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Freedom of Speech Legislation Amendment (Security) Bill 2018

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2016-2017-2018

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

Freedom of Speech Legislation Amendment (Security) BILL 2018

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Leyonhjelm)



Freedom of Speech Legislation Amendment (Security) Bill 2018

 

OUTLINE

Free speech is fundamental to a free and prosperous society.  All Australians, regardless of their political inclinations, benefit from being able to freely express their views.  The process of arriving at the truth relies on debate, which relies upon free speech. 

The right to free speech is not a creation of government, but it can be thwarted by government.  Legislative restraints on free speech should only be considered to protect other freedoms, and must be specific rather than vague.

The Freedom of Speech Legislation Amendment (Security) Bill 2018 is part of a suite of four bills that amount to a comprehensive defence of free speech in Commonwealth law.  The other bills in the suite are the:

·          Freedom of Speech Legislation Amendment (Censorship) Bill 2018 ,

·          Freedom of Speech Legislation Amendment (Insult and Offend) Bill 2018 , and

·          Racial Discrimination Law Amendment (Free Speech) Bill 2016 .

The Freedom of Speech Legislation Amendment (Security) Bill 2018 removes restrictions on speech in national security legislation that are unnecessary to ensure the security of Australians.

Journalists and members of the general public should not be treated as criminals for reporting on or discussing the operations of security agencies if those communications do not endanger health or safety.  If security agencies want certain operations to be secret, it is their responsibility to keep those operations secret.  Public communication about secret operations indicates a failure of security agencies, not criminal activity by the public or media.

National security legislation should not criminalise disclosures by the staff and associates of security agencies if those disclosures do not endanger anyone’s health or safety.  Such disclosures should be dealt with by management, potentially as a breach of contract and grounds for dismissal.  (Note: legislation that criminalises the disclosure of data about citizens which has been obtained through the government’s coercive powers should remain.)

People detained under preventative detention orders are not under charge and may not be suspected of any crime.  Such people should not be subject to criminal conviction and enduring imprisonment for communicating with someone with whom they were granted access while detained.

Given there are already offences of inciting terrorism and genocide (i.e. speech with an intention that terrorism or genocide be committed), separate offences of advocating terrorism and genocide only serve to criminalise other speech.  Such offences may reduce the expression of terrorist and genocidal views, but are unlikely to reduce the prevalence of such views.  Allowing such views to be expressed allows for rebuttal, and can assist security agencies to identify people holding terrorist and genocidal views.



 

This Bill applies these principles to:

·          disclosure offences with respect to:

o    special intelligence operations, delayed notification search warrants, integrity testing operations, preventative detention orders (Part 1 of Schedule 1); and

o    controlled operations (Parts 2 and 3 of Schedule 1); and

·          provisions concerning the advocacy of terrorism and genocide (Part 4 of Schedule 1).

 

NOTES ON CLAUSES

Clause 1: Short Title

1.           This clause provides for the Bill, when enacted, to be cited as the Freedom of Speech Legislation Amendment (Security) Act 2018 .

Clause 2: Commencement

2.           This clause provides that the Bill commences on the day after Royal Assent, other than Parts 2 and 3 of Schedule 1, which relate to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .

3.                   Part 2 of Schedule 1 consists of provisions relating to controlled operations that duplicate provisions in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .

a.        If the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 has commenced, then Part 2 of Schedule 1 does not commence.

b.       Otherwise, Part 2 of Schedule 1 commences on the day after Royal Assent.

4.                   Part 3 of Schedule 1 consists of provisions relating to controlled operations that build on provisions in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .

a.        If the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 does not commence, then Part 3 of Schedule 1 does not commence either.

b.       If the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 commences, then Part 3 of Schedule 1 commences immediately thereafter, or on the day after Royal Assent, whichever is later.

5.                   This Bill’s inclusion of both Part 2 and Part 3 of Schedule 1 means that the desired construction of the disclosure offences with respect to controlled operations will be achieved regardless of the commencement of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .

Clause 3: Schedules

6.                   Clause 3 provides that any legislation specified in a schedule to the Bill is amended or repealed as set out in the applicable items in the schedule and that any other item in a schedule has effect according to its terms.



 

Schedule 1 — Amendments

Part 1 — Main amendments

Australian Security Intelligence Organisation Act 1979

Items 1 to 8 - Section 35P

7.                   Items 1 to 8 amend the disclosure offence regime with respect to special intelligence operations.

Item 1 - Subsections 35P(1) and (1A)

8.                   Under current law, there is a basic offence of an entrusted person (which, in this context, is an ASIO employee or affiliate, or a person who has entered into an arrangement with ASIO) disclosing information relating to a special intelligence operation.  This basic offence involves no element relating to endangering human health or safety or the prejudicing of a special intelligence operation.

9.                   There should be no offence in the absence of such harm.  Accordingly, this item repeals this basic offence.

