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Wednesday, 27 June 2018
Page: 4092


Senator PATRICK (South Australia) (11:37): Last December, the Turnbull government introduced the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 and the Foreign Influence Transparency Scheme Bill 2018. Both bills have been the subject of six months' scrutiny by the PJCIS, which has produced two reports—the first tabled on 7 June and the second tabled on Monday this week. Together, these two reports total 754 pages. The first report contains no less than 60 recommendations. The second report contains 52 recommendations. There's a lot here for the Senate to digest.

These bills go to the core of our national sovereignty, the ability of our democratic institutions to function free of covert foreign interference. They also have very significant implications for key institutions and processes within our democratic system: implications for the parliament and political processes more broadly and, more specifically, implications for the role and influence of our security and police agencies, and for the operations of the free press. Centre Alliance agrees with the necessity for this legislation; however, at the same time the Senate should be alert to all of the implications. We should be prepared to look at other legislative change that will strengthen our democratic institutions, ensure our security agencies are fully accountable and politically impartial, and ensure that government is, to the maximum extent possible, open to scrutiny by the media and its citizens.

The threat of foreign espionage and covert foreign interference is very real. That is certainly the advice of our security agencies. In evidence to the PJCIS, ASIO advised that espionage and foreign interference activities against Australian interests is 'occurring at an unprecedented scale'. The threat from foreign espionage and foreign interference is described as 'extensive, unrelenting and increasingly sophisticated'. More specifically, ASIO told the committee:

This isn't something that we think might happen or could happen; it is happening now against Australian interests in Australia and ... abroad.

Foreign actors from a range of countries seek access to privileged and/or classified information on Australia's alliances and partnerships, our position on international diplomatic, economic and military issues, our energy and mineral resources and our innovations in science and technology.

Of course, it can be argued that espionage and, indeed, sabotage are nothing new. After all, spying has often been described as the second-oldest profession. But ASIO rightly points out that the nature and scale of the threat has evolved and grown significantly. Foreign intelligence services are increasingly using a wider range of techniques to obtain intelligence and clandestinely interfere with Australia's internal affairs.

It isn't only the intelligence communities that have highlighted these threats. Investigative journalists—notably, Fairfax and the ABC—have played an important part in highlighting issues relating to foreign interference, espionage and, indeed, foreign influence. Although the government is understandably reluctant to talk publicly about the specific espionage and interference threat posed by China, that is what this legislation is about. In the decades to come, Australia is likely to face even bigger challenges in managing our relations with China, our major trading partner, and that country is likely to exert perhaps significantly more influence in our region. In the years and decades to come, China's reach and influence in our region, and inside Australia itself, will likely be the single most important issue in Australian national security.

The challenge in this legislation is how, in an environment in which national security threats and pressures are likely to increase, do we strike the right balance between measures to protect our national sovereignty whilst ensuring the fundamental freedoms and key institutions that we have are not compromised. On this, I want to focus attention on two aspects: the espionage and official secrecy provisions of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill and the broad question of foreign interference that is addressed through the bill and the Foreign Influence Transparency Scheme Bill.

The new official secrecy provisions in schedule 2 of the espionage and foreign interference bill are not completely new. Rather, they are the latest and most sophisticated proposal to update Australia's counter-espionage legislation and replace the very dated official secrecy provisions of sections 70 and 79 of the Crimes Act. As originally proposed, the scope of the new official secrecy provisions was unacceptably broad, especially as it related to what has been referred to as 'secondary disclosures'—that is, the handling and publication of information by third parties, including journalists and media organisations. The practical effect of the bill would be to make it a criminal offence for unauthorised persons—including journalists and media organisations—to obtain, retain, communicate or publish any government information disclosed without official authorisation that falls into the category of information that would 'cause harm to Australia's interest' or is 'inherently harmful information'. The bill provided a defence to a prosecution on the grounds that the person's conduct related to the communication of information in the public interest and in the person's capacity as a journalist engaged in 'fair and accurate reporting'. The term 'fair and accurate reporting', however, was vague and subjective. The bill's explanatory memorandum makes it clear that the government's expectation has been—and presumably still is—that media organisations and journalists would consult with the government as they determined what to do with leaked information. This is presented as a necessary part of what would be required to determine where the public interest rests and to make a defence. A clear presumption is that a failure to consult and seek advice would weigh against reliance on the public interest or fair reporting defence.

