Senate debates

Thursday, 28 June 2018

Bills

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018; In Committee

4:30 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

Minister, I'll try again on the matter I was asking about before question time. I was asking you about an organisation—and I used Markets for Change as an example, which attempts to—actually, I'll withdraw that. I'll just use a hypothetical organisation that is based in Australia and travels overseas with the express intention of trying to persuade overseas markets not to purchase products produced in Australia. My understanding, or my recollection, is that, when I put that to you before question time, you said that that organisation would not be caught by this legislation. I wonder if you could step me through the reasons that you believe that such an organisation conducting those activities would not be caught by this legislation and be subject, potentially, to charges of sabotage or any other charge under this legislation.

4:32 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

If I can just go back for a second, in terms of earlier: I've sought to answer all of your questions, and I'll continue to seek to answer your questions. But where I am not answering is where I've answered a question several times. In the case of Senator Rhiannon, I think there was a question that had been asked and answered a number of times. I'm here to give as much information as I can, but I don't think it's helpful to go and ask the same question again. I'll just put that on the record. In relation to this one: there's nothing that you've put forward there that would, in any way, engage the sabotage offences. I can't see any link that would possibly see an organisation that was based in Australia and that campaigned for the boycott of certain Australian products, in any way, engage the sabotage offences—or any others that I can see, but the sabotage is the one you mentioned.

A sabotage offence is: a person engages in conduct that damages public infrastructure—and that's defined—and intends that, or is reckless as to whether, their conduct will prejudice Australia's national security or advantage the national security of a foreign country. As I said, public infrastructure is defined as certain facilities—Commonwealth facilities, defence premises, telecommunication networks, et cetera. They'd have to be damaging that public infrastructure and they would have to intend to or be reckless as to whether in damaging that public infrastructure their conduct would prejudice Australia's national security. Nothing you've set out there, on the advice I have or on my reading of the legislation, would in any way go anywhere near being an offence under that particular provision or any other provision that I'm aware of.

4:34 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

Thank you, Minister. I appreciate your willingness to engage with that, and the response that you've placed on the record. I do appreciate that genuinely. Because we're on sabotage, I'm going to go back to the matter I was discussing before. I appreciate what you've just said about questions being asked on numerous occasions. I ask you to bear with me this time, because I am going to go back to an issue that I was talking about before. I'm going to try to really clearly step out my concerns. I hope that you're able to respond to them in the genuine way that I'm putting them, notwithstanding the fact that I've already raised similar matters before.

I want to take your attention to section 82.6, offence of sabotage reckless as to national security. That's a reasonably easy provision to read and understand. I'll step you through this. I'm going back to the hypothetical situation where a person is blockading a port that's being used for the purposes of live sheep export. The first requirement, 82.6(1)(a), is that the person engages in conduct—and, clearly, blockading a port is conduct. Then we go to 82.6(1)(b):

(b) the conduct results in damage to public infrastructure …

First, can you confirm that damage to public infrastructure, as defined, includes preventing access? Second, can you confirm that public infrastructure can include privately owned infrastructure that is being used to deliver a service? Third, can you confirm that even a privately owned loading facility would be caught within the definition of public infrastructure?

4:36 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

In relation to the first part, as you'd be aware, 82.1(d) defines damage to public infrastructure:

(d) the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it;

I think the answer to that would be yes. In relation to the second part of your question, it is in 82.2, public infrastructure; 82.2(e) reads:

(e) any infrastructure, facility, premises, network or electronic system … that:

(i) provides or relates to providing the public with utilities or services … of any kind; and

(ii) is located in Australia; and

(iii) belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce.

Obviously, it would depend on a number of circumstances as to whether it fit that definition.

4:38 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

Thanks, Minister. For the purposes of the question I'm about to ask, can we assume that the tests under 82.6(1)(a) and (b) have been met—that is, the person has been engaged in conduct that is a blockade and the conduct has resulted in damage to public infrastructure? Firstly, damage includes limiting access to, as I think you've just outlined. Secondly, public infrastructure can include private infrastructure, as long as it provides or relates to providing the public with utilities or services, including the transport of people or goods of any kind; it is located in Australia; and it belongs to or is operated by a constitutional corporation.

We assume that those criteria are met and then we go to 82.6(1)(c). This is a blockade which is done for the purpose of raising the political issue of animal cruelty, but which has a corollary impact of impacting on Australia's economic relationship with another country—by virtue of the fact that it, for example, delays or halts indefinitely the departure of that vessel.

So my question, Minister, is whether that blockade, in the hypothetical situation that I've outlined, could result in the commission of an offence under this legislation because that blockade, firstly, prejudices national security because of the way 'national security' is defined to include economic relationships between Australia and another country. I just don't see how that action could not be caught under 82.6(1).

4:40 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Thank you; I accept that you've asked the question in a slightly different way. I'll do my best to answer it, but I am going over a little bit of old ground. The answer to the question is that, in order for an offence to apply and for a potential charge or prosecution to occur under this particular provision, there would have to be actions by the person to damage the public infrastructure. With the public infrastructure that I've set out in terms of the definition, it's difficult to know in what circumstances. It's possible that it could be public infrastructure, but that is clearly defined and it may or may not be public infrastructure. But, if all of those were there, you would need the damage to the infrastructure and then, if in fact it is public infrastructure, there would have to be either an intent or recklessness to whether the conduct would prejudice Australia's national security or advance the national security of a foreign country—and, in addition to that, the conduct wouldn't be reasonable in the circumstances.

The government has certainly made it clear that ordinary protests such as picketing an MP's office or a building and the like are not designed to come under the scope of these directions. In terms of the 'reasonableness', the point I would make is that there are a lot of tests that would have to be met. There has to be the damage, it has to be public infrastructure within those definitions, there has to be an intent or recklessness to do damage to Australia's national security and, in addition to that, it wouldn't be reasonable in all of those circumstances for the actions to be taken.

4:42 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

Thanks, Minister. Once again, I thank you for your response. You've stepped us through that, and your response, I think, is helpful for the Senate's understanding, because you've placed clearly on the record the government's intention behind this legislation.

I will offer, I guess, a comment, if I may. Even though you've done that, and placed the intent on the record, I think an ordinary-English-language reading of this provision does provide for charges to be laid against a person or a group of people in the circumstances that I've outlined. As to how the courts might rule on that, obviously we'd have to wait and see. Again, obviously, it would pivot on the individual circumstances of the case, of course, as cases like this always do in our judicial system. So, even though you've placed the government's intent on the record, I'm not convinced that the way this section is drafted actually does reflect that intent, and I maintain my view that this section, as drafted, at least potentially could catch actions such as the one that I've outlined.

4:43 pm

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

I want to move on to some questions about section 91.1. This is the section about espionage and dealing with information concerning national security—how it's communicated et cetera. Firstly, I want to understand some of the definitions that are dealt with here in terms of what the reach of them is. The word 'deals' is used—we're talking about 'deals with information'. It's defined in section 90.1(1) to include if a person:

(a) receives or obtains it;

(b) collects it;

…   …   …

(h) communicates it;

(i) publishes it;

(j) makes it available.

Minister, isn't this what journalists do? I'm just checking, therefore—because I have further questions—that this is the section under which people who are communicating, like journalists, could be captured.

4:45 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

If I understand your question correctly, you're asking whether or not 'dealing with information' potentially attracts these particular provisions. If that's your question, the answer is yes. But looking at one section in isolation doesn't in any way go to whether there's a potential offence. As with the other provisions we've discussed, such as sabotage, in each case there are a series of things that need to be made out. If I understand your question correctly, and you want to lay it as a baseline for further questions, then I think the answer is yes.

4:46 pm

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

Then, to put with that—'national security' is defined in section 90.4(1)(e) to include:

… the country's political, military or economic negotiations with another country or other countries.

Again, an investigative journalist's work explores so many issues. We have a great many of them at the moment, with the issues around the relationship with China, with our whole region, with how DFAT works, et cetera. Going back to the definition I gave, in terms of 'obtain, collect, communicate, publish'—and maybe there are other sections where there are more boundaries on this—the way it's structured, with the definition of 'dealing with information' and the definition of 'national security', the conclusion that I came to from reading this material is that it could have a very broad reach, in terms of people who are analysing relations between Australia and other countries, considering the definition of 'national security'. What I'm really asking you to do is bring the definition of 'national security' in and explain how it will be interpreted in assessing this information about 'dealing with information'.

4:48 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

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.

4:51 pm

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

Thank you, Minister. I will ask about an example shortly, just to try and understand this further, but first I will just pick up on some of your remarks. You spoke a number of times about the 'public interest'. It's an interesting term. It's an important term. But, when you think about it, so often—and maybe more so when a politician uses it—it's equated with what the government's interests are. To highlight what I mean by that, I will use some examples from history.

There was a period when Australia actually supported apartheid. Australian government figures supported apartheid in South Africa and supported the Vietnam War. Now, in time, we—all politicians of all persuasions—came to realise that those were very wrong aspects of our foreign policy. First I will make a comment, and then I'll ask a question. I think this will give context to the question. Let's think about reporting when there were dominant forces in the Australian government who were sympathetic to and supportive, in various ways, of the apartheid regime in South Africa, and, as we know, actually were directly involved in the Vietnam War. Say this bill had been in legislation at that time, and there had been reporting of criticisms—for instance, of the My Lai massacre. At the time when it was first reported, it was as just part of the war effort, with Australia supposedly doing the right thing by stopping the invasion of communist hordes coming down to invade this country, so we had to send troops there. In time, we came to find out about the My Lai massacre—and I'm not suggesting Australians were involved in that, but it's one of the standout examples. It was deeply shocking, with children, women and elderly men killed, and many rapes, and the village burnt. But the initial reporting on it was that it was part of the war effort. It was courageous journalists who pushed through, and some courageous soldiers who gave the story. But considering we were supporting that war effort, if this legislation had been in place wouldn't it have been necessary to prosecute reporters who were writing to expose what actually happened there and who weren't directly supporting the government interest, which so often is interpreted as the public interest, considering at that time the government was presenting the public interest as stopping communist hordes coming down from Vietnam, China and elsewhere into this country and that our soldiers had to be sent there? So if this espionage legislation was in place at the time, journalists who were writing about what actually happened could have been charged for receiving and obtaining, collecting, communicating, publishing or making information available that was contrary to the government interest and public interest of the time?

