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Wednesday, 27 June 2018
Page: 4076


Senator WONG (South AustraliaLeader of the Opposition in the Senate) (10:25): I rise to speak on the second reading of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 and the Foreign Influence Transparency Scheme Bill 2018. Today's debate on these bills occurs some six months after they were first introduced into the parliament. At the time, the Prime Minister made an assurance to the House that these bills were both straightforward and carefully structured. Regrettably, that was not so. In fact, the bills we are now debating take into consideration no fewer than 60 changes recommended by the Parliamentary Joint Committee on Intelligence and Security. I say that these bills are immeasurably improved by those changes, which have the support of both opposition and government members.

I do want to pay tribute to my fellow members of the parliamentary joint committee, in particular the shadow Attorney-General, Mr Dreyfus; the deputy chair, Anthony Byrne; and my colleagues Senator McAllister and Dr Kelly. I also acknowledge the work of the chair, Mr Hastie, and members of the coalition. A lot of hard work has taken place over the past six months to bring these bills up to the standard which is expected by the Australian people.

The Labor Party has consistently supported the principles and the objectives of the legislation that the chamber is debating. However, we had deep concerns about the way in which they were originally drafted. There is no greater obligation on all members and senators than to ensure the safety and security of the Australian people. Labor's record of constructive engagement on all national security bills brought before the parliament backs this up. We also recognise that threats facing the nation are constantly evolving and can change rapidly, and national security laws must, therefore, be constantly reviewed. Laws developed in the age of letters and telegrams are clearly not fit for purpose in the age of social media.

The key threats that these two bills seek to address are those of covert foreign interference and covert foreign influence in our democratic processes. As one of only a handful of nations that has been a democracy for the entirety of the past and current centuries, we have a proud tradition of open and vigorous public debate in all areas of the Australian political process. But, as we have increasingly seen in recent years, there are those who are willing to seek to abuse the trust that we and other nations place in our democratic processes and to use the freedoms that are denied in other nations and seek to exert and engage in covert influence or interference.

The question here, and the balancing act, is and has always been: how to respond to this threat while retaining our great traditions of free speech and participatory democracy. I don't think anyone—or few, if any—would now argue that the laws introduced by the Prime Minister last year got this balance right. This isn't simply a partisan position; this was the view of churches, charities, journalists, lawyers and members of the business community, and, it appears, a number of members of the government.

Without the changes proposed by the Parliamentary Joint Committee on Intelligence and Security, now agreed to by both government and opposition, these bills would have left journalists potentially liable for severe criminal penalties merely for reporting on national security matters that a government considered embarrassing. Unamended, these laws would have imposed enormous administrative burdens on charities across our country, backed up by criminal sanctions for noncompliance. Unamended, these laws could have seen members of the Catholic clergy forced to register by virtue of the church's leadership being based in the Vatican. Unamended, these laws could well have seen Australian academics being forced to register as foreign agents simply for collaborating on a project with an overseas institution or academic partner. Frankly, these would have been absurd outcomes and were completely unacceptable to most Australians. It is deeply concerning that the processes inside Mr Turnbull's government did not lead the Prime Minister, the then Attorney-General or other members of the cabinet to recognise this prior to these laws being introduced, or, if they did recognise them, proceeding with them, regardless.

The parliamentary joint committee has done an enormous amount of work in order to amend these bills and bring them up to the standard that the Australian people would expect and demand. Indeed, in the last few days we have seen statements from media organisations, charities, churches and others congratulating the committee and the parliament on the improvements we have made. Not everyone is happy, and many would argue that further changes need to be made. There are some on the other side—I noted a column by Mr Sheridan—who observe that the balance has gone too far the other way with regard to charities. I think it is clear from the public commentary and from the content of the bills before the chamber that the bills are vastly improved from the ones that were originally brought into the House. I do make this point: the government really ought learn from the extent of the redrafting and amendments which were required to be processed through the parliamentary joint committee. The parliament ought not have to deal with bills that are so far from the standard that is expected by the Australian people through a committee process. They ought have been presented to the parliament in a much more reasonable and considered form.

I turn now to the specific provisions of the bill. I am indebted to my colleague in the other place the shadow Attorney-General, Mr Dreyfus, for both his contributions to the bills and his analysis of them, much of which I now turn to. The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 reforms the Commonwealth's espionage, sabotage, treason, treachery and secrecy laws in the Commonwealth Criminal Code and in the Crimes Act 1914. It introduces offences of foreign interference which criminalise the activities of foreign actors who are seeking to interfere with Australia's democratic and political processes. There are some 38 offences in this bill. Most are expanded or reformed offences that have existed in one form or another in Australia's criminal law since 1914, and there are seven new offences of foreign interference.

