Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

On 7 December last year, just hours after marriage equality was voted into reality by an overwhelming majority of this parliament, the Prime Minister walked into a near-empty House and moved the second reading of three bills. The first was the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, the second the Foreign Influence Transparency Scheme Bill 2017 and the third the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017. Today's debate is on the first two of these bills: the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017. These bills are quite distinct in what they do, and I will come to their intended operation a little later, but I will begin by briefly discussing the threats that these bills aim to address.

We in Labor agree with the government on three fundamental points. First, we agree that it is a paramount obligation of all members of parliament to do what we can to ensure that our nation is secure and our community safe. Our record of constructive engagement on national security bills over recent years makes this clear. Second, we agree that, in a rapidly changing global environment in which technology is also constantly evolving, the threats facing Australia are also changing rapidly. Third, we in Labor are in no doubt that the laws of Australia, including our national security laws, must be under a constant state of review so that they can be adapted as necessary to be fit for purpose. In the national security area this means that laws that were developed to deal with threats to our nation as they existed a century ago need to be updated when necessary to address the threats that we face today and that our agencies warn us we may well face tomorrow.

The key threats that these two bills seek to address are those of covert foreign interference and covert foreign influence in our democratic processes. As a democratic nation with a policy of openness marked by public participation not only in elections but also in governmental decision-making we are more open to the threats of covert foreign influence and covert foreign interference than are some other nations with political systems that are largely closed to public involvement. While we in Labor recognise that threat and the need to respond to it, one of the reasons we've been in such a lengthy debate with the government about these bills is that we do not want to respond to the threat of foreign interference by shutting down the openness of our society and of our democratic processes. That would be less a response to the threat than a capitulation to it.

In the form that these laws were introduced by the Prime Minister in December last year, these laws would have had a totally unacceptable impact on our openness as a democratic society. For example, unamended, these bills would have threatened journalists with severe criminal penalties for reporting on matters in the national security space that might have embarrassed the government. They would have imposed enormous administrative burdens on charities across our country—and even on those who supported them—backed up by criminal sanctions for non-compliance. These laws would have required any Australian academic engaged in joint work with an overseas university or academic to register as a foreign agent, again, on pain of criminal prosecution if they did not. Clearly, these outcomes would have been completely unacceptable to most Australians, and it is concerning that the Prime Minister thought that these measures and others of a similar nature were acceptable.

It's also concerning that the Prime Minister sought to so rush the process for review of this legislation by the Parliamentary Joint Committee on Intelligence and Security. The original reporting date for the committee was in February this year. This would have required all submissions to be written, public hearings to be conducted and the committee's report drafted, debated, agreed to and vetted by our agencies in the weeks during the lead-up to Christmas and over the summer break. The view that these bills could be introduced in the last hours of the last parliamentary session and then dealt with before parliament resumed suggests a lack of respect for the public's right to be consulted on laws that would so impact on our democratic rights and freedoms, including the vital freedom of the press to hold governments to account.

Fortunately, the government relented and allowed a more reasonable but still not fully adequate timetable for these bills to be considered by the intelligence committee, and I thank the government for realising its mistake. It is now over six months since the committee received its references on these bills, and many key stakeholders still believe that there has been inadequate time for consultation on these bills and the raft of amendments that have been made to them in the last weeks and hours. As it is, the committee only tabled its report on the Foreign Influence Transparency Scheme Bill yesterday, and substantial amendments were prepared and provided to us only late yesterday. I do want to put on record that the government's claim that these bills have to be passed by the parliament now to ensure that they are in place for the by-election scheduled for 28 July was directly contradicted by evidence given by the Attorney-General's Department to the committee, which made clear that it would take several months to put in place the register of foreign interests that will be established by the Foreign Influence Transparency Scheme Bill.

I now turn to the specific provisions of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill. This bill reforms the Commonwealth's espionage, sabotage, treason, treachery and secrecy laws in the Commonwealth Criminal Code and the Crimes Act 1914. The bill also introduces new offences aimed at criminalising the activities of foreign actors who are seeking to interfere with Australia's democratic and political processes, which are described as foreign interference offences. On 8 December 2017, the Prime Minister referred the bill to the intelligence and security committee. It was an appropriate referral and allowed the committee to continue its important, independent work reviewing security legislation for the parliament. In referring the bill, the Prime Minister acted in keeping with the bipartisan convention of ensuring proper scrutiny of security legislation.

The committee was asked to review the single largest overhaul of Australia's national security legal framework since the 1960s. There are some 38 offences in this bill. Most of them are expanded or reformed offences that have existed in one form or another in Australia's criminal law since 1914, and there are seven new foreign interference offences. Given the scale of the task presented to the committee, I should note that the government's approach before introduction left a lot to be desired. Given the scope and significance of this legislation, it would've been preferable for the former Attorney-General the Hon. George Brandis to publish an exposure draft of the bill or consult with experts. Because criminal sanctions are so serious, criminal law reform needs to be carefully thought through, subjected to public scrutiny and comment, and refined and designed so that it only captures the conduct that we rightly say as a society should be criminalised.

This bill reforms and amends laws which have long carried the potential for long prison sentences. Careful, thoughtful law reform aided by consultation and expertise was most certainly needed for these laws. This was not done. The first that experts and interested parties heard of this bill was when the Prime Minister and the former Attorney-General gave a press conference on their intention to introduce the legislation on 5 December 2017. This lack of proper consultation was compounded by the government seeking submissions from interested citizens, civil society groups and those experts so vital for assisting in the policy development process by 18 January 2018.

The submissions that were ultimately received made clear to all members of the committee, Labor and government members like, that the bill was deeply flawed. It contained numerous drafting errors, significant overreach and inadequate safeguards. I can say that, in the light of significant and growing criticism over the first months of this year, the new Attorney-General, the Hon. Christian Porter, in March presented by way of a submission to the committee inquiry a set of amendments to the bill which attempted to resolve some of the criticisms that had been levelled at the secrecy offences contained in schedule 2 of the bill. That criticism came from, among many others, the joint media organisations, who suggested to the committee that the bill, as presented, could make it a criminal offence, with substantial criminal terms of imprisonment as possible penalties, for journalists and staff of media organisations who innocently received secret information, whether or not that information was classified.