4:55 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

I have a couple of points. One is that the espionage provisions have existed in one form or another in legislation for a long time. They exist now in, I think, areas such as the Criminal Code. I couldn't say exactly how long, but there hasn't been a spate of prosecutions of journalists for that type of activity. I just make the point that in the espionage provisions we're not necessarily talking of dramatic changes to what we've had. We've always had these types of provisions and, again, it fundamentally goes to the intent. The point you were making, Senator Rhiannon, about if it was a popular view versus an unpopular view is simply irrelevant to whether a potential offence would exist.

The provision that you have highlighted has a significant number of elements that would all have to be satisfied in order for a potential prosecution: a person deals with information or an article; the information or article has a security classification or concerns Australia's national security; the person intends that the person's conduct will prejudice Australia's national security or advantage national security of a foreign country; and the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on their behalf. They are the elements and, as I say, we have had these kinds of provisions for a long time. It's important that we do. Notwithstanding that, we haven't seen journalists who have engaged in their profession with anything other than an intent to damage national security being prosecuted for that.

Just going back to my earlier comment, which is related to this, it's a matter of public record, both from the Director-General of Security and from journalists reporting in Australian and overseas media, that foreign intelligence services have recruited and continue to recruit journalists to engage in espionage and related activities in Australia. This is a matter the Director-General spoke to in some detail in public evidence. The Director-General of Security said that a blanket exemption for journalists could 'effectively leave a door wide open for foreign spies to exploit, and may have the unintended consequence of increasing the intelligence threat that's faced by our journalists'. As I say, in some areas we have a specific defence when it comes to journalists; the espionage offences have a series of elements that would need to be made out. An offence would go to each of those elements particularly, and, most importantly, the intent to prejudice Australia's national security.

4:58 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

Minister, further to Senator Rhiannon's question, and following on from your answer, you said that, in order to make out the offence, the documents might involve a security classification. There are many, many different classifications that are used—such as 'cabinet in confidence', which is not necessarily a security classification; it's a protective marking but not a security classification per se. It could be about the Murray-Darling or some health initiative or something like that. There are other classifications such as 'restricted' and 'for official use only'. What's the bar? The normal classifications, military wise, are 'confidential', 'secret' and 'top secret'. They're kind of the normal military classifications. What's the bar?

5:00 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

In section 90.5 the definition of 'security classification' is 'secret' and 'top secret'.

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

I have seen in circumstances—for example, an FOI claim—where they might talk about a security classification; in fact, they use the term 'damage to national security', which is similar to terms used in this bill. You say that there's a clear distinction because of the way the provisions are limited to create a separation in the way we view damage to national security in an FOI situation versus, in this case, the sort of espionage and foreign interference situation.

5:01 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

I might just get you to clarify the question, rather than me trying to read into it. Are you asking whether something that had a lower security clearance would have different offences apply to it? You talked about FOI and what was available under FOI. I might get you to clarify the exact nature of the question.

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

Sure, and I apologise for not articulating it properly. It is perhaps a complex or nuanced issue. I'll give you a real example. Former senator Nick Xenophon is currently in the AAT seeking access to documents which are marked 'for official use only'. The claim advanced by the respondent in that particular application—and it is not going to the substance of the matter; I really want to direct it back to the bill—is that 'this document is damaging to national security or would cause damage to national security if it were to be released under FOI'. This bill appears to now be creating an inconsistency across Commonwealth legislation in respect of how you define what is damaging to national security. Is the marking of 'secret' and/or 'top secret' the only thing that's covered under this legislation? No-one's going to seek to use a similar definition to FOI? I'm just trying to get some clarity on that.

5:03 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

We're probably talking about two slightly separate things. In relation to secret and top secret, that goes to one of the elements that would potentially need to be proved to deal with this particular provision in section 91.1, espionage. Obviously we're dealing with the most serious of offences here. There has to be all of the elements. So the person would deal with information or an article. That's just a starting point. Then the information or article would have either a security classification—secret or top secret; that's defined—or concerns about Australia's national security. In addition to that, the person would have to intend that the person's conduct would prejudice Australia's national security or advantage the national security of a foreign country and then, as I said earlier, the conduct results or will result in that information going to a foreign principal or someone acting on their behalf. So the security classification is dealing with high level, secret and top secret. There is the national security element, but it would have to step through and get each of (a), (b), (c) and (d) of that provision in order for someone to potentially have contravened this piece of legislation or this part of the act.

5:04 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

Thank you for your indulgence, Senator Rhiannon. Finally, just to avoid doubt, could I clarify that, if a journalist—and I am just talking about journalists here; I don't mind if you lock up foreigners who are doing bad things—receives a document that is cabinet in confidence and is about a pending decision on health and has no marking other than 'cabinet in confidence', this provision would not be invoked?

5:05 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

That's correct.

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

I want to go back to the example, but I did want to pick up on your response to my last question. You made the point, which is very apt, that espionage measures have existed in the law of this land for a long time—which is actually very relevant to the fact that we have this new legislation before us. Why was it judged that new legislation on espionage was needed, considering you've said it's already in the law? In answering that question, could you also advise what the threats were that you judged required that this new law was needed?

5:06 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

The new espionage offences criminalise a broad range of dealings with information, including possessing or receiving, and protect a broader range of information, including unclassified material. The offences introduce tier defences covering intentional and reckless conduct with commensurate tiered penalties. The new offences will target not only the person who discloses the information but also the actions of the foreign spy who receives the information. The new offences will also criminalise soliciting or procuring a person to engage in espionage and will introduce a new preparation or planning offence. These offences will allow law enforcement agencies to intervene at an earlier stage to prevent the harmful conduct occurring. That is where we are effectively improving the laws.

On the point I made earlier in terms of the type of scenario you were talking about, we have always had, in one form or another, these kinds of secrecy and espionage provisions, and for good reason: because there are always foreign actors or, indeed, Australians acting against the national interest who, in some cases, have engaged in this type of activity, which we need strong laws to prevent. That gives you a summary of what we're seeking to improve through these new pieces of legislation.

5:07 pm

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

Minister, you just said that it is a summary of the new provisions. But my question was actually about what the threats are. I think that is very relevant to the discussion here. What are the threats that warrant this legislation, which has come under enormous criticism? The government itself effectively acknowledged that by the fact that it recognised that it had to seriously amend the bill and there were 280 amendments, I understand. So my question was not about the actual provisions and the description of the new aspects of the espionage legislation that will play out if this goes through; my question was: what are the actual threats that warranted coming forward with this legislation?

5:08 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Certainly the advice to government is that the threats of foreign interference and espionage are increasing and that, if unchecked, these threats can erode our sovereignty and diminish public confidence in the integrity of our political and government institutions. The judgement has been made by the government that existing laws are inadequate to deter and counter the pervasive foreign interference activities directed against Australia and that the current legislative and policy frameworks have created a permissive operating environment for foreign adversaries.

Espionage and foreign interference by nation states is a reality and can cause enormous harm to our national sovereignty and to the integrity of Australia's democracy. The Director-General of ASIO has advised that foreign intelligence activity against Australia is occurring on an unprecedented scale. Foreign interference can erode our sovereignty by diminishing public confidence in the integrity of our political and government institutions and undermining our societal values. So the advice is that these threats are growing, that the nature of them is obviously ever-changing and that having laws that simply stay still in response to these threats is no longer good enough. That's the very strong advice to government and that's a big reason we have this legislation before the Senate today.

5:09 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

This morning, Senator McKim was asking some questions about activists working on international issues. I want to put to you a specific type of scenario, which I'm aware actually occurs in Australia. Say an Australian company had caused environmental damage in another country and that had affected not only the environment but people's capacity to earn their living as they used to. There's no recompense for those people, and they're seeking recompense. They're working with Australian not-for-profit organisations. The organisations in the other country are working with their own government, and the Australian organisations are working with those environmental organisations with, in fact, a foreign government, to either seek recompense from the Australian government or encourage the Australian government to take action. I'm aware that this happens. Will they get caught up in this legislation? The way I read the definition of 'foreign government principals', it would involve interaction with a foreign government. There is the potential that political or economic relations with that country may be damaged as a result of the activism. How would this scenario be handled when people from Australia are talking to foreign governments about specific remedies for this particular situation?

5:12 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

You might need to be a bit clearer, Senator Siewert, on the type of activity you're talking about. Talking to a foreign government is not banned in any way, shape or form under this legislation. There are sabotage offences, which we've dealt with in some detail in terms of all of the elements. Later we'll get to the Foreign Influence Transparency Scheme, where certain activities need to be declared, made public and not done in a covert manner and the like, but I'm not sure which particular provisions you're referring to. It might help the conversation if you can refer me to those.

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

I'm talking about the definition of 'foreign government principal', and I'm then looking at the definition of 'national security'. For example, the activists in Australia may be talking to the NGOs in the other country about how our system operates so that they know who to talk to, but it might be more than that. It may also be about activism, about how to draw attention to the issue if they're not getting the government's attention. It could also involve taking legal action and how you use the system that way.

5:13 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

There's nothing you pointed to that in any way would, under any scenario, constitute illegal conduct. You've pointed to some of the definitions—foreign principals and the like—but it's about what then happens on behalf of, for instance, a foreign principal. Are you sabotaging things? Are you undermining Australia's national security with intent or recklessness? I'm not seeing any actions that you've pointed to that could in any way, shape or form be covered by this legislation. There would have to be some clear and specific action that's covered under one of the offence provisions that would engage the legislation, but there's nothing you pointed to there that would.

