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National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 134, 2017-18 28 JUNE 2018

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 Juli Tomaras, Owen Griffiths, David Markham and Claire Petrie Law and Bills Digest Section

Contents

Introduction .................................................................... 8

Purpose of the Bill ........................................................... 8

Structure of the Bill ......................................................... 9

Commencement ........................................................... 10

Background ................................................................... 10

Concerns of foreign influence in politics ................. 11 ASIO warnings ......................................................... 12

Public infrastructure and foreign investment ......... 13 ‘Foreign Interference’ ............................................. 14

Committee consideration .............................................. 14

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 14

Broad scope of offence provisions .......................... 15

Reversal of evidential burden of proof ................... 15 Strict liability offences ............................................. 16

Presumption against bail ......................................... 16

Incorporation of external material into the law ..... 16 Parliamentary Joint Committee on Intelligence and Security (PJCIS) ................................................... 17

Key recommendations—Schedule 1 ....................... 18 Recommendation 2 ............................................... 18

Recommendation 3 ............................................... 18

Recommendation 6 ............................................... 18

Recommendations 35, 36 and 37 .......................... 19

Recommendation 38 ............................................. 19

Date introduced: 7 December 2017

House: House of Representatives

Portfolio: Attorney-General

Commencement: Schedules 1, 3 and 6, and Part 1 of Schedule 4 will commence on the day after Royal Assent.

Schedule 2 and Part 2 of Schedule 4 will commence on a day to be fixed by Proclamation or six months after Royal Assent, whichever occurs first.

The commencement of the two Parts of Schedule 5 is conditional on the commencement of other proposed legislation.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at June 2018.

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Recommendation 42 ............................................. 19

Recommendation 44 ............................................. 19

Recommendation 45 ............................................. 20

Recommendations 46, 47 and 48 .......................... 20

Recommendation 49 ............................................. 20

Recommendation 50 ............................................. 20

Key recommendations—Schedule 2 ....................... 21 Recommendation 14 ............................................. 21

Recommendations 15 and 16 ............................... 21

Recommendation 17 ............................................. 21

Recommendation 18 ............................................. 22

Recommendation 19 ............................................. 22

Recommendation 20 ............................................. 22

Recommendation 21 ............................................. 22

Recommendation 22 ............................................. 23

Recommendation 25 ............................................. 23

Recommendation 26 ............................................. 23

Recommendation 27 ............................................. 23

Recommendation 28 ............................................. 24

Recommendation 29 ............................................. 24

Recommendation 30 ............................................. 25

Recommendations 31 and 32 ............................... 25

Recommendation 33 ............................................. 25

Recommendation 34 ............................................. 25

Recommendations concerning security classification, evidentiary certificates and clearances ................................................................ 25

Recommendation 7 ............................................... 26

Recommendation 8 and 9 ..................................... 26

Recommendation 10 ............................................. 26

Other recommendations ......................................... 26

Recommendation 23 and 24 ................................. 26

Recommendation 53 and 54 ................................. 27

Recommendation 56 ............................................. 27

Recommendation 58 ............................................. 28

Attorney-General’s response .................................. 28

Policy position of non-government parties/independents.................................................... 28

Position of major interest groups................................... 29

Urgency of reform ................................................... 29

Consultation ............................................................ 30

Alleged Chinese government interference ............. 30 Scope of proposed offences .................................... 31

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Uncertainty concerning key terms .......................... 33

Impact on oversight and integrity agencies ............ 34 Harm-based approach ............................................. 35

Impact on journalists and related professionals ..... 35 Inspector-General of Intelligence and Security ..... 36 Interaction with the Privacy Act and the Freedom of Information Act ................................... 37

Public Interest Disclosures Scheme ....................... 38

Additional defences and exceptions ....................... 38

Financial implications .................................................... 39

Statement of Compatibility with Human Rights.............. 39

Parliamentary Joint Committee on Human Rights ... 39 Compatibility of the measures with the right to freedom of expression ............................................ 39

Compatibility of the measure with the right to an effective remedy ................................................ 40

Compatibility of the measure with the right to be presumed innocent ............................................ 40

Compatibility of the measures with the right to release pending trial ................................................ 40

Compatibility of the measures with the right to privacy ..................................................................... 41

Amendments to the Foreign Influence Transparency Scheme legislation ............................ 41

Key issues and provisions .............................................. 41

National Security ....................................................... 41

Schedule 1—Treason, espionage, foreign interference and related offences ............................ 42

Part 1—Main amendments ..................................... 42

Treason ...................................................................... 42

‘Materially’ assisting enemies ................................. 43

‘Materially assist’ ................................................... 44

Humanitarian aid and good faith defence ............ 46 Treachery................................................................... 47

Fault element—conduct involving ‘force or violence’ ................................................................ 49

Sabotage ...................................................................... 49

Penalties .................................................................. 50

Proposed section 82.1 - Definitions ........................ 50

Damage to public infrastructure ........................... 50

Fault element for offences in relation to public infrastructure ........................................................ 52

Sabotage - involving foreign principal with intention as to national security ............................. 52

Division 83—Other threats to Security ................... 57

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Advocating Mutiny .................................................... 57

Comment ............................................................... 58

The situation overseas ............................................ 60

Assisting prisoners of war to escape ......................... 60

Comment ............................................................... 61

Military-style training involving foreign government principal ................................................ 61

Comments ............................................................. 63

Interference with political rights and duties ............. 63 Part 5.2—Espionage and related offence ....................... 66

Division 91—Espionage ................................................. 68

Subdivision A—Espionage ....................................... 68

Intention to prejudice national security................ 69 Reckless as to national security ............................. 71

Intention as to national security ........................... 72

Reckless as to national security ............................. 73

Espionage—security classified information et cetera ........................................................................ 74

Penalties .................................................................... 74

Defences .................................................................... 74

Aggravated espionage offence ................................. 75

Geographical jurisdiction .......................................... 75

Subdivision B—Espionage on behalf of foreign principal ....................................................................... 76

Intention as to National Security........................... 76

Reckless as to National Security ............................ 76

Conduct on behalf of a foreign principal ............... 76 Subdivision C—Espionage-related offences ............. 77 Offence of preparing for an espionage offence ........ 78 Defences .................................................................... 78

Geographical jurisdiction .......................................... 79

Division 92—Foreign Interference ................................. 79

Subdivision A -Preliminary: Definitions .................... 79 Subdivision B -Foreign Interference ......................... 80

Offence of intentional foreign interference ............. 80 Interference generally ........................................... 80

Interference involving targeted person ................ 81 Offence of reckless foreign interference .................. 81 Interference generally ........................................... 81

Interference involving targeted person ................ 81 An ‘Australian democratic or political right’ ......... 82 Interference involving targeted person offences ................................................................. 82

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Offence of preparing for a foreign interference offence ...................................................................... 83

Geographical jurisdiction .......................................... 83

Subdivision C - Foreign Interference involving intelligence agencies ................................................. 84

Knowingly supporting foreign intelligence agency ... 85 Recklessly supporting foreign intelligence agency ... 85 Knowingly funding or being funded by foreign intelligence agency .................................................... 86

Recklessly funding or being funded by foreign intelligence agency .................................................... 86

Division 92A— Theft of trade secrets involving foreign government principal ................................... 86

Theft of trade secrets involving foreign government principal ................................................ 87

Geographical jurisdiction .......................................... 87

Consent of Attorney-General required for prosecutions .............................................................. 88

Presumption Against Bail .......................................... 88

Non-parole periods ................................................. 89

Part 3—Review by Independent National Security Legislation Monitor ................................................... 89

Schedule 2—Secrecy ................................................. 89

Background .............................................................. 89

Previous consideration of reform ........................... 90

Gibbs Review Committee ...................................... 90

Australian Law Reform Commission reports ......... 91 Related reform to the ASIO Act ............................. 92

Australian Border Force Act secrecy offence ........ 93 Part 1—Secrecy of information ............................... 94

Existing secrecy offences repealed—Crimes Act .. 94 Section 79—Official secrets................................... 95

Part 5.6—Secrecy of information ............................ 97

Proposed offences—Communication and other dealing with inherently harmful information by current and former Commonwealth officers ........ 97 Communication of inherently harmful information ............................................................ 98

Other dealing with inherently harmful information ............................................................ 98

Information removed from, or held outside, proper place of custody ........................................ 99

Failure to comply with direction regarding information ............................................................ 99

Fault elements ....................................................... 99

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Proposed offences—Conduct by current and former Commonwealth officers causing harm to Australia’s interests ......................................... 100

Other conduct causing harm to Australia’s interests ............................................................... 101

Information removed from, or held outside, proper place of custody ...................................... 101

Failure to comply with direction regarding information .......................................................... 101

Proposed aggravated offences ............................ 102

Unauthorised disclosure of information by current and former Commonwealth officers ...... 102 Communicating and dealing with information by non-Commonwealth officers .......................... 103

Proposed defences .............................................. 105

Powers, functions and duties in a person’s capacity as a public officer etc. or under arrangement ........................................................ 105

Information that is already public ....................... 106

Information communicated etc. to integrity agency .................................................................. 106

Information communicated etc. for the purpose of reporting offences and maladministration ............................................... 107

Information communicated to a court or tribunal etc. ......................................................... 107

Information communicated etc. for the purposes of obtaining or providing legal advice . 107 Information communicated etc. by persons engaged in business of reporting news etc. ........ 108 Information that has been previously communicated ..................................................... 109

Information relating to a person etc ................... 110 Burden of proof for integrity agency officials ..... 111 Miscellaneous— injunctions, forfeiture and geographic jurisdiction ........................................ 112

Part 2—Consequential amendments ...................... 112 Agricultural and Veterinary Chemicals (Administration) Act 1992 ................................... 112

Archives Act 1983 ................................................ 112

Australian Citizenship Act 2007 ........................... 112

Australian Crime Commission Act 2002 .............. 113 Australian Federal Police Act 1979 ...................... 113

Chemical Weapons (Prohibition) Act 1994 ......... 113 Comprehensive Nuclear-Test-Ban Treaty Act 1998 ..................................................................... 113

Defence Home Ownership Assistance Scheme Act 2008 ............................................................... 113

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Freedom of Information Act 1982....................... 114

Law Enforcement Integrity Commissioner Act 2006 ..................................................................... 114

Liquid Fuel Emergency Act 1984 ......................... 114

Migration Act 1958 .............................................. 114

National Greenhouse and Energy Reporting Act 2007 ..................................................................... 114

Native Title Act 1993 ........................................... 114

Offshore Minerals Act 1994 ................................ 115

Ombudsman Act 1976 ......................................... 115

Parliamentary Service Act 1999 .......................... 115

Public Service Act 1999 ....................................... 115

Renewable Energy (Electricity) Act 2000 ............ 115 Textile, Clothing and Footwear Investment and Innovation Programs Act 1999 ............................ 115

Schedule 3—Aggravated offence for giving false or misleading information ....................................... 116

What is proposed .................................................. 116

How the existing provision works ......................... 116

How the new provision will work .......................... 117

Defences ................................................................ 117

Comment on the provisions .................................. 117

Comparable law in other countries ....................... 118

United States ....................................................... 118

United Kingdom ................................................... 119

Schedule 4—Telecommunications serious offences ................................................................... 119

Background ............................................................ 119

Interception warrants under the TIA Act .............. 120 Definition of serious offence ................................. 120

Proposed amendments ......................................... 121

Comment ............................................................... 121

Schedule 5—Foreign influence transparency scheme .................................................................... 123

Commencement .................................................... 123

Transitional arrangements .................................... 123

Amendments related to Electoral Legislation Amendment (Electoral Funding and Disclosure and Reform) Act 2017 ........................................... 123

Schedule 6—Protection for persons providing information voluntarily to the Inspector-General .. 125

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Introduction The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (the Bill) was introduced into the House of Representatives on 7 December 2017 as part of a suite of proposed national security legislation.1 The next day the Bill, together with the other national security bills, was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for review.2

On 5 March 2018, the Attorney-General, Christian Porter, provided the PJCIS with a range of proposed amendments to the original Bill (Attorney-General’s amendments).3

The PJCIS released its advisory report into the Bill on 7 June 2018. The PJCIS advisory report included 60 recommendations which endorsed a number of the proposed amendments by the Attorney-General and also made recommendations for further amendments to the Bill and other related matters.4

In relation to the PJCIS report, the Attorney-General stated:

Given the rapid change in the threat environment it is the Government’s intention to consider the report and recommendations for amendments very quickly and my expectation is that the Bill, in essentially the form now recommend[ed] by the Committee, should be passed through Parliament during the next sitting period later this month; noting of course the primary and most significant recommendation of the report is that the Bill be passed.

5

On 26 June 2018, the Government introduced amendments to the Bill which incorporated some of the Attorney-General’s earlier proposed amendments and responded to the recommendations of the PJCIS report (proposed Government amendments).6 This Bill Digest addresses both the Bill as introduced and the Government’s proposed amendments.

Purpose of the Bill The purpose of the Bill is to amend the Criminal Code Act 1995, the Crimes Act 1914, the Telecommunications (Interception and Access) Act 1979, and the Inspector-General of Intelligence and Security Act 1986 (with consequential amendments to other legislation) to ‘modernise and strengthen Australia’s espionage, foreign interference, secrecy and related laws to ensure the

1. Parliament of Australia, ‘Foreign Influence Transparency Scheme Bill 2017 homepage’, Australian Parliament website; Parliament of Australia, ‘Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017 homepage’, Australian Parliament website; Parliament of Australia, ‘Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 homepage’, Australian Parliament website. See also: C Barker, D McKeown and J Murphy, Foreign Influence Transparency Scheme Bill 2017 and Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017, Bills digest, 87, 2017-18, Parliamentary Library, Canberra, 2018 and D Muller, Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017, Bills digest, 81, 2017-18, Parliamentary Library, Canberra, 2018.

2. Parliamentary Joint Committee on Intelligence and Security (PJCIS), Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, PJCIS, Canberra, June 2018, p. 11. 3. PJCIS, Proposed amendments to Espionage and Foreign Interference Bill, media release, 6 March 2018. The Attorney-General’s proposed amendments were contained in a submission and supplement and submission to the PJCIS. See Submission to the

Parliamentary Joint Committee on Intelligence and Security, Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, [Submission no. 40 and no. 40.1]. 4. PJCIS, Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, op. cit., pp. xvii-xxix. 5. C Porter, Attorney-General welcomes Committee Report on Espionage and Foreign Interference Bill, media release,

7 June 2018. 6. Government proposed amendments [sheet 8482], National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.

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protection of Australia’s security and Australian interests’.7 The Prime Minister, Malcolm Turnbull, in his second reading speech stated:

We are … introducing, for the first time, offences for acts of foreign interference. Addressing a clear gap, we will criminalise covert, deceptive and threatening actions by persons acting on behalf of, or in collaboration with, a foreign principal aiming to influence Australia's political processes or prejudice our national security. Acts of foreign interference are often intertwined with espionage. But our espionage laws are so unwieldy they have not supported a single conviction in decades, even as the threat reaches unprecedented levels. So we will also introduce a range of carefully structured espionage offences as well as new provisions for secrecy, sabotage and treason.

8

The Explanatory Memorandum highlights eight reforms to ‘offences dealing with threats to national security, particularly those posed by foreign principals’. The Bill:

- strengthens existing espionage offences

- introduces new foreign interference offences targeting covert, deceptive or threatening actions by foreign actors who intend to influence Australia’s democratic or government processes or to harm Australia

- reforms Commonwealth’s secrecy offences, ensuring they appropriately criminalise leaks of harmful information while also protecting freedom of speech

- introduces comprehensive new sabotage offences that effectively protect critical infrastructure in the modern environment

- modernises and reforms offences against government, including treason, to better protect Australia’s defence and democracy

- introduces a new theft of trade secrets offence to protect Australia from economic espionage by foreign government principals,

- introduces a new aggravated offence for providing false and misleading information in the context of security clearance processes, and

- ensures law enforcement agencies have access to telecommunications interception powers to investigate these serious offences. 9

Structure of the Bill Taking into account the Government proposed amendments, the Bill now contains six schedules.

Schedule 1 amends the Criminal Code to:

• update treason offences and create a new offence of treachery

• introduce new sabotage offences

• amend the existing offences against government (including advocating mutiny, assisting prisoners of war to escape and military-style training for a foreign government) and criminalise the use of force, violence or intimidation to interfere with Australian democratic or political rights

7. Explanatory Memorandum, National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, p. 11. 8. M Turnbull, ‘Second reading speech: National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017’, House of Representatives, Debates, 7 December 2017, p. 13145. 9. Explanatory Memorandum, op. cit., p. 2.

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• introduce new espionage offences

• introduce new foreign interference offences and

• introduce a new offence targeting theft of trade secrets on behalf of a foreign government.

Schedule 2 will:

• repeal existing secrecy and official secrets offences in the Crimes Act

• introduce a range of new secrecy offences into the Criminal Code which will apply, in particular, where the information which is misused is ‘inherently harmful’ or would ‘cause harm to Australia’s interests’

• introduce a range of defences to the new Commonwealth secrecy offences, including for journalists.

Schedule 3 introduces a new aggravated offence where a person provides false or misleading information in relation to an Australian Government security clearance process.

Schedule 4 amends the Telecommunications (Interception and Access) Act to allow the powers under that Act to be used to investigate the offences contained in the Bill.

Schedule 5 makes amendments relevant to the proposed Foreign Influence Transparency Scheme and other transitional amendments.

Schedule 6 inserts a provision into the Inspector-General of Intelligence and Security Act to protect persons providing information voluntarily to the Inspector-General.10

Commencement Clause 2 deals with the commencement of the Bill. Sections 1 to 3 commence on Royal Assent. Schedules 1, 3 and 6, and Part 1 of Schedule 4, commence the day after Royal Assent.

Schedule 2 and Part 2 of Schedule 4 commence on Proclamation or six months after Royal Assent, whichever occurs first.

Part 1 of Schedule 5 commences at the same time as the Foreign Influence Transparency Scheme Act 2017, and will not commence at all if that Act does not commence. Part 2 of Schedule 5 commences on the later of:

• immediately after the commencement of the Foreign Influence Transparency Scheme Act 2017 and

• immediately after the commencement of Part 1 of Schedule 1 of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2017.

However, Part 2 of Schedule 5 will not commence at all unless both these events occur.

Background The Bill was introduced into the House of Representatives in December 2017 as part of a package of legislation intended to counter foreign interference and influence in Australia. This includes interference and influence in Australia’s political and electoral systems. The related proposed legislation is the:

• Foreign Influence Transparency Scheme Bill 2017 and Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017 which will establish a registration scheme for persons and entities who engage in certain activities on behalf of foreign actors11 and

10. Schedule 6 is inserted by the Government’s proposed amendments.

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• Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 which prohibits foreign donations to political parties, candidates and significant campaigners, and creates new reporting obligations for third party campaign groups.12

Prime Minister Turnbull has stated that the Bill is the result of a review he commissioned in August 2016 by former Attorney-General, George Brandis, into foreign influence, interference and coercion.13 The Attorney-General’s Department outlined that in May 2017 the former Attorney-General was requested to review Australia’s existing laws relating to espionage and foreign interference, to consider:

• the adequacy and effectiveness of existing espionage, treason and official secrets offences

• the merit of creating specific foreign interference offences

• the merit of establishing a foreign agents registration scheme (based on the United States’ Foreign Agents Registration Act 1938) and

• whether there were complementary provisions which could strengthen the ability of intelligence agencies to investigate and prosecute acts of espionage and foreign interference.14

The Attorney-General’s Department has reported:

It was apparent to the review that foreign intelligence services are currently seeking to harm Australia’s interests on an unprecedented scale and through a variety of means, including by obtaining classified information or by seeking to influence the outcome of Australia’s democratic and institutional processes. The review found that existing criminal offences have proven inadequate in addressing such conduct and have therefore had limited impact in deterring and countering espionage and foreign interference activities occurring in Australia.

15

Further details of the review and its findings have not been made publicly available. However, it has occurred amidst increased warnings from the Australian Security and Intelligence Organisation (ASIO) about the threat posed to Australia by espionage and foreign interference activities, as well as increased media attention to the issue of foreign influence in Australia’s political systems.

Concerns of foreign influence in politics In the last twelve months there have been mounting concerns about the extent of foreign influence in Australia’s political system. In June 2017, a joint investigation by the Australian Broadcasting Corporation’s (ABC) Four Corners program and Fairfax Media reported that ASIO had previously briefed Malcolm Turnbull, former Prime Minister Tony Abbott and Leader of the Opposition, Bill Shorten, about accepting donations from property developers with possible links to the Chinese Communist Party.16 It was reported that Australian intelligence agencies held concerns the Chinese Communist Party was seeking to use political donations to gain access to

11. C Barker, J Murphy and D McKeown, Foreign Influence Transparency Scheme Bill 2017 and Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017, Bills digest, 87, op. cit. 12. D Muller, Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017, Bills digest, 81, op. cit. 13. M Turnbull (Prime Minister), G Brandis (Attorney-General) and M Cormann (Minister for finance), Joint press conference:

Parliament House, Canberra: 5 December 2017: foreign Interference; foreign donations; same-sex marriage; citizenship, transcript, 5 December 2017, p. 2. 14. Attorney-General’s Department (AGD), Submission to the Parliamentary Joint Committee on Intelligence and Security, Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, January 2018, p. 3. 15. Ibid. 16. N McKenzie and C Uhlmann, ‘Chinese donations could compromise: ASIO’, The Australian Financial Review, 6 June 2017, p. 1.

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Australia’s political institutions, and that since the 2015 briefings, both major parties had continued to accept donations.17

The most high profile incident concerned former Senator Sam Dastyari, who resigned from Parliament in December 2017 following reports that he had informed a Chinese political donor that his phone was probably under surveillance by security agencies, and had made public remarks on the South China Sea that contradicted the Australian Labor Party’s official policy position.18 Another point of concern has been the activities and affiliations of members of Parliament, and particularly ministers, after leaving Parliament. The ABC-Fairfax investigation reported that shortly after leaving politics, the former Minister for Trade, Andrew Robb, began receiving an $880,000 consulting fee from the Chinese-owned Landbridge Group, which holds the lease of Darwin Port.19 The owner of Landbridge, Ye Cheng, was reported to have strong links with the Chinese Communist Party.20

These concerns have come at a time of increased attention being paid internationally to the possibility of foreign interference in domestic politics. In his second reading speech for the Bill, Malcolm Turnbull pointed to recent incidents overseas as highlighting the significance of the issue:

Anyone who has glanced at the international media over the course of this year will see that questions of foreign interference are not all about China—far, far from it. Globally, Russia has been wreaking havoc across the democratic world.

There are credible reports that Russia was actively undermining the integrity of the Brexit referendum, this year's presidential elections in France and last year's presidential election in the United States.

And other nations are reportedly conducting interference operations outside their borders, including Iran and North Korea.

In some cases, authoritarian states have been literally manufacturing public opinion in order to hijack political discourse and tilt the decision-making landscape to their advantage. 21

ASIO warnings ASIO has been increasingly vocal about the significance of the threat posed by foreign actors seeking to interfere with Australia’s interests. In its Annual report 2016-17, it reported that espionage and foreign interference in Australia’s economy was a ‘growing concern’, with foreign intelligence services looking to access bulk data sets and privileged and/or classified information on Australia’s alliances and partnerships, its position on international diplomatic, economic and military issues, energy and mineral resources and technological innovations.22 The annual report further stated that resource restraints had restricted ASIO’s response to such activities:

While we had a number of successes in identifying and degrading the harmful effects of espionage and foreign interference, the scale of the threat to Australia and its interests is unprecedented. The

17. Ibid. 18. R Baker, N McKenzie and J Massola, ‘Dastyari told donor of phone tap’, The Sydney Morning Herald, 29 November 2017, p. 1; N McKenzie, J Massola and R Baker, ‘Dastyari caught on tape’, The Sydney Morning Herald, 30 November 2017, p. 1; S Dastyari, Statement, media release, 12 December 2017.

19. N McKenzie, R Baker and C Uhlmann, ‘Robb took $800k consultancy role after politics’, The Age, 6 June 2017, p. 11. 20. Ibid. 21. M Turnbull (Prime Minister), ‘Second reading speech: National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017’, op. cit., p. 13146.

22. ASIO, Annual report 2016-17, Canberra, 2017, pp. 4, 23-24.

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heightened terrorist threat this past decade, which has been further elevated in Australia since 2014, has limited our scope to redirect resources towards counterespionage and foreign interference. 23

Peter Jennings, executive director of the Australian Strategic Policy Institute, has pointed to the importance of the Australian Government and national security community finding better ways to communicate to the public the nature of threats faced from espionage, sabotage and foreign interference. He notes that:

It is not easy to bridge the necessary gap between what officials know from classified information and what can be publicly revealed, but Australian officials have for far too long used the veil of national security classifications to avoid making a public case for stronger measures against espionage and subversion.

24

In his submission to the PJCIS inquiry into the Bill, he recommended that the PJCIS direct the Australian Intelligence Community to prepare an annual public report for Parliament on the state of efforts to counter espionage, sabotage and related activities.25

The increased emphasis on foreign interference activities as a key threat to security has been reflected in an apparent shift in the Government’s national security agenda. As part of the machinery of government changes in December 2017, the Department of Home Affairs assumed a number of functions from the Attorney-General’s Department, including national security policy, critical infrastructure protection and countering foreign interference.26 Minister for Home Affairs, Peter Dutton, indicated that the Department would be placing a greater focus on espionage, reportedly stating: ‘we’re well and truly underdone in terms of our counter-espionage effort… So I think we need to continue to push harder’.27 It has been reported that the Department is considering a new joint-agency taskforce, modelled on the Joint Counter Terrorism Taskforce, in which the Australian Federal Police would cooperate with intelligence agencies in counter-espionage operations.28

Public infrastructure and foreign investment The proposed sabotage offences in the Bill seek to address threats to public infrastructure. In this respect, the Bill is linked with the Security of Critical Infrastructure Act 2018, the Bill for which was also introduced into Parliament on 7 December 2017.29 The Security of Critical Infrastructure Act is aimed at managing national security risks flowing from foreign involvement in Australia’s critical infrastructure. It creates a critical infrastructure assets register, in which entities operating certain assets or with direct interest in the asset will be required to report to the Government, and gives the Minister power to direct the owner or operator of a critical infrastructure asset to mitigate national security risks.30

Neither the Bill nor the Security of Critical Infrastructure Act directly deals with the activities of the Foreign Investment Review Board (FIRB). However, Peter Jennings from the Australian Strategic

23. Ibid., p. 45. 24. P Jennings, Submission to the Parliamentary Joint Committee on Intelligence and Security, Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 21 January 2018, p. 1. 25. Ibid. 26. Department of Home Affairs, Update on Machinery of Government changes, media release, 20 December 2017. 27. D Wroe, ‘Dutton flags an espionage focus, more cyberspies’, The Canberra Times, 21 December 2017, p. 5. 28. N McKenzie and R Baker, ‘AFP, ASIO co-operate on China investigation’, The Canberra Times, 30 January 2018, p. 5. 29. Parliament of Australia, ‘Security of Critical Infrastructure Bill 2017 homepage’, Australian Parliament website. 30. Department of Home Affairs, ‘Critical infrastructure resilience’, Department of Home Affairs website.

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Policy Institute has suggested that the FIRB’s operations will inevitably come within the ambit of Government efforts to protect critical infrastructure:

In my view the new legislation makes the current structure of the FIRB untenable. The FIRB operates with an ideological disposition to facilitate foreign investment - as is demonstrated by the tiny (fewer than ten in the last decade) number of foreign investment refusals the entity has recommended compared to tens of thousands of approvals. It seems to regard legitimate concerns about the security of critical infrastructure as confected threat-mongering. FIRB’s advice to government is based on analysis and assessment methodologies that are utterly opaque, not least to potential investors.

For the Government’s new legislation to work, the time has come to review the governance structures, role and methods of operation of the FIRB. I recommend that the PJCIS should make the FIRB’s national security role the subject of a stand-alone review. 31

‘Foreign Interference’ While the Bill inserts offences (in proposed Division 92 of the Criminal Code) which explicitly address ‘foreign interference’ these can be seen as using a narrow concept of ‘interference’. A number of the other parts of the Bill can be perceived as related to addressing and preventing foreign interference in a broader sense. For example Schedule 1 inserts into the Criminal Code:

• a new offence of treachery for persons who seek to use force or violence to overthrow the Constitution or an Australian Government (proposed section 80.1AC)

• a range of new sabotage offences including offences which relate to conduct on behalf of foreign principals (proposed sections 82.3 and 82.4)

• a range of offences relating to other threats to security, such as advocating mutiny, assisting prisoners of war to escape, military-style training involving a foreign principal or interference with Australian political rights and duties (proposed Division 83)

• a range of amended espionage and related offences for dealing with information which includes offences which target the actions of foreign principals who receive information, criminalise soliciting or procuring a person to commit an espionage offence and contain a preparation or planning offence

• a new offence of theft of trade secrets on behalf of a foreign government principal (proposed Division 92A).

Schedule 2 contains a range of new secrecy offences for disclosure of information which is ‘inherently harmful information’ or would ‘cause harm to Australia’s interests’. These offences are intended to apply to all persons, not just Commonwealth officers (proposed Part 5.6 and Division 122). However, these offences can be considered more defensive provisions to prevent harmful disclosures, rather than offences to deter active attempts at interference from outside Australia.

Committee consideration

Senate Standing Committee for the Scrutiny of Bills The Senate Scrutiny of Bills Committee (Scrutiny committee) considered the Bill in Scrutiny Digest No. 1 of 2018.32 Following a response from the Attorney-General and the release of the proposed amendments, the Scrutiny committee concluded its consideration of the Bill in Scrutiny Digest

31. P Jennings, Submission to the Parliamentary Joint Committee on Intelligence and Security, Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, op. cit., p. 2. 32. Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2018, 7 February 2018, pp. 82-96.

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No. 4 of 2018.33 However, it also indicated that it would consider amendments made to the Bill in the future.

Broad scope of offence provisions The Scrutiny committee initially sought a detailed justification for broad definition of terms central to the new offences in the Bill such as ‘deal’, ‘foreign principal’, ‘national security’ and ‘inherently harmful information’ as well as the breadth of some of the proposed offences.34 It considered that the proposed amendments to the Bill would ‘help to alleviate a number of the committee’s concerns’ and requested that key information provided by the Attorney-General be included in the explanatory memorandum. However, its concerns regarding the breadth of some of the offences remained. The Scrutiny committee considered ‘the breadth of the offences in proposed subsection 91.2(2) and sections 91.3, 122.1 and 122.4A, coupled with the significant custodial penalties, no requirement of an intention to do harm to Australia's interests and no public interest defence, may unduly trespass on personal rights and liberties’.35

The broad scope of the new treachery offence in proposed section 80.1AC was also highlighted. The Scrutiny committee sought a detailed justification for the maximum penalty (life imprisonment) ‘when the provision does not precisely specify the nature of the offending conduct’.36 The Scrutiny committee was satisfied with the Attorney-General’s advice which indicated the proposed offence ‘criminalises serious conduct’ but requested the key information provided be included in the Explanatory Memorandum of the Bill.37

Reversal of evidential burden of proof A number of key offences relating to threats to national security provide offence-specific defences, which provide that the offence does not apply, or it is a defence to the offence, in certain specified circumstances. In doing so, these provisions reverse the evidential burden of proof. The Scrutiny committee sought detailed advice as to:

• the appropriateness of including each of the specified matters as an offence-specific defence

• whether secrecy provisions in other legislation could prevent officials (such as Inspector-General of Intelligence and Security (IGIS) officers) from discharging an evidential burden of proof as to whether they were acting in accordance with their statutory duties and

• the appropriateness of amending the Bill to provide that relevant matters be included as an element of each offence or that a defendant not bear the burden of proof in relying on the offence-specific defences.38

The Scrutiny committee requested key information provided by the Attorney-General be included in the Explanatory Memorandum and welcomed:

… the Attorney-General’s statement that the government will develop amendments to the bill to ensure that IGIS officials do not bear an evidential burden in relation to the defences in proposed section 122.5; will broaden the defences at proposed subsections 122.5(3) and (4) to cover all dealing with

33. Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2018, March 2018, pp. 9-40. 34. Senate Standing Committee for the Scrutiny of Bills, Digest 1, op. cit., p. 84. 35. Senate Standing Committee for the Scrutiny of Bills, Digest 4, op. cit., p. 21. 36. Senate Standing Committee for the Scrutiny of Bills, Digest 1, op. cit., p. 89. 37. Senate Standing Committee for the Scrutiny of Bills, Digest 4, op. cit., p. 31. 38. Senate Standing Committee for the Scrutiny of Bills, Digest 1, op. cit., p. 88.

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information; and will clarify that the defences in section 122.5 do not affect any immunities that exist in other legislation. 39

Nonetheless, the Scrutiny committee drew its concerns regarding ‘the appropriateness of reversing the evidential burden of proof in relation to matters that do not appear to be peculiarly within the knowledge of the defendant’ to the attention of the Senate.40

Strict liability offences The Scrutiny committee also drew attention to its concerns regarding the appropriateness of applying strict liability to elements of a number of proposed offences carrying serious penalties.41 These elements related mainly to whether information or an article has a security classification. The Attorney-General advised that ‘[s]trict liability will be removed from elements of the offences relating to information or articles carrying a security classification in the proposed amendments to the Bill’. 42 The Scrutiny committee welcomed these amendments ‘to remove strict liability from elements of the offences in proposed sections 91.1, 91.3, 91.6, 122.1 and 122.3 (as to whether information or articles have a security classification)’.43

Presumption against bail The Scrutiny committee also questioned the appropriateness of a presumption against bail for certain offences.44 The Attorney-General’s advice noted these were ‘very serious offences’ and that the ‘presumption against bail will limit the possibility of further harmful offending, the communication of information within the knowledge or possession of the accused, interference with evidence and flight out of the jurisdiction’. He observed there were limitations on when the presumption against bail would apply, that the accused will be afforded to opportunity to rebut the presumption and that bail decisions will be at the discretion of the judge hearing the matter.45 Nonetheless, the Scrutiny committee reiterated ‘that it is a cornerstone of the criminal justice system that a person is presumed innocent until proven guilty, and presumptions against bail (which deny a person their liberty before they have been convicted) test this presumption’.46

Incorporation of external material into the law An issue regarding the incorporation of external material into law was also raised in relation to the definition of ‘proper place of custody’. The Bill provides this term will have a meaning prescribed by regulation and that regulations made for this purpose may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. The Scrutiny committee noted this raised parliamentary scrutiny, uncertainty in law and access to law issues. The Scrutiny committee requested the Minister’s advice whether, ‘at minimum’ the Bill could be amended ‘to insert a statutory requirement that the relevant documents to be incorporated will be made freely and readily available to all persons in agencies subject to those policies and procedures’.47 The Attorney-General responded that the Bill ‘could’ be amended in this way. The Scrutiny committee made no further comment on the

39. Senate Standing Committee for the Scrutiny of Bills, Digest 4, op. cit., p. 28. 40. Ibid. 41. Senate Standing Committee for the Scrutiny of Bills, Digest 1, pp. 92-93. 42. Senate Standing Committee for the Scrutiny of Bills, Digest 4, op. cit., p. 34. 43. Ibid., p. 35. 44. Senate Standing Committee for the Scrutiny of Bills, Digest 1, p. 94. 45. Senate Standing Committee for the Scrutiny of Bills, Digest 4, op. cit., p. 37. 46. Ibid.

47. Senate Standing Committee for the Scrutiny of Bills, Digest 1, pp. 95-96.

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matter, noting that ‘most of the proposed incorporated material will be readily and freely available on the internet’.48

Parliamentary Joint Committee on Intelligence and Security (PJCIS) As noted above, on 8 December 2017, Prime Minister Turnbull referred the Bill as part of a package of proposed national security legislation to the PJCIS for inquiry and report by 20 February 2018.49 On 1 February 2018, the PJCIS advised that due to an extended period for public submissions, it would report on 23 March 2018.50

After the receipt of proposed amendments to the Bill from the Attorney-General on 5 March 2018, the PJCIS further extended its reporting date.51 Many of the key proposed amendments related to the secrecy offences in Schedule 2 to the Bill. In summary, the Attorney-General’s proposed amendments:

• narrowed the key definitions of ‘inherently harmful information’, ‘causes harm to Australia’s interests’, ‘security classification’ and ‘security classified information’ in proposed section 121.1

• created separate offences applying to non-Commonwealth officers which are narrower in scope than those applying to Commonwealth officers and only apply to the most serious and dangerous conduct (proposed section 122.4A)

• expanded the defences for news reporting in proposed section 122.5(6) and excluded ABC and SBS staff from the definition of ‘Commonwealth officer’ in proposed section 121.1

• amended the application of strict liability to elements of the offences relating to security classified information and

• outlined a proposed response to concerns raised by the Inspector-General of Intelligence and Security.52

On 7 June 2018, the PJCIS tabled its Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (PJCIS report).53

The PJCIS report contained 60 recommendations with a number of proposed or suggested amendments to the Bill and Explanatory Memorandum. Several recommendations endorsed the Attorney-General’s proposed amendments to the Bill. The PJCIS report’s key recommendation was that the Bill be passed following implementation of its other recommendations:

During its inquiry, the Committee has received compelling evidence that Australia is facing an unprecedented threat from espionage and foreign interference. The Committee has also received evidence that current laws are not adequate to deal with this threat. Unchecked, espionage has the potential to significantly reduce Australia’s long-term security, and foreign interference could undermine our democracy and threaten the rights and freedoms of our people.