The Law Council of Australia, who made a very detailed submission running to some 78 pages, detailed extensive problems across the entirety of the bill. The Human Rights Law Centre made another helpful submission which focused on the secrecy offences, and that submission reflected that there were significant conceptual difficulties with the bill. They also noted how it deviated from the Australian Law Reform Commission's report titled Secrecy laws and open government in Australia, which was published in December 2009. The Inspector-General of Intelligence and Security made a submission which outlined her concerns that some of the offences would make it impossible for her and her staff to fulfil their statutory duties. Similar concerns were raised by the Office of the Australian Information Commissioner and the Commonwealth Ombudsman. None of these organisations or government office holders had been consulted about the proposed laws.

I'm glad to say that, following months of constructive bipartisan work, with exceptional support from the staff of the committee secretariat, a mammoth 404-page report was tabled on 7 June 2018. The report made 60 recommendations, more than any other committee report on a national security bill since the Abbott and Turnbull governments came to power in 2013. It is my and Labor's hope that, in future, such significant laws are the subject of proper consultation, considered drafting and thorough preparation before they are brought to the parliament. It makes the job of all of us in this place easier. It also makes it easier because Labor has always been determined to ensure that our law enforcement agencies and national security agencies have the powers that are necessary to keep Australians safe. These include the full suite of criminal offences that our security agencies tell us are necessary to disrupt and combat criminal attempts to undermine our democratic system and to use Australia as a venue for conducting espionage against Australia's allies. Had these laws been properly prepared subject to public scrutiny and debate prior to being brought to the parliament, it would not have been 25 June when this debate was taking place. Had proportionate, considered and well-developed law reform been proposed to the parliament, it's possible that our security agencies would already be working in an environment which provided the legal framework that they have sought and need to limit the permissive environment in which unprecedented espionage and foreign influence is taking place.

It is with all of these matters in mind that Labor has engaged in a constructive manner through the Parliamentary Joint Committee on Intelligence and Security with the government on this bill. As I have noted, the PJCIS report made 60 recommendations, 59 of which were for improvements to the bill or explanatory memorandum or making suggestions to the government as to how the bill should be implemented. The fact that there are 60 recommendations in the report reflects that there was always more work to do to try and get the balance right. We believe that the recommendations in the report which have been implemented by the government in the amendments before the House address many of the concerns raised by civil society groups and the media and improve the effectiveness of this bill. The government has produced, in the last sitting week, amendments—those now before the House—responding to and accepting the recommendations of the report. I thank the Attorney-General, the Hon. Christian Porter, for working constructively on the further amendments which were necessary to make this bill workable.

The bill now before the parliament and the two substantial amendment sheets overhaul a significant number of offences traditionally associated with criminalising the malicious interference in Australia's democratic and security apparatus by foreign countries. The bill modernises and reforms offences against government, including the offences of treason, treachery, mutiny, assisting the escape of a prisoner of war and military-style training involving a foreign principal. These will all continue to be in part 5.1 of the Criminal Code. The PJCIS report made it clear that these offences were in no way designed to capture humanitarian work in conflict zones or circumstances where a journalist covers a conflict and presents information which might be seen as supporting a particular group that has been designated an enemy under a proclamation.

The new division 91 in schedule 1 of the bill amends and modernises the existing espionage offences in division 91 of the Criminal Code. Under the new division 91, the number of espionage offences will increase to cover the gaps in the criminal law that Australia's security agencies have identified as being presently exploited by foreign actors conducting espionage against Australia and in Australia against other countries.

I place on record that the interpretation offered by some civil society groups that the espionage offences are capable of criminalising the disclosure of alleged breaches of international law or human rights by Australia or another country is simply not correct. It's not the parliament's intention that a civil society group which discloses to an international organisation otherwise secret information about Australia's or another country's breach of international obligations could be prosecuted under these offences. The object of these offences is to disrupt espionage activities.

Further, for a construction of these offences to have the effect suggested relies on the Commonwealth's only-hypothetical wrong being exposed in order to commence a prosecution. The espionage offences are premised on some element of harm or damage being caused to the Commonwealth. While it might be embarrassing if some future wrong were uncovered and disclosed by civil society groups, mere embarrassment will not be enough to make out the elements of any of the espionage offences. This requirement is coupled with the fact that a prosecution would have to prove beyond reasonable doubt that a civil society organisation or an individual whistleblower had intended to cause prejudice or was reckless as to whether prejudice would be caused to Australia's national security. In circumstances where the disclosure to the relevant international organisation is made to ensure that Australia rectifies and in future does not breach its international obligations, it's difficult to see how that fault element could be proved.

Finally, the espionage offences all require the consent of the Commonwealth Attorney-General. Attorneys-general hold obligations which go beyond the usual political and legal obligations of other ministers. They are the first law officer of the Commonwealth. A Commonwealth Attorney-General who consented to a prosecution in factual circumstances like those given as examples by some who have criticised this bill would, in my opinion, not be fulfilling those high obligations. I say this to assure any concerned citizens that this bill and these espionage offences do not seek to limit the role of civil society and do not threaten the essential role that civil society plays as a vehicle for the improvement of the Australian community, particularly where that objective is sought by improving Australia's status in multilateral institutions.

The bill introduces a new division 92 of the Criminal Code which contains several offences completely new to Australia's criminal law. The object of these offences is the disruption and criminalisation of covert acts of foreign interference which threaten Australia's democratic processes. I take examples that were given by the Prime Minister in introducing these bills: the interference in the US 2016 presidential election, in the Brexit referendum in the United Kingdom and in the presidential election in France, examples which happily have not yet been replicated—or at least no evidence has been presented that these activities have been replicated—in Australia. It's apparent that in other parts of the world, in other countries, covert actors are seeking on an unprecedented scale to interfere with and manipulate the political processes of democratic countries, particularly by attacking free and fair elections. Australia will not allow this conduct to arrive on our shores. The parliament will not allow interference in our elections. Labor will not allow our democratic processes to be the subject of foreign interference, and we will not allow the subversion of our politics to the interests of covert actors. Labor, whether in government or opposition, will not allow foreign interference, and we join with the government in safeguarding our nation's system of government and representative democracy which all Australians cherish and are, rightly, proud of.

