Thursday, 28 June 2018
National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018, Foreign Influence Transparency Scheme Bill 2018; Second Reading
Over 200 times this has happened with different pieces of legislation and amendments at both state and federal levels over 20 years. At the federal level it would be well into double figures. We've amended these pieces of legislation 30 or 40 times. And each time I'm sure we heard 'unprecedented threat'. Each time I'm sure we heard 'urgent'. We've certainly heard them time and time again. I quoted yesterday from an example from August 2004, under the shadow of the same non-existent urgency to ban same-sex marriage. We also had the non-existent urgency to deal with an 'unspecified threat' that suddenly had to be dealt with.
Each time, we've never really had the opportunity to test why these specific powers are needed. And, inasmuch as there have been reviews of some of the extra powers that have been provided to agencies, like ASIO and espionage and intelligence agencies, very rarely has it been said, 'Yes, it was really good that that change was made because otherwise—' Some of these powers have never been used. But what they do give governments is more and more power to use and act in their own interests. This is the political class and the establishment class and the governing class and the state acting in their own interests against anybody they see as a threat.
I saw an interesting quote in an interview yesterday that Mr Hastie, the Chair of the Parliamentary Joint Committee on Intelligence and Security, gave to the ABC. The interviewer was asking, in respect of journalists, about how much transparency is okay, because the government's likely to say it's made amendments now that makes it okay for journalists—it's safe now, if it's in the national interest. It's the old national interest test that's used in so many pieces of legislation. It's all over the place. It's in the Migration Act as well. It never has any meaning. The government can interpret it to mean whatever it likes. National interest means what the government says it means, which means national interest is the government's interest. And that's how it has basically operated in a legal sense time and time again. But the particular quote that caught my eye was Mr Hastie saying that apparently, under these amended bills, there's robust defence for journalists, and another check and balance is that the Attorney-General has to consent for a prosecution. That's okay then! The Attorney-General has to consent! That makes me feel much more relaxed—not.
We saw—I spoke about this last year, and I think we'll see about a specific case later today—the Pine Gap protesters and the way the Attorney-General not only explicitly consented to pursuing but also tried to get peaceful, harmless protesters, who presented absolutely no security threat at all, jailed for years. On the matter of consent, the Attorney-General enthusiastically pursued the powers that they had—powers that hadn't been used for decades that were set up for completely different purposes under an act during the Cold War—and used those powers totally for political purposes. If they can use powers under a 60-year-old act that had been set up for completely separate purposes, in the context of the Cold War, to pursue harmless protesters conducting prayers and singing songs inside Pine Gap but nowhere near the actual facilities, imagine what they can do with all of the powers that this Senate keeps giving them time and time and time again.
Mr Hastie also said there was protection, saying:
… the Attorney-General actually has to consent for a prosecution, so there's a number of different things that have to be done for a prosecution to proceed, and that's designed to prevent a chilling effect on the media because a free media is critical to democracy and we don't want to diminish that at all, in fact we want to enhance it and I think we've struck the right balance …
The ABC host said, 'Given you've made such bold statements about the need for free reporting of these matters, I'm curious as to whether you are uncomfortable with codifying jail time for journalists for doing just that—for acting as a free media.' Mr Hastie said:
What we can’t have is radical transparency.
This is a new concept—not just any old garden-variety transparency but 'radical transparency'. He said the whole point of the secrecy offences was 'to prevent privileged and classified information from being inappropriately disclosed'. Of course, it will be the government that will decide what is inappropriately disclosed. We all know the government itself, over time, has repeatedly disclosed classified information. When it's in their interests, they're happy to do it. They just don't want anybody else to do it if it's against their interests—and those are the interests of the government of the day. The ABC person said, 'So where do you draw a line? What is "radical transparency"?' Mr Hastie said:
Radical transparency is Julian Assange dropping a whole bunch of commonwealth secrets out for public consumption …
That's what it is. That's just one example. But he is, of course, an Australian citizen—from Queensland originally, I might say—who has basically been abandoned by this government. I'm not giving him a character reference, but I am certainly saying he has a right as an Australian citizen to receive proper support against what has clearly been an international conspiracy by governments to try and silence him. He has been kept in isolation for years. He has been basically silenced already because of the threat he poses to the state—not to the community, not to the public. The things that he exposed and, more specifically and definitely, that Edward Snowden exposed are things that governments wanted hidden, things so-called democratic governments were doing to their own people. So we have that definition: 'Radical transparency is Julian Assange.' These laws are attempts to criminalise and attack people like Julian Assange. Let's not forget that Julian Assange is acknowledged as and registered as a journalist, and actually won a Walkley Award for his work exposing governments acting against their own citizens. We've seen this time and time again in the United States; it's a case of great debate at the moment.