Item 2 - Subparagraphs 35P(1B)(e)(i) and (ii)

10.               Under current law, there is an aggravated offence of an entrusted person disclosing information relating to a special intelligence operation.  The offence applies where:

a.        the discloser intends to endanger the health or safety of any person;

b.       the disclosure will endanger the health or safety of any person and the discloser is reckless as to this risk;

c.        the discloser intends to prejudice the effective conduct of a special intelligence operation; or

d.       the disclosure will prejudice the effective conduct of a special intelligence operation and the discloser is reckless as to this risk.

11.               There should be no offence in the absence of harms with respect to human health or safety.  Accordingly, this item limits this offence to the first two circumstances listed above.  As such, circumstances where the discloser merely intends to prejudice the effective conduct of a special intelligence operation, or where the disclosure will merely prejudice the effective conduct of a special intelligence operation, will no longer be captured by the offence so long as prejudicing the effective conduct of a special intelligence operation is not associated with endangering the health or safety of any person.

Item 3 - Paragraph 35P(2)(c)

12.               Under current law, there is a basic offence of a person (who is not necessarily an entrusted person, and so includes journalists) communicating information relating to a special intelligence operation.  The offence applies where the disclosure will:

a.        endanger the health or safety of any person and the discloser is reckless as to this risk; or

b.       prejudice the effective conduct of a special intelligence operation and the discloser is reckless as to this risk.

13.               There should be no offence in the absence of harms with respect to human health or safety.  Accordingly, this item limits this offence to the first circumstance listed above.  As such, circumstances where the communication prejudices the effective conduct of a special intelligence operation will no longer be captured by the offence so long as it is not associated with endangering the health or safety of any person.

Item 4 - Subparagraphs 35P(2A)(c)(i) and (ii)

14.               Under current law, there is an aggravated offence of a person (who is not necessarily an entrusted person) communicating information relating to a special intelligence operation.  The offence applies where the person:

a.        intends to endanger the health or safety of any person;

b.       knows that the disclosure will endanger the health or safety of any person;

c.        intends to prejudice the effective conduct of a special intelligence operation ; or

d.       knows that the disclosure will prejudice the effective conduct of a special intelligence operation.

15.               There should be no offence in the absence of harms with respect to human health or safety.  Accordingly, this item limits this offence to the first two circumstances listed above.  As such, circumstances where the communicator intends to prejudice the effective conduct of a special intelligence operation, or knows that the communication will prejudice the effective conduct of a special intelligence operation, will no longer be captured by the offence, so long as such intent or knowledge does not extend to intent or knowledge regarding the health or safety of any person being endangered.

Item 5 - Subsection 35P(3)

16.               This item achieves some renumbering consequential to item 1.

Item 6 - After paragraph 35P(3)(g)

17.               Subsection 35P(3) provides exceptions to the offences of communicating information relating to a special intelligence operation.

18.               This item adds two further exceptions. 

19.               Firstly, the offences will not apply if the communication is of information that had already been communicated, or made available, to the public.  Criminalising the discussion of information that is already public represents an excessive and oppressive restriction of free speech. 

20.               Secondly, the offences will not apply if the communication is made reasonably, in good faith and in the public interest. Criminalising communications that are reasonable, in good faith and in the public interest harms the public interest, and requires the judiciary to come to unreasonable and misanthropic judgments.

21.               A defendant who wishes to rely on any of these exceptions bears an evidential burden in relation to the exception.

Item 7 - Subsection 35P(3A)

22.               The existing subsection 35P(3A) provides an exception to the offences of a person (who is not necessarily an entrusted person) communicating information relating to a special intelligence operation.  The exception means the offences do not apply if the information is already public, the communicator was not involved in the prior publication and the communicator had a reasonable belief that the communication will not endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

23.               This item repeals the existing subsection 35P(3A) because item 6 makes the existing subsection 35P(3A) redundant.  Item 6 provides a broader exception: it applies to communications both by entrusted persons and by persons who are not necessarily entrusted persons, and applies unconditionally to information that is already public.

24.               This item inserts a new subsection 35P(3A).  It provides a further exception to all of the offences of communicating information relating to a special intelligence operation.

25.               The exception provides that the offences will not apply if the information concerns corruption or misconduct, the special intelligence operation is over, a senior position holder is notified at least 24 hours before the communication, and the communication does not identify a participant in the operation (e.g. a secret agent).  A senior position holder is an Australian Security Intelligence Organisation employee or affiliate in an SES or Coordinator position.

26.               By providing an exception specifically for the communication of information concerning corruption or misconduct, this item complements item 6, which provides an exception with respect to the more imprecise concepts of reasonableness, good faith and the public interest.

  Item 8 - Subsection 35P(4)

27.               This item achieves some renumbering consequential to item 1.



 

Crimes Act 1914

Item 9 - Subsection 3(1)

28.               This item inserts a definition of entrusted person applicable to three disclosure offence provisions set out in the Crimes Act 1914

29.               An entrusted person in the context of delayed notification search warrants is defined as per section 3ZZAC (see item 10). 