The bill updates and modernises Australia's sabotage offences. Labor recognises that, in a complex modern world, it is necessary to criminalise intentional or reckless damage to a broad range of public infrastructure. As with the criticisms that I dealt with earlier in relation to the espionage offences, some critics have suggested that these amended sabotage offences might be used to criminalise innocent and peaceful protest. I would simply say that that is not the way in which these offences are intended to operate. It is not the way, in my view, that a court would interpret them. They are, absolutely, intended to criminalise sabotage, a serious attack on our country, and in no way would be used—as has been suggested and, I say, wrongly—to criminalise peaceful protest. The bill introduces a new 'theft of trade secrets' offence to protect Australia from economic espionage by foreign government principals, and it makes a number of other appropriate, modernising amendments to a range of other offences, including the offence of interfering with political rights and duties and, as I've indicated, important reforms to Australia's secrecy laws.

As a consequence of the amendments put forward by the Attorney-General in March, the secrecy offences are now to be split between offences committed by Commonwealth officers and offences committed by non-Commonwealth officers, which is an appropriate distinction to be made in the criminal law. Through the PJCIS process, Labor has ensured that there will be more limited circumstances applying to non-Commonwealth officers. In particular, Labor has ensured that there will be a robust and broad exemption for journalists and those people engaged in the business of reporting news and engaging in editorial activity. Those exemptions will stop the laws from being used to censor or suppress freedom of expression, which is an appropriate safeguard.

Generally speaking, this bill is much improved by the 59 recommendations for amendment and change both to the bill and to the explanatory memorandum. There will now be 'prior publication' defences. There will now be a public interest defence for the secrecy offence. It is important that there be these limitations. It's important that there are now amendments to make explicit that the protections and immunities for whistleblowers which already exist in the Public Interest Disclosure Act, the Inspector-General of Intelligence and Security Act and the Freedom of Information Act are not affected by this bill. As I've noted already, the bill will now include a requirement for the Attorney-General to consent to a prosecution for espionage and to consent to a prosecution for a secrecy offence, which is an important further safeguard.

Many of the recommendations of the PJCIS—which I thank the government for implementing in full in these amendments now before the House—have the effect of narrowing the impermissible conduct to be criminalised by the offences contained in the bill. In particular, I note the requirement that the offences which use the phrase 'prejudice to Australia's national security' are to be interpreted as requiring a degree of damage or harm to Australia's national security. It's not in the interests of our nation that mere embarrassment would be sufficient to make out this element of the offences containing that phrase. Labor has worked constructively and in good faith with the government to make sure that this bill has been significantly improved. It now properly targets the conduct which the parliament is seeking to criminalise, while always safeguarding those fundamental and essential rights and freedoms which we in Labor will always defend and promote.

I will turn now, in the available time, to the Foreign Influence Transparency Scheme Bill. This bill also was introduced by the Prime Minister on 7 December, and it's quite a different bill to the espionage and foreign interference bill, which of course is dealing with amendments to the criminal law. This bill sets up a registration scheme for persons who act on behalf of foreign governments, foreign government related entities or individuals and foreign political organisations who are seeking to influence an Australian governmental or political process. As with the espionage bill, the Parliamentary Joint Committee on Intelligence and Security received many submissions opposing the bill which were particularly directed to the breadth of the bill. Submitters pointed out that thousands of Australian individuals and organisations whose foreign connections were entirely overt would have been required to register under the bill as originally put forward.

The committee had public hearings on 30 and 31 January and again on 16 March. It was quite apparent, even by mid-March, that the government was going to have to very substantially amend this Foreign Influence Transparency Scheme Bill, but the committee had to wait until six months to the day from when the bill was first introduced by the Prime Minister—7 June 2018—for the Attorney-General to submit a very large set of proposed amendments to this Foreign Influence Transparency Scheme Bill. It was such a large set of amendments that it's fair to consider what is now before the House an almost completely different bill.

The government at that point, on 7 June 2018, indicated that it wanted this further bill, the Foreign Influence Transparency Scheme Bill, to be passed in this sitting week, and happily the committee was able to complete a short further inquiry, by calling for submissions again from all those who had made submissions earlier to the committee, on the new set of amendments produced by the Attorney-General. This resulted in some 30 further submissions, a hearing conducted by the intelligence committee last Monday and some extremely active work by the committee and its secretariat over the succeeding week, leading to the tabling of the report of the committee yesterday, recommending something over 40 further changes in addition to those suggested by the Attorney-General on 7 June.

The changes have the effect that the scope of the bill is now greatly narrowed. It is now clear that the registration scheme is to focus on the activities of foreign governments, foreign government related individuals and entities, and foreign political organisations. That last term too—because it does sound a like a broad term—has been further restricted by the amendments which are before the parliament so as to make it clear that a foreign political organisation is to be treated as a foreign political party or an organisation which is directed wholly or primarily to political activity, and the amendments to the explanatory memorandum will make it clear that an environmental group or other civil society group whose activities are directed to other matters and not solely to political activity is not intended by the parliament to be caught by the term 'foreign political organisation'. Again, the scope of registerable activities has been limited so that it now is clear that it's intended that registerable activities will cover parliamentary and general political lobbying where the relevant conduct is undertaken for the sole or primary purpose of political or government influence or the government's communications activity.

The media organisations who had participated in the earlier part of the inquiry have expressed their satisfaction with the narrowing of the scope of this bill so that, in a very real sense, media organisations will not be caught by its provisions. So, too, charities that had expressed great concern that they were going to be caught up in onerous obligations and paperwork that took them well outside what they would prefer to be spending their time on have also expressed their satisfaction that they are to be exempt. So, too, arts and cultural organisations are to be exempt from the registration requirements under this scheme, and trade unions are to be exempt from the registration requirements under this scheme under particular circumstances. There was already in the bill as originally proposed a religious exemption. That religious exemption has been clarified as a consequence of both the recommendations of the committee and the amendments that the government now brings before the House. Again, that's appropriate.

