Simon Birmingham (SA, Liberal Party, Minister for Education and Training) Share this | Link to this | Hansard source

I thank the Senate. I table the revised explanatory memoranda relating to the bills, and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

NATIONAL SECURITY LEGISLATION AMENDMENT (ESPIONAGE AND FOREIGN INTERFERENCE) BILL 2018

SECOND READING SPEECH

Today I am pleased to introduce to the Senate the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018, which is a comprehensive package of legislative measures to address the threat of espionage and foreign interference in Australia.

Covert interference and espionage by nation states are global realities which have the potential to cause immense harm to our national sovereignty, to the safety of our people, our economic prosperity, and to the very integrity of our democracy. To counter this threat, Australia must have a robust legislative framework to ensure our law enforcement and national security agencies are sufficiently empowered to investigate and disrupt malicious foreign interference.

The reforms in this Bill are comprehensive. They represent the most significant counterintelligence reforms since the 1970's. The measures in this Bill will fundamentally reshape our national security offences to protect Australia's sovereignty and information, and protect the democratic principles and values that underpin our society.

This Bill is the result of a comprehensive review into Australia's espionage and foreign interference legislation, undertaken by the Attorney-General at my request.

Australia's criminal laws are inadequate. Without effective modern laws, and serious criminal penalties, our law enforcement and security agencies are unable to adequately investigate and disrupt this malicious conduct.

The Australian Government can and must do more to deter and counter the pervasive foreign interference activities directed against Australia's interests.

The threat of foreign interference and espionage

Recent events overseas, including cyber operations and disinformation campaigns designed to influence the US and French elections, have brought the insidious threat of covert foreign interference into public view.

Australia is not immune. The Director-General of Security has advised that the scale of foreign interference activities against Australia is unprecedented. Espionage and foreign interference activity against Australian interests is extensive, unrelenting and increasingly sophisticated.

Unlike the routine business of diplomatic influence practised by all nation states, foreign interference is characterised by clandestine and deceptive activities undertaken by foreign actors seeking to cause significant harm to our national interests, or advance their own interests.

To ensure Australia is not a permissive operating environment for malicious foreign actors, and to protect our core interests, the Australian Government must respond by introducing stronger and more modern laws, that are fit for the purpose of countering the threat of foreign interference.

The Bill that I introduce today contains a series of measures designed to do just that. The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 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.

Overview of measures

Espionage

The Bill will include comprehensive new espionage offences that are designed to capture the full range of conduct undertaken to compromise sensitive information and prejudice our national security.

Operational experience has demonstrated that Australia's existing espionage offences are extremely difficult to prosecute. But what is more concerning is that they are too narrow to adequately defend the full scope of Australia's interests.

Foreign actors want access to all types of information and they are using a range of techniques to get it. Today, the communication of unclassified or publicly available information can be equally as damaging to Australia's national security interests as classified information. This is particularly so when it is done with the intention of prejudicing Australia's national security or advantaging the national security of another country. As with many security threats, rapid technological change has continued to provide people who are engaging in espionage with the tools to conceal their activities.

The new espionage offences in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 will apply to all information, and not just information that is security classified or that relates to Australia's security or defence.

The offences will also criminalise a broader spectrum of harmful conduct. This includes traditional espionage activities, as well as a person who is soliciting or procuring espionage, or a person preparing for espionage. This will capture the breadth of conduct that is being undertaken to facilitate espionage activities against Australia.

In addition, the Bill will introduce offences that not only target the person who discloses the information, but also the actions of the foreign spy who receives the information. This will mean that foreign spies who task others to undertake espionage activities against Australian interests can be charged and prosecuted under Australian law.

The Bill will also introduce a new offence criminalising economic espionage, or the theft of trade secrets for a foreign actor. This offence will combat the increasing threat of data theft, business interruption and economic espionage undertaken at the direction of foreign governments.

Foreign interference

Australia's foreign adversaries do not solely rely on espionage to further their interests. Foreign powers are covertly seeking to shape the opinions of members of the Australian public, media organisations and government officials in order to advance their country's own political objectives. Ethnic, religious and expatriate communities in Australia are also the subject of covert interference operations designed to suppress their criticism of foreign governments. In some instances these activities involve threats of harm or intimidation, which is a clear violation of the rights and freedoms we should all enjoy in this country.

There are currently no criminal offences targeting this type of activity in Australia. To address this gap, this Bill will introduce, for the first time, a suite of foreign interference offences into the Criminal Code.

The foreign interference offences capture covert, deceptive or undisclosed conduct that is intended to serve the intelligence purposes of a foreign actor, harm Australia's national security or advance the interests of a foreign actor by either

These new offences will carry maximum penalties of up to 20 years' imprisonment and will be supported by a new preparation offence that will be punishable by a maximum penalty of 10 years' imprisonment.

Introducing specific offences targeting foreign interference will substantially enhance the Australian Government's ability to counter the current threat from foreign interference. It will provide a powerful deterrent to agents of foreign powers or those contemplating conducting, or cooperating in, these activities against Australia.

Secrecy

Protecting Australia from espionage and foreign interference also relies heavily on having strong protections for our sensitive information, especially where disclosure may cause harm to an essential public interest. Accordingly, this Bill will significantly reform Australia's official secrets offences.

The Commonwealth's general secrecy offences are in sections 70 and 79 of the Crimes Act 1914 (Cth) and there have been calls to reform these offences for many years. The Attorney-General's review has found that the general secrecy offences in the Crimes Act are outdated, ineffective and lack appropriately serious penalties.

The Australian Government is committed to openness and transparency in order to facilitate public participation and engagement in policy and service-delivery. At the same time, the appropriate handling of information is integral to the effective functioning of government. The unauthorised disclosure or use of information can prejudice national security and defence, and our relationships with foreign countries. Criminal offences are necessary to deter such disclosures and punish them if they do occur.

New secrecy offences will criminalise the disclosure of information that is inherently harmful (such as security classified information) or disclosures of information that would otherwise cause harm to Australia's interests. There will be separate offences that apply to Commonwealth officers and non-Commonwealth officers. The offences that apply to non-Commonwealth officers will be narrower in scope and attract lower penalties.

The Bill appropriately balances the need for robust protections for sensitive information with the public interest in information sharing and the implied constitutional freedom of political communication.

Importantly, the offences will not apply to journalists who reasonably believe that their conduct was in the public interest. This defence will extend to editorial and support staff.

Sabotage, treason and associated offences

The Bill also modernises a range of other offences associated with espionage and foreign interference.

The Bill introduces comprehensive new sabotage offences into the Criminal Code. The new sabotage offences will criminalise conduct causing damage to a broad range of critical infrastructure where it could prejudice Australia's national security.

The Bill will update and simplify the offences of treason and treachery. These very old offences require modernisation and updates to the language to reflect the modern environment and international law concepts of armed conflict.

Finally, the Bill repeals archaic and outdated offences from Part II of the Crimes Act. These offences will be modernised and moved to the Criminal Code to ensure Commonwealth criminal law appropriately supports the needs of the Australian Defence Force and protects Australia's democracy.

Conclusion

This Bill demonstrates the Government's commitment to addressing the broad spectrum of foreign interference and related criminal activity in Australia.

There is no place for complacency in the current threat environment. We must ensure that our legislation and capabilities remain fit for purpose to protect Australians and our interests. The measures in this Bill strengthen the resilience of our democracy.

I commend this Bill to the Senate.

FOREIGN INFLUENCE TRANSPARENCY SCHEME BILL 2017

SECOND READING SPEECH

I am pleased to present to the Senate the Foreign Influence Transparency Scheme Bill 2017.

The Bill establishes, for the first time in Australia, a scheme introducing registration obligations on those who seek to influence Australia's political or governmental processes on behalf of a foreign principal.

Foreign individuals and institutions are free to promote their interests in Australia's society, but they must do so in a lawful, open and transparent manner.

The Foreign Influence Transparency Schemeestablished by this Bill will require registration by persons undertaking activities on behalf of a foreign principal for the purpose of influencing Australia's political or governmental processes.

The scheme will contain appropriate exemptions, so that it does not constrain freedom of speech or legitimate business activities.

The scheme will establish a publicly accessible register of information about registrants, the activities they are undertaking and the foreign principal on whose behalf they are acting.

The scheme will not prohibit any legitimate relationships, arrangements or activities. Australia highly values our international partnerships across the globe; and we are the most successful multicultural society in the world.

Our democracy holds dear the foundational values of freedom, equality, the rule of law and mutual respect. This Bill supports these values and asks that our foreign partners continue to engage with us, but in an open and transparent manner that will support the integrity of our democratic systems and processes.

