Member for Isaacs

National Security Bills - Mark Dreyfus QC MP

26 June 2018

Parliament House, Canberra

Mr DREYFUS (IsaacsDeputy Manager of Opposition Business) (12:02): On 7 December last year, just hours after marriage equality was voted into reality by an overwhelming majority of this parliament, the Prime Minister walked into a near-empty House and moved the second reading of three bills. The first was the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, the second the Foreign Influence Transparency Scheme Bill 2017, and the third the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017. Today's debate is on the first two of these bills: the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017. These bills are quite distinct in what they do, and I will come their intended operation a little later, but I will begin by briefly discussing the threats that these bills aim to address.

We in Labor agree with the government on three fundamental points. First, we agree that it is a paramount obligation of all members of parliament to do what we can to ensure that our nation is secure and our community safe. Our record of constructive engagement on national security bills over recent years makes this clear. Second, we agree that, in a rapidly changing global environment in which technology is also constantly evolving, the threats facing Australia are also changing rapidly. Third, we in Labor are in no doubt that the laws of Australia, including our national security laws, must be under a constant state of review so that they can be adapted as necessary to be fit for purpose. In the national security area this means that laws that were developed to deal with threats to our nation as they existed a century ago need to be updated when necessary to address the threats that we face today and that our agencies warn us we may well face tomorrow.

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 a democratic nation with a policy of openness marked by public participation not only in elections but also in governmental decision-making we are more open to the threats of covert foreign influence and covert foreign interference than are some other nations with political systems that are largely closed to public involvement.

While we in Labor recognise that threat and the need to respond to it, one of the reasons we've been in such a lengthy debate with the government about these bills is that we do not want to respond to the threat of foreign interference by shutting down the openness of our society and of our democratic processes. That would be less a response to the threat than a capitulation to it.

In the form that these laws were introduced by the Prime Minister in December last year, these laws would have had a totally unacceptable impact on our openness as a democratic society. For example, unamended, these bills would have threatened journalists with severe criminal penalties for reporting on matters in the national security space that might have embarrassed the government. They would have imposed enormous administrative burdens on charities across our countryand even on those who supported thembacked up by criminal sanctions for non-compliance. These laws would have required any Australian academic engaged in joint work with an overseas university or academic to register as a foreign agent, again, on pain of criminal prosecution if they did not. Clearly, these outcomes would have been completely unacceptable to most Australians, and it is concerning that the Prime Minister thought that these measures and others of a similar nature were acceptable.

It's also concerning that the Prime Minister sought to so rush the process for review of this legislation by the Parliamentary Joint Committee on Intelligence and Security. The original reporting date for the committee was in February this year. This would have required all submissions to be written, public hearings to be conducted and the committee's report drafted, debated, agreed to and vetted by our agencies in the weeks during the lead-up to Christmas and over the summer break. The view that these bills could be introduced in the last hours of the last parliamentary session and then dealt with before parliament resumed suggests a lack of respect for the public's right to be consulted on laws that would so impact on our democratic rights and freedoms, including the vital freedom of the press to hold governments to account.

Fortunately, the government relented and allowed a more reasonable but still not fully adequate timetable for these bills to be considered by the intelligence committee, and I thank the government for realising its mistake. It is now over six months since the committee received its references on these bills, and many key stakeholders still believe that there has been inadequate time for consultation on these bills and the raft of amendments that have been made to them in the last weeks and hours. As it is, the committee only tabled its report on the Foreign Influence Transparency Scheme Bill yesterday, and substantial amendments were prepared and provided to us only late yesterday. I do want to put on record that the government's claim that these bills have to be passed by the parliament now to ensure that they are in place for the by-election scheduled for 28 July was directly contradicted by evidence given by the Attorney-General's Department to the committee, which made clear that it would take several months to put in place the register of foreign interests that will be established by the Foreign Influence Transparency Scheme Bill.

I now turn to the specific provisions of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill. This bill reforms the Commonwealth's espionage, sabotage, treason, treachery and secrecy laws in the Commonwealth Criminal Code and the Crimes Act 1914. The bill also introduces new offences aimed at criminalising the activities of foreign actors who are seeking to interfere with Australia's democratic and political processes, which are described as foreign interference offences. On 8 December 2017, the Prime Minister referred the bill to the intelligence and security committee. It was an appropriate referral and allowed the committee to continue its important, independent work reviewing security legislation for the parliament. In referring the bill, the Prime Minister acted in keeping with the bipartisan convention of ensuring proper scrutiny of security legislation.