In its original form, the bill introduced to this House on 7 December was very much using a sledgehammer to crack a nut, when what in truth was required was a more scalpel-like approach. Happily, the government has listened to the very many concerns that have been expressed by civil society and has narrowed the scope of the bill, increased the number of exemptions, and clarified in a very real way the way in which the scheme is intended to operate.

I have to mention an important further matter, which is that there is now to be a complete restoration of parliamentary privilege. It might, in the bill's original form, have been the case that parliamentary privilege was abrogated. It is now made clear by the proposed section 9A of the bill that this is not the case. This bill, if enacted, will not affect anything to do with parliamentary privilege, and, indeed, MPs will not be required to register under the scheme. The committee has recommended that this House and the other place devise, under standing orders, an appropriate matching scheme for members of both houses so as to ensure that there is proper disclosure of any foreign governmental influence working on members of either house.

In a very real sense, there's been constructive work engaged in by both parties on these bills. There's been a great deal of work in the intelligence committee. The government has acted on those recommendations, and I commend both bills to the House.

Andrew Hastie (Canning, Liberal Party) Share this | Link to this | Hansard source

The Prussian scholar/general Carl von Clausewitz has left an indelible mark on Western strategic and military culture. I first became immersed in his famous work On War as a young officer cadet under the late Professor Jeffrey Grey at the University of New South Wales at the Australian Defence Force Academy some 15 years ago. This is not a unique experience for young minds schooled in the Western military tradition—his writings have taken a pre-eminent place in the way our political and military leaders think about war and strategy. His key insight was into the primal nature of war. 'War,' wrote Clausewitz, 'is an extreme trial of strength and stamina. It is an act of force to compel our enemy to do our will.' But his most quoted dictum, 'War is the continuation of politics by other means,' has led many in the West to insist on a comfortable separation between peace and war. We see war as a distinct form of statecraft conducted outside the realm of peacetime relations. George F. Kennan, the American diplomat and historian, wrestled with this problem in 1948, just as the Iron Curtain was descending across Europe. In a US state department memo entitled The inauguration of organised political warfarehe wrote:

We have been handicapped however by a popular attachment to the concept of a basic difference between peace and war, by a tendency to view war as a sort of sporting context outside of all political context, by a national tendency to seek for a political cure-all, and by a reluctance to recognize the realities of international relations—the perpetual rhythm of struggle, in and out of war.

This was a phenomenon unique to Western democracies. Kennan argued that the Soviet Union under Lenin had fused Marxism and Clausewitz, and this allowed them to develop the most refined and effective political warfare in history. The Soviet Union flipped Clausewitz's logic and read his dictum backwards: 'Politics is the continuation of war by other means'. Political warfare for the Soviets could be both overt and covert. It was part of the rhythm of struggle that Kennan described as an underlying reality of international relations.

Liberal democracies grappled with political warfare during the Cold War and today we face the same problem. We know that today Marxist-Leninist authoritarian regimes are conducting espionage and foreign interference against Western liberal democracies, including Australia, on an unprecedented scale. This has been described as a unique form of authoritarian political warfare, known as comprehensive coercion. I refer to the recent monograph published by the Center for Strategic and Budgetary Assessments entitled Countering comprehensive coercion: competitive strategies against authoritarian political warfare, which was co-authored by Australian Ross Babbage, along with Thomas Mahnken and Toshi Yoshihara. The Parliamentary Joint Committee on Intelligence and Security is privy to a lot of classified information, and in my considered view this open-source document accords most closely with the threat described by our intelligence agencies.

The problem we all face is simply this: authoritarian states are using political warfare to undermine the legitimacy of Western democracies by targeting our media, political processes, financial networks and personal data. These authoritarian states view political warfare as a standard instrument of statecraft rather than a specialised tool. Their centralised regimes can leverage all elements of their national power towards their strategic objectives. They can mobilise all elements of society for political warfare—not just government but also nongovernmental organisations, industry, think tanks, civic associations and individuals. They use political warfare to suppress dissent, discourage foreign narratives that are inimical to their interests, generate support for policies they favour, enhance their freedom of action by keeping their rivals distracted, and mitigate pushback against overt acts of revisionism.

What do these political warfare operations look like? Overt operations are conducted to influence, pressure, coerce, bribe, corrupt and exploit Western countries. To advance their national objectives they mobilise elements of their diaspora residing in Western countries. Embassies and consulates play a vital coordination role in recruiting and controlling ethnic diaspora. They task students in foreign countries to suppress views inimical to their interests on Western university campuses. They influence and manipulate foreign language media in diaspora communities to comply with state-approved narratives. They sponsor pro-regime educational institutions to foster their world views and support their strategic aims. They provide financial support and inducements to individuals and institutions abroad, usually members of the political system, to foster them as agents of influence in the service of their national objectives. They seek to build influence within Western media organisations. They leverage trade and investment dependencies to coerce partners. They mobilise state-owned business enterprises to act in the interest of their strategic goals. They recruit business leaders who have strong economic interests in their country. They penetrate Western research and other institutions to access cutting-edge technology. They conduct sophisticated cyber operations against targeted countries. They conduct espionage operations against Western and partner countries, and they conduct geostrategic manoeuvres to extend their influence over new areas through the acquisition and building of roads, rail, airheads, ports, pipelines, and power and electronic communications infrastructure, to link up their economic aims with their geostrategic ambitions.

All of these operations that I have described thematically are reflected in real-time examples. I do not wish to name individual countries except to say this is a real problem for Western democracies. But I do acknowledge the courage of Australian investigative journalists who have sought to uncover examples of these operations here in Australia. They have done so in the national interest and often with the threat of expensive defamation cases for their efforts. In fact, our defamation laws are at risk of being weaponised in the service of authoritarian states. I think we must consider reform of these laws to prevent our own institutions being used against us by our strategic rivals to suppress free speech.

In the meantime, we need to take legislative action to secure our sovereignty, our political institutions and our economic prosperity. This government has taken action. On 7 December 2017, the Prime Minister introduced the two bills that are now before us in the House. On 8 December, the Prime Minister asked the Parliamentary Joint Committee on Intelligence and Security to inquire into and report on both bills. For me as chair of the committee, it has been a privilege to be involved in the process of reviewing these bills on a bipartisan basis and making recommendations to improve them with amendments. It is a task that we as the PJCIS take very seriously, given the unprecedented scale of the threat that we seek to mitigate. We are also deeply conscious of the need for this parliament to balance security with personal liberty.