This Bill demonstrates this Government's commitment to protecting and securing Australia's sovereign interests. It sends a clear message that Australia is willing to take strong steps to protect the integrity of our democratic system and the fundamental values that underpin it.

I commend the Bill to the Senate.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I rise to speak on the second reading of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017. Today's debate on these bills occurs some six months after they were first introduced into the parliament. At the time, the Prime Minister made an assurance to the House that these bills were both straightforward and carefully structured. Regrettably, that was not so. In fact, the bills we are now debating take into consideration no fewer than 60 changes recommended by the Parliamentary Joint Committee on Intelligence and Security. I say that these bills are immeasurably improved by those changes, which have the support of both opposition and government members.

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

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

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

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

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

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

I turn now to the specific provisions of the bill. I am indebted to my colleague in the other place the shadow Attorney-General, Mr Dreyfus, for both his contributions to the bills and his analysis of them, much of which I now turn to. The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 reforms the Commonwealth's espionage, sabotage, treason, treachery and secrecy laws in the Commonwealth Criminal Code and in the Crimes Act 1914. It introduces offences of foreign interference which criminalise the activities of foreign actors who are seeking to interfere with Australia's democratic and political processes. There are some 38 offences in this bill. Most are expanded or reformed offences that have existed in one form or another in Australia's criminal law since 1914, and there are seven new offences of foreign interference.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

At the outset, I want to state very clearly that the Australian Greens do acknowledge the need to guard against malicious foreign interference in our democratic processes in Australia. We've seen, in other countries, very serious, malicious and, in some cases, successful attempts by foreign powers to covertly influence and interfere in democratic processes. Two examples I'd use there are the Brexit vote in the United Kingdom and the most recent United States presidential election. Both of those processes were the subject of malicious and significant foreign interference. And that foreign interference undoubtedly had at least some influence on the outcomes of those two processes.

But you do not defend democracy by smothering it. You do not defend democracy by cracking down on things like public interest journalism and civil society. And, unfortunately, that is exactly the approach that these two pieces of legislation take. This legislation will have a serious impact on freedom of speech, on freedom of political communication and on the political debate in this country. And I'll go to some advice from experts on that, and place that on the record. But before I do that, I want to say very clearly that this legislation, as it currently stands, should be rejected by the Senate. These bills will criminalise a wide range of peaceful and non-violent protests, and journalists could face lengthy jail terms for legitimate public interest journalism.

We're in this position because the Liberals are committed to clamping down on dissent. And there is example after example to support that assertion. But we're also in this position because the Labor Party are too scared to oppose the Liberals when they crackdown on dissent. And they're too scared, as I said earlier, because they don't want to open up a wafer of difference between them and the government on issues that the government claims are around counterterrorism and national security. And that's a shame. It is a shame, because it's the country that loses out.

We've seen the consequences of this bipartisan policy lock step in other areas, such as, for example, the detention on Manus Island and Nauru of innocent people seeking asylum. I've been to Manus Island many times. I've seen the human suffering that occurs as a consequence of this policy lock step, which, at its heart, is happening because of Labor's political cowardice. Labor is scared of Minister Dutton and his extreme right-wing cronies. They're scared of the access they've got, through radio talkback, to those parts of this country that Labor and the Liberals regard as key marginal seats. And the tragedy here is that Labor's political fear has crippled its ability to fight back. It's crippled Labor's ability to push back against draconian and dangerous legislation, such as what we are debating right now.

I've said it before, and I'm going to say it again, because this stuff needs to be called out: we are shuffling ever more rapidly down the road to a police state, ever more rapidly down the pathway to a surveillance state and ever more rapidly down the road towards authoritarianism, totalitarianism and fascism in this country. And if you think that some of those terms are overreach, I invite senators to read Madeleine Albright's recently published book Fascism: A Warning. I invite senators to read that book. I invite them to look at the warnings by Ms Albright, a former Secretary of State of the United States under Bill Clinton, to understand the points she is making and to heed the warning she is making, in the context of the United States, that there are early warning signs of fascism in that country.

And do you know what, Mr Acting Deputy President Ketter? There are earlier warning signs of fascism in our country too. There's an undermining of the rule of law. There's the deliberate demonisation of an external group of people. There is a disdain for human rights. There's a disdain for freedom of the press. There's an unhealthily close relationship between the old political parties in this country and the big corporates who donate so generously to the re-election coffers of the Labor Party and the coalition, who get, in return, public policy benefits.

I say to Labor, if they are scared of Minister Dutton and his extreme right-wing cronies, leave. Get out of the parliament and make way in this place for people who are prepared to stand up to it. That's what we need to see in this place. I do want to be fair to the Labor Party, and I do accept Senator Wong's comments on face value that the bills are improved by the processes that were undertaken through the Parliamentary Joint Committee on Intelligence and Security. I accept and agree that the bills have been improved. That process rasped off a few of the roughest edges in this legislation. I'm not sure whether Senator Wong's comments were referring to my previous contribution when she said that it is wrong to suggest that the legislation has not been subject to inquiry and that the Australian people have not had the capacity to make submissions and attend hearings. I do accept that the original pieces of legislation did allow for submissions to be made from the Australian public and from civil society in Australia. What has not been the subject of that opportunity, though, are the 280 amendments that we only saw for the first time publicly yesterday afternoon and which, less than 24 hours later, we are debating in this chamber.

Those amendments have not been put through any scrutiny process at all in the context of this parliament, most specifically in the context of the Senate. That's why it was so disappointing that Labor and the coalition colluded yesterday to deny and oppose the Australian Greens' motion on the entire legislation—that is, the original bills that went into the joint standing committee on intelligence and security along with the recommendations and, importantly, the amendments that were drafted as a result of those recommendations that came out of the joint standing committee on intelligence and security. As I've said a few times, there are 280 amendments. We've had less than 24 hours to get across them. There's been no capacity for the Australian public, including civil society, to have their say directly through the processes of this Senate because the old parties got together, stitched up a dirty deal and voted down a Legal and Constitutional Affairs Legislation Committee inquiry. So here we are again: a dirty deal through the closed shop of the PJCIS.

The Greens' position is on the record that the crossbench ought to have a representative on that committee. We simply reject the argument that has been made by Senator Wong today and by members of the coalition in the past that this process should be reserved for what they describe as 'the parties of government'. This Senate is about more than who forms government. To state the bleeding obvious, government flows from a majority in the other place, not in this place. This Senate as a chamber ought to be standing up for the right to have reasonable representation for the crossbench on that committee. It's a deal stitched up behind closed doors, but it's also a dud deal. There are still significant concerns with this legislation that it will criminalise peaceful protests and there are still significant and legitimate concerns that it will criminalise public interest journalism.

These bills mean that people could face 15 years in jail for a peaceful protest such as blocking access to a port where people are trying to load live sheep for export, and people could face 15 years in jail for blockading against the Adani coalmine, supported by the Labor Party and the coalition in this place. Journalists could face up to 25 years imprisonment for reporting on, for example, the Australian government spying on a foreign power, as we know we did with East Timor. They could criminalise a journalist for reporting that the Australian government is engaged in egregious human rights abuses, which we know they are on Manus Island and Nauru. I'll be going to these matters in detail once we get to the committee stages of these bills. As we've seen in the metadata laws stitch-up and as we've seen in the ongoing erosion of civil liberties in the name of national security, where we have witnessed, in the last 20 years, over 200 pieces of legislation passed through parliaments in Australia that erode fundamental rights and freedoms, the agreements between the old political parties are letting down the Australian people and are actually letting down our democracy.

Of course, it's not just the Australian Greens. In fact, we're proud to be in here today representing a large cross-section of civil society and reflecting their concerns about these bills as amended, and we're also proud to be in here with the capacity to place other people's opinions on the record. To start doing that, I want to quote from George Williams, Dean of the University of New South Wales Faculty of Law and constitutional law expert, who spoke about the legislation on 11 June this year. Before I quote him, I'll make it clear that he was making these comments before the amendments were public but with the capacity to understand the recommendations from the committee. Professor Williams said:

Even with the changes of the parliamentary joint committee, the bill will remain incomplete and dangerous. It will contain overbroad and uncertain definitions of critical concepts such as national security. The law also will undermine freedom of speech and of the press.

As in past inquiries, the committee has given low weight to these values. It has failed to put forward amendments to prevent journalists being imprisoned ... The possibility also remains that people who publish information about Australia’s economic and political relations with other countries will face jail under new espionage offences.