5:14 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

I'm looking, in particular the recklessness angle. I'm looking at definition (e)—

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Under what provision?

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

In terms of national security, and looking at section 90.4 at (1)(e), it says:

The national security of Australia or a foreign country means any of the following:

…   …   …

(e) the country’s political, military or economic relations with another country or other countries.

I could foresee a scenario in which you're working with the organisation that's working with the foreign country and that then does impact on the relationship between that country and Australia—for example, in terms of the political relationship. The foreign country may, in fact, decide they're not going to engage with Australia in military exercises, for example, or it could affect the economic relationship—they may decide that in order to achieve the objective. That's what I'm looking at. There may be an intent to do that. To achieve the objective, the campaign could be that they want to influence that. They want to get Australia to be paying attention, and the way they do that is by making Australia feel the pain. Or it may be, in fact, reckless. I'm not saying they would be reckless doing that, but the government could see it as reckless to do that, because what's articulated under (e) happens.

5:16 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

I think there's still just a little bit of confusion with the definitions, which you've rightly pointed to, that help with interpreting the offence provisions. The offence provisions have a number of elements. Let's take sabotage. You've rightly pointed out that national security is defined, but there has to be conduct, and with sabotage, the conduct is specific. It's specifically conduct that results in damage to public infrastructure, which is defined, again, separately, and then there's an intent or recklessness about it. It also prejudices Australia's national security and, indeed, in some cases, depending on the offence, it might be conduct engaged in on behalf of or collaborating with a foreign principal. We've covered this in some detail. Those offences each have to have all of their elements made out. The definitions you're pointing to don't constitute anything in terms of an office. All you've pointed to there is that there is a foreign principal and there is some sort of collaboration or activity with that foreign principal, but there's no offence that I can see. Certainly you have to look at each of the offences, and they're the ones that carry the penalties. The offences have to have a number of those elements made out and there's nothing you've described to me that would attract any of those offences that I can see, but if you've got more specificity I'm happy to try and answer those questions.

5:18 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

I just wanted to ask some general questions in relation to oversight. Please excuse me: I haven't managed to look at all the amendments, because of the time frames involved here, so forgive me if I ask a question that seems a little bit odd. This is just working with the principle that whenever you increase the power of somebody, and particularly a secret organisation, you want to make sure you've got the right checks and balances in place. I have had a briefing on this from the intelligence services, just talking about the bill generally. They suggested that there are no real, new powers for the intelligence agencies in relation to this bill—that they don't gain any additional powers. Can you confirm that for me, please?

5:19 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

This doesn't deal specifically with powers of the intelligence agencies

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

I presume that it does, however, deal with the scope. If you're changing the way you view an offence—perhaps expanding its boundaries slightly or changing those boundaries—then the way in which the intelligence services may respond to that would change. That may involve the exercise of an existing power to deal with a new area of potential offence. Is it fair to say that?

5:20 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Because we're setting up a series of new offences, in many ways, instead of giving more power to the intelligence agencies, it would push things into the criminal realm—to the Australian Federal Police to investigate potential crimes that may have been committed under this legislation if it's passed, and, obviously, to the courts, who would need to determine whether an offence has been committed. If we were to look from the perspective of law enforcement generally, police powers are one thing—the ability to detain people, the ability to restrain people, the ability to use force—and that sits in one box. The actual criminal offences of the criminals they're seeking to apprehend and deter sit separately. In that context, this is about the criminal law as it applies to certain types of offences. It doesn't give the intelligence agencies any more or different powers, but obviously it is designed to make sure that, where there are potential offences and attempts to undermine our national security, there are proper penalties for that.

5:22 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

In some sense you talk about the AFP now having perhaps more operations as a result of this—the ability to examine the conduct of somebody and lay a charge. I might point out that the AFP generally doesn't sit inside the six organisations that would traditionally be considered the Australian intelligence community. But we know, from other legislation, that we are in fact trying to integrate, I think, 10 agencies under the same top-level coordination through the Prime Minister's office. We could have a circumstance where, in dealing with some of these new areas, we might have the AFP looking at matters in-country but perhaps being supported by ASIO—or indeed, ASIS outside the country—to verify some communications or something that's happening overseas. Is it fair to say that the execution of the enforcement of this bill would potentially involve all of the intelligence services all working together or at least a number of them working together?

5:23 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Obviously, Senator Patrick, the intelligence agencies work with other agencies. Of course the AFP works with other agencies; they work with prosecutors and the like to enforce the law. This provides different offences—stronger offences in many cases—for certain activities. That obviously makes it more likely that certain types of activity are captured under our criminal law. Therefore the AFP can investigate that, potentially lay charges and pass it over to relevant prosecutors. In relation to your earlier question about oversight, even though this doesn't actually give any additional powers to our intelligence agencies, there is additional financial support for oversight. So the government provided $52.1 million in the budget to augment the Office of the Inspector-General of Intelligence and Security. Obviously, that is something we take very seriously. So, whilst this doesn't give additional powers as such to our intelligence agencies, we do take that oversight very seriously in the context of this type of legislation.

5:25 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

You're aware that I will move an amendment in relation to oversight. I'm just exploring this in the context of how the bill currently might deal with that oversight function. In your development of the legislation, was there consultation in relation to oversight and how it might interact with this bill?

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Sorry, Senator Patrick, I missed the end of that question, so you might just need to restate it.

5:24 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

It was just going to whether or not, in the development of this piece of legislation, you took advice in respect of intelligence oversight and how it may interact with, perhaps, the additional activities that may result from the passage of this bill.

5:26 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

I think that sits somewhat separately. I've pointed out the additional money for oversight. When it comes to the AFP and others, we have separate oversight there, but we treat these issues somewhat separately.

5:24 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

In relation to the PJCIS, which, of course, does perform some oversight functions in relation to these sorts of activities, has the government committed to or, from a committee procedural perspective, given any additional powers or functions to the PJCIS as a result of this bill, if it were to be enacted?

5:27 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

In terms of the AFP's operations, they are overseen separately, and the PJCIS doesn't specifically oversight their operations. I note that I think you might be getting into some of your second reading amendment there, which I'm happy to address when that's moved later on.

5:24 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

Yes. I will perhaps discuss oversight in that regard. I'm really just trying to understand where we would sit right now if the bill were to pass unamended—the reason I'm asking those questions now. I just want to talk you through a real situation and the idea that, as a result of the passage of this bill, we may end up with a situation where we have various different intelligence agencies operating, perhaps in new areas, carrying out different sorts of operations, using the same powers that I accept you've advised me of. I'll just talk through the situation. In fact, I'll use the matter raised by Senator McKim earlier today. I know he was talking about a matter that's before the courts; I will avoid the matter that is before the court. Here is a little bit of background on that matter from listening to Senator McKim. Back in 2004, the Howard government sought to bug the East Timor cabinet buildings in order to gain advantage during a negotiation in respect of the maritime boundary between East Timor and Australia. Of course, all these sorts of negotiations are conducted in good faith—that's the normal regime when doing so—and if you fail to do so you perhaps may, in some sense, be committing a fraud.

In that instance we had a particular agent who raised a concern with the IGIS. I note that you've suggested that there is greater funding for the IGIS in respect of the many changes that are going through the parliament now in relation to national security and intelligence and indeed for this bill. He raised a concern. The IGIS actually took the matter, received the agent—who we know as Witness K—and took his concerns, and passed them or authorised some independent legal action. So we now had a situation where we had counsel and we had an agent authorised by the IGIS to explore a matter that eventually led to a situation where Australia was actually taken to The Hague. Some quite extraordinary orders ended up getting made against Australia. You'll recall that there was a raid on the Attorney's office at that time. A whole range of documents were taken, and in fact the tribunal in The Hague ordered that those documents be returned. There was also an order that was placed restricting Australia's electronic surveillance of the ongoing negotiations.

Unfortunately for Witness K, there was a fallout there, in that he was then denied a passport application; and the person who denied that application was the Director-General of ASIS. The director-general—who it's not unlawful to name, who was then Nick Warner—acted as what is referred to as a competent authority to cancel someone's passport. So now someone's liberties had been constrained. And there's an irony there because it turned out that Mr Nick Warner was actually involved in the original bugging operation, so there was an issue of bias involved in terms of that decision. That matter is before the AAT, and unfortunately that's been stayed now as a result of criminal proceedings being implemented.

But there's an example where we have an intelligence officer who sticks up his hand and says, 'I think something's going wrong,' and goes to the right authority—the IGIS, in this instance. You've indicated in relation to this bill that IGIS has been given extra resources. But in this instance resources weren't the issue. This person followed through and did exactly what the IGIS suggested that he do, yet we now have a controversy that's developed as a result of the sequence of events. We've had claims about bugging. We've had passports cancelled. We've had people involved in the cancellation of the passport with, at the very least, an apprehended bias. And now we've introduced a piece of legislation into the parliament which expands the scope for operations to be carried out but with no additional oversight mechanisms, as you've suggested.

How do we guarantee or establish a trust with the Australian people as we increase the scope and areas that agencies can operate in, if we're not addressing the oversight of the agencies at the same time? You can see that, in that particular instance, the executive has had a look at all of this. Indeed, the AAT is also an executive arm of government, not a judicial arm. We have a great controversy. I've received advice from the Parliamentary Library as to how East Timor now views Australia as a result of some of these negotiations. You can see it's really important that we have proper oversight of these agencies, yet you're suggesting in this instance that there is no increase. You're increasing the operational space for these agencies but you're not increasing the oversight.

5:35 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

I can't comment on most of what you've discussed there, and I won't. But the oversight is increasing—there is the $52 million to augment the Office of the Inspector-General of Intelligence and Security in the budget. So there's a significant increase in oversight. But when it comes to the matters we're dealing with in this legislation, there will be greater scope, potentially, in certain circumstances to prosecute certain individuals. That is a matter for the legal system; it is not a matter for the intelligence agencies.