Two weeks ago the committee reported on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill, and yesterday we tabled our report on the Foreign Influence Transparency Scheme Bill. Importantly, both bills have received bipartisan support from the committee, and they need to be passed for the sake of our national interest. I've already covered in previous speeches the key elements of each bill and our committee recommendations for improvement. I won't traverse the same ground here, but it is worth reminding ourselves why we are passing this legislation.

Our intelligence and law enforcement agencies and prosecutors do not presently have the tools to counter the threat that we are facing. This bill equips them for the task of protecting our security and sovereignty. The espionage and foreign interference bill replaces and broadens existing espionage and sabotage offences. It introduces new categories of offences, including foreign interference and theft of trade secrets. It revises other offences against the state, including treason and treachery. It creates a new aggravated offence of giving false or misleading information in connection with a security clearance. Significantly, this bill, under the foreign interference offences, makes it criminal to influence state or federal elections on behalf of a foreign power. We've seen authoritarian powers interfere in Brexit and the French and US presidential elections. We cannot afford the same risk in Australia. That is why we are taking action to secure the integrity of our electoral system. When the espionage and foreign interference bill becomes law, those charged with shielding our democracy will be equipped for the incredibly complex task before them.

Complementing the National Security Legislation Amendment (Espionage and Foreign Interference) Bill is the Foreign Influence Transparency Scheme Bill. The Foreign Influence Transparency Scheme Bill seeks to bring into the light covert or obscured foreign influence in our political institutions. It will empower the Australian people with more information about who is shaping our political decision-makers. We cannot have foreign states exercising covert influence over our political landscape. Of course, we welcome overt foreign influence as a necessary part of our democratic processes. We have many foreign partners who engage in regular dialogue with Australian government and civil society through lawful, legitimate and transparent channels. We welcome this. It strengthens us as a country. But it must be declared, and this is what this scheme seeks to do.

The scheme will involve a public register. That register is intended to provide visibility of the level and extent of covert or obscured foreign influence in the course of political and governmental decision-making in this country. Under the bill, a person will be liable to register if they undertake certain activities that seek to influence Australian political or government decisions on behalf of individuals and entities that are closely linked to a foreign government. As I've said, this transparency will empower the Australian people to better understand the foreign influences at work in our political processes. This is a very good thing, because an informed citizenry means a healthy democracy.

I want to say a bit about those who've done a lot of work towards getting these bills to where they are now. They have not occurred in a vacuum, nor can any one individual be credited with their passing. We are here today because a network of committed individuals across government, the media and civil society have worked in the national interest to make the private and public case for these laws. The Australian public can be confident that bipartisanship is still alive and that the network broadly reflects the political colours of blue and red.

The Attorney-General has been outstanding in his principled, rigorous and realistic approach to securing bipartisan support for this legislation, and I thank him on behalf of the intelligence and security committee. Justin Bassi, Daniel Ward, Tim Wellington and Parker Reeve have been instrumental in the passage of these laws. You have done great work in the service of Australia. I think of the deputy chair of the PJCIS, the member for Holt, and our Labor colleagues on the committee, and I also think of the Labor backbenchers who have shown their support for this suite of legislation during this committee process with a quiet word or note. I think of unlikely allies like Clive Hamilton who have shown courage where others have taken counsel of their fears. Many contributors have no political affiliation and are members of the media, government and civil society. Their defining characteristics are analytical courage, clarity and integrity. They have made clear what is at stake for Australia if we fail to act to protect our institutions. I shall not name them, but I will make special note of John Garnaut, who has spoken truth to power and may yet pay for it. Finally, I thank the secretariat of the intelligence and security committee. Your diligence, perseverance and flexibility have enabled us to get to this point. I think I speak for all involved when I commend this historic and landmark national security legislation to the House.

Anthony Byrne (Holt, Australian Labor Party) Share this | Link to this | Hansard source

I'll be brief. I thank the shadow Attorney-General, the Leader of the Opposition in this House, the Attorney-General and the chair for their indulgence in allowing me to speak on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and related bill. I note that my friend and colleague the member for Denison wants to speak shortly about these matters too.

I speak today to those abroad who have listened to discordant voices in the course of this debate about our nation's sovereignty. I speak to those who have listened to representatives who have served in this place or other legislatures in this country who provided false hope or false comfort to those who may wish us harm. Today you are hearing the true voice of this nation and of this parliament. We effectively speak with one voice—a stentorian voice destined to be heard everywhere by those who wish us well or wish us harm.

Our nation has a right to defend itself. It has a right to protect and defend its democratic structures, its way of life and the freedom of its people—all of its people, wherever they have come from, near or afar. When you come to this country and become a citizen, you are entitled to the full measure of protection that this country affords. This legislation must offer these protections to you, and, after the exhaustive processes undertaken by the PJCIS, it will.

The perception of autocratic regimes about democracies like ours, the United Kingdom's and the United States's is that the openness of our societies creates weakness and that this weakness can be exploited. This is an act of historical folly that seems destined to be repeated unless common sense and a study of history prevail. Also this misconception could not be further from the truth. Our openness is our greatest strength. Our way of life and our expression of it are also our great strengths. It has come from centuries of struggle and sacrifice from many different nations and many different cultures. Its foundations were laid thousands of years ago by societies whose light still burns bright today and whose impact reverberates throughout our laws, our values, our art and our culture. We are the children and heirs of this foundation and tradition, and we must not squander this hard-won inheritance. Because even through this openness we can be slow to respond to threat, when that threat is revealed something ignites in our democracy: a thirst and an unquenchable desire to protect that democracy and our way of life, whatever the cost, whatever the sacrifice, with the full measure of devotion.

