreign entities who have made representations to them, there is nothing covert or deceptive and nothing that would engage the legislation in a senator or member of parliament making a judgement that they're going to pursue a particular policy outcome.
That's an instance where I directly then come into the chamber and vote in a particular way. The difference here is that I've been influenced and now I, as a politician, seek to influence someone in the party room or seek to get a vote within the party to adopt a particular position, and the party is not aware of that.
It's pretty clear in those circumstances that you're not acting on behalf of a foreign entity, a foreign principal; you are acting as a member of parliament. And obviously members of parliament take representations from all sorts of areas.
Minister, I wanted to ask a question that is of some concern to the Australian Greens. Say there's a group of people in Australia working with a group of foreign people who are affected by a decision made or not made by the Australian government, or by a failure of Australia's regulatory processes, with the intent of achieving justice for the people who are affected by that failure of regulatory process or decision the Australian government has made or not made. Would the group of people in Australia be caught by the provisions of this legislation?
A couple of things: I think it's a very broad question, so I'll try and address it in terms of the specifics of the legislation, and maybe you'll want to follow up on this. It is very broad. You're talking about a group of people who happen to be from another country. Proposed section 90.2 defines 'foreign principal', so each of the following is a foreign principal: a foreign government principal; a foreign political organisation; a public international organisation—within the meaning of division 70; a terrorist organisation; an entity or organisation owned, directed or controlled by a foreign principal; and an entity or organisation owned, directed or controlled by two or more foreign principals. That's what we're talking about; we're not talking about just any group of individuals who happen to come from a foreign country. But you might want to ask for more specifics.
Minister, I'll just state the question again with a bit of extra information, which I think will address the point you were just making. In the case of a group of people in Australia working with a foreign organisation that had two or more foreign people as the directors of that organisation—which I understand would be caught under that definition—if that organisation was affected by a decision the Australian government had made or not made or by a failure of Australia's regulatory processes and the group of Australians were working with that foreign organisation with the intent of achieving justice for that organisation or the people that that organisation represents who are affected by the regulatory failure in Australia or the decision that the Australian government had made or not made, would the Australian people working with that foreign organisation be caught by the provisions of this bill?
I think there might be a slight misunderstanding, if I heard your question correctly, in terms of 'What is a foreign principal?' You talked about 'two foreign nationals', I think, who were directors. I won't read the whole definition again, but I think you might be talking about proposed section 90.2(e). If that's the case, I think you've misunderstood that paragraph. That paragraph says:
(e) an entity or organisation owned, directed or controlled by 2 or more foreign principals …
And 'foreign principal' is then defined separately in the proposed legislation. I think it's pretty clear, based on the scenario you're talking about, that it wouldn't fit within that definition. But if you were talking about an entity that did fit within one of those definitions then the discussion we've had in terms of all of the elements of the offence would then potentially have to be applied if this piece of legislation were to be engaged.
Thanks, Minister. As I understand the last bit of your response to all of those matters that I've put to you: if the definition of foreign principal were met by this foreign group, then, in the context of everything else I've put to you, my understanding of what you've just advised the Senate is that the Australians who were working with that foreign group would be caught by the provisions of this legislation.
No, I'm sorry, that's not what I said. What I said was that the circumstances you've described don't fit under 90.2, the definition of 'foreign principal'. You're talking about another hypothetical scenario where, perhaps, a foreign government principal was the foreign organisation which was working with the Australian group. I'm not saying that the legislation would apply, I'm saying that if they were dealing with that foreign principal in order for the legislation to apply, then there's a number of offence elements—as set out, for instance, in 92.2, the offence of international foreign interference—which would all have to be engaged in order for someone to be committing an offence, potentially, under the legislation.
Simply talking to a foreign principal or simply advocating on issues that they happen to share their view on would not, in and of itself, go anywhere near engaging those offence elements. What I was trying to say to you was that the circumstance that you've defined there doesn't even reach the first hurdle of the definition of foreign principal. If they do fit under the definition of foreign principal, then there are extensive elements to a potential offence that would all have to be satisfied—in terms of the action being covert and the like in order to influence processes et cetera—in order for there to be an offence, potentially, under this legislation.
Thanks, Minister. I'll go back and have a listen to what you've said in the period of time that we will be in shortly where we're not debating this legislation. If necessary, I'll come back, but I do appreciate your attempts to respond to my concerns.
I just wanted to go back to the chilling effect that this legislation will have on freedom of political expression in Australia. I'm sure you'd agree that the High Court has found repeatedly that there is an implied freedom of political communication in Australia. Accepting that it's impossible for anybody to predict entirely accurately how the High Court's going to find in any circumstances—which, of course, makes a mockery of the Prime Minister's assertion on the floor of the House in regard to section 44 issues when he said 'and the High Court will so find'—do you agree that it's at least arguable that this legislation is in breach of the Constitution because it unreasonably curtails the implied freedom of political communication in Australia?
There are a number of elements to that question, including a sort of political statement about the Prime Minister which I won't engage with you on. You've asked me a number of questions. Firstly: is there an implied freedom of political communication? When I studied law many years ago at the ANU, we did study a number of cases which went to those matters. I wouldn't claim to be an expert on those matters but, of course, the High Court has in a number of cases found an implied freedom of political communication.
The subsequent part of your question relates to whether it is arguable. I accept that some people have made the argument, but it is an argument that the government does not accept. It is a situation which the government has considered very carefully, taking extensive advice. There will always be some who disagree. Some of those experts who have been quoted in the past are no doubt eminent experts and I'm not questioning their qualifications, but they've also been on the public record predicting what the High Court might do and, in many cases, they've been wrong.
An honourable senator interjecting—
Well, they've made an argument. You're saying, 'Is it arguable?' I'm saying there are some people who've made the argument. The government has taken extensive advice. The government does not agree with that argument—we reject it. And we absolutely believe it complies with all elements of the Constitution.