30.               An entrusted person in the context of controlled operations is defined as per section 15GC (see item 33, which replicates item 1 of Schedule 3 of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 ). 

31.               An entrusted person in the context of an integrity testing operation is defined as per section 15JC (see item 15).

Items 10 to 14 - Sections 3ZZAC and 3ZZHA

32.               Items 10 to 14 amend the disclosure offence regime with respect to delayed notification search warrants. 

33.               Delayed notification search warrants allow the Australian Federal Police to search premises without the occupier’s knowledge.  The occupier is eventually informed, up to six months after the search.  Neighbours who witness such a search face imprisonment if they communicate what they saw within this six month period, even if the search occurs in broad daylight and the neighbours witness the search from their own property or from public space.  Journalists also face imprisonment if they report on such a search within the six month period.

Item 10 - Sections 3ZZAC

34.               This item introduces the concept of entrusted persons in the context of delayed notification search warrants.  The item creates a definition of entrusted person that includes an officer of an agency involved with seeking or executing powers in relation to a delayed notification search warrant. 

35.               This definition of an entrusted person in the context of delayed notification search warrants also includes various people listed in item 33 (which replicates item 1 of Schedule 3 of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 ) — people who are also to be considered to be entrusted persons in the context of controlled operations.  These people include an officer within the meaning of the Ombudsman Act 1976 , and various people connected with the Australian Federal Police, a State or Territory police force, the Home Affairs Department, the Australian Crime Commission, the Australian Commission for Law Enforcement Integrity, and associated agencies.

Item 11 - Subsection 3ZZHA(1)

36.               Currently subsection 3ZZHA(1) establishes an offence, punishable by up to two years’ imprisonment of communicating information relating to a delayed notification search warrant.  This offence is not limited to circumstances that endanger human health or safety, and does not distinguish disclosures by entrusted persons from communications by others.  Accordingly, this item repeals subsection 3ZZHA(1).

37.               In its place this item inserts four subsections to establish three narrowly-focused offences. 

38.               New subsection 3ZZHA(1) establishes an offence, punishable by up to two years’ imprisonment, of an entrusted person disclosing information relating to a delayed notification search warrant where the discloser intends to endanger the health or safety of any person, or where the disclosure will endanger the health or safety of any person and the discloser is reckless as to the risk of this.

39.               Subsection 3ZZHA(1A) establishes that the question of whether the discloser is or was an entrusted person is a matter of strict liability, so it does not matter if the entrusted person did not know that he or she was an entrusted person and was not reckless as to the risk of being an entrusted person.  This maintains consistency with the approach to entrusted persons in existing law and proposed by the Government in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .  The adoption of this approach here demonstrates that this bill is about protecting free speech, rather than a broader promotion of civil liberties in national security legislation.

40.               Subsection 3ZZHA(1B) establishes an offence, punishable by up to one years’ imprisonment, of a person (who is not necessarily an entrusted person) communicating information relating to a delayed notification search warrant where the communication will endanger the health or safety of any person and the communicator is reckless as to the risk of this.

41.               Subsection 3ZZHA(1C) establishes an offence, punishable by up to two years’ imprisonment, of a person (who is not necessarily an entrusted person) communicating information relating to a delayed notification search warrant with an intention or knowledge that the communication endangers the health or safety of any person.

Item 12 - Subsection 3ZZHA(2)

42.               This item achieves some renumbering consequential to item 11.

Item 13 - After paragraph subsection 3ZZHA(2)(f)

43.               Under current law, subsection 3ZZHA(2) provides exceptions to the offences of communicating information relating to a delayed notification search warrant.  These apply even if the communication endangers the health or safety of any person.

44.               This item adds two further exceptions. 

45.               Firstly, the offences will not apply if the communication is of information that had already been communicated, or made available, to the public.  Criminalising the discussion of information that is already public represents an excessive and oppressive restriction of free speech.

46.               Secondly, the offences will not apply if the communication is made reasonably, in good faith and in the public interest. Criminalising communications that are reasonable, in good faith and in the public interest harms the public interest, and requires the judiciary to come to unreasonable and misanthropic judgments.

47.               A defendant who wishes to rely on any of these exceptions bears an evidential burden in relation to the exception.

Item 14 - At the end of section 3ZZHA

48.               This item inserts subsection 3ZZHA(3).  It provides a further exception to the offences of communicating information relating to a delayed notification search warrant. 

49.               The exception provides that the offences will not apply if the information concerns corruption or misconduct, the delayed notification search warrant has expired, a senior executive employee of the Australian Federal Police is notified at least 24 hours before the communication, and the communication does not identify people executing or assisting with the warrant.

50.               By providing an exception specifically for the communication of information concerning corruption or misconduct, this item complements item 13, which provides an exception with respect to the more imprecise concepts of reasonableness, good faith and the public interest.