So what we've got here is the government and Labor getting up and saying, 'Relax, people. Chill out. We've sorted it all out in the committee. Everything's fine,' and then we've got Professor Williams making it very clear that everything's not fine. One of the foremost experts on constitutional law, counter-terrorism law and national security law in the country is warning this parliament and the Australian people that everything is not fine and it's not okay.

But it's not just Professor Williams. There have been reports of comments from Ms Kate Eastman SC, who is the founder of Australian Lawyers for Human Rights. Ms Eastman informed The Guardian recently of some of her concerns. In the context of the provisions in these bills that criminalise the publication of certain information, the article said:

Eastman told Guardian Australia those concepts "could cover almost anything" that embarrasses Australia in the eyes of another country.

The Guardian says:

Eastman cited examples of reporting that Australia spied on the Indonesian president and his wife, spied on Timor L'Este, criticism of Australia's human rights record connected to its role on the United Nations Human Rights Council, or its treatment of foreign investment and major projects such as the Adani Carmichael coalmine.

So, we've got Ms Eastman raising warnings but the Labor Party, through its shadow Attorney-General, Mr Dreyfus, saying it's not correct that peaceful protest would be somehow criminalised. However, those comments were contradicted by Ms Eastman, according to TheGuardian. We've also got legal advice provided together. Because time will prevent me from quoting that at length in this speech, I will place that on the record later.

I want to conclude my speech by pointing out that while civil society groups—non-government organisations—are bound by the provisions in this law, corporations and politicians are exempt. It's the corporatisation of power in this country and in Western democracies around the world that is at the foundation of so much of the environmental harm that's being done and at the foundation of so many of the human rights abuses that are occurring. It's because parliaments have voted to hand over the power to the big corporates that we're seeing our ecosystem trashed and human lives treated like garbage. It's because parliaments have gutlessly withdrawn their capacity to control corporations and handed over power to the closed doors of the corporate boardrooms. To suggest that for-profit businesses that might be involved in, for example, poker machines—let alone organisations like churches or the Vatican—are less of a risk to Australian politics than non-government organisations and civil society groups is either woefully naive or wilfully negligent. These corporates have more influence, more resources, more power and closer connection to politics and politicians than do non-government organisations.

Now, very quickly, I need to be clear about the amendments. We have not had the opportunity to adequately scrutinise the 280 amendments to these two pieces of legislation, even to satisfy ourselves that they adequately reflect the recommendations from the Joint Standing Committee on Intelligence and Security. There is simply no way we have had the capacity to do that. That's why we voted against the government exempting these bills from the cut-off order. That cut-off order is specifically designed to ensure that this Senate has a reasonable opportunity to scrutinise legislation.

I accept that the Labor Party has been involved in a process that's made improvements, but I do not accept that those improvements have taken these bills to a place where this Senate ought support them. This Senate should reject these bills because, if passed, they will have a chilling effect on democracy in our country. As I said at the start, you don't protect democracy by smothering it. Public speech and public interest journalism are at the heart of a thriving, vibrant democracy and, if these bills pass, Australia's democracy will be less thriving and less vibrant than it needs to be. I move the first of two amendments circulated in my name:

At the end of the motion, add:

", and the bill be referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 14 August 2018."

Jenny McAllister (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Australia is an intellectually, politically and commercially open society—that is a strength, not a weakness. Over our history, our openness to people and the ideas that they bring have underpinned our economic, social and political successes as a nation. These characteristics are broadly reflected, recognised and protected in our national policy settings, including the settings for trade and economic development; elections; judicial, governmental and parliamentary decision making; communications; research and education; migration and settlement.

Openness should not cease to be a defining characteristic of Australian society. It's worth observing that the vast bulk of international influence on our open society is benign and indeed beneficial. This open characteristic is something, however, that depends on Australians continuing to have faith in the institutions that protect our democratic and open system. We need to be confident that they are robust and sufficiently resistant to malicious actors. There is a balance to be struck here. We need laws to protect our societies against those who would seek to use our very openness against us, but, by the same token, those laws cannot be allowed to stifle the exchange of ideas, people and commerce that have been so crucial to our success as a nation. We've always had laws on our books that seek to strike this balance. Offences like espionage and sabotage are not new. They are, in fact, very old. One of the key purposes of this bill is to update and refine these offences to make sure they operate as they are intended and as we need them to operate.

The bills also introduce new offences that seek to criminalise the activities of foreign actors who seek to interfere covertly with Australia's democratic processes. The bills also introduce measures that will shed light on the extent to which foreign actors influence Australian political debate. The parliament has been advised that foreign actors are actively seeking to covertly influence Australian politics. These warnings arise as part of broader advice in relation to the level and nature of espionage. We accept those warnings.

The notion of foreign influence introduces a relatively new concept into contemporary Australian political discussion. In recent times Australians have not been concerned with foreign influence per se. Specific practices or ideas associated with foreign cultures or nations have been rejected as inconsistent with our values and interests in the ordinary course of democratic debate. At other times, of course, practices and ideas associated with foreign cultures or nations have been enthusiastically adopted. We've generally judged that that has been managed in the framework of our existing institutions, but it is necessary for our laws to keep pace with the changing nature of threats we face as an open and democratic society. As has been seen in some examples overseas, doubts about the authenticity and genuineness of participants in public debate can achieve the very outcome we would seek to avoid: a closed and suspicious society. This is the basis on which Labor has sought to engage with the security challenges facing our society today, and, indeed, to engage with the bills that are before this chamber. Throughout this process, we have acted to affirm and protect the role of the media and of civil society. Journalists, charities, advocacy groups and unions are not threats. In fact, they play an important part in preserving and promoting Australia's open and democratic tradition. Our laws should reflect this. Unfortunately, when these bills were first introduced into the parliament, they did not.

The Parliamentary Joint Committee on Intelligence and Security has conducted detailed inquiries into both of these bills. In doing so, we've benefitted enormously from the submissions made by civil society. They include organisations like Law Council of Australia, Australian Lawyers For Human Rights, Universities Australia, Australian Catholic Bishops Conference, Joint Media Organisations, Community Council for Australia, Australian Major Performing Arts Group, Australian Conservation Foundation, The Pew Charitable Trusts, Australian Council for International Development, Australian Council of Trade Unions and Multicultural Communities Council of NSW. That is just a sample. There are too many who submitted to name all of them. We received hundreds of submissions and we took public evidence through the first six months of this year. I am so grateful for all of the contributions that came from civil society and, indeed, from Australian businesses.

The submissions received by the committee made it clear that both of these bills were deeply flawed on first presentation. They contained numerous drafting errors, significant overreach and inadequate safeguards. There was no recognition of the unique and important role played by media in civil society. In response, the committee has made more than 100 recommendations for amendments across the two bills. The government have accepted all of these recommendations, and I thank them for their consideration of the committee's recommendations.

The amendments proposed to the espionage and foreign interference bill, particularly to schedule 2 of the bill, were inquired into the by the PJCIS. Submitters to the PJCIS made supplementary submissions on the March amendments, and I would say to other senators that they may wish to examine the evidence provided both on the initial bills and also on the evidence provided to the committee on the amendments. On the further amendments that are before us today, the amended bill responds to the recommendations of the committee and we are satisfied that these amendments implement the PJCIS recommendations.

It is fair to say that the bills presently before this chamber are not the same as the bills that were first introduced. They do a far better job at protecting our democratic institutions without burdening them. I want to briefly address some of the key improvements that have been made to the bill as a result of the committee's recommendations and explain how they safeguard journalists, advocacy groups, NGOs, unions and, ultimately, and the openness of our society.

In relation to journalists, I want to make a few remarks, because they have been the subject of some debate already this morning. The espionage and foreign interference bill includes updated secrecy provisions to protect Australia against espionage efforts by foreign government principles. These include offences relating to theft of trade secrets. I recognise the potential tension between these offences and the proper role of the media. There is a quote ascribed to almost a dozen different 20th century media proprietors and journalists—who knows who actually said it—that 'News is something that someone wants to suppress.' Through the PJCIS process, Labor has ensured that there are proper exemptions for journalists and others who are legitimately engaged in the process of reporting the news and commenting on current events, and I thank all members of the committee for their interest in these issues.

