27 June 2018




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I rise to speak on the second reading of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017.

Today’s debate on these bills occurs some six months after they were first introduced into the Parliament. At the time the Prime Minister made an assurance to the House that these bills were both straightforward and carefully structured.

Regrettably, that was not so. In fact, the bills we are now debating—debating taking into consideration no fewer than 60 changes recommended by the joint intelligence and security committee. These bills are immeasurably improved by those changes that have the support of both Opposition and Government members.

I do want to pay tribute to my fellow members of the Parliamentary Joint Committee, inparticular Mr Dreyfus, the Shadow Attorney-General, the Deputy Chair, Anthony Byrne and my colleagues Senator McAllister and Mr Kelly. I also acknowledge the work of the Chair Mr Hastie and members of the Coalition. A lot of hard work has taken place over the past six months to bring these bills up to the standard which is expected by the Australian people.

The Labor Party has consistently supported the principles and the objectives of the legislation the chamber is debating. However, we had deep concerns about the way in which they were originally drafted.

There is no greater obligation on all members and senators than to ensure the safety and security of the Australian people. Labor’s record of constructive engagement on all national security bills brought before the Parliament backs this up.

We also recognise threats facing the nation are constantly evolving and can change rapidly. The national security laws must therefore be constantly reviewed. Laws developed in the age of letters and tell are clearly not fit for purpose in the age of social media.

The key threats that these two bills seek to address are those of covert foreign interference and covert foreign influence in our democratic processes.

As one of only a handful of nations that has been a democracy for the entirely of the past and current centuries, we have a proud tradition of open and vigorous public debate in all areas of the Australian political process. But as we have increasingly seen in recent years, there are those who are willing to seek to abuse the trust we and other nations place in our democratic processes and to use the freedoms that are denied in other nations and seek to exert and engage in covert influence or interference.

The question here, and the balancing act is and has always been how to respond to this threat while retaining our great traditions of free speech and democracy. Few if any would now argue that the laws introduced by the Prime Minister last year got this balance right. This isn’t simply a partisan position. This was the view of churches, charities, journalists, lawyers, and members of the business community and it appears a number of members of the Government.

Without the changes proposed by the Parliament Joint Committee on Intelligence and Security and now agreed by both Government and Opposition these bills would have left journalists potentially liable for severe criminal penalties merely for reporting on national security measures that a Government considered embarrassing.

Unamended these laws would have imposed enormous administrative burdens on charities across our countries backed up by criminal sanctions for non-compliance.

Unamended these laws could have seen members of the Catholic clergy forced to register by virtue of the church’s leadership in the Vatican.

Unamended these laws could have seen Australian academics being forced to register as foreign agents for collaborating on a project with an overseas institution or academic partner.

Frankly, these are absurd outcomes and these were completely unacceptable to most Australians. It is deeply concerning that the processes inside Mr Turnbull’s Government did not lead the Prime Minister, the then Attorney-General or other members of the cabinet to recognise this prior to these laws being introduced, or, if they did recognise them, proceeding ahead regardless.

The Parliamentary Joint Committee has done an enormous amount of work in order to amend these bills and bring them up to the standard that the Australian people would expect and indeed demand.

Indeed, in the lastdays we have seen statements from media organisations, charities, churches and others congratulating the committee and the Parliament on the improvements we have made.

Not everyone is happy, and many would argue that further changes need to be made. There are some on the other side – I noted a column by Mr Sheridan, who observes that the balance has gone too far the other way with regard to charities. But I think it is clear from the public commentary and from the content of the bills before the chamber that the bills are vastly improved from the ones that were originally brought into the House.

I do make this point: the Government really ought learn from the extent of the redrafting and amendments which has been required to be processed through the Parliamentary Joint Committee. The Parliament ought not have to deal with bills that are so far from the standard that is expected by the Australian people, through a committee process. They ought have been presented to the Parliament in a much more reasonable and considered form.

I turn now to the specific provisions of the bill. I am indebted to my colleague in the other place the Shadow Attorney-General,Mr Dreyfus, for both his contributions to the bills and also his analysis of them, much of which I now turn to.

The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 reforms the Commonwealth’s espionage, sabotage, treason, treachery and secrecy laws in the Commonwealth Criminal Code and the Crimes Act 1914. It introduces offences of foreign interference which criminalise the activities of foreign actors who are seeking to interfere with Australia’s democratic and political processes.

There are some 38offences in this bill. Most are expanded or reformed offences that have existed in one form or another in Australia’s criminal law since 1914, and there are seven new offences of foreign interference.

Because criminal sanctions are such a serious matter, criminal law reform does need to be carefully thought through and subjected to public scrutiny and comment. We are disappointed, on this side, that, in a break from the usual practice, the former Attorney-General did not publish an exposure draft of the bill nor consult with experts prior to it being brought into the House. Some of the procedural and substantive concerns I’ve alluded to earlier may well have been avoided if he had gone through that process. Had this occurred, Labor believes many of the problems that were later identified by the Parliamentary Joint Committee could have been avoided from the start.

This failure was compounded by the short deadlines which were set for submissions from interested citizens, civil society and other experts.