48. Senate Standing Committee for the Scrutiny of Bills, Digest 4, p. 40. 49. Previously, in June 2017, the Senate passed a motion called for an inquiry to be referred to the PJCIS into ‘possible measures to address the risk posed by foreign governments and their agents seeking to improperly interfere in Australia's domestic political and electoral affairs’. A Urquhart, ‘Motion: interference by foreign powers’, Senate, Debates, 15 June 2017, p. 3993;

D Farrell (Shadow Special Minister of State), No more excuses for Malcolm on foreign interference, media release, 15 June 2017. 50. PJCIS, Public consultation period extended on foreign interference bills, media release, 1 February 2018. 51. PJCIS, Proposed amendments to Espionage and Foreign Interference Bill, media release, 6 March 2018; PJCIS, Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, op. cit., pp. 11-13. 52. C Porter (Attorney-General), Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, n.d., pp. 1-5. 53. PJCIS, Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, op. cit.

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The Committee therefore accepts that there is a pressing need to strengthen and modernise current espionage and foreign interference laws. The Committee understands that prosecution for criminal offences is not the only means available to authorities to deal with espionage and foreign interference activity. It is, however, important to have criminal laws that are sufficiently robust to deter the full range of activity that foreign actors may seek to employ.

The Committee supports the intent of the Bill to achieve these goals and, subject to the other recommendations in this report, the Committee supports its passage through the Parliament. 54

While the PJCIS ‘welcomed’ many of the amendments to the Bill proposed by the Attorney-General, it did not make specific recommendations in relation to all of them.55

Key recommendations—Schedule 1

Recommendation 2 A number of proposed offences in the Bill relating to espionage, foreign interference and sabotage include ‘prejudice to Australia’s national security’ as a key element.56 The PJCIS recommended that the Bill be amended to clarify that the expression ‘prejudice to national security’ cannot consist of:

• embarrassment alone and

• must also include a degree of damage or harm.57

Recommendation 3 Similarly, a number of espionage and sabotage offences include ‘advantage the national security of a foreign country’ as a key element.58 The PJCIS recommended that the Bill be amended to ‘reflect the intent of the Explanatory Memorandum that the term “advantage the national security of a foreign country” does not apply to conduct that is mutually advantageous to the security of both Australia and the foreign country’.59

Recommendation 6 A number of proposed offences relating to espionage, sabotage, foreign interference and theft of trade secrets include a key element of a ‘foreign principal’. The definition of ‘foreign principal’ (proposed section 90.2) includes a ‘foreign government principal’ and in the Bill as introduced, the definition of ‘foreign government principal’ (proposed section 90.3) included a ‘foreign political organisation’. The PJCIS noted ‘ambiguity’ in relation to this term and recommended the Bill be amended to define what foreign political organisations may be covered by the term ‘foreign political organisation’.

54. Ibid., p. 9. 55. For example, the PJCIS report outlined the Attorney-General’s proposed amendment of the definition of ‘Commonwealth officer’ to exclude an ‘officer or employee of, or a person engaged by, the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation’, but did not make a specific recommendation that this proposed amendment be

implemented. Ibid., p. 135. 56. Proposed sections 82.3(1)(c)(i), 91.1(1)(c)(i), 91.1(2)(c)(i), 91.2(1)(b), 91.2(2)(b), 91.8(1)(b)(i), 91.8(2)(b)(i), 92.2(1)(c)(iv) and 92.3(1)(c)(iv). 57. PJCIS, Advisory report, op. cit., p. 49. 58. Proposed sections 82.3(1)(c)(ii), 82.4(1)(c)(ii), 82.5(1)(c)(ii), 82.6(1)(c)(ii), 91.1(1)(c)(ii), 91.1(2)(c)(ii), 91.8(1)(b)(ii) and

91.8(2)(b)(ii). 59. PJCIS, Advisory report, op. cit., pp. 48-49.

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Recommendations 35, 36 and 37 The terms ‘concerns Australia’s national security’ and ‘made available to a foreign principal’ are components of some of the Bill’s espionage offences.60 The PJCIS recommended that the term ‘concerns’ national security be defined to address a ‘residual risk’ that the Bill has the ‘potential to capture legitimate expressions of opinion or other commentary that concerns national security’. Similarly, the PJCIS recommended that the term ‘made available’ be defined. It noted stakeholder concerns that it was unclear whether this term ‘would include making information or a document available by way of publishing it’.61

The PJCIS also recommended that the Bill be amended to introduce a ‘prior publication defence’ ‘such that “making available” to a foreign principal information that is already in the public domain is not captured by the espionage offences’. It recommended that the new defence ‘be appropriately drafted to ensure the effectiveness of the provisions whilst protecting freedom of expression and the implied constitutional right to freedom of political communication’.62 Additionally, the PJCIS recommended that the Bill be amended to ‘require that, prior to instituting proceedings to commit a person to trial for an espionage offence, the Attorney-General must consider whether the conduct might be authorised in any of the defences outlined in Division 91’.63

Recommendation 38 The PJCIS recommended that the specific amendments proposed by the Attorney-General to narrow the scope of the offence in proposed section 91.3 (espionage—security classified information) be implemented. This would include requiring that the person dealt with the information for the ‘primary purpose’ of making it available to a foreign principal, limiting the offence to information or articles that have a security classification, and removing strict liability from the offence.64

Recommendation 42 The PJCIS noted concerns expressed by the joint media organisations that the term ‘support’ in the proposed offences for knowingly or recklessly supporting a foreign intelligence agency ‘could extend to journalists reporting positively, or neutrally, about a foreign intelligence agency’.65 It recommended that the Bill be amended:

… to explicitly provide that the term ‘support’ refers to ‘material support’, and that the Explanatory Memorandum provide examples of conduct that will not constitute material support, for example, news reporting, editorial or opinion writing and humanitarian assistance. 66

Recommendation 44 The PJCIS recommended that the sabotage offences in proposed section 82.7 ‘introducing vulnerability with intention as to national security’ and proposed section 82.8 ‘introducing

60. For ‘concerns Australia’s national security’ - proposed sections 91.1(1)(b)(ii), 91.1(2)(b)(ii), 91.3(c)(ii) (removed in Attorney-General’s proposed amendments). For ‘made available to foreign principal’ - proposed sections 91.1(1)(d), 91.2(1)(c), 91.2(2)(c), 91.3(1)(b), 91.3(1)(aa) (inserted in Attorney-General’s proposed amendments).

61. PJCIS, Advisory report, op. cit., p. 242. 62. Ibid., p. 242. 63. Ibid., p. 243. 64. Ibid. 65. These proposed foreign interference offences are proposed section 92.7 ‘Knowingly supporting foreign intelligence agency’

and proposed section 92.8 ‘Recklessly supporting foreign intelligence agency’. 66. PJCIS, Advisory report, op. cit., p. 263.

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vulnerability reckless as to national security’ be amended to ensure they are ‘proportional and appropriately targeted’. The recommended amendment would limit scope of the offences by removing the following elements:

• harm or prejudice to Australia’s economic interests

• disruption to the functions of the Government of the Commonwealth, of a state or of a territory and

• damage to public infrastructure.67

Recommendation 45 Proposed section 82.10 provides a defence in relation to sabotage offences. The PJCIS recommended this be broadened to include ‘conduct engaged in on behalf of a private owner or operator of infrastructure, in addition to public officials’. The PJCIS noted that the definition of ‘public infrastructure’ in the Bill (which would be covered by the proposed sabotage offences) ‘includes a range of privately-owned infrastructure’.68

Recommendations 46, 47 and 48 For the ‘advocating mutiny’ offence in proposed section 83.1, the PJCIS noted that the term ‘advocating’ is not defined and recommended that this term be defined consistent with the existing offences in the Criminal Code. It also recommended that the Criminal Code be amended to provide that the ‘acts done in good faith’ defence in section 80.3 is available for this proposed offence. It considered that this would ‘provide an appropriate balance between free speech, healthy public discourse and the illegal and unwanted encouragement of mutiny’.69 The PJCIS also recommended that the Bill be amended to require the Attorney-General to consider whether conduct may be authorised ‘in a way mentioned’ in the good faith defence before giving consent for prosecution of the offence.70

Recommendation 49 The PJCIS did not consider that the proposed offence for ‘military style training involving foreign government principal’ (proposed section 83.3) was ‘intended to impact on legitimate humanitarian work’. It recommended an amendment to ‘provide a defence against prosecution for those engaged in humanitarian work, including compliance training on the laws of armed conflict’.71

Recommendation 50 While acknowledging that the proposed offence of interference with political rights and duties (proposed section 83.4) was ‘potentially a very serious matter’, the PJCIS noted that no reasons were given in the Explanatory Memorandum for increasing the maximum penalty from ‘three years’ imprisonment under the existing offence to ten years’ imprisonment under the revised offence’.72 It recommended that the Government ‘reconsider whether this increase in penalty is necessary and proportionate’ but did not provide a recommended penalty amount.73

67. Ibid., pp. 287-288. 68. Ibid., p. 288. 69. Ibid., p. 315. 70. Ibid.

71. Ibid., p. 315. 72. Ibid., pp. 316-317. 73. Ibid., p. 317.

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Key recommendations—Schedule 2

Recommendation 14 The PJCIS acknowledged that a concern raised regarding the proposed secrecy offences during its inquiry was that ‘due to the broad definition of “deals with”, a person could commit a secrecy offence simply by receiving certain information without being aware of the nature of that information’. However, it noted that the default application of fault elements under the Criminal Code means that the prosecution would need to prove beyond reasonable doubt that a person intentionally dealt with the relevant information and was reckless as to the nature of that information.74 The PJCIS recommended that the Bill include a note:

… making explicit that the secrecy offences relating to security classified information and other ‘inherently harmful information’ will only apply where a person intentionally deals with the relevant information, and where the person is reckless as to the nature of that information. 75

Recommendations 15 and 16 The PJCIS recommended that the specific amendments proposed in the Attorney-General’s amendments to narrow the scope of the offences at proposed section 122.1 in relation to ‘inherently harmful information’ be implemented. These amendments included removing paragraph (d) of the definition of ‘inherently harmful information’ at proposed section 121.1, which referred to ‘information that was provided to the Commonwealth in order to comply with an obligation under a law or otherwise by compulsion of law’. In the view of the PJCIS, this change would ‘remove from the scope of the offences a range of information that, while potentially sensitive, may not be considered ‘inherently harmful’ enough to warrant inclusion in the general secrecy offences’.76

In the Bill as introduced the definition of ‘inherently harmful information’ included ‘(b) information the communication of which would, or could reasonably be expected to, damage the security or defence of Australia’. The PJCIS noted that ‘the wording of this paragraph effectively includes a harm-based test’ and agreed that it would be more coherent for this paragraph to be placed in the other key definition for the proposed secrecy offences —‘cause harm to Australia’s interests’.77

Further, the PJCIS also supported the Attorney-General’s other proposed amendments to the offences in proposed section 122.1 for communication or dealing with inherently harmful information included removing strict liability from elements of the offences, and limiting the offences to Commonwealth officers.

Recommendation 17 Proposed section 122.2 contains secrecy offences in relation to ‘conduct causing harm to Australia’s interests’. The PJCIS recommended that the Attorney-General’s proposed amendments to narrow the scope of these offences be implemented and stated that the amendments ‘will help ensure the offences are more appropriately targeted towards the most harmful conduct’.78 The amendments included:

74. Ibid., p. 145. 75. Ibid., p. 146. 76. Ibid., p. 146. 77. Ibid., p. 146. 78. Ibid., p. 147.

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… removing paragraphs (a)(i), (d) and (e) from the definition of ‘cause harm to Australia’s interests’, clarifying that paragraph (f) applies to the health or safety of the Australian public, or a section of the Australian public, and limiting the offences to Commonwealth officers.

Recommendation 18 Proposed sections 121.2 and 122.1(3) relate to removing or holding information from or outside a ‘proper place of custody’. Proposed section 121.2 provides that the meaning of ‘proper place of custody’ will be prescribed by the regulations. The PJCIS considered that ‘[t]o ensure that the law is able to be readily understood … any material incorporated into these regulations should be required to be publicly available’.79 It recommended ‘the Bill be amended to require that any material incorporated into regulations for the purpose of the definition of ‘proper place of custody’ at proposed section 121.2 be publicly available’.80

Recommendation 19 Proposed subsections 122.1(4) and 122.2(4) make it an offence for a person to fail to comply with a lawful direction regarding the retention, use or disposal of certain sensitive information. The PJCIS agreed with the Inspector-General of Intelligence and Security ‘that it would not be appropriate for the offence concerning “inherently harmful information” to extend to lawful directions that have no bearing upon the protection of the security of that information’. It supported the suggestion that further statutory parameters be included to ‘more narrowly target the scope of the offence’. The PJCIS recommended that ‘the Bill be amended to limit the secrecy offence at proposed section 122.1(4), in relation to failing to comply with a lawful direction, to directions that have been issued for the purpose of protecting the security of the ‘inherently harmful information’ against unauthorised access or disclosure’.81

Recommendation 20 Proposed section 122.3 provides for an aggravated offence to apply if an underlying secrecy offence occurs in particular circumstances. These circumstances include ‘at the time the person committed the underlying offence, the person held an Australian Government security clearance’ (subparagraph 122.3(1)(b)(v)). However, the PJCIS considered that ‘[b]aseline clearance is not sufficiently differentiated from non-clearance holders to justify an aggravated penalty’.82 It recommended that ‘the Bill be amended to limit the aggravating factor at subparagraph 122.3(1)(b)(v) … to persons holding an Australian Government security clearance that allows the person to access information with a classification of SECRET or above’.83

Recommendation 21 The PJCIS ‘strongly supported’ the Attorney-General’s proposal ‘for separate secrecy offences, narrower in their range of conduct captured, to be established for non-Commonwealth officers’ and recommended it be implemented. The Attorney-General’s proposed amendment was for proposed section 122.4A which creates offences for communicating and dealing with information by non-Commonwealth officers. The PJCIS stated:

While the Committee notes that the proposed new offences for non-Commonwealth officers do not fully replicate the model proposed by the Australian Law Reform Commission, the Committee notes that

79. Ibid., p. 148. 80. Ibid., p. 149. 81. Ibid., p. 149. 82. Ibid., p. 150. 83. Ibid., p. 151.

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the offences are appropriately limited to highly classified information and conduct that results in, or is likely to result in, harm to essential public interests. 84

Recommendation 22 The proposed defences to the secrecy offences in Schedule 2 include:

• proposed section 122.5(1) where the person was exercising a power, or performing a function or duty, in the person’s capacity as a Commonwealth officer or under an arrangement with the Commonwealth or a Commonwealth entity and

• proposed section 122.5(2) where the information has already been communicated or made available to the public with the authority of the Commonwealth.

The PJCIS noted evidence received during its inquiry that the proposed secrecy offences may prohibit dealing with or communicating information that would otherwise be accessible to Australians under the freedom of information legislation.85 It recommended that the Bill be amended to make clear the effect of the defences in subsections 122.5(1) and (2) in relation to the Freedom of Information Act 1982.86

Recommendation 25 The PJCIS noted the ‘particular difficulty’ of the IGIS and her staff in meeting the evidential burden for the defence in 122.5(1) ‘due to their specific legislative obligation not to disclose information obtained in the course of their duties to any person, or to a court’. It recommended:

… the Bill be amended to ensure that staff of the Inspector-General of Intelligence and Security are appropriately protected [and] … this amendment be developed in consultation with the Inspector-General and her Office. 87

Recommendation 26 The PJCIS noted that participants to the inquiry had pointed out that several of the defences to the secrecy offences in the Bill only extend to communications and not dealing with certain information. It considered this was ‘unacceptable’.88 The PJCIS recommended that four of the proposed defences ‘be broadened to cover all dealings with information, rather than being limited to communication of information’:

• proposed section 122.5(3) - relating to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman and the Law Enforcement Integrity Commissioner

• proposed section 122.5(4) - relating to the Public Interest Disclosure Act 2013

• proposed section 122.5(5) - relating information provided to a court or tribunal and

• proposed section 122.5(8) - relating to information that has been previously communicated.89

Recommendation 27 The PJCIS noted the views of participants to its inquiry that the defence in proposed section 122.5(6) for ‘information dealt with or held for the purposes of fair and accurate reporting’ was

84. Ibid., p. 151. 85. Ibid., p. 151. 86. Ibid., p. 152. 87. Ibid., p. 182. 88. Ibid., p. 182. 89. Ibid., p. 183.

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‘too narrow and subjective’.90 It recommended that the Attorney-General’s proposed amendments to the defence for journalists at proposed section 122.5(6), and the associated amendments at 122.5(7), be implemented:

This includes expanding the defence to all persons engaged in reporting news, presenting current affairs or expressing editorial content in news media where the person reasonably believed that dealing with or holding the information was in the public interest.

The Committee also recommends that the Government consider further refinements to the proposed defence in order to:

- make explicit that editorial support staff are covered by the defence, including legal advisors and administrative staff,

- ensure editorial staff and lawyers, who are engaging with the substance of the information, be required to hold a reasonable belief that their conduct is in the public interest, and

- allow administrative support staff working at the direction of a journalist, editor or lawyer who holds the reasonable belief, to benefit from the defence. 91

Recommendation 28 Some submissions to the PJCIS inquiry suggested the defence in proposed subsection 122.5(6) should be changed to be an element of the proposed offences rather than a defence which a defendant would need to raise. However, the PJCIS did not consider it would ‘be appropriate to recast the defence as an element of the offence’.92

The Attorney-General’s proposed amendments changed the related proposed subsection 122.5(7) which limits when a person can ‘reasonably believe that dealing with or holding information is in the public interest’ and fall within the defence in subsection 122.5(6). However, the PJCIS consider the revised paragraph 122.5(7)(d) would give rise to ‘technical difficulties … primarily due to use of similar language in the elements of the offence’. Accordingly, the PJCIS recommended that ‘the Bill be amended to remove proposed paragraph 122.5(7)(d), which currently limits the availability of the defence for persons engaged in reporting news’.93

Recommendation 29 While the PJCIS did not considered that ‘an additional, more broadly drafted public interest defence is necessary in the Bill’, it did identify an issue with the defence for ‘information that has already been communicated’ (proposed subsection 122.5(8)). It was concerned that this defence ‘may not protect a person who wished to report misconduct or maladministration in, for example, the investigation of a Commonwealth criminal offence, as it would be difficult for that person to claim that their reporting of the wrongdoing did not interfere with the investigation’. The PJCIS recommended:

… the Bill be amended to provide for a defence for a person who reports, to an appropriate entity, malpractice or maladministration in the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth or the functions of the Australian Federal

90. Ibid., p. 183. 91. Ibid., p. 184. 92. Ibid.

93. Ibid., p. 185.

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Police under paragraph 8(1)(be) of the Australian Federal Police Act 1979 or the Proceeds of Crimes Act 2002. 94

Recommendation 30 The PJCIS supported the Attorney-General’s Department’s suggestion that ‘the Bill be amended to include a defence for dealing with information for the purpose of obtaining legal advice’.95

Recommendations 31 and 32 The PJCIS considered there was ‘scope for further clarity’ in the Bill on the interaction of the proposed secrecy offences with other legislation. It recommended the Bill be amended ‘to clarify that the secrecy offences in Schedule 2 do not override the obligations and immunities included in’:

• Freedom of Information Act 1982

• Privacy Act 1988

• Ombudsman Act 1976

• Inspector-General of Intelligence and Security Act 1986 or

• Public Interest Disclosure Act 2013.96

Recommendation 33 The PJCIS considered that, due to the broad scope of the proposed secrecy offences and ‘the potential for highly sensitive cases to arise, including in relation to journalists and national security matters’, it was appropriate that the Bill be amended so that the Attorney-General be required to consent to any prosecution and be required to consider applicable defences.97

Recommendation 34 The PJCIS recommended that the ‘Bill be amended to reduce the maximum penalty for the secrecy offences in proposed sections 122.1, 122.2 and 122.4A (proposed by the Attorney-General’s amendments) to seven years’ imprisonment for conduct involving communication of information, and three years’ imprisonment for other dealings’.98

For the aggravated secrecy offences in proposed section 122.3, the PJCIS recommended the maximum penalties should be ten years’ imprisonment for conduct involving communication of information and five years’ for other dealings.99

Recommendations concerning security classification, evidentiary certificates and clearances A number of PJCIS recommendations were made in relation to the security classification, evidentiary certificates and clearance aspects of the proposed offences in the Bill.

94. Ibid., p. 188. 95. Ibid.

96. Ibid., p. 197. 97. Ibid., p. 198. 98. Ibid., p. 199. 99. Ibid.

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Recommendation 7 Whether a person held an ‘Australian Government security clearance’ is an element in several of the Bill’s proposed aggravated offences.100 The PJCIS recommended an amendment to define the meaning of this term.101

Recommendation 8 and 9 The definition of ‘security classification’ (proposed section 90.5) is relevant to proposed offences for espionage in Schedule 1, the aggravated secrecy offences in Schedule 2 and the secrecy offences for communicating and dealing with information by non-Commonwealth officers (proposed by the Attorney-General).

The PJCIS supported the Attorney-General’s proposed amendments to narrow the proposed definition of ‘security classification’ to a classification of SECRET or TOP SECRET, or equivalent, and to remove strict liability from the espionage and secrecy offences. It also recommended that the Bill be amended to define each ‘security classification’ to which criminal liability attaches. Its recommendation stated:

Each definition should include harm-based statutory criteria for determining the proper classification to apply to that information. Any material incorporated by reference into the regulations should be required to be publicly available. 102

Recommendation 10 The PJCIS recognised concerns which were raised during its inquiry that the security classification system was ‘essentially administrative in nature’.103 It considered there was a need for safeguards ‘to ensure that it was appropriate for the particular classification to [be] applied to that document or piece of information’.104 The PJCIS recommended that the Bill be amended:

… to require that prior to initiating proceedings for an espionage or secrecy offence that relies on the fact that information is security classified, the head of the originating agency must certify that it is appropriate that the information had a security classification at the time of the conduct that is alleged to constitute the offence.

This certificate should operate as a condition precedent to the initiation of proceedings. The certificate should not have any evidentiary effect. 105

Other recommendations

Recommendation 23 and 24 The PJCIS noted that proposed section 122.4 dealing with unauthorised disclosure of information by current and former Commonwealth officers ‘largely replicates the existing secrecy offences proposed to be removed from section 70 of the Crimes Act’. It stated:

This offence has been included in the Bill to ‘preserve the operation of’ other Acts and Regulations that impose duties of non-disclosure on Commonwealth officers ‘until such time as each duty can be reviewed to determine whether it should be converted into a stand-alone specific secrecy offence, or

100. Proposed sections 91.6(1)(b)(v), 122.3(1)(b)(v), 137.1A(1)(b). 101. PJCIS, Advisory report, op. cit., p. 52. 102. Ibid., p. 76. 103. Ibid., p. 73. 104. Ibid., p. 75. 105. Ibid., p. 76.

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whether criminal liability should be removed’. However, given the well-documented problems with the existing section 70 offence that are replicated in proposed section 122.4, and noting the already broad scope of the new secrecy offences in proposed sections 122.1 and 122.2, the Committee considers it would be appropriate to put an outer limit on this period of review.106

The PJCIS recommended the Bill be amended to apply a sunset period of five years to proposed section 122.4.107

The PJCIS also recommended:

… following the passage of the general secrecy offences in Schedule 2 to the Bill, the Attorney-General initiate a review of existing secrecy offences contained in other legislation, taking into account the set of principles contained in the Australia Law Reform Commission’s report, Secrecy Laws and Open Government in Australia.

108

Recommendation 53 and 54 Section 35A of the Australian Citizenship Act 2007 enables the Minister to determine that a person with dual-citizenship ceases to be an Australian citizen where they have been convicted of specified offences. The PJCIS noted the broader scope of the proposed offences in the Bill will expand this citizenship cessation regime. It considered that section 35A should apply to ‘serious national security offences’. However, the PJCIS recommended that the Bill be amended such that section 35A of the Australian Citizenship Act applies to the foreign interference offences but does not apply to:

• proposed section 82.9 (preparing for or planning sabotage offence)

• proposed section 83.4 (interference with political rights and duties) or

• proposed Part 5.6 - Secrecy of information [the proposed secrecy offences in Schedule 2].109

Currently, under the Australian Citizenship Act, the Minister is required to refuse citizenship applications by stateless persons where the applicant has been convicted of a ‘national security offence’. The PJCIS noted that Schedule 1 and 2 contain amendments to the definition of ‘national security offence’ to include the proposed offences in the Bill in the definition of a ‘national security offence’.110 It recommended the Bill be amended to limit this change to ‘those offences which contain a clear nexus to national security’.111

Recommendation 56 Section 15AA of the Crimes Act provides for bail not to be granted in certain cases unless exceptional circumstances exist. The Bill (items 38 and 39 of Schedule 1) will amend section 15AA to revise this presumption against bail in relation to the offences in Division 80 (treason, urging violence and advocating terrorism or genocide) and Division 91 (espionage) of the Criminal Code. It will also add the foreign interference offences in proposed subsection 92.2(1) and subsection 92.3(1) in proposed Division 92 ‘where it is alleged that the defendants conduct in relation to the offence involved making a threat to cause serious harm or a demand with menaces’.

106. Ibid., pp. 152-153. 107. Ibid. 108. Ibid., p. 154. 109. Ibid., p. 335. 110. Ibid., p. 335. 111. Ibid., p. 338.

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The PJCIS considered that ‘laws that create a presumption against bail should be limited to only the most serious offences’.112 It recommended that the Bill be amended so that section 15AA would apply to proposed Division 80, Division 91, and Division 92 of the Criminal Code only if:

• the death of a person is alleged to have been caused by conduct that is a physical element of the offence or

• conduct that is a physical element of the offence carried a substantial risk of causing the death of a person.113

Recommendation 58 The PJCIS noted that a number of the Bill’s new and modified offences will be subject to section 19AG of the Crimes Act. This section requires a sentencing court to impose a non-parole period that is three-quarters of the sentence imposed by the court or where the sentence is imprisonment for life, three-quarters of 30 years. The PJCIS noted that section 19AG limits judicial discretion and considered its operation should be limited to ‘the most serious espionage offences in the Bill’.114 It recommended that section 19AG apply to the offences in proposed subsections 91.1(1) and 91.1(2) (intentionally or recklessly dealing with information etc. concerning national security which is or will be made available to foreign principal) ‘rather than all the espionage offences in Division 91’.115

Attorney-General’s response The Attorney-General welcomed the PJCIS report and stated that the ‘most substantive changes are those that adopt the Government’s proposed amendments’:

Those Government amendments expanded the public interest defence for journalists and created separate graduated offences for commonwealth officers and non-commonwealth officers. The amendments were designed to strike the best possible balance between keeping Australia safe and not impeding the ordinary and important work of journalists and media organisations.

In addition to minor drafting amendments and the adoption of the substantive Government amendments that I provided earlier this year, the additional substantive changes now recommended include that:

There be a reduction to the maximum penalties for the proposed new secrecy offences, and to require the consent of the Attorney-General to any prosecution under these proposed new secrecy offences;

That all secrecy offences in other Commonwealth legislation are reviewed; and

Clarification that the journalism defence extends to all editorial, legal and administrative staff within the news organisation. 116

Policy position of non-government parties/independents The ALP has offered cautious support for the objectives of the suite of Bills, with Shadow Minister for Foreign Affairs, Penny Wong, stating:

112. Ibid., p. 343. 113. Ibid., pp. 344-45. 114. Ibid., pp. 349-50. 115. Ibid., p. 350. 116. C Porter (Attorney-General), Attorney-General welcomes Committee Report on Espionage and Foreign Interference Bill,

media release, 7 June 2018, p. 1.

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Broadly, Labor has said, subject to the detail and subject to this inquiry, we do think it is appropriate for additional regulation to ensure that our Australian sovereignty, and the need to safeguard it, is reflected in our legislative framework. 117

Following the release of the PJCIS report, the Shadow Attorney-General, Mark Dreyfus, was reported as stating that ‘I think the Bill if it is amended in the form recommended by the Committee will strike an appropriate balance between national security and keeping our freedoms intact’.118

The Australian Greens have expressed strong concerns about the Bill, and the broader package of reforms, arguing that it is too broad in scope and ‘risks criminalising a wide range of actions which are not only legitimate, but for the common good’.119

Centre Alliance Senator Rex Patrick has proposed amendments to the Bill which would amend the Intelligence Services Act 2001 to extend parliamentary oversight of intelligence agencies.120

Australian Conservatives Senator Cory Bernardi welcomed the introduction of the Bills and noted: ‘we will consider specific proposals when they are tabled and respond in good time’.121

Position of major interest groups The views of a number of interest groups, government agencies and individuals are set out in their submissions and evidence to the PJCIS inquiry. The general views expressed on the Bill are summarised below, however, some evidence to the PJCIS inquiry was received prior to the release of the Attorney-General’s proposed amendments to the Bill.

Submitters to the PJCIS inquiry generally accepted the position that there are ongoing and increasing risks to Australia’s national security in regard to espionage and foreign interference. There was a general consensus that there was a need for Australia’s security legislation to be updated to be relevant to the new challenges. However, views diverged on how effectively this objective is achieved in the Bill and the unintended consequences that may result.

Urgency of reform The Bill was strongly supported in evidence to the PJCIS by a number of senior public officials, including from the Australian Security Intelligence Organisation (ASIO), the Attorney-General’s Department and the Australian Federal Police.122 ASIO officers stressed the current high levels of threat which required Australia’s national security activity ‘keep pace with this unprecedented security environment, supported by modern, targeted legislation’.123

Mr Peter Jennings of the Australian Strategic Policy Institute, in his capacity as a private citizen welcomed the Bill. He stated:

117. P Wong (Shadow Minister for Foreign Affairs), Interview with Kieran Gilbert: SKY News AM Agenda: Foreign interference laws; Government divisions over China; US defence strategy; defence exports; Trans-Pacific Partnership; ASEAN; Labor leadership on policy agenda, transcript, 30 January 2018, p. 2.

118. M Dreyfus (Shadow Attorney-General), Interview with Hamish McDonald, ABC RN Breakfast, espionage and foreign interference bills, transcript, 8 June 2018, p. 4. 119. N McKim (Greens Justice spokesperson), Foreign interference laws, media release, 24 January 2018. 120. Centre Alliance [sheet 8458], National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017. 121. C Bernardi, Response to foreign influence in Australian politics, media release, 5 December 2017. 122. Evidence to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation

Amendment (Espionage and Foreign Interference) Bill 2017, 31 January 2018, pp. 16-47. 123. P Vickery (ASIO), Evidence to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 31 January 2018, p. 19.

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The drafters of the Bill should be commended for delivering such a comprehensive modernisation of Australian legislation relating to espionage, foreign interference and secrecy offences. New laws designed to counter sabotage against critical infrastructure and theft of trade secrets are timely and necessary. Indeed, one could argue that the modernisation of our legal framework supporting counter-espionage and subversion was long overdue. So, the legislation is welcome and puts Australia at the forefront of international efforts on the part of the western powers to counter increased activities of a number of states, most particularly China, Russia, Iran and North Korea, to steal intellectual property, threaten the security of critical infrastructure and undermine liberal democracies by subverting their political processes and decision-making sovereignty.

124

Consultation A number of organisations highlighted the wide-ranging implications of the proposed amendments and criticised the adequacy of the consultation process for the Bill. For example, the Australian Conservation Foundation submitted that ‘the period for consultation has been inadequate, and that further time is required for Australian civil society organisations to understand the implications of this Bill’.125 The submission from Getup argued that public understanding of the proposed legislation ‘been hindered by their complexity, lack of consultation and the way they were introduced’. It asked that the Bill be withdrawn and redrafted ‘after extensive community consultation’.126

At the PJCIS public hearing on 31 January 2018, the Commonwealth Ombudsman indicated that it was only consulted on the consequential amendments to the Ombudsman Act made by the Bill.127 The acting Inspector-General, Mr Blight indicated that the IGIS had not been consulted in the lead-up to the drafting of the provisions of the Bill and accessed the Bill when it was introduced into Parliament.128 Officials from the Attorney-General’s Department (AGD) confirmed to the PJCIS that consultation had been undertaken with portfolio policy departments, such as Prime Minister and Cabinet, but this process had not included IGIS or the Commonwealth Ombudsman.129 However, AGD officers indicated an openness to addressing concerns raised by oversight agencies in relation to the Bill. Anna Harmer, from AGD, stated:

We are satisfied that the offences do not capture disclosures to the IGIS and Ombudsman for the purpose of performing their functions. That said, we continue to discuss with the IGIS and the Ombudsman the questions that they have raised to ensure that the bill does operate as intended. 130

Alleged Chinese government interference The Chinese Community Council of Australia highlighted the potential impact of the Bill and the proposed Foreign Influence Transparency Scheme legislation on a range of groups including many Australians with relationships with China and Chinese Australians. It noted that the ‘position of

124. P Jennings, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 21 January 2018, p. 1. 125. Australian Conservation Foundation, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference Bill) 2017, 14 February 2018, p. 1. 126. Getup, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security

Legislation Amendment (Espionage and Foreign Interference Bill) 2017, n.d., pp. 2 and 3. 127. J Hinchcliffe (Commonwealth Ombudsman), Evidence to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 31 January 2018, p. 8. 128. J Blight (IGIS), Evidence to the Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security

Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 31 January 2018, p. 2. 129. A Harmer (AGD), Evidence to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 31 January 2018, p. 42. 130. Ibid., p. 17.

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[the] Chinese Australian community needs to be prime importance because China is the obvious elephant in the room for either bill’.131

In their submission Professor Clive Hamilton and Mr Alex Joske highlighted alleged ‘foreign interference activities carried out by agencies of the Chinese Communist Party’ in Australia.132 The submission argued that ‘[i]f the offences defined by the new legislation do not encompass such activities, then the legislation will fail in its objective’. In terms of the scope of the foreign interference offences their submission stated ‘[i]t is not clear that the legislation as currently framed would capture some of the more important foreign interference operations that are being undertaken…’.133 At a public hearing, Professor Hamilton told the PJCIS that he saw the ‘package of legislation as absolutely vital to the beginning of the pushback so that we can protect our freedoms and our sovereignty’.134

However, a joint submission from concerned scholars of China and the Chinese diaspora cautioned:

Where criticism of China's actions is substantiated by clear evidence, there should be no hesitation in applying scrutiny and appropriate penalties. Too often, though, the media narrative in Australia singles out the activities of individuals and organisations thought to be linked to the Chinese state and isolates them from a context of comparable activity, engaged in by a range of parties (among them our allies).

135

Notably, on 8 December 2017, the Chinese Foreign Ministry Spokesperson Geng Shuang responded to Prime Minister Turnbull’s statements concerning foreign interference when introducing the package of national security legislation:

We are shocked by the Australian leader's remarks which are lack of principle and simply pander to those irresponsible reports by some Australian media. Imbued with bias towards China, these groundless and unfounded remarks can sabotage China-Australia relations and are detrimental to the foundation of mutual trust and cooperation. We are strongly dissatisfied with those remarks and has lodged stern representations with the Australian side.

China consistently develops its relations with other countries on the basis of mutual respect and non-interference in domestic affairs. That is also how we pursues our relationship with Australia. We strongly urge the relevant people in Australia to shake off their Cold War mentality and bias against China, immediately stop uttering false remarks that undermine political mutual trust and mutually beneficial cooperation, and take effective measures to offset negative effects so as to avoid disrupting and impacting the development of China-Australia relations.

136

Scope of proposed offences A number of submissions were received from the legal organisations, including the Law Council of Australia, Australian Lawyers for Human Rights, the Human Rights Law Centre and the Australian Lawyers Alliance. A common theme in these submissions was that provisions in the Bill were drafted so broadly that there was a lack of certainty about what conduct would be criminalised.

131. Chinese Community Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference Bill) 2017, 15 February 2018, p. 3. 132. C Hamilton and A Joske, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, n.d., p. 2. 133. Ibid., pp. 17-18. 134. C Hamilton, Evidence to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security

Legislation Amendment (Espionage and Foreign Interference Bill) 2017, 31 January 2018, p. 60. 135. Concerned Scholars of China and the Chinese Diaspora, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017,

19 March 2018, p. 2. 136. G Shuang (Chinese Foreign Ministry Spokesperson), Regular Press Conference, transcript, 8 December 2017.

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For example, the Law Council of Australia stated that ‘… many of the offence provisions are broadly drafted to capture a range of benign conduct that may not necessarily amount to harm or prejudice to Australia’s interests’. It considered that it was ‘essential that the measures be certain and well-defined, particularly given the severe criminal sanctions that attach to the proposed offences.137 The Law Council welcomed the Attorney-General’s proposed amendments but emphasised:

… the need for improvements to be made to the EFI Bill on a broad range of other proposed offences and particularly in relation to the extension of the definition of “national security” beyond the security and defence of Australia and to include Australia’s political and economic relations with other countries.

138

The Joint Media Organisations’ submission raised ‘serious concerns’ with the secrecy and espionage offences in the Bill:

The proposed legislation criminalises all steps of news reporting, from gathering and researching of information to publication/communication, and applies criminal risk to journalists, other editorial staff and support staff that knows of the information that is now an offence to ‘deal’ with, hold and communicate.

The Bill is a significant step beyond the existing legislation that applies to Commonwealth officers. This is particularly when it has not been demonstrated that there are ‘problems’ that need to be ‘fixed’. The result is that fair scrutiny and public interest reporting is increasingly difficult and there is a real risk that journalists could go to jail for doing their jobs. We recommend that a general public interest/news reporting defence be available for all of the relevant provisions in both the secrecy and espionage elements of the Bill.

139

The joint councils for civil liberties’ (CCLs) submission identified that ‘the new and expanded secrecy offences in Schedule 2 are of the greatest concern’. It stated:

There are aspects of the Bill we can support as appropriate modernising of existing offences. But there are many aspects which we see as unjustified overreach and the overall implications of this Bill, were it to be implemented in its current form, would be extremely damaging to many core aspects of Australia’s democracy and open society. The CCLs do not support the Bill in it is current form.

