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Wednesday, 27 June 2018
Page: 4072


Senator BIRMINGHAM (South AustraliaMinister for Education and Training and Manager of Government Business in the Senate) (10:25): I thank the Senate. I table the revised explanatory memoranda relating to the bills, and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

NATIONAL SECURITY LEGISLATION AMENDMENT (ESPIONAGE AND FOREIGN INTERFERENCE) BILL 2018

Today I am pleased to introduce to the Senate the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018, which is a comprehensive package of legislative measures to address the threat of espionage and foreign interference in Australia.

Covert interference and espionage by nation states are global realities which have the potential to cause immense harm to our national sovereignty, to the safety of our people, our economic prosperity, and to the very integrity of our democracy. To counter this threat, Australia must have a robust legislative framework to ensure our law enforcement and national security agencies are sufficiently empowered to investigate and disrupt malicious foreign interference.

The reforms in this Bill are comprehensive. They represent the most significant counterintelligence reforms since the 1970's. The measures in this Bill will fundamentally reshape our national security offences to protect Australia's sovereignty and information, and protect the democratic principles and values that underpin our society.

This Bill is the result of a comprehensive review into Australia's espionage and foreign interference legislation, undertaken by the Attorney-General at my request.

Australia's criminal laws are inadequate. Without effective modern laws, and serious criminal penalties, our law enforcement and security agencies are unable to adequately investigate and disrupt this malicious conduct.

The Australian Government can and must do more to deter and counter the pervasive foreign interference activities directed against Australia's interests.

The threat of foreign interference and espionage

Recent events overseas, including cyber operations and disinformation campaigns designed to influence the US and French elections, have brought the insidious threat of covert foreign interference into public view.

Australia is not immune. The Director-General of Security has advised that the scale of foreign interference activities against Australia is unprecedented. Espionage and foreign interference activity against Australian interests is extensive, unrelenting and increasingly sophisticated.

Unlike the routine business of diplomatic influence practised by all nation states, foreign interference is characterised by clandestine and deceptive activities undertaken by foreign actors seeking to cause significant harm to our national interests, or advance their own interests.

To ensure Australia is not a permissive operating environment for malicious foreign actors, and to protect our core interests, the Australian Government must respond by introducing stronger and more modern laws, that are fit for the purpose of countering the threat of foreign interference.

The Bill that I introduce today contains a series of measures designed to do just that. The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 will strengthen criminal offences targeting espionage, official secrets, sabotage, treason and other offences against the government. And, it will introduce, for the first time, new offences targeting foreign interference and economic espionage by foreign actors.

Overview of measures

Espionage

The Bill will include comprehensive new espionage offences that are designed to capture the full range of conduct undertaken to compromise sensitive information and prejudice our national security.

Operational experience has demonstrated that Australia's existing espionage offences are extremely difficult to prosecute. But what is more concerning is that they are too narrow to adequately defend the full scope of Australia's interests.

Foreign actors want access to all types of information and they are using a range of techniques to get it. Today, the communication of unclassified or publicly available information can be equally as damaging to Australia's national security interests as classified information. This is particularly so when it is done with the intention of prejudicing Australia's national security or advantaging the national security of another country. As with many security threats, rapid technological change has continued to provide people who are engaging in espionage with the tools to conceal their activities.

The new espionage offences in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 will apply to all information, and not just information that is security classified or that relates to Australia's security or defence.

The offences will also criminalise a broader spectrum of harmful conduct. This includes traditional espionage activities, as well as a person who is soliciting or procuring espionage, or a person preparing for espionage. This will capture the breadth of conduct that is being undertaken to facilitate espionage activities against Australia.

In addition, the Bill will introduce offences that not only target the person who discloses the information, but also the actions of the foreign spy who receives the information. This will mean that foreign spies who task others to undertake espionage activities against Australian interests can be charged and prosecuted under Australian law.

The Bill will also introduce a new offence criminalising economic espionage, or the theft of trade secrets for a foreign actor. This offence will combat the increasing threat of data theft, business interruption and economic espionage undertaken at the direction of foreign governments.

Foreign interference

Australia's foreign adversaries do not solely rely on espionage to further their interests. Foreign powers are covertly seeking to shape the opinions of members of the Australian public, media organisations and government officials in order to advance their country's own political objectives. Ethnic, religious and expatriate communities in Australia are also the subject of covert interference operations designed to suppress their criticism of foreign governments. In some instances these activities involve threats of harm or intimidation, which is a clear violation of the rights and freedoms we should all enjoy in this country.

There are currently no criminal offences targeting this type of activity in Australia. To address this gap, this Bill will introduce, for the first time, a suite of foreign interference offences into the Criminal Code.