The committee was asked to review the single largest overhaul of Australia's national security legal framework since the 1960s. There are some 38 offences in this bill. Most of them 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 foreign interference offences. Given the scale of the task presented to the committee, I should note that the government's approach before introduction left a lot to be desired. Given the scope and significance of this legislation, it would've been preferable for the former Attorney-General the Hon. George Brandis to publish an exposure draft of the bill or consult with experts. Because criminal sanctions are so serious, criminal law reform needs to be carefully thought through; subjected to public scrutiny and comment; and refined and designed so that it only captures the conduct that we rightly say as a society should be criminalised.

This bill reforms and amends laws which have long carried the potential for long prison sentences. Careful, thoughtful law reform aided by consultation and expertise was most certainly needed for these laws. This was not done. The first that experts and interested parties heard of this bill was when the Prime Minister and the former Attorney-General gave a press conference on their intention to introduce the legislation on 5 December 2017. This lack of proper consultation was compounded by the government seeking submissions from interested citizens, civil society groups and those experts so vital for assisting in the policy development process by 18 January 2018.

The submissions that were ultimately received made clear to all members of the committee, Labor and government members like, that the bill was deeply flawed. It contained numerous drafting errors, significant overreach and inadequate safeguards. I can say that, in the light of significant and growing criticism over the first months of this year, the new Attorney-General, the Hon. Christian Porter, in March presented by way of a submission to the committee inquiry a set of amendments to the bill which attempted to resolve some of the criticisms that had been levelled at the secrecy offences contained in schedule 2 of the bill. That criticism came from, among many others, the joint media organisations, who suggested to the committee that the bill, as presented, could make it a criminal offence, with substantial criminal terms of imprisonment as possible penalties, for journalists and staff of media organisations who innocently received secret information, whether or not that information was classified.

The Law Council of Australia, who made a very detailed submission running to some 78 pages, detailed extensive problems across the entirety of the bill. The Human Rights Law Centre made another helpful submission which focused on the secrecy offences, and that submission reflected that there were significant conceptual difficulties with the bill. They also noted how it deviated from the Australian Law Reform Commission's report titled Secrecy laws and open government in Australia, which was published in December 2009. The Inspector-General of Intelligence and Security made a submission which outlined her concerns that some of the offences would make it impossible for her and her staff to fulfil their statutory duties. Similar concerns were raised by the Office of the Australian Information Commissioner and the Commonwealth Ombudsman. None of these organisations or government office holders had been consulted about the proposed laws.

I'm glad to say that following months of constructive bipartisan work, with exceptional support from the staff of the committee secretariat, a mammoth 404-page report was tabled on 7 June 2018. The report made 60 recommendations, more than any other committee report on a national security bill since the Abbott and Turnbull governments came to power in 2013. It is my and Labor's hope that, in future, such significant laws are the subject of proper consultation, considered drafting and thorough preparation before they are brought to the parliament. It makes the job of all of us in this place easier. It also makes it easier because Labor has always been determined to ensure that our law enforcement agencies and national security agencies have the powers that are necessary to keep Australians safe. These include the full suite of criminal offences that our security agencies tell us are necessary to disrupt and combat criminal attempts to undermine our democratic system and to use Australia as a venue for conducting espionage against Australia's allies. Had these laws been properly prepared subject to public scrutiny and debate prior to being brought to the parliament, then it would not have been 25 June when this debate was taking place. Had proportionate, considered and well-developed law reform been proposed to the parliament, then it's possible that our security agencies would already be working in an environment which provided the legal framework that they have sought and need to limit the permissive environment in which unprecedented espionage and foreign influence is taking place.

It is with all of these matters in mind that Labor has engaged in a constructive manner through the Parliamentary Joint Committee on Intelligence and Security with the government on this bill. As I have noted, the PJCIS report made 60 recommendations, 59 of which were for improvements to the bill or explanatory memorandum or making suggestions to the government as to how the bill should be implemented. The fact that there are 60 recommendations in the report reflects that there was always more work to do to try and get the balance right. We believe that the recommendations in the report which have been implemented by the government in the amendments before the House address many of the concerns raised by civil society groups and the media and improve the effectiveness of this bill.

The government has produced, in the last sitting week, amendmentsthose now before the Houseresponding to and accepting the recommendations of the report. I thank the Attorney-General, the Hon. Christian Porter, for working constructively on the further amendments which were necessary to make this bill workable.

The bill now before the parliament and the two substantial amendment sheets overhaul a significant number of offences traditionally associated with criminalising the malicious interference in Australia's democratic and security apparatus by foreign countries. The bill modernises and reforms offences against government, including the offences of treason, treachery, mutiny, assisting the escape of a prisoner of war and military style training involving a foreign principal. These will all continue be in part 5.1 of the Criminal Code. The PJCIS report made it 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 which might be seen as supporting a particular group that has been designated 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 91, the number of espionage offences will increase to cover the gaps in the criminal law that Australia's security agencies have identified as being presently exploited by foreign actors conducting espionage against Australia and in Australia against other countries.