Items 15 to 20 - Section 15JC, 15JQ and 15JR

51.               Items 15 to 20 amend the disclosure offence regime with respect to integrity testing operations. 

52.               Integrity testing operations are sting operations that law enforcement bodies carry out on their own staff.

Item 15 - Section 15JC

53.               This item introduces the concept of entrusted persons in the context of integrity testing operations.  It defines an entrusted person so as to include a participant in an integrity testing operation. 

54.               An entrusted person in the context of an integrity testing operation also includes various people listed in item 33 (which replicates item 1 of Schedule 3 of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 ) — people who are also to be considered to be entrusted persons in the context of controlled operations.  These people include an officer within the meaning of the Ombudsman Act 1976 , and various people connected with the Australian Federal Police, a State or Territory police force, the Home Affairs Department, the Australian Crime Commission, the Australian Commission for Law Enforcement Integrity, and associated agencies.

Items 16 and 17 - Section 15JQ and subsection 15JR(1)

55.               Under current law, section 15JQ establishes an offence, punishable by up to two years’ imprisonment, of communicating information relating to an integrity testing operation. This offence is not limited to circumstances that endanger human health or safety.

56.               Under current law, subsection 15JR(1) establishes an offence, punishable by up to ten years’ imprisonment, of communicating information relating to an integrity testing operation where:

a.        the communicator intends to endanger the health or safety of any person;

b.       the communication will endanger the health or safety of any person and the communicator is reckless as to the risk of this;

c.        the communicator intends to prejudice the effective conduct of an integrity testing operation; or

d.       the communication will prejudice the effective conduct of an integrity testing operation and the communicator is reckless as to the risk of this.

57.               There should be no offence in the absence of harms with respect to human health or safety.  Accordingly, item 16 repeals section 15JQ and item 17 repeals subsection 15JR(1).

58.               In place of these offences, item 17 inserts four subsections into section 15JR to establish three narrowly-focused offences.  These offences require harms with respect to human health or safety, and distinguish disclosures by entrusted persons from communications by others.   

59.               New subsection 15JR(1) establishes an offence, punishable by up to ten years’ imprisonment, of an entrusted person disclosing information relating to an integrity testing operation where the discloser intends to endanger the health or safety of any person, or where the disclosure will endanger the health or safety of any person and the discloser is reckless as to the risk of this. 

60.               Subsection 15JR(1A) establishes that the question of whether the discloser is or was an entrusted person is a matter of strict liability, so it does not matter if the entrusted person did not know that he or she was an entrusted person and was not reckless as to the risk of being an entrusted person.  This maintains consistency with the approach to entrusted persons in existing law and proposed by the Government in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .  The adoption of this approach here demonstrates that this bill is about protecting free speech, rather than a broader promotion of civil liberties in national security legislation.

61.               Subsection 15JR(1B) establishes an offence, punishable by up to two years’ imprisonment, of a person (who is not necessarily an entrusted person) communicating information relating to an integrity testing operation where the communication will endanger the health or safety of any person, and the communicator is reckless as to the risk of this.

62.               Subsection 15JR(1C) establishes an offence, punishable by up to ten years’ imprisonment, of a person (who is not necessarily an entrusted person) communicating information relating to an integrity testing operation with an intention or knowledge that the communication endangers the health or safety of any person.

63.               Circumstances where the communicator merely intends to prejudice the effective conduct of an integrity testing operation, or where the communication will merely prejudice the effective conduct of a special intelligence operation, will no longer be captured by offences, so long as prejudicing the effective conduct of an integrity testing operation is not associated with endangering the health or safety of any person. However it may be contrary to terms of employment and grounds for disciplinary action.

Item 18 - Subsections 15JR(2) and (3)

64.               This item achieves some renumbering consequential to item 17.

Item 19 - After paragraph 15JR(2)(g)

65.               Under current law, subsection 15JR(2) provides exceptions to the offences of communicating information relating to an integrity testing operation.  These apply even if the communication endangers the health or safety of any person.

66.               This item adds two further exceptions. 

67.               Firstly, the offences will not apply if the communication is of information that had already been communicated, or made available, to the public.  Criminalising the discussion of information that is already public represents an excessive and oppressive restriction of free speech.

68.               Secondly, the offences will not apply if the communication is made reasonably, in good faith and in the public interest. Criminalising communications that are reasonable, in good faith and in the public interest harms the public interest, and requires the judiciary to come to unreasonable and misanthropic judgments.

69.               A defendant who wishes to rely on any of these exceptions bears an evidential burden in relation to the exception.

Item 20 - At the end of section 15JR

70.               This item inserts subsection 15JR(4).  It provides a further exception to the offences of communicating information relating to an integrity testing operation. 

71.               The exception provides that the offences will not apply if the information concerns corruption or misconduct, the authority for the integrity testing operation is no longer in effect, an SES employee of the Australian Crime Commission, Australian Federal Police, Home Affairs Department or Australian Commission for Law Enforcement Integrity is notified at least 24 hours before the communication, and the communication does not identify participants in the integrity testing operation.