In relation to advocacy groups, I do observe that this government has spent the last few years trying to curtail the ability of charities to raise their voice and make a difference—and I've spoken about it in this chamber before. Sometimes it seems as though the government thinks that the only role for charities should be to provide services that the government can't be bothered to provide. If people have that view they should join the Liberal Party and raise it at their local branch. This view of charities and NGOs is wrong and dangerous. Civil society plays a unique and important role in public debate, and we need to distinguish charities from other advocates in public debate. It's true that there's a role for everybody in public debate—industry associations, peak bodies, business—and it is important that we hear the voices of those who may be affected by a particular decision or policy. But their role usually is to advance their members' interests or their own interests. There should be a place in our public discourse for people who aren't motivated by self-interest but instead by their vision of what we can and should be. There should be a role for civil society.

Through the PJCIS process, we have sought to protect the role of civil society. Charities are already subject to significant regulation around their funding and activities. Given this, charities will be exempted from having to register under the Foreign Influence and Transparency Scheme where they are making routine representations in accordance with their respective purposes. The charities I have spoken to have been overwhelmingly positive about this change. This change includes not only advocacy groups but also arts and cultural groups that may have been caught up in the scheme as previously drafted.

I finally want to speak about peaceful protest. The espionage and foreign interference bill includes offences regarding sabotage. We have always had sabotage offences on our books, and this bill clarifies their operation. It is simply not correct that these offences criminalise peaceful protest. These provisions are simply not capable of capturing the ordinary activities of citizens involved in ordinary acts of process. The crucial point is that these offences require intent. A person needs to have the intent or be reckless as to whether Australia's national security will be prejudiced. A protest at a coal port involves people who are protesting to stop coal exports. That is their intent. They do not intend to prejudice Australia's national security. Whether you agree with the protest methods or not, the protesters do not possess the requisite mental intent, the requisite mental element, to make out these offences.

There have been concerns raised in some quarters that the espionage offences are capable of criminalising the disclosure of alleged breaches of law by Australia or another country. The example sometimes given is an NGO reporting to a UN body that Australia has breached its international law and human rights obligations. Again, these offences require a mental element. They need to cause harm or damage to Australia, not merely embarrassment. These concerns are not justified.

Labor and I are proud to support the exemption for unions from the operation of the register. The trade union movement has always operated internationally, and it is appropriate that their international relationships are legitimised and accepted. I have run through a series of issues. If Greens senators have a different view about the operation of the legislation, they need to particularise them. Greens senators ought to describe exactly how the legislation catches the circumstances that they assert are caught. It is not enough to repeat over and over again that certain kinds of activities will be caught when a reading of the legislation suggests that they won't be.

I will conclude by saying that we are not served at all by those who resort to hyperbole. Charges of totalitarianism or fascism only serve to weaken the force of those words.. We should reserve the use of those words to condemn situations that truly deserve it. These laws, and indeed all our laws, operate in the context of independent courts, freedom of expression and open parliamentary democracy. It is true that, if you take away those three things, any law can be used as a tool of oppression. But those circumstances are not our circumstances, and it is precisely why we have engaged with these policy questions. We seek to protect the integrity of our democratic institutions and the openness of our society.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

The National Security Legislation Amendment (Espionage and Foreign Interference) Bill and the Foreign Influence Transparency Scheme Bill are part of what is effectively a Trojan horse to clamp down on civil society here in Australia. It is disgraceful that we have a supposedly liberal government that is prepared to introduce these laws. Worse still, we have these laws being passed with the enthusiastic support of the opposition. The fact that the Labor Party is facilitating these bills speaks volumes about their lack of courage to take on a government that is prepared to weaken our democracy. Now more than ever we need to stand up in defence of our democratic institutions. At a time when many regimes across the world are retreating into nationalism and authoritarianism, it is critical that here in Australia we protect and nurture our democratic institutions. If there is one lesson we have learnt from history it is that, across the world, over many years, movements like the civil rights movement, the struggle for women's rights and the peace movement were successful because they were built from the ground up by people coming together and exerting pressure on governments. What they demonstrate is that if we are to achieve progressive change in this country, and indeed right around the world, we need to support our democratic institutions and support those movements that ensure we put maximum pressure on governments, who will always retreat to the comfortable area of concentrating power in their hands.

The Turnbull government, cheered on by the ALP, seems determined to make sure we have a weak civil society in this country, one that is increasingly hamstrung and powerless. We expect that from conservative governments. This is part of the DNA of conservative governments. If we look at the Liberal National Party attacks on civil society, which began many, many years ago—well before it foreshadowed it's so-called foreign influence package—we witnessed the relentless criticism from the government on the independent Human Rights Commission and it's then commissioner, Gillian Triggs, because they didn't like what she had to say. We saw attack after attack, spurred on by a compliant corporate media, against somebody who was prepared to speak truth to power.

The Liberals established the Registered Organisations Commission with the express purpose of attacking unions. They established the royal commission into unions and, of course, have precious little to show for it. We saw the Joint Standing Committee on Electoral Matters launch its inquiry into the last federal election. Of course, it was a platform for the likes of Senator Abetz and his cronies to criticise any organisation that might disagree with his and the Liberal Party's view. Right now, the Australian Electoral Commission is still investigating whether GetUp! is an associated entity that is a front group of not one political party but two very different political parties—so fathom that. We have Senator Abetz clamping down on civil society institutions, claiming that they're front groups not just for the Labor Party but also for the Greens.

We had the shameful, politically motivated raid on the Australian Workers' Union, all to determine whether the union gave donations according to union rules more than a decade ago. It was carefully orchestrated, with the media arriving before the raid occurred. The list goes on and on. There is clamping down on whistleblowers who seek to call out what is happening in detention centres offshore. It's part of a worrying pattern of behaviour, where governments that are in trouble use the apparatus of the state to silence dissent. What we're seeing now is part of a sustained attack on our democracy. And now we've got the government introducing this package of legislation that will create laws to muzzle civil society.

Of course, as I said, we expect this from Liberal governments. It's part of their DNA. There's nothing 'liberal' about this government; this is a government that has shown itself to be increasingly authoritarian. But what is most disappointing here is that that ALP has simply crumbled. You've got the Turnbull government here seeking to silence dissent and seeking to clamp down on civil society, and all with the complicity of the Australian Labor Party. And, of course, that's why both parties are rushing this legislation through the parliament. Let's remember that this is literally two days after a secretive committee on intelligence and security, one in which the Greens and other crossbench members are not participants, released more a more-than-300-page report. As a consequence of that, we saw hundreds of amendments made in the House, and we're now being asked to consider the impacts of this legislation. We know what's going to come next. It's only a matter of time before we see an hours motion, and we're going to be forced to pass this legislation at a minute to midnight, under the cloak of darkness, so that we don't fully interrogate and understand laws that are being passed in this parliament. It's no way to run a country, and that's why my colleague Senator McKim has repeatedly tried to refer this bill to another public and transparent committee for consideration.

There is no excuse for the Labor Party to deny us the opportunity to interrogate this legislation through a thorough committee process. And it is shameful that it is with the support of the Labor Party that we have seen any committee process that enables us to fully understand the extent of these laws being stopped as a result of their support of the LNP. The ALP could have taken a principled stance here. They could have taken a stance: they could have stood up to the government and said, 'We understand the need to ensure that we minimise foreign interference in Australian matters. However, these laws are far reaching.' They are extensive. In the words of many experts and analysts, 'They do take us closer to those authoritarian regimes we seek to defend ourselves against.' Because these laws have a whisper of national security about them, the Labor Party simply doesn't have the ticker to do it.

When we have national security being used in this parliament, it is almost always used as an excuse for a bipartisan consensus to ram through laws without any scrutiny. The effect is that the ALP and the government have come together to make Australian society less free and less democratic. Let's look at that legal advice we heard from our previous speaker. In the last few days we've seen legal advice that tells us the espionage bill could criminalise protests and the communication of opinions harmful to the Australian government. Somebody who is peacefully blockading entry to a coalmine could be charged with an offence under the espionage bill and could face up to 20 years in jail.

According to the founder of Australian Lawyers for Human Rights, Kate Eastman, criticism of Australia's human rights records or its treatment of foreign investments in projects such as the Adani coalmine could fall foul of these laws. Amnesty International is spot on when they say, 'These draconian laws proposed will make Australia more like the authoritarian countries this bill is supposed to protect us from.' That's not hyperbole. That's a statement of fact. It's a statement of fact from a respected international institution whose only mandate is to uphold and protect human rights across the world.