Because criminal sanctions are such a serious matter, criminal law reform does need to be carefully thought through and subjected to public scrutiny and comment. We are disappointed on this side that, in a break from the usual practice, the former Attorney-General did not publish an exposure draft of the bill or consult with experts prior to it being brought into the House. Some of the procedural and substantive concerns I alluded to earlier might well have been avoided if he had gone through that process. Had this occurred, Labor believe that many of the problems that were later identified by the parliamentary joint committee could have been avoided from the start.

This failure was compounded by the short deadlines which were set for submissions from interested citizens, civil society and other experts. The submissions that were received quickly made clear that Labor were not alone in our concerns about the bill as it was then drafted. There were a number of drafting errors—what we regard as significant overreach and inadequate safeguards. I acknowledge that the new Attorney-General, Mr Porter, responded to these initial concerns by presenting, in the form of a submission to the parliamentary joint committee inquiry, a set of amendments designed to resolve some of the errors or concerns that had been identified in the secrecy offences contained in schedule 2 of the bill. These include the items identified by media organisations, who had suggested to the committee that the bill as presented could make it a serious criminal offence for journalists and staff of organisations to innocently receive secretive information, whether or not that information was classified.

There were other concerns expressed in relation to these bills by the Law Council of Australia and the Human Rights Law Centre. Even the Inspector-General of Intelligence and Security outlined concerns that some of the offences would make it impossible for her and her staff to fulfil their statutory duties—an extraordinary proposition. There were similar concerns from the Office of the Australian Information Commissioner and the Commonwealth Ombudsman. Regrettably—and, frankly, extraordinarily—not one of these organisations or government office holders, including the Inspector-General, were consulted about the proposed laws prior to their introduction.

Following months of constructive bipartisan work, with exceptional support from the staff of the committee secretariat, whose work I acknowledge and thank them for, the committee tabled a 404-page report on 7 June which made 60 recommendations. These address many of the concerns raised by civil society and the media to substantially improve the effectiveness of the bill. These recommendations have been adopted by the government, and Labor thanks the Attorney-General, Mr Porter, for working constructively with the shadow Attorney-General to deliver these amendments, which have been necessary to make this bill workable.

The bill now before the parliament and the amendments proposed in the two substantial amendment sheets overhaul the significant number of offences traditionally associated with criminalising malicious interference in our democratic and security apparatus by foreign countries. The bill modernises and reforms offences against government, including, as I said, treason, treachery and mutiny; assisting the escape of a prisoner of war; and military-style training involving a foreign principal. These will all continue to be part of the Criminal Code. The committee report made clear that these offences were in no way designed to capture humanitarian work in conflict zones or circumstances in which a journalist covers a conflict and presents information that might be seen as supporting a particular group that has been designated as an enemy under a proclamation.

The new division 91 in schedule 1 of the bill amends and modernises the existing espionage offences in division 91 of the Criminal Code. Under the new division, the number of espionage offences will increase to cover the gaps in the criminal law that our security agencies have identified as being presently exploited by foreign actors conducting espionage against Australia and in Australia against other countries. The espionage offences are premised on some element of harm or damage being caused to the Commonwealth. And whilst it might be embarrassing if some future role were uncovered and disclosed by civil society groups, mere embarrassment will not be enough to make out the elements of the offences. This requirement is coupled with the fact that a prosecution would have to prove beyond reasonable doubt that a civil society organisation or an individual whistleblower had intended to cause prejudice or was reckless as to whether prejudice would be caused to Australia's national security.

The bill also introduces a new division—division 92 of the Criminal Code. This contains several offences that are completely new to Australia's criminal law. The object of these offences is the disruption and criminalisation of covert acts of foreign interference that threaten Australia's democratic processes. When he introduced the bill, Mr Turnbull cited examples of such foreign interference: the 2016 American presidential election, the Brexit referendum in the United Kingdom and the presidential election in France. To the best of our knowledge, we have not seen that in Australia. But this bill makes clear that Australia should not, will not and cannot allow such conduct to be tolerated on our shores. This legislation, at its heart, declares that this parliament will not allow interference in our elections or in our democratic processes. We will not allow these to be subject to foreign interference and we will not allow the covert subversion of our politics by foreign interests. That objective should be an objective held across this parliament.