I am from the party which gave this nation one of its greatest treasures—Prime Minister John Curtin, a humble man who stood tall and proud for our country in the darkest days of World War II. He stood tall. He stood for our nation alongside giants such as Winston Churchill and Franklin Roosevelt. Our Prime Minister, who was described as a one-time mild-mannered trade unionist, addressed his nation's first direct radio broadcast from Canberra to American citizens on Friday, 14 March 1942. Praising the people of America during peak-hour broadcasting, Prime Minister Curtin spoke of their shared commitment to total warfare and the importance of preserving Australia as a democratic bastion between the US west coast and Axis enemies. 'I say to you,' he said, 'that the saving of Australia is the saving of America's west coast.' He also said:

I speak to you from Australia. I speak from a united people to a united people, and my speech is aimed to serve all the people of the nations united in the struggle to save mankind.

He stated:

We fight with what we have and what we have is our all. We fight for the same free institutions that you enjoy. We fight so that, in the words of Lincoln, 'government of the people … by the people, shall not perish from the earth'. Our legislature is elected the same as is yours; and we will fight for it, and for the right to have it, just as you will fight to keep the Capitol at Washington the meeting place of freely-elected men and women representative of a free people.

He further stated:

Be assured of the calibre of our national character. This war may see the end of much that we have painfully and slowly built in our 150 years of existence. But even though all of it go, there will still be Australians fighting on Australian soil until the turning point be reached, and we will advance over blackened ruins, through blasted and fire-swepted cities, across scorched plains, until we drive the enemy into the sea. I give you the pledge of my country. There will always be an Australian Government and there will always be an Australian people. We are too strong in our hearts; our spirit is too high; the justice of our cause throbs too deeply in our being for that high purpose to be overcome.

These great words echo down throughout the years to this day. The laws that we debate today may be imperfect, as other speakers may highlight, but they state and embody bipartisan intent. It is our job as legislators and Curtin's heirs to fulfil our commitment to those in our clandestine services, our law enforcement agencies and the Attorney-General's office that we seek these powers to keep our nation safe. We in this parliament, together, have ensured that there are reviews and safeguards required to offer protection as needed. With that in mind and with Curtin's words echoing in my ears, I commend these bills to the House.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

It goes without saying that maintaining the security of our nation is clearly one of the most important roles for government, and doing so as a general principle has my full support. But, when it comes to the achievement of our national security, no government whatsoever has any right to ever be misleading or hypocritical. No government has any right to misuse national security in the lead-up to by-elections or an election. No government has the right to take us down the road to being a police state. I regret to say that there's more than a whiff of all of those concerns in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017, which we are debating here in this place today and which we will shortly vote on.

Yes, we do need legislative reform to counter foreign interference and foreign espionage in our country, but the way we do it has to be ever so carefully crafted and crafted in a way that safeguards the liberties that we hold so dear. These bills today do not achieve that standard, and I won't support them. I think the way they are currently presented to the parliament is disappointing. They are bad bills. I think the fundamental deficiency in both of the bills today is in the broad definition of 'national security' and 'foreign influence'. Clearly, they are way too broad definitions, and they should have been remedied before the bills came before the House.

For example, with the way the bills are crafted presently, the act of simply protesting could be deemed sabotage if that protest in some way could be seen to disadvantage or impede our economic security. What about the people who might protest against the Adani coalmine in Queensland—a project that, if it were stopped, would be, on the face of it, a downside to our economy? It could be said that those protesters are engaging in sabotage of Australia's economic security and could be prosecuted under these bills. Also, what about the need we have sometimes to report matters to international organisations like the United Nations? It is something which I've done myself. I have made complaints to the court in The Hague about our response to asylum seekers. Under these bills, people who do that in the future would be liable to be prosecuted because they could be deemed to be engaging in some sort of foreign interference. What about international organisations like Amnesty, the PEW environmental foundation or Save The Children? Are they foreign agents?

Regrettably, with the way the bills are currently crafted, they could be held to be foreign agents and fall within this framework. Even possessing information sensitive not to Defence but to Australia's economic security could be deemed a breach of security.

With the way the bills are currently crafted it is left to the relevant government minister, the Attorney-General, to determine against whom action should or shouldn't be taken. We should never rely on legislation which, at the end of the day, is at the whim of a minister. We have a good minister in the current Attorney-General, and he has my confidence, but what about a future Attorney-General in this government or a future government? Can we have the same confidence? What if we have a downright bad and mischievous Attorney-General or Prime Minister in a future government who would misuse these laws? These laws have the scope within them such that they could be misused. I say to honourable members that we should never sign off on any legislation where there is that freedom to manoeuvre for a government and the relevant minister. We should always craft our laws so tightly that they can never be misused by anyone in the future.

Many years ago now I was involved in a whistleblowing episode, and I have a particular interest in maintaining or creating rights for whistleblowers, because I think they are a very important check on the power of governments. There's nothing in these bills today to give any protection to whistleblowers that might need to speak up about any of the matters to which these bills relate. Not irrelevant is the Public Interest Disclosure Act, which was passed by this place some years ago now. I remind members that there is a specific carve-out in the Public Interest Disclosure Act for national security material and national security officials. Any hope we might have that someone genuinely speaking up because of government misconduct or a security concern relevant to these bills would have any protection is dashed. They don't have protection before these bills; they don't have protection in these bills; and they don't have protection after these bills. I say to the Attorney-General that I would dearly love the government to revisit the carve-out for national security and national security officials in our whistleblower legislation in this country.

I wrap some context around these bills today, because I think that's important. Far too often we look at legislative reforms in isolation and don't take a step back to look at the overall situation. When we do that, I think we should be concerned about the direction this country has gone in since the 9/11 attacks in late 2001. Since 9/11 more than 60 security reforms have come through this place. Some have been necessary and had my support; many have not been necessary, did not have my support and will not have my support. At the end of the day so much of what we're talking about in this place, in the past and today, are ultimately just criminal offences which the laws already on the books have been adequate to deal with. Far too often in this place we're quick to pass a new law using the excuses of border security, national security or foreign espionage—scary words that make people think, 'We need more laws.' Often we don't need more or better laws; often we simply need to better apply the laws we have. Sure, make information-sharing between intelligence agencies and the justice system more effective and efficient, but we don't always need to race to pass another law when it comes to national security.