As originally proposed, the bill would have a severe chilling effect on the media reporting of an unauthorised release of information relating to national security, defence, international affairs, law enforcement, public safety and, indeed, much wider aspects of public policy. Media organisations and journalists would have to weigh the likelihood of prosecution in any decision to publish leaked information. Given the prospects of expensive litigation and possible criminal penalties if a public interest defence was unsuccessful, many media organisations may be inclined towards caution on commercial and legal grounds.

Not surprisingly, these issues were a major focus of the PJCIS hearings, with media organisations making extensive submissions on the adverse impact the bill would have on freedom of the press. The outcome has been a range of recommendations and amendments that reduce and focus the scope of secrecy offences—focusing on the disclosure of and dealing in explicitly security classified information—protect people making disclosures to oversight agencies such as IGIS, the Inspector-General of Intelligence and Security, and the Ombudsman, and afford journalists and media organisations a greater measure of protection.

Most significantly, the PJCIS has recommended the adoption of the proposed government amendments to the defence for journalists, including expanding the defence to all persons engaged in reporting news, presenting current affairs or expressing editorial content in news media where the person reasonably believed that dealing with or holding the information was in the public interest. The committee also recommended that the government consider further refinements to the proposed defence in order to make it explicit that editorial support staff are covered by the defence, including legal advisers and administrative staff, and to include a defence for dealing with information for the purpose of obtaining legal advice.

These proposed changes go some way towards reducing the concern that the original version of the bill would have a chilling effect on journalism. That said, the parliament shouldn't gloss over the threshold that will be crossed. The bill, even as amended, will still make secondary disclosures of classified information an offence. Journalists and media organisations will have to very carefully weigh decisions about publishing leaked classified information, especially relating to national security or international relations. Just what is in the public interest will often be hotly contested by the government of the day, and the risk of expensive litigation—however small that might be—cannot be lightly dismissed. In that context, it is regrettable 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, we should also consider measures that would make government more transparent and assist the role of media and citizens in accessing information in accordance with law. To that end, Centre Alliance will be moving a set of amendments to the bill that are designed to improve the effectiveness of Australia's freedom of information laws to allow for more timely and efficient access to information. Whilst I acknowledge—noting that there has been a deal between Labor and Liberal—that these amendments are unlikely to gain support from the majority of senators, they are amendments that I will be pursuing.

The other major issue I'd like to highlight is the new foreign interference registration scheme to be established by the Foreign Influence Transparency Scheme Bill 2018. The explanatory memorandum notes that current Commonwealth criminal law does not contain any offences targeting conduct undertaken by a foreign government that falls short of espionage but is intended to harm Australia's national security or influence Australia's political or governmental processes. The Attorney-General's Department submitted:

The lack of criminal offences for this type of conduct has resulted in a permissive operating environment for malicious foreign actors, which Australian agencies are unable to effectively disrupt and mitigate.

The bill seeks to remedy this deficiency by introducing foreign interference offences which will criminalise certain conduct that seeks to influence the exercise of Australian democratic or political rights. Once again, these measures will be substantially improved by implementation of the PJCIS recommendations and associated amendments.

I note the PJCIS recommendation that legislation be amended to clarify that it does not affect the operation of existing provisions in the Australian Security Intelligence Organisation Act unless explicitly stated. I also note the important submissions made by the clerks of the Senate and the House of Representatives to the PJCIS concerning the Foreign Influence Transparency Scheme and the joint committee's subsequent recommendation in support of the government's proposed amendment to clarify the interaction of the bill with parliamentary privilege.