We don't for a second deny the fact that the Australian government should do what it can to counter undue foreign influence in Australia. We don't want foreign governments or foreign entities to influence what we do in this country. But if we're serious about that, if we are serious about restricting the impact of foreign corporations or foreign governments on Australian political activity, we know what needs to be done. The best way to tackle that problem is to dry up the supply of money. The only way to do that is to implement serious reforms that cap political donations and increase transparency. If you don't want foreign influence in Australia, stop the flow of money. Make it illegal to donate to Australian political parties. Make it illegal for foreign corporations and foreign governments to make massive donations to the Liberal Party and the National Party and the Labor Party. Neither side of politics wants that, because they benefit from the rivers of gold that flow from multinational corporations and entities associated with foreign governments.

We've been campaigning on donation reform for years. The recent Select Committee into the Political Influence of Donations, a committee that I chaired, has shown that cash is still king in Australian politics. If we want to end foreign influence let's put an end to the cosy relationship between big business, foreign multinationals and our political parties. Let's cap donations and let's cap spending. As things stand, dark money can flow into old political parties' war chests without any scrutiny as to what that money is buying. Look at the Minerals Council, for example. The Minerals Council of Australia is 86 per cent foreign owned. It's spent half a billion dollars of tax deductible donations, over the past decades, lobbying Australian governments. Why does it do it? It does it to influence what is going on in this place. It doesn't do it because it's a philanthropic organisation that wants to support democracy. It does it because it wants to exert influence over government policy.

We can have all the legislation in the world that seeks to curb foreign influence in Australia, but until we deal with the cancer that is the millions of dollars that flow into the coffers of both sides of politics, from huge multinational corporations, we will go nowhere near enough to curbing the influence that this bill seeks to do. If this government and the ALP were truly serious about countering foreign influence in this country, the first thing they would be doing would be legislating to cap political donations, not rushing through laws that criminalise dissent.

These are laws that clamp down on civil society. These are laws that may criminalise political protest in this country. These are laws that, rather than protecting us from authoritarian regimes, take us closer to those regimes we say we are seeking to protect ourselves from. These bills are a disgrace. We expect nothing more from the Liberal and National parties, but it is a sad indictment on the Labor Party that it is willing to support them.

Kimberley Kitching (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I welcome this chance to speak on these important bills, the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017. They are this parliament's bipartisan response to the threat of foreign states and hostile non-state actors exerting improper influence over our democratic system of government, our political landscape, our alliances and our decision-making process.

A very important part of the process of achieving consensus on security legislation has been the work of the Parliamentary Joint Committee on Intelligence and Security. This committee works on a consensus basis and enjoys the confidence of both government and opposition members. It's for that reason that I think the members of the Senate should read and take seriously the committee's report on the espionage bill. I would like to commend all members of that committee, but I would particularly like to commend my colleagues in the Senate, Senator Wong and Senator McAllister, and Senator Fawcett, and my friends in the other place: Mr Andrew Hastie, the chair of the committee, and the deputy chair, Mr Anthony Byrne.

The gist of the committee's report is summed up in the following blunt statement:

… 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.

The committee has therefore recommended to the parliament that:

… there is a pressing need to strengthen and modernise current espionage and foreign interference laws.

I accept that the provisions of the first version of the bill were drafted in good faith. I don't agree with the Greens political party that the parties that form government have some sinister authoritarian motive in designing that bill. The bill has been through an appropriate and extensive process in the intelligence and security committee of this parliament. And of course, earlier this month, the committee released a 400-page report. It is a public document. Neither the government nor the opposition has sought to keep this secret, as the Greens political party speakers have suggested in their contributions this morning.

The bills now have a more nuanced approach. They take into account some of the principles that make our Judaeo-Christian Western liberal democracy the precious system that it is. In the first version of the bills, there would have been an unacceptable impact on the openness of our democratic society. For example, they would have perhaps threatened journalists with severe criminal penalties for reporting on matters that might have embarrassed the government. They would have imposed unjustified burdens on charities. They would have perhaps required any Australian academic engaged in joint work with an overseas university to register as a foreign agent. The bills before us currently, though, and which we are debating, do have a more nuanced approach.

But our system is precious. It is a way of life that allows people to breathe deeply in the air of freedom and to live their life with a liberty that also allows for the honouring of a social contract. There is an honesty in this way of life. For security legislation to be effective in achieving its objectives, it must command broad support in the Australian community. To gain that support, it must meet three criteria: it must be clear and unambiguous in its terms, it must be proportional and appropriately targeted to the threat, and it must be enforceable. This bill complies with these criteria.

The Greens political party would have you believe that some of the provisions of this bill are somewhat alarming. But we have seen in the past that every time security legislation is brought to this parliament, a chorus of voices is raised proclaiming that the new laws represent the end of freedom and democracy and the dawn of a new age of authoritarianism. These fears always turn out to be grossly exaggerated. Despite 15 years of new security legislation, Australian democracy remains as robust as ever. Our media remains as free as ever. Our judiciary remains ever-vigilant and ever-ready to strike down legislation that it deems has infringed on our freedoms. Civil society organisations remain as free to investigate, to criticise and to protest as ever they were. Nothing in this bill, as it has been amended, will change any of that. That is why I find it regrettable that some on the crossbench always make these wild accusations of sinister government conspiracies. They need to learn from the story of the boy who cried wolf. If every piece of security legislation, no matter how carefully drafted, is denounced as the end of freedom as we know it in this country, we run the risk that when real threats—real threats, as described by our security agencies—to our freedom appear then warnings will not be heeded.

The national security bills are necessary because is it absolutely undesirable to have foreign interference in our political system. We must also protect our civil society—for example, our media and our universities—from being penetrated in a more insidious manner. This modern form of soft power is much harder to combat than the crude efforts of totalitarian societies of the last century. These laws are necessary, and I trust that the parties that can form government will use them wisely. But trust is not enough. As Ronald Reagan used to say, 'Trust, but verify.' It is up to us in this parliament, as well as up to the media, the courts and civil society, to verify that these powers are not abused. I think the history of the past 20 years shows that we in Australia are up to the task of holding our governments to account for the way they use the powers this parliament gives them. It is up to all of us in this parliament to be attentive to that responsibility.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Last December, the Turnbull government introduced the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017. Both bills have been the subject of six months' scrutiny by the PJCIS, which has produced two reports—the first tabled on 7 June and the second tabled on Monday this week. Together, these two reports total 754 pages. The first report contains no less than 60 recommendations. The second report contains 52 recommendations. There's a lot here for the Senate to digest.

These bills go to the core of our national sovereignty, the ability of our democratic institutions to function free of covert foreign interference. They also have very significant implications for key institutions and processes within our democratic system: implications for the parliament and political processes more broadly and, more specifically, implications for the role and influence of our security and police agencies, and for the operations of the free press. Centre Alliance agrees with the necessity for this legislation; however, at the same time the Senate should be alert to all of the implications. We should be prepared to look at other legislative change that will strengthen our democratic institutions, ensure our security agencies are fully accountable and politically impartial, and ensure that government is, to the maximum extent possible, open to scrutiny by the media and its citizens.

The threat of foreign espionage and covert foreign interference is very real. That is certainly the advice of our security agencies. In evidence to the PJCIS, ASIO advised that espionage and foreign interference activities against Australian interests is 'occurring at an unprecedented scale'. The threat from foreign espionage and foreign interference is described as 'extensive, unrelenting and increasingly sophisticated'. More specifically, ASIO told the committee:

This isn't something that we think might happen or could happen; it is happening now against Australian interests in Australia and ... abroad.

Foreign actors from a range of countries seek access to privileged and/or classified information on Australia's alliances and partnerships, our position on international diplomatic, economic and military issues, our energy and mineral resources and our innovations in science and technology.

Of course, it can be argued that espionage and, indeed, sabotage are nothing new. After all, spying has often been described as the second-oldest profession. But ASIO rightly points out that the nature and scale of the threat has evolved and grown significantly. Foreign intelligence services are increasingly using a wider range of techniques to obtain intelligence and clandestinely interfere with Australia's internal affairs.

It isn't only the intelligence communities that have highlighted these threats. Investigative journalists—notably, Fairfax and the ABC—have played an important part in highlighting issues relating to foreign interference, espionage and, indeed, foreign influence. Although the government is understandably reluctant to talk publicly about the specific espionage and interference threat posed by China, that is what this legislation is about. In the decades to come, Australia is likely to face even bigger challenges in managing our relations with China, our major trading partner, and that country is likely to exert perhaps significantly more influence in our region. In the years and decades to come, China's reach and influence in our region, and inside Australia itself, will likely be the single most important issue in Australian national security.

The challenge in this legislation is how, in an environment in which national security threats and pressures are likely to increase, do we strike the right balance between measures to protect our national sovereignty whilst ensuring the fundamental freedoms and key institutions that we have are not compromised. On this, I want to focus attention on two aspects: the espionage and official secrecy provisions of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill and the broad question of foreign interference that is addressed through the bill and the Foreign Influence Transparency Scheme Bill.