I place on record that the interpretation offered by some civil society groups that the espionage offences are capable of criminalising the disclosure of alleged breaches of international law or human rights by Australia or another country is simply not correct. It's not the parliament's intention that a civil society group which discloses to an international organisation otherwise-secret information about Australia's or another country's breach of international obligations could be prosecuted under these offences. The object of these offences is to disrupt espionage activities. Further, for a construction of these offences to have the effect suggested would rely on the Commonwealth's only-hypothetical wrong being exposed in order to commence a prosecution. The espionage offences are premised on some element harm or damage being caused to the Commonwealth. While it might be embarrassing if some future wrong were uncovered and disclosed by civil society groups, mere embarrassment will not be enough to make out the elements of any of the espionage 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. In circumstances where the disclosure to the relevant international organisation is made to ensure that Australia rectifies and in future does not breach its international obligations, it's difficult to see how that fault element could be proved.

Finally, the espionage offences all require the consent of the Commonwealth Attorney-General. Attorneys-general hold obligations which go beyond the usual political and legal obligations of other ministers. They are the first law officer of the Commonwealth. A Commonwealth Attorney-General who consented to a prosecution in factual circumstances like those given as examples by some who have criticised this bill would, in my opinion, not be fulfilling those high obligations. I say this to assure any concerned citizens that this bill and these espionage offences do not seek to limit the role of civil society and do not threaten the essential role that civil society plays as a vehicle for the improvement of the Australian community, particularly where that objective is sought by improving Australia's status in multilateral institutions.

The bill introduces a new division 92 of the Criminal Code which 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 which threaten Australia's democratic processes. I take examples that were given by the Prime Minister in introducing these bills: the interference in the US 2016 presidential election, in the Brexit referendum in the United Kingdom and in the presidential election in France, examples which happily have not yet been replicatedor at least no evidence has been presented that these activities have been replicatedin Australia. It's apparent that in other parts of the world, in other countries, covert actors are seeking on an unprecedented scale to interfere with and manipulate the political processes of democratic countries, particularly by attacking free and fair elections. Australia will not allow this conduct to arrive on our shores.

The parliament will not allow interference in our elections. Labor will not allow our democratic processes to be the subject of foreign interference, and we will not allow the subversion of our politics to the interests of covert actors. Labor, whether in government or opposition, will not allow foreign interference, and we join with the government in safeguarding our nation's system of government and representative democracy, which all Australians cherish and are, rightly, proud of.

The bill updates and modernises Australia's sabotage offences. Labor recognises that, in a complex modern world, it is necessary to criminalise intentional or reckless damage to a broad range of public infrastructure. As with the criticisms that I dealt with earlier in relation to the espionage offences, some critics have suggested that these amended sabotage offences might be used to criminalise innocent and peaceful protest. I would simply say that that is not the way in which these offences are intended to operate. It is not the way, in my view, that a court would interpret them. They are, absolutely, intended to criminalise sabotage, a serious attack on our country, and in no way would be usedas has been suggested and, I say, wronglyto criminalise peaceful protest. The bill introduces a new 'theft of trade secrets' offence to protect Australia from economic espionage by foreign government principals, and makes a number of other appropriate, modernising amendments to a range of other offences, including the offence of interfering with political rights and duties andas I've indicatedimportant reforms to Australia's secrecy laws.

As a 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, which is an appropriate distinction to be made in the criminal law. Through the PJCIS process, Labor has ensured that there will be more limited circumstances applying to non-Commonwealth officers. In particular, Labor has ensured that there will be a robust and broad exemption for journalists and those people engaged in the business of reporting news and engaging in editorial activity. Those exemptions will stop the laws from being used to censor or suppress freedom of expression, which is an appropriate safeguard.

Generally speaking, this bill is much improved by the 59 recommendations for amendment and change both to the bill and to the explanatory memorandum. There will now be 'prior publication' defences. There will now be a public interest defence for the secrecy offence. It is important that there be these limitations. It's important that there are now amendments to make explicit that the protections and immunities for whistleblowers which already exist in the Public Interest Disclosure Act, the Inspector-General of Intelligence and Security Act and the Freedom of Information Act are not affected by this bill. As I've noted already, the bill will now include a requirement for the Attorney-General to consent to a prosecution for espionage and to consent to a prosecution for a secrecy offence, which is an important further safeguard.