The processes that we have are very robust processes. We have due process in the courts, and that will take care of the issues that would potentially flow from this legislation passing, which is that, potentially, certain acts are more likely to fall foul of the criminal law and therefore be more likely to be prosecuted and therefore go through the courts. We are overseeing it, with the $52.1 million to augment it in the budget, but I can't comment on any of those other issues you've raised.

5:36 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

I believe that some of the drive behind this legislation comes from our allies and friends who share similar experiences and share concerns with us. You'll be aware that the United States, for example, has a congressional oversight of the intelligence services. Canada does as well, and so does the UK. Did we seek advice from any of those agencies in the development of this particular piece of legislation as it went through its drafting in respect of what they have done versus what we might or should do in relation to the bill?

5:37 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

We consulted with allies about their criminal laws, and that's what we're dealing with here. In relation to this bill, and the extent to which we consulted, obviously we talked to our allies about what kinds of laws they have in place to deter this kind of activity. That's an important discussion to have. But what we're dealing with here are changes to the criminal law in relation to certain types of foreign interference and espionage et cetera.

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

But you must accept that whilst we're dealing with criminal laws here, in the detection and evidence-gathering stages of any particular criminal event, such that you can prosecute—I can imagine, and would support, the government using every possible resource available to it, and that doesn't just include the AFP. There would be other agencies that would be involved in the collection and interception of conduct that is covered by this bill. Surely, that's correct, isn't it?

5:38 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Sorry, I just missed the end of the question—I was consulting. I heard most of the preamble but perhaps you could repeat just the final part of the question?

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

I'm really after whether or not you agree with the understanding I might have that, whilst we're talking about criminal activities in the detection, interception and collection of evidence, that would involve more than just the AFP. It would surely involve other agencies in the intelligence community?

5:39 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

In terms of the kinds of issues that are dealt with in this bill, ASIO has always engaged in examining and investigating these particular activities, so to that extent nothing changes. But it's difficult for me to add much more to the answer to your question other than to reiterate that we've looked at these criminal laws, the activities of ASIO will continue, the oversight of ASIO and our intelligence agencies will continue to be increased and properly resourced, but in passing this legislation, if that's what the Senate chooses to do today, we will have stronger criminal laws, and at the end of that we will have a series of processes, and of course that engages most particularly the AFP and our justice system.

5:40 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

So you direct it at ASIO. Look, it's not a secret that ASIS operates outside Australia. In fact, the law requires that they don't operate inside Australia. They're not involved in surveillance and activities inside Australia. It's no secret what DSD might do as well. That's not generally a secret. I'm not getting down into the details of those operations. I'm just trying to understand whether or not we would—and I'm actually presuming, from some of the material that's in the intelligence review that led to this legislation that it's an integrated approach that you take when you are looking to detect and gather evidence and prosecute people under this sort of legislation.

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Senator Patrick, if there was a question in that, you may need to repeat it for the benefit of the minister.

5:41 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

I'm just trying to understand the interaction between this legislation and the various different agencies that we have within our intelligence community. Typically the intelligence community involves six agencies. In some sense it's being expanded as we have these agencies work together. I'm just trying to understand: this legislation, if brought into law, would actually cause changes across all of those organisations in the sorts of operations that they might do to now to take advantage of the new offences, which can give rise to search warrants and other such things that intelligence agencies normally participate in.

5:42 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

I have nothing to add.

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

You'll be aware that in the United States they have a Foreign Intelligence Surveillance Court that is used from an oversight perspective. We lack that sort of court here in Australia. In the development of this legislation, was consideration given to something similar to a Foreign Intelligence Surveillance Court?

5:43 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

No.

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

I notice that you didn't answer Senator Patrick's question. I want to go back to the questions that I was asking earlier and clarify a few things. Minister, you answered from the sabotage perspective. I was actually thinking that it would be treated more as espionage. Do the answers that you gave previously also answer the questions around espionage? It's dealing more with information. I'll ask that first, and then I have some definitional questions that I can't find answers to in the bill, so I want to clarify a few definitions as well.

5:44 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

It equally applies to espionage. In fact, the elements as set out in 90.1(1), for instance, in espionage, which I did go into in some detail already, have each of those elements. Again, from what you've set out there, it's impossible to see how that provision would be engaged based on the information you provided to me.

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

I'm specifically referring to the concept where a person deals with information or an article. 'Deals with' is defined, but what does the definition of 'information' or an 'article' encompass? Just to clarify that: that is where I was coming from earlier when I was talking about somebody in Australia working with an NGO and a foreign government in terms of providing that information. Does that count as an offence?

5:45 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Those are defined in the Criminal Code—offences relating to espionage and similar activities. It says:

"article" includes any thing, substance or material.

…   …   …

"information" means information of any kind ... whether true or false and whether in a material form or not, and includes—

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

Sorry, Minister. I'm not meaning to interrupt and I'm not trying to be funny here, but I actually can't hear.

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

The words you referred to are already defined in the Criminal Code. I can refer you to 90.1 'Definitions'. It says:

"article" includes any thing, substance or material.

…   …   …

"information" means information of any kind ... whether true or false and whether in a material form or not, and includes:

(a) an opinion; and

(b) a report of a conversation.

5:46 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

Thank you for clarifying that. Could I go back to ask the question again? The scenario that I put to you deals with any information, as you just described it in the Criminal Code. That's the sort of information that could be provided. So why would it not constitute an offence if it could be seen to then breach the definition of 'national security' as I related to earlier, which is under at least 1E? I'm asking a question. Why would it not?

5:47 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

I've answered that.

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

Sorry, with all due respect, you haven't answered it. You've just said it wouldn't, so I want to know: why wouldn't it? This is what people are actually asking: why wouldn't it? Section (e) says that 'national security' means any of the following: 'the country’s political, military or economic relations with another country or other countries'. People may be trying to do that, so the government's paying attention. So why would it not constitute an offence? I genuinely don't understand why it wouldn't constitute an offence. These are real-life scenarios that I'm talking about. It's not a hypothetical situation. These are the sorts of things that happen in 'activist land' and in 'campaigning land'. The reason we wanted to send this off to an inquiry was to get these sorts of questions answered. That hasn't happened. This is the place we do that. Interpretation will come back to this debate once it starts to get implemented. Why won't it?

5:48 pm

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

That was very disappointing and quite serious. We've had all these amendments coming through and we're still trying to understand them. There were changes, from what I understand, with regard to foreign companies. The scope of the original legislation included foreign governments, foreign related entities, foreign government directed individuals, foreign political organisations and foreign companies. I understand that foreign companies have now been excluded. Is that correct, Minister?

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Sorry, I'll take a point of order on this. This is not the bill we're dealing with right now. This is the other bill.

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

I apologise. I do have some questions following on from proposed section 91.1, which you answered some questions about before with regard to journalists. I'll go back to those. I do think we need to discuss this in greater depth because this is the section where the penalty is imprisonment for life. We have some really serious criminal penalties here and also, let's be frank about it, this is one of the sections that have come under considerable criticism from a range of organisations—the media, universities, religious organisations and legal groups. Certainly we've been asked about it many times. I feel I need to bring those questions here because it's where there is the most serious criminal penalty.

You talk about prejudice. I'd like you to explain how the word 'prejudice' is used. It's set out that it's not embarrassment alone; it goes further than that. I think it's about where there is an advantage to the foreign powers. Could you explain in more detail the meaning of that word, because it obviously has great significance with regard to how national security measures are being judged in this legislation?

5:51 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

The word 'prejudice' is in the existing law, so there's no change.

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

So you're saying that there has been no change at all. I thought there was a change there in terms of how it's interpreted and then who is advantaged in terms of Australia's national security.

The TEMPORARY CHAIR: Minister? Senator Rhiannon?

Seriously, Minister? We're talking about people being jailed for the rest of their natural life. Imprisonment for life is what we're talking about here. You don't answer. Seriously? It's not surprising that people are starting to call it a police state and say it's out of control and there's a degree of authoritarianism. You don't even answer questions about things that have been done in haste. It has a huge penalty on it.

I will try an example. If a journalist were writing about trade agreements with another country and those trade agreements bring us in dispute with the World Trade Organization and if their reporting were seen to be more favourable and benefiting the trading partner, how would it be judged in terms of the dissemination of information and if prejudices came into the way the journalist or academic had undertaken the work? I'm really just asking you to explain how that section of the bill will work.

5:53 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

Minister, I haven't been in here during the entirety of the most recent questions Senators Siewert and Rhiannon were asking. I presume from your complete lack of response that your position would be that the questions have already been asked and answered. I'm interested in the answer to Senator Rhiannon's question. She'll be able to get up in a minute and tell you what she thinks about your lack of answer and her request again that you respond to her questions.

I don't believe that this matter has been raised, Minister. I think this is a new issue. I want to ask you about proposed section 91.1(2), which is espionage dealing with information concerning national security which is or will be communicated or made available to a foreign principal. This goes to the recklessness element. The heart of my questions here go to concerns around a chilling impact on freedom of speech by curtailing press freedom or media freedom in Australia. I draw your attention to paragraph 6.21 of the PJCIS report:

The Attorney-General’s Department also confirmed that the espionage offences could cover privately, professionally or commercially produced research, opinions, advice or analysis made available to foreign principals.

I then draw your attention to paragraph 6.154 of the PJCIS report where the committee refers to the Commonwealth DPP and Attorney-General's discretion not to prosecute as the relevant safeguard. Minister, I want to put to you that providing the Attorney-General with a discretion not to prosecute does not constitute a safeguard. Certainly that provision of a discretion to the Attorney-General not to prosecute is nowhere near as strong as a legislated safeguard would be. Are you suggesting that it's the government's view that providing that discretion to the DPP and the Attorney-General is enough of a safeguard here to protect media freedom in Australia? And, remember, I ask you in the context of the revelations today that, in fact, both the DPP and the Attorney-General have signed off on prosecuting Mr Bernard Collaery and Witness K for conspiracy.