The new official secrecy provisions in schedule 2 of the espionage and foreign interference bill are not completely new. Rather, they are the latest and most sophisticated proposal to update Australia's counter-espionage legislation and replace the very dated official secrecy provisions of sections 70 and 79 of the Crimes Act. As originally proposed, the scope of the new official secrecy provisions was unacceptably broad, especially as it related to what has been referred to as 'secondary disclosures'—that is, the handling and publication of information by third parties, including journalists and media organisations. The practical effect of the bill would be to make it a criminal offence for unauthorised persons—including journalists and media organisations—to obtain, retain, communicate or publish any government information disclosed without official authorisation that falls into the category of information that would 'cause harm to Australia's interest' or is 'inherently harmful information'. The bill provided a defence to a prosecution on the grounds that the person's conduct related to the communication of information in the public interest and in the person's capacity as a journalist engaged in 'fair and accurate reporting'. The term 'fair and accurate reporting', however, was vague and subjective. The bill's explanatory memorandum makes it clear that the government's expectation has been—and presumably still is—that media organisations and journalists would consult with the government as they determined what to do with leaked information. This is presented as a necessary part of what would be required to determine where the public interest rests and to make a defence. A clear presumption is that a failure to consult and seek advice would weigh against reliance on the public interest or fair reporting defence.

As originally proposed, the bill would have a severe chilling effect on the media reporting of an unauthorised release of information relating to national security, defence, international affairs, law enforcement, public safety and, indeed, much wider aspects of public policy. Media organisations and journalists would have to weigh the likelihood of prosecution in any decision to publish leaked information. Given the prospects of expensive litigation and possible criminal penalties if a public interest defence was unsuccessful, many media organisations may be inclined towards caution on commercial and legal grounds.

Not surprisingly, these issues were a major focus of the PJCIS hearings, with media organisations making extensive submissions on the adverse impact the bill would have on freedom of the press. The outcome has been a range of recommendations and amendments that reduce and focus the scope of secrecy offences—focusing on the disclosure of and dealing in explicitly security classified information—protect people making disclosures to oversight agencies such as IGIS, the Inspector-General of Intelligence and Security, and the Ombudsman, and afford journalists and media organisations a greater measure of protection.

Most significantly, the PJCIS has recommended the adoption of the proposed government amendments to the defence for journalists, including 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 recommended that the government consider further refinements to the proposed defence in order to make it explicit that editorial support staff are covered by the defence, including legal advisers and administrative staff, and to include a defence for dealing with information for the purpose of obtaining legal advice.

These proposed changes go some way towards reducing the concern that the original version of the bill would have a chilling effect on journalism. That said, the parliament shouldn't gloss over the threshold that will be crossed. The bill, even as amended, will still make secondary disclosures of classified information an offence. Journalists and media organisations will have to very carefully weigh decisions about publishing leaked classified information, especially relating to national security or international relations. Just what is in the public interest will often be hotly contested by the government of the day, and the risk of expensive litigation—however small that might be—cannot be lightly dismissed. In that context, it is regrettable that the PJCIS did not examine the question of official secrecy and media and public access to government information from a wider perspective.

It is vital that, whenever the parliament seeks to clamp down on unauthorised disclosures of government information, we should also consider measures that would make government more transparent and assist the role of media and citizens in accessing information in accordance with law. To that end, Centre Alliance will be moving a set of amendments to the bill that are designed to improve the effectiveness of Australia's freedom of information laws to allow for more timely and efficient access to information. Whilst I acknowledge—noting that there has been a deal between Labor and Liberal—that these amendments are unlikely to gain support from the majority of senators, they are amendments that I will be pursuing.

The other major issue I'd like to highlight is the new foreign interference registration scheme to be established by the Foreign Influence Transparency Scheme Bill 2017. The explanatory memorandum notes that current Commonwealth criminal law does not contain any 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. The Attorney-General's Department submitted:

The lack of criminal offences for this type of conduct has resulted in a permissive operating environment for malicious foreign actors, which Australian agencies are unable to effectively disrupt and mitigate.

The bill seeks to remedy this deficiency by introducing foreign interference offences which will criminalise certain conduct that seeks to influence the exercise of Australian democratic or political rights. Once again, these measures will be substantially improved by implementation of the PJCIS recommendations and associated amendments.

I note the PJCIS recommendation that legislation be amended to clarify that it does not affect the operation of existing provisions in the Australian Security Intelligence Organisation Act unless explicitly stated. I also note the important submissions made by the clerks of the Senate and the House of Representatives to the PJCIS concerning the Foreign Influence Transparency Scheme and the joint committee's subsequent recommendation in support of the government's proposed amendment to clarify the interaction of the bill with parliamentary privilege.

The committee recommends that the bill be amended to provide that the Foreign Influence Transparency Scheme does not apply to members of the House of Representatives or senators. The committee further recommends that the House of Representatives and Senate develop a parallel parliamentary Foreign Influence Transparency Scheme, imposing on members and senators similar transparency obligations to those in the bills but appropriately adapted for the parliamentary environment. The committee notes:

In developing that parallel scheme, the Houses should consider all conduct undertaken by Members and Senators in the course of their duties as parliamentarians, including conduct not directly related to proceedings in the Parliament.

It goes on to say:

The scheme should be administered independently within the Parliament, and include an obligation to report registrable activities undertaken on behalf of a foreign principal, or registrable arrangements with a foreign principal, appropriately adapted for the parliamentary environment, a power for the administrator to obtain information and documents, and appropriate sanctions for non-compliance.

I think it's very important that the government address these recommendations in detail before debate on this bill concludes.

That said, we should recognise that this bill will inevitably result in greater scrutiny of political activity not only by ASIO but also by the Australian Federal Police. This is inevitable by virtue of the offences that are being created, criminal offences that relate to political activities on behalf of a foreign principal. With this legislation, the AFP will investigate political activities if they reasonably suspect that those activities involve interaction with a foreign principal that is an offence under these bills. ASIO and the AFP may well be drawn into monitoring and investigating aspects of Australian political life—not on radical, violent fringes but on activities of people involved in mainstream political activities. In this context, this parliament—and, indeed, the Australian people—have an absolute assurance that those agencies are operating at every level with the highest standard of professionalism, objectivity and freedom from political bias.

As a consequence, the Centre Alliance will move, for the second time, amendments to extend the scope of scrutiny by the PJCIS to cover operational activities of the Australian intelligence agencies. I also foreshadow that I will be moving a second reading amendment to refer the amendment on sheet 8472 for consideration by the PJCIS. I note that when this amendment was last debated, on 9 May, Senator McAllister said the following:

We regret that because of their form—namely, an amendment to the current bill—Senator Patrick's proposals were not able to be fully considered and were not considered in the public hearings of the PJCIS.

I accept that criticism, and this amendment seeks to remedy it. She went on to say:

There has not been scope or time for proper consultation, nor for consideration of the operation and consequences of Senator Patrick's proposals. Given that, we are not able to support the amendment.

I hope that this time around Labor will support the amendment or, at least, have it referred to the PJCIS so that it can be considered properly. It's important to make sure that as we give our intelligence services the powers we think they need we also put in place the correct and proper checks to complement those extended powers. I agree that the PJCIS should have the opportunity to examine my amendment, given it directly relates to how they conduct their committee work. To that end, I look forward to Labor's support for my second reading amendment.

This is a long-overdue reform that is all the more important in the context of the legislation we now have before the Senate. An extension of bipartisan parliamentary oversight is essential if ASIO and the AFP are to take on responsibilities that come with this legislation. I am very much a proponent of our intelligence services, and I have a strong belief that having the comfort of parliamentary oversight of those intelligence agencies will in fact make their job easier. In the US, the UK and Canada, some of our Five Eyes partners, they absolutely accept that parliamentary oversight of intelligence operations is a necessity and is helpful.

I would like to close my remarks with reference to an observation made by the former head of the British Secret Intelligence Service, Sir Richard Dearlove. Some years ago he observed that British intelligence was 'the last assurance of our national sovereignty'. Australia's intelligence community—the dedicated men and women of ASIO, the AFP, ASIS and the other agencies—are unquestionably committed to the defence of our sovereignty and democracy. But we must never forget the old question: who guards the guardians? At the end of the day, the last assurance of our national sovereignty and, indeed, our democracy is not the security agencies but this institution, the national parliament. We are where the buck stops, and the parliament should take up that responsibility by extending its oversight role in relation to our intelligence and security agencies.