140

After examining the Attorney-General’s proposed amendments, the CCLs described them as ‘significant steps in the right direction and improve some of the most dangerous aspects of the Bill’. However, the CCLs maintained their view that ‘the problems with the secrecy offences go beyond the issues identified by the [Attorney-General]’.141

The Australian Human Rights Commission submission suggested that the definitions of certain terms in the Bill are ‘overbroad’, which could have the consequence of capturing conduct that is either not harmful, or not sufficiently harmful to warrant criminalisation.142 This submission

137. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, pp. 6-7. 138. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 13 March 2018, pp. 1-2. 139. Joint Media Organisations, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, p. 1. 140. Joint councils for civil liberties, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 14 February 2018, p. 6. 141. Joint councils for civil liberties, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 12 March 2018, p. 2. 142. Australian Human Rights commission, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 24 January 2018, p. 4.

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stresses that human rights, such as freedom of speech, should only be affected in legislation to a degree that is necessary and proportionate to the threat. The submission concludes that the Bill should not be passed until the secrecy provisions in Schedule 2 are amended to ensure that this is the case.143

Uncertainty concerning key terms Similarly, submitters and witnesses to the PJCIS inquiry highlighted the uncertainty in key terms and definitions in the Bill which potentially give them inappropriately broad application. For example, the IGIS noted that the term ‘lawful direction’ is not defined in the Bill:

Nor is there any specific limitation on who may make these directions or the content of directions beyond the broad subject matter to which they must relate (being the retention, use or disposal of the relevant information, which could conceivably cover most dealings with it). This means a broad class of people (including presumably most or all supervisors) will have the ability to give directions which will effectively criminalise behaviour. Such directions may well be lawful but, in my view, it does not necessarily follow from the mere fact that a direction is lawful that there is an appropriate basis for applying criminal liability to contraventions of all such directions. The proposed offence could attach significant criminal sanctions to the breach of directions that are of a relatively trivial nature and do not, in fact, raise any realistic prospect of the relevant information being placed at risk of compromise.

There is also a risk that the application of criminal sanctions to any and all such directions may engender a punitive and defensive approach towards security compliance. This may create reluctance on the part of some officers to proactively disclose and report breaches, and may lead to the concealment of compliance issues out of fear of exposure to criminal penalty.

144

A number of significant matters and definitions in relation to the new offences are not set out in the Bill and will be prescribed by regulation. These include definitions which will be core elements in determining if conduct will fall under a proposed offence such as the definition of ‘proper place of custody’. This was highlighted by the Commonwealth Ombudsman which stated:

The bill and regulations do not currently provide a definition of a proper place of custody. If inherently harmful information is not held in a proper place of custody, an offence is committed under section 122.1(3). My office will hold inherently harmful information under the current definition proposed in the Bill. Without a definition of a proper place of custody, it is not clear what resourcing or other practical implications this requirement may have on my office.

145

The Law Council considered that the ‘basic difficulty’ with the ‘inherently harmful information’ offences, the ‘conduct causing harm to Australia’s interests’ offences and the related aggravated offences was:

[T]hey cover a broad range of conduct relating to non-specific interests which may or may not be in the public interest. This means that while some information may justifiably be subject to a secrecy offence provision, there may be a ban on a broader range of communications or dealings with information beyond a clear and specific public interest.

146

143. Ibid., p. 5. 144. Inspector-General of Intelligence and Security, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, p. 9. Also see J Blight (IGIS), Evidence to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation

Amendment (Espionage and Foreign Interference) Bill 2017, 31 January 2017, p. 12. 145. Commonwealth Ombudsman, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, pp. 4-5. 146. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National

Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, p. 55.

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Impact on oversight and integrity agencies Oversight and integrity agencies raised concerns with the Bill in submissions to the PJCIS inquiry. In particular, they highlighted that the new offences had the potential of forcing staff of these agencies, or those dealing with these agencies, to rely on a defence to avoid a criminal sanction and the ‘chilling effect’ of the new offences in relation to disclosures.

The Inspector-General of Intelligence and Security (IGIS) expressed concern that the legislation may ‘deter some individuals from speaking up about real or perceived wrongdoing from an intelligence agency’. This had the potential to make IGIS a less effective body. The submission noted that the provision of information to IGIS is a defence under the legislation, but expressed concern about the evidentiary burden that this poses. The fact that it is a defence effectively means that this may not come into issue until a criminal charge has been laid. This may also have the effect of inhibiting public servants from providing information to IGIS in the course of an investigation.147

AGD did not agree with the arguments made during the PJCIS inquiry that framing a provision as a defence rather than exception to an offence could procedurally disadvantage a defendant. It stated neither AGD nor the Office of the Commonwealth Director of Public Prosecutions were aware of there being a difference in procedure for an exception or a defence:

Regardless of whether the provision is framed as an exception or defence, the accused must discharge the evidential burden pursuant to section 13.3 of the Criminal Code. In either circumstance, an accused may do this by relying on matters that form part of the prosecution case or seeking to lead evidence as part of the defence case, to discharge the burden. The question of whether the evidential burden has been satisfied is a question of law, to be decided by a judge. If discharged, the question of whether the prosecution has disproven the defence/exception beyond reasonable doubt is put to a jury.

148

However, it acknowledged that the ‘question of whether a matter should be cast as an element of an offence or as a defence is a policy question’.149

After the Attorney-General’s proposed amendments were released, the IGIS was ‘optimistic that, subject to my consideration of specific provisions, these proposals have the potential to resolve the key legal and practical issues for the IGIS that I have raised with the PJCIS’. However, the IGIS noted that a ‘more definitive opinion on the effectiveness of the proposals would require an opportunity to consider and comment on specific provisions’.150

Concerns regarding the effect of the Bill for investigative agencies were also explored in the Commonwealth Ombudsman’s submission. The Ombudsman noted that the Explanatory Memorandum to the Bill states that the work of the Ombudsman should not be affected, but states that contrary to this assertion ‘the current drafting of the amendments appears to produce several unintended consequences for my office’.151 Like IGIS, the Ombudsman raises concerns that agency staff may have to rely on a defence to a serious criminal charge merely to perform their

147. Inspector-General of Intelligence and Security, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, p. 3. 148. AGD, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, Supplementary Submission 6.5, 23 March 2018, p. 1. 149. Ibid. 150. Inspector-General of Intelligence and Security, Submission to Joint Committee on Intelligence and Security, Inquiry into the

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 13 March 2018, p. 3. 151. Commonwealth Ombudsman, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, p. 1

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normal functions. Also like IGIS, the Ombudsman expressed uncertainty about the interaction between the new provisions and existing law, such as the Public Interest Disclosure Act 2013.

The Australian Information Commissioner also submitted that the scope of interactions and overlaps between the proposed legislation and existing legislation, particularly the Privacy Act 1988 and the Freedom of Information Act 1982, should be clarified. The Commissioner also expressed concern that the secrecy provisions of the Bill should not affect the Notifiable Data Breaches scheme, which requires data providers to notify clients of potentially dangerous data breaches.152

Harm-based approach Some submitters and witnesses to the PJCIS inquiry argued that amendments in the Bill were out-of-step with the harm-based approach recommended by previous inquiries into secrecy offences. For example, the Law Council of Australia supported the amendment of the Bill consistent with the previous reports undertaken by the Australian Law Reform Commission (ALRC) and the Independent National Security Legislation Monitor (INSLM). It noted that the ALRC recommended that secrecy offences should be 'reserved for behaviours that harms, is reasonably likely to harm, or intended to harm essential public interests'.153 However, in the proposed secrecy offences harm to ‘essential public interest is not necessarily implicit in the prescribed categories of information’.154

At a public hearing for the PJCIS inquiry, AGD characterised the Bill as ‘following the ALRC report in spirit if not in letter’, noting that since the ALRC report there have been a range of disclosures which have ‘brought into stark relief the consequences that can come from disclosure of information and the ease with which very large tranches of information can be disclosed’.155 The officer stated:

The fundamental premise of the ALRC's consideration of secrecy laws was that disclosures that cause harm should be covered by the criminal law. From our perspective, we would argue that that is what we have implemented, although in a different form to what the ALRC envisaged in its report. We have taken the view that there are categories of information the release of which is inherently harmful, and that is reflected in the bill. The other offence does require proof of interference with, harm to or prejudice to what we have determined to be essential public interests. So, although the offences in the bill do not exactly replicate the structure put forward by the ALRC, we have taken that as a guiding principle that harmful information is what should be targeted by the criminal law.

156

Impact on journalists and related professionals The application of the secrecy offences and defences to the activities of journalists and other related media professionals has been a key focus in relation the Bill. The submission from the Joint Media Organisations noted that anyone who ‘communicates’ or ‘deals’ with certain information provided by a Commonwealth officer could be in breach of the new secrecy offences. It argued that the term ‘deals’ with information is ‘unnecessarily broad - particularly when applied to the news media’:

152. Office of the Australian Information Commissioner, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 23 January 2018, p. 2.

153. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, p. 58. 154. Ibid. 155. T Inverarity (AGD), Evidence to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security

Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 31 January 2018, p. 28. 156. Ibid.

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The expansion of the Bill means that journalists, editorial and support staff - for example legal advisers - that communicate or otherwise ‘deal’ with the information are now at significant risk of jail time as a result of merely having certain information in their possession in the course of news reporting and informing the Australian public of matters of public interest …

Expanding on that, if the journalist received such information, how could the journalist determine whether the material is in breach without possessing, communicating, and otherwise dealing with it? A mere discussion of unsighted material might place journalists in breach, notwithstanding that they may then ask others about the information - with or without being in possession of a document.

157

While the Joint Media Organisations were ‘grateful’ for the Attorney-General’s proposed amendments to the Bill, they considered that it ‘remains the case that journalists and their support staff continue to risk jail time for simply doing their jobs’. It emphasised a ‘long-held recommendation for exemptions for public interest reporting in response to legislation that criminalises journalists for going about their jobs’.158

In relation to the Attorney-General’s proposed amendments, the Law Council noted that ‘the absence of a public interest defence (the preferred position), the broadening of the ‘journalist’ defence is welcome, although the meaning of the term ‘news media’ is uncertain’.159 It observed:

A person who supplied information (e.g. about malpractice in the prosecution process) to a journalist would have no defence but the person who reported it in the news media would have a defence. The policy of punishing those who deal with such information outside the news media also requires justification.

160

Inspector-General of Intelligence and Security Similarly, the Inspector-General of Intelligence and Security (IGIS) emphasised the design of the new offences may produce a result which could impact on the ability of the IGIS and IGIS staff to exercise their powers, or to perform their functions and duties. The IGIS stated:

[I]t is possible that the prospect of exposure to criminal investigation and prosecution, and the need to satisfy a court of the evidential burden in relation to a defence, may deter some individuals from speaking up about real or perceived wrongdoing by an intelligence agency. Exposure to criminal sanction, and the need to rely on a defence, may also cause staff within the agencies to hesitate when responding to requests for information by the IGIS. The design of the proposed defences, and the relationship of the new offences with existing ‘secrecy override’ provisions in other Acts may also create legal barriers to disclosures or complaints.

161

The three key issues were identified by the IGIS:

1. The creation of barriers to people making complaints or disclosures to the IGIS, particularly:

(a) an absence of protection for persons who deal with records for the purpose of making a communication to the Inspector-General or IGIS staff (IGIS officials), but have not yet done so or are prevented from doing so

157. Joint Media Organisations, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, p. 2. 158. Joint Media Organisations, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 13 March 2018, pp. 1-2. 159. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National

Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 13 March 2018, p. 2. 160. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 13 March 2018, p. 2. 161. Inspector-General of Intelligence and Security, Submission to Parliamentary Joint Committee on Intelligence and Security,

Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, p. 3.

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(b) ambiguity about the relationship between the new offences and other legislation containing ‘secrecy override’ provisions. There is a risk that the new offences may be construed or perceived as overriding important immunities available under the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) and Public Interest Disclosure Act 2013 (PID Act) for persons who communicate information to IGIS officials.

2. The potential exposure of IGIS officials to investigation and prosecution for a serious offence, merely for communicating or dealing with information to undertake their normal duties, and the need for them to rely on a defence to avoid criminal sanction.

3. The proposed defences do not seem to recognise the legal barrier in s 34 of the IGIS Act 162 to IGIS

officials to providing evidence of the kind that would normally be required to discharge an evidential burden in defending an alleged offence. 163

The IGIS’s submission included extracts of other intelligence and security agency offences in the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and Intelligence Services Act 2001 (ISA) which include exceptions ‘if the person deals with the record for the purpose of the IGIS exercising a power, or performing a function or duty, under the [IGIS Act]’. The IGIS’s submission argues:

These exceptions do not require proof that any information was ultimately communicated to the IGIS. Rather, they require proof of the person’s intention to do so at the material time of dealing with or making the record. These provisions of the ASIO Act and ISA would, in my view, provide a better model for the exceptions in proposed ss 122.5(3) and (4).

164

Interaction with the Privacy Act and the Freedom of Information Act The Office of the Australian Information Commissioner (OAIC) highlighted the interaction between the proposed secrecy offences and Privacy Act and the Freedom of Information Act. The OAIC commented:

As secrecy provisions extend to Australian government agencies' handling of personal information, they overlap with certain provisions in the Privacy Act. For example, [Australian Privacy Principle] 12 outlines an APP entity's obligations when an individual requests to be given access to personal information held about them by the entity. This includes a requirement to provide access unless a specific exception applies. To limit uncertainty regarding the intersection of obligations, I generally suggest that secrecy provisions that regulate personal information make clear their interaction with the Privacy Act.

165

The OAIC also noted the potential impact of the proposed secrecy offences on the Notifiable Data Breaches (NDB) scheme under Part IIIC of the Privacy Act. The NDB scheme introduces an obligation from 22 February 2018 for all agencies and organisations with existing personal information security obligations under the Privacy Act to notify individuals whose personal information is involved in a data breach that is likely to result in serious harm, as well as notifying the OAIC. However, there are exceptions including where a Commonwealth law prohibits or regulates the use or disclosure of information (a secrecy provision). The OAIC indicated:

My Office's relevant NDB advisory guidance notes that 'if a secrecy provision permits the disclosure of information in the course of an officer's duties, there would not be inconsistency between the secrecy

162. Section 34 of the Inspector-General of Intelligence and Security Act 1986 imposes detailed secrecy obligations on persons who are, or who have been, the IGIS or IGIS staff. 163. Inspector-General of Intelligence and Security, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, p. 2. 164. Inspector-General of Intelligence and Security, Submission to Parliamentary Joint Committee on Intelligence and Security,

Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, p. 4. 165. Office of the Australian Information Commissioner, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 23 January 2018, p. 4.

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provision and the NDB scheme notification requirements, as complying with the notification requirements is the responsibility of the agency through its officers. While it would appear that the defence in section 122.5 of the Espionage and Other Offences Bill would therefore permit disclosures under the NDB Scheme, clarification would be useful to limit any uncertainty.

166

The Law Council also recommended that proposed secrecy provisions should expressly indicate whether they override the Freedom of Information Act and how they will interact with obligations under the Privacy Act.167 It suggested Privacy Impact Assessment (PIA) should be conducted of the secrecy provisions and noted that the ALRC report in 2010 had suggested that a ‘PIA should be prepared when a secrecy provision is proposed that may have a significant impact on the handling of personal information’.168

Public Interest Disclosures Scheme Concerns were raised regarding the potential impact of the new secrecy offences on the Public Interest Disclosures Scheme. For example, the Human Rights Law Centre stated that the ‘sheer breadth of the offences created in new sections 122.1-122.4 creates significant risks that the defences in new section 122.5, including the protections of the [Public Interest Disclosure Act], do not sufficiently protect the public interest’.169 The U.N. Special Rapporteur’s submission observed that the scheme is ‘only available to public officials’ and the defence does not appear to ‘apply to the wide range of conduct that would be classified as “dealing” with information’. The Commonwealth Ombudsman also noted:

Information communicated, or dealt with, in relation to a disclosure under the PID Act may also fall within the definition of inherently harmful information. While a defence exists in relation to communication in accordance with the PID Act, disclosers may need to rely on a defence to a serious offence in order to make use of the Commonwealth’s public interest disclosure regime. Similarly, Commonwealth employees who are tasked with functions under the PID Act which includes dealing with disclosed information may need to rely on a defence to a serious offence in order to perform the duties of their role.

170

Additional defences and exceptions Additional defences and exceptions to the secrecy offences were also proposed in the submissions to the PJCIS. In particular, the Law Council considered that ‘[t]o aid transparency, there should be a public interest disclosure defence to the secrecy provisions where the disclosure would, on balance, be in the public interest’.171 Further, the Law Council noted:

There is no proposed exception for where the conduct is engaged in for the purpose of obtaining legal advice in relation to the matter the subject of the offence. Such an exception (as opposed to a defence) should be included, as it is in other secrecy offences such as paragraph 35P(3)(e) of the ASIO Act. 172

166. Ibid., p. 5. 167. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, p. 71. 168. Ibid., p. 14. 169. Human Rights Law Centre, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National

Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, p. 5. 170. Commonwealth Ombudsman, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, submission no. 8, p. 5. 171. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National

Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, [Submission no. 5], 22 January 2018, p. 66. 172. Ibid., p. 69.

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A defence of communicating or dealing with information for the purpose of obtaining legal advice is included in the Government amendments to the Bill.173

Financial implications The Explanatory Memorandum to the Bill states that it will have no financial impact on Government revenue.174

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.175

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) considered the Bill in Report 2 of 2018. It identified that the Bill (in particular the secrecy offences in Schedule 2) engaged and limited a number of human rights. These included:

• the right to freedom of expression

• the right to an effective remedy

• the right to be presumed innocent

• the right to release pending trial and

• the right to privacy.176

The PJCHR sought the Attorney-General’s advice regarding a number of specific provisions, particularly their effectiveness in relation to the objectives of the Bill and whether the limitations on rights were reasonable and proportionate. In relation to Schedule 5 of the Bill, which amends the Foreign Influence Transparency Bill 2017, the PJCHR noted its previous consideration of that proposed legislation which identified it would ‘engage and limit the freedom of expression, the freedom of association, the right to take part in the conduct of public affairs, and the right to privacy’. Regarding Schedule 5, the PJCHR sought the Attorney-General’s advice in relation to ‘whether the amendments to the Foreign Influence Transparency Scheme Bill 2017 introduced by Schedule 5 pursue a legitimate objective, are rationally connected and proportionate to that objective’.177

The PJCHR concluded its consideration of the Bill in Report 3 of 2018 which addressed both the responses of the Attorney-General and the proposed amendments to the Bill which were released.178

Compatibility of the measures with the right to freedom of expression While the PJCHR acknowledged the amendments to the Bill addressed a number of the concerns in respect of the human rights compatibility of the proposed secrecy offences, it concluded that

173. See amendment 141 of the Government amendments, which will insert proposed subsection 122.5(5A) into the Criminal Code, providing a defence to prosecution for an offence against Division 122. 174. Explanatory Memorandum, op. cit., p. 4. 175. The Statement of Compatibility with Human Rights can be found at pages 6 to 23 of the Explanatory Memorandum to the Bill. 176. Parliamentary Joint Committee on Human Rights, Report 2 of 2018, 13 February 2018, pp. 2-31. 177. Ibid., p. 36. 178. Parliamentary Joint Committee on Human Rights, Report 3 of 2018, 27 March 2018, pp. 213-279.

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‘concerns remain as to the compatibility of the proposed secrecy offences with the right to freedom of expression’. Similar concerns existed in respect of the espionage offences.179 It also noted that some of the foreign interference offences in the Bill ‘may not be a proportionate limit on the right to freedom of expression’.180 The PJCHR recommended ‘in accordance with the Attorney-General's suggestion’, that should the Bill be passed, the measures should be subject to a review after five years in operation.181

Compatibility of the measure with the right to an effective remedy The Attorney-General highlighted that ‘[w]hile the secrecy offences engage the right to an effective remedy, that right is not limited due to a number of defences in Division 122 which protect disclosure in certain circumstances’. In light of these safeguards, the PJCHR noted the measure may be compatible with the right to an effective remedy, but drew attention to the ‘recent comments of the United Nations Special Rapporteur on the situation of human rights defenders on the adequacy of the Public Interest Disclosure framework’.182

Compatibility of the measure with the right to be presumed innocent The PJCHR outlined its concerns in relation to two aspects of the strict liability element of the offences in proposed section 122.1 (offences dealing with inherently harmful information) and the offence-specific defences which reversed the evidential burden of proof. The Attorney-General's response indicated that the removal of the strict liability element of the offences addressed PJCHR’s concerns relating to the compatibility of this aspect of the offence with the presumption of innocence.183 However, the PJCHR considered ‘concerns remain in relation to the compatibility of the reverse evidential burdens with the presumption of innocence’. It stated:

In relation to the reverse burdens, the committee notes that the Attorney-General's response indicates that further amendments will be developed to broaden defences, to clarify that other immunities (such as parliamentary privilege) are not affected by the offences and provide that the reverse burden does not apply to IGIS officers. If these amendments proceed, they may have a positive impact on the proportionality of the limitation on the right to be presumed innocent. Once such amendments are developed, the committee requests a copy of these amendments and an explanation as to how these amendments affect the limitation on the right to be presumed innocent.

184

Compatibility of the measures with the right to release pending trial The PJCHR noted:

Section 15AA of the Crimes Act provides for a presumption against bail for persons charged with, or convicted of, certain Commonwealth offences unless exceptional circumstances exist. Schedule 1 would update references to offences and apply the presumption against bail to the proposed offences in Division 80 and 91 of the Criminal Code (urging violence, advocating terrorism, genocide, offences relating to espionage). It would also apply the presumption against bail to the new foreign interference offences where it is alleged that the defendant's conduct involved making a threat to cause serious harm or a demand with menaces.

185

179. Ibid., p. 252. 180. Ibid., p. 259. 181. Ibid., p. 236. 182. Ibid., p. 238. 183. Ibid., p. 240. 184. Ibid., p. 244. 185. Ibid., p. 260.

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The PJCHR consider that ‘if the threshold for displacing the rebuttable presumption against bail is too high, it may result in loss of liberty in circumstances that may be incompatible with the right to release pending trial’.186

Compatibility of the measures with the right to privacy Schedule 4 of the Bill extends the definition of a 'serious offence' in the Telecommunications (Interception and Access) Act 1979 to include the offences provided for in the Bill. After requesting and receiving advice from the Attorney-General the PJCHR indicated that ‘the measure in context may be compatible with the right to privacy’.187

Amendments to the Foreign Influence Transparency Scheme legislation The PJCHR noted that the amendments in the Bill ‘broaden the scope of the foreign influence transparency scheme by including lobbying of “political campaigners” on behalf of foreign principals, the existing human rights concerns with the operation of the foreign influence bill and the electoral funding bill are equally applicable here’.188 The PJCHR’s concluded its ‘analysis indicates that the amendments to the foreign influence transparency scheme introduced by schedule 5 of the bill may be incompatible with the right to freedom of expression, the right to freedom of association, the right to privacy, and the right to take part in the conduct of public affairs’.189

Key issues and provisions

National Security A number of stakeholders expressed concern about the appropriateness of the scope and operation of the definition of ‘national security’ relied on by a number of provisions in the Bill.

The successful operation of laws dealing with ‘national security’ arguably relies on a sufficiently well-conceived and articulated notion of ‘national security’ whose rationale reflects the fundamental elements that either separately or combined, maintain integrity, stability, viability and sustainability of Australia as a nation in defence, socio-political, economic, environmental and international relations terms.

Notwithstanding the apparent breadth of the definition of ‘national security’, it is arguable that it is problematically both overinclusive and underinclusive in at least two respects.

While national security is reliant on the protection of critical public infrastructure, and threats and damage to that infrastructure are captured in for example, the offence of sabotage, it might be useful to include the protection of the country’s critical public infrastructure more explicitly and upfront in the meaning of national security, rather than make reference to it indirectly via an activity covered by subsection 90.4(2).

‘Serious threats’ to the integrity of the country’s territory is included in the definition of national security, however it is notable that more explicit mention of the protection of the integrity of Australia’s natural resources is absent from that list. This may mean that potentially, the illegal destruction of natural resources by way of what would be thought of as an act of sabotage, may not necessarily be captured, for example in the event of damage to aquifers by significant

186. Ibid., p. 264. 187. Ibid., p. 271. 188. Ibid., p. 275. 189. Ibid., p. 279.

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poisoning. While other laws would capture damage to those aquifers, the penalties under those laws may not be as great as penalties for the offence of sabotage, where the impact of that damage might be very significant and serious for both the community and business.

The Explanatory Memorandum states that the protection of the integrity of a country’s territory and borders ‘is limited to ‘serious’ threats so that it does not include matters that, although rightly criminal, do not amount to national security threats, such as smuggling of illicit tobacco or other prohibited goods.’190 It is arguable that the explicit inclusion of sabotage to critical natural resources would be consistent with this logic.

It is also notable that under the rubric of ‘national security’ is ‘the country’s political, military or economic relations with another country or other countries’ [emphasis added]. Curiously, protection of the country’s political, military or economic integrity is not included separately in and of itself. The Law Council has stated ‘that definition of ‘national security’ extending to the country’s political or economic relations with another country or countries should be reconsidered.’191 It pointed out that a ‘key component of the rule of law [is] that criminal offences be drafted in a way that’s readily known and available, certain and clear’.192 In contrast, the Law Council characterised the proposed concept of national security in the Bill as ‘vague’, particularly where it extends to preparatory offences and offences involving recklessness.193

It also seems to be the case that the definition of national security is somewhat circular, making reference to the offences listed in proposed subsection 90.4(2): espionage, sabotage, terrorism, political violence, foreign interference. Reference to these offences is somewhat helpful, but these offences then make a circular and rather unhelpful reference back to the rather broad concept of ‘national security’.

Schedule 1—Treason, espionage, foreign interference and related offences

Part 1—Main amendments

Treason Historically, the crime of treason was based on the principle of allegiance to the Crown.194 Currently, under section 80.1 of the Criminal Code, the offence of treason describes rather exceptional and serious conduct that includes:

• causing the death or harm, imprisonment or restraint of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor-General or Prime Minister

• levying war, or doing an act preparatory to levying war against the Commonwealth and

• intentionally assisting an enemy, at war with the Commonwealth.195

The maximum penalty is life imprisonment.

190. Explanatory Memorandum, op. cit., p. 103. 191. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 8. 192. Dr Natasha Molt, Deputy Director of Policy, Law Council of Australia, Committee Hansard, Melbourne, 16 March 2018, p. 10. 193. Dr David Neal SC, Member, National Criminal Law Commission, Law Council of Australia, Committee Hansard, Melbourne,

16 March 2018, p. 10. 194. Joyce v DPP [1946] AC 347. 195. Under subsection 80.1(2) person also commits an offence if they (a) receive or assist another person who has committed a

treason offence with the intention of allowing him or her to escape punishment or apprehension or (b) knowing another person intends to commit a treason offence ‘does not inform a constable of it within a reasonable time or use other reasonable endeavours to prevent the commission of the offence’. The penalty is a maximum period of life imprisonment.

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‘Materially’ assisting enemies In addition to this principal offence of treason, subsections 80.1AA (1)-(4) outline two offences relating to materially assisting enemies. A person commits treason if they ‘materially’ assist enemies at war with the Commonwealth and assist countries et cetera. engaged in armed hostilities against the Australian Defence Force (ADF).

The maximum penalty is life imprisonment.

Item 4: repeals the two existing offences in subsections 80.1AA (1)-(4) and amalgamates them into one offence titled ‘Treason - assisting the enemy to engage in armed conflict’ (proposed section 80.1AA).

The Explanatory Memorandum lists the elements of the new treason offence the prosecution will have to prove beyond reasonable doubt:

• a party (the enemy) was engaged in armed conflict involving the Commonwealth or the Australian Defence Force and the person was reckless as to this element

• the enemy was identified in a Proclamation made under section 80.1AB (discussed below)

• the person intentionally engaged in conduct

• the person intended that his or her conduct would materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force

• the conduct materially assisted the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force, and

• at the time he or she engaged in the conduct, the person:

- was an Australian citizen, and knew that he or she was an Australian citizen - was a resident of Australia, and knew that he or she was a resident of Australia - had voluntarily put him or herself under the protection of the Commonwealth, and knew that he or she had done so, or

- was a body corporate incorporated by or under a law of the Commonwealth or of a state or territory.196 In the new offence the term ‘armed hostilities’ is replaced with the phrase ‘armed conflict’, and existing references to a ‘country or organisation engaged in armed hostilities’ is replaced with the term the ‘enemy’. The Explanatory Memorandum states that the proposed amendments are designed to streamline the structure of treason offences and ‘update the references in the offences to reflect modern international terminology about armed conflict,’ thus removing for example, what is thought to be ‘confusing terminology’ at existing at subsection 80.1AA(4) about ‘armed hostilities’ to achieve greater clarity.197

Provision is made under proposed section 80.1AB for the Governor-General to, by way of Proclamation, declare a party to be an enemy engaged in armed conflict involving the Commonwealth or the ADF. This provides a ‘publicly accessible record of enemies against whom the Commonwealth is engaged’.198 This is consistent with the operation of the rule of law, which would require that ‘a person should not be able to commit treason against Australia if it was impossible for them to know that another party was Australia’s enemy.’199 The Explanatory Memorandum states that the Proclamation is a legislative instrument which will be subject to

196. Explanatory Memorandum, op. cit., pp. 29-30. 197. Ibid., p .28. 198. Ibid., p. 29. 199. Ibid.

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scrutiny and disallowance in Parliament.200 Ideally, as a matter of accessibility and transparency this point should have been included in the Bill rather than the Explanatory Memorandum.

The Law Council has suggested that ‘the Bill should prescribe certain criteria for when the Governor-General may make a Proclamation under proposed section 80.1AB’. Furthermore, this Proclamation should subject to periodic review, with a revocation of the Proclamation ‘where the Governor-General is no longer satisfied that the criteria for making the Proclamation continues to be met’.201

In response to this concern the Attorney-General’s Department explained that it did not consider that there would be any benefit:

… in listing further criteria than are already contained in section 80.1AB. The question of whether a party is an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force will be determined based on expert advice in the context of the meaning of the terms in international law.

202

The Attorney-General’s Department has also stated that as a legislative instrument, a Proclamation is able to be repealed through the normal process.203 Furthermore, the Proclamation ‘will sunset every ten years under the operation of the Legislation Act 2003’, and as a result, this would ensure ‘that such instruments are periodically reviewed and only re-made if required’.204

‘Materially assist’ Given one of the stated aims of the proposed amendments to section 80.1AA was to deal with ‘confusing terminology’, it is unclear why consideration was not given to clarifying the key concept of ‘material assistance’ to the enemy. As currently drafted, the proposed offence appears to result in criminalising conduct which may in practical terms be unduly broad because of a failure to define the concept of ‘materially assist’ and specify a connection to a physical element. The proper operation of the rule of law normally necessitates individuals being able to have ‘knowledge and sufficient certainty of the scope of their criminal liabilities’ in relation to their conduct.205 It has previously been suggested in relation to this offence that:

The concept of 'material assistance' ought to be defined to include only direct assistance, such as the provision of troops, funds, arms or other materiel, or intelligence, but to exclude indirect assistance such as the refusal to fight, the provision of humanitarian supplies, etc. 206

The Explanatory Memorandum states that ‘the term ’materially assist’ will be given its ordinary meaning’.207 This however, simply raises a new question as to what is meant by the ‘ordinary

200. Ibid., p. 34. 201. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 8. 202. Attorney-General’s Department, Submission to the Joint Committee on Intelligence and Security, Inquiry into the National

Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 13 February 2018, [Submission no. 6.1], pp. 6-7. 203. Ibid., p. 7. 204. Ibid. 205. Under article 15 of the International Covenant on Civil and Political Rights, the prohibition on retrospective criminal punishment embodies a principle of legality requiring specificity in the definition of crimes: International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13 November 1980; Art. 41 came into force for Australia on 28 January 1994). 206. Castan Centre for Human Rights Law, Monash University, Submission 9, p. 3, Senate Standing committee on Legal and Constitutional Affairs, Inquiry into National Security Legislation Amendment Bill 2010 and Parliamentary Joint Committee on Law Enforcement Bill 2010. 207. Explanatory Memorandum, p. 31.

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meaning’ of the concept to ‘materially assist’. The Explanatory Memorandum provides a partial response and arguably still insufficient guidance by stating:

… this term will cover assistance in the form of money or practical goods, and that the assistance will have to be more than merely trivial in order to ‘materially’ assist. The conduct must also be intended to materially assist the enemy in armed conflict. 208

The Attorney-General’s Department has provided further explanation stating:

The use of the term ‘materially assist’ is consistent with existing treason offences. It has been retained as it is a high threshold for the assistance that must be provided in order for a treason offence to be committed. It is a higher threshold than that found in the offence relating to terrorist organisations at section 102.7, which is considered appropriate given the severe penalty applying to treason offences.

209

Perhaps a more helpful approach would be to provide guidance by way of examples which practically demonstrate an operative connection between the types of conduct that may amount to assistance which is material, by virtue of that conduct facilitating pursuit of war or hostilities by the enemy against Australia or the ADF. An example of relevant content for inclusion in the term ‘materially assist’ may be found in the US definition ‘providing material support to terrorists’.210 This provides:

… the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, and transportation, except medicine or religious materials.

211

The PJCIS recommended:

… that the Bill be amended to explicitly provide that the term ‘support’ refers to ‘material support’, and that the Explanatory Memorandum provide examples of conduct that will not constitute material support, for example, news reporting, editorial or opinion writing and humanitarian assistance. 212

Government amendments

Proposed amendment 59 (Schedule 1, item 17) seeks to amend paragraph 92.7(a) to replace a reference to ‘support’ with a reference to ‘material support’. This is intended to clarify that the term ‘support’ captures:

… the provision of a benefit or other practical goods or aid and does not extend to non-material support, for example a journalist reporting positively, or neutrally about a foreign intelligence agency. News reporting, editorial or opinion writing and humanitarian assistance will not constitute ‘material support’.

213

This amendment implements Recommendation 42 of the PJCIS report.

208. Ibid. 209. Attorney-General’s Department, Submission to the Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 13 February 2018, [Submission no. 6.1], p. 86. 210. 18 U.S. Code § 2339A - Providing material support to terrorists. 211. Ibid. 212. PJCIS Report, op. cit., p. 263. 213. Supplementary Explanatory Memorandum, National Security Legislation Amendment (Espionage and Foreign Interference)

Bill 2017, p. 54.

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The establishment of the offence of treason requires not only provision of material assistance to an enemy country, but that this material assistance is given intentionally by a person owing an allegiance to Australia (an Australian citizen or resident) ‘or a person who has voluntarily placed themselves under the protection of Australia, a body corporate incorporated by or under a law of the Commonwealth or of a state or territory.’214 This is consistent with the traditional concept of treason involving a duty of allegiance to a country, and thus a divergence from that allegiance in defined circumstances, amounting to treason. The requirement of an allegiance to Australia, of the type described, is also consistent with Australia’s obligations under the Geneva Conventions to treat captured enemies as prisoners of war, pursuant to the principle of combatant immunity.215

The Law Council expressed notional support for the new treason offence, noting the imperative of updating the offence so as to better reflect and respond to:

… the reality of the current international engagements of the ADF and Commonwealth (e.g. the fight against [Islamic State of Iraq and Syria] and the situation in Syria). 216

Nonetheless, the Law Council raised concerns about the breadth of the offence noting that it:

… removes the requirement that the person’s conduct assists a country or organisation engaged in hostilities against the Commonwealth or ADF. The proposed requirement is that a person’s conduct provides material assistance to a country or organisation engaged in an armed conflict involving the Commonwealth. Given the multilateral nature of modern conflicts (see, for example, in the case of Syria), this makes the scope of the offence potentially very broad. Further, that someone contributes to acting against the Commonwealth or ADF would seem to be the rationale behind treason.

217

The Joint Councils for Civil Liberties and the Law Council therefore recommended replacing the word ‘involving’ with the word ‘against’ in the offence and Proclamation power.218

In response to these concerns and recommendations, the Attorney-General’s Department explained:

This would not be appropriate given the realities of modern armed conflict. It is entirely possible that the ADF may be engaged in an armed conflict involving multiple actors such as insurgent groups. The ADF may not necessarily be engaged in combat operations against all of the actors in such a context. It may, for example, be engaged in training, advising, and otherwise assisting missions in support of and with the consent of a foreign government, which would not see Australia engaged in combat ‘against’ an enemy. In such circumstances, Australia may still be a party to the armed conflict, in which case the conduct intended to be caught by this provision should still be criminalised.

219

Humanitarian aid and good faith defence The existing exclusions for humanitarian aid and the defence for ‘acts done in good faith’ are maintained in the new offence.

214. Ibid., pp. 29-30. 215. Common Article 3, Geneva Conventions I, II, III, IV. 216. Law Council of Australia, Submission to the Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 29.

217. Ibid., pp. 29-30. 218. Joint councils for civil liberties Submission to the Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 13 February 2018, [Submission no. 31], p. 40; Law Council of Australia, Submission, op. cit., p. 30.

219. Attorney-General’s Department, Submission to the Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 13 February 2018, [Submission no. 6.1], p. 6.

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Proposed subsection 80.1AA(4) provides the offence does not apply ‘to engagement in conduct solely by way of, or for the purposes of, the provision of aid or assistance of a humanitarian nature’ (emphasis added). The Explanatory Memorandum notes this defence is ‘intended to ensure that a person is not criminally liable for this offence if they provided material assistance to a party, for example by providing financial aid or food, but intended genuinely to engage in humanitarian activities instead of to support the party to engage in armed conflict against Australia’.220 It lists examples of work ‘conducted by or in association with the International Committee of the Red Cross, the United Nations or its agencies, and agencies contracted or mandated to work with the UN or its agencies’ as conduct which may fall within the defence. However, the absence of a detailed definition of ‘aid or assistance of a humanitarian nature’ means there is a lack of clarity regarding conduct which may not be associated with these recognised organisations. The defendant will bear the evidential burden in relation to this defence.

Note 1 under subsection 80.1AA(1) highlights that ‘[t]here is a defence in section 80.3 for act done in good faith’.