The bill also updates and modernises Australia's sabotage offences. There had been criticism that these provisions might be used to criminalise innocent and peaceful protest. I assure those many very well-meaning people who have put these concerns to us that this is not the way in which these offences are intended to operate. Nor, as is advised to us, is it the way in which a court would interpret them. They are, however, intended to criminalise sabotage—a serious attack on our country. They are not intended to criminalise peaceful protest.

As an important consequence of the amendments put forward by the Attorney-General in March, the secrecy offences are now to be split between offences committed by Commonwealth officers and offences committed by non-Commonwealth officers. This is a change supported by the Labor Party. The PJCIS recommendation, which has been picked up by the government, ensures that there will be more limited circumstances applying to non-Commonwealth officers. In particular, Labor has ensured that there will be a robust and broad exemption for journalists, which will stop the laws being used to censor or suppress media reporting. There is now a prior-publication defence and a public interest defence for the secrecy offences. The amendments also make explicit that the protections and immunities for whistleblowers that already exist are not affected by this bill. In particular, I note the requirement that the offences that use the phrase 'prejudice to Australia's national security' are to be interpreted as requiring a degree of damage or harm to Australia's national security. Mere embarrassment will not be sufficient to make out this element of the offences contained in that phrase.

The Labor Party has worked constructively and in good faith with the government to make sure that this bill has been significantly improved, and we thank the government for joining with us in adopting all the recommendations of the joint committee. It now properly targets the conduct which the parliament is seeking to criminalise whilst safeguarding those fundamental and essential rights and freedoms which we in the Labor Party will always defend and promote.

The second bill being debated today is the Foreign Influence Transparency Scheme Bill. This sets up a registration scheme for persons who act on behalf of foreign governments, foreign government related entities or individuals and foreign political organisations seeking to influence an Australian governmental or political process. As with the espionage and foreign interference bill, the parliamentary joint committee received many submissions opposing the bill which pointed out that thousands of Australian individuals and organisations whose foreign connections were entirely overt would have been required to register under the bill as originally put forward. It was quickly apparent that substantial changes were needed, and the government has now responded with a range of amendments.

In fact, it is fair to say that what the parliament is now debating is a very different bill—some might say entirely different—to the one introduced by Mr Turnbull in December. It was the subject of a further short inquiry in its amended form, with submissions called for once more from all those who had made submissions earlier to the committee. This resulted in some 30 further submissions, a hearing conducted by the committee last Monday and some extremely disciplined and active work by both the committee and its secretariat over the next week, which led to the tabling of the report of the committee on Monday recommending a further 40 changes to those suggested by the Attorney-General on 7 June. Those changes have further narrowed the scope of the bill so that it is now clear that the registration scheme is to focus on the activities of foreign governments, foreign government related individuals and entities and foreign political organisations.

The bill now makes clear that a foreign political organisation is to be treated as a foreign political party or an organisation which is directed wholly or primarily to political activity. The amendments in the EM make clear that an environmental group or other civil society group whose activities are directed to other matters and not solely to political activity is not intended by the parliament to be caught by the term 'foreign political organisation'. The scope of registrable activities has also been limited to cover parliamentary and general political lobbying undertaken for the sole or primary purpose of political or government influence. These changes largely exempt media organisations, charities, arts and cultural organisations, trade unions and religious organisations, who risked being innocently swept in under the original provisions.

In its original form this bill was, as Mr Dreyfus said, using a sledgehammer to crack a nut. I thank the government for listening to the many concerns expressed by so many informed and expert commentators and, in doing so, ensuring this bill now operates in the way intended. I finish on this note: we have placed on record our concerns about the original drafting of the legislation and the way in which the government proceeded with it. However, notwithstanding those criticisms, I do acknowledge the extraordinary amount of work that staff and officers of the Attorney-General's Department have engaged in to bring this bill to the parliament, to reflect the amendments that were flagged as being required from public submissions and also to bring into effect, via amendment, the recommendations of the parliamentary joint committee. So I acknowledge the work of those officers—and I note that there are officers from the Attorney-General's Department here in the chamber. I particularly acknowledge the work of Dr Anna Dacre and other members of the secretariat, who have performed a great national service in the work they have done to ensure that the committee's report could be landed in a form which enabled this legislation to proceed. Finally, I thank the senators and members who work with me on the joint committee.