Let's not forget the other very significant thing. We've had this march over the last couple of decades towards more and more powers for our intelligence agencies. The size of ASIO and relevant organisations has expanded, and the size of their budget has gone through the roof over the last couple of decades—and that's in the context of ASIO's own history, their published history, showing the number of times they've clearly overstepped their legal authority. They have clearly acted against the rights of citizens in this country, based on their own belief, their own internal little bubble. I'm not saying they're bad people; I'm saying that's what happens when people are put in a bubble and made to think that their views are the only views that matter, and where there is no transparency and the powers that people are given are absolute. It is almost inevitable that, regardless of the good character of those involved, if people are put in a situation where they're given such absolute powers with such minimal accountability and transparency, you will get abuse of those powers. So, to expand those powers further, particularly without proper scrutiny and genuine opportunity to test the assertions made by the government of the day as to what those powers will and won't mean, is incredibly dangerous. That's why the Senate should have supported Senator McKim's motion to have these new pieces of legislation scrutinised by a Senate committee.
I'm sure the minister will give answers he believes are true, as he's advised, over the course of the committee stage of this debate. However, there is no capacity for those answers to be tested by a range of other people and all of the legal experts in this country who have a whole range of different political views, ideological perspectives and philosophical ideals. We will do the best we can but, as good as Senator McKim and others in this chamber might be with their forensic minds, it would be much better to open that up to all of the forensic minds around this country to properly test all of the amendments that have been put forward to make sure they do what they say they are going to do. Even if you totally agree philosophically with the intent of what's being proposed here—which I do not—this would make sure that there are not broader powers than are intended, that they're worded the right way and that there are commas in the right places. We all know of times when this has gone wrong in the past. I'm deeply concerned about what is being done here. It is deeply disappointing that the Labor opposition is going along with the government in this process, although it is unfortunately not surprising because it's happened so many times before. (Time expired)
I have spoken already in this debate, so I don't seek to add to the substantive debate. I do, however, wish to briefly respond to the second reading amendments which were moved after I spoke. There were second reading amendments moved by Senator McKim, on sheets 8475 and 8476. There is also an amendment to be moved by Senator Patrick. Senator McKim's amendments seek to refer these bills to a further committee inquiry, and Senator Patrick is seeking to refer his amendments on sheet 8446 to an inquiry by the PJCIS.
First, the effect of all of these amendments would be to interrupt further consideration of the bills. Under the committee's report in August, for the reasons that I outlined yesterday, the opposition will not be supporting further inquiry or delay on these bills, noting the extensive inquiry that has been undertaken by the Parliamentary Joint Committee on Intelligence and Security.
The amendments proposed by Senator Patrick on sheet 8472, which are the subject of referrals, seek to inform the intelligence committee's oversight powers in the Intelligence Services Act. I do wish to, again, mark that Labor has long sought to improve the oversight powers of the parliament with respect to intelligence and security legislation, and the operations of intelligence and security agencies. In addition, the L'Estrange and Merchant review of the Australian intelligence community recommended changes to the oversight powers of the PJCIS. The opposition welcomed these recommendations, and we hope the government will similarly consider them with a favourable eye.