Australian Lawyers for Human Rights has raised concern that the exemption provided for humanitarian aid is too narrowly drafted, ‘as the qualification that the conduct be "solely" for the exempt purpose’ makes it:

… much harder to claim a humanitarian aid exception, as the exception was to apply only where it was the sole reason for the conduct in question, even though there could be many additional reasons why the particular conduct was carried out that were not related to offensive activities. 221

As a result of amendments made to the offences of sabotage, treason, espionage and secrecy, item 37 of Schedule 1 to the Bill updates subsection 4J(7) of the Crimes Act to refer to the new offences against:

• subsections 79(2) or (5) of the Crimes Act

• Division 80 of the Criminal Code (treason, urging violence and advocating terrorism or genocide)

• Division 82 of the Criminal Code (sabotage)

• Division 91 of the Criminal Code (espionage) and

• Division 92 of the Criminal Code (foreign interference).

The consequence of this change is that offences against these provisions may not be dealt with summarily.

Treachery Treachery is an offence in several countries. Both the Australian and British offences were derived from or inspired by the related offence of treason. In the UK, the offence of treachery was established in response to the difficulty in securing convictions for treason, as the offence could be made out under the same rules of evidence as ordinary offences. More significantly, the new offence of treachery was considered necessary as doubt arose as to the capture of treason laws of foreign spies and saboteurs. Specifically, the offence of treachery did not rely on a requirement or presumption of a duty of allegiance to the Crown or the State linked to citizenship as for

220. Ibid., p. 33. 221. Australian Lawyers for Human Rights, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 17], p. 5.

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treason.222 The Treachery Act 1940 (UK) was repealed but another Treason-related act, the 1848 Treason Felony Act (UK), remains in force.

Section 24AA of the Crimes Act deals with the offence of 'Treachery' which covers doing any act or thing with the intent to overthrow the Constitution by revolution or sabotage, attempts by force or violence to overthrow an established government in Australia or abroad, and acts of treason directed against certain proclaimed countries. Thus, this basically encompasses levying war or doing any act preparatory to levying war against the Commonwealth or another country, assisting or intending to assist, a proclaimed enemy of a proclaimed country, or instigating a person to make an armed invasion of another country. Subsection 24AA(2) also makes it an offence to assist enemies of the Australian Defence Force.

This offence is punishable by a maximum penalty of life imprisonment.

Proposed section 80.1AC inserts a contemporary offence of treachery into the Criminal Code. Item 43 of Schedule 1 to the Bill correspondingly repeals the existing and archaic offence of treachery in section 24AA of the Crimes Act.

The new treachery offence criminalises the use of force or violence intended to overthrow the Constitution, a Commonwealth, state or territory government or the lawful authority of the Government of the Commonwealth (emphasis added). This noticeably removes the existing reference to doing ‘any act or thing.’223 The Law Council supports this amendment, confining the particular conduct to use of force or violence given the severity of the penalty imposed for the offence.224

The new treachery offence also does not contain reference to acts intended to overthrow the Government of a proclaimed country. The Explanatory Memorandum states that ‘this conduct is more appropriately dealt with through the laws of the relevant country or through foreign incursions offences in the Criminal Code.’225

The offence of assisting enemies of the ADF has not been incorporated into the new contemporary offence of treachery. This is because it has been more appropriately inserted into the new offence of treason under proposed section 80.1AA. The maximum penalty of life imprisonment is left unchanged.

The Explanatory Memorandum states that the treachery offence is designed to complement the proposed treason offence, with an apparent focus on maintaining the physical and political integrity of the Sovereign, Governor-General or Prime Minister.226 In this regard the amendments made to the treachery offence represent an overdue rationalisation of the two offences.

222. M Head (2011) Crimes Against the State, Ashgate: USA, pp. 99-100. 223. By way of comparative historical note, in 2001 the Guardian Newspaper in the UK mounted a legal challenge to the 1848 Treason Felony Act, which makes it a criminal offence, punishable by life imprisonment, to advocate abolition of the monarchy in print, even by peaceful means. The Guardian has notified the Attorney-General of its intention to publish a series of articles

urging the abolition of the monarchy by peaceful means. The Guardian sought a declaration that the operation of the Human Rights Act 1998 (UK) meant that the 1848 Act would interpreted as only applying to violent conduct and only making violent conduct to overthrow the monarchy criminal. The House of Lords declined to provide an answer as the newspaper was not being prosecuted and this was only a hypothetical question. It is considered unlikely that a strict interpretation and application of section 3 of the 1848 Act would be considered consistent with the Human Rights Act. The Human Rights Act enshrines freedom of expression, outweighing the provisions of Treason Felony Act, the Lords noted. Source: ‘Lords halt challenge to treason law’, The Guardian, 27 June 2003. 224. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security

Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 31. 225. Explanatory Memorandum, op. cit., p. 34. 226. Ibid.

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The PJCIS has raised concern that neither the Bill nor the Explanatory Memorandum offer guidance as to the context in which the term ‘lawful authority of the Government of the Commonwealth’ might apply. They have suggested that the Explanatory Memorandum be revised to include such guidance.227

Fault element—conduct involving ‘force or violence’ The Explanatory Memorandum states:

For paragraph 80.1AC(1)(b), the prosecution will have to prove beyond a reasonable doubt that the person’s conduct involved force or violence and that the person was reckless as to this element. Therefore, the defendant must have been aware of a substantial risk that his or her conduct involved force or violence and, having regard to the circumstances known to him or her it was unjustifiable to take that risk.

228

In its report, the PJCIS states that it received clarification from the Attorney-General’s Department about the nature and scope of the term use of ‘force or violence’. The Department explained:

The use of the term ‘force or violence’ picks up on the language used in the existing treachery offence at subparagraph 24AA(1)(a)(ii) of the Crimes Act. It is also consistent with the language used in the existing offence of urging violence against the Constitution in section 80.2 of the Criminal Code (see paragraph 80.2(1)(a)).

Conversely, the references to intimidation and threats in new section 83.4 of the Bill pick up on the existing language used in section 28 of the Crimes Act.

Given that a penalty of life imprisonment applies to the treachery offence at subsection 80.1AC of the Bill, it is considered appropriate that the offence be limited to conduct involving force or violence and not extend to conduct involving intimidation or threats. 229

The Law Council of Australia considers that the severity of the penalty to be imposed (life imprisonment) makes it appropriate to re-think the fault element and replace it with the requirement of intention. 230

Sabotage In general terms the act of sabotage may be thought of as a ‘deliberate action aimed at weakening another entity through subversion, obstruction, disruption or destruction’.231 The commentary in this space recognises that sabotage may ‘take many different forms including industrial, economic, intelligence and military operations designed to damage or disrupt a political, governmental or commercial rival’.232

The Crimes Act lists sabotage as one of the offences against government. Section 24AB(1) currently defines the act of sabotage to mean the destruction, damage or impairment, with the intention of prejudicing the safety or defence of the Commonwealth, of any article233 used or intended to be used either by the Defence Force; in connexion with the manufacture, investigation

227. PJCIS Report, op. cit., p. 300. 228. Explanatory Memorandum, op. cit., p. 35. 229. Attorney-General’s Department, Submission 6.1 cited in PJCIS Report, op. cit., p. 297. 230. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security

Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 31. 231. M Head (2011) Crimes Against the State, Ashgate: USA, p. 139. 232. Ibid. 233. ‘Article’ includes any, thing, substance or material.

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or testing of weapons or apparatus of war; for any purpose that relates directly the defence of the Commonwealth; or that is in or forms part of a place that is a Commonwealth ‘prohibited place’.234 Thus the existing definition captures only a small class of defence targets, which due to their high profile and very protected nature makes them hard and thus less likely to be the targets of sabotage. Item 8 of Schedule 1 to the Bill proposes to insert a new Division 82 into Part 5.1 of the Criminal Code, replacing the existing sabotage offence in section 24AB of the Crimes Act, following the repeal of Part II of the Crimes Act by item 43.

The proposed amendments seek to reflect and respond to the fast-evolving nature of security threats, (which may be thought of as including cyber, personnel and physical) and modalities of security attacks by capturing new conduct and expanding the range of critical public infrastructure to be protected.235 Thus the first step in the proposed amendments is a rather extensive definition of damage to public infrastructure, followed by a new and expanded definition of public infrastructure.

The circumstances of conduct which is captured under the rubric of sabotage is increased by the introduction of the following offences:

• Sabotage - involving foreign principal with intention as to national security

• Sabotage - involving foreign principal reckless as to national security

• Sabotage - with intention as to national security

• Sabotage - reckless as to national security

• Introducing vulnerability - with intention as to national security

• Introducing vulnerability - reckless as to national security

• Preparing for or planning sabotage

Penalties The penalties range from a maximum term of 25 years imprisonment for the most serious offence to seven years for preparing for or planning sabotage. In particular the higher penalties attach to sabotage offences that are committed on behalf of a foreign principal. The maximum penalty sets the upper limit of judicial discretion and should reflect the relative gravity of the offence, yet be broad enough to allow the court sufficient scope to rehabilitate and/ or punish the offender, thus accommodating the range of severity of examples of the offence that are likely to be encountered. The setting of a maximum penalty represents symbolic recognition that the State’s power to deal with offenders must be subject to lawful restraint.

Proposed section 82.1 - Definitions

Damage to public infrastructure Damage in relation to public infrastructure means any of the following:

• conduct which destroys it or results in its destruction

• conduct which involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable

• conduct resulting in it suffering a loss of function or becoming unsafe or unfit for its purpose

234. The definition of ‘prohibited place’ is set out in section 80 of the Crimes Act. 235. Explanatory Memorandum, National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, p. 37.

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• conduct which limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it

• conduct which results in it or any part of it becoming defective or being contaminated

• conduct which significantly degrades its quality

• if it is an electronic system—the conduct seriously disrupts it.

Public infrastructure has the meaning given in proposed section 82.2, which states that it is any of the following:

• any infrastructure, facility, premises, network or electronic system that belongs236 to the Commonwealth

• defence premises within the meaning of Part VIA of the Defence Act 1903

• service property, and service land, within the meaning of the Defence Force Discipline Act 1982

• any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act 1997237

• any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system):

- provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

- is located in Australia, and

- belongs to or is operated by a constitutional corporation 238 or is used to facilitate constitutional

trade and commerce. 239

The Explanatory Memorandum acknowledges that the terms infrastructure, facility, premises, network or electronic system used in proposed paragraph 82.2(1)(a) are left undefined in the Bill. These terms are left to take their ordinary meaning as follows:

• Infrastructure: including the structures and facilities needed for the operation of society

• Facilities: including a place, amenity or piece of equipment

• Premises: including a building, together with its land, occupied by a business or used in an official context

• Network: primarily intended to cover networks of interconnected computers or other machines

• Electronic system: including a physical interconnection of components or parts that gather various amounts of information together. This may include databases or software and may or may not be connected to other computers or machines as part of a network.240

236. Section 82.2(2) states that whether a property belongs to the Commonwealth or a constitutional corporation is to be determined in the same way as it would be under Chapter 7, section 130.2 Criminal Code, where property belongs to a person if:  the person has possession or control of the property  the person has a proprietary right or interest in the property, other than an equitable interest arising only from:

o an agreement to transfer an interest o an agreement to grant an interest, or o a constructive trust. 237. Section 7 of the Telecommunications Act defines a telecommunications network as a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy. The Explanatory Memorandum clarifies that this does not include customer cabling or equipment (p. 42). 238. ‘Constitutional corporation’ means a corporation to which paragraph 51(xx) of the Commonwealth Constitution applies. 239. ‘Constitutional trade and commerce’ will mean trade and commerce with other countries, or among states, or between a state and territory or between two territories.

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The Law Council has stated that in relation to the definition of public infrastructure, ‘there would be benefit in a reference to the Australian Government Information Security Manual 2016-2017 (for example in the Explanatory Memorandum) and a need to be consistent with the requirements of that key policy document.’241

Fault element for offences in relation to public infrastructure Absolute liability applies for the element of the sabotage offence that the infrastructure, facility, premises, network or electronic system ‘belongs’ to the Commonwealth and to the element that ‘the infrastructure, facility, premises, network or electronic system belongs to, or is operated by, a constitutional corporation or used to facilitate constitutional trade or commerce’. This is because these elements are unrelated to the offender’s fault and are included in order to link the offences to the Commonwealth’s power to legislate under the Constitution.242

Sabotage - involving foreign principal with intention as to national security Proposed section 82.3(1) makes it an offence to engage in conduct, on behalf of or in collaboration with a foreign principal, or directed, funded or supervised by a foreign principal, or a person acting on behalf of a foreign principal, where that conduct results in damage to public infrastructure and the person intends that this will prejudice Australia’s national security, or advantage the national security of a foreign country.243 In relation to advantaging the national security of a foreign country, the person does not need to have in mind a particular country and may have more than one foreign country in mind.

This offence is punishable by a maximum penalty of 25 years imprisonment.

To establish this offence, the prosecution needs to prove beyond reasonable doubt that:

• the person intentionally ‘engaged in the conduct’244

• the person is reckless as to the conduct resulting in damage to public infrastructure

• the person intended that their conduct would prejudice Australia’s national security, or advantage the national security of a foreign country, and

• any of the following circumstances exist

- the person was reckless as to the conduct engaged in, being on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal - the person as reckless as to the conduct being directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Sabotage - involving foreign principal reckless as to national security

Proposed section 82.4(1) makes it an offence to engage in conduct, on behalf of or in collaboration with a foreign principal, or directed, funded or supervised by a foreign principal, or a

240. Explanatory Memorandum, op. cit., p. 40. 241. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 8. 242. Explanatory Memorandum, p. 18. 243. The Explanatory Memorandum states that the ‘term prejudice is intended to capture a broad range of intended conduct,

including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia’s national security interests.’ It does not have to be serious, but must be more than minor or trivial. The term advantage is intended to refer to placing ‘another country’s national security in a favourable or superior position compared to Australia’s position or to benefit or profit another country’s national security compared to Australia’s national security.’ Explanatory Memorandum, op. cit., pp. 46-47. 244. Subsection 4.1(2) of the Criminal Code states that ‘engage in conduct’ means to do an act or to omit to perform an act.

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person acting on behalf of a foreign principal, where that conduct results in damage to public infrastructure and the person is reckless as to whether this will prejudice Australia’s national security, or advantage the national security of a foreign country. In relation to being reckless as to the conduct advantaging the national security of a foreign country, the person does not need to have in mind a particular country and may have more than one foreign country in mind.

This offence is punishable by a maximum penalty of 20 years imprisonment.

To establish this offence, the prosecution needs to prove beyond reasonable doubt that

• the person intentionally engaged in the conduct

• the person is reckless as to the conduct resulting in damage to public infrastructure

• the person is reckless as to whether their conduct would prejudice Australia’s national security, or advantage the national security of a foreign country and

• any of the following circumstances exist

- the person was reckless as to the conduct engaged in, being on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal - the person as reckless as to the conduct being directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Government amendments 26 June 2018

Amendment 5: Schedule 1, item 8

This amendment proposes a new definition of ‘advantage’ in proposed section 82.1 which clarifies that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia’s national security to an equivalent extent.

Sabotage - with intention as to national security

Proposed section 82.5(1) makes it an offence to engage in conduct where that conduct results in damage to public infrastructure and the person intends that this will prejudice Australia’s national security, or advantage the national security of a foreign country.

In relation to advantaging the national security of a foreign country, the person does not need to have in mind a particular country and may have more than one foreign country in mind.

This offence is punishable by a maximum penalty of 20 years imprisonment.

To establish this offence, the prosecution needs to prove beyond reasonable doubt that

• the person intentionally engaged in the conduct

• the person is reckless as to the conduct resulting in damage to public infrastructure

• the person intends their conduct to prejudice Australia’s national security, or advantage the national security of a foreign country.

Sabotage - reckless as to national security

Proposed section 82.6(1) makes it an offence to engage in conduct where that conduct results in damage to public infrastructure and the person is reckless as to whether this will prejudice Australia’s national security, or advantage the national security of a foreign country.

In relation to advantaging the national security of a foreign country, the person does not need to have in mind a particular country and may have more than one foreign country in mind.

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This offence is punishable by a maximum penalty of 15 years imprisonment.

To establish this offence, the prosecution needs to prove beyond reasonable doubt that

• the person intentionally engaged in the conduct’

• the person is reckless as to the conduct resulting in damage to public infrastructure

• the person is reckless as to whether their conduct would prejudice Australia’s national security, or advantage the national security of a foreign country.

Introducing vulnerability - with intention as to national security

Proposed section 82.7 creates the offence of engaging in conduct that results in an article, thing or software (being wholly or part of public infrastructure) becoming vulnerable to misuse, impairment or being accessed or modified by a person not entitled to access or modify it, where the person intends their conduct (at that time or in the future) to prejudice Australia’s national security.245

This offence is punishable by a maximum penalty of 15 years imprisonment.

Introducing vulnerability - reckless as to national security

Proposed section 82.8 creates the offence of engaging in conduct that results in an article, thing or software (being wholly or part of public infrastructure) becoming vulnerable to misuse, impairment or being accessed or modified by a person not entitled to access or modify it, where the person is reckless as to whether the conduct will (at that time or in the future) prejudice Australia’s national security harm.246

This offence is punishable by a maximum penalty of ten years imprisonment.

Government Amendments 26 June 2018

Amendment 6: Schedule 1, item 8

This amendment proposes a definition of prejudice in section 82.1 to clarifying that embarrassment alone is not sufficient to prejudice Australia’s national security. Thus a person cannot be prosecuted for a sabotage offence if that person intended that, or was reckless as to whether, his or her conduct would cause embarrassment alone.

Preparing for or planning sabotage

Proposed section 82.9 creates a new offence of engaging in conduct with the intention of preparing for, or planning an offence against Division 82 (Sabotage).247

The offence is punishable by a maximum penalty of seven years imprisonment.

245. As originally introduced, this offence also extended to conduct engaged in with the intention of harming or prejudicing Australia’s economic interests, disrupting the functions of an Australian government or causing damage to public infrastructure. These elements were removed by Amendment 8 of the Government Amendments to the Bill.

246. As originally introduced, this offence also extended to conduct engaged in with the intention of harming or prejudicing Australia’s economic interests, disrupting the functions of an Australian government or causing damage to public infrastructure. These elements were removed by Amendment 9 of the Government Amendments to the Bill.

247. Supplementary Explanatory Memorandum, op. cit., p. 27.

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The Explanatory Memorandum states that the terms ‘planning’ and ‘preparing ‘are taken to have their ordinary meanings:

The term ‘preparing’ could include acts to conceive, formulate, make ready, arrange, and assemble an idea, plan, thing, or person for an offence against Division 82 (sabotage).

The term ‘planning’ could include acts to organise, arrange, design, draft, or setup an idea, plan, thing, or person for an offence against Division 82 (sabotage). 248

The Law Council has questioned the necessity of this provision, arguing that it should be removed from the Bill, because:

Incitement, conspiracy and attempt provisions in Part 2.4 of the Criminal Code are sufficient to deal with preparatory conduct which has indicated a real intention to carry out the act. 249

The Law Council has stated that if the Government does not accept this suggestion, then it would recommend:

… that there be a public review conducted by the Attorney-General’s Department which clearly identifies the appropriate criteria which should be used for determining the kinds of criminal conduct that warrant preparatory offences. 250

The Australian Lawyers Alliance raised concern generally with the introduction of the Bill’s preparatory offences, mindful that this would significantly:

… expand the preliminary activities that would be criminalised, including circumstances in which the accused could reasonably change their mind before the offence was committed. 251

The Attorney-General’s Department has responded that the provisions in Part 2.4 of the Criminal Code are insufficient for the purposes of such offences, reasoning that preparatory offences are not uncommonly reserved for serious criminal conduct. The Department noted that the:

Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides general guidance on the matters to be considered when developing or amending criminal offences and enforcement powers. The Guide does not reflect a binding policy position but provides principles and precedents to assist the framing of criminal offences and related matters. The Guide draws its principles and precedents from Senate Committees and other sources, such as the Australian Law Reform Commission. Should the Committees express particular views regarding preparatory offences, consideration would be given to including guidance on these as well.

252

In its report, the PJCIS recommended:

… that the Government amend the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers to identify criteria to be used for determining the kinds of criminal conduct that warrant preparatory offences. 253

248. Explanatory Memorandum, op. cit., p. 70. 249. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 10. It is notable that existing sections 11.1, 11.4 and 11.5 of the Criminal Code respectively, deal with the preparatory offences of attempt,

incitement and conspiracy. 250. Ibid. 251. Australian Lawyers Alliance, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security

Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 12], pp. 11-12. 252. Attorney-General’s Department, Submission 6.1, p. 9. 253. PJCIS Report, op. cit., p. 82.

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Defence - accessing or using a computer or electronic system in capacity as a public official

Proposed section 82.10 was included in the Bill as originally introduced, but has been reconfigured by the Government Amendments. It would now create two specific ‘good faith’ defences for an offence against Division 82 (Sabotage).

The first defence (at proposed subsection 82.10(1)) would apply if:

• at the time of the offence the person was a public official254

• the person engaged in the conduct in good faith in the course of performing duties as a public official and

• the conduct is reasonable in the circumstances in performing those duties.

The second defence (at proposed subsection 82.10(2)) would apply if:

• at the time of the offence the person is an owner or operator of public infrastructure, or a person acting with the consent of the owner or operator

• the person engaged in the conduct in good faith

• the conduct is within the lawful authority of the owner or operator and is reasonable in the circumstances.

The second defence has been proposed in response to recommendation 45 of the PJCIS report, which recommended:

… the defence at proposed section 82.10, in relation to the Bill’s sabotage offences, be broadened to include conduct engaged in on behalf of a private owner or operator of infrastructure, in addition to public officials. 255

The Explanatory Memorandum states that ‘the general defences available under Part 2.3 of the Criminal Code will be available to a person accused of an offence under Division 82’.256

Section 82.11 - Geographical jurisdiction

This provision states that section 15.4 of the Criminal Code, which deals with extended jurisdiction (Category D) will apply to an offence against Division 82 (Sabotage). The Commonwealth Criminal Code creates four types of extended geographic jurisdiction. Category D extended geographic jurisdiction applies the broadest jurisdictional reach by providing that an offence can be committed whether or not the conduct occurs in Australia and whether or not the results of the conduct occur in Australia.

Alternative verdicts

Proposed subsection 82.12(1) provides that if the trier of fact is not satisfied that the person is guilty of an offence listed in column 1, but is satisfied beyond reasonable doubt that the person is guilty of an offence against a provision specified in column 2 of that item, it may find the person not guilty of the offence specified in column 1, but guilty of an offence specified in column 2.

254. Public official is defined in the dictionary to the Criminal Code. The term includes the Governor-General, members of parliament, Commonwealth judicial officers, Australian Public Service employees and employees of state or territory governments.

255. PJCIS Advisory Report, op. cit., p. xxvi. 256. Explanatory Memorandum, op. cit., p. 71.

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However, this only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the relevant offence specified in column 2.

Consent of Attorney-General required for prosecutions

Proposed subsection 82.13(1) makes it a requirement that the written consent of the Attorney-General is obtained before committing a person to trial for sabotage. In deciding whether to consent, the Attorney-General must consider whether the conduct of the accused might be authorised by section 82.10 (proposed subsection 82.13(4)). However, proposed subsection 82.13(2) provides the following steps may be taken against a person without the Attorney-General’s consent having been given:

• they may be arrested for the offence and a warrant for such an arrest may be issued and executed

• they may be charged with the offence

• they may be remanded in custody or on bail.

The Explanatory Memorandum reasons that the seriousness of the offences justify permitting some measures towards commencing proceedings to be taken without the prior consent of the Attorney-General. In particular, the steps listed in proposed subsection 82.13(2) are

… intended to ensure that law enforcement agencies can intervene to prevent a person from continuing to offend, promoting the protection of the Australian public and Australia’s national interests. 257

A check on abuse of proceedings

Proposed subsection 82.13(3) expressly provides that nothing in proposed subsection 82.13(2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

This provision may be seen as representing a recognition of the concept of abuse of process, as an actionable wrong and a basis for a stay of proceedings, which has been developed by the courts of the common law world over an extended period. The purpose of the doctrine is to prevent the judicial system being used in a way that is contrary to the underlying values, purposes and principles of the rule of law.

Comment on content capture of offences

It seems that thrown into and captured by these definitions of sabotage and espionage are what would have previously been known as acts of subversion. This places political subversives into the same category of wrongdoers as enemy spies and saboteurs. This is arguably not an insignificant shift as it has the practical effect of undermining and stifling the ability of law abiding citizens who wish to exercise their constitutional right to politically disagree with, or offer an opinion on government policies and actions.

Division 83—Other threats to Security

Advocating Mutiny Proposed section 83.1 establishes a new offence of advocating mutiny. This supersedes and replaces the existing offence of inciting mutiny, currently contained in section 25 of the Crimes Act and which has a potential life sentence of imprisonment. The repeal of section 25 is effected by

257. Explanatory Memorandum, op. cit., p. 76.

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item 43 of Schedule 1 of the Bill. The wording of the existing provision (‘to seduce any person … from his duty and allegiance’) is archaic, and appears to be based on the United Kingdom’s Incitement to Mutiny Act 1797, which was repealed in 1998.

For a person to be convicted of the offence of advocating mutiny the person has to engage in conduct which involves advocating mutiny. The person has to be reckless as to whether a result of their conduct will be that a mutiny occurs. For a person to be convicted of this offence they have to be an Australian citizen or resident, or a person who knows that they are under Australia’s protection. The offender can also be a body corporate—for example, a media organisation. The conduct leading to the offence does not have to be committed in Australia. The offence has a maximum penalty of seven years imprisonment.

Proposed section 83.1 in the Bill as introduced did not define ‘advocating’. Recommendation 46 of the PJCIS report recommended that the Bill be amended to define the term for the purposes of the section.258 This recommendation has been given effect in the Government Amendments to the Bill, which introduce proposed subsection 83.1(1A), providing that, for the purposes of the section a person ‘advocates’ mutiny if the person counsels, promotes, encourages or urges mutiny.259 The Supplementary Explanatory Memorandum to the Bill explains that this definition is ‘consistent with the existing definitions of advocates for the purpose of the advocating terrorism offence in subsection 80.2C(3) and the advocating genocide offence in subsection 80.2D(3) of the Criminal Code’.260

Proposed paragraph 83.1(1A)(b) specifies that a reference to ‘advocating mutiny’ includes advocating for a specific mutiny, more than one mutiny and advocating for a mutiny that does not occur.

‘Mutiny’ for the purposes of the advocating mutiny offence is defined in the Bill. It involves two or more members of the Australian Defence Force (ADF) combining to overthrow lawful ADF authority or resisting such authority in a manner that would substantially prejudice the ADF’s operational efficiency. This also applies to the authority or operational efficiency of the force of another country that is acting in cooperation with the ADF. Mutiny itself is not made an offence by this Bill. It is an existing offence against the Defence Force Discipline Act 1982 (DFDA).261 While offences under the DFDA are generally pursued through the military justice system rather than the criminal courts, mutiny, as with other offences under the DFDA, is classified as a criminal offence.262

Under proposed section 83.5, a prosecution cannot be instituted under any of the provisions of Division 83, including an advocating mutiny offence, without the written consent of the Attorney-General. However, preliminary steps such as arrest, charging and remand can occur prior to the Attorney-General’s written consent being obtained.

Comment The offence of advocating mutiny sits alongside the general criminal offence of incitement,263 which involves a person, the inciter, inciting another person to commit a criminal offence. It is an

258. PJCIS Advisory report, p. xxvi. 259. Amendment 13 of the Government Amendments to the Bill. 260. Supplementary Explanatory Memorandum, op. cit., p. 31. 261. DFDA section 20. 262. DFDA section 10. 263. Schedule 1, section 11.4 of the Criminal Code Act 1995 - a person who urges the commission of an offence commits the

offence of incitement.

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essential element of an incitement offence that the inciter intends that the incited offence be actually committed.264 In most cases however, a person is only likely to be charged with incitement when the offence is not in fact committed. This may not apply to incitement to mutiny — as only ADF members can be charged with mutiny, a civilian could only be charged with incitement, whether or not the mutiny occurred.

Oddly, the maximum penalty for advocating mutiny, seven years imprisonment, would in many circumstances be higher than the maximum penalty if a person was charged with inciting mutiny under section 11.4 of the Criminal Code. As the general penalty in the DFDA for mutiny is ten years imprisonment,265 the term for inciting such a mutiny, which outwardly seems a more serious offence than advocating a mutiny, would be five years imprisonment.266

The Bill provides that the offending conduct must ‘involve’ advocating mutiny. The use of the word involve would appear to mean that advocacy of mutiny has to be an element of the conduct but does not have to be the primary object of that conduct. This, and the requirement that the conduct only needs to be reckless rather than intentional, makes advocating mutiny potentially a broad offence.

An example of the conduct envisaged is provided in the Explanatory Memorandum - in this example the partner of an ADF member encourages the member to convince other members to resist orders.267 This example alternatively seems to raise questions as to whether the advocating offence can be viewed as an ‘incitement to incite’ offence, which is not otherwise punishable under criminal law.

The Explanatory Memorandum to the Bill notes the rationale for the new provision as being:

… the term ‘advocates’ includes promoting and encouraging an offence…. It is appropriate to criminalise this broader range of conduct due to the potentially serious military consequences of the commission of a mutiny offence by a defence force member. 268

However the new offence does not demand any proven nexus between the advocate’s conduct and a real chance of a mutiny occurring.269 It appears to criminalise conduct which was not previously criminal, and it would be surprising if there were no objections to this provision on the grounds of free speech. For example, a blogger who wrote in reaction to some news item, about alleged sexual harassment or bullying or the like in the ADF, that ‘soldiers should go on strike’,270 without any real expectation that this would occur and reckless as to whether anyone would act on their words, may prima facie commit an offence against this provision punishable by a maximum of seven years imprisonment.

The need for the Attorney-General to give written consent for a prosecution to occur could be seen, in such circumstances, as a safeguard against minor matters being prosecuted. However, it

264. Subsection 11.4(2) of the Criminal Code. As the High Court found in The Queen v Holliday [2017] HCA 35, it is also an element of an incitement offence that the inciter expects the person incited to commit the offence personally - there is no offence of ‘incitement to incite’, where for example a person encourages someone else to commission, rather than commit, an offence.

265. This expands to life imprisonment where the mutiny offence is committed in a situation of ‘operations against the enemy’, DFDA section 20(2). 266. Criminal Code Schedule 1 section 11.4(5)(c). If the incited mutiny occurred in a situation of ‘operations against the enemy’, the maximum penalty for incitement would increase to ten years imprisonment. 267. Explanatory Memorandum, op. cit., p. 76. 268. Ibid. 269. If there was a real nexus, the person could presumably be charged with incitement under the Criminal Code. 270. Notwithstanding that defence force members, not being employees in a legal sense, cannot go on strike; nevertheless such

advocated behaviour would clearly involve resisting lawful authority prejudicing the ADF’s operational efficiency.

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could also be painted by opponents of the Bill as potentially adding a political element to prosecutions under this provision.

The situation overseas USA

The USA has a general law relating to insurrection or rebellion in the following terms:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

As can be seen, this uses the word ‘incites’, which, as in the current Australian context, implies that the person engaging in the conduct actually wishes the insurrection or rebellion to occur. It is arguable that in the USA an advocating mutiny offence, where the advocate was reckless as to the effect of their conduct, would face legal hurdles because of the First Amendment (free speech) to the US Constitution.

Canada

Persons covered by the National Defence Act 1985 (that is, Canadian persons equivalent to ADF members) are guilty of an offence under section 72 if they ‘counsel or procure’ someone to commit an offence (including mutiny).

In regard to Canadians in general, section 53 of the Criminal Code 1985 applies:

Everyone who

(a) attempts, for a traitorous or mutinous purpose, to seduce a member of the Canadian Forces from his duty and allegiance to Her Majesty, or

(b) attempts to incite or to induce a member of the Canadian Forces to commit a traitorous or mutinous act,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

In terminology, this provision is similar to the current Australian provision, which the Bill intends to replace. The maximum penalty (14 years) falls below the current Australian maximum penalty (life), but above the proposed penalty in the Bill (seven years).

Government Amendments 26 June 2018

Amendment 12: Schedule 1, item 8

The Government Amendments insert a Note in the Bill under subsection 83.1(1) clarifying that the existing defence in section 80.3 of the Criminal Code for acts done in good faith is available in relation to the advocating mutiny offence at section 83.1.

Assisting prisoners of war to escape Proposed section 83.2 provides that a person who assists a prisoner of war to escape commits an offence. A similar offence currently exists under section 26 of the Crimes Act. Section 26 will be repealed by item 43 of Schedule 1 to the Bill. While the new provision is drafted with more clarity and in more modern language than the existing provision, it covers similar conduct. One major difference of the proposed provision relates to the maximum penalty, which will be 15 years imprisonment rather than the current life imprisonment. As noted in the Explanatory

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Memorandum, this better reflects modern sentencing practices and represents a penalty comparable to those for offences related to escaping criminal detention.271

An offence of assisting a prisoner of war to escape is committed if a person engages in conduct (which includes omitting to do something) which assists a prisoner or prisoners of war to escape from custody wholly or partly controlled by the Commonwealth or the Australian Defence Force, and where the conduct occurs within the context of an international armed conflict.

The fault element for ‘engaging in conduct’ is that the conduct was intentional. The fault element for the fact that this conduct assisted prisoners to escape is recklessness - for example if a person intentionally left a door unlocked which allowed prisoners to escape, that behaviour would probably be sufficient to sustain a prosecution, regardless of the person’s apparent motivation.

For the purposes of this provision prisoner of war has a fixed meaning, being the meaning of that term in Article 4 of the Third Geneva Convention. This is basically a member of the armed forces of one of the parties to a conflict who falls into the hands of an adverse party.272

There is no strict definition of what circumstances demonstrate that a person is in custody. The provision is not intended to relate solely to prison-type situations, but to any situation where a prisoner of war is in custody; for example from the very moment that they are first taken by an opposing force.

Finally, the conduct giving rise to an offence must take place in the context of an international armed conflict. This element of the offence is one of absolute liability; which is to say that the understanding of the nature of the conflict by the person engaging in the conduct is not a relevant consideration.

As with other proposed Division 83 offences, a prosecution in this matter requires the written approval of the Attorney-General; although preliminary steps such as arrest and charging can take place in advance of that consent.

Comment This provision is unexceptional and unlikely to attract significant, if any, criticism. The Law Council has noted that, while assisting a prisoner of war to escape attracts a severe penalty, the actual act of escaping carries no penalty (for the escaped prisoner).273 However, this is not viewed as a determining factor in setting the penalty for assisting. There appears to be an obvious distinction between being an enemy combatant and assisting that enemy combatant.

Military-style training involving foreign government principal Proposed section 83.3(1) provides that a person commits an offence under this section if s/he provides, receives or participates in training of a military nature, where that training is either provided on behalf of a foreign government principal (as defined in proposed section 90.3) or is directed, funded or supervised by a foreign government principal, a foreign political organisation (the definition of which is added to subsection 90.1(1) by item 10 of Schedule 1 to the Bill) or a person working on behalf of such a foreign body. ‘Foreign government principal’ is defined to include the government of a foreign country (or part of a foreign country), but also covers corporations that are majority foreign government controlled and bodies or associations that are controlled by, or accustomed to act in accordance with the preferences of, a foreign government.

271. Explanatory Memorandum, National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, p. 84. 272. Ibid., p. 82. 273. Law Council Submission, op. cit. p. 40.

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The definition of ‘foreign political organisation’ has been expanded by the Government Amendments to the Bill (Amendment 24), such that the term will now cover:

• foreign political parties

• foreign organisations that exist primarily to pursue political objectives and

• Foreign organisations that exists to purse militant, extremist or revolutionary objectives.

The revised definition of foreign political party responds to recommendation 6 of the PJCIS Advisory Report, which recommended that the definition be clarified.274

Proposed section 83.3(1) is a broad provision and intentionally so. Most of the words in the provision are undefined and thus take their normal meaning. For example, ‘training’ does not have an allotted meaning; it could refer to anything from reading an instruction manual to performing practice military manoeuvres. ‘Directed’ and ‘supervised’ must also be broadly construed. A foreign government is unlikely to be giving specific orders - the Explanatory Memorandum notes that partial direction or general oversight is sufficient.275

In regard to a person being directed, funded or supervised by a foreign government principal or a foreign political organisation, the standard of conduct of the person prescribed by the legislation is recklessness. While the person being trained may not positively know that they are being trained by or are working for a foreign government principal or a foreign political organisation, the fact that the person was aware of a substantial risk that that was the case and in the circumstances it was unjustifiable to take the risk will be sufficient to prove that element of the offence. Certainly wilful blindness to the real line of command is not a defence.

Section 15.2 of the Criminal Code, which deals with extended jurisdiction (Category B) will apply to this offence. Category B extended geographic jurisdiction provides that an offence can be committed:

• if the conduct occurs wholly or partly in Australia

• if the conduct occurs wholly outside Australia and a result of the conduct occurs wholly or partly in Australia or

• if the conduct occurs wholly outside Australia and is undertaken by an Australian citizen or resident or by an Australian corporation.276

The maximum penalty for an offence against proposed section 83.3(1) is 20 years imprisonment. This is consistent with the range of penalties provided for similar offences in anti-terrorist legislation.277

There are a number of scenarios that are not intended to be covered by these provisions, and which form specific exceptions in the legislation. For the purposes of a prosecution under this provision the defendant would have to raise one of the exceptions that follow and point to evidence that suggests a reasonable possibility that the exception applies. The prosecution would then have to refute that defence beyond reasonable doubt.

274. PJCIS Advisory Report, op. cit., pp. 50-51. 275. Ibid., p. 87. 276. However, a resident of Australia will not commit an offence there is no equivalent offence in the foreign country where the conduct occurred (subsection 15.2(2) of the Criminal Code).

277. Criminal Code section 101.2 Maximum penalties range from 15 years for providing or receiving training while reckless as to whether that training is associated to a terrorist act, to 25 years where the person knows that the training is associated to a terrorist act.