72.               By providing an exception specifically for the communication of information concerning corruption or misconduct, but not limited to communications to the Integrity Commissioner, this item complements:

a.        subsection 15JR(3), which provides an exception for communications to the Integrity Commissioner of information concerning corruption or misconduct; and

b.       item 19, which provides an exception with respect to the more imprecise concepts of reasonableness, good faith and the public interest.



 

Criminal Code Act 1995

Items 21 to 32 - Sections 105.39 and 105.41 of the Criminal Code

73.               Items 21 to 32 amend the disclosure offence regime with respect to preventative detention orders.

Item 21 - At the end of section 105.39 of the Criminal Code

74.               Under current law, section 105.39 states that a detainee who is under 18 years of age or incapable of managing his or her affairs is entitled to have contact with parents or guardians.  Subsection 105.41(3) establishes an offence, punishable by up to five years’ imprisonment, of parents or guardians communicating that their child is being detained, or communicating information given by the child during their contact.

75.               This item inserts into section 105.39 an obligation on the police officer who is detaining the child to inform the parents or guardians about the existence of this offence prior to the parents or guardians having contact with the child. 

76.               This would mean that parents and guardians who choose to proceed with having contact with their child would do so in the knowledge that their ‘choice’ comes with a restraint on their speech.

Item 22 - Subsection 105.41(1) of the Criminal Code

77.               Under current law, subsection 105.35(1) states that a detainee is entitled to let a family member (and certain other people) know by telephone, fax or email that the detainee ‘is safe but is not able to be contacted for the time being’.  Subsection 105.35(2) states that this entitlement is not an entitlement to let the family member know that a preventative detention order has been made, that the detainee is being detained, or the period of detention. 

78.               Current subsection 105.41(1) establishes an offence, punishable by up to five years’ imprisonment, of a detainee communicating to someone that the detainee is being detained, that the detainee is subject to a preventative detention order, or the period of detention. 

79.               This offence is an unjustified violation of free speech. 

a.        Letting a family member know that the detainee is ‘safe but is not able to be contacted for the time being’ is likely to lead the family member to suspect that the detainee is being detained under a preventative detention order anyway.

b.       It is unclear what additional risk to national security arises from a detainee going beyond communicating the detainee’s inability to be contacted by communicating that the detainee is being detained.  Nonetheless, if there is a significant additional risk to national security, then this risk would be better avoided by denying the detainee live and direct (and hence ‘uncensorable’) contact with a family member, rather than attempting to deter a detainee from communicating such basic information as the fact of the detainee’s detention. 

80.               The offence is a particularly cruel violation of free speech, amounting to entrapment by offering a distressed detainee contact with a family member while maintaining an offence of the detainee telling the family member that the detainee is being detained.  It should be noted that the detainees in question are not under charge and may not be suspected of any crime.

81.               Accordingly, this item repeals subsection 105.41(1).

Item 23 - After paragraph 105.41(2)(d) of the Criminal Code

82.               Current subsection 105.41(2) establishes an offence, punishable by up to five years’ imprisonment, of lawyers communicating to someone that their client is being detained.

83.               This item limits this offence to instances where the lawyer has an intention or knowledge that the communication endangers the health or safety of any person.

Item 24 - Paragraph 105.41(3)(c) of the Criminal Code

84.               As noted above, current subsection 105.41(3) establishes an offence, punishable by up to five years’ imprisonment, of parents or guardians communicating that their child is being detained, or communicating information given by the child during their contact. 

85.               Paragraph 105.41(3)(c) excludes from the offence communications by a parent or guardian to the child’s other parent or guardian, provided that the other parent or guardian is not named in a prohibited contact order. 

86.               However, there is no obligation on authorities to advise a parent or guardian that the child’s other parent or guardian is named in a prohibited contact order.  Thus the provision outlaws conduct by a person that the person could not possibly know is outlawed.   

87.               Accordingly, this item amends paragraph 105.41(3)(c) so that the offence only covers communications where the communicating parent or guardian has reason to believe that the recipient of the information is not a parent or guardian of the child or is named in a prohibited contact order. 

Item 25 - After paragraph 105.41(3)(e) of the Criminal Code

88.               As noted above, current subsection 105.41(3) establishes an offence, punishable by up to five years’ imprisonment, of parents or guardians communicating that their child is being detained, or communicating information given by the child during their contact.

89.               This item limits this offence to instances where the parent or guardian has an intention or knowledge that the communication endangers the health or safety of any person.

Item 26 - Subsections 105.41(4A) of the Criminal Code

90.               Under current law, subsection 105.41(4A) establishes an offence, punishable by up to five years’ imprisonment, of parents or guardians failing to inform a senior Australian Federal Police member that they intend to communicate to the other parent or guardian that their child is being detained. 