5:56 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Just very briefly, we are going over the same ground. I know you've said it to 91.1(2) but I'll make it very clear that you are seeking to prosecute the same ground. I'm not going to answer those questions anymore, because there appears to be an attempt now to filibuster.

Opposition Senators:

Opposition senators interjecting

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

I've gone through each of those elements a number of times. In relation to (2), the same applies. Each of those elements of the offence has to exist in order for an offence to be committed—the person deals with the information et cetera. All of those elements need to be there in order for a prosecution to potentially take place.

5:57 pm

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

We've come to one of the most serious aspects of the legislation before us, where people can be jailed for the rest of their life. For people who are listening to this or reading it at some stage, it's probably worth them understanding what is happening. The minister hasn't been that particularly cooperative, but we have got onto a new section and he was being half reasonable and starting to answer some questions. But a senior minister to Minister Seselja, Minister Birmingham, came in and they had a talk, and I can only assume that he said: 'Start curtailing your answers. You don't have to get up and reply to this; just sit there'—because that's what's now happening. We have got on to a section that has been so incredibly criticised in this country—by religious people, by legal experts, by charities, by university academics, by legal academics and by constitutional experts. It's unbelievable! It's like being back in the Cold War! They just sit there because they've got the numbers—because Labor delivered them. This minister was answering a few questions but now he's decided to bunker down. Why has he bunkered down? I would have to conclude that he's been given advice. This is really serious. It is no way for the Senate to be used—or abused, because that's what you're now doing.

People can now be captured by these laws. My colleague Senator Nick McKim has said—as have many others; I acknowledge that—that it has a 'chilling effect'. That 'chilling effect' means that people will think, 'I've got to be really careful about what I do'; 'Maybe I shouldn't write that article'; or, 'Maybe I shouldn't go and give that speech to that group of people who are concerned about the direction of Australian foreign policy or the direction of what's happening to our lack of interest in overseas aid and how it's misconstrued.' Look at the rubbish on the front page of The Daily Telegraph today. That chilling effect means that people back off from having an active and open engagement with public life. That is what this legislation will do. Maybe not many people will go to jail, but the government will have achieved what they're trying to do here: advance corporate interests and stifle civil society. The criticism that the government sometimes cops will be reduced, but so will the very rich fabric of what it means to live in a truly democratic society.

It is really alarming sitting in this senate tonight, 28 June. I think we should get it in the Hansard. There are three Labor people here. There are three coalition people here. There are three Greens here. There is one Centre Alliance here. I know people are busy—I'm often not here myself—but, seriously, what the coalition is getting away with is scandalous. What Labor's engaged in, what they've signed off on, will be remembered. We are talking about people going to jail for the rest of their lives, and a minister won't even get up and speak about it—disgraceful.

6:01 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

I can only concur with the views expressed by Senator Rhiannon. I want people to understand that this is the only opportunity. The committee stage of this legislation is the only opportunity that this Senate has to scrutinise the 280 amendments across the two separate pieces of legislation that are before us this afternoon that the government and Labor have agreed on. The reason for that is that the coalition and Labor refused to support a Greens attempt to refer these pieces of legislation, plus the 280 amendments, to an inquiry by the Legal and Constitutional Affairs Committee.

Now, it's true that the bills as originally drafted, sloppy and rank with overreach, were examined at a parliamentary committee, the Joint Standing Committee on Intelligence and Security, but, of course, that's a closed shop between the coalition and Labor. The crossbench is frozen out of that. Having said that, the PJCIS process did not provide an opportunity for the Senate to interrogate the 280 different amendments across the two pieces of legislation that we're debating this evening.

What we've got, as Senator Rhiannon quite rightly points out, are provisions that will have a chilling effect on our democracy, on freedom of speech, on press freedom and on media freedom in this country. We have a government refusing to allow for proper scrutiny, and being backed to the hilt by the Labor Party in refusing to allow for that proper scrutiny. The chilling effect is important here, because journalists will need to regularly ask themselves whether a story that they intend to write or publish might fall foul of the provisions in this legislation. When they're facing life imprisonment if they get it wrong—or at least the potential for life imprisonment if they get it wrong—it would be entirely understandable if they decided to err on the side of caution. That is exactly what this government is trying to do. I have no doubt that that is the intent of the relevant ministers who have oversight of this legislation. The cabinet, who presumably all supported and certainly will all support this legislation when it's voted on in this place, have the intent to significantly curtail the media's capacity to hold the government to account and report on stories that are embarrassing to the government. Of course, the Labor Party knows that it will be in government again one day and that, when it's in government, it will benefit from this chilling denial of press freedom.

I agree with Senator Rhiannon. Here we are, it's ticking into the evening and almost no-one's in the chamber. The minister's not answering questions on legislation that, in some parts, has the capacity to impose sentences of life imprisonment on people who are found to have contravened the incredibly broad provisions of this legislation. It's massive overreach, and it continues the blind lock step of the coalition and Labor marching this country down the road to authoritarianism. I was at Bernard Collaery's press conference today. He was asked whether he thought Australia was a police state. He didn't hesitate; he said yes. And he's right. We're a surveillance state. We're a police state. And we're being marched down the road towards authoritarianism. More than 200 pieces of legislation that erode fundamental rights, freedoms and liberties in this country have passed through state and territory parliaments in the last 20 years, and that's been done, in zombie lock step, by the Labor Party and coalition parties.

I move Australian Greens amendment (1) on sheet 8480:

(1) Page 3 (after line 11), after clause 3, insert:

4 Sunset provision

This Act is repealed at the start of the day 3 years after the day this Act receives the Royal Assent.

[sunset provision]

The CHAIR: I remind senators that we have split these two bills, so we are dealing with amendment (1) on sheet 8480, which is an amendment to the espionage and foreign interference bill. The question is that the amendment, as moved by Senator McKim, be agreed to.

6:14 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

Chair, I do appreciate your courtesy to me earlier. That was obviously an amendment that would have inserted a sunset clause into this legislation. Having said that, the Greens oppose schedule 1, item 8, on sheet 8485 in the following terms:

(1) Schedule 1, item 8, page 11 (lines 3 to 28), sections 82.5 and 82.6 of the Criminal Code to be opposed.

The CHAIR: The question is that sections 82.5 and 82.6, in item 8 of schedule 1, stand as printed.

6:23 pm

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

I am advised that Senator McKim intends to put the amendments as circulated, and if that goes ahead then it is my intention, if a division is required, to ring the bells for one minute.

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

by leave—I move amendments (1) to (7) on sheet 8482, together:

(1) Schedule 1, item 8, page 14 (after line 9), at the end of section 82.10 of the Criminal Code, add:

(3) It is a defence to a prosecution for an offence by a person against this Division if the person engaged in the conduct in the course of criticising or protesting any of the following:

(a) a law in force in the Commonwealth or in a State or Territory;

(b) a proposed law of the Commonwealth or of a State or Territory;

(c) a policy of the Commonwealth Government or of a State or Territory government;

(d) a decision or action, or proposed decision or action, of a public official;

(e) a decision or action of a member of:

  (i) the Parliament of the Commonwealth; or

  (ii) a parliament of a State; or

  (iii) the legislative assembly of a Territory;

(f) the outcome of an election or similar political process.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

(2) Schedule 1, item 8, page 30 (after line 7), at the end of section 91.4 of the Criminal Code, add:

(4) It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article in the course of:

(a) making or reporting a statement in the public interest or for an artistic or academic purpose; or

(b) contributing to a discussion or debate that is of public interest or has an artistic or academic purpose; or

(c) making or publishing a report of an event, or matter, of public interest; or

(d) bringing a matter concerning Australia's compliance with international law to the attention of a public international organisation of which Australia is a member.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

(3) Schedule 1, item 8, page 34 (after line 7), at the end of section 91.9 of the Criminal Code, add:

(3) It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article in the course of:

(a) making or reporting a statement in the public interest or for an artistic or academic purpose; or

(b) contributing to a discussion or debate that is of public interest or has an artistic or academic purpose; or

(c) making or publishing a report of an event, or matter, of public interest; or

(d) bringing a matter concerning Australia's compliance with international law to the attention of a public international organisation of which Australia is a member.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

(4) Schedule 1, item 8, page 36 (line 2), before "It", insert "(1)".

(5) Schedule 1, item 8, page 36 (after line 11), at the end of section 91.13 of the Criminal Code, add:

(2) It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article in the course of:

(a) making or reporting a statement in the public interest or for an artistic or academic purpose; or

(b) contributing to a discussion or debate that is of public interest or has an artistic or academic purpose; or

(c) making or publishing a report of an event, or matter, of public interest; or

(d) bringing a matter concerning Australia's compliance with international law to the attention of a public international organisation of which Australia is a member.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

(6) Schedule 1, item 8, page 40 (line 25), before "It", insert "(1)".

(7) Schedule 1, item 8, page 40 (after line 32), at the end of section 92.5 of the Criminal Code, add:

(2) It is a defence to a prosecution for an offence by a person against this Subdivision that the person engaged in the conduct in the course of:

(a) making or reporting a statement in the public interest or for an artistic or academic purpose; or

(b) contributing to a discussion or debate that is of public interest or has an artistic or academic purpose; or

(c) making or publishing a report of an event, or matter, of public interest; or

(d) bringing a matter concerning Australia's compliance with international law to the attention of a public international organisation of which Australia is a member.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

The CHAIR: The question is that the amendments as moved by Senator McKim be agreed to.

6:27 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

by leave—I move items (1) and (2) on sheet 8446 revised together:

(1) Clause 2, page 3 (at the end of the table), add:

(2) Page 86 (after line 10), at the end of the Bill, add:

Schedule 7—Amendments relating to oversight of intelligence agencies

Intelligence Services Act 2001

1 Paragraph 29(1) (a)

After "to review the", insert "activities,".