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As an obvious example of an exemption, an Australian who provides training to an allied force which was engaged with Australia in a joint training exercise would not be committing an offence.278 An Australian who trains with the forces of a foreign country - such as where, for example, a dual citizen of certain countries is required to perform military service in the armed forces of that other country - is also not committing an offence, except in the unusual circumstance that the armed force in question is a listed terrorist organisation.

The Government Amendments introduced an additional defence that applies where the relevant conduct is engaged in by a person solely or primarily for the purpose of providing humanitarian aid or performing an official duty for the UN or the International Committee of the Red Cross (Amendment 17).279 This responds to recommendation 49 of the PJCIS Advisory Report.280

The provision also is not intended to capture training in a terrorist organisation. That conduct is not lawful but is rather covered by specific legislation.281

As with other proposed Division 83 offences, a prosecution in this matter requires the written approval of the Attorney-General; although preliminary steps such as arrest and charging can take place in advance of that consent.

Comments While the provision is intended to cover a wide range of activities, the use of the term ‘evolutions’ in section 83.3(1)(b) is noted. This appears to be a military term rather than a word in common usage and arguably diminishes the clarity of the provision, particularly as these are provisions likely to be overseen by civilian courts. While its military meaning appears in some dictionaries, it is not present in the Macquarie Dictionary, which is favoured by some Australian courts. The Explanatory Memorandum states that the term ‘evolutions’:

Is intended to capture military manoeuvres involving planned and regulated movements of troops or tactical exercises carried out in the field. 282

It is questionable whether a court would find that this term added anything to the terms military exercises or movements.

Other than this, this proposed provision appears unexceptional. It may attract limited unfavourable comment from persons who believe that Australians have the right to assist secessionist movements, at least in some circumstances.

Interference with political rights and duties Item 43 repeals the existing offence of interfering with political liberty at section 28 of the Crimes Act. Replacing this offence is proposed section 83.4(1) (interference with political rights and duties) of the Criminal Code. Section 28 of the Crimes Act currently makes it an offence for any person to use violence, threats or intimidation of any kind, so as to hinder or interfere with the free exercise or performance, by any other person, of any political right or duty. The offence is punishable by a maximum penalty of three years imprisonment.

278. Proposed section 83.3(2) notes that the offence does not apply in relation to conduct authorised by a written agreement to which the Commonwealth is a party. 279. Amendment 17 of the Government Amendments to the Bill. 280. PJCIS Advisory Report, op. cit., pp. 315-16. 281. Criminal Code section 101.2. 282. Explanatory Memorandum op. cit., p. 86.

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Proposed section 83.4(1) creates an offence of interference with political rights and duties, where a person engages in conduct involving the use of force or violence, or intimidation, or making threats of any kind and the conduct results in interference with the exercise or performance, of an ‘Australian democratic or political right’ or duty, where that right or duty arises under the Constitution or a law of the Commonwealth. In the Bill as originally introduced, this offence was punishable by a maximum penalty of ten years imprisonment, thus increasing the current penalty by seven years, but with no stated justification for this increase. Responding to Recommendation 50 of the PJCIS Advisory Report, the Government Amendments to the Bill reduce the maximum penalty for this offence to three years imprisonment, reflecting the current provision (Amendment 19).283

The Explanatory Memorandum states:

The term ‘Australian democratic or political right’ is intended to cover a broad range of rights held by Australians in relation to participation in Australia’s democracy, including voting in elections and referenda and participating in lawful protests. 284

An offence committed under section 83.4(1) in relation to electoral matters would include relevant conduct impacting ‘the right to vote, the right to stand as a candidate and the right to support or oppose a candidate, group of candidates or party’.285

The stipulation that the right or duty arise ‘under the Constitution or a law of the Commonwealth,’ is used to provide a connexion between the offence and the Commonwealth’s jurisdiction.286

The Explanatory Memorandum acknowledges that the terms force, violence, intimidation and threat are not defined in the Bill as they are intended to take their ordinary meanings.287

The term force could include acts such as restraining, manipulating, coercing and physically making a person do something against their will.

The term violence is not intended to require evidence of actual harm to establish that an act of violence has been conducted. 288

If particular conduct constituted an act of violence, without actually being a violent act, then this may be sufficient to satisfy this element of the crime.289

The term intimidation is intended to include conduct that makes a person timid or fearful. 290

The term threat includes ‘a threat made by any conduct, whether express or implied and whether conditional or unconditional.’291

The Law Council of Australia has considered the elements and operation of this offence, and has suggested that the ‘making of threats’ in relation to interference with political rights and duties

283. Amendment 19 of the Government Amendments to the Bill and PJCIS Advisory Report, op. cit., pp. 316-17. 284. Explanatory Memorandum, op. cit., p. 92. 285. Ibid., p. 214. 286. Ibid. 287. Ibid., p. 91. 288. Ibid. 289. Ibid., p. 91. 290. Ibid. 291. Ibid.

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offence should be more appropriately confined to ‘threats made in relation to the use of force or violence rather than ‘threats of any kind’’.292 It has also suggested:

… the offence be amended to make clear that the availability of the offence does not affect the power of Parliament to deal with such conduct as contempt of Parliament, provided that a person may not be punished twice for the one act or omission. 293

Item 5 amends subsection 80.3(1) of the Criminal Code (defence for acts done in good faith) to insert reference to proposed section 83.4. The effect of this is to make the defence for acts done in good faith apply to the new offence of ‘Interference with political rights and duties’ in proposed section 83.4.

Section 327(1) of the Commonwealth Electoral Act 1918 has a similar but more specific and confined offence compared to proposed section 83.4(1).294 Section 327(1) of the Commonwealth Electoral Act provides that a person shall not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under the Commonwealth Electoral Act. The penalty for a contravention of section 327(1) is ten penalty units (currently $2,100) or imprisonment for six months or both.295

In addition, section 327(2) of the Commonwealth Electoral Act makes it an offence to discriminate against another person on the ground of the other person making a donation to a political party or group by denying the person access to membership of certain groups; by not allowing the person to work or continue to work; or by subjecting the person to any form of intimidation or coercion or any other detriment. The penalty for contravention of this subsection is a pecuniary penalty of 50 penalty units ($10,500) or imprisonment for two years (or both) if the offender is a natural person, or a pecuniary penalty of 200 penalty units ($42,000) if the offender is a body corporate.

It is difficult to reconcile the impetus for the proposed scope and capture of the offence created by proposed section 83.4(1) with for example, the part of the reasoning of the Federal Court of Australia in Hudson v Entsch.296 In that case, it was alleged that Mr Entsch (a political candidate) had incited another person to knock down an electoral sign by Mr Hudson, opposing Mr Entsch’s candidature. It was argued that this knocking down of signs constituted an interference with the free exercise of Mr Hudson’s political right or duty, in contravention of section 327(1). In that case, Justice Dowsett found that the factual circumstances of the case did not amount to a breach of section 327(1). Furthermore, his Honour stated that that political right or duty is restricted:

In my view, a political right, for the purposes of subs 327(1) is the right to vote (including the allocation of preferences), the right to stand for election and the right to support or oppose a candidate, group of candidates or party.297

Furthermore, Justice Dowsett stated that to knock down a sign might be legitimately thought of an exercise of another person's political right. The knocking down of signs did not interfere with Mr Hudson’s political right, as he was free to erect more signs. Justice Dowsett explained that having

292. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 11. 293. Ibid. 294. Section 327 of the Electoral Act deals with the offence of interference with political liberty et cetera. 295. Section 4AA of the Crimes Act 1914 provides that a penalty unit is equal to $210. 296. Hudson v Entsch [2005] FCA 460 (26 April 2005). 297. Paragraph 49 [2005] FCA 460 (26 April 2005).

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exercised one’s right to support or oppose a candidate, one must accept that any lawful response to it may also be valid support for, or opposition to, the candidate in question.298

The logic underlying this type of restriction on a political right or duty, which is practically necessitated by a balancing of rights of opposing participants in the political process, is neither acknowledged nor discussed in the Explanatory Memorandum, nor is the new broader offence drafted in consideration of this unavoidable reality.

Item 35 in Part 2 of Schedule 1 of the Bill amends subsection 352(1) (definition of ‘undue influence’) in the Commonwealth Electoral Act, removing the reference to ‘section 28 of the Crimes Act’ and substituting it with a reference to ‘section 83.4 of the Criminal Code’. The Explanatory Memorandum states that convictions under section 83.4 that relate to electoral matters ‘would be relevant for the purposes of the definition of “undue influence”’.299

Part 5.2—Espionage and related offence The following definitions which support the offences contained in Part 5.2 and elsewhere in the Bill are discussed below.

Deal: a person deals with information or an article if the person does any of the following in relation to the information or article:

• receives or obtains it

• collects it

• possesses it

• makes a record of it

• copies it

• alters it

• conceals it

• communicates it

• publishes it

• makes it available.300

The Replacement Explanatory Memorandum provides examples as guidance as to what conduct may be captured by these terms.301

Foreign principal: each of the following is a foreign principal

• a foreign government principal

• a foreign political organisation

• a public international organisation

• a terrorist organisation within the meaning of Division 102 (see section 102.1)

• an entity or organisation owned, directed or controlled by:

• a foreign political organisation

298. Paragraph 57, Hudson v Entsch [2005] FCA 460 (26 April 2005). 299. Explanatory Memorandum, op. cit., p. 214. 300. Proposed to be inserted into subsection 90.1(1) of the Criminal Code by item 10 of Schedule 1 to the Bill. 301. Replacement Explanatory Memorandum, National Security Legislation Amendment (Espionage and Foreign Interference) Bill

2018, p. 105.

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• a public international organisation or

• a terrorist organisation within the meaning of Division 102

• an entity or organisation directed or controlled by two or more foreign principals within the meaning of any other paragraph of the definition.302

Foreign government principal

Each of the following is a foreign government principal:

a) the government of a foreign country or of part of a foreign country b) an authority of the government of a foreign country c) an authority of the government of part of a foreign country d) a foreign local government body or foreign regional government body

e) a company to which any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies

f) a body or association to which either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies

h) an entity or organisation owned, directed or controlled: i. by a foreign government principal within the meaning of any other paragraph of this definition; or ii. by two or more such foreign government principals that are foreign government

principals in relation to the same foreign country.303

This definition of foreign government principal appears to be sufficiently flexible in accommodating the different ways in which foreign power may be exercised, recognising the power of companies within some state structures and the complex governance models.

Foreign political organisation includes:

(a) a foreign political party

(b) a foreign organisation that exists primarily to pursue political objectives and

(c) a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.304

The concept of national security is discussed above.305 Proposed section 90.4 of the Criminal Code (at item 16 of Schedule 1 to the Bill) provides that the national security of Australia or a foreign country means:

• the defence of the country

302. Proposed section 90.2 of the Criminal Code, inserted by item 16 of Schedule 1 to the Bill. 303. Proposed section 90.3 of the Criminal Code, inserted by item 16 of Schedule 1 to the Bill. In the Bill as originally introduced, ‘foreign government principal’ included a ‘foreign political organisation’. This is removed from the definition by Amendment 30 of the Government Amendments.

304. As discussed above, this definition of ‘foreign political organisation’, which is in the Government Amendments to the Bill (Amendment 24), responds to recommendation 6 of the PJCIS Advisory Report, which recommended that the definition be clarified.

305. See pages 40-41 of this Digest.

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• the protection of the country or any part of it, or the people of the country or any part of it, from espionage, sabotage, terrorism, political violence, foreign interference and activities that hider or interfere with the performance of the country’s defence force

• the protection of the integrity of the country’s territory and borders from serious threats

• the carrying out of the country’s responsibilities to any other country in relation to the protection of the integrity of that country’s territory and borders from serious threats; or in relation to the protection of that from espionage, sabotage, terrorism, political violence, foreign interference and interference with the performance of the country’s defence force

• the country’s political, military or economic relations with another country or other countries.

Security classification: in the Bill as originally introduced, ‘security classification’ was to be defined in regulations. The PJCIS recommended that the Bill be amended:

… to define each ‘security classification’ to which criminal liability attaches. Each definition should include harm-based statutory criteria for determining the proper classification to apply to that information. Any material incorporated by reference into the regulations should be required to be publicly available.

306

Responding to this recommendation, the Government Amendments provide that security classification means:

• a classification of secret or top secret that is applied in accordance with the policy framework developed by the Commonwealth for the purpose of identifying information:

- for a classification of secret—that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals; or - for a classification of top secret—that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest; or • any equivalent classification or marking prescribed by the regulations.307

Item 17 repeals Division 91 of the Criminal Code which has a title indicating that it deals with ‘Offences relating to espionage and similar activities’. The proposed title for proposed Division 91 is simply ‘Espionage’.

Division 91—Espionage Proposed Division 91 is comprised of three subdivisions:

• Subdivision A -Espionage

• Subdivision B -Espionage on behalf of a foreign principal

• Subdivision C -Espionage-related offences

Subdivision A—Espionage Proposed Subdivision A replaces the existing section 91.1 of the Criminal Code espionage offence with new and gradated espionage offences (proposed subsections 91.1(1), 91.2(1) and 91.3(1)) whose penalties are intended to reflect the gravity of the outcome of those offences.

However, the drafting of these offences and their penalties outlined below, have attracted concern from various members of the legal profession. The Law Council has expressed significant reservation about the espionage offences and does not support their passage.308 However, if the

306. PJCIS Advisory Report, op. cit., pp. 75-76. 307. Amendment 31 of the Government Amendments to the Bill. 308. Ibid., 11.

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Government is committed to enacting new espionages offences, the Law Council proposes the following changes to the drafting:

• the offences should require (as a minimum for ‘outsiders’) that the dealing with information did, or was reasonably likely to, or intended to prejudice Australia’s national security or advantage the national security of a foreign country309

• in the absence of an express harm requirement, the offences should cascade in penalty and require that a person knew, or as a lesser offence, was reckless as to whether, the protected information falls within a particular category (that is, security classification or concerns Australia’s national security), and should not provide that strict liability applies to that circumstance310

• defences should be introduced to capture bona fide business dealings and persons acting in good faith.311

Espionage—dealing with information etc. concerning national security which is or will be made available to foreign principal

Denotation of being ‘made available’

Both the existing and proposed espionage offences seek to capture and criminalise conduct which results in information being ‘made available’ to foreign entities. However, the Bill as introduced did not comprehensively define the meaning of ‘made available’. The Explanatory Memorandum was also silent as to what its potential operative meaning may be within the context of the proposed espionage offences. However, section 90.1 defines the term ‘deal’ to include ‘make available’. The original Explanatory Memorandum stated:

‘Makes it available’ is intended to cover the passage of information or articles other than by disclosing or publishing it. This is intended to cover situations where arrangements are made between two individuals to pass information using a pre-arranged location, without the individuals needing to meet.

312

Government Amendment - 26 June 2018

The Government Amendments to the Bill will define ‘make available’ in relation to dealing with information or an article to include:

(a) placing it somewhere it can be accessed by another person; and

(b) giving it to an intermediary to give to the intended recipient; and

(c) describing how to obtain access to it, or describing methods that are likely to facilitate access to it (for example, setting out the name of a website, an IP address, a URL, a password, or the name of a newsgroup).313

Intention to prejudice national security Proposed subsection 91.1(1) criminalises dealing with information or an article that has a security classification or concerns Australia’s national security, and the person intends that their conduct

309. Ibid. 310. This is relevant to proposed sections 91.1, 91.3, 91.6, 91.11 and 91.12. 311. Explanatory Memorandum, op. cit., p. 11. 312. Explanatory Memorandum, op. cit., p. 96. 313. Amendment 25 of the Government Amendments to the Bill.

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will prejudice Australia’s national security, or advantage the national security of a foreign country and the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

The Explanatory Memorandum states that the ‘term prejudice is intended to capture a broad range of intended conduct, including an intention to harm or injure Australia’s national security or to cause disadvantage to Australia. The term is also intended to cover impairment or loss to Australia’s national security interests.’ It does not have to be serious, but must be more than minor or trivial. The term advantage is intended to refer to placing ‘another country’s national security in a favourable or superior position compared to Australia’s position or to benefit or profit another country’s national security compared to Australia’s national security.’ 314

As set out above, information or an article will have a ‘security classification’ only if it is classified as secret, top secret, or an equivalent classification. In addition to the new definition of ‘security classification’, the Government Amendments to the Bill also introduced the following provisions that are relevant to the offence in proposed subsection 91.1(1), as well as the other espionage offences in the Bill:

• responding to recommendation 2 of the PJCIS Advisory Report, Amendment 26 inserts a definition of ‘prejudice’ into subsection 90.1(1) of the Criminal Code, which provides that embarrassment alone is not sufficient to prejudice Australia’s national security. The AGD has advised, however, that severe embarrassment could in itself be considered “actual harm”315

• responding to recommendation 3 of the PJCIS Advisory Report, Amendment 22 inserts a definition of ‘advantage’ into subsection 90.1(1) of the Criminal Code, which provides that conduct will not advantage the national security of a foreign country if the conduct will advantage Australia’s national security to an equivalent extent316

• responding to recommendation 35 of the PJCIS Advisory Report, Amendment 22 also inserts a definition of ‘concerns’ into subsection 90.1(1) of the Criminal Code, which provides that information or an article concerns Australia’s national security if the information or article relates to, or is connected with, or is of interest or importance to, or affects, Australia’s national security317

• in the Bill as originally introduced, the offence captured relevant conduct that made the information or article available to a foreign principal. As a result of the Government Amendments, the offence now captures conduct that results in the information or article being ‘communicated’ as well as ‘made available’. This inclusion is necessary following the addition of a definition of ‘make available’, as discussed above.

This offence is punishable by a maximum penalty of life imprisonment.

Government Amendment-26 June 2018

As the Explanatory Memorandum suggests, to establish this offence the prosecution needs to prove beyond reasonable doubt the following elements as a result of express or default fault elements:

 a person intentionally deals with information or an article and either

314. Explanatory Memorandum, op. cit., pp. 46-47. 315. Attorney-General’s Department, cited in PJCIS Advisory Report, op. cit., pp. 48-49; Amendment 22 of the Government Amendments to the Bill. 316. PJCIS Advisory Report, op. cit., pp. 48-49; Amendment 22 of the Government Amendments to the Bill. 317. PJCIS Advisory Report, op. cit., pp. 240-41; Amendment 22 of the Government Amendments to the Bill.

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- the information or article has a security classification, or

- the information or article concerns Australia’s national security and the defendant is reckless as to this element

 the person intended that his or her conduct would prejudice Australia’s national security or advantage the national security of a foreign country and

 the person’s conduct resulted, or would result in, the information being communicated to or made available to a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this. 318

Proposed subsection 91.1(4) provides that the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country.

Matters affecting sentencing for offence against subsection 91.1(1)

Proposed section 91.5 provides that in sentencing a person convicted of an offence against subsection 91.1(1) (punishable by a maximum sentence of life imprisonment), the court must consider the following circumstances (set out in proposed paragraph 91.6(1)(b)), if relevant:

• the person dealt with information or an article from a foreign intelligence agency

• the person dealt with five or more records or articles each of which has a security classification

• the person altered a record or article to remove or conceal its security classification

• at the time the person dealt with the information or article, the person held an Australian Government security clearance allowing access to information or articles that have a security classification of at least secret.

Reckless as to national security Proposed subsection 91.1(2) creates the offence of dealing with information or an article, which has a security classification or concerns Australia’s national security, and the person is reckless as to whether their conduct will prejudice Australia’s national security, or advantage the national security of a foreign country and the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

This offence is punishable by a maximum penalty of 25 years imprisonment.

To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

• a person intentionally dealt with information or an article and either

- the information or article had a security classification, or - the information or article concerns Australia’s national security and the defendant is reckless as to this element • the person was reckless as to whether his or her conduct would prejudice Australia’s national security or advantage the national security of a foreign country and

• the person’s conduct resulted, or would result in, the information being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal and the person was reckless as to this.

318. Replacement Explanatory Memorandum, op. cit., p. 118.

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Proposed subsection 91.1(4) provides that the person does not need to have in mind a particular foreign country and may have in mind more than one foreign country.

Espionage—dealing with information etc. which is or will be made available to foreign principal

Intention as to national security Proposed subsection 91.2(1) creates the offence of dealing with information or an article, where the person intends that their conduct will prejudice Australia’s national security and the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal. The Explanatory Memorandum clarifies that this is a second tier offence and

… can be committed even if the information the person deals with does not relate to national security, [however] the offences only apply where the person intends to prejudice Australia’s national security. 319

This offence is punishable by a maximum penalty of 25 years imprisonment.

As proposed subsection 91.2(1) is currently framed, it would appear to have the potential to rather easily and unfortunately capture persons who have a significant following on social media, make postings about particular issues and provide commentary on those issues, disagreeing perhaps with the stance of the Australian government. Examples of this are active campaigners for refugees’ rights, or those who support Timor-Leste on the Timor Gap issue. At the very least, this provision has the potential to capture a number of journalists and academics. In short, the offence appears to be framed too broadly and given its potential capture, it may have a chilling effect on freedom of political communication and does not appear to sit comfortably with High Court rulings in this space. The High Court has held:

Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community.

320

The High Court has also elaborated on this and placed certain parameters around freedom of political communication. In Lange, the Court held that the freedom is ‘limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution’.321 The Court went further and articulated a two-limbed test (modified in Coleman v Power)322 for when a law might interfere with the freedom of political communication:

1. Does the law, in its terms, operation or effect, effectively burden freedom of communication about government or political matters?

2. If the law effectively burdens that freedom, is the law nevertheless reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government […]323

319. Explanatory Memorandum, op. cit., p. 106. 320. Australian Capital Television v Commonwealth (1992) 177 CLR 106, 139 (Mason CJ). See also Nationwide News v Wills (1992) 177 CLR 1, 74 (Brennan J). While the High Court has held that the Constitution does not protect a personal right to freedom of political communication, it has expressed this freedom as a restraint on the exercise of legislative power by the

Commonwealth. 321. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561. 322. Coleman v Power (2004) 220 CLR 1. 323. Attorney-General for South Australia v Corporation of the City of Adelaide (2013) 249 CLR 1, [67] (French CJ).

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In McCloy v New South Wales, the High Court applied a proportionality test to gauge the purpose of the law and the means of achieving it, basically inquiring as to whether the law was suitable, necessary and adequate in its balance.324

The offence seems disproportionate to its rather broadly stated objective, and the content-based nature of the speech affected is potentially very broad and arguably difficult to justify. The defences in s 91.4 (discussed below) would not assist the average journalist, academic or politically interested citizen.

Reckless as to national security Proposed subsection 91.2(2) creates the offence of dealing with information or an article (that does not have to be subject to a security clearance), when the person is reckless as to whether their conduct will prejudice Australia’s national security and the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

This offence is punishable by a maximum penalty of 20 years imprisonment.

Proposed subsection 91.2(3) provides that for the purposes of paragraphs 91.1(c) and 91.2(c) the person does not need to have in mind a particular foreign principal and may have in mind more than one foreign principal. This has raised serious concern among media organisations and social activist groups, pointing out among other things, that it is unclear as to ‘how strong the causative link needs to be between a person’s conduct and information becoming available to a foreign principal.’325

The Attorney-General’s Department has clarified that section 91.2 could operate to capture information ‘communicated to a foreign principal through publication of news’, but made clear that the offence in section 91.2 is only made out:

… if the person was aware ‘of a substantial risk that his or her conduct would prejudice Australia’s national security or advantage the national security of a foreign country and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk. 326

Proposed subsection 91.2(2) which deals with unclassified information, somewhat resembles the offence set out in section 70(1) of the Crimes Act, which makes it an offence for a Commonwealth officer to unlawfully publish or communicate any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose.327 In this case, the penalty for the offence is two years imprisonment. Apart from the recklessness element, the other distinction between section 70(1) of the Crimes Act and proposed subsection 91.2(2) is that the latter applies to Commonwealth Officers and non-Commonwealth officers (‘persons’); and it deals explicitly with the circumstance of providing that information to a foreign principal (or someone acting on behalf of a foreign principal) as opposed to providing that information to someone who is not a foreign principal. It is not necessarily the case that the foreign principal is going to do more harm (if any) with that publicly available information than an ordinary local who receives such information. It is also

324. McCloy v New South Wales [2015] HCA 34 (7 October 2015) [3] (French CJ, Kiefel, Bell and Keane JJ). 325. Human Rights Watch, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 10], pp. 4-5. 326. Attorney-General’s Department, Submission op cit., p. 34. 327. In this case it is notable for example, that under the Parliamentary Service Determination 2013, employees are under an

obligation not to disclose any information obtained or generated in connection with their employment.

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difficult to understand the significant difference in penalty, with section 70 of the Crimes Act having a maximum penalty of two years imprisonment, as opposed to 25 years maximum imprisonment when possibly that very same ’information’ is given to a foreign principal.

Espionage—security classified information et cetera Proposed section 91.3 creates the offence of dealing with information or an article that has a security classification, for the primary purpose of communicating or making the information or article available to a foreign principal, where the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

This offence is punishable by a maximum penalty of 20 years imprisonment.

Penalties The Explanatory Memorandum states:

The maximum penalties for the offences in Subdivision A range from life imprisonment to 20 years imprisonment. This reflects the extreme harm that is likely to result from the conduct covered by the offences and the threat that espionage poses to Australia’s security, prosperity and sovereignty. 328

Defences In addition to the general defences available under Part 2.3 of the Criminal Code, proposed section 91.4 also creates specific defences so as to maintain the intention of the application of the offences to circumstances ‘where a person’s dealing with information is not a proper or legitimate part of their work.’329

It is a defence that the person dealt with the information or article:

• in accordance with a law of the Commonwealth

• in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles or

• in the person’s capacity as a ‘public official’.330

It is also a defence for a prosecution for an offence under sections 91.1 to 91.3 if the relevant information or article has already been communicated or made available to the public with the authority of the Commonwealth (proposed subsection 91.4(2)).

In addition, in response to recommendation 37 of the PJCIS Advisory Report, the Government Amendments insert a further defence at proposed subsection 91.4(3) of the Criminal Code.331 This defence is available for an offence by a person against:

• section 91.1, in which the prosecution relies on the argument that the person intends or is reckless as to whether their conduct will advantage the security of a foreign country or

• section 91.3

in the following circumstances:

328. Ibid., p. 106. 329. Ibid., p. 122. 330. The term ‘public official’ has the definition given in the Criminal Code dictionary. 331. PJCIS Advisory Report, op. cit., p. 242; Amendment 49 of the Government Amendments to the Bill.

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• the person did not make or obtain the relevant information or article as a result of being a Commonwealth officer or contractor, or as a result of an arrangement or agreement that allows for exchange of information and to which the Commonwealth is a party

• the relevant information or article has already been communicated or made available to the public

• the person was not directly or indirectly involved in the prior publication

• at the time they deal with the information or article the person believes that doing so will not prejudice national security and

• having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for the belief.

The person will bear an evidential burden in relation to these matters.

Aggravated espionage offence Proposed subsection 91.6 creates the aggravated offence of espionage, where the person has committed an underlying offence in sections 91.1 (other than the offence in subsection 91.1(1)), 91.2 or 91.3 and any of the following circumstances exist in relation to the commission of the underlying offence:

• the person dealt with information or an article from a foreign intelligence agency

• the person dealt with five or more records or articles each of which has a security classification

• the person altered a record or article to remove or conceal its security classification or

• at the time the person dealt with the information or article, the person held an Australian Government security clearance allowing access to information or articles that have a security classification of at least secret.

Penalty

• if the penalty for the underlying offence is imprisonment for 25 years, then the penalty becomes imprisonment for life or

• if the penalty for the underlying offence is imprisonment for 20 years, then the penalty becomes imprisonment for 25 years.

For the offences in subsections 91.2 or 91.3 it is notable that the provisions do not require proof that the disclosure was damaging or caused damage. This may be because the offence is intended to criminalise the behaviour that is potentially damaging but was detected/interrupted before the damage actually occurred; this is similar to many terrorism offences.

What appears to be absent from this list of aggravating circumstances, is where the person who committed the underlying offence in sections 91.1, 91.2 or 91.3, is a current or former staffer for a member or senator, or is a current or former member or senator. It is arguable that members and senators should be held to a higher standard of behaviour because there is an expectation that they will use their position to serve and act in the interest of Australia and Australians. As part of that duty and those roles, it may not be unreasonable to expect that these roles carry with them a particular higher duty of secrecy and discretion. As such, disclosures by such persons may reduce public confidence in their ability to carry out their duties effectively and loyally.

Geographical jurisdiction Proposed section 91.7 states that section 15.4 of the Criminal Code, which deals with extended jurisdiction (Category D) will apply to an offence against Subdivision A (Espionage). The Commonwealth Criminal Code creates four types of extended geographic jurisdiction. Category D extended geographic jurisdiction provides that an offence can be committed whether or not the conduct occurs in Australia and whether or not the results of the conduct occur in Australia.

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Subdivision B—Espionage on behalf of foreign principal

Intention as to National Security Proposed subsection 91.8(1) creates the offence of dealing with information or an article, and the person intends that their conduct will prejudice Australia’s national security, or advantage the national security of a foreign country and the person is reckless as to whether the conduct involves the commission by the person or another person, of an offence under Subdivision A (Espionage). The person’s conduct must have been done on behalf of or in collaboration with a foreign principal or a person acting on behalf of a foreign principal, or the person is being directed by, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. The person does not need to have in mind a particular foreign country and may have in mind more than one foreign country.

This offence is punishable by a maximum penalty of 25 years imprisonment.

Reckless as to National Security Proposed subsection 91.8(2) creates the offence of dealing with information or an article, where the person is reckless as to whether their conduct will prejudice Australia’s national security, or advantage the national security of a foreign country and the person is reckless as to whether the conduct involves the commission by the person or another person, of an offence under Subdivision A (Espionage). The person’s conduct must have been done on behalf of or in collaboration with a foreign principal or a person acting on behalf of a foreign principal, or the person is being directed by, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal. The person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal.

This offence is punishable by a maximum penalty of 20 years imprisonment.

The Explanatory Memorandum clarifies that the person committing the offence must intend to advantage the national security of a ‘foreign country’, not a ‘foreign principal’.332

Conduct on behalf of a foreign principal Proposed subsection 91.8(3) creates the offence of dealing with information or an article, and the person reckless as to whether their conduct involves the commission by another person, of an offence under Subdivision A (Espionage) and, the conduct is engaged in on behalf of or in collaboration with a foreign principal or a person acting on behalf of a foreign principal, or the person is being directed by, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

This offence is punishable by a maximum penalty of 15 years imprisonment.

Defences

As well as defences provided for in 2.3 of the Criminal Code, defences are provided in proposed section 91.9 where the person deals with that information or article:

• in accordance with a law of the Commonwealth

• in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles or

332. Explanatory Memorandum, op. cit., p. 135.

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• in the person’s capacity as a public official.

Basically, the defences may apply where a person is dealing with that information or article as a legitimate part of their work.333 The Note to this provision states that under the defence at subsection 91.9(1) the defendant will bear an evidentiary burden in relation to this defence.

Proposed 91.9(2) provides a defence based on existing section 91.2 of the Criminal Code which currently provides a defence to the existing espionage offences in current section 91.2 (1) and (2) of the Criminal Code, where the information or an article has already been communicated or made available to the public with the authority of the Commonwealth. The Note to this provision in the Bill states the defendant will bear an evidentiary burden in relation to this defence.

Geographical jurisdiction

Proposed section 91.10 states that section 15.4 of the Criminal Code, which deals with extended jurisdiction (Category D) will apply to an offence against Subdivision B (Espionage on behalf of a foreign principal). The Commonwealth Criminal Code creates four types of extended geographic jurisdiction. Category D extended geographic jurisdiction provides that an offence can be committed whether or not the conduct occurs in Australia and whether or not the results of the conduct occur in Australia.

The Explanatory Memorandum states:

Category D geographical jurisdiction is appropriate because intelligence agencies may undertake key facets of espionage activities against Australia in foreign countries to conceal these activities from relevant authorities seeking to prevent these activities. 334

Subdivision C—Espionage-related offences Offence of soliciting or procuring an espionage offence or making it easier to do so

Proposed section 91.11(1) creates the offence of ‘engaging in conduct’335 with the intention of soliciting or procuring336 an espionage offence, or make it easier to solicit or procure a target to deal with information or an article in a way that would constitute espionage under Subdivision A, or Subdivision B (espionage on behalf of foreign principals). The person will not need to have in mind a particular foreign principal and may have in mind more than one foreign principal (proposed section 91.11(2)).

This offence is punishable by a maximum penalty of 15 years imprisonment.

The Explanatory Memorandum states that there is currently a gap in the law such that soliciting or procuring espionage is not an offence. Proposed section 91.11(1) is intended to fill that gap and this make it possible for law enforcement to deal with such conduct ‘at the time it occurs, without the need to wait until an espionage offence is committed or sensitive information is actually passed to a foreign principal.’337

Proposed section 91.11(3) provides that a person may still commit an offence against section 91.11(1):

333. Ibid., p. 144. 334. Explanatory Memorandum, op. cit., p. 149. 335. The Explanatory Memorandum states that the conduct may be an act or omission., p. 150. 336. The term ‘procure’ has the meaning given to it in the Criminal Code Dictionary. It means ‘encourage, entice or recruit the

person to engage in that activity, or induce the person (whether by threats, promises or otherwise) to engage in that activity.’ 337. Explanatory Memorandum, op. cit., p. 149.

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• even if an offence against Subdivisions A or B is not committed

• even if it was in fact impossible for the target to deal with the information or thing in a way that would constitute an offence against Subdivision A or B

• even if the person does not have in mind particular information or a particular thing, or a particular dealing or kind of dealing with the information or thing, at the time the person engages in conduct in relation to the charge and

• whether or not it is a single dealing, or multiple dealings that the person intends to solicit or procure or make it easier to procure.

The rationale provided by the Explanatory Memorandum for this approach, is that it is consistent with the ‘fundamental intention of the offence - to criminalise the person’s intention to procure or solicit the target to engage in an espionage offence.’338 [Emphasis added]

Offence of preparing for an espionage offence Proposed section 91.12(1) creates the offence of engaging in conduct with the intention of preparing for, or planning an offence against Subdivisions A or B.

This offence is punishable by a maximum penalty of 15 years imprisonment.

Proposed section 91.12(3) provides that a person may still commit an offence against section 91.12(1):

• even if an offence against Subdivisions A or B is not committed

• whether or not the person engages in the conduct in preparation for, or planning of a specific offence against Subdivision A or B and

• whether or not the person engages in the conduct in preparation for, or planning of more than one offence against Subdivision A or B.

The Explanatory Memorandum provides guidance around the meaning of two key terms in relation to this offence:

The term ‘preparation’ could include acts to conceive, formulate, make ready, arrange, and assemble an idea, plan, thing, or person for an offence.

The term ‘planning’ could include acts to organise, arrange, design, draft, or setup an idea, plan, thing, or person for an offence. 339

Given the offences are directed at behaviour at the planning or planning stage, it is appropriate to impose the fault element of intention to both of the elements of the offence, so that a person can only be found guilty of the offence ‘where there is sufficient evidence that the person intended to prepare for, or plan, an espionage offence.’340

Defences As well as defences provided for in 2.3 of the Criminal Code, defences are provided for in proposed section 91.13 where the person deals with that information or article:

• in accordance with a law of the Commonwealth

338. Ibid., p. 152. 339. Ibid., p. 154. 340. Ibid., p. 154.

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• in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles or

• in the person’s capacity as a public official.

Basically, the defences may apply where a person is dealing with that information or article as a legitimate part of their work.341 The Note to this provision in the Bill states that the defendant will bear an evidentiary burden in relation to this defence.

Geographical jurisdiction Proposed section 91.14 states that section 15.4 of the Criminal Code, which deals with extended jurisdiction (Category D) will apply to an offence against Subdivision C (Espionage-related offences). The Commonwealth Criminal Code creates four types of extended geographic jurisdiction. Category D extended geographic jurisdiction provides that an offence can be committed whether or not the conduct occurs in Australia and whether or not the results of the conduct occur in Australia.

Division 92—Foreign Interference The Explanatory Memorandum states that there is a lacuna in current Commonwealth criminal law, in terms of offences targeting conduct undertaken by a foreign government that ‘falls short of espionage but is intended to harm Australia’s national security or influence Australia’s political or governmental processes.’342 In response to this gap and its implications for the effective, transparent and robust operation of Australia’s democratic and political processes, the Explanatory Memorandum states:

The Bill protects and promotes the right to opinion and freedom of expression, the freedom of assembly and association and the right to take part in public affairs and elections by … introducing foreign interference offences, which will criminalise certain conduct that seeks to influence the exercise of Australian democratic or political rights

343

Proposed Division 92 is comprised of three subdivisions:

Subdivision A -Preliminary: Definitions

Subdivision B -Foreign Interference

Subdivision C - Foreign Interference involving intelligence agencies

Subdivision A -Preliminary: Definitions Proposed section 92.1 inserts definitions which appear in and are relevant to the offences relating to foreign interference.

Deception refers to an intentional or reckless deception, whether by words or conduct, and whether as to fact or as to law, and includes:

• a deception as to the intentions of the person using the deception or any other person, and

• conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.

341. Ibid., p. 144. 342. Explanatory Memorandum, op. cit., p. 26. 343. Ibid., p. 8.

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The Explanatory Memorandum points out that this definition is in alignment with the definition relevant to the fraud offences in the Criminal Code.344 It is notable that the deception can also be mediated by electronic devices.

Menaces has the same meaning as in Part 7.5 of the Criminal Code (which deals with unwarranted demands) and basically refers to an express or implied threat of any action detrimental or unpleasant to another person (blackmail) or a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a position of relative power. A threat against an individual is taken not to be menaces unless the threat would be likely to cause the individual to act unwillingly, and the maker of the threat is aware of the vulnerability of the person to the threat (subsection 138.2 of the Criminal Code).