91.               There should be no duty to inform the police of an intention to undertake legal communications. 

92.               Accordingly, this item repeals subsection 105.41(4A).

Items 27 and 28 - Subsection 105.41(4B) of the Criminal Code

93.               Under current law, subsection 105.41(4B) provides that, if a parent or guardian informs a senior Australian Federal Police member of an intention to communicate to the child’s other parent or guardian that their child is being detained, the senior Australian Federal Police member may give information to the parent or guardian from which it could be surmised that such communication would be illegal. 

94.               Items 27 and 28 amend subsection 105.41(4B) so that the senior Australian Federal Police member must give this information to the parent or guardian if the proposed communication by the parent or guardian would be illegal.

Item 29 - After paragraph 105.41(5)(c) of the Criminal Code

95.               Under current law, subsection 105.41(5) establishes an offence, punishable by up to five years’ imprisonment, of an interpreter communicating that a person is being detained, or communicating information obtained while serving as an interpreter for a detainee.

96.               This item limits this offence to instances where the interpreter has an intention or knowledge that the communication endangers the health or safety of any person.

Item 30 - Subparagraph 105.41(6)(b)(i) of the Criminal Code

97.               This item achieves some renumbering consequential to items 22 and 32.

Item 31 - After paragraph 105.41(6)(d) of the Criminal Code

98.               Under current law, subsection 105.41(6) establishes an offence, punishable by up to five years’ imprisonment, of someone recommunicating that a person is being detained, or recommunicating information the detainee communicated while being detained, in instances where the original communication was illegal.  This offence covers a journalist reporting information originally communicated to the journalist by, for instance, the detainee’s lawyer, parent, guardian or interpreter.  

99.               This item limits the offence to instances where the person who recommunicates information, such as a journalist, has an intention or knowledge that the recommunication endangers the health or safety of any person.

  Item 32 - After subsection 105.41(6) of the Criminal Code

100.           This item inserts a new offence that replicates the ‘recommunication’ offence as amended in item 31 above.  However, the new offence involves a lower maximum penalty of two years’ imprisonment and a lower threshold with respect to endangering the health or safety of any person.  Namely, the new offence applies if the recommunication endangers the health or safety of any person and the person who does the recommunication is reckless as to the risk of this. 

101.           The net effect of this new offence and the amendments of item 31 is that, instead of there being one ‘recommunication’ offence punishable by up to five years’ imprisonment, there will be two offences that apply only in circumstances relating to the endangering of health or safety, with maximum penalties no greater than what currently applies.

102.           Item 32 also inserts two exceptions to each of the offences of communicating information relating to preventative detention orders. 

103.           Firstly, the offences will not apply if the communication is of information that had already been communicated, or made available, to the public.  Criminalising the discussion of information that is already public represents an excessive and oppressive restriction of free speech. 

104.           Secondly, the offences will not apply if the communication is made reasonably, in good faith and in the public interest. Criminalising communications that are reasonable, in good faith and in the public interest harms the public interest, and requires the judiciary to come to unreasonable and misanthropic judgments.

105.           A defendant who wishes to rely on any of these exceptions bears an evidential burden in relation to the exception.



 

Part 2 — Amendments if Schedule 3 to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 not yet commenced

Crimes Act 1914

Items 33 to 42 - Sections 15GC, 15HK, 15HL and 15HV

106.           Items 33 to 42 amend the disclosure offence regime with respect to controlled operations, which are undercover operations. 

107.           These amendments are based on the law at the time of introduction, and align with a number of similarly-motivated amendments proposed in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .  Accordingly, if the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 has commenced, then these amendments do not commence.  Instead, the amendments in Part 3 of Schedule 1 commence, which are based on an assumption that the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 has commenced.

108.           This Bill’s inclusion of both Part 2 and Part 3 of Schedule 1 means that the desired construction of the disclosure offences with respect to controlled operations will be achieved regardless of the commencement of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .

Item 33 - Section 15GC

109.           This item expands the definition of entrusted person in the context of controlled operations, so as to include a participant in a controlled operation, an officer within the meaning of the Ombudsman Act 1976 , and various people connected with the Australian Federal Police, a State or Territory police force, the Home Affairs Department, the Australian Crime Commission, the Australian Commission for Law Enforcement Integrity, and associated agencies.

  Items 34 and 41 - Sections 15HK and 15HL

110.           Under current law, subsection 15HK(1) establishes an offence, punishable by up to two years’ imprisonment, of communicating information relating to a controlled operation.  This offence is not limited to circumstances that endanger human health or safety.

111.           Under current law, section 15HL establishes an offence, punishable by up to ten years’ imprisonment, of communicating information relating to a controlled operation where:

a.        the communicator intends to endanger the health or safety of any person;

b.       the communication will endanger the health or safety of any person and the discloser is reckless as to the risk of this;

c.        the communicator intends to prejudice the effective conduct of a controlled operation;  or

d.       the communication will prejudice the effective conduct of a controlled operation, and the discloser is reckless as to the risk of this. 