2 Subsection 29(3)

Repeal the subsection, substitute:

(3) The functions of the Committee do not include:

(a) reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; or

(b) conducting inquiries into individual complaints about the activities of ASIO, ASIS, AGO, DIO, ASD, ONA, AFP or the Immigration and Border Protection Department.

3 After section 29

Insert:

29A Ceasing or suspending review of agency activities

Certificate received from responsible Minister

(1) If:

(a) the Committee undertakes a review under section 29 of an activity by ASIO, ASIS, AGO, DIO, ASD or ONA; and

(b) the relevant responsible Minister is of the opinion that:

  (i) the activity is an ongoing operation; and

  (ii) the review would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations;

the Minister may give to the Committee a certificate in relation to the matter stating the Minister's opinion and the reasons for it.

(2) The Minister must give a copy of a certificate under subsection (1) to the President of the Senate and to the Speaker of the House of Representatives.

(3) A decision of the Minister under subsection (1) must not be questioned in any court or tribunal.

(4) Where the Minister gives a certificate under subsection (1) in relation to a review, the Committee must cease or suspend the review.

(5) Subsection (4) has effect subject to subsection (7).

Review by Inspector -General of Intelligence and Security

(6) Where a Minister has given a certificate to the Committee under subsection (1) the Committee may refer the certificate to the Inspector-General of Intelligence and Security.

(7) Within 30 days after the Inspector-General of Intelligence and Security is referred the certificate, the Inspector-General must:

(a) review the certificate and consider:

  (i) whether the activity is an ongoing operation; and

  (ii) whether it is reasonable to conclude that a review by the Committee would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations; and

(b) provide written advice to the Committee setting out the Inspector-General's opinion in relation to the matters set out in subparagraphs (a) (i) and (ii).

(8) If the Inspector-General advises the Committee under subsection (7) that the activity is not an ongoing operation, or that the review would not cause interference with the proper functioning of the relevant body or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations, the Committee may proceed with the review, or commence a new review into the activity.

As foreshadowed in my speech on second reading, this amendment seeks to amend the Intelligences Services Act to extend the oversight role of the Parliamentary Joint Committee on Intelligence and Security to cover the operations of those agencies. The PJCIS has undertaken some very valuable work. We are, indeed, today debating outcomes of its two latest advisory reports, but the joint committee is presently explicitly excluded from reviewing the operations of the agencies they are meant to oversee.

I have previously spoken about the importance of a well-resourced and capable intelligence community to protect Australia's national interests, and the importance of improving parliamentary oversight of those agencies as they are given more resources, more powers and more responsibilities.

The legislation before the Senate today is another part of the progressive expansion of the roles and responsibilities of the Australian intelligence community. Significantly, by creating new offences related to foreign interference and influence, this legislation will inevitably draw the Australian Federal Police as well as ASIO into the investigation and scrutiny of broad mainstream political activity. We live in a globalised world. Foreign connections are ubiquitous. That is the context of this legislation and the criminal offences it will create. This legislation does represent a significant shift in the relationship between these agencies and broad political activity. In that context, it is essential that we look again at the control and accountability mechanisms that relate to our national security agencies.

In my first speech to the Senate last December, I highlighted the need for parliamentary scrutiny of our intelligence community to extend beyond questions of administration and finance to matters of policy and effectiveness and, indeed, operational matters. The PJCIS is currently severely limited in the scope of its oversight role. It is prohibited from reviewing intelligence operations. It is barred from examining sources of information on other operational assistance, operational methods or any particular operations that have been, are being, or are proposed to be, undertaken by the Australian intelligence community. The committee is prohibited from reviewing particular operations or investigations that have been or are being proposed to be undertaken by the Australian Federal Police. These limitations on the extent of parliamentary oversight are very extensive and reflect an underlying bureaucratic mindset that MPs and senators, elected representatives of the people, cannot be trusted with our nation's most sensitive national security information.

This is not an approach taken by other countries, including Australia's intelligence partners. In the United States, high-powered congressional committees have the authority to reach far into operational matters. Those inquiries are accepted by the United States intelligence community as both necessary and appropriate. As I first pointed out to the Senate in December, in Canada, the new National Security and Intelligence Committee of Parliamentarians is able to review any activity carried out by a department or intelligence agency that relates to national security or intelligence, unless that activity is an ongoing operation and the appropriate minister determines that the review would be injurious to national security. If the appropriate Canadian minister determines that a review would be injurious to national security, he or she must inform the committee of his or her determination and the reasons for it. If the appropriate minister determines that the review would no longer be injurious to national security or the appropriate minister is informed that the activity is no longer ongoing, he or she must inform the committee that the review may be conducted.

The Canadian parliamentary intelligence oversight arrangements have considerable merit. They have been adopted by a so-called Five Eyes partner with an intelligence committee and parliamentary system very similar to our own. The Canadian approach would provide an enhanced framework for the PJCIS oversight of our intelligence agencies, with the added provision that any ministerial veto over review of operational matters should be referred to the Inspector-General of Intelligence and Security for review and report to both the PJCIS and the Prime Minister.

I confirmed Centre Alliance's intention to pursue amendments to the Intelligence Services Act during the course of the debate in March on the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018. In May, I moved amendments to the Home Affairs and Integrity Agencies Legislation Amendment Bill 2018 to extend PJCIS oversight along the lines of the Canadian practice. Although the Labor opposition have for some time expressed in principle support for expanding the role of the PJCIS, in May the opposition said that they did not have sufficient time to consider the proposal, and they declined to support it. The same amendments to the Intelligence Services Act are now before the Senate. Both the government and opposition have had plenty of time to consider them—rather more time, I might say, than the Senate has had to consider the very large number of amendments to these bills now proposed by the Senate.

The amendments now moved by Centre Alliance adapt the model provided by the Canadian parliamentary oversight legislation, with an additional safeguard provided by our own Inspector-General of Intelligence and Security. The amendment removes most, though not all, of the current legislative constraints on the scope of the PJCIS's inquiries. It retains existing prohibitions on reviewing information provided by a foreign government where that government does not consent to the disclosure of that information. It also retains the prohibition on conducting inquiries into individual complaints about the activities of designated intelligence and national security agencies, as those complaints are most appropriately dealt with by IGIS.

There are details of intelligence operations involving sensitive and vulnerable sources that are best held by the smallest number of people with an absolute need to know. Accordingly, the relevant minister may certify that a review by the PJCIS relates to an ongoing operation and that that review would interfere with the proper performance of the relevant body or its function or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations. In this case, the committee will be required to cease or suspend the review. However, the committee may refer the minister's decision to the Inspector-General of Intelligence and Security, who, within 30 days, must review the matter and consider whether the activity is an ongoing operation and whether it is reasonable to conclude that a review by the committee would interfere with the proper performance by the relevant body or its functions or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations. If the Inspector-General advises the committee that the activity is not an ongoing operation or that the review would not cause interference with the proper functioning of the relevant body or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations, the committee may proceed with the review or commence a new review into the activity.

The need for the expansion of the PJCIS's role has been recognised by others in the Senate. Former senator John Faulkner urged the reform. The Leader of the Opposition in the Senate, Senator Wong, has similarly observed that parliamentarians cannot outsource their duties to ensure the security of our nation and the people who entrust us with the responsibility of governing. If democratically elected MPs and senators cannot be trusted to deal directly with these questions, then something is wrong with the relationship that exists between the intelligence community and the parliament it is ultimately meant to serve.

Centre Alliance moved these amendments without any narrow interest. Neither I nor my colleague, Senator Griff, is a member of the PJCIS—and we don't imagine we will be members any time soon—but we do think expansion of the role and authority of the PJCIS is essential if we are to continue to have full confidence in our national security and intelligence agencies and their relationships with the parliament. I commend this amendment to the Senate.

6:37 pm

Photo of Jenny McAllisterJenny McAllister (NSW, Australian Labor Party) Share this | | Hansard source

I again thank Senator Patrick for his ongoing interest in this very important issue around the proper oversight of intelligence agencies. I thank him also for the thoughtful and constructive approach he has taken to drafting amendments which seek to meet—albeit in a slightly different way than Labor has approached this in the past—our objective, which is to ensure that proper oversight of the activities of the Australian intelligence community is able to be undertaken by parliamentarians.

As Senator Wong indicated earlier in the debate, and as I think is well-known in the chamber, Labor does have a private senators' bill which also goes to these questions. We have previously indicated, and I reiterate it here, that we would welcome constructive engagement with all senators in this place, and certainly with Senator Patrick. But I also invite the government to consider its willingness to look seriously at the mechanisms for oversight of the intelligence community.

In terms of this evening's debate, with regard to the amendments proposed on sheet 8458, these amendments are, in substance, unrelated to the subject matter and objects of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017. On this basis, Labor does not support the amendments. As I have indicated, that is not to say that we do not consider this to be a matter worthy of very significant attention in this chamber, and I look forward to cooperating with other senators in coming months.

6:39 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

The Australian Greens will be supporting the amendments put forward by Senator Patrick on behalf of Centre Alliance. We believe that reform of the JSCIS is long overdue. Senator Patrick has gone through a little bit of the history of various reports and attempts to reform that committee. I want to place it very clearly on the record that the Australian Greens have a very clear view that that committee should not be a closed shop between the old parties in this place—the parties that self-describe as the parties of government. There is no rational reason why only members of parties that have some kind of reasonable likelihood of forming government should be able to sit on the Joint Standing Committee on Intelligence and Security, and, likewise, there is no rational reason why the crossbench should not have a representative on that committee.

As Senator Patrick has pointed out, the Five Eyes nations have a range of ways in which they scrutinise and provide oversight to their intelligence services and their intelligence communities, and it seems to me and seems to the Australian Greens that our country, Australia, is lagging behind most, if not all, of the other Five Eyes nations in providing capacity for their parliaments—where ultimate responsibility lies—to adequately oversight intelligence operations, intelligence agencies and the intelligence community.