Subdivision B -Foreign Interference Subdivision B covers conduct involving interference in political, governmental or democratic processes, supporting foreign intelligence activities or otherwise prejudicing Australia’s national security.

• proposed subsection 92.2(1)—offence of intentional foreign interference (interference generally)

• proposed subsection 92.2(2)—offence of intentional foreign interference (interference involving a targeted person)

• proposed subsection 92.3(1)—offence of reckless foreign interference (interference generally)

• proposed subsection 92.3(2)— offence of reckless foreign interference (interference involving a targeted person)

• proposed subsection 92.4(1)— offence of preparing for a foreign interference offence

Offence of intentional foreign interference

Interference generally Proposed section 92.2(1) creates the offence of intentional foreign interference. A person will commit this offence if:

• they engage in conduct on behalf of or in collaboration with a foreign principal or a person acting on behalf of a foreign principal, or that is directed by, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal

• the person intends that their conduct will

- influence a political or governmental process of the Commonwealth or a state or a territory - influence the exercise of an Australian democratic or political right - support intelligence activities of a foreign principal, or - prejudice Australia’s national security And • any part of the conduct:

- is covert or involves deception - involves the person making a threat to cause serious harm to a person or involves the person making a demand with menaces. This offence is punishable by a maximum penalty of 20 years imprisonment.

344. Ibid., p. 160.

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Interference involving targeted person Proposed section 92.2(2) creates the offence of intentional foreign interference involving a targeted person. A person will commit this offence if:

• they engage in conduct on behalf of or in collaboration with a foreign principal or a person acting on behalf of a foreign principal, or that is directed by, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal

• the person intends that the conduct will influence another person (the target) in relation to a political or governmental process of the Commonwealth or a state or territory, or in the target’s exercise of any Australian democratic or political right or duty and

• the person conceals from or fails to disclose to the target, their relationship with a foreign principal or a person acting on behalf of a foreign principal.

This offence is punishable by a maximum penalty of 20 years imprisonment.

Offence of reckless foreign interference

Interference generally Proposed section 92.3(1) creates the offence of reckless foreign interference. A person will commit this offence if:

• they engage in conduct on behalf of , or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal, or that is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal

• the person is reckless as to whether the conduct will:

- influence a political or governmental process of the Commonwealth or a state or territory - influence the exercise of an Australian democratic or political right or duty - support intelligence activities of a foreign principal, or - prejudice Australia’s national security and • any part of the conduct is:

- covert or involves deception - involves the person making a threat to cause serious harm, whether to the person to whom the threat is being made or to another person or - involves the person making a demand with menaces. For the purpose of this offence, the person does not need to have in mind a particular foreign principal and the person may have in mind more than one foreign principal (proposed subsection 92.2(3)).

This offence is punishable by a maximum penalty of 15 years imprisonment.

Interference involving targeted person Proposed section 92.3(2) creates the offence of intentional foreign interference involving a targeted person. A person will commit this offence if:

• they engage in conduct on behalf of , or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal, or that is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal, and

• the person is reckless as to whether the conduct will influence another person (the target)in relation to a political or governmental process of the Commonwealth or a state or territory, or in the target’s exercise of any Australian democratic or political right or duty and

• the person conceals from or fails to disclose to the target, their relationship with a foreign principal or a person acting on behalf of a foreign principal.

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For the purpose of this offence, the person does not need to have in mind a particular foreign principal and the person may have in mind more than one foreign principal (proposed 92.3(3)).

This offence is punishable by a maximum penalty of 15 years imprisonment.

An ‘Australian democratic or political right’ Australian Lawyers for Human Rights have pointed out that the use of the phrase ‘Australian democratic or political right’ in the context of offences in proposed sections 92.2 and 92.3 lacks what might be useful clarity as to whether it is intended to be construed and operate as an individual or collective right. They note that by way of contrast, the use of the same phrase in proposed section 83.4 (interference with political rights and duties) in the context of conduct using force, intimidation or threats, operates with some clarification that the ‘the right or duty arises under the Constitution or a law of the Commonwealth’ (proposed subparagraph 83.4(1)(d)). In the absence of such parameter in the drafting of proposed sections 92.2 and 92.3, it is arguable that the phrase may have a wider meaning and thus operate more broadly.345

Political or governmental process of the Commonwealth or a state or territory.

The phrase ‘political or governmental process of the Commonwealth or a state or territory’ is also not defined or clarified in the Bill. However, the Explanatory Memorandum states that phrase would cover:

… matters within political parties (such as which candidate is pre-selected or the manner in which preferences are to be allocated at an election) as well as political matters within the parliamentary process (such as decisions by shadow Cabinet or decisions by political parties about policies). 346

A similar phrase is used and defined in proposed section 12 of the Foreign Influence Transparency Scheme Bill 2017 (FITS Bill), namely, ‘activity for the purpose of political or governmental influence’.347 The Attorney-General’s Department has stated:

If the Committee’s view is that a definition is desirable, the definition in section 12 of the Foreign Influence Transparency Scheme Bill could provide a useful starting point. 348

Interference involving targeted person offences In relation to the targeted person offences (proposed subsections 92.2(2) and 92.3(2)) Australian Lawyers for Human Rights (ALHR) raises concerns that there is no requirement for covert behaviour, deception, threats or menacing demands.349

345. Australian Lawyers for Human Rights, Submission to the Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 14 March 2018, [Submission no. 7.1], p. 3.

346. Explanatory Memorandum, op. cit., p. 163. 347. Proposed section 12 of the FITS Bill defines ‘activity for the purpose of political or governmental influence’ as an activity with the sole or substantial purpose of influencing: - a process in relation to a federal election or a designated vote,

- a process in relation to a federal government decision,

- proceedings of a House of the Parliament,

- a process in relation to a registered political party,

- a process in relation to a member of the Parliament who is not a member of a registered political party,

- a process in relation to a candidate in a federal election who is not endorsed by a registered political party, or

- an activity that influences the public or section of the public in relation to an aspect of any the above processes or

proceedings.

348. Attorney-General’s Department, Submission to the Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 14 March 2018, [Submission no. 6.3], p. 2.

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The influence intended could be entirely kindly and benign. But unless the perpetrator notifies the intended ‘target’ as to the foreign connection involved in the perpetrator’s influence attempt, the perpetrator is still liable to jail for up to 20 years (if intentional) or 15 years (if reckless)for attempting an influential communication - or even, under section 92.4, for preparing to make an influential communication!

350

To avoid such an outcome, ALHR considers that the following issues require clarification: who the perpetrator would need to notify about their attempt to influence a political or government process and in which forum, or by what means that notice might be given.351

Offence of preparing for a foreign interference offence Proposed section 92.4 creates the offence of engaging in conduct with the intention of preparing for, or planning, an offence against another provision of Subdivision B (Foreign Interference).

This offence is punishable by a maximum penalty of 10 years imprisonment.

Proposed section 92.4(3) provides that an offence is committed against section 92.4(1) whether or not an offence against Subdivision B is actually committed and whether or not the act is done in preparation for or planning for a specific offence or more than one offence again Subdivision B.

The Explanatory Memorandum states:

The purpose of this offence is to give law enforcement means to deal with preparatory conduct and enable intervention before foreign interference occurs. 352

‘Preparing for, or planning’

The terms preparation or planning do not receive further articulation in the Bill itself. However the Explanatory Memorandum states that these terms are intended to take their ordinary meaning:

The term ’preparing’ could include acts to conceive, formulate, make ready, arrange, and assemble an idea, plan, thing, or person for an offence against another provision in [the] Subdivision.

The term ‘planning’ could include acts to organise, arrange, design, draft, or setup an idea, plan, thing, or person for an offence against another provision in [the] Subdivision. 353

The Law Council does not support this offence and considers it unnecessary, arguing that ‘instead, the ancillary provisions of the Criminal Code for incitement, conspiracy and attempt should be relied upon.’354

Geographical jurisdiction Proposed section 92.6 states that section 15.4 of the Criminal Code, which deals with extended jurisdiction (Category B) will apply to an offence against Subdivision B (Foreign Interference). The

349. Australian Lawyers for Human Rights, Submission to the Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 14 March 2018, [Submission no. 7.1], p. 3.

350. Ibid. 351. Ibid. 352. Explanatory Memorandum, op. cit., p. 92. 353. Explanatory Memorandum, op. cit., pp. 180-181. 354. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security

Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 12.

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Commonwealth Criminal Code creates four types of extended geographic jurisdiction. Category B geographic jurisdiction provides that the offence applies:

• if the conduct constituting the offence occurs wholly or partly in Australia

• if the result of that conduct occurs wholly or partly in Australia and

• if the conduct occurs outside Australia and at the time of committing the offence, the person is an Australian citizen, resident or body corporate.

Subdivision C - Foreign Interference involving intelligence agencies

Subdivision C covers conduct involving funding, supporting and resourcing of foreign intelligence agencies:

proposed section 92.7—knowingly supporting foreign intelligence agency

proposed section 92.8—recklessly supporting foreign intelligence agency

proposed section 92.9—knowingly funding or being funded by foreign intelligence agency

proposed section 92.10—recklessly funding or being funded by foreign intelligence agency

‘Providing support or resources’

The Explanatory Memorandum to the Bill as originally introduced acknowledged the terms ‘support’ and ‘resources’ are not defined in the Bill. It states that they:

… will be given their ordinary meaning. What constitutes providing support or resources to an organisation will depend on the facts of each case but it is intended to cover assistance in the form of providing a benefit or other practical goods and materials, as well as engaging in conduct intended to aid, assist or enhance an organisations activities, operations, or objectives.

355

The Joint Media Organisations raised concerns about the breadth of the term ‘support’ in proposed sections 92.7 and 92.8, pointing out that it was possible:

… any communication—online, in print or by broadcast—that positively reports about a foreign intelligence agency would breach these sections. 356

The Attorney-General’s Department has provided some further clarification around the term ‘support’ stating:

The explanatory memorandum … clarifies that support in that context covers the provision of a benefit or other practical goods or aid. I would also say that that language is consistent with, and mirrors, the language used in the terrorism offences of providing support to a terrorist organisation. 357

The PJCIS Advisory Report recommended that the Bill be amended:

… to explicitly provide that the term ‘support’ refers to ‘material support’, and that the Explanatory Memorandum provide examples of conduct that will not constitute material support, for example, news reporting, editorial or opinion writing and humanitarian assistance. 358

355. Explanatory Memorandum, op. cit., p. 186. 356. Joint Media Organisations, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 9] p. 8. 357. Ms Anna Harmer, First Assistant Secretary, Attorney-General’s Department, Committee Hansard, Melbourne, 16 March 2018,

p. 36.

358. PJCIS Advisory Report, op. cit., pp. 262-63.

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The Government Amendments to the Bill amend sections 92.7 and 92.8 to implement this recommendation.359

The Law Council proposed that the foreign interference offences should provide a defence for persons acting in the public interest. This would provide protection to investigative journalists or ordinary citizens.360 WWF-Australia made a similar suggestion.361

The Attorney-General’s Department provided what may be interpreted as an equivocal response:

It is not clear that conduct constituting a foreign interference offence [can] be excused from criminal liability on the basis that it is ‘in the public interest’. Conversely, conduct that [is] ‘in the public interest’ is unlikely to fall within the scope of the foreign interference offences in the Bill. 362

Knowingly supporting foreign intelligence agency Proposed section 92.7 establishes the offence of knowingly resources or material support to an organisation or a person acting on behalf of an organisation, with knowledge that the organisation is a foreign intelligence agency.

This offence is punishable by a maximum penalty of 15 years imprisonment.

Recklessly supporting foreign intelligence agency Proposed section 92.8 establishes the offence of resources or material support to an organisation or a person acting on behalf of an organisation, reckless as to whether the organisation is a foreign intelligence agency.

This offence is punishable by a maximum penalty of ten years imprisonment.

The Law Council seems to consider the proposed offences in sections 92.7 and 92.8 to be insufficiently linked to and reflective of the severity of the offences. It has proposed that offences should:

… cascade in penalty and require that the person knew, or as a lesser offence, was reckless as to whether the support or resources would help the organisation to directly or indirectly engage in, preparing, planning, assisting in or fostering an act prejudicial to Australia’s security. 363

The drafting of proposed section 92.8 is interesting as the fault element ‘recklessly’ appears in the title of the section creating the offence but not in the drafted provision. It attaches, by default under section 5.6of the Criminal Code due to the fact that proposed section 92.8(b) is a circumstance as there is no statement that either strict or absolute liability attaches to proposed section 92.8(b).364 Paragraph 1070 of the Explanatory Memorandum seems incorrect as it suggests knowledge is the fault element and this would be inconsistent with the elements analysis in paragraph 1074 of the Explanatory Memorandum which makes reference to recklessness.

359. Amendments 59 and 60 of the Government Amendments to the Bill. 360. Law Council of Australia, op. cit., Submission 5, p. 52. 361. WWF-Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 36] p. 2.

362. Attorney-General’s Department, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 6.1] p. 14.

363. Law Council Submission, op cit., p. 12. 364. Section 5.6 of the Criminal Code applies the ‘recklessness’ fault element automatically to circumstances.

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Knowingly funding or being funded by foreign intelligence agency Proposed section 92.9 makes it an offence for a person to directly or indirectly receive, obtain or collect funds from, or directly or indirectly make funds available to an organisation or person acting on behalf of an organisation, knowing that the organisation is a foreign intelligence agency.

This offence is punishable by a maximum penalty of 15 years imprisonment.

Recklessly funding or being funded by foreign intelligence agency Proposed section 92.10 makes it an offence for a person to directly or indirectly receive, obtain or collect funds from, or directly or indirectly make funds available to an organisation or person acting on behalf of an organisation, reckless as to whether the organisation is a foreign intelligence agency.

This offence is punishable by a maximum penalty of ten years imprisonment.

The recurring theme of concern with the offences is not only the breadth of their capture, but also the proposed penalties. The Law Council has stated:

… the proposed offences in sections 92.9 and 92.10 (relating to funding or being funded by a foreign intelligence agency) should require that the person is reckless as to whether the funds will be used to facilitate or engage in activities prejudicial to Australia’s national security or, in the case of obtaining funds, involve undue influence.

365

Furthermore, it has been suggested that in proposing the maximum penalties for the espionage offences which range between 15 years to life imprisonment, and represent a significant increase from existing penalties, that the Government consider providing a more transparent and detailed rationale for these increases, demonstrating them to be necessary and proportionate.366

In relation to proposed section 92.8, the term ‘recklessly’ appears in the title and there is no fault element in proposed subparagraph 92.10(b). However, in paragraph 1093 of the Explanatory Memorandum it is suggested that knowledge attaches to this circumstance by default, however this is not possible under subsection 5.6(2) of the Criminal Code and is inconsistent with the use of recklessly in the heading of the offence.367

Division 92A— Theft of trade secrets involving foreign government principal The Explanatory Memorandum rationalises the creation of this offence by stating that the ‘theft of trade secrets amounts to economic espionage and can severely damage Australia’s national security and economic interests.’368 It is arguable that this offence conflates traditional notions of homeland security with corporate security; whereas the former is meant to deal with public interests, the latter is concerned with private interests.

The Law Council ‘notes that other comparable jurisdictions, such as the United Kingdom, do not have a trade secrets criminal offence.’369 It considers that theft of trade secrets is appropriately a private and civil matter, it does not consider that criminal sanctions will act as a deterrent and

365. Law Council Submission, op. cit., p. 12. 366. Law Council Submission 5, p. 12. 367. See Explanatory Memorandum, op cit., p. 191. 368. Explanatory Memorandum, op. cit., p. 27. 369. Law Council Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security

Legislation Amendment (Espionage and Foreign Interference) Bill 2017, op. cit., p. 53.

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certainly will not remedy the loss suffered by the aggrieved individual.370 The Law Council of Australia does not support the offences of theft of trade secrets.371

Theft of trade secrets involving foreign government principal Proposed section 92A.1 makes it an offence for a person to dishonestly372 receive, obtain, copy or duplicate, sell, buy or disclose information, in the following context:

• the information is generally unknown in (a particular) trade or business

• the information has a commercial value the would be reasonably expected to be diminished if the information were inappropriately communicated

• the owner of the information has made reasonable efforts to prevent the information from becoming generally known, and one of the following circumstances exists:

- the person engaged in the relevant conduct (that is, receiving, obtaining etc.) on behalf of, or in collaboration with, a foreign government principal, or a person acting on behalf of a foreign government principal or

- the conduct was directed, funded or supervised by a foreign government principal, or by a person who was directed, funded or supervised by a person acting on behalf of a foreign government principal. This offence is punishable by a maximum penalty of 15 years imprisonment.

Geographical jurisdiction Proposed section 92A.2 states that section 15.2 of the Criminal Code, which deals with extended jurisdiction (Category B) will apply to an offence against section 92A.1. The Commonwealth Criminal Code creates four types of extended geographic jurisdiction. Category B geographic jurisdiction provides that the offence applies:

• if the conduct constituting the offence occurs wholly or partly in Australia

• if the result of that conduct occurs wholly or partly in Australia and

• if the conduct occurs outside Australia and at the time of committing the offence, the person is an Australian citizen, resident or body corporate.

In general, a Category B offence will not be committed by an Australian resident if the conduct constituting the offence occurs wholly in a foreign country which does not criminalise the relevant conduct.373 However, proposed subsection 92A.2(2) provides that this does not apply in relation to an offence against section 92A.1. That means that an Australian resident will commit the offence even in circumstances where the conduct occurs in a country that does not have a corresponding offence.

370. Ibid. 371. Ibid., p. 12. 372. This is defined in proposed section 92A.1(2) with the two-limbed Feely/Ghosh test used for codified theft and obtaining offences in the Criminal Code (Cth) and the Criminal Code 2002 (ACT). The English and Australian courts have struggled with a

test for dishonesty. The UK Court of Appeal in the landmark cases of Feely and Ghosh held that ‘dishonestly’ where used in the Theft Act 1986 (UK) required proof of ‘moral obloquy’ in addition to any intention or lack of claim of right. In Feely, the Court of Appeal held that this moral obloquy could be determined by using the ‘standards of ordinary decent people’. Uncertainty then arose as to whether this meant that the standard was to be applied objectively or whether it was a subjective standard. The Court of Appeal decision in Ghosh held that the standard was an objective one, but that a second question of whether the accused was aware of this standard had also to be satisfied. This became known as the ‘Feely/Ghosh’ or ‘Ghosh test for dishonesty’. See: R v Feely (1973) QB 530 and R v Ghosh [1982] Q.B. 1053. 373. Subsection 15.2(2) and (4) of the Criminal Code. Australian citizens and corporations still commit an offence in these

circumstances.

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Consent of Attorney-General required for prosecutions Proposed subsection 93.1(1) makes it a requirement that the written consent of the Attorney-General is obtained before committing a person to trial for any offence under Part 5.2 of the Criminal Code. In deciding whether to consent, the Attorney-General must consider whether the conduct of the accused might be authorised by the defences in sections 91.4, 91.92.5 or 92.11.

In addition, the Government Amendments to the Bill require that if the proceedings relate to information or an article that has a security classification, the Attorney-General must certify that it was appropriate for the information or article to be classified at the time of the alleged offence (proposed paragraph 93.1(1)(b)).374 This amendment implements recommendation 10 of the PJCIS Advisory Report, but vests authority to issue certification with the Attorney-General rather than the ‘head of the originating agency’ as set out in the recommendation.375

Proposed subsection 93.1(2) provides the following steps (but no further steps in proceedings) may be taken without the Attorney-General’s required written consent:

• a person may be arrested for the offence and a warrant for such an arrest may be issued and executed

• a person may be charged with the offence

• the person charged may be remanded in custody or on bail.

Presumption Against Bail The Explanatory Memorandum states:

Under existing section 15AA of the Crimes Act, and the amendments in this Bill, bail must not be granted for offences including treason, treachery and espionage unless ‘exceptional circumstances’ apply. The presumption against bail is appropriately reserved for serious offences recognising the need to balance the right to liberty and the protection of the community.

376

For offences subject to a presumption against bail the accused will nevertheless be afforded to opportunity to rebut the presumption.

Proposed Amendment 73 amends section 15AA of the Crimes Act so that a presumption against bail applies for an offence against subsections 92.2(1) or 92.3(1) (intentional or reckless offence of foreign interference) if:

• the death of a person is alleged to have been caused by conduct that is a physical element of the offence or

• conduct that is a physical element of the offence carried a substantial risk of causing the death of a person.

The drafting of the Bill as introduced had the effect of applying the presumption against bail if the conduct of the defendant involved making a threat to cause serious harm or a demand with menaces.

The Law Council of Australia has argued in its submission that ‘[t]he presumption against bail under section 15AA Crimes Act should not be extended to treason, treachery, espionage and foreign interference cases as is proposed by the Bill, as it generally goes against the presumption

374. Amendment 62 of the Government Amendments to the Bill. 375. PJCIS Advisory Report, op. cit., p. 76. 376. Explanatory Memorandum, op. cit., p. 13.

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of innocence.’377 Furthermore, the presumption in favour of bail can be rebutted where there is demonstrated unacceptable risk, which cannot be mitigated by the imposition of conditions.378 However, it is notable that it has become the norm to have a presumption against bail in other national security offences like terrorism and, sometimes, bail is secured by defendants arguing successfully against presumptions against bail as Bilal Khazal did in: R v Khazal [2004] NSWSC 548.

The Law Council has pointed out:

Article 9(3) of the ICCPR provides, in part, that: ‘It shall not be the general rule that persons awaiting trial shall be detained in custody’. This ‘properly places the burden upon the State to establish the need for the detention of an accused person to continue. 379

Non-parole periods Proposed Amendment 74: removes the reference to Division 91 (espionage) from paragraph 19AG(1)(c) of the Crimes Act, which deals with minimum non-parole periods, and inserts a new paragraph 19AG(1)(d) which applies the minimum non-parole period to an offence against new subsections 91.1(1) or 91.2(1) of the Criminal Code. This implements recommendation 58 of the PJCIS.

Part 3—Review by Independent National Security Legislation Monitor Item 51 of the Bill (proposed by Amendment 77 of the Government Amendments to the Bill) repeals existing subsection 6(1B) of the Independent National Security Legislation Monitor Act 2010, and replaces it with proposed subsection 6(1B), which imposes a requirement on the Monitor to begin a review of the operation, effectiveness and implications of Division 82 (sabotage), Part 5.2 (espionage and related offences) and Part 5.6 (secrecy of information) in Chapter 5 of the Criminal Code, three years after the day of Royal Assent.

Schedule 2—Secrecy

Background Part of the review of Australia’s espionage and foreign interference legislation requested by Prime Minister Turnbull included the adequacy and effectiveness of the official secrecy offences contained in the Crimes Act 1914 (Crimes Act).380

The key amendments in Schedule 2 of the Bill repeal ‘Part VI—Offences by and against public officers’ and ‘Part VII—Official secrets and unlawful soundings’ from the Crimes Act and insert proposed ‘Part 5.6—Secrecy of information’ into the Criminal Code Act 1995 (Criminal Code). The Explanatory Memorandum states:

New Part 5.6 contains a suite of new Commonwealth secrecy offences. These new offences replace sections 70 and 79 of the Crimes Act and will apply if the information disclosed is inherently harmful (such as security classified information) or would otherwise cause harm to Australia’s interests. The offences will apply to all persons, not just Commonwealth officers.

381

377. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 15. 378. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 15. 379. Ibid., p. 75. 380. Attorney-General’s Department, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, submission no. 6, January 2018, p. 6. 381. Explanatory Memorandum, op. cit., p. 4.

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Previous consideration of reform A version of section 70 (disclosure of information by Commonwealth officers) was included in the original Crimes Act, but was amended in 1960 to extend the secrecy obligation to former Commonwealth officers. A version of section 79 was also included in the original Crimes Act based on a similar provision in the Official Secrets Act 1911 (UK).382 Only minor amendments have been made to sections 70 and 79 of the Crimes Act since 1960.383 The Explanatory Memorandum states that ‘there have been calls for significant reforms to Parts VI and VII for many years’.384

In 1979, the Senate Legal and Constitutional Affairs Committee, in considering the Freedom of Information Bill 1978, recommended:

Urgent consideration should be given by the Government to the question of reforming section 70 of the Crimes Act so as to limit the categories of information that it is an offence to disclose and to establish procedural safeguards for any person who may face prosecution under that section. Any such reform of section 70 should preferably be enacted either before or simultaneously with the enactment of the Freedom of Information Bill.

385

In 1983, the Human Rights Commission reviewed the Crimes Act and found that section 70 could operate in a manner inconsistent with the right to freedom of expression contained in article 19 of the International Covenant on Civil and Political Rights (ICCPR). It stated:

Article 19 [of the ICCPR] protects the right to freedom of expression, which includes the right to impart information. The exercise of such a right is, however, subject to certain restrictions, as set out in Article 19.3. These restrictions may only be such as are provided by law and are necessary for the respect of the rights or reputations of others and for the protection of national security or of public order or of public health or morals. Section 70 proscribes the disclosure of any information acquired by virtue of office and, therefore, may restrict a person's right to impart information that has no bearing on the matters in respect of which restrictions may, under Article 19.3, be imposed. The Commission recommends that section 70 be amended to limit its operation to the kinds of information in respect of which restrictions may be imposed under Article 19.3.

386

Gibbs Review Committee The secrecy offences in section 70 and section 79 (official secrets) of the Crimes Act were assessed as part of the Review of Commonwealth Criminal Law chaired by Sir Harry Gibbs in 1991 (Gibbs Review Committee).387 The Committee recognised that ‘there are some descriptions of official information that should be protected by the criminal law from unauthorised disclosure’ but considered that ‘it is undesirable that the sanctions and machinery of the criminal law should be applied in relation to the unauthorised disclosure of all forms of official information’.388 The Gibbs Review Committee recommended that ‘the present catch-all provisions of section 70 and subsection 79(3) of the Crimes Act 1914 should be repealed and replaced with provisions under which the application of penal sanctions to unauthorised disclosure of official information is

382. K Hardy and G Williams, ‘Terrorist, Traitor or Whistleblower? Offences and Protections in Australia for Disclosing National Security Information’, UNSW Law Journal, 37(2), 2014, pp. 799-803. 383. Attorney-General’s Department, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, submission no. 6, January 2018,

p. 30.

384. Explanatory Memorandum, op. cit., p. 221. 385. Senate Legal and Constitutional Affairs Committee, Freedom of information: report on the Freedom of Information Bill 1978, and aspects of the Archives Bill 1978, The Senate, Canberra, 1979, p. 243. 386. Human Rights Commission, Review of the Crimes Act 1914 and Other Crimes Legislation of the Commonwealth, Report No. 5,

August 1983, p. 7. 387. Attorney-General’s Department, Review of Commonwealth Criminal Law, Final report, Canberra, 1991. 388. Ibid., p. 315.

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limited, with the exception of special circumstances … to specific categories of information no more widely stated than is required for the effective functioning of Government’.389

It also recommended section 79 be repealed and other specific secrecy offences be introduced, together with a general secrecy offence that provided that a person must not:

(a) disclose, without lawful authority, any official information to another person in circumstances where the persons knows that the disclosure is likely to damage the safety or defence of the Commonwealth; or

(b) unlawfully obtain official information with a view to disclosing it to another person in circumstances where the person knows that the disclosure would be likely to damage the safety or defence of the Commonwealth.

The proposed penalty would be imprisonment for seven years.390

Australian Law Reform Commission reports The ALRC in Keeping Secrets: The Protection of Classified and Security Sensitive Information (2004) considered that ‘it would be appropriate to clarify the scope of the duty not to disclose official information for the purposes of the criminal law’. Its view was ‘there should be a certain amount of flexibility in the scope of the duty imposed on officers of certain agencies; for example, it may be appropriate to impose a more extensive duty on officers employed by the intelligence and security agencies than on other public servants’.391 The ALRC recommended:

The Australian Government should review all legislative and regulatory provisions giving rise to a duty not to disclose official information—including in particular regulation 2.1 of the Public Service Regulations [1999 (Cth)]—to ensure the duty of secrecy is imposed only in relation to information that genuinely requires protection and where unauthorised disclosure is likely to harm the public interest.

392

In conducting this review the ALRC recommended that ‘a clear distinction is drawn between conduct that gives rise to administrative sanctions under the Public Service Act 1999 (Cth) and conduct that gives rise to criminal sanctions, including those under section 70 of the Crimes Act 1914 (Cth)’.

In relation to section 79, the ALRC recognised the need for reform noting that the ‘language and structure of s 79 is complex and in some instances archaic’ and the ‘source of the duty in certain sections is unclear particularly in relation to people who are not Commonwealth officers’. It stated:

… s 79 imposes criminal sanctions on any person or organisation, including the media. Because of this, any reform of this provision raises special difficulties. It is essential that a provision of this kind is clear on its face and draws an appropriate balance between the need to protect sensitive government information and other public interests such as appropriate public access to government information

393

The ALRC recommended:

The Australian Government should undertake a comprehensive review of s 79 of the Crimes Act in order to clarify and modernise the language and intent of the provision and to ensure that an appropriate

389. Ibid., p. 330. 390. Ibid., Draft Crimes Amendment Bill (No. 2) 1991, p. 65. 391. Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Report 98, May 2004, p. 162.

392. Ibid., p. 163. 393. Ibid., p. 168.

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public policy balance is found across the range of offences created by the provision. Such a review should consider, among other things:

(a) the possible need for a new summary offence of strict liability dealing with the unauthorised disclosure of classified information and attracting a maximum penalty of no more than 12 months’ imprisonment—and including certain safeguards, such as defences of due diligence and reasonable mistake;

(b) the need to limit certain offences to circumstances in which disclosure of the information is likely to, or did in fact, harm the public interest; and

(c) the relationship of s 79 with s 70 of the Crimes Act and s 91.1 of the Criminal Code Act. 394

The ALRC also reviewed Commonwealth secrecy laws in its 2009 report Secrecy Laws and Open Government in Australia. The ALRC report observed that since 2000 ‘the majority of prosecutions for the breach of secrecy provisions have been brought under s 70 of the Crimes Act, even where specific secrecy offences would have been available’.395 However, there have been few prosecutions under section 79.396

The ALRC recommended a harm-based approach be taken to the reform of secrecy offences. It considered ‘most secrecy offences, and the general secrecy offence in particular, should include an express requirement to establish that an unauthorised disclosure of Commonwealth information caused, or was likely or intended to cause, harm to specified public interests’. The ALRC considered this approach ‘balances the need to protect some information by means of the criminal law, with the public interest in open government and the fostering of a pro-disclosure culture in the Australian public sector’.397

Key recommendations of the ALRC report included:

Recommendation 4-1 Sections 70 and 79(3) of the Crimes Act 1914 (Cth) should be repealed and replaced by new offences in the Criminal Code (Cth)—the ‘general secrecy offence’ and the ‘subsequent disclosure offences’.

Recommendation 5-1 The general secrecy offence should require that the disclosure of Commonwealth information did, or was reasonably likely to, or intended to:

(a) damage the security, defence or international relations of the Commonwealth;

(b) prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;

(c) endanger the life or physical safety of any person; or

(d) prejudice the protection of public safety.

Related reform to the ASIO Act On 21 October 2015, the former Independent National Security Legislation Monitor (INSLM), Roger Gyles, completed a report on the impact on journalists of section 35P of the Australian

394. Ibid., p. 170. 395. ALRC, Secrecy Laws and Open Government in Australia, Report 112, December 2009, p. 88. 396. One example cited in the ALRC report was Simon Lappas, an employee of the Defence Intelligence Organisation, who in 2003 was convicted and sentenced to two years imprisonment under subsection 79(3) and (then) section 78 of the Crimes Act after

giving classified documents to an unauthorised person to sell to a foreign country. 397. ALRC, Secrecy Laws and Open Government in Australia, op. cit., p. 141.

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Security Intelligence Organisation Act 1979 (ASIO Act). This concerned disclosures made in relation to ‘security intelligence operations’ (SIO). The INSLM report found:

The basic problem with section 35P is that it does not distinguish between journalists and others (outsiders) and ASIO insiders. The application in this manner of broad secrecy prohibitions to outsiders is not satisfactorily justified, including by precedents in Australia or elsewhere … 398

It also identified ‘the absence of an express harm requirement for breach (of the basic offence) by a journalist or other third party’ as one of the basic flaws of the section.399 Recommendations made by the INSLM report were accepted by the Australian Government and legislative amendments to section 35P were made in the Counter-Terrorism Legislation Amendment Act (No. 1) 2016.400 In particular, the amendments to section 35P divided the offences concerning disclosures concerning SIOs into those committed by ‘entrusted persons’ (essentially insiders— ASIO officers etc.) and those committed by others.

Australian Border Force Act secrecy offence In 2015, the Australian Border Force Act 2015 included secrecy and disclosure provisions which have some similarities to the offences in the Bill. Section 42 provides that an ‘entrusted person’ must not make an record of or disclosure of ‘Immigration and Border Protection information’ unless it is in the course of the person’s employment or service as an entrusted person or is required or authorised by law or by an order or direction of a court or tribunal. The maximum penalty for the offence is imprisonment for two years.

Recent events

Recent disclosures of national security information (particularly large scale disclosures originating in the United States) have had implications for the Australian Government and have contributed to reconsideration of the legislative protections of official information. These disclosures have also put renewed emphasis on the tension between public interest disclosures, the reporting of news and national security interests.

For example, the disclosures made by former National Security Agency contractor Edward Snowden in 2013 have had a range of consequences for the Australian Government. The Attorney-General George Brandis has reportedly described the ‘Snowden revelations’ as ‘the most serious setback for Western intelligence since the Second World War’.401 Disclosures concerning surveillance activities undertaken by Australian agencies against foreign nationals have also had implications for Australia’s international relations.402

Concerns about releases of official information are on-going. For example, in August 2017, it was reported that overseas intelligence partners had raised concerns that sensitive information provided to Australian Government agencies concerning a terrorist bomb plot were appearing in Australian newspapers.403 Recently, the Australian Broadcasting Corporation (ABC) released a series of news stories based on classified documents recovered from filing cabinets inadvertently

398. Independent National Security Legislation Monitor, Report on the impact on journalists of section 35P of the ASIO Act, October 2015, p. 2. 399. Ibid., p. 23. 400. For detailed analysis of the amendments see C Barker and C Raymond, Counter-Terrorism Legislation Amendment Bill (No. 1)

2016, Bills digest, 20, 2016-17, Parliamentary Library, Canberra, October 2016, pp. 45-63. 401. C Stewart and P Maley, ‘Snowden stole 15,000 Aussie files’, The Australian, 5 December 2013, p. 1. 402. For example, T Allard, ‘We know the identities of the 'spies': East Timor’, The Age, 10 December 2013, p. 9; M Bachelard &

D Wroe, ‘Indonesia recalls its ambassador’, The Age, 19 November 2013, p. 1. 403. P Maley, ‘Aussie leaks on Etihad plot left foreign spies furious’, The Australian, 23 August 2017, p. 8.

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sold at an ex-government furniture store in Canberra. This included a document that revealed ‘Australian Federal Police (AFP) lost nearly 400 national security files in five years, according to a secret government stocktake …’.404 In explaining its reasons for publishing some of the documents, the ABC stated the documents ‘expose repeated security breaches of Australia's most sensitive and classified documents and a seemingly casual attitude of some of those charged with keeping the documents safe’.405

Part 1—Secrecy of information

Existing secrecy offences repealed—Crimes Act Item 5 of Schedule 2 repeals Part VI and Part VII of the Crimes Act which contains provisions for the offences by public officers and official secrets. In particular, section 70 sets out penalties for the unauthorised disclosure of information by current and former Commonwealth officers and section 79 contains offences relating to official secrets.

Section 70 —Disclosure of information by Commonwealth officers

Section 70 is the only section in ‘Part VI—Offences by and against public officer’ in the Crimes Act. Under section 70, criminal sanctions apply to a breach of a ‘duty not to disclose’ of Commonwealth officers. ‘Commonwealth officer’ is broadly defined in section 3 of the Crimes Act. In particular, for the purposes of section 70, the definition includes those who perform services on behalf of the Commonwealth despite not holding office or being employed by the Commonwealth.406

Subsection 70(1) makes it an offence for a Commonwealth officer to publish or communicate, without authorisation, any fact or document which comes into their knowledge or possession by virtue of being a Commonwealth officer and which they have duty not to disclose.

Subsection 70(2) makes it an offence for any former Commonwealth officer to publish or communicate without lawful authority or excuse (‘proof whereof shall lie on him or her’) any fact or document which comes into their knowledge or possession by virtue of having been a Commonwealth officer and which it was their duty not to disclose.

The penalty for both offences is imprisonment for two years.

Section 70 applies to information acquired by a Commonwealth officer in the course of the officer’s duties and which the officer has a duty not to disclose. This may include, but is not limited to, classified and security sensitive information. The ALRC report Secrecy Laws and Open Government in Australia observed:

Section 70 does not create a duty to keep information secret or confidential. Rather, the source of such a duty must be found elsewhere—most commonly in a specific secrecy provision. In R v Goreng Goreng, for example, the duty was found in reg 2.1(3) of the Public Service Regulations, which provides that [Australian Public Service] employees must not disclose information obtained or generated in

404. The Australian Federal Police issued a response to this report which indicated ‘[m]ore than 90 per cent of these documents were subsequently located or confirmed to have been destroyed’. See Australian Federal Police, Media statement on reports the AFP lost 400 national security documents in five years, media release, 1 February 2018.

405. Australian Broadcasting Corporation, The Cabinet Files, 31 January 2018. 406. This definition of ‘Commonwealth officer’ in subsection 3(1) will be amended by the items 1 and 2 to remove references to members of the Australian Federal Police (paragraph (b)), and remove two paragraphs which include those not employed by the Commonwealth who perform services for or on behalf of the Commonwealth (paragraph (c)) and employees or those who

perform services for the Australian Postal Corporation (paragraph (d)).