I make the point again: since 9/11 more than 60 security reforms have passed this place. I would remind honourable members and anyone in the gallery of some alarming security changes passed in the 44th Parliament. For example, there were the amendments made to the Commonwealth Crimes Act in 2014 which allow ASIO officers to conduct controlled operations and, in those controlled operations, to actually commit very serious criminal offences such as burglaries, assaults, kidnapping and fraud knowing they will not be prosecuted and knowing that those controlled operations must be kept secret and that there is scant opportunity for journalists to publicise such controlled operations. Also in the previous parliament there was the Australian Border Force Act, which makes it an offence for people to reveal what goes on in our offshore processing centres overseas. Also, of course, in the previous parliament, who can forget mandatory metadata retention? I would remind the public, because far too often we forget these things, that today there is in place an arrangement where all of our metadata from our phones, our tablets and our computers at home is being recorded and held for two years. It can be accessed by the authorities without warrant.

Even in this parliament, we have the three bills, two of which we're dealing with today. What of the reports just some weeks ago that police are going to be allowed to pull you up in the airport and demand to see your identity papers, even if you're not suspected of anything? Just on a whim, a police officer can pull you up and say 'Show me your papers!' and you have to hand them over. That's not good enough. That's not what should be allowed in a country like Australia.

Deputy Speaker, when you look at the context, when you look at the bills we are dealing with today and the deficiencies of them, I will go so far as to say that Australia is a pre police state. We have passed far too many security laws, and far too many of them have been unnecessary. Our independent media is slowly being diminished with reductions in their funding. Papers are being checked at airports with no good cause. The right to protest, in these bills, is effectively diminished. As I said earlier, if the government wants to say any protest, such as a protest against the Adani Mine, is a threat to our economic national security, then you can be accused of committing an act of espionage and be charged under these bills that we're dealing with today.

Also diminished is access to foreign bodies. What happens the next time someone wants to make a complaint to the United Nations? Are they going to be accused of fostering foreign interference and be charged under these bills? Presumably not, because the Attorney-General has got more sense than that, but what about the next Attorney-General, if he doesn't like the cut of your suit and the fact that you're making a complaint to the International Criminal Court, for example? Will he have you charged for foreign interference and hauled before a court? We can't be sure that he or she won't do that.

I made a reference at the start of my speech to hypocrisy. Governments—and the opposition, I would add—far too often are fired up to beat the national security drum and talk about the grave threats this country faces, but at the same time they took the AFP away from Hobart Airport. At the same time that governments are saying that our greatest security threat is home-grown terrorism—we know there are smart terrorists and would-be terrorists who would target high-profile, iconic soft targets—they take the police away from the airport and refuse to put them back.

What about the hypocrisy that we learnt of today that 12 members of this parliament have been flown to China as guests of Huawei, a company with known links to the Chinese government? That's okay. It's okay for people from this place to jump on a plane—in business class or maybe first class; I don't know how deep Huawei's pockets are—and fly off to China for one or two weeks, go in the tent, drink the Kool-Aid, look at a couple of telephone manufacturing plants and come back, no doubt, great friends of Huawei and great friends of the People's Republic. Then those same MPs will walk in here and vote for these bills today, saying, 'We're gravely concerned about foreign influence and our democratic process.' Just don't mention the business class flight to China in recent times as a guest, effectively, of the Chinese government through their middleman Huawei. What hypocrisy, and what a rush!

The PJCIS has only just finished looking at these matters. We're only just getting our minds around all of the amendments, and we rush it in here. I'll finish in a bit over a minute, the member for Melbourne might speak for 15 minutes, and then I reckon they're going to try to ram this through before 90-second statements, because there's such urgency to energise this issue before the five by-elections. What absolute rot! Since when should this country's national security be pegged onto the political self-interest of the government and the opposition before five by-elections? We should look at these things carefully and slowly and make sure that ultimately what this place deals with and passes is in our national security best interests and not in the political self-interest of a government or an opposition.

I would have liked to support both of these bills, because I'm the first to say we should maintain our national security. After all, I'm the fellow who did 20 years in the Army and a number of years in the intelligence services. I'm the first to fight for our national security, but I will not be party to reckless, poorly crafted legislation that unnecessarily diminishes even further our civil rights.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 criminalises dissent. This bill makes it a much more dangerous proposition to stand up to this government or any future government. It makes it a much more dangerous proposition to stand up on human rights and point out our government's record or other governments' records internationally on human rights. It makes it much more dangerous to protest against things that have an economic impact, like the Adani coalmine, because, if these bills pass, there will be sweepingly broad new definitions of what counts as national security, what counts as Australia's economic interests and what counts as our international reputation, and, if you fall foul of those very broad definitions, you could find yourself in jail, because you will have breached espionage laws in this country, which are usually considered some of the most serious offences that there can be.

Many, many people have spoken up about these bills and said not only that these bills are unnecessary but that they take us a step further down the road of becoming the kind of society that these bills are meant to protect us from. As Amnesty International said today, notwithstanding the cosy deal that's been done to rush these bills through the parliament—and I'll talk a bit about that in a moment—these bills still, despite all of that, make it a crime to hold the Australian government to account on human rights, and as such they help shield government from accountability. In their words:

These draconian laws proposed will make Australia more like the authoritarian countries this bill is supposed to protect us from.

When it comes to putting people in jail because they dared to speak up to a government, we should tread very, very carefully in this place. A very strong case needs to be made before we criminalise what most people would think is an everyday right of free speech. To go to a protest against a company doing something that you don't like, even if it potentially embarrasses Australia, to stand up to something that Australia is doing either by itself or with another country, even if it might embarrass Australia, or to say that a government needs to be held to account, even if it might be seen to be harming our international interests, is something that most people in this country would think is a fundamental right. It's what marks out democracies from other forms of society.

But now doing things like protesting against international trade agreements like the TPP, saying governments and people internationally aren't pulling their weight in global climate change negotiations or saying you don't want a new coalmine that might have international consequences are potentially captured by this law, because the government has drawn very, very broad definitions. This has been pointed out by many organisations who've looked at this in the limited time that they've had available and have said, 'There are some big red flags here.' When you look at the way this government treats refugees, who are human beings, and when you look at the way this government takes away the basic rights of other people who've not even committed a crime, that is a precursor, I think, of what they'd be prepared to do to other people in our society, and that is why it is essential, any time a government wants to take away some of the basic precepts of the rule of law or of individual freedoms, that they be held to account and scrutinised very, very carefully.