Malarndirri McCarthy (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Foreign Influence Transparency Scheme Bill 2017. Labor believes in transparency. We have seen in the 2016 US presidential elections, in Brexit and in the French presidential election attempts by foreign powers to interfere with and influence the democratic processes in those countries. Labor is determined to shine a light on any covert or deceptive foreign influence that has the potential to corrode the governmental and political processes of our nation. We take the safeguarding of our free and fair elections very, very seriously.

It was with these fundamental beliefs in mind that Labor approached the PJCIS inquiry into the Foreign Influence Transparency Scheme Bill. We welcome the fact that the government has recognised the need for significant fixes to its earlier bill, and there has certainly been a significant narrowing of the cohort of people in organisations that would be caught by this bill. In particular, Labor has worked constructively to ensure that charities, arts organisations, unions and religious organisations will generally be exempt from the operation of the scheme. The work of Australian charities here and abroad has had a tremendous impact on the lives of millions of people. Labor has always wanted this to work to continue without burdening our charities with unnecessary red tape. Labor also welcomes amendments that would create an exemption for arts organisations. Fostering cross-cultural artistic exchange is an essential part of maintaining and enhancing a vibrant multicultural Australia.

This bill in its original form was far too broad in its definitions. For example, the original provisions could have gone so far as to impact the work of Indigenous rangers. Indigenous rangers' work in Indigenous protected areas is an incredible public benefit to Australia. But it is more than that. It has profoundly significant impacts on the lives of First Nations people. We talk in this House about closing the gap. We talk in this House about the importance of employment opportunities. Indigenous rangers across the coastlines of our country are doing tremendous work. They need far more support and certainly not red tape. They are tackling feral animal impacts and invasive weeds. They are ensuring fire is well managed. They are protecting cultural sites and managing tourism impacts. They are leaders in their communities under the guidance of their elders.

In my own home community of Borroloola in the Gulf of Carpentaria, we have four language groups: the Yanyuwa, the Garrwa, the Marra and the Gudanji peoples. We have the li-Anthawirriyarra Rangers, whose name means 'our spiritual origin comes from the sea country'. And it is the sea country that the li-Anthawirriyarra Rangers look after. They protect the coastlines, they monitor the dugongs and sea turtles and they look at the harvesting that takes place. And they keep an eye out for any illegal activity. They certainly do Australia proud and they certainly do our communities proud.

Labor supports this critical work, not only to create jobs where they are desperately needed but to ensure that our beautiful country retains its natural and cultural heritage. We will seek change in any legislation that unreasonably inhibits or limits this kind of work, or, indeed, those advocating for it, whether they be Indigenous rangers and traditional owners themselves—many of whom I meet with regularly across the Northern Territory and certainly here in Canberra—whether they be the non-profit charities they work with, or, indeed, their own charities which they are forming to take control of their own circumstances. The recent FITS legislation, as proposed, significantly threatens the ability of Indigenous rangers and their partners to advocate freely for positive policy in Australia with regard to remote Indigenous jobs and for a healthy environment and cultural heritage.

Indigenous rangers are also incredibly significant because of the work of our women rangers—our strong women rangers—who have an opportunity to stand on par as carers for country. That's just one of the reasons my colleagues and I, particularly Mark Dreyfus, Andrew Leigh and Senator McAllister, were adamant that the bill had to go through the committee process. I'm pleased to say that our work was accepted by the committee members opposite, including Senator Abetz, who I understand presented detailed questioning to ensure that the feral camel issue was not somehow being used for ill intent by other countries through the rangers' work. This is quite a unique concern, but, nonetheless, I do congratulate the senator for his diligence and look forward to his further insights on the feral camel issue. I know that many rangers, especially in our desert regions across Central Australia—along the Arrarnta and the Anangu country—are working to address this.

But, more seriously, we must protect our democracy and we must protect our environment and culture. Part of that means being able to speak up freely—every Australian—for those things we do hold dear. Our rangers and Indigenous Protected Areas are doing wonderful work. Our country needs people; that's an important theme of First Nations rangers, particularly the many First Australians who have always cared for it. I will always fight for the expansion and security of that work in this place, and I hope that every senator here will see why and will stand strong in that too. We have a huge nation and we have much to care for. Let's work to extend and secure these jobs and that work more broadly, not threaten them inadvertently or otherwise through legislation that is badly drafted, rushed and ill considered.

While we're on the subject of foreign influence, I also just wanted to make a few brief comments surrounding the cuts to the ABC, and this government's efforts to discredit and, certainly, to dilute Australians' perceptions of our public broadcaster. I am passionate about this issue, because it does impact. One of those impacts was the ABC having to make the decision to discontinue ABC short-wave radio services in both rural Australia as well as the Pacific. Again, where short-wave radio was in northern Australia is now just silence. Our farmers and cattle stations, our Indigenous rangers and our fishermen and women out on the seas would use the short-wave radio of the ABC, and now there is no communication.

It's interesting, and I have to note, that a government which claims to want to tackle foreign influence also wants to diminish Australian content and create a void for other agents of influence to fill. I am talking, of course, about the recent news reports that suggest that Radio Australia's former short-wave frequencies are now being used by China Radio International, that country's state owned overseas broadcaster. If we really want to counter foreign influence, it's hugely important that we have a properly funded public broadcaster that Australians can rely upon both at home and overseas.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

Well, it sounds like the cold war has returned: Australia's at risk, the nation's under threat, foreign agents abound, threatening our democracy; possibly they've taken the place of the 'reds under the bed'. Clearly action must be taken, but fortunately the major parties are here yet again to save us! They're collaborating. And it's nothing new for Labor, the Liberals and the Nationals to collaborate when it comes to so-called national security measures. Since 2002, can you believe—you probably can, sadly—67 pieces of legislation, so-called national security bills, have come here, with the Liberals, Labor and the Nationals all lining up to pass them together, with insufficient security and massive overreach, time and time again. I acknowledge that only six of those 67 bills have come from Labor, but Labor just comes on board every time the coalition government uses the words 'national security'. They've got to take a stand. Our democratic processes, the fundamental way this country works, have been eroded for well over a decade now because of this so-called national security scare, and it is being misused for the benefit of a certain section of this society.

Senator Richard Di Natale named that so clearly, as did Senator Nick McKim, when speaking about the corporate interests, particularly in this bill here—the way the voice of so many organisations will be curtailed, despite the amendments that went through the Parliamentary Joint Committee on Intelligence and Security. The committee's recommendations put forward a number of amendments; some of them are useful. But still these bills are irresponsible. One recommendation, as Senator McKim set out, is that we should have had the opportunity to send it to a Senate committee.

We know we've got a big problem with this legislation because of the way it's been structured. Just going back to my theme about 'reds under the bed'—or foreign agents in this case, isn't it?—what we're left to conclude is that it's all these foreign agents, such as climate advocates, human rights advocates and many others working to make this a fairer, greener world. The organisations, the charities have now been looked after. That's good; we welcome that. But a number of not-for-profit organisations are out there advocating on so many important issues. Now, probably I and some of my colleagues wouldn't agree with them all, but that's not the issue. The issue is having the right to go out there and express yourself—take action, protest. But now the limitations and the penalties are quite extraordinary, so we shouldn't back these bills. Under no circumstances should that be the next step.

What former senator Scott Ludlam wrote in The Guardian today really summed it up:

… the government is quite deliberately turning "national security" into a weapon with which to protect corporate interests and attack its opponents.

They're former Senator Scott Ludlam's words, in The Guardian today, and I recommend that senators read his full article. It really does unpack the bill and pinpoint what a serious stage we are at in this country—not dissimilar to the unravelling of democracy that we're seeing in a number of countries: England, Hungary, the US. Shocking things are happening, often in the name of democracy, often in the name of national security. But it's an overreach, and it's an overreach in the interests of a very narrow section of society: that section of society that the coalition government backs, that section of society that is committed to making profits. Why do they want to curtail civil society? Because they don't want to have to deal with protests and actions. They just want to get on and make their money and not have to worry about environmental standards or abiding by workplace safety measures, et cetera. They just want to be able to get on and do the job. I know somebody will probably come back and say all unions are exempt, but, the way industrial relations are going in this country, it's still damn hard for people to be able to get their voices heard.

It is deeply shocking that Labor have gone along with these bills. They've abrogated their role as a party of opposition. They've abrogated their role in the Senate, where, clearly, we have a specific job to do: to look at these bills when they come before us. But it's been denied to all senators because of a deal stitched up as a way to fast-track this legislation as quickly as possible this week, and we're right in the midst of it now because the deal's in. They're trying to hang their hats on these 280 amendments. That's just an embarrassment, to try and make out that that's the solution here.

