Christian Porter (Pearce, Liberal Party, Attorney-General) Share this | Hansard source

I would like to commence, Mr Deputy Speaker, by thanking all of my parliamentary colleagues for their contributions to the debate on these two bills that we are considering cognately, the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, which is known as the EFI bill, and the Foreign Influence Transparency Scheme Bill 2017, which has become known as the FITS bill. These two bills have been considered in detail by several parliamentary committees, and I thank all of the committees for their contributions.

I would particularly like to express my thanks to the Parliamentary Joint Committee on Intelligence and Security, the joint committee, for their detailed consideration of these two bills. The work of the joint committee was critical in forming the deliberations of government on the necessity and the effectiveness of the critical offences provided for in the EFI bill and the ways to improve the operation of those offences, as well as on the scope of the Foreign Influence Transparency Scheme and its best and most effective operation. I would like to offer specific praise, which is appropriately recorded here, for the parliamentary joint committee chair and its deputy chair and to the shadow Attorney-General, whose dealings with my office have been temperate and skilled and have been conducted in the best of faith.

The government has amended the explanatory memorandums and will move amendments to each of the bills to implement recommendations from committee consideration of the bills. I therefore present a replacement explanatory memorandum to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill, which responds to issues raised by the Parliamentary Joint Committee on Human Rights in its Report 3 of 2018; by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest 4 of 2018; and by the PJCIS in the Advisory report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, tabled on 7 June 2018. I also present a replacement explanatory memorandum to the Foreign Influence Transparency Scheme Bill, which responds to the concerns raised by the Parliamentary Joint Committee on Human Rights in its Report 3 of 2018; by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest 3 of 2018; and by the PJCIS in the Advisory report on the Foreign Influence Transparency Scheme Bill 2017, tabled on 25 June 2018.

I also present the government response to the Advisory report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.I also present the government response to the Advisory report on the Foreign Influence Transparency Scheme Bill 2017.

With respect to the EFI bill, it's the case that covert interference and espionage by nation states are an unfortunate but longstanding global reality and that they have the potential to cause immense harm to our national sovereignty, to the safety of our people, to our economic prosperity and to the very integrity of our democracy. To counter this threat, Australia must have a robust, modern legislative framework to ensure our law enforcement and national security agencies are sufficiently empowered to investigate and disrupt malicious foreign interference. The reforms in the EFI bill are comprehensive. They represent the most significant counterintelligence reforms since the 1970s in Australia, and the measures in the EFI bill will fundamentally reshape our national security offences to protect Australia's sovereignty, its information and the democratic principles and values that underpin our society. The EFI bill will strengthen criminal offences targeting espionage, official secrets, sabotage, treason and other offences against the government, and it will introduce, for the first time, new offences targeting foreign interference and economic espionage by foreign actors. This is the 11th tranche of reforms to our national security legislation framework, but in scale, importance and complexity it completely eclipses the preceding changes.

With respect to the issue of espionage, the EFI bill includes comprehensive new espionage offences that are designed to capture the full range of conduct undertaken and designed to compromise sensitive information and prejudice our national security. These offences will criminalise a broad range of dealings with information, including possessing or receiving information, and protect a broader range of information, including some appropriately unclassified material. The new offences will target not just the person who discloses the relevant information but also the actions of the foreign principal who receives the relevant information. The EFI bill will also, for the first time, criminalise soliciting or procuring a person to engage in espionage and will introduce a new preparation or planning offence which will allow law enforcement agencies to intervene at an earlier stage to prevent harmful conduct from occurring.

The EFI bill will also introduce an offence criminalising economic espionage or the theft of trade secrets, which will apply to dishonest dealings with trade secrets on behalf of a foreign government principal. Until this point, astonishingly and dangerously, no criminal offence in Australia existed to criminalise economic espionage of the type defined in this bill.

Government amendments to the espionage offences and the EFI bill will narrow the scope of the offence at section 91.3—that being dealing with security-classified information—remove the classification of strict liability to elements of the offences, introduce a prior publication defence and require the Attorney-General's certification that information was appropriately security classified prior to prosecution. Government amendments will also provide further clarity to the offences by narrowing the definition of 'security classification' and defining key terms such as 'prejudice to national security' and 'advantaging the national security of a foreign country'.

With respect to foreign interference, the EFI bill will introduce, for the first time, a suite of foreign interference offences into the Criminal Code of the Commonwealth. These offences will complement espionage offences by criminalising a range of other harmful conduct undertaken by foreign principals who seek to interfere with Australia's political, governmental or democratic processes to support their own intelligence activities or to otherwise prejudice Australia's national security. The foreign interference offences will apply where a person's conduct is covert or deceptive, involves threats or menaces, or does not disclose the fact that conduct is undertaken on behalf of a foreign principal. Government amendments to the foreign interference offences will clarify that the offence of supporting a foreign intelligence agency is limited to providing material support.

With respect to secrecy, the EFI bill contains a suite of new Commonwealth secrecy offences which replace sections 70 and 79 of the Commonwealth Crimes Act. The new secrecy offences will apply if the information disclosed is inherently harmful, such as security-classified information, or would otherwise cause demonstrable harm to Australia's national interests. Government amendments to the bill will ensure that there are separate offences that apply with respect to secrecy to Commonwealth officers and non-Commonwealth officers, with the offences applying to non-Commonwealth officers being narrower in scope and attracting lower penalties.

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