But what have we got here? We've got a couple of bills, one of which criminalises dissent and the other of which casts a broad net over other people around the world, meaning you'll potentially fall foul of law if you deal with them. The government puts out this bill and says, 'Oh, we need to rush it through very, very quickly.' Then it goes into a committee where there are secret discussions that take place between the government and the opposition, and about 10 minutes ago we just got 50 pages of amendments and were told: 'Trust us. It's okay. Pass this bill with these amendments. We've fixed it all up.' Well, maybe the opposition has secured some good amendments from the government and made this bad bill less bad—and good on them, if they have—but parliament is meant to be the place where you scrutinise what the government is doing. When the government wants to criminalise dissent, when the government wants to say, 'You could face jail time tomorrow for doing something that was perfectly lawful yesterday,' I'm sorry, but we don't take them at face value.

We have seen what you, the government, do to other people when you've got the legal power of the state behind you. We've seen what you do to refugees. We've seen that you take away people's incomes if you don't think they're spending their money properly. We've seen people's lives broken because of the way this government has treated them. And so I am sorry, but we are not prepared to take it on trust that somehow everything is going to be okay and that dissent will not be criminalised in this country.

It is against everything this parliament stands for to lob almost 50 pages of amendments at the parliament and say, 'Right, we're going to pass it today.' We just started debating this bill today. We're going to wind up very soon because a secret deal's been done behind closed doors, and we're told, 'It's okay; just push this through.' Well, I've got news for you, Labor and the Liberals: a growing number of people are not buying what you're selling. A growing number of people are not prepared to take it on trust anymore that you've got the Australian population's best interests at heart, because for too long we have seen people in this place feather their own nests and protect themselves at the expense of everyone else.

It is not good enough, when it comes to potential jail time, to say, 'We've got to rush through some legislation,' because there are some by-elections or whatever other reason people happen to pull out of a hat at that particular time. Once we start using national security as the basis for taking away people's rights, and once we start being told, 'You can no longer question governments publicly or else you'll face jail time,' we start going to a very bad place. But we go there even quicker when the parliament, which is meant to scrutinise government, is told, 'Here's 50 pages of amendments; just vote it through and we'll rush it through very, very quickly because of some spurious reason that we invented last night.'

I've seen the recommendations that have come out of the review into this bill. Many of them are good and will make a bad bill better. But we as parliamentarians are entitled to look through the amendments that we've been given and work out whether they live up to those recommendations. We've seen things rushed through this place before that have had very, very significant consequences. When things are done quickly, when they're done on the basis of a backroom deal, they get denied the scrutiny that we are entitled to and that this parliament is meant to be here to do.

So I ask Labor and the government to give this bill the time to go through a proper and open inquiry, to now allow these amendments that they've cooked up in a back room together to be looked at by all of the organisations who have very legitimate concerns about this bill. The Greens have legitimate concerns about this bill, including what it does to freedom of speech in this country and what it does to the right to dissent. Amnesty has concerns about this bill. GetUp! has concerns about this bill. Lawyers have concerns about this bill. People say, 'Yes, we understand that we need to take steps to protect our national security,' but they also say, 'It should never come at the expense of trading away the basic principles of individual rights and the rules of law that define us as a society.'

If these new amendments to a very bad bill are as good as you, the government, say then give us the time to go over them and to let everyone comment on them and inquire into them, because these almost 50 pages of amendments are an admission that the bill was bad to begin with and had to be amended to within an inch of its life. Now that we've seen those amendments, give us a chance to scrutinise them, because, if they don't do what you say then you've sold us all out and taken everyone for a ride. So, at the very least, I say to these people who have cooked up these amendments: put them out to public scrutiny so we can work out whether they do what you say and so that we can then work out how to vote on the bills and whether the bills should be voted on differently and separately after you've amended them back and forth.

But if what we're being asked to do is just take it at face value that Labor and the Liberals—the parties that lock up refugees offshore and keep them out of sight and out of mind—have now come up with a wonderful scheme to protect our rights, well, sorry, I don't believe you. I don't believe you, and I bet a bunch of other people don't either. When the starting point is that doing something that affects Australia's national interests and its economic interests can potentially land you in jail, I think most people in this country would want to know that every last 'I' has been dotted and every last 'T' has been crossed before we sign off on a bill like that. Many of them, myself included, probably wouldn't support the bill being passed, but, at the very least, everyone would agree that something that so fundamentally affects people's rights in this country ought to be subject to proper scrutiny.

If you want to know why this place and politicians have an increasingly bad reputation and why people don't trust us, you need look no further than this bill. We are being asked, yet again, to just accept a backroom deal that has been done, to take it at face value and to whack it through the whole parliament in a day or so. That is not good enough. The Attorney-General should explain why such a significant piece of legislation can't go through the usual process of scrutiny by the usual Senate committees and allow other people to come in and have a look at it. He may well have struck a deal with the opposition—he may well have done all of that—but the public haven't yet had a chance to look over this and, worse, parliamentarians haven't either. I think it is outrageous that we are being asked to debate, and to vote in just a few minutes on, amendments that we were given maybe half an hour or so ago—when we're dealing with bills which, if passed, may result in people going to jail.

I think the starting principle should be: you are entitled to dissent against a government; you are entitled to hold a government to account; and you are entitled to do things that the government may even say are against the country's interests—if what you're doing is trying to uphold human rights, if what you're doing is to trying to make sure climate change doesn't devastate us, and if what you're doing is trying to make sure there is some accountability and integrity in parliament. If the test becomes, 'Are you embarrassing the government in the international sphere?' then we're all in strife, because then it means you can't stand up to deals that governments do with each other, and you can't hold governments to account for human rights abuses, for environmental abuses or for abuses of their population. That is the road that we are going down. And so I plead with the opposition and with the government, one last time, to allow the full scrutiny of this bill, all its amendments and the associated bill; to not rush this through the parliament; and to give civil society in Australia, and everyone who is going to have their rights diminished by this legislation, time to fully digest it.

Christian Porter (Pearce, Liberal Party, Attorney-General) Share this | Link to 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.

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour, when the minister will have leave to continue.