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Wednesday, 27 June 2018
Page: 4105


Senator LEYONHJELM (New South Wales) (12:36): I rise to speak on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 and the Foreign Influence Transparency Scheme Bill 2018. While it's true that the bills have been available since late last year, we are now considering something quite significantly different, and I find myself in the difficult position of not having had sufficient opportunity to gain a full understanding of what we are considering. It was only yesterday—24 hours ago—that I actually had a copy of what we are considering today. That's because what we are considering incorporates amendments that arise from the recommendations of the Parliamentary Joint Committee on Intelligence and Security. Those recommendations, and the implementation of those recommendations, have transformed the bills.

The scope of the bills has been reduced considerably, and a range of precautions and safeguards have been introduced. This is a good thing, and I admit that I am far less alarmed by the bills than I was when they were first introduced. I am still alarmed, though, by the fact that the bills were so 'over the top' when they were introduced and required the PJCIS to pare them back to something that's not totally inconsistent with a liberal democracy. It's as if the original bills were an ambit claim by the security agencies and the Attorney-General's Department.

It alarms me that we have people in our bureaucracy who think it is okay to require registration as a foreign agent of tens of thousands of Australians—probably hundreds of thousands—including members and senators. On what planet do such people exist? Somehow, these people came to the conclusion that our democracy would be served by requiring the registration of members and senators as foreign agents, because they represented a foreign point of view from time to time—advocating for a free trade agreement with the EU or the UK, for example, or advocating for Australia to leave or remain in the United Nations Human Rights Council. Under the original bill, the foreign minister and the shadow foreign minister would have done nothing but fill in forms—and, of course, they would have had to have paid a fee for the privilege. Frankly, I think the people responsible for the original bill should be purged from the Public Service and sent to count pencils and paperclips. They are a threat to our way of life. Thank goodness the PJCIS has done its job and got rid of most of that nonsense. Just imagine if it hadn't. But the question is: did it get them all? Did it find all the landmines—all the infringements on free speech and on the rights of Australians to advocate for their causes, to speak to people in other countries and to push the case for other countries? I doubt very much that it did.

I will give one example, but I note, in giving this example, I've only had 24 hours to find examples and to examine the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018. I have no doubt there will be other issues, as there was with previous national security legislation that was similarly rammed through the Senate. The example I give is section 92.2, which states:

(1) A person commits an offence if:

   (a) the person engages in conduct; and

   (b) any of the following circumstances exists …

that is, that that conduct occurs—

… in collaboration with, a foreign principal—

and—

      (ii) the conduct is directed, funded or supervised by a foreign principal …

   (c) the person intends that the conduct will:

      (i) influence a political or governmental process—

no big deal, and—

   (d) any part of the conduct:

      (i) is covert …

The important point is that there is no definition of 'supervised'. In the same sentence in the same part there is also 'directed'. Clearly 'supervised' is not intended to be the same as 'directed'. What does 'supervised' mean? There is no definition in the bill or the act that it's amending. We have to assume that a court would apply its natural meaning. But what is that?

We also have no definition in the bill or the act that it's amending for 'covert'. We don't know what that means either. Again, a court would have to apply what it thinks is its natural meaning. Examples of 'covert' might be the use of WhatsApp, which is an encrypted messaging service. Because WhatsApp is being used by half of the parliament, a court might say, 'No, that's not covert, but Telegram is.' Telegram is not being used by so many, and, in Telegram the messages erase themselves after a little while—you can set how long that is. Is that 'covert'?

There are three examples that I can think of that could well and truly fall foul of that provision. The Vatican is a foreign power. Catholic priests are undoubtedly directed by, if not supervised by, the Vatican. Canon law governs their life. Canon law originates in the Vatican. If a priest here in Australia is lobbying the government and advocating for the government to adopt a particular position on something as controversial as assisted suicide or something less controversial as same-sex marriage or the redress scheme for the child abuse cases, does that run foul of the law?

Another example might be advocating a free trade agreement with Taiwan. Taiwan is a free, democratic society. We have a free trade agreement with China, which isn't a free, democratic society. In advocating for a free trade agreement with Taiwan, would it be supervised and would it be directed? You might potentially envisage going to the Taiwanese embassy and saying, 'How would you like me to approach this? What is going to maximise the chances of it being a success? What have you said that I can say that would complement that?' Would that amount to being directed? What if you communicated in a fashion such as via WhatsApp or Telegram? I think that would satisfy all of the criteria.

A case that I have raised in estimates is about Australia's foreign aid to Palestinian territories and whether that aid ends up assisting Hamas. You could easily envisage a situation where you might liaise with representatives from the Israeli government to ensure that you're not cutting across something that they're already saying and that you're not contradicting information that they've put out. Does that contravene this provision? I note that, if you do contravene this provision, the offence carries a penalty of 20 years imprisonment. We should not be in a situation where that sword—that degree of risk—depends on a definition of 'supervised' or 'covert'.

I'm confident that that issue—and almost certainly others that I haven't found yet—would be discovered in an inquiry by the Legal and Constitutional Affairs Legislation Committee. As it stands, we will have to fix this bill up later, as we have done for other national security legislation. The bills have aspects in them that I can support. But, given that I haven't had time to properly consider them, I have no option but to vote against them.

Debate interrupted.