The submissions that were received quickly made clear that Labor were not alone in our concerns about the bill as it was then drafted. There were a number of drafting errors; what we regard as significant overreach and inadequate safeguards.

I acknowledge that the new Attorney-General, Mr Porter, responded to these initial concerns by presenting in the form of a submission to the Parliamentary Joint Committee inquiry a set of amendments designed to resolve some of the errors or concerns that had been identified in the secrecy offences contained in schedule 2 of the bill. These include the items identified by media organisations, who had suggested to the committee that the bill as presented could make it a serious criminal offence for journalists and staff of organisations who innocently receive secretive information, whether or not that information was classified.

There were other concerns expressed in relation to these bills by the Law Council of Australia and the Human Rights Law Centre. Even the Inspector-General of Intelligence and Security outlined concerns that some of the offences would make it impossible for her and her staff to fulfil their statutory duties—an extraordinary proposition. There were similar concerns from the Office of the Australian Information Commissioner and the Commonwealth Ombudsman. Regrettably—and, frankly, extraordinarily—not one of these organisations nor Government officeholders, including the Inspector-General, were consulted about the proposed laws prior to their introduction.

Following months of constructive bipartisan work, with exceptional support from the staff of the committee secretariat, whose work I acknowledge and thank them for, the committee tabled a 404-page report on 7 June which made 60 recommendations.

These address many of the concerns raised by civil society and the media to substantially improve the effectiveness of the bill. These recommendations have been adopted by the Government, and Labor thanks the Attorney-General, Mr Porter, for working constructively with the Shadow Attorney-General to deliver these amendments, which have been necessary to make this bill workable.

The bill now before the Parliament and the amendments proposed in the two substantial amendment sheets overhaul the significant number of offences traditionally associated with criminalising malicious interference in our democratic and security apparatus by foreign countries.

The bill modernises and reforms offences against Government, including, as I said, treason, treachery and mutiny; assisting the escape of a prisoner of war; and military-style training involving a foreign principal. These will all continue to be part of the Criminal Code.

The committee report made clear that these offences were in no way designed to capture humanitarian work in conflict zones or circumstances where a journalist covers a conflict and presents information that might be seen as supporting a particular group that has been designated as an enemy under a proclamation.

The new division 91 in schedule 1 of the bill amends and modernises the existing espionage offences in division 91 of the Criminal Code. Under the new division, the number of espionage offences will increase to cover the gaps in the criminal law that our security agencies have identified as being presently exploited by foreign actors conducting espionage against and in Australia against other countries.

The espionage offences are premised on some element of harm or damage being caused to Commonwealth. And whilst it might be embarrassing if some future role were uncovered and disclosed by civil society groups, mere embarrassment will not be enough to make out the elements of the offences. This requirement is coupled with the fact that a prosecution would have to prove beyond reasonable doubt that a civil society organisation or an individual whistleblower had intended to cause prejudice or was reckless as to whether prejudice would be caused to Australia’s national security.

The bill also introduces a new division—division 92 of the Criminal Code. This contains several offences completely new to Australia’s criminal law. The object of these offences is the disruption and criminalisation of covert acts of foreign interference that threaten Australia’s democratic processes.

When he introduced the bill,Mr Turnbull cited as examples of such foreign interference: the 2016 American presidential election, the Brexit referendum in the United Kingdom and the presidential election in France. To the best of our knowledge, we have not seen that in Australia. But this bill makes clear that Australia should not, will not and cannot allow such conduct to be tolerated on our shores.

This legislation, at its heart, declares that this Parliament will not allow interference in our elections or in our democratic processes. We will not allow these to be subject to foreign interference, and we will not allow the covert subversion of our politics by foreign interests. And that objective should be an objective held across this Parliament.

The bill also updates and modernises Australia’s sabotage offences, and there has been criticism here, too, that these provisions might be used to criminalise innocent and peaceful protest. Can I assure those very well-meaning people who have put these concerns to us that this is not the way in which these offences are intended to operate. Nor – as is advised to us – is it the way in which a court would interpret them. They are, however, intended to criminalise sabotage, a serious attack on our country. They are not intended to criminalise peaceful protest.

As an important consequence of the amendments put forward by the Attorney-General in March, the secrecy offences are now to be split between offences committed by Commonwealth officers and offences committed by non-Commonwealth officers. This is a change supported by the Labor Party.

The PJCIS recommendation, which has been picked up by the Government, ensures there will be more limited circumstances applying to non-Commonwealth officers. In particular, Labor has ensured there will be a robust and broad exemption for journalists, which will stop the laws being used to censor or suppress media reporting. There is now prior publication defence and a public interest defence for the secrecy offences.

The amendments also make explicit that the protections and immunities for whistleblowers which already exist are not affected by this bill. In particular, I note the requirement that the offences which use the phrase ‘prejudiced in Australia’s national security’ are to be interpreted as requiring a degree of damage or harm to Australia’s national security. Mere embarrassment will not be sufficient to make out this element of the offences contained in that phrase.

The Labor Party has worked constructively and in good faith with the Government to make sure this bill has been significantly improved, and we thank the Government for joining with us in adopting all of the recommendations of the joint committee.

Authorised by Noah Carroll ALP Canberra.