6:41 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | | Hansard source

Just briefly, the government doesn't support the amendments moved by Senator Patrick for two reasons. First, this is not the appropriate vehicle nor the appropriate process by which to progress these amendments. The measures in the espionage and foreign interference bill focus on strengthening existing offences for espionage, treason, sabotage and secrecy; creating new foreign interference offences; and ensuring law enforcement agencies have access to appropriate powers to investigate these serious offences. While some measures in the bill relate to oversight, this bill is not the appropriate place to address integrity and oversight arrangements relating to national security generally.

More broadly, the amendments proposed by Senator Patrick would fundamentally reshape the role of the PJCIS and its relationship with the intelligence services by extending its remit to include the ability to inquire into the operational activities and decisions made by the intelligence services. Amendments of this gravity should be the subject of careful consideration by the parliament, the public and the intelligence community. It would not be appropriate for these amendments to be introduced through an unrelated bill. For these reasons, the government won't be supporting the amendments.

6:42 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

I didn't intend to speak again and I will only be brief. Did I actually just hear the minister say that amendments like this should be the subject of proper scrutiny by the Senate and the public? After he is jamming through, with Labor's acquiescence, 280 amendments—

Photo of Doug CameronDoug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | | Hansard source

How many?

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

There are 280, Senator Cameron—with a complete lack of capacity for the public to have a say directly to this Senate, because of the Labor and coalition parties refusing the Greens' motion to refer these bills to the Legal and Constitutional Affairs Committee for inquiry. So I just wanted to place on the record that the minister's argument is spurious and highly hypocritical.

6:43 pm

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

I also wish to respond to the minister and say that at the second reading stage I moved a motion to have these amendments referred to the PJCIS. It would have been a great opportunity for the government and the opposition, who are members of that committee, to actually have a close look at this. I don't understand why that suggestion didn't get your support. I also wish to put on the record that I find your remarks a little bit confusing in the context that an opportunity to refer these amendments for proper scrutiny was there and was not taken.

6:44 pm

Photo of Andrew BartlettAndrew Bartlett (Queensland, Australian Greens) Share this | | Hansard source

I concur with the comments of the previous two speakers. That excuse—and that's all it is—is one that's used so frequently in here it probably would just save time if there were an auto button on the minister's desk and they could press it and play a recording without having to wear out their vocal cords. The minister has to do a lot of talking tonight, and I appreciate he's done well to maintain his equilibrium in the face of a lot of appropriate but nonetheless persistent questioning.

Another reason given is one that really triggered way too many echoes for me—that is, this isn't the appropriate vehicle to put forward this amendment. I've heard that used a number of times when a perfectly appropriate amendment is put forward to address something completely valid. It's just a matter of ensuring more comprehensive and adequate scrutiny of these government agencies that we have already given absolutely enormous, unprecedented and wide-ranging powers to with almost no way of assessing how they are being used in any meaningful way. And even those members who are part of the closed shop of the existing Parliamentary Joint Committee on Intelligence and Security are limited in what they can see. As Senators Patrick and McKim have already outlined, our country falls way behind our allies with regard to parliamentary scrutiny.

The Greens and others on the crossbench don't accept this false argument that somehow the Parliamentary Joint Committee on Intelligence and Security has to consist only of the so-called parties of government—and that phrase in itself shows just what sort of mentality we have here. It's not just a confidential club; it's a secret club, and it's something that the rest of the parliament is locked out of. There is a role for the parliament, as a representative of the people, to ensure that the executive, the government, the state and the agencies of the state actually use the extraordinary powers they are given appropriately. There is any amount of evidence—we won't take the time of going through it now—about how those powers haven't been used appropriately in the past.

The other fact is the committee has had a non-government member on it. We know that Andrew Wilkie, an Independent MP, was a member of that committee from 2010 to 2013. That was at the time there was a hung parliament and, as part of agreements reached, he got the completely appropriate agreement to be on that committee. And, of course, he's also a very well-qualified person to be on that committee. Not only did we have someone who wasn't part of the so-called parties of government; he wasn't part of a party. But it was okay for him to be on the committee; the sky didn't fall in.

The great irony, of course, is that Mr Wilkie was the victim of inappropriate leaking when he was working for an intelligence agency. A report that he wrote when he was a systems analyst for the Office of National Assessments somehow found its way to Andrew Bolt. Andrew Bolt had this document and, quite appropriately, thought he'd write about it. For some reason or another there's some problem with letting people from non-government parties onto this committee. I don't know why—we can't be trusted or something; we might reveal things. That Independent member, when he became an ex-worker for an intelligence agency for the government, had something leaked against him—and quite obviously leaked against him purely for political purposes. So that single incident itself shows that there needs to be proper scrutiny of the activities of these agencies. This is just one more example.

Time and time again we've seen, over decades now, legislation after legislation that gives more and more powers to these agencies. Senator McKim earlier moved for a sunset clause. Never once has there been legislation to wind back any of it, even a little bit, not even those powers from the 1950s, from the Cold War. They've never been wound back; it's always more and more and more. We won't even put a sunset clause on them, so they just continue to expand. So we now have these powers where pretty much everybody in the country is under this mass surveillance regime, with all sorts of risks and all sorts of penalties and major jail risks for all sorts of potential activities. But the agencies themselves? Zero scrutiny. A small attempt like this—and, frankly, let's not forget this is a pretty minor amendment; it's not like we're wanting to bug ASIO while they're bugging us. It's a just little bit more proper and broader scrutiny, and being able to dig a bit deeper about what's going on. And yet all we hear is, 'This isn't the appropriate vehicle; this isn't the appropriate time.' Well it would be good if we could at least get a commitment to an in-principle agreement, but we can't even get agreement about getting a national ICAC for scrutiny about what the government itself and the politicians—all of us—are doing, so to expect to get proper scrutiny of intelligence agencies is probably asking a bit much. But there is a growing desire amongst the Australian community for growing scrutiny of parliamentarians and government, and that has to include those agencies that have the greatest powers of all to scrutinise the citizenry.

6:54 pm

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

The question is that amendments (1) and (2) on sheet 8446, as moved by Senator Patrick, be agreed to.

6:57 pm

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

I advise senators that I believe that Senator Patrick is moving his second lot of amendments. If a division is required, it's my intention to ring the bells for one minute.

Rex Patrick (SA, Centre Alliance) Share this | | Hansard source

by leave—I move items (1) and (2) on sheet 8458:

(1) Clause 2, page 3 (at the end of the table), add:

[consequential—commencement]

(2) Page 86 (after line 10), at the end of the Bill, add:

Schedule 8—Amendments relating to access to information

Archives Act 1983

1 At the end of Division 4 of Part V

Add:

55B Reporting on external legal expenses

(1) The annual report prepared by the Director-General under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must:

(a) list each application to the Archives for access to a record in which external legal expenses have been incurred by the Archives; and

(b) provide the particulars of the external legal expenses incurred by the Archives in relation to each of those applications.

(2) The particulars published under subsection (1) must include the total external legal expenses incurred by the Archives in relation to each application including, but not limited to, any external legal expenses incurred:

(a) in making an initial decision in relation to an application for access to a record;

(b) as part of an internal reconsideration of a decision under section 42;

(c) as part of a review by the Tribunal of a decision of the Archives; and

(d) as part an appeal to the Federal Court of Australia from a decision of the Tribunal.

(3) In this section:

external legal expenses includes:

(a) any fees or other expenses charged to the Archives for the provision of legal advice by external legal advisers (including any fees charged by the Australian Government Solicitor (the AGS)); and

(b) any fees or other expenses charged to the Archives by external legal advisers associated with specific litigation in relation to an application (including any fees charged by the AGS).

Note: Section 55P of the Judiciary Act 1903 provides that the AGS may charge for services.

Australian Information Commissioner Act 2010

2 At the end of section 10

Add:

(3) However, the Information Commissioner must not review decisions under Part VII of the Freedom of Information Act 1982 unless he or she holds the qualifications mentioned in subsection 14(3).

3 Subsection 12(2)

Repeal the subsection, substitute:

(2) The Privacy Commissioner may also perform the freedom of information functions (except he or she must not review decisions under Part VII of the Freedom of Information Act 1982 unless he or she holds the qualifications mentioned in subsection 14(3)).

4 At the end of section 14

Add:

Separate commissioners to be appointed

(5) The same person must not simultaneously hold more than one appointment (including an acting appointment) as an information officer.

Note: For acting appointments, see section 21.

Information officer positions not to be vacant for more than 3 months

(6) The office of an information officer must not be left vacant for more than 3 months.

5 Subsection 21(1) (note)

Omit "Note", substitute "Note 1".

6 At the end of subsection 21(1)

Add:

Note 2: Subsection 14(5) provides that the same person must not simultaneously hold more than one appointment (including an acting appointment) as an information officer.

Note 3: Subsection 14(6) provides that the office of an information officer must not be left vacant for more than 3 months.

Freedom of Information Act 1982

7 Subsection 4(1)

Insert:

transfer application has the meaning given by subsection 55JB(2).

8 Subsection 11C(6)

Repeal the subsection, substitute:

Time for publication

(6) The agency or Minister must comply with this section in the period commencing on the tenth working day after the day the person is given access to the document and concluding on the 14th working day after the day the person is given access to the document.

9 After section 55E

Insert:

55EA Procedure in IC review—consistent application of exemptions by decision -maker

Where an agency or Minister who made the relevant IC reviewable decision:

(a) provides assistance to the Information Commissioner under section 55DA; or

(b) is required to provide an adequate statement of reasons under section 55E; or

(c) provides any other information, submission or document to the Information Commissioner as part of an IC review;

the agency or Minister must not, in providing the assistance, adequate statement of reasons or other information, rely on any exemptions in Divisions 2 and 3 of Part IV that were not relied upon in making the IC reviewable decision.

