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Wednesday, 27 June 2018
Page: 4085


Senator McALLISTER (New South WalesDeputy Opposition Whip in the Senate) (11:04): Australia is an intellectually, politically and commercially open society—that is a strength, not a weakness. Over our history, our openness to people and the ideas that they bring have underpinned our economic, social and political successes as a nation. These characteristics are broadly reflected, recognised and protected in our national policy settings, including the settings for trade and economic development; elections; judicial, governmental and parliamentary decision making; communications; research and education; migration and settlement.

Openness should not cease to be a defining characteristic of Australian society. It's worth observing that the vast bulk of international influence on our open society is benign and indeed beneficial. This open characteristic is something, however, that depends on Australians continuing to have faith in the institutions that protect our democratic and open system. We need to be confident that they are robust and sufficiently resistant to malicious actors. There is a balance to be struck here. We need laws to protect our societies against those who would seek to use our very openness against us, but, by the same token, those laws cannot be allowed to stifle the exchange of ideas, people and commerce that have been so crucial to our success as a nation. We've always had laws on our books that seek to strike this balance. Offences like espionage and sabotage are not new. They are, in fact, very old. One of the key purposes of this bill is to update and refine these offences to make sure they operate as they are intended and as we need them to operate.

The bills also introduce new offences that seek to criminalise the activities of foreign actors who seek to interfere covertly with Australia's democratic processes. The bills also introduce measures that will shed light on the extent to which foreign actors influence Australian political debate. The parliament has been advised that foreign actors are actively seeking to covertly influence Australian politics. These warnings arise as part of broader advice in relation to the level and nature of espionage. We accept those warnings.

The notion of foreign influence introduces a relatively new concept into contemporary Australian political discussion. In recent times Australians have not been concerned with foreign influence per se. Specific practices or ideas associated with foreign cultures or nations have been rejected as inconsistent with our values and interests in the ordinary course of democratic debate. At other times, of course, practices and ideas associated with foreign cultures or nations have been enthusiastically adopted. We've generally judged that that has been managed in the framework of our existing institutions, but it is necessary for our laws to keep pace with the changing nature of threats we face as an open and democratic society. As has been seen in some examples overseas, doubts about the authenticity and genuineness of participants in public debate can achieve the very outcome we would seek to avoid: a closed and suspicious society. This is the basis on which Labor has sought to engage with the security challenges facing our society today, and, indeed, to engage with the bills that are before this chamber. Throughout this process, we have acted to affirm and protect the role of the media and of civil society. Journalists, charities, advocacy groups and unions are not threats. In fact, they play an important part in preserving and promoting Australia's open and democratic tradition. Our laws should reflect this. Unfortunately, when these bills were first introduced into the parliament, they did not.

The Parliamentary Joint Committee on Intelligence and Security has conducted detailed inquiries into both of these bills. In doing so, we've benefited enormously from the submissions made by civil society. They include organisations like Law Council of Australia, Australian Lawyers For Human Rights, Universities Australia, Australian Catholic Bishops Conference, Joint Media Organisations, Community Council for Australia, Australian Major Performing Arts Group, Australian Conservation Foundation, The Pew Charitable Trusts, Australian Council for International Development, Australian Council of Trade Unions and Multicultural Communities Council of NSW. That is just a sample. There are too many who submitted to name all of them. We received hundreds of submissions and we took public evidence through the first six months of this year. I am so grateful for all of the contributions that came from civil society and, indeed, from Australian businesses.

The submissions received by the committee made it clear that both of these bills were deeply flawed on first presentation. They contained numerous drafting errors, significant overreach and inadequate safeguards. There was no recognition of the unique and important role played by media in civil society. In response, the committee has made more than 100 recommendations for amendments across the two bills. The government have accepted all of these recommendations, and I thank them for their consideration of the committee's recommendations.

The amendments proposed to the espionage and foreign interference bill, particularly to schedule 2 of the bill, were inquired into the by the PJCIS. Submitters to the PJCIS made supplementary submissions on the March amendments, and I would say to other senators that they may wish to examine the evidence provided both on the initial bills and also on the evidence provided to the committee on the amendments. On the further amendments that are before us today, the amended bill responds to the recommendations of the committee and we are satisfied that these amendments implement the PJCIS recommendations.