The committee recommends that the bill be amended to provide that the Foreign Influence Transparency Scheme does not apply to members of the House of Representatives or senators. The committee further recommends that the House of Representatives and Senate develop a parallel parliamentary Foreign Influence Transparency Scheme, imposing on members and senators similar transparency obligations to those in the bills but appropriately adapted for the parliamentary environment. The committee notes:

In developing that parallel scheme, the Houses should consider all conduct undertaken by Members and Senators in the course of their duties as parliamentarians, including conduct not directly related to proceedings in the Parliament.

It goes on to say:

The scheme should be administered independently within the Parliament, and include an obligation to report registrable activities undertaken on behalf of a foreign principal, or registrable arrangements with a foreign principal, appropriately adapted for the parliamentary environment, a power for the administrator to obtain information and documents, and appropriate sanctions for non-compliance.

I think it's very important that the government address these recommendations in detail before debate on this bill concludes.

That said, we should recognise that this bill will inevitably result in greater scrutiny of political activity not only by ASIO but also by the Australian Federal Police. This is inevitable by virtue of the offences that are being created, criminal offences that relate to political activities on behalf of a foreign principal. With this legislation, the AFP will investigate political activities if they reasonably suspect that those activities involve interaction with a foreign principal that is an offence under these bills. ASIO and the AFP may well be drawn into monitoring and investigating aspects of Australian political life—not on radical, violent fringes but on activities of people involved in mainstream political activities. In this context, this parliament—and, indeed, the Australian people—have an absolute assurance that those agencies are operating at every level with the highest standard of professionalism, objectivity and freedom from political bias.

As a consequence, the Centre Alliance will move, for the second time, amendments to extend the scope of scrutiny by the PJCIS to cover operational activities of the Australian intelligence agencies. I also foreshadow that I will be moving a second reading amendment to refer the amendment on sheet 8472 for consideration by the PJCIS. I note that when this amendment was last debated, on 9 May, Senator McAllister said the following:

We regret that because of their form—namely, an amendment to the current bill—Senator Patrick's proposals were not able to be fully considered and were not considered in the public hearings of the PJCIS.

I accept that criticism, and this amendment seeks to remedy it. She went on to say:

There has not been scope or time for proper consultation, nor for consideration of the operation and consequences of Senator Patrick's proposals. Given that, we are not able to support the amendment.

I hope that this time around Labor will support the amendment or, at least, have it referred to the PJCIS so that it can be considered properly. It's important to make sure that as we give our intelligence services the powers we think they need we also put in place the correct and proper checks to complement those extended powers. I agree that the PJCIS should have the opportunity to examine my amendment, given it directly relates to how they conduct their committee work. To that end, I look forward to Labor's support for my second reading amendment.

This is a long-overdue reform that is all the more important in the context of the legislation we now have before the Senate. An extension of bipartisan parliamentary oversight is essential if ASIO and the AFP are to take on responsibilities that come with this legislation. I am very much a proponent of our intelligence services, and I have a strong belief that having the comfort of parliamentary oversight of those intelligence agencies will in fact make their job easier. In the US, the UK and Canada, some of our Five Eyes partners, they absolutely accept that parliamentary oversight of intelligence operations is a necessity and is helpful.

I would like to close my remarks with reference to an observation made by the former head of the British Secret Intelligence Service, Sir Richard Dearlove. Some years ago he observed that British intelligence was 'the last assurance of our national sovereignty'. Australia's intelligence community—the dedicated men and women of ASIO, the AFP, ASIS and the other agencies—are unquestionably committed to the defence of our sovereignty and democracy. But we must never forget the old question: who guards the guardians? At the end of the day, the last assurance of our national sovereignty and, indeed, our democracy is not the security agencies but this institution, the national parliament. We are where the buck stops, and the parliament should take up that responsibility by extending its oversight role in relation to our intelligence and security agencies.