112.           There should be no offence in the absence of harms with respect to human health or safety.  Accordingly, item 34 repeals subsection 15HK(1) and item 41 repeals section 15HL.

113.           In place of these offences, item 34 inserts four subsections into section 15HK to establish three narrowly-focused offences.  These offences require harms with respect to human health or safety, and distinguish disclosures by entrusted persons from communications by others.  

114.           New subsection 15HK(1) establishes an offence, punishable by up to ten years’ imprisonment, of an entrusted person disclosing information relating to a controlled operation where the discloser intends to endanger the health or safety of any person, or where the disclosure will endanger the health or safety of any person and the discloser is reckless as to the risk of this.

115.           Subsection 15HK(1A) establishes that the question of whether the discloser is or was an entrusted person is a matter of strict liability, so it does not matter if the entrusted person did not know that he or she was an entrusted person and was not reckless as to the risk of being an entrusted person.  This maintains consistency with the approach to entrusted persons in existing law and proposed by the Government in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .  The adoption of this approach here demonstrates that this bill is about protecting free speech, rather than a broader promotion of civil liberties in national security legislation.

116.           Subsection 15HK(1B) establishes an offence, punishable by up to two years’ imprisonment, of a person (who is not necessarily an entrusted person) communicating information relating to a controlled operation where the communication will endanger the health or safety of any person and the communicator is reckless as to the risk of this.

117.           Subsection 15HK(1C) establishes an offence, punishable by up to ten years’ imprisonment, of a person (who is not necessarily an entrusted person) communicating information relating to a controlled operation with an intention or knowledge that the communication endangers the health or safety of any person.

118.           Circumstances where the communicator merely intends to prejudice the effective conduct of a controlled operation, or where the communication will merely prejudice the effective conduct of a controlled operation, will no longer be captured by offences, so long as prejudicing the effective conduct of a controlled operation is not associated with endangering the health or safety of any person. Such communication may nonetheless be subject to a condition of employment.

Items 35, 37 to 39, and 42 - Sections 15HK and 15HL

119.           These items achieve some renumbering consequential to items 34, 36 and 41.

Item 36 - At the end of subsection 15HK(2)

120.           Under current law, subsection 15HK(2) provides exceptions to the offences of communicating information relating to a controlled operation.  These apply even if the communication endangers the health or safety of any person.

121.           This item adds two further exceptions. 

122.           Firstly, the offences will not apply if the communication is of information that had already been communicated, or made available, to the public.  Criminalising the discussion of information that is already public represents an excessive and oppressive restriction of free speech.

123.           Secondly, the offences will not apply if the communication is made reasonably, in good faith and in the public interest. Criminalising communications that are reasonable, in good faith and in the public interest harms the public interest, and requires the judiciary to come to unreasonable and misanthropic judgments.

124.           A defendant who wishes to rely on any of these exceptions bears an evidential burden in relation to the exception.

Item 40 - At the end of section 15HK

125.           This item inserts subsection 15HK(4).  It provides a further exception to all of the offences of communicating information relating to a controlled operation. 

126.           The exception provides that the offences will not apply if the information concerns corruption or misconduct, the authority for the controlled operation is no longer in effect, a senior executive employee of the Australian Federal Police or an SES employee in the Australian Crime Commission or Australian Commission for Law Enforcement Integrity is notified at least 24 hours before the communication, and the communication does not identify participants in the controlled operation (e.g. undercover officers).

127.           By providing an exception specifically for the communication of information concerning corruption or misconduct, this item complements item 36, which provides an exception with respect to the more imprecise concepts of reasonableness, good faith and the public interest.



 

Part 3 — Amendments if Schedule 3 to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 commences

Crimes Act 1914

Items 43 to 50 - Section 15HK

128.           Items 43 to 50 amend the disclosure offence regime with respect to controlled operations, as amended by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017

129.           These amendments are based on an assumption that the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 has commenced.     Accordingly, if the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 has not commenced, then these amendments do not commence.  Instead, the amendments in Part 2 of Schedule 1 commence.

130.           This Bill’s inclusion of both Part 2 and Part 3 of Schedule 1 means that the desired construction of the disclosure offences with respect to controlled operations will be achieved regardless of the commencement of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .

Item 43 - Subsections 15HK(1) and 15HK(1A)

131.           If the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 commences, there will be an offence, punishable by up to two years’ imprisonment, of an entrusted person disclosing information relating to a controlled operation.  This offence will involve no element relating to human health or safety being endangered or the effective conduct of a special intelligence operation being prejudiced.

132.           There should be no offence in the absence of such harm.  Accordingly, this item will repeal such an offence.

Items 44 to 46 - Subsections 15HK(1B), 15HK(1D) and 15HK(1E)

133.           If the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 commences, there will be offences of communicating information relating to a controlled operation where:

a.        the communicator intends to endanger the health or safety of any person;

b.       the communicator knows that the communication will endanger the health or safety of any person;

c.        the communication will endanger the health or safety of any person and the discloser is reckless as to the risk of this;

d.       the communicator intends to prejudice the effective conduct of a controlled operation;

e.        the communicator knows that the communication will prejudice the effective conduct of a controlled operation; or

f.        the communication will prejudice the effective conduct of a controlled operation and the discloser is reckless as to the risk of this. 