It is fair to say that the bills presently before this chamber are not the same as the bills that were first introduced. They do a far better job at protecting our democratic institutions without burdening them. I want to briefly address some of the key improvements that have been made to the bill as a result of the committee's recommendations and explain how they safeguard journalists, advocacy groups, NGOs, unions and, ultimately, and the openness of our society.

In relation to journalists, I want to make a few remarks, because they have been the subject of some debate already this morning. The espionage and foreign interference bill includes updated secrecy provisions to protect Australia against espionage efforts by foreign government principals. These include offences relating to theft of trade secrets. I recognise the potential tension between these offences and the proper role of the media. There is a quote ascribed to almost a dozen different 20th century media proprietors and journalists—who knows who actually said it—that 'News is something that someone wants to suppress.' Through the PJCIS process, Labor has ensured that there are proper exemptions for journalists and others who are legitimately engaged in the process of reporting the news and commenting on current events, and I thank all members of the committee for their interest in these issues.

In relation to advocacy groups, I do observe that this government has spent the last few years trying to curtail the ability of charities to raise their voice and make a difference—and I've spoken about it in this chamber before. Sometimes it seems as though the government thinks that the only role for charities should be to provide services that the government can't be bothered to provide. If people have that view they should join the Liberal Party and raise it at their local branch. This view of charities and NGOs is wrong and dangerous. Civil society plays a unique and important role in public debate, and we need to distinguish charities from other advocates in public debate. It's true that there's a role for everybody in public debate—industry associations, peak bodies, business—and it is important that we hear the voices of those who may be affected by a particular decision or policy. But their role usually is to advance their members' interests or their own interests. There should be a place in our public discourse for people who aren't motivated by self-interest but instead by their vision of what we can and should be. There should be a role for civil society.

Through the PJCIS process, we have sought to protect the role of civil society. Charities are already subject to significant regulation around their funding and activities. Given this, charities will be exempted from having to register under the Foreign Influence and Transparency Scheme where they are making routine representations in accordance with their respective purposes. The charities I have spoken to have been overwhelmingly positive about this change. This change includes not only advocacy groups but also arts and cultural groups that may have been caught up in the scheme as previously drafted.

I finally want to speak about peaceful protest. The espionage and foreign interference bill includes offences regarding sabotage. We have always had sabotage offences on our books, and this bill clarifies their operation. It is simply not correct that these offences criminalise peaceful protest. These provisions are simply not capable of capturing the ordinary activities of citizens involved in ordinary acts of process. The crucial point is that these offences require intent. A person needs to have the intent or be reckless as to whether Australia's national security will be prejudiced. A protest at a coal port involves people who are protesting to stop coal exports. That is their intent. They do not intend to prejudice Australia's national security. Whether you agree with the protest methods or not, the protesters do not possess the requisite mental intent, the requisite mental element, to make out these offences.

There have been concerns raised in some quarters that the espionage offences are capable of criminalising the disclosure of alleged breaches of law by Australia or another country. The example sometimes given is an NGO reporting to a UN body that Australia has breached its international law and human rights obligations. Again, these offences require a mental element. They need to cause harm or damage to Australia, not merely embarrassment. These concerns are not justified.

Labor and I are proud to support the exemption for unions from the operation of the register. The trade union movement has always operated internationally, and it is appropriate that their international relationships are legitimised and accepted. I have run through a series of issues. If Greens senators have a different view about the operation of the legislation, they need to particularise them. Greens senators ought to describe exactly how the legislation catches the circumstances that they assert are caught. It is not enough to repeat over and over again that certain kinds of activities will be caught when a reading of the legislation suggests that they won't be.

I will conclude by saying that we are not served at all by those who resort to hyperbole. Charges of totalitarianism or fascism only serve to weaken the force of those words.. We should reserve the use of those words to condemn situations that truly deserve it. These laws, and indeed all our laws, operate in the context of independent courts, freedom of expression and open parliamentary democracy. It is true that, if you take away those three things, any law can be used as a tool of oppression. But those circumstances are not our circumstances, and it is precisely why we have engaged with these policy questions. We seek to protect the integrity of our democratic institutions and the openness of our society.