The oversight imperative was the purpose of the Faulkner reforms, which were proposed in this place by former senator John Faulkner—also a member, at that time, of the intelligence committee prior to his retirement. I would invite Senator Patrick to engage with the opposition and, in particular, Senator McAllister, who now has carriage of the legislation on these matters. I also invite the government to work with us to progress sensible and constructive reforms in line with the L'Estrange and Merchant review of the Australian intelligence community.
I want to thank my parliamentary colleagues for their contributions to the debate on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018—the EFI Bill; and the Foreign Influence Transparency Scheme Bill 2017—the FITS Bill.
These two bills have been considered in detail by several parliamentary committees, and I thank those committees for their contributions. I particularly thank the Parliamentary Joint Committee on Intelligence and Security for their detailed consideration of these two bills. The committee has produced detailed and robust reports, having considered the bills over a period of some six months. It received a total of 143 submissions and 68 supplementary submissions, held multiple public and private hearings and received multiple classified briefings. The committee considered the detailed proposed government amendments to each bill provided to it by the Attorney-General, which were the subject of further public hearings and submissions. The committee tabled its report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill on 7 June 2018 and its report on the Foreign Influence Transparency Scheme Bill on 25 June 2018. The government has accepted all of the committee's recommendations, as it has for each of the previous 10 tranches of national security legislation.
With respect to the EFI bill, covert interference and espionage by nation states are global realities which have the potential to cause immense harm to our national sovereignty, the safety of our people, our economic prosperity and the very integrity of our democracy. To counter this threat, Australia must have a robust legislative framework to ensure our law enforcement and national security agencies are sufficiently empowered to investigate and disrupt malicious foreign interference. The reforms in the EFI bill are comprehensive. They represent the most significant counterintelligence reforms since the 1970s. The measures in the bill will fundamentally reshape our national security offences to protect Australia's sovereignty and information, and protect the democratic principles and values that underpin our society.
The EFI bill includes comprehensive new espionage offences that are designed to capture the full range of conduct undertaken to compromise sensitive information and prejudice our national security. The new offences will target not just the person who discloses the information but also the actions of the foreign principal who receives the information. The bill will also introduce an offence criminalising economic espionage, or the theft of trade secrets, which will apply to dishonest dealings with trade secrets on behalf of a foreign government principal.
Senator McKim expressed the view that the espionage offences might capture persons who disclose information about potential human rights abuses or breaches of international law to international advocacy organisations or the United Nations. Senator Wong addressed these issues in her contribution to the debate, as did the shadow Attorney-General in his contribution to the second reading debate in the other place. I will not restate the point that Senator Wong and the shadow Attorney-General correctly made. A person seeking to draw human rights concerns to the attention of the United Nations or other international organisations will not commit an espionage offence as they did not intend to; nor are they reckless as to whether their conduct will prejudice Australia's national security.
The EFI bill will introduce, for the first time, a suite of foreign interference offences into the Criminal Code. These offences will complement espionage offences by criminalising a range of other harmful conduct undertaken by foreign principals who seek to interfere with Australia's political, governmental or democratic processes to support their own intelligence activities or to otherwise prejudice Australia's national security. Senator Leyonhjelm set out a series of scenarios where a person might entirely properly communicate with a foreign government in private in the course of informing themselves on a matter of public importance before engaging in debate in Australia. I want to thank the senator for providing specific examples and for clearly identifying the legislative provisions that he is concerned may be engaged. I can reassure the senator that the scenarios, as he described them, would not constitute foreign interference offences. In the scenarios he sets out, a person will only commit a foreign interference offence if they seek to covertly or deceptively influence a political or governmental process on behalf of or in collaboration with a foreign government—that is to say: it is the act of influence in the process that must be covert or deceptive for the offence to be committed.
The EFI bill contains a suite of new Commonwealth secrecy offences, which replaces sections 70 and 79 of the Crimes Act. There will be separate offences that apply to Commonwealth officers and non-Commonwealth officers. The offences that apply to non-Commonwealth officers will be narrower in scope and attract lower penalties. Defences will apply to ensure the offences do not apply too broadly, including a defence specifically applying to journalists as well as editorial and support staff who reasonably believe that their conduct was in the public interest. The new secrecy offences ensure harmful information cannot be released, while appropriate defences protect freedom of speech.