10 At the end of Division 6 of Part VII

Add:

55JA Procedure in IC review—notice requirement if lengthy review

(1) The Information Commissioner must, as soon as practicable, notify an IC review applicant if:

(a) he or she considers that it is likely that more than 120 days will elapse between:

  (i) the time the relevant IC review application is received by the Information Commissioner; and

  (ii) the time that a decision will be made by the Information Commissioner under section 55K; or

(b) 120 days has elapsed since the time the relevant IC review application was received by the Information Commissioner.

(2) The notice must state that an application to transfer the IC review application to the Tribunal may be made under section 55JB.

55JB Procedure in IC review—transfer to Tribunal

(1) If the Information Commissioner has issued a notice under section 55JA, an IC review applicant may apply to transfer their IC review application to the Tribunal.

(2) An application under subsection (1) is to be known as a transfer application.

(3) A transfer application must be in writing and must be sent to the Information Commissioner.

(4) A transfer application must be made within 28 days after the day on which the notice under section 55JA was given to the IC review applicant.

(5) A transfer application is not required to be accompanied by any fee.

(6) On receipt of a transfer application the Information Commissioner must:

(a) transfer the IC review application to the Tribunal; and

(b) give the Tribunal any information or documents that relate to the review in the possession, or under the control, of the Information Commissioner; and

(c) notify the IC review applicant in writing that the IC review application has been transferred.

(7) An IC review application transferred under subsection (6) is taken to be an application to the Tribunal for a review of the relevant decision made in accordance with the requirements of section 29 of Administrative Appeals Tribunal Act 1975.

11 After subsection 57A(1)

Insert:

(1A) To avoid doubt, if an IC review application is transferred to the Tribunal under section 55JB the Tribunal may review the IC reviewable decision to which the IC review application relates.

12 After section 93

Insert:

93AA Reporting on external legal expenses

(1) The annual report prepared by the principal officer of an agency must:

(a) list each request made under section 15 to:

  (i) access a document of the agency; or

  (ii) access an official document of the agency's responsible Minister

in which external legal expenses have been incurred by the agency; and

(b) provide the particulars of the external legal expenses incurred by the agency in relation to each of those requests.

(2) The particulars published under subsection (1) must include the total external legal expenses incurred by the agency in relation to each request including, but not limited to, any external legal expenses incurred:

(a) in making an initial decision in response to the request;

(b) as part of an internal review;

(c) as part of an IC review;

(d) as part of an appeal to the Federal Court of Australia on a question of law under Division 10 of Part VII;

(e) as part of a review by the Tribunal under Part VIIA;

(f) as part of an appeal to the Federal Court of Australia from a decision of the Tribunal.

(3) In this section:

external legal expenses includes:

(a) any fees or other expenses charged to an agency for the provision of legal advice by external legal advisers (including any fees charged by the Australian Government Solicitor (the AGS)); and

(b) any fees or other expenses charged to an agency by external legal advisers associated with specific litigation in relation to a request (including any fees charged by the AGS).

Note: Section 55P of the Judiciary Act 1903 provides that the AGS may charge for services.

In my speech in the second reading debate, I expressed regret that the PJCIS did not examine the question of official secrecy and media and public access to government information from a wider perspective. It is vital that, whenever the parliament seeks to clamp down on unauthorised disclosures of government information—and there are reasonable grounds to replace what are antiquated provisions of the Crimes Act—we should also consider measures that would make government more transparent and assist the role of media and citizens in accessing information under the law.

Freedom of information must always be a counterpoint to official secrecy. Freedom of information provides the lawful means for citizens, the media and parliamentarians to obtain access to what is, at the end of the day, information that belongs to the public. I might point out that, in circumstances where we routinely find that the government doesn't respond properly to orders for production, FOI is an important tool for the parliament.

The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 significantly tightens control over government information, especially classified national security information. It will increase the penalties on those persons within government who disclose classified information without authority. It will probably make it more likely that a person who leaks information without authority will be caught and prosecuted. It does provide protection for persons making disclosures of information to oversight bodies such as the Inspector-General of Intelligence and Security and the Ombudsman.

It significantly improves the Commonwealth's power to control and protect classified information. But it does absolutely nothing to improve the ability of the public, the media or, indeed, this parliament to secure the release of government information through FOI, including through independent review of the claimed classified status of information. For some of you who may not be aware of it, sometimes when claims are made about a document being secret, or even top secret, those matters can ultimately be determined by the courts, and have been in the past. Indeed, in certain circumstances the High Court has overridden the government's claim of material being classified.

To remedy this significant deficiency Centre Alliance is moving this amendment which is designed to significantly improve the effectiveness of Australia's freedom of information laws. The amendments insert a new schedule 7 into the bill, which would amend the Freedom of Information Act, the Australian Information Commissioner Act and the Archives Act. These changes are designed to address the considerable dysfunction that has developed in our freedom of information system, which is now characterised by chronic bureaucratic delay and obstruction, unacceptably lengthy review processes, often prohibitive expenses for the applicants, increased preparedness by agencies to incur very large legal expenses to oppose the release of information and the deliberate undermining by the current government of the Office of the Australian Information Commissioner.

I'm happy to advise that after a year and a half of fighting the government to try and find out what the ISDS costs were under FOI—I've been through a process of obstruction—in this instance I managed to win. The Information Commissioner ordered the government to disclose information to me. Indeed, when that occurred, the government challenged it in the AAT. There are significant legal expenses involved for the Commonwealth to challenge the Information Commissioner's ruling. Fortunately for me, I had some assistance from some willing solicitors and barristers. And I now find, thankfully, that the Commonwealth has pulled out of the proceedings. They've decided to surrender in that instance. Accessing information under FOI can be quite a lengthy and difficult process.

The specific changes I propose in this bill include requiring the government to fill all three offices of the Australian Information Commissioner—the Privacy Commissioner, the Freedom of Information Commissioner and the Information Commissioner. Since 2014, even though, in my view, the legislation—it's Labor's legislation—makes it very clear that there should be three commissioners, since 2014 we have been left with only one. That certainly has frustrated people in getting access to information.

I also propose allowing FOI applicants to elect to have their matters bypass the Information Commissioner, who can take more than a year to make a decision on a controversial issue, and instead take it to the AAT. Another benefit of these amendments includes granting an FOI applicant the right to switch a review into the AAT without charge in the event that the Information Commissioner takes, or indicates that he will take, more than 120 days to make a decision. Going to the AAT involves a cost. I think it costs more than $800 to make an application. We shouldn't put citizens in a situation where they have to pay because we simply haven't resourced the Information Commissioner properly.

This amendment also seeks to prevent agencies from making submissions to the FOI decision reviews that have not been advanced by the agency in its internal decision-making, so they can't switch exemptions halfway through a review as often happens now. In effect, this allows the agency to re-make a decision halfway through a review—something that's not normally permitted in other merit reviews. What happens is that the department advances an exemption, you get a significant way through an information commissioner's review and the government realises it's on shaky ground, so it switches the exemption. The normal principle in any merit review is that once you hand responsibility for the review to a commissioner the agency is not allowed to re-make the decision. The decision is now in the hands of a commissioner or some sort of review body.

Next is preventing the Information Commissioner from making a FOI decision if he or she does not hold the legal qualifications required of the FOI commissioner. When Timothy Pilgrim was in office—and I have great respect for Timothy Pilgrim; this is not a criticism of him—he made FOI decisions, for a number of years, when he did not possess a legal degree. The act made it very clear that, if you were a FOI commissioner, you had to have a law degree. You had to understand how to read case law and how precedence worked. We have a situation now where there is a loophole in the act that says the Information Commissioner can make FOI decisions and doesn't have to have a legal qualification.

Another thing I'd like to see happen, which we're attempting to do in this amendment, is the prevention of agencies from publishing information released under FOI until 14 days after the applicant has received his or her copy of the information. That's designed to encourage journalists to use FOI properly and not have a story gazumped by the agency simply publishing FOI information immediately after a two-year fight to get access to information. That's an improvement specifically targeted at journalism.

Next is requiring an agency to publish its external legal expenses for each information commission or AAT FOI matter that has concluded. I know of one person who has been involved in a FOI matter that cost half a million dollars—I correct myself; it is an Archives-related matter, seeking access to archived information. The government spent half a million dollars trying to prevent someone getting access to archived data; the matter is still ongoing. We should at least get agencies to publish the amount of money that they're spending on legal costs in opposing citizens getting access to information. Having said that, there is an amendment in there that would apply to legal expenses in circumstances where someone makes an application to the National Archives.

This is a comprehensive array of reforms that reflects the practical experience of journalists, researchers and members of parliament seeking information under FOI or, indeed, the Archives Act. Passage of these measures would significantly enhance the operation of our freedom of information laws. They would be of benefit to journalists. As I suggested, there would also be a benefit to members of parliament. They would benefit any citizen seeking access to FOI laws.

Some senators may say that these matters should be addressed elsewhere, but Centre Alliance is of the view that they are very appropriately addressed here, in the context of a bill that will otherwise enhance the government's control of official information. Senators have the same opportunity to consider these amendments as they do any other amendments to this bill. However, it should be said that these amendments are less complex and more unambiguously beneficial than many of the provisions in this very complex legislation that we're dealing with tonight. Centre Alliance commends these amendments to the Senate and commits to continue to pursue comprehensive FOI reforms and improvements at every opportunity.

7:09 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

I'll be brief. The Australian Greens will be supporting these amendments. We think that this legislation is an entirely reasonable place for them to be placed and moved, for the reasons Senator Patrick has just outlined. We believe that if these amendments were adopted they would significantly improve transparency and scrutiny of government and, therefore, people's capacity to be more informed, open to more information and better able to hold government to account.

Photo of Chris KetterChris Ketter (Queensland, Australian Labor Party) Share this | | Hansard source

The question is that the amendments on sheet 8458 be agreed to.

Question negatived.

The TEMPORARY CHAIR: The question now is that the bill stand as printed.

Bill agreed to.