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connection with their employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government. 407

Section 79—Official secrets Section 79 of the Crimes Act deals with the protection of official secrets. The section contains a number of offences relating to the communication, retention and granting access to official secrets to any person. A Commonwealth officer, or another person in receipt of prescribed items or information from a Commonwealth officer, may be guilty of an offence. The five offences in section 79 are summarised below.

Subsection 79(1) outlines the meaning of a ‘prescribed sketch, plan, photograph, model, cipher, note, document, article’ (for convenience ‘prescribed items’) and ‘prescribed information’ for the purposes of the offences in the section.408 For the purposes of the section an item or information is ‘prescribed’ in relation to a person if the person has it in his or her possession or control and:

(a) it has been made or obtained in contravention of this Part VII of the Crimes Act (Official secrets and unlawful sounding) or in contravention of section 91.1 of the Criminal Code (espionage and similar activities offences); or

(b) it has been ‘entrusted to the person by a Commonwealth officer or a person holding office under the Queen or he or she has made or obtained it owing to his or her position as a person’:

(i) who is or has been a Commonwealth officer;

(ii) who holds or has held office under the Queen;

(iii) who holds or has held a contract made on behalf of the Queen or the Commonwealth;

(iv) who is or has been employed by or under a person to whom a preceding subparagraph applies; or

(v) acting with the permission of a Minister;

and, by reason of its nature or the circumstances under which it was entrusted to him or her or it was made or obtained by him or her or for any other reason, it is his or her duty to treat it as secret; or

(c) it relates to a prohibited place or anything in a prohibited place and:

(i) he or she knows; or

(ii) by reason of its nature or the circumstances under which it came into his or her possession or control or for any other reason, he or she ought to know;

that it should not be communicated to a person not authorized to receive it.

Subsection 79(2) provides that a person commits an offence if they communicate or permit another person to have access to a prescribed item or information without authorisation, or retain prescribed item without authorisation or fail to comply with a direction with respect to retention or disposal of a prescribed item with ‘the intention of prejudicing the security or defence of the Commonwealth or a part of the Queen’s dominions’. The maximum penalty is seven years imprisonment.

407. ALRC, Secrecy Laws and Open Government in Australia, op. cit., p. 88. 408. Subsection 77(1) provides definitions of some of the listed prescribed items (article, cipher, model, plan and sketch) and defines ‘information’ as meaning ‘information of any kind whatsoever, whether true or false and whether in a material form or not, and includes: (a) an opinion; and (b) a report of a conversation’.

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Subsection 79(3) provides that a person commits an offence if they communicate or allow a person to have access to a prescribed item or information without authorisation. The maximum penalty is two years imprisonment.

Subsection 79(4) provides that a person commits an offence if they retain a prescribed item when they have no right or duty to retain it, fail to comply with a direction regarding the retention or disposal of prescribed item, or fail to take reasonable care of a prescribed item or prescribed information to ensure it is not communicated to an unauthorised person or if they conduct themselves ‘as to endanger its safety’. The maximum penalty is six months imprisonment.

Subsection 79(5) provides that a person commits an offence if they receive any item or information ‘knowing or having reasonable grounds to believe’ that it is communicated in contravention of section 91.1 of the Criminal Code or subsection 79(2) ‘unless he or she proves the communication was contrary to his or her desire’. The maximum penalty is seven years imprisonment.

Subsection 79(6) provides that a person commits an offence if they received any prescribed item or information knowing or having reasonable grounds to believe the communication is in contravention of subsection 79(6) ‘unless he or she proves the communication was contrary to his or her desire’. The maximum penalty is two years imprisonment.

The offences in section 79 have a broader application beyond Commonwealth officers. The ALRC report on the secrecy offences noted:

Section 79 covers the unauthorised disclosure of information obtained and generated by Commonwealth officers and information ‘entrusted’ to other persons by Commonwealth officers. The offence therefore covers both initial disclosures by Commonwealth officers and subsequent disclosures by third parties. In addition, the offences relating to the receipt and handling of an official secret apply to any person, regardless of whether the person was aware that he or she had a duty not to disclose information.

409

Other repealed sections

The Explanatory Memorandum notes that ‘Part VII— Official secrets and unlawful soundings’ contains a range of offences relating to official secrets, prohibited places and unlawful soundings and some procedural provisions.410 Other sections which will be repealed with ‘Part VII—Official secrets and unlawful soundings’ include:

• section 80 which designates prohibited places

• section 83 which makes it an offence to take, make or communicate ‘unlawful soundings’ (punishable by imprisonment for two years)

• section 85 which deals with the role of the Attorney-General in the institution of prosecutions under Part VII (in particular a prosecution under Part VII ‘shall be instituted only by or with the consent of the Attorney-General or of a person acting under his or her direction’)

• section 85B which deals with the capacity of judge or magistrate hold hearings in camera, order that no report relating to application or proceedings be published and make orders and give directions concerning access to ‘any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court’. It provides a person who contravenes an order or direction pursuance of this section commits an offence punishable by imprisonment for five years.

409. Australian Law Reform Commission, Secrecy Laws and Open Government in Australia, Report 112, December 2009, p. 96. 410. Explanatory Memorandum, op. cit., p. 221.

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Part 5.6—Secrecy of information Proposed Part 5.6 of the Criminal Code contains eight secrecy offences for current and former Commonwealth officers. Four of these new secrecy offences relate to ‘inherently harmful information’ and four relate to ‘conduct causing harm to Australia’s interests’. The Government’s amendments have added two secrecy offences for non-Commonwealth officers.

There is also a provision for aggravated offences with increased penalties if specific circumstances exist with the underlying offences and a replacement offence for unauthorised disclosures by current and former Commonwealth officers. Key definitions relating to these offences are contained in Part 5.6 as well as specific defences, including a defence for ‘persons engaged in business of reporting the news’.

Following the PJCIS report into the Bill, the Government Amendments have reduced the penalties for the proposed secrecy offences. The PJCIS report noted that the maximum penalties of the proposed offences are greater than the penalties for the existing offences and contrast Australian Law Reform Commission recommendations the maximum penalty for the general secrecy offence be ‘seven years imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both’.411

Proposed offences—Communication and other dealing with inherently harmful information by current and former Commonwealth officers Proposed section 122.1 contains four offences in relation to communication and other dealing with ‘inherently harmful information’. Previously, these offences had broader coverage but in the amended Bill have been directed to current and former Commonwealth officers. Proposed section 121.1 (definitions for Part 5.6) provides that ‘inherently harmful information’ means information412 which is any of the following:

• security classified information

• information that was obtained by, or made by or on behalf of, a domestic intelligence agency413 or a foreign intelligence agency in connection with the agency’s functions

• information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency.

The proposed section 121.1 definition of ‘Commonwealth officer’ for Part 5.6 is similar in scope to the definition in the Crimes Act and extends to individuals who are contracted service providers for a Commonwealth contract and individuals who are officers or employees of ‘a contracted service provider for a Commonwealth contract and who provide services for the purposes (whether direct or indirect) of the Commonwealth contract’. The new definition of ‘Commonwealth officer’ in proposed section 121.1 means:

(a) an APS employee;

(b) an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999;

(c) a member of the Australian Defence Force;

(d) a member or special member of the Australian Federal Police;

411. PJCIS, Advisory report, op. cit., p. 193. 412. Proposed section 121.1 provides that ‘information’ has the meaning in existing subsection 90.1(1). This is a broad definition meaning ‘information of any kind, whether true or false and whether in material form or not, and includes: (a) an opinion; and (b) a report of a conversation’.

413. The term ‘domestic intelligence agency’ is also defined in proposed section 121.1 to mean the Australian Secret Intelligence Service, or the Australian Security Intelligence Organisation, or the Australian Geospatial-Intelligence Organisation, or the Defence Intelligence Organisation, or the Australian Signals Directorate or the Office of National Assessments.

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(e) an officer or employee of a Commonwealth authority;

(f) an individual who is a contracted service provider for a Commonwealth contract;

(g) an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract.

The Government’s amendments have amended this definition to exclude an ‘officer or employee of, or a person engaged by, the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation’. This was originally a proposed amendment by the Attorney-General to the PJCIS inquiry. The Attorney-General stated that this would appropriately recognise ‘that members of these organisations, while being public employees, are engaged primarily in journalism and communications activities’.414

The AGD submission to the PJCIS stated the existing definition of ‘Commonwealth officer’ in the Crimes Act is unclear as to whether ministers and their staff fall within this definition:

Unlike the Public Service Act and its supporting regulations, the Members of Parliament (Staff) Act 1984 contains no clear duty not to disclose information. While there is a provision in the Code of Conduct for Ministerial Staff regarding the appropriate use of information, this only applies to personal and electorate staff of Ministers and Parliamentary Secretaries.

415

The Law Council submission notes that the Bill’s definition of ‘Commonwealth officer’ does not include the Governor-General or parliamentarians who are not appointed to roles of Minister of State or Parliament secretaries. It suggested consideration should be given to whether the Governor-General should be included in the definition of ‘Commonwealth officer’.416

Communication of inherently harmful information Proposed subsection 122.1(1) provides that a person commits an offence if a person communicates information, the information was inherently harmful information and the information was made or obtained by that person by reason of being , or having been a Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth entity’. The Government’s amendments changed the penalty for this offence from 15 years to seven years imprisonment.

Other dealing with inherently harmful information Proposed subsection 122.1(2) provides that a person commits an offence if the person deals417 with information (other than by communicating it), the information is inherently harmful information and the information was made or obtained by that person by reason of being, or

414. Attorney-General, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, January 2018, p. 2. 415. Attorney-General’s Department, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, January 2018, p. 26. 416. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National

Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, January 2018, p. 66. 417. Proposed section 121.1 provides that ‘deal’ has the meaning in existing subsection 90.1(1) of the Criminal Code. As noted above, this definition will be inserted into section 90.1(1) by item 10, Part 1 of Schedule 1. The broad definition provides that

a person deals with information or an article if the person does any of the following: (a) receives or obtains it; (b) collects it; (c) possesses it; (d) makes a record of it; (e) copies it; (f) alters it; (g) conceals it; (h) communicates it; (i) publishes it; (j) makes it available.

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having been a Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth entity’. The penalty for this offence is imprisonment for three years.418

Information removed from, or held outside, proper place of custody Proposed subsection 122.1(3) provides that a person commits an offence if the person removes information from a proper place of custody of the information or holds information outside of a proper place of custody, the information is inherently harmful information and the information was made or obtained by that person by reason of being, or having been a Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth entity’. The penalty for this offence is imprisonment for three years.419

The definition of ‘proper place of custody’ in proposed section 121.2 provides that the meaning will be prescribed by regulation. The Government’s amendments have changed this definition to reflect the PJCIS recommendation that the Bill be amended to ‘require that any material incorporated into regulations for the purpose of the definition of ‘proper place of custody’ at proposed section 121.2 be publically available’ (recommendation 18).420

Failure to comply with direction regarding information Proposed subsection 122.1(4) provides that a person commits an offence if the person is given a lawful direction regarding the retention, use or disposal of information, the person fails to comply with the direction, the information is inherently harmful information and the information was made or obtained by that person by reason of being, or having been a Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth entity’. The Government amendments have inserted another element to this offence. Proposed paragraph 122.1(4)(ca) provide that the failure to comply with the direction must result ‘in a risk to the security of the information’ for this offence to apply. The penalty for this offence is imprisonment for three years.421

Fault elements Under Part 2.2 of the Criminal Code, an offence consists of physical elements and fault elements, and the law may provide different fault elements for different physical elements. Section 5.6 of the Criminal Code states that if the law creating an offence does not does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element. This means, for example, that for the offence of communicating inherently harmful information (proposed subsection 122.1(1)) the prosecution would need to prove beyond reasonable doubt that:

• the person intentionally communicated information

418. This penalty was changed as part of the Government’s amendments. In the Bill as introduced the penalty was five years imprisonment. 419. This penalty was changed as part of the Government’s amendments. In the Bill as introduced the penalty was five years imprisonment. 420. Previously, proposed subsection 121.2(2) excluded the effect of subsection 14(2) of the Legislation Act 2003 which provides

that ‘Unless the contrary intention appears, the legislative instrument or notifiable instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time’. The amendment means that ‘if regulations are made to prescribe the meaning of proper place of custody, those regulations may not apply, adopt or incorporate any matter contained in any instrument or other writing unless it is publicly available’. Supplementary Explanatory Memorandum, op. cit., p. 67. 421. This penalty was changed as part of the Government’s amendments. In the Bill as introduced the penalty was five years

imprisonment.

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• the person was reckless as to whether the information was inherently harmful information

• the person was reckless as to whether the information was made or obtained by that or any other person by reason of being , or having been a Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth entity’.422

The Government’s amendments have inserted notes under the offences in subsections 122.1(1), 122.1(2), 122.1(4) to clarify the fault elements of those offences in accordance with a recommendation from the PJCIS report (recommendation 14).

The definition of ‘inherently harmful information’ includes ‘security classified information’. The Government’s amendments to the secrecy offences in Schedule 2 have removed the application of strict liability to the physical element that information has a security classification. However, the Supplementary Explanatory Memorandum notes that strict liability will apply ‘to other aspects of the definition of security classification, which are technical matters and not relevant to the defendant’s culpability’.423

The new definition of ‘security classification’ in proposed section 90.5, includes proposed subsection 90.5(1A) which provides that where an element of an offence refers to ‘security classification’ strict liability applies to the element that:

• a classification is applied in accordance with the policy framework developed by the Commonwealth or

• a classification or marking is prescribed by the regulations.

Strict liability is set out in section 6.1 of the Criminal Code. It states that if a law that creates an offence provides that it is an offence of strict liability then there are no fault elements for any of the physical elements of the offence. However, the defence of mistake of fact is available (set out in section 9.2 of the Criminal Code). The Supplementary Explanatory Memorandum states:

The effect of subsection 90.5(1A) in applying strict liability to this element of the definition of security classification is that the prosecution will not need to prove that the person who dealt with the information knew or was reckless as to whether the security classification was applied in accordance with the policy framework developed by the Commonwealth.

Strict liability is appropriate for this element because the person’s state of mind about the fact that the classification was applied under an appropriate Commonwealth policy framework for the purpose of identifying such information is not relevant to their culpability. 424

Proposed offences—Conduct by current and former Commonwealth officers causing harm to Australia’s interests Proposed section 122.2 contains four offences in relation to ‘conduct causing harm to Australia’s interests’. Previously, these offences had broader coverage, but in the amended Bill have been directed to current and former Commonwealth officers.

The definition of ‘cause harm to Australia’s interests’ in proposed section 121.1 has been substantially changed by the Government’s amendments to the Bill (reflecting the recommendations in the PJCIS report). In the amended Bill, ‘cause harm to Australia’s interests’ means:

• interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth

422. Explanatory Memorandum, op. cit., p. 238. 423. Supplementary Explanatory Memorandum, op. cit., p. 2. 424. Supplementary Explanatory Memorandum, op. cit., p. 40.

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• interfere with or prejudice the performance of functions of the Australian Federal Police under:

- paragraph 8(1)(be) of the Australian Federal Police Act 1979 (protective and custodial functions); or - the Proceeds of Crime Act 2002 • harm or prejudice Australia’s international relations in relation to information that was

communicated in confidence:

- by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation and - to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the Commonwealth or an authority of the

Commonwealth or • harm or prejudice the health or safety of the Australian public or a section of the Australian public or

• harm or prejudice the security or defence of Australia.

Communication causing harm to Australia’s interests

Proposed subsection 122.2(1) provides that a person commits an offence if the person communicates information and the communication ‘will or is likely to’ or ‘causes harm to Australia’s interests’ and the information was made or obtained by that person by reason of being, or having been a Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth entity’. The Government’s amendments have changed the penalty for this offence from 15 years to seven years imprisonment.

Other conduct causing harm to Australia’s interests Proposed subsection 122(2) provides that a person commits an offence if the person deals with information (other than by communicating it) and the dealing ‘will or is likely to’ or ‘causes harm to Australia’s interests’ and the information was made or obtained by that person by reason of being or having been, a Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth entity’. The penalty for this offence is imprisonment for three years.425

Information removed from, or held outside, proper place of custody Proposed subsection 122.2(3) provides that a person commits an offence if the person removes information from a proper place of custody or holds information outside a proper place of custody, and this removal or holding ‘will or is likely to’ or ‘causes harm to Australia’s interests’ and the information was made or obtained by that person by reason of being, or having been, a Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth entity’. The penalty for this offence is imprisonment for three years.426

Failure to comply with direction regarding information Proposed subsection 122.2(4) provides that a person commits an offence if the person fails to comply with a lawful direction regarding the retention, use or disposal of information and failure to comply cause harm, or will or is likely to cause harm to Australia’s interests and the information was made or obtained by that person by reason of being, or having been, a Commonwealth officer

425. This penalty was changed as part of the Government’s amendments. In the Bill as introduced the penalty was five years imprisonment. 426. This penalty was changed as part of the Government’s amendments. In the Bill as introduced the penalty was five years imprisonment.

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‘or otherwise engaged to perform work for a Commonwealth entity’. The penalty for this offence is imprisonment for three years.427

Proposed aggravated offences Proposed section 122.3 provides circumstances where the offences in proposed section 122.1 concerning inherently harmful information and proposed section 122.2 concerning conduct that causes harms to Australia’s interests (the ‘underlying offences’) are treated as aggravated offences. If a person commits an underlying offence and one of the listed circumstances exists then an increased penalty will apply to the aggravated offence.

As with other offences in Schedule 2, the Government’s amendments have reduced the penalties which will apply.428 If the penalty for the underlying offence is seven years, the penalty for the aggravated offence will be ten years. If the penalty for the underlying offence is three years, the penalty for the aggravated offence will be five years.

The four circumstances for aggravated offences are:

• if the commission of the underlying offence involves a record—the record is marked with a code word, ‘for Australian eyes only’ or as prescribed by the regulations for the purposes of this subparagraph

• the commission of the underlying offence involves five or more records each of which has a security classification

• the commission of the underlying offence involves the person altering a record to remove or conceal its security classification

• at the time the person committed the underlying offence, the person held an Australian Government security clearance allowing the person to access information that has a security classification of at least secret.

The Government’s amendments to the Bill have inserted a definition of ‘Australian Government security clearance’ into the Dictionary of the Criminal Code. This term means a ‘security clearance given by the Australian Government Security Vetting Agency or by another Commonwealth, state or territory agency that is authorised or approved by the Commonwealth to issue security clearances’.429

Unauthorised disclosure of information by current and former Commonwealth officers Proposed subsection 122.4(1) replaces the existing offence in the Crimes Act (section 70) for current and former Commonwealth officers who disclose information they have a duty to not to disclose. It provides that a person commits an offence if:

• the person communicates information

• the person made or obtained the information by reason of being or having been, a Commonwealth officer ‘or otherwise engaged to perform work for a Commonwealth entity’

• the person is under a duty not to disclose the information and

• the duty arises under a law of the Commonwealth.

427. This penalty was changed as part of the Government’s amendments. In the Bill as introduced the penalty was five years imprisonment. 428. Previously, the increased penalties for the an aggravated offence in the Bill were 20 years imprisonment if the penalty for the underlying offence was 15 years imprisonment and ten years imprisonment if the underlying offence was five years

imprisonment. 429. Supplementary Explanatory Memorandum, op. cit., p. 51.

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Reflecting section 70 of the Crimes Act, the penalty for this offence is two years imprisonment. However, unlike section 70 of the Crimes Act, proposed subsection 122.4(2) provides that absolute liability applies to ‘(d) the duty arises under a law of the Commonwealth’. Absolute liability means there is no fault element and (unlike strict liability) the defence of mistake of fact is not available under section 9.2 of the Criminal Code.430

The Explanatory Memorandum states:

[T]here are legitimate grounds for penalising persons lacking ‘fault’ in respect of this element … A person can only be criminally liable for the offence against section 122.4 if they are reckless as to whether they are subject to a duty to not disclose the information in question. The question of whether that duty arises under the law of the Commonwealth is, effectively, a question of law. The general position, set out in sections 9.3 and 9.4 of the Criminal Code, is that a person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act or subordinate legislation. Consistent with those general principles of the criminal law, a person should not be excused from criminal liability where they are reckless as to whether they are subject to a duty of non-disclosure, merely because they are mistaken or ignorant about whether that duty arises under a law of the Commonwealth, or under some other source.

431

However, beyond this point of principle, it is not clear if there are specific practical reasons, such as issues with prosecutions under section 70 of the Crimes Act which have prompted this change. Notably, the ALRC report on secrecy offences does not appear to have recommended the introduction of absolute liability for this element of secrecy offences.

Proposed subsection 122.4(3) implements the recommendation of the PJCIS report for a sunset provision in relation to this offence (recommendation 23). It provides that the section ‘does not apply in relation to any communication of information that occurs after the end of 5 years after this section commences’. The Supplementary Explanatory Memorandum notes that this period ‘will allow for review of the duties to determine whether there is an ongoing need to enforce them with specific criminal sanctions’.432

Communicating and dealing with information by non-Commonwealth officers Proposed section 122.4A provides two offences for non-Commonwealth officers. These offences were not part of the Bill as introduced and reflect discussion (including in the PJCIS inquiry) concerning the appropriateness of the secrecy offences treating ‘insiders’(such as ASIO officers) and ‘outsiders’ (such as journalists) in the same way. For example, the Human Rights Law Centre submission to the PJCIS inquiry stated:

Outsiders should not be subject to the same offences and penalties as government insiders, given the distinct duties owed by Commonwealth officers. This accords with the view of the ALRC, the Gibbs Committee review of Commonwealth criminal law, and, in the ASIO Act context, the INSLM. 433

Similarly, the Law Council suggested the proportionality of the measures could be improved by treating insiders and outsiders separately.434 The Attorney-General’s proposed amendments to the PJCIS inquiry inserted proposed section 122.4A and removed the phase ‘or any other’ from

430. Criminal Code Act 1995, section 6.2. 431. Explanatory Memorandum, op. cit., p. 274. 432. Supplementary Explanatory Memorandum, op. cit., p. 82. 433. Human Rights Law Centre, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National

Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, January 2018, p. 16. 434. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, January 2018, p. 13.

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offences in proposed sections 122.1 and 122.2 restricting their application to Commonwealth officers.

The PJCIS report strongly supported ‘the Attorney-General’s proposal for separate secrecy offences, narrower in their range of conduct captured, to be established for non-Commonwealth officers’.435

The first new offence in proposed subsection 122.4A(1) ‘Communication of information’ would apply where:

• a person intentionally communicates information

• the information was not made or obtained by the person by reason of the person being or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person is reckless as to this element

• the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person is reckless as to this element; and

• any one or more of the following applies:

- the information has a security classification of secret or top secret - the communication of the information damages the security or defence of Australia - the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of

the Commonwealth - the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public. The maximum penalty for this offence would is five years imprisonment.436

The second offence, in proposed subsection 122.4A(2) Other dealing with information, would apply where:

• a person intentionally deals with information (other than by communicating it)

• the information was not made or obtained by the person by reason of the person being or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity

• the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person is reckless as to this element

• any one or more of the following applies:

- the information has a security classification of secret or top secret - the dealing damages the security or defence of Australia - the dealing interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth

- the dealing harms or prejudices the health or safety of the Australian public or a section of the Australian public. The maximum penalty for this offence would is two years imprisonment.437

435. PJCIS, Advisory report, op. cit., p. 151. 436. The Attorney-General’s proposed amendment was that the penalty for this offence should be ten years imprisonment. 437. The Attorney-General’s proposed amendment to the PJCIS was that the penalty for this offence should be five years imprisonment.

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For both proposed offences, subsection 122.4A(3) provides that the prosecution is not required to prove the identity of the ‘other person’ in relation to paragraphs 122.4A(1)(c) and 122.4A(2)(c). This is the element that the information ‘was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity’.

Proposed defences Proposed section 122.5 contains the defences to prosecution for an offence in Division 122. The defences have been expanded by the Government’s amendments. This includes by inserting new defences and broadening the scope of existing defences beyond the communication of information by using the term ‘communicated, removed, held or otherwise dealt’. The previous defence for ‘fair and accurate reporting’ has been amended to a defence for ‘persons engaged in the business of reporting news’.

In most cases, the defendant will bear an evidentiary burden in relation to the defence. The Supplementary and Replacement Explanatory Memorandums repeatedly note that the Guide to Framing Commonwealth Offences provides that it is ‘appropriate for a matter to be included in an offence-specific defence where it is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter’. However, the Government amendments have made some changes to the evidential burdens for integrity agency officials and employees.

Powers, functions and duties in a person’s capacity as a public officer etc. or under arrangement Proposed subsection 122.5(1) provides it is a defence to prosecution for an offence if:

• the person was exercising a power, or performing a function or duty, in the person’s capacity as a public officer or a person who is otherwise engaged to perform work for a Commonwealth entity or

• the person communicated, removed, held or otherwise dealt with the information in accordance with an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information.

In the Bill as introduced, this defence was directed to Commonwealth officers. However, the reference to ‘Commonwealth officer’ in this defence has been changed in the Government amendments to ‘public official’. The Supplementary Explanatory Memorandum states that the definition of Commonwealth officer is ‘inappropriately narrow in relation to the defence at subsection 122.5(1) which should be available to all public officials who interact with information covered by the new secrecy offences’. It notes that the term ‘public official’ is defined in the Dictionary to the Criminal Code and ‘covers a broader range of officials, including members of either House of the Parliament and state or territory officers’.438

A note under the subsection indicates the defendant may bear an evidentiary burden in relation to elements of this defence. It references proposed subsection 122.5(12) (which deals with integrity agency officials and employees) and subsection 13.3.439

438. Supplementary Explanatory Memorandum, op. cit., p. 91. 439. Subsection 13.3(3) of the Criminal Code provides ‘A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter’. Subsection 13.3 (6) provides that evidential burden ‘means the burden of adducing or pointing to evidence that suggests a

reasonable possibility that the matter exists or does not exist’.

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Information that is already public Proposed subsection 122.5(2) provides it is a defence if the relevant information has already been communicated or made available to the public ‘with the authority of the Commonwealth’. The final component of the defence ‘with the authority of the Commonwealth’ considerably narrows its scope.

A note under the subsection states that the defendant bears an evidential burden in relation to the matters in this subsection.

Information communicated etc. to integrity agency Proposed paragraph 122.5(3)(a) provides a defence to an offence if the person ‘communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it’ to:

• Inspector-General of Intelligence and Security (or a person employed or engaged under the Inspector-General of Intelligence and Security Act 1986)

• Commonwealth Ombudsman (or another officer under the Ombudsman Act 1976) or

• the Law Enforcement Integrity Commissioner (LEI Commissioner), a staff member of the Australian Commission for Law Enforcement Integrity (ACLEI) or consultant to, or a person made available to, the LEI Commissioner under the Law Enforcement Integrity Commissioner Act 2006.

The Government’s amendments have added the Australian Information Commissioner, a member of the staff of the Office of the Australian Information Commissioner, or a consultant engaged under the Australian Information Commissioner Act 2010.

Paragraph 122.5(3)(b) provides a defence to an offence if the person ‘communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it’ for the purposes of the Inspector-General, the Ombudsman, the Australian Information Commissioner or LEI Commissioner (as the case requires) exercising a power, or performing a function or duty.

A note provides that persons mentioned in paragraph 3(a) do not bear an evidential burden in relation to the matters in this subsection (see subsection 122.5(12) below).

Information communicated etc. in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982.

Proposed subsection 122.5(4) provides a defence to an offence if the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, in accordance with:

• the Public Interest Disclosure Act 2013

• the Freedom of Information Act 1982.

In the Bill as introduced, this section only dealt with the Public Interest Disclosure Act, however the PJCIS report recommended that the Bill be amended to make clear the effect of the defences in relation to the Freedom of Information Act (recommendation 21). The Supplementary Explanatory Memorandum states this amendment ‘puts beyond doubt that requesting, disclosing or receiving information under Freedom of Information Act processes is subject to a defence from the secrecy offences’.440

440. Supplementary Explanatory Memorandum, op. cit., p. 93.

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A note under the subsection indicates the defendant may bear an evidentiary burden in relation the matters in this defence.441

Information communicated etc. for the purpose of reporting offences and maladministration Proposed subsection 122.5(4A) is a new defence inserted by the Government’s amendments. It provides a defence where the person communicated, removed, held or otherwise dealt with the relevant information for ‘the primary purpose of reporting, to an appropriate agency of the Commonwealth, a state or a territory’ an offence or maladministration. Specifically:

• a criminal offence, or alleged criminal offence, against a law of the Commonwealth

• maladministration relating to the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth or

• maladministration relating to the performance of functions of the Australian Federal Police under:

- the Australian Federal Police Act 1979 or - the Proceeds of Crime Act 2002. This addition of this defence responds to a recommendation in the PJCIS report (recommendation 29). The PJCIS considered a stronger defence was necessary to cover reporting to ‘the full range of organisations that may be involved in the prevention, detection, investigation, prosecution and punishment of Commonwealth criminal offences’.442 The PJCIS intended this defence to apply where ‘for example, a member of the public reporting misconduct by a police officer to a more senior officer in the same police force; or reporting to a state oversight body maladministration in the use of information shared by the Commonwealth to a state police force’.443

A note under the subsection indicates the defendant may bear an evidentiary burden in relation the matters in this defence.444

Information communicated to a court or tribunal etc. Proposed subsection 122.5(5) provides that it is a defence if the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it to a court or tribunal (whether or not as a result of a requirement).

A note under the subsection indicates that a defendant bears an evidential burden in relation to the matters in this subsection.445

Information communicated etc. for the purposes of obtaining or providing legal advice Proposed subsection 122.5(5A) is another defence added by the Government’s amendments to the Bill. It provides a defence if the person ‘communicated, removed, held or otherwise dealt’ with the relevant information for the primary purpose of obtaining or providing, in good faith, legal advice in relation to:

• an offence against this Part or

• the application of any right, privilege, immunity or defence (whether or not in this Part) in relation to such an offence.

441. The rationale for this is discussed in the Supplementary Explanatory Memorandum, op. cit., pp. 93-94. 442. PJCIS, Advisory report, op. cit., p. 187. 443. Ibid. 444. The rationale for this is discussed in the Supplementary Explanatory Memorandum, op. cit., p. 95. 445. The rationale for this is discussed in the Replacement Explanatory Memorandum, op. cit., p. 294.

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This defence would apply ‘whether that advice was obtained or provided before or after the person engaged in the conduct constituting the offence’. The addition of this defence responds to PJCIS recommendation (recommendation 30).

A note under the subsection indicates that a defendant bears an evidential burden in relation to the matters in this subsection.446

Information communicated etc. by persons engaged in business of reporting news etc. Proposed subsection 122.5(6) has been substantially changed by the Government’s amendments to the Bill. Previously the defence was directed to information dealt with or held by in the public interest by journalists ‘engaged in fair and accurate reporting’.

As amended the defence covers where a person ‘communicated, removed, held or otherwise dealt with the relevant information’ in the person’s capacity as a person engaged in ‘the business of reporting news, presenting current affairs or expressing editorial or other content in news media’ and:

• at that time, the person reasonably believed that engaging in that conduct was in the public interest or

• the person:

- was, at that time, a member of the administrative staff of an entity that was engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media and

- acted under the direction of a journalist, editor or lawyer who was also a member of the staff of the entity, and who reasonably believed that engaging in that conduct was in the public interest. This appears to substantially implement the PJCIS’s recommendation that Government consider further refinements to the proposed defence to:

• make explicit that editorial support staff are covered by the defence, including legal advisors and administrative staff

• ensure editorial staff and lawyers, who are engaging with the substance of the information, be required to hold a reasonable belief that their conduct is in the public interest and

• allow administrative support staff working at the direction of a journalist, editor or lawyer who holds the reasonable belief, to benefit from the defence.447

However, the defence in subsection 122.5(6) is limited by proposed subsection 122.5(7) which specifies that communicating, removing, holding or otherwise dealing with information is not in the public interest if it:

• would be an offence under section 92 of the Australian Security Intelligence Organisation Act 1979 (involving publication of identity an ASIO employee or ASIO affiliate)

• would be an offence under section 41 of the Intelligence Services Act 2001 (identification or making public the identity of an agent or staff member of ASIS)

• would be an offence under sections 22, 22A or 22B the Witness Protection Act 1994 (unauthorised disclosures concerning participants in the National Witness Protection Program) or

446. The rationale for this is discussed in the Supplementary Explanatory Memorandum, op. cit., p. 96. 447. PJCIS, Advisory report, op. cit., p. 184.

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• that conduct was engaged in for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation.448

A note under proposed subsection 122.5(6) indicates that a defendant bears an evidential burden in relation to the matters in this subsection.449

The amended defence is broader than the earlier version, which was limited to a ‘journalist engaged in a fair and accurate reporting’, and extends the defence to where a person ‘reasonably believed’ dealing or holding the information was in the public interest. Nonetheless, the amended subsection 122.5(7) maintains and extends categories where a person may not reasonably believe dealing with or holding information is in the public interest. In his submission to the PJCIS discussing the proposed amendments, the Attorney-General stated:

Subsection 122.5(7) is being amended to provide that a person may not reasonably believe that dealing with or holding information is in the public interest if the person is dealing with or holding the information for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation. Section 121.1 will be amended to define foreign military organisation as the armed forces of the government of a foreign country or the civilian component of the Department of State of a foreign country or a government agency in a foreign country that is responsible for the defence of the country.

450

This definition of ‘foreign military organisation’ has been inserted into proposed section 121.1. The Supplementary Explanatory Memorandum states:

The definition of a foreign military organisation will include the armed forces of a foreign country as well as the civilian components of its military organisation. For example, in the Australian context this would include the Australian Defence Force, the civilian element of the Department of Defence, Reserves and any civilians who are accompanying the ADF overseas.

451

The Attorney-General’s proposed amendments included paragraph 122.5(7)(d) which would have restricted the operation of the defence if:

If a person's communication or dealing with the information harms or prejudices the health or safety of the Australian public or a section of the public … and, at that time, the dealing with or holding the information will or is likely to result in the death of, or serious harm to, a person, the person will not be able to reasonably believe that his or her conduct is in the public interest.

452

However, the PJCIS report also did not agree with this proposed amendment. The PJCIS considered it would give rise to ‘technical difficulties’ and recommended that it be removed.453

Information that has been previously communicated Proposed subsection 122.5(8) provides it is a defence for an offence if:

• the person did not make or obtain the relevant information by reason of being a Commonwealth officer or an engagement or agreement with the Commonwealth or Commonwealth entity

448. This last element of subsection 122.5(7) was introduced by the Government’s amendments and replaces ‘will or is likely to harm or prejudice the health or safety of the public or a section of the public’. 449. The rationale for this is discussed in the Supplementary Explanatory Memorandum, op. cit., p. 97. 450. Ibid., p. 4. 451. Supplementary Explanatory Memorandum, op. cit., p. 63. 452. Ibid., p. 4. 453. Ibid., p. 185.

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• the information has already been communicated or made available to the public (prior publication)

• the person was not involved in the prior publication (whether directly or indirectly)

• at the time of the communication, removal, holding or dealing, the person believes that engaging in that conduct will not cause harm to Australia’s interests or the security or defence of Australia and

• having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.

The multiple conditions which comprise this defence suggest that there will be limited circumstances where it may apply. However, the PJCIS recommendations which have been implemented in the Government’s amendments include changing this defence from being limited to ‘communication’ to the wider ‘communication, removal, holding or dealing’.454 Given the broad scope of the definition of ‘deal’ in the Bill this will expand the scope of conduct which will fall outside the proposed secrecy offences. In particular, in the defence in proposed section 122.5(8) will be extended as the circumstances where this defence may apply are not limited to specific circumstances (such as information provided to a court or tribunal).

The Explanatory Memorandum notes that this defence is drafted in similar terms to the prior publication in subsection 35P(3A) of the ASIO Act. This subsection was inserted following the Independent National Security Legislation Monitor’s report on the impact on journalists of the operation of section 35P of the ASIO Act.455

The Replacement Explanatory Memorandum states:

The defence under subsection 122.5(8) seeks to strike a balance between freedom of expression on the one hand, and recognition that further dissemination of harmful information could cause additional harm on the other hand. Before disclosing information that has already been published, a person must believe on reasonable grounds that the subsequent disclosure will not cause harm. This is because in some cases, even where information is considered to have been published and in the public domain, subsequent disclosure will still result in harm.

456

A note under proposed subsection 122.5(8) indicates that a defendant bears an evidential burden in relation to the matters in this subsection.457

Information relating to a person etc Proposed subsection 122.5(9) provides it is a defence if:

• the person did not make or obtain the relevant information by reason of being a Commonwealth officer or an engagement or agreement with the Commonwealth or Commonwealth entity

• at the time of the communication, removal, holding or dealing, the person believed the making or obtaining of the information was required or authorised by law and

• having regarding to the circumstances of the making or obtaining of the information, the person has reasonable grounds for that belief and

• any of the following apply:

454. PJCIS, Advisory report, op. cit., p. 183. 455. Commonwealth of Australia, Department of the Prime Minister and Cabinet, Report on the impact on journalists of the operation of section 35P of the ASIO Act, Canberra, October 2015. 456. Replacement Explanatory Memorandum, op. cit., pp. 297-298. 457. The rationale for this is discussed in the Replacement Explanatory Memorandum, op. cit., p. 298.

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- the person communicates the information to the person whom the information relates - the person is the person to whom the information relates - the communication, removal, holding or dealing is in accordance with the express or implied consent of the person to whom the information relates. The Explanatory Memorandum notes that the new offences are not intended to ‘prevent a person

from dealing in information that relates to them, or to limit the ability of a person to consent to another person dealing information that relates to them’.458

A note under proposed subsection 122.5(9) indicates that a defendant bears an evidential burden in relation to the matters in this subsection.459

Proposed subsection 122.5(10) clarifies ‘to avoid doubt’ that a defence to an offence may constitute an authorisation for the purposes of paragraph 122.5(9)(b). This is ‘at the time of the communication, removal, holding or dealing, the person believes that the making or obtaining of the information by the person was required or authorised by law’.