Many of the recommendations of the PJCISwhich I thank the government for implementing in full in these amendments now before the Househave the effect of narrowing the impermissible conduct to be criminalised by the offences contained in the bill. In particular, I note the requirement that the offences which use the phrase 'prejudice to Australia's national security' are to be interpreted as requiring a degree of damage or harm to Australia's national security. It's not in the interests of our nation that mere embarrassment would be sufficient to make out this element of the offences containing that phrase. Labor has worked constructively and in good faith with the government to make sure that this bill has been significantly improved. It now properly targets the conduct which the parliament is seeking to criminalise, while always safeguarding those fundamental and essential rights and freedoms which we in Labor will always defend and promote.

I will turn now, in the available time, to the Foreign Influence Transparency Scheme Bill. This bill also was introduced by the Prime Minister on 7 December, and it's quite a different bill to the espionage and foreign interference bill, which of course is dealing with amendments to the criminal law. This bill sets up a registration scheme for persons who act on behalf of foreign governments, foreign-government-related entities or individuals and foreign political organisations who are seeking to influence an Australian governmental or political process. As with the espionage bill, the Parliamentary Joint Committee on Intelligence and Security received many submissions opposing the bill which were particularly directed to the breadth of the bill. Submitters pointed out that thousands of Australian individuals and organisations whose foreign connections were entirely overt would have been required to register under the bill as originally put forward.

The committee had public hearings on 30 and 31 January and again on 16 March. It was quite apparent, even by mid-March, that the government was going to have to very substantially amend this Foreign Influence Transparency Scheme Bill, but the committee had to wait until six months to the day from when the bill was first introduced by the Prime Minister7 June 2018for the Attorney-General to submit a very large set of proposed amendments to this Foreign Influence Transparency Scheme Bill. It was such a large set of amendments that it's fair to consider what is now before the House as an almost completely different bill.

The government at that point, on 7 June 2018, indicated that it wanted this further bill, the Foreign Influence Transparency Scheme Bill, to be passed in this sitting week, and happily the committee was able to complete a short further inquiry, by calling for submissions again from all those who had made submissions earlier to the committee, on the new set of amendments produced by the Attorney-General. This resulted in some 30 further submissions, a hearing conducted by the intelligence committee last Monday and some extremely active work by the committee and its secretariat over the succeeding week, leading to the tabling of the report of the committee yesterday, recommending something over 40 further changes in addition to those suggested by the Attorney-General on 7 June.

The changes have the effect that the scope of the bill is now greatly narrowed. It is now clear that the registration scheme is to focus on the activities of foreign governments, foreign-government-related individuals and entities and foreign political organisations. That term toobecause it does sound a like a broad termhas been further restricted by the amendments which are before the parliament so as to make it clear that a foreign political organisation is to be treated as a foreign political party or an organisation which is directed wholly or primarily to political activity, and the amendments to the explanatory memorandum will make it clear that an environmental group or other civil society group whose activities are directed to other matters and not solely to political activity is not intended by the parliament to be caught by the term 'foreign political organisation'. Again, the scope of registerable activities has been limited so that it now is clear that it's intended that registerable activities will cover parliamentary and general political lobbying where the relevant conduct is undertaken for the sole or primary purpose of political or government influence or the government's communications activity.

The media organisations who had participated in the earlier part of the inquiry have expressed their satisfaction with the narrowing of the scope of this bill so that, in a very real sense, media organisations will not be caught by its provisions.

So, too, charities that had expressed great concern that they were going to be caught up in onerous obligations and paperwork that took them well outside what they would prefer to be spending their time on have also expressed their satisfaction that they are to be exempt. So, too, arts and cultural organisations are to be exempt from the registration requirements under this scheme, and trade unions are to be exempt from the registration requirements under this scheme under particular circumstances. There was already in the bill as originally proposed a religious exemption. That religious exemption has been clarified as a consequence of both the recommendations of the committee and the amendments that the government now brings before the House. Again, that's appropriate.

In its original form, the bill introduced to this House on 7 December was, very much, using a sledgehammer to crack a nut, when what in truth was required was a more scalpel-like approach. Happily, the government has listened to the very many concerns that have been expressed by civil society, and has narrowed the scope of the bill, increased the number of exemptions, and clarified, in a very real way, the way in which the scheme is intended to operate.

I have to mention an important further matter, which is that there is now to be a complete restoration of parliamentary privilege. It might, in the bill's original form, have been the case that parliamentary privilege was abrogated. It is now made clear by the proposed section 9A of the bill that this is not the case. This bill, if enacted, will not affect anything to do with parliamentary privilege, and, indeed, MPs will not be required to register under the scheme. The committee has recommended that this House and the other place devise, under standing orders, an appropriate matching scheme for members of both houses so as to ensure that there is proper disclosure of any foreign governmental influence working on members of either house.

In a very real sense, there's been constructive work engaged in by both parties on these bills. There's been a great deal of work in the intelligence committee. The government has acted on those recommendations, and I commend both bills to the House.