The foreign interference offences capture covert, deceptive or undisclosed conduct that is intended to serve the intelligence purposes of a foreign actor, harm Australia's national security or advance the interests of a foreign actor by either

influencing the exercise or performance of any democratic or political right in Australia or by an Australian, or

influencing a Commonwealth, State or Territory political or government process.

These new offences will carry maximum penalties of up to 20 years' imprisonment and will be supported by a new preparation offence that will be punishable by a maximum penalty of 10 years' imprisonment.

Introducing specific offences targeting foreign interference will substantially enhance the Australian Government's ability to counter the current threat from foreign interference. It will provide a powerful deterrent to agents of foreign powers or those contemplating conducting, or cooperating in, these activities against Australia.

Secrecy

Protecting Australia from espionage and foreign interference also relies heavily on having strong protections for our sensitive information, especially where disclosure may cause harm to an essential public interest. Accordingly, this Bill will significantly reform Australia's official secrets offences.

The Commonwealth's general secrecy offences are in sections 70 and 79 of the Crimes Act 1914 (Cth) and there have been calls to reform these offences for many years. The Attorney-General's review has found that the general secrecy offences in the Crimes Act are outdated, ineffective and lack appropriately serious penalties.

The Australian Government is committed to openness and transparency in order to facilitate public participation and engagement in policy and service-delivery. At the same time, the appropriate handling of information is integral to the effective functioning of government. The unauthorised disclosure or use of information can prejudice national security and defence, and our relationships with foreign countries. Criminal offences are necessary to deter such disclosures and punish them if they do occur.

New secrecy offences will criminalise the disclosure of information that is inherently harmful (such as security classified information) or disclosures of information that would otherwise cause harm to Australia's interests. There will be separate offences that apply to Commonwealth officers and non-Commonwealth officers. The offences that apply to non-Commonwealth officers will be narrower in scope and attract lower penalties.

The Bill appropriately balances the need for robust protections for sensitive information with the public interest in information sharing and the implied constitutional freedom of political communication.

Importantly, the offences will not apply to journalists who reasonably believe that their conduct was in the public interest. This defence will extend to editorial and support staff.

Sabotage, treason and associated offences

The Bill also modernises a range of other offences associated with espionage and foreign interference.

The Bill introduces comprehensive new sabotage offences into the Criminal Code. The new sabotage offences will criminalise conduct causing damage to a broad range of critical infrastructure where it could prejudice Australia's national security.

The Bill will update and simplify the offences of treason and treachery. These very old offences require modernisation and updates to the language to reflect the modern environment and international law concepts of armed conflict.

Finally, the Bill repeals archaic and outdated offences from Part II of the Crimes Act. These offences will be modernised and moved to the Criminal Code to ensure Commonwealth criminal law appropriately supports the needs of the Australian Defence Force and protects Australia's democracy.

Conclusion

This Bill demonstrates the Government's commitment to addressing the broad spectrum of foreign interference and related criminal activity in Australia.

There is no place for complacency in the current threat environment. We must ensure that our legislation and capabilities remain fit for purpose to protect Australians and our interests. The measures in this Bill strengthen the resilience of our democracy.

I commend this Bill to the Senate.

FOREIGN INFLUENCE TRANSPARENCY SCHEME BILL 2018

I am pleased to present to the Senate the Foreign Influence Transparency Scheme Bill 2018.

The Bill establishes, for the first time in Australia, a scheme introducing registration obligations on those who seek to influence Australia's political or governmental processes on behalf of a foreign principal.

Foreign individuals and institutions are free to promote their interests in Australia's society, but they must do so in a lawful, open and transparent manner.

The Foreign Influence Transparency Schemeestablished by this Bill will require registration by persons undertaking activities on behalf of a foreign principal for the purpose of influencing Australia's political or governmental processes.

The scheme will contain appropriate exemptions, so that it does not constrain freedom of speech or legitimate business activities.

The scheme will establish a publicly accessible register of information about registrants, the activities they are undertaking and the foreign principal on whose behalf they are acting.

The scheme will not prohibit any legitimate relationships, arrangements or activities. Australia highly values our international partnerships across the globe; and we are the most successful multicultural society in the world.

Our democracy holds dear the foundational values of freedom, equality, the rule of law and mutual respect. This Bill supports these values and asks that our foreign partners continue to engage with us, but in an open and transparent manner that will support the integrity of our democratic systems and processes.

This Bill demonstrates this Government's commitment to protecting and securing Australia's sovereign interests. It sends a clear message that Australia is willing to take strong steps to protect the integrity of our democratic system and the fundamental values that underpin it.

I commend the Bill to the Senate.