The EFI bill will update and simplify the offences of treason and treachery, as well as archaic and outdated offences in part 2 of the Crimes Act. These are some of the oldest offences in the statute book. As such, they require modernisation and updates to the language to reflect the modern environment and international law concepts of armed conflict. The EFI bill will also introduce reformed sabotage offences into the Criminal Code. The new offences will criminalise conduct causing damage to critical infrastructure where it could prejudice Australia's national security. The new offences will apply higher penalties where sabotage offences are committed on behalf of foreign principals and will also contain offences that apply where a person's conduct leaves an item or system vulnerable to future misuse or exploitation. Senator McKim expressed the view that the sabotage offences might capture persons who picket a coalmine or port. Senator Wong addressed these issues also in her contribution to the debate, as did the shadow Attorney-General in his contribution to the second reading debate in the other place. A person engaged in ordinary and lawful protest will not commit a sabotage offence, as they did not intend to nor are they reckless as to whether their conduct will prejudice Australia's national security.
Finally, the EFI bill will amend the Telecommunications (Interception and Access) Act 1979 to ensure the powers under that act are available to investigate the offences contained in the EFI bill. While foreign actors are free to promote their interests in Australia's free and open society this must be done in a lawful and open way. The FITS Bill will provide transparency for the Australian government and the Australian public about efforts by foreign governments, foreign political organisations, and persons and entities closely related to foreign governments and foreign political organisations to use intermediaries to influence Australia's political and government processes. Decision-makers in the Australian government—and the public—should know what interests are being advanced in respect of a particular decision or process. For the first time, the public and decision-makers in government will have access to information to enable them to accurately assess how foreign sources may be seeking to influence Australia's government and political processes. The bill will empower the Secretary of the Attorney-General's Department to issue a transparency notice setting out whether a particular entity or individual is related to a foreign government. Transparency notices will assist potential registrants to understand whether they are required to register and will also shed light where a company or individual seeks to conceal their relationship with a foreign principal.
The FITS bill exempts a range of organisations and persons from registering under the scheme. The exemptions extend to humanitarian assistance, legal advice, diplomatic activities, religious activities, commercial or business pursuits, industry representative bodies, individuals making personal legal representations, registered charities, activities with an artistic purpose, certain registered organisations and certain professions. These exemptions appropriately restrict the application of the scheme to those organisations and persons which seek to influence Australian political and government decisions or processes in a way that threatens Australian institutions. Senator McCarthy raised the issue of Indigenous rangers working in collaboration with international charities such as The Pew Charitable Trusts. I am pleased to say that the bill, incorporating the Attorney-General's amendments as well as those recommended by the PJCIS, will place beyond doubt that Indigenous rangers are not required to register in such circumstances. The FITS Bill will introduce offences which will promote compliance with the scheme.
I would like to thank my parliamentary colleagues for recognising the need for these important measures in these two bills. Comprehensive criminal laws are a critical part of Australia's response to the threat of espionage and foreign interference. The EFI bill reflects the government's commitment to addressing this threat and ensuring that our law enforcement and security agencies have the powers they need to respond to the broad spectrum of foreign interference and related criminal activities directed against Australia's interests. Legislative reform is also a critical step in shedding light on foreign interference. The FITS Bill reflects the government's commitment to addressing this issue and to ensuring that the public and decision-makers in government will have access to information to enable them to accurately assess how foreign sources may be seeking to influence Australia's government and political processes. I commend both bills to the Senate.
In respect of the Foreign Influence Transparency Scheme Bill 2018, I move:
At the end of the motion, add:
", and the bill be referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 14 August 2018."
I move the second reading amendment on sheet 8472:
At the end of the motion, add:
(a) the amendments circulated by Senator Patrick on sheet 8446 be referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 13 August 2018; and
(b) further consideration of the bill be made an order of the day for the first sitting day after the committee has reported."