The danger still lurks within these bills. Take the Foreign Influence Transparency Scheme Bill: the term 'foreign political organisation' is retained. This is a really big problem with this bill, and Labor senators—I'm sure some of them can see this—are not being honest if they're not bringing that forward in the debate and at least acknowledging that something needs to be done here, rather than just giving it a tick—'Oh, we got all our amendments. Everything's okay; just put it through. Foreign agents? Well, we really do want to grab foreign agents because they're bad people'—without looking at the definition of who we're capturing.

The term, as I've said, is extremely broad and it's too ambiguous. This is where we can see how so many public interest not-for-profit groups that are not charities can be captured. This really goes to the essence of the major problem with what we're dealing with here. When I'm talking about groups that are public interest not-for-profits, I'm thinking of so many of the organisations that I work with: organisations that are refugee support groups doing extraordinary work, and activist groups in other countries. I'm about to go through a number of areas of work; it's a very rich part of our society. What it reminds you of is that, in this day and age, advocacy and protest actions are global. This lends madness to what we're dealing with here. It's madness from my point of view; it's a serious intent from the coalition government, because they do want to capture and silence the voices of so many of these groups.

Think of all those organisations here and in other countries that took action on the Trans-Pacific Partnership. That was a collaboration between a range of organisations—and sometimes even government groupings were involved as well—understanding the seriousness of that piece of so-called free trade legislation and that it had to be taken on, and this broad global alliance was built up. What happens to all those people in Australia? Do they have to then declare that they're foreign agents? Another recent one that comes to mind—we had a motion about this one—is the five-year anniversary of the tragic factory collapse in Bangladesh. Groups in Bangladesh and organisations here and in many other countries have worked together, highlighting the problems with the Bangladeshi government. There are all sorts of interactions going on there. Again, these are the sorts of people that can be covered.

A very interesting one is cruel cosmetics. We have legislation before the parliament about that issue, about ending the testing of cosmetics and cosmetics ingredients on animals. The organisations that we're working with, Humane Society International and other groups, are working with governments and organisations around the world to advance these legal changes needed to outlaw cruel cosmetics in other countries. They'd be a cert to be captured by what's going on here, purely because of the very fine work they're doing. But, because of the loose term 'foreign political organisation', they could well be captured. The Great Barrier Reef is another one that, these days, is an issue that's being taken up by non-government organisations; many international organisations. At times, other governments are taking an interest in this. Again, the complexities here that this bill does not deal with are very serious, and the Senate needs to be very mindful of them.

I want to just go back to some of the work of the Parliament Joint Committee on Intelligence and Security. As I have said, the PJCIS recommendations did not satisfactorily address either the definition of 'political organisations' or the term 'acting on behalf of'. Again, I really want to give emphasis to this because if we can't deal with that then both these bills need to be rejected, because they go hand in hand. This matter is very serious, and this is what we need to take on board. Groups that are not registered charities may remain exposed under this bill because of the failure of these sections. I repeat again: that's because of the definition of 'foreign principle' and the treatment of 'acting on behalf of' in the legislation. 'Acting on behalf of' and 'foreign principle' are both key terms, because they remain problematically broad. Put simply, something has to be done about them. And we need to ensure that we accept amendments on those key areas.

I understand that one of the recommendations has been to redefine the phrase 'foreign political organisation' to include only foreign political parties or organisations that field candidates in parliamentary elections. So there are proposals around, and Senator Nick McKim will bring those forward, as we do have amendments to move in this debate.

But again, it has been so hard to grapple with the legislation, given the speed with which this has been rushed through. I again emphasise: there are 280 amendments to the legislation; we saw them only yesterday afternoon. That is a shocking way to deal with the situation before us.

So I congratulate my colleagues: Senator Richard Di Natale and Senator Nick McKim have really set out the major problems we have with this legislation. It should have gone to the Senate committee; it should not be rushed through. And amendments need to be made so that we ensure that this whole issue of foreign agents does not further cripple our civil society and our democratic practices.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I rise to also make a contribution on this package of bills, the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017. These bills, I deeply believe, are an appalling crackdown on civil society and freedom of speech in this country. I'm particularly concerned about the impacts on civil society. Ever since I stepped foot in this place as a senator, I have been championing civil society and the role of charities and the not-for-profit sector in our democracy in this country, and I've been acting to protect their right to advocacy and their role in our democracy, because major changes in this country have nearly always been driven by civil society, with this place following where they lead. Their role is critical.

This package of bills is the latest move in a long line of steps that conservative governments have taken to stifle dissent, and the Turnbull government is continuing this approach. I have stood many times in this chamber to speak against proposals—which conservative governments have brought to this place and championed—to reduce the role of civil society and the role and capacity of charities and not-for-profits to advocate for change. It is all very well for this government to praise the role of charities and not-for-profits—for example, when they're tending to 'the poor'; when they are ministering to sections of our community. But woe betide them if they dare advocate for a change of policy which will make the lives of people better! That's not, apparently, what those on that side of the chamber want to see. Well the Greens will always stand up for the rights of charities and not-for-profits and civil society to do their work and to be able to advocate for change.

Charities and not-for-profits have been under siege by Mr Turnbull, who's continued the work of previous conservative governments, and many of his glass-jawed MPs, who apparently don't like the spotlight focused on them. They don't like the fact that civil society speaks out about, and criticises, their policies. Sometimes they speak out in favour of them, but apparently government MPs don't like it when civil society is advocating for change. They clearly can't bear the facts of life of a democracy, that citizens have a right to scrutinise government policy and to advocate to improve it. Civil society is a critical part of our democracy. As I said, most of the change that has happened in our community has been led by civil society. They are the leaders; this place follows on.

This series of bills—in fact, there's a three-pronged approach in this; there's a third bill, which we haven't debated yet and which I'll come to in a minute. We have this package of bills, but we also have the electoral reform bill, which sought to tie up charities and not-for-profits and civil society organisations in bureaucracy and red tape and cut off their sources of funding. We've also had the change, to tie up charities even further in red tape, that has already gone through this place—that is, the change to the way charities report some of their activities through the Electoral Act. They changed 'The purposes for the public expression of views on an issue in an election by any means', which is the area of the Electoral Act that requires charities and not-for-profits to report to the AEC, to:

The public expression of views on an issue that is, or is likely to be, before electors in an election (whether or not a writ has been issued for the election) by any means.

The AEC and the government say that doesn't change the reporting period, but it has caused mass confusion among charities and not-for-profits because how could they know whether an issue that they are talking about or advocating for is likely to be before electors in an election. How can you know?

During estimates I asked the AEC if they had put out the guidelines for how this should be interpreted, because it started from March. At that stage, they hadn't. Those guidelines are out now, and the feedback I get from community based organisations is it's still as clear as mud. The AEC said it doesn't change the reporting requirements. Well that is not the legal advice that some not-for-profits and charities have received. That change brings with it very significant penalties for charities and not-for-profits, particularly for their chief finance officers. So this government yet again, when they're supposed to be the mob that are reducing red tape, have further tied up our charities and not-for-profits in red tape with a view to stifling and silencing their comments. They're betting that charities and not-for-profits will be put off speaking out because they are concerned about that requirement, because they won't know if an issue that they talk about is likely to be before electors in an election. That is this government's attempt to clamp down on charities and not-for-profits.

Right from the start it was clear that this electoral reform bill was not motivated by concerns about the influence of foreign money in Australia. If it were, why on earth didn't the government start in the most obvious place, which the Greens have been campaigning on for years—that is, putting caps on all donations to political parties and limiting expenditure to boot?

Why didn't they start there? We've been advocating this for a long time. In fact, it was clearly designed to silence those in Civil Society who work every day to make this country better. The people and the groups who advocate for better services for the homeless or an end to Australia's cruel offshore prison camps are what this legislation was aimed at.

The Turnbull government drafted its electoral funding legislation to make sure that members of Australia's development community, for example, can't advocate for a decent foreign aid budget, when that budget has shrunk to its lowest levels ever. It wanted to make sure that environmental organisations can't campaign against massive dirty fossil fuel projects like Adani's Carmichael coalmine. The government seems to have put the electoral funding legislation on the backburner because of the hard work of campaigners in Civil Society. It's a shame they haven't put the other two bills in the same place. Instead of acknowledging that the Australian people have serious concerns about its entire foreign influence package, it