Proposed subsection 122.5(11) provides that for the purpose of the defences in subsections 122.5(3), (4), (5) or (5A) ‘it is not necessary to prove in relation to information that was held, removed, or otherwise dealt with for the purposes of communicating the information that the information was actually communicated’. These are the defences that:

• information was communicated etc. to integrity agency

• information communicated etc. in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982

• information communicated to a court or tribunal and

• information communicated etc. for the purposes of obtaining or providing legal advice

The Supplementary Explanatory Memorandum states that a defendant seeking to rely on these defences ‘is not required to prove the ultimate communication’.460

Burden of proof for integrity agency officials Proposed subsection 122.5(12) provides that the integrity agency officials and employees outlined in the defence in proposed subsection 122.3 do not bear an evidential burden in relation to certain defences:

• that the relevant conduct was an exercise of a power, or the performance of a function or duty, in the integrity official’s capacity as a Commonwealth officer or in accordance with a Commonwealth agreement or arrangement (subsection 122.5(1))

• that the person to whom the information was, or intended to be, communicated was an integrity official or that the relevant conduct was undertaken for the purpose of the integrity agency exercising a power, or performing a function or duty (subsection 122.5(3)) and

• that the relevant conduct was in accordance with the Public Interest Disclosure Act 2013 (122.5(4)).

The Supplementary Explanatory Memorandum states this is because ‘each of these integrity agencies are generally prohibited from disclosing to a court any information acquired by reason of holding that office, as outlined in the following legislation’.461

458. Explanatory Memorandum, op. cit., p. 284. 459. The rationale for this is discussed in the Replacement Explanatory Memorandum, op. cit., p. 300. 460. Ibid., p. 99. 461. Ibid., p. 99.

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Miscellaneous— injunctions, forfeiture and geographic jurisdiction Proposed Division 123 includes provisions creating further avenues to restrict disclosure of information and clarifies the geographic jurisdiction for the offences in Division 122.

In particular proposed section 123.1 provides that the offences created in Division 122 are enforceable under Part 7 of the Regulatory (Standard Provisions) Powers Act 2014. This creates a legal framework for the Minister, an ‘authorised person’, to seek injunctions and interim injunctions from listed ‘relevant courts’ to restrain persons from committing an offence under Division 122.

Proposed section 123.2 provides that ‘a sketch, article, record or document which is made, obtained, recorded, retained, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth’. The Explanatory Memorandum states this is ‘intended to prevent or minimise the further communication or dealing with information contained in such sketches, articles, records or documents’.462 It notes that this replicates existing section 85D of the Crimes Act, however that section covers a broader range of items for forfeiture.463

Proposed section 123.3 provides that extended geographic jurisdiction—category D applies to offences in the Part 5.6. This is the broadest category of extended geographic jurisdiction set out in the Criminal Code (section 15.4) and means the offences in Part 5.6 apply whether or not the conduct, or the result of the conduct, constituting the offence occurs in Australia.

Part 2—Consequential amendments A number of consequential amendments will be made to a variety of legislation by Schedule 2. Frequently, these amendments repeal references to the definition of ‘Commonwealth officer’ and sections 70 and 79 of Crimes Act and insert references to the proposed definition and offences.

Agricultural and Veterinary Chemicals (Administration) Act 1992 The consequential amendment (item 8) to section 69F of the Agricultural and Veterinary Chemicals (Administration) Act 1992 means that inspectors appointed by the Australian Pesticides and Veterinary Medicines Authority (APVMA) are Commonwealth officers for the purposes of ‘Part 5.6 (secrecy of information) of the Criminal Code’ instead of ‘section 70 of the Crimes Act’. This appears to make these APVMA inspectors subject to all of the secrecy offences in the new Part 5.6 rather than just proposed section 122.4 of the Criminal Code (which replaces section 70 of the Crimes Act).

Archives Act 1983 Section 30A of the Archives Act 1983 provides Archives officers must not disclose census information and includes a note that section 70 of the Crimes Act creates an offence in relation to the disclosure of information by Commonwealth officers. Item 9 substitutes section 122.4 of the Criminal Code in the note to this section.

Australian Citizenship Act 2007 The amendments in items 10 and 11 in the Bill as introduced made amendments to the definition of ‘national security offence’ in section 3 of the Australian Citizenship Act 2007.

462. Ibid., p. 286. 463. Ibid.

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Item 10 repeals paragraph (a) of the definition of ‘national security offence’ in the Australian Citizenship Act. This provides that a national security offence means ‘(a) an offence against Part II or VII of the Crimes Act’.

The Government’s amendments have removed the amendment in item 11. This would have amended paragraph (cb) of the definition of ‘national security offence’ in the Australian Citizenship Act to add a reference to ‘Part 5.6 (secrecy of information)’. The Supplementary Explanatory Memorandum states:

This inclusion would require the Minister of Home Affairs to refuse a citizenship application if the person has been convicted of a Part 5.6 secrecy offence. That amendment will no longer be pursued to minimise any risk of inconsistency with Australia’s obligations under the 1961 Convention on the Reduction of Statelessness, which provides that member states shall grant nationality to a person who would otherwise be stateless if, among other conditions, the person has not been convicted of an offence against national security.

There is a risk that some of the secrecy offences in Part 5.6 of the Criminal Code may not be sufficiently connected to national security and therefore risk inconsistency with Australia’s obligations under the Statelessness Convention. 464

Australian Crime Commission Act 2002 Item 12 repeals a reference to section 85B of the Crimes Act which relates to in camera hearings (being repealed by the Bill) from the Australian Crime Commission Act 2002.

Australian Federal Police Act 1979 The definition of ‘protective service offence’ in section 4(1) of the Australian Federal Police Act 1979 refers to section 79 of the Crimes Act, which is repealed by the Bill. Items 13 and 14 remove this reference and build on the consequential amendments in Part 2 of Schedule 1 of the Bill to insert reference to ‘Part 5.6 of the Criminal Code’.

Chemical Weapons (Prohibition) Act 1994 Section 102 of the Chemical Weapons (Prohibition) Act 1994 deals with secrecy and imposes non-disclosure duties on a list of eligible persons which includes ‘any other Commonwealth officer’. Subsection 102(5) provides that the term ‘Commonwealth officer’ has the same meaning as in section 70 of the Crimes Act. Item 15 repeals this reference and substitutes a reference to proposed section 121.1 of the Criminal Code, which includes the new definition of ‘Commonwealth officer’.

Comprehensive Nuclear-Test-Ban Treaty Act 1998 Similarly, section 74 of the Comprehensive Nuclear-Test-Ban Treaty Act 1998 imposes non-disclosure obligations on specified persons including ‘any other Commonwealth officer (within the meaning of section 70 of the Crimes Act)’.465 Item 16 omits ’70 of the Crimes Act’ and substitutes ‘section 121.1 of the Criminal Code’.

Defence Home Ownership Assistance Scheme Act 2008 Item 17 repeals subsection 81(5) of the Defence Home Ownership Assistance Scheme Act 2008 which refers to the definition of Commonwealth officer and section 70 of the Crimes Act. While

464. Supplementary Explanatory Memorandum, op. cit., pp. 101-102. 465. There appears to be a typographical error in the Explanatory Memorandum at p. 289 which refers to amending ‘paragraph 71(4)(e)’ rather than paragraph 74(1)(e).

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the subsection is repealed, it is not replaced by the sections in the Bill which include the definition of Commonwealth officer or the proposed offence.

Freedom of Information Act 1982 Item 18 repeals paragraph 78(1)(a) of the Freedom of Information Act 1982. This paragraph refers to paragraph 80(c) of the Crimes Act which allows places to be declared as ‘prohibited places’ by the Governor-General. Section 80 of the Crimes Act will be repealed by the Bill with the rest of Part VII.

The Explanatory Memorandum observes that ‘[d]eclarations were made by the Governor-General under section 80(c) between 1959 and 1986’ and that these ‘declarations, which mainly relate to Defence premises, are archaic and have not been updated or used for many years’.466

Law Enforcement Integrity Commissioner Act 2006 Similarly, item 19 also removes a reference to paragraph 80(c) of the Crimes Act from the Law Enforcement Integrity Commissioner Act 2006.

Liquid Fuel Emergency Act 1984 Section 29 allows the Minister to appoint authorised persons for the purpose of enforcement. Item 20 repeals subsection 29(3) which provides that these authorised persons are to the treated as Commonwealth officers for the purposes of Part VI of the Crimes Act. While the Explanatory Memorandum states the new definition of ‘Commonwealth officer’ in proposed section 121.1 of the Criminal Code will apply to these authorised persons it does not articulate why an explicit reference to this definition is not inserted into section 29 of the Liquid Fuel Emergency Act 1984.

Migration Act 1958 Section 503A of the Migration Act deals with the protection of information supplied by law enforcement agencies or intelligence agencies. Subsection 503A(9) contains definitions for the section including a definition of ‘Commonwealth officer’ as having the same meaning as in section 70 of the Crimes Act. Item 21 omits ’70 of the Crimes Act’ and substitutes ‘section 121.1 of the Criminal Code’.

National Greenhouse and Energy Reporting Act 2007 Subsection 23(1) of the NGAER Act provides a secrecy offence for certain persons making unauthorised disclosures of greenhouse and energy information. The note to subsection 23(1) clarifies that the same conduct may be an offence against section 23 and section 70 of the Crimes Act. Item 22 omits ’70 of the Crimes Act’ and substitutes ‘section 122.4 of the Criminal Code’. This is the proposed offence which replaces section 70 of the Crimes Act in dealing with unauthorised disclosures by current and former Commonwealth officers.

Similarly, item 23 amends the note of subsection 57(2) of the NGAER Act (which provides for the appointment of authorised officers by the Regulator) by omitting ’70 of the Crimes Act’ and substitutes ‘section 122.4 of the Criminal Code’.

Native Title Act 1993 Section 203DF of the Native Title Act 1993 provides for the appointment of a person to perform inspections and audits or undertake investigations under the Act. Subsection 203DF(8) clarifies

466. Explanatory Memorandum, p. 290.

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that, to avoid doubt, a person appointed under subsection 203DF(1) is taken to be a ‘Commonwealth officer’, for the purposes of section 70 of the Crimes Act. Item 24 repeals subsection 203DF(8). The Explanatory Memorandum states that the new definition of ‘Commonwealth officer’ in proposed section 121.1 will apply to persons appointed under the Native Title Act 1993.

Offshore Minerals Act 1994 Item 25 repeals a note referring to section 70 of the Crimes Act and replaces it with a note referring to proposed Part 5.6 of the Criminal Code.

Ombudsman Act 1976 Item 26 repeals paragraph 14(2)(a) of the Ombudsman Act 1976. This paragraph refers to paragraph 80(c) of the Crimes Act which allows places to be declared as ‘prohibited places’ by the Governor-General. Section 80 of the Crimes Act will be repealed by the Bill with the rest of Part VII.467

Parliamentary Service Act 1999 Items 27 and 28 amend notes to sections in the Parliamentary Service Act 1999 which refer to section 70 of the Crimes Act, to change these references to the new offence in proposed section 122.4 in the Criminal Code.

Public Service Act 1999 Similarly, items 29 and 30 amend notes to sections in the Public Service Act 1999 which refer to section 70 of the Crimes Act, to change these references to the new offence in proposed section 122.4 in the Criminal Code.

Renewable Energy (Electricity) Act 2000 Item 31 repeals subsection 156(4) of the Renewable Energy (Electricity) Act 2000 which applies the definition of ‘Commonwealth officer’ and section 70 of the Crimes Act to persons delegated functions or powers by the Clean Energy Regulator under that section. However, the new definition of ‘Commonwealth officer’ and the new proposed offence are not substituted.

Textile, Clothing and Footwear Investment and Innovation Programs Act 1999 The Explanatory Memorandum notes that ‘[s]ubsections 37R(6), 37ZZA(6) and 52(5) of the Textile, Clothing and Footwear Investment and Innovation Programs Act 1999 all refer to the definition of ‘Commonwealth officer’ in section 70 of the Crimes Act in relation to persons authorised to perform functions, or exercise powers under each of the respective subsections of the Act’.468 Items 32, 33 and 34 repeal these subsections. However, the new definition of ‘Commonwealth officer’ and the new proposed offence are not substituted.

467. There appears to be a typographical error in the Explanatory Memorandum which refers to ‘subparagraph 14(2)(a)(i)’ at p. 293. 468. Explanatory Memorandum, p. 294.

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Schedule 3—Aggravated offence for giving false or misleading information

What is proposed Schedule 3 introduces proposed section 137.1A into the Criminal Code (the Code), which comprises Schedule 1 of the Criminal Code Act 1995. The new section follows and builds on the existing section 137.1 of the Code, which has been in place since 2000.

The current section 137.1 ‘False or misleading information’ makes it an offence to provide false or misleading information to a Commonwealth entity, a person exercising powers or performing functions under or in connection with a Commonwealth law, or where the information is given in compliance or purported compliance with a law of the Commonwealth. A person convicted of such an offence is liable to imprisonment for 12 months. An offence against section 137.1 is referred to as the underlying offence for the purposes of the Bill.

The new section in the Bill creates an aggravated offence, where the provision of the false or misleading information comprising the underlying offence occurs in relation to an application for the grant of a security clearance or for maintaining an existing security clearance. An offence under proposed section 137.1A would incur a maximum penalty of five years imprisonment instead of the 12 months for the underlying offence. The five years’ imprisonment is equivalent to the penalty for a number of other information offences proposed in other Schedules to the Bill.469

Notably, the PJCIS report on the Bill recommended that the Bill be amended to define the meaning of ‘Australian Government security clearance’.470 If this recommendation is implemented it would be applied to the use of this term in the proposed offence.

How the existing provision works The Explanatory Memorandum to the Bill which introduced section 137.1 stated:

Proposed section 137.1 requires proof that the person knows the information provided or omitted is false and misleading. The information must be given to a Commonwealth entity, given to a person exercising powers or performing functions under or in connection with a law of the Commonwealth or in compliance or purported compliance with a law of the Commonwealth.

471

The Explanatory Memorandum also noted that this provision replaced a number of similar provisions in various Acts, thus ‘centralising the offences and slimming down the statute book’.472

The provision regarding to whom the information was provided was later made an absolute liability provision. It is no defence for a person who gave false or misleading information to claim that they did not give the information to a person exercising Commonwealth powers, but rather, for example, to a third party who then passed it on. The fact that false or misleading information emanating from a person is used for Commonwealth purposes is sufficient to prove that the person gave it to them for the purposes of this provision.

Section 137.1 also covers omissions as potentially being the provision of misleading information— including where an omission can make otherwise accurate information misleading. However it is a defence for the person to demonstrate that the omitted information was not important or material to the decision being made.

469. For example, proposed subsections 122.1(2), (3) and (4) and 122.2(2), (3) and (4) of the Code. 470. PJCIS, Advisory report, op. cit., p. 52. 471. Explanatory Memorandum to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999 paragraph 207.

472. Ibid., paragraph 206.

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How the new provision will work An offence against section 137.1A will be established by proving all of the elements of an offence against section 137.1, and additionally proving that the false or misleading information ‘was given in relation to an application for, or the maintenance of, an Australian Government security clearance’.473 While the elements of a section 137.1 offence need to be proved for an offence against section 137.1A to be established, the person does not need to be charged with an offence against 137.1— simply charging them with an offence against section 137.1A will suffice.

If the person is charged with an offence against section 137.1A only, the relevant court can still find the person guilty of a section 137.1 offence rather than a section 137.1A offence, on the facts of the case. This might occur for example where the person charged with providing false or misleading information in relation to a security clearance was found to have provided false or misleading information for another purpose, and the link to a security clearance could not be proven to the satisfaction of the court.

Defences The aggravated offence will be subject to the same defences provided for by the underlying offence. The defences apply where the information is not false or misleading in a material particular, or where the Commonwealth does not take reasonable steps to inform the person providing the information of the existence of the offence, before that information was provided.

Comment on the provisions The description of section 137.1A as an aggravated offence is unusual. At criminal law an aggravated offence is typically an underlying offence with some additional (aggravating) element or factor. For example an aggravated people smuggling offence under the Criminal Code is where the people smuggler not only acts to facilitate the unlawful entry of a person into a foreign country, but also in so doing acts with disregard for the smuggled person’s safety (among other things).474 In section 137.1A, the aggravated offence is simply the commission of the underlying offence in defined circumstances.

Notwithstanding the description of the offence, the higher penalty, compared to other section 137.1 offences, ‘reflects the higher level of culpability associated with the provision of false or misleading information in security clearance processes’.475 It also reflects the capacity for false or misleading information given in such a process to compromise both national security generally and the security of the public. The Explanatory Memorandum also notes that it can be extremely difficult, if possible at all, for an Australian vetting agency to discover, for instance, information about relationships that a security clearance applicant may have formed overseas.476 Full disclosure by the applicant is essential for the Australian Government to be properly informed of the risk factors and vulnerabilities that it may need to manage.

One other point relates to subsection 137.1A(6) in the Bill. This says that ‘a reference in any law to section 137.1 is taken to include a reference to this section’. This subsection, which relates primarily to the application of section 137.1, may be easy for a reader to miss situated where it is. It may be preferable for an amendment to be made to section 137.1 by including subsection

473. Section 137.1A(1)(b). 474. Criminal Code, sections 73.1 and 73.2 475. Explanatory Memorandum, op. cit., p. 297. 476. Ibid.

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137.1(7), saying ‘a reference in any law to section 137.1 is taken to include a reference to section 137.1A’.

In its submission to the Joint Committee, the Law Council of Australia questioned whether the aggravated offence was too broadly pitched, and suggested the offence should be limited to information concerning activities linked to a foreign country or principal in relation to an application for a security clearance.477 Otherwise there is a danger that conduct would be captured that was beyond the policy intent of the new provision.

Comparable law in other countries

United States The US Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact ‘in any matter within the jurisdiction of the executive, legislative or judicial branch of the Government’ is a felony which may result in fines and/or up to five (5) years imprisonment. If the offense involves international or domestic terrorism (as defined in section 2331), the potential term of imprisonment is a maximum eight years.478

A description of a section 1001 offence, as set out in the subsections to section 1001 are:

1) falsify, conceal, or cover up by any trick, scheme, or device a material fact;

2) make any materially false, fictitious, or fraudulent statement or representation; or

3) make or use any false writing or document knowing that it contains any materially false, fictitious or fraudulent entry, in any matter within the jurisdiction of one of the three branches of the federal government.

The false statements statute is extremely broad. While the false statement has to be ‘material’, the provision itself of the false statement represents the offence, without the government having needed to be harmed or to have relied on your statement in any way. The false statement can be written (as on a Standard Form SF-86) or verbal.479

The process for gaining a US security clearance mainly comprises an inquiry called a Personnel Security Investigation (PSI). A PSI examines an individual's loyalty, character, trustworthiness, and reliability to ensure that he or she is eligible to access classified information or for an appointment to a sensitive position or position of trust.

US employment website the balance notes, in regard to security clearances, that:

PSIs and security clearances are key elements in protecting the security of the United States. These tools are meant to counter the threats that may stem from:

Foreign intelligence services

Organizations or people who wish to overthrow or undermine the United States government through unconstitutional means, violent acts, or other terrorist group activities

477. Law Council of Australia, Submission to Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, [Submission no. 5], p. 72. 478. Cornell Law School, 18 U.S. Code § 1001 - Statements or entries generally, Legal Information Institute. 479. A standard form (SF 86) must be completed by anyone seeking a security clearance and/or access to classified information.

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Individuals who may be susceptible to pressure or improper influence or have been dishonest or demonstrated a lack of integrity that has caused others to doubt their reliability. 480

The website goes on to note that a person who knowingly and wilfully makes material false statements during a PSI may be subject to prosecution for violating Title 18, section 1001 of the US Code.

United Kingdom The United Kingdom does not appear to have a centralised false statements-type provision. Instead a number of separate Acts contain provisions relating to making false statements in particular circumstances, such as:

• Social Security Administration Act 1992 section 111A (maximum penalty seven years imprisonment)

• Care Act 2014, section 92 (maximum penalty two years imprisonment) It is also noted that forms for completion in regard to a UK security clearance do not state that the provision of false information is a criminal offence. Rather they say that ‘failure to disclose relevant circumstances or information is likely in itself to be regarded as evidence of unreliability and will be taken into account when assessing your suitability for security clearance’.481

Schedule 4—Telecommunications serious offences

Background Schedule 4 amends the Telecommunications (Interception and Access) Act 1979 (TIA Act) to bring most of the Bill’s proposed offences within the scope of the TIA Act’s interception warrant regime.482

The changes follow recent amendments to the TIA Act which were aimed at better managing national security risks to Australia’s telecommunications services and infrastructure. The Telecommunications and Other Legislation Amendment Act 2017 created new security obligations for telecommunications companies to protect their networks and facilities from unauthorised interference or access. In imposing these obligations on carriers, carriage service providers and intermediaries, the Government stated that such services, which carry and hold sensitive information, ‘are attractive targets for espionage, sabotage and foreign interference activity by state and non-state actors’.483 It noted that the security framework established by the amending legislation would:

…. formalise the relationship between Australian Government agencies and C/CSPs to achieve more effective collaboration on the management of national security risks. The aim is to encourage early engagement on proposed changes to networks and services that could give rise to a national security risk and collaboration on the management of those risks. While a more formal relationship is necessary to ensure appropriate management of national security risks, the regulatory objective is to achieve

480. JS Niznik, A Guide to Security Clearance for U.S. Government Jobs, the balance, 18 August 2017. 481. Form NSV004. 482. Telecommunications (Interception and Access) Act 1979 (TIA Act) (Cth). 483. Revised Explanatory Memorandum, Telecommunications and Other Legislation Amendment Bill 2017, p. 2; also see:

M Biddington and J Murphy, Telecommunications and Other Legislation Amendment Bill 2016, Bills digest, 2017-18, Parliamentary Library, Canberra, 2017, p. 19.

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national security outcomes on a cooperative basis rather than through the formal exercise of regulatory powers. 484

A twelve month implementation period is currently underway, with the new security obligations to commence in September 2018.485

In comparison with these recent changes, the amendments to the TIA Act made by the present Bill are not focused only on threats directly to Australia’s telecommunications networks, but rather seek to better utilise telecommunications interception in the investigation of offences which may involve threats to national security.

Interception warrants under the TIA Act Schedule 4 amends the definition of serious offence in the TIA Act. The term is relevant to the issuing of two types of interception warrants under the TIA Act:

• a telecommunications service warrant, which allows an agency to intercept communications made to or from a particular telecommunications service486 and

• a named person warrant, which allows an agency to intercept communications made to or from any telecommunications service, or made by a particular communications device, that a particular person is using or likely to use.487

To obtain either warrant, the agency making the application488 must show that information likely to be obtained under the warrant would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences.489 In issuing a warrant, an eligible Judge or nominated member of the Administrative Appeals Tribunal must have regard to a number of specified matters, including: the extent of the interference with the privacy of any person; the gravity of the conduct constituting the offence (or offences) being investigated; how much the information obtained would be likely to assist in the investigation; and to what extent alternative methods of investigation are available to—and would be likely to assist—the relevant agency.490

Definition of serious offence An extensive and complex definition of serious offence is provided under existing section 5D of the TIA Act. It includes a broad range of offences relating to murder, kidnapping, terrorism, money laundering, cybercrime and market misconduct. Subsection 5D(2) states that it also includes offences punishable by at least seven years imprisonment where the conduct involves loss of life or serious personal injury (or serious risk of life or serious personal injury), serious property damage in circumstances endangering the safety of a person, serious arson, trafficking in prescribed substances, serious fraud, or loss to government revenue, bribery or corruption.

484. Revised Explanatory Memorandum, Telecommunications and Other Legislation Amendment Bill 2017, op. cit., p. 3. 485. Telecommunications and Other Legislation Amendment Act 2017 (Cth), section 2. 486. TIA Act, section 46. 487. Ibid., section 46A. 488. An interception agency may make an application for an interception warrant. This is defined under section 5 as a

Commonwealth agency (defined as the AFP, Australian Commission for Law Enforcement Integrity or Australian Crime Commission) or an eligible authority of a state in relation to which a declaration under section 34 of the TIA Act is in force. The Annual Report for the 2015-16 financial year lists 17 Commonwealth agencies and state eligible authorities as being interception agencies—this includes state and territory police and crime commissions. See: Attorney-General’s Department (AGD), Telecommunications (Interception and Access) Act 1979 Annual Report 2015-16, AGD, August 2017, p. 63 (Appendix B). 489. TIA Act, paragraphs 46(1)(d) and 46A(1)(d). 490. Ibid., subsections 46(2) and 46A(2).

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Currently, the definition expressly covers the treason offences under Subdivision B of Division 80 of the Criminal Code, but may not capture the other types of national security offences to which the present Bill relates, except where they fall within the scope of subsection 5D(2).

Proposed amendments Items 1 to 3 insert seven new classes of offences into the definition of serious offence in paragraph 5D(1)(e) of the TIA Act. Item 1 provides that the five groups of offences included in Schedule 1 of the Bill will fall within the meaning of serious offence:

• sabotage (Division 82 of the Criminal Code)

• other threats to security (Division 83)

• espionage (Division 91)

• foreign interference (Division 92) and

• theft of trade secrets involving foreign government principle (Division 92A).

Item 2 inserts the aggravated offence for giving false or misleading information, as proposed by Schedule 3 of the Bill. Item 3 inserts the secrecy offences under Division 122 of the Criminal Code, as proposed in Schedule 2.

The Explanatory Memorandum states that a number of the proposed offences in the Bill involve conduct which may be conducted largely or exclusively online, or information which may be created, communicated and stored online, and which may only be detected through the use of telecommunications interception powers. For example, in relation to the proposed espionage offences, the Explanatory Memorandum notes:

In the modern context, electronic means present the most common and convenient method of passing information to a foreign principal, making it necessary for investigators to have the option to intercept such communications to present harm. 491

The amendments will also allow agencies to use interception powers to gather evidence as to whether an offence has occurred, even if the conduct constituting the offence has not taken place online. An example is in relation to the aggravated offence for giving false or misleading information under proposed section 137.1A of the Criminal Code. In explaining the inclusion of this offence within the TIA Act’s definition of serious offence, the Explanatory Memorandum states: ‘interception of telecommunications provides a critical mechanism to determine a person’s intention in omitting or lying about certain details in the security clearance process’.492

Comment The amendments will allow the use of interception warrants in the investigation of the majority of the Bill’s proposed offences.493 The Explanatory Memorandum points to the need for reform in this area, arguing that:

The current lack of law enforcement and intelligence powers with respect to these activities [which threaten Australia’s national security] has resulted in a permissive operating environment for malicious foreign actors, which Australian agencies are unable to effectively disrupt and mitigate. Amendments to

491. Explanatory Memorandum, op. cit., p. 299. 492. Ibid., p. 300. 493. The offence of ‘Damaging Commonwealth property’ under proposed section 132.8A of the Criminal Code (inserted by item 22 of Schedule 1, Part 1), is not captured by the Schedule 4 amendments, but may nonetheless fall within the definition of

serious offence subsection 5D(2) of the TIA Act, as an offence punishable by more than seven years imprisonment, and potentially involving serious property damage and loss of government revenue.

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the TIA Act will ensure declared agencies have access to telecommunications interception powers to investigate the offences provided for in the Bill. 494

To some extent, the existing definition of serious offence will already capture these activities—it expressly includes treason offences, and will also cover offences where, for example, the relevant conduct involves a serious risk of loss of life or personal injury, serious damage to property in circumstances endangering a person’s safety, or a serious loss to government revenue.495 However, the proposed amendments in Schedule 4 will create a clearer basis on which law enforcement and intelligence agencies can apply for warrants to investigate potential national security threats, including those threats which are carried out exclusively online.

Some of the offences inserted into the TIA Act do not fall within the scope of subsection 5D(2). In particular, certain secrecy offences under proposed sections 122.1, 122.2 and 122.4 of the Criminal Code, and the proposed aggravated offence for giving false or misleading information, which have a penalty of less than seven years, would not be captured by the existing definition. The proposed amendments therefore broaden the reach of the interception warrant regime. More generally, the broad scope of a number of the proposed offences also has the effect of extending the grounds on which telecommunications services and devices can be subject to an interception warrant.

Some stakeholders have raised particular concerns with the inclusion of the aggravated offence of giving false or misleading information, as proposed under Schedule 3 of the Bill. The Law Council has noted that there is no requirement in the offence for the conduct to be linked to a foreign country or principal, and that consequently:

… this may mean that an interception warrant could be obtained to assist in determining false or misleading information which would not pose a threat to Australia’s national security. A broad range of circumstances may be captured by this offence provision and the proposed expansion of the TIA Act would be considerable and does not appear justified.

496

The Law Council recommended that proposed subparagraph 5D(1)(e)(viii) of the TIA Act, which would include the offence under the definition of serious offence, be removed from the Bill. Alternatively, it suggested that the proposed offence be redrafted in line with its recommendation that it be limited to failure to disclose activities linked to a foreign country/principle.497

A similar point was made by the OAIC, which noted that the TIA Act amendments will increase the circumstances in which personal information may be collected, accessed and disclosed.498 It drew attention to the Explanatory Memorandum, which acknowledged that the Schedule 4 amendments limit the right to privacy but argued that this limitation was reasonable, necessary and proportionate to the objective of protecting Australia’s national security.499 The OAIC raised concerns that privacy issues were considered largely in the context of the Schedule 1 offences, and the Explanatory Memorandum did not justify expanding the TIA Act’s interception and access

494. Explanatory Memorandum, op. cit., p. 298. 495. TIA Act, subsection 5D(2). 496. Law Council, Submission to the Parliamentary Joint Committee on Intelligence and Security, Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, op. cit., p. 73.

497. Ibid., p. 74. The Law Council’s recommendations for changes to the proposed aggravated offence for giving false or misleading information are discussed at pp. 71-72 of the submission. 498. OAIC, Submission to the Parliamentary Joint Committee on Intelligence and Security, Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, op. cit., p. 3. 499. Ibid, pp. 3-4; Explanatory Memorandum, op. cit., pp. 19-20.

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regime to include the secrecy or aggravated false or misleading information offences, which may not always have a national security element. In light of this, the OAIC suggested:

If it is the intent that the interception and access regime would only be used in connection to these offences where there was a national security objective, then this should be prescribed in the Bill or explained in the EM. 500

The PJCIS supported the amendments in Schedule 4 noting ‘the important role that telecommunications interception could play in investigating the proposed new and amended secrecy offences’. In recognition of concerns expressed during the inquiry, the PJCIS recommended that the Explanatory Memorandum be amended so that the Statement of Compatibility with Human Rights explicitly addresses the necessity, reasonableness, and proportionality of the expansion of telecommunications interceptions powers to all of the offences specified in Schedule 4 of the Bill.501

Schedule 5—Foreign influence transparency scheme Schedule 5 of the Bill will make amendments that expand the scope of the scheme established by the proposed Foreign Influence Transparency Scheme Bill 2017 (FITS Bill) and provide for transitional arrangements.

Commencement As noted above, clause 2 of the Bill provides that Part 1 of Schedule 5 will commence at the same time the Foreign Influence Transparency Scheme Act 2017. However, if that Act does not commence, then the provisions will not commence at all.

Similarly, Part 2 of Schedule 5 will commence immediately after the commencement of the Foreign Influence Transparency Scheme Act 2017 (FITS Act) or immediately after Part 1 of Schedule 1 of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2017 (Electoral Act) whichever is the later to occur. If either does not commence, then Part 2 of Schedule 5 will not commence.

Transitional arrangements Part 1 of Schedule 5 outlines transitional provisions for registration where ‘a registrable arrangement is in existence between a person and a foreign principal’. In this case registration would be required six months after the commencement of the FITS Act. The Explanatory Memorandum suggests that the provisions of clause 16 of the FITS Bill (the requirement to register) would not be imposed and a person registering would be required to apply for register within 14 days after the end of the six month period. It states this transitional arrangement is intended to allow persons with existing arrangements with foreign principals ‘time to arrange their affairs and ensure they comply with the scheme’.502

Amendments related to Electoral Legislation Amendment (Electoral Funding and Disclosure and Reform) Act 2017 The amendments to the FITS Act in Schedule 5, Part 2 relate to the proposed Electoral Legislation Amendment (Electoral Funding and Disclosure and Reform) Act 2017.

500. OAIC, Submission to the Parliamentary Joint Committee on Intelligence and Security, Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, op. cit., p. 3. 501. PJCIS, Advisory report, op. cit., p. 328. 502. Explanatory Memorandum, op. cit., p. 302.

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Item 2 amends the definition of ‘electoral donations threshold’ set out in section 10 of the FITS Act to omit ‘$13,500’ and substitute ‘the disclosure threshold within the meaning of Part XX of the Commonwealth Electoral Act 1918’. The Explanatory Memorandum notes this amendment ensures that the thresholds regarding ‘disbursements of money and other things of value regulated by the Foreign Influence Transparency Scheme Act and the Commonwealth Electoral Act are aligned’.

Item 3 of Schedule 5 will expand the definition of ‘general political lobbying’ (in clause 10 of the FITS Bill) to include ‘a person or entity that is registered under the Commonwealth Electoral Act 1918 as a political campaigner’.

Under the Electoral Bill (proposed subsection 287F) a person or entity will be required to register as a ‘political campaigner’ if their political expenditure during the current, or in any of the previous three financial years was $100,000 or more. A person or entity will also be required to register as a political campaigner if their political expenditure during a financial year is $50,000 or more and during the previous financial year was at least 50 per cent of their allowable amount for that year. The Explanatory Memorandum suggests that registered political campaigners have been included in the definition of ‘general political lobbying’ because ‘lobbying such persons or entities is an inherently political activity’.503 A person would only be required to register under the FITS Bill if the political campaigner was lobbying on behalf of a foreign principal.

Item 4 of Schedule 5 amends subsection 12(1) of the FITS Act to insert proposed paragraph 12(1)(g). This would expand the definition of activity for the ‘purpose of political or governmental influence’ to include activities for the purpose of influencing ‘processes in relation to a person or entity registered under the Commonwealth Electoral Act 1918 as a political campaigner’. The Explanatory Memorandum states the effect of the amendment is that ‘if a person undertakes an activity for the purpose of influencing a process in relation to a registered political campaigner, that activity will be taken to have been done for a purpose of ‘political or governmental influence’, and may attract a requirement to register under the scheme’.504

Item 5 of Schedule 5 will insert proposed subsection 12(7) into the FITS Act to provide examples of such processes for the purposes of paragraph 12(1)(g). The Government’s amendments will change the reference in proposed paragraph 12(7)(a)(vi) from ‘relationship with foreign principals within the meaning of paragraph (a), (b) or (c) of the definition of foreign principal in section 10, or with bodies controlled by such foreign principals’ to ‘relationships with foreign principals’.

The Supplementary Explanatory Memorandum states:

Item 5 of Schedule 5 currently applies to processes in relation to a political campaigner’s relationship with foreign principals that were foreign governments, foreign public enterprises or foreign political organisations, or with bodies controlled by such foreign principals.

The effect of this amendment is that subparagraph 12(7)(a)(vi) will now apply to each of the foreign principals listed in the definition of foreign principal at section 10 of the Foreign Influence Transparency Scheme Act, making it unnecessary to specify specific subsections of the definition of foreign principal in this subparagraph.

505

503. Ibid., p. 303. 504. Ibid., p. 304. 505. Supplementary Explanatory Memorandum, op. cit., p. 102.

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Schedule 6—Protection for persons providing information voluntarily to the Inspector-General Item 1 of Schedule 6 will insert proposed section 34B into the Inspector General of Intelligence and Security Act.

Proposed subsection 34B(1) provides this section will apply where a person voluntarily provides, or makes available, information or documents to the Inspector-General for certain purposes. These purposes are:

• the making of complaints to the IGIS

• the conduct by the IGIS of inspections of intelligence agencies

• the conduct by the IGIS of preliminary inquiries into complaints to determine whether to conduct an inquiry into those matters and

• the conduct by the IGIS of inquiries.

Proposed subsection 34B(2) provides that a person is not liable to a penalty under any law of the Commonwealth for providing or making available the information or documents for these purposes.

The Supplementary Explanatory Memorandum notes that the amendment ‘will confer immunity from liability to penalty on people who voluntarily provide or make available information or documents to the IGIS, for the purpose of the IGIS performing oversight functions under the IGIS Act’:

New section 34B of the IGIS Act is directed at ensuring that the secrecy offences in Schedule 2 do not create a disincentive for people coming forward to the IGIS with information about suspected or perceived wrongdoing by an intelligence agency, as a result of their being wholly reliant on a defence. It will ensure that people who voluntarily provide information to the IGIS will have equal legal protection to those who do so under compulsion in an inquiry and are covered by the immunity in existing subsection 18(9) [of the IGIS Act].

506

This amendment is intended to implement recommendation 32 of the PJCIS report which stated the Inspector-General of Intelligence and Security Act should be ‘amended to extend statutory immunity to persons who voluntarily provide information to the Inspector-General or her office’.507

However, proposed subsection 34B(3) lists two main exceptions to this immunity:

• proposed paragraph 34B(3)(a) provides that the protection is ‘not available in relation to proceedings for an offence under certain provisions of the Criminal Code and Crimes Act that relate to the provision of false or misleading information and use of fraudulent documents, the obstruction of Commonwealth officials, offences relating to evidence and witnesses, and preparatory and ancillary offences to the above’ and

• proposed paragraph 34B(3)(b) provides the protection is not available in relation to proceedings for an offence against a provision that is:

- enacted after the commencement of this section and - expressed to have effect despite this section.

506. Supplementary Explanatory Memorandum, op. cit., p. 103. 507. PJCIS, Advisory report, op. cit., p. 198.

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The Supplementary Explanatory Memorandum states this is ‘intended to make clear that the protection given in subsection 34B(2) should not be affected unless there is a clear expression of legislative intention to do so’.508

508. Ibid., p. 104.

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