134.           There should be no offence in the absence of harms with respect to human health or safety.  Accordingly, this item will limit such offences to the first three circumstances listed above.  As such, the offences will not apply in circumstances relating merely to the prejudicing of the effective conduct of a controlled operation, so long as prejudicing the effective conduct of a controlled operation is not associated with endangering the health or safety of any person. Such communication may nonetheless be subject to a condition of employment.

Items 47 and 49 - Subsections 15HK(2) 15HK(2A) and 15HK(3)

135.           These items achieve some renumbering consequential to items 43 and 48.

Item 48 - At the end of subsection 15HK(2)

136.           Under current law, subsection 15HK(2) provides exceptions to the offences of communicating information relating to a controlled operation.  These apply even if the communication endangers the health or safety of any person.  These exceptions remain under the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 .

137.           This item adds two further exceptions. 

138.           Firstly, the offences will not apply if the communication is of information that had already been communicated, or made available, to the public.  Criminalising the discussion of information that is already public represents an excessive and oppressive restriction of free speech.

139.           Secondly, the offences will not apply if the communication is made reasonably, in good faith and in the public interest. Criminalising communications that are reasonable, in good faith and in the public interest harms the public interest, and requires the judiciary to come to unreasonable and misanthropic judgments.

140.           A defendant who wishes to rely on any of these exceptions bears an evidential burden in relation to the exception.

Item 50 - Subsection 15HK(4)

141.           If the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 commences, there will be a subsection 15HK(4) to provide an exception to the offences of a person (who is not necessarily an entrusted person) communicating information relating to a controlled operation.  Because of the exception, the offences will not apply if the information is already public, the communicator was not involved in the prior publication and the communicator had a reasonable belief that the communication will not endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

142.           This item will repeal subsection 15HK(4) inserted by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 , because item 48 will make such a subsection 15HK(4) redundant.  Item 48 provides a broader exception: it applies to communications both by entrusted persons and by persons who are not necessarily entrusted persons, and it applies unconditionally to information that is already public.

143.           In place of the subsection 15HK(4) inserted by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 , this item will insert a new subsection 15HK(4).  It will provide a further exception to all of the offences of communicating information relating to a controlled operation.

144.           The exception will provide that the offences will not apply if the information concerns corruption or misconduct, the authority for the controlled operation is no longer in effect, a senior executive employee of the Australian Federal Police or an SES employee in the Australian Crime Commission or Australian Commission for Law Enforcement Integrity is notified at least 24 hours before the communication, and the communication does not identify participants in the controlled operation (e.g. undercover officers).

145.           By providing an exception specifically for the communication of information concerning corruption or misconduct, this item complements item 48, which will provide an exception with respect to the more imprecise concepts of reasonableness, good faith and the public interest.



 

Part 4 — Repeal of advocacy offences

Criminal Code Act 1995

Item 51 - Section 80.2C of the Criminal Code

146.           Under current law, section 80.2C establishes an offence, punishable by up to five years’ imprisonment, of advocating terrorism and being reckless as to whether another person will engage in terrorism.  Advocating is defined as counselling, promoting, encouraging or urging. 

147.           Under current law, it is also an offence, punishable by up to ten years’ imprisonment, under the incitement provision of section 11.4, to urge terrorism with an intention that terrorism be committed. 

148.           Given section 11.4, which would remain unchanged under this Bill, section 80.2C only serves to ban speech other than speech that urges terrorism with an intention that terrorism be committed.  Such a ban is excessive.  Accordingly, this item repeals section 80.2C.    

Item 52 - Section 80.2D of the Criminal Code

149.           Under current law, section 80.2D establishes an offence, punishable by up to five years’ imprisonment, of advocating genocide and being reckless as to whether another person will engage in genocide. 

150.           Under current law, it is also an offence, punishable by up to ten years’ imprisonment, under the incitement provision of section 11.4, to urge genocide with an intention that genocide be committed.

151.           Given section 11.4, which would remain unchanged under this Bill, section 80.2D only serves to ban speech other than speech that urges genocide with an intention that genocide be committed.  Such a ban is excessive.  Accordingly, this item repeals section 80.2D.  



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Freedom of Speech Legislation Amendment (Security) Bill 2018

 

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

 

Overview of the Bill

The Bill removes restrictions on speech in national security legislation that are unnecessary to ensure the security of Australians.

 

Human rights implications

The Bill protects the right to freedom of expression.  The right to freedom of expression is closely related to the rights of freedom of association, assembly, thought, conscience, religion and participation in public affairs.

 

Conclusion

The Bill is compatible with human rights because it enhances the right to freedom of expression.

 

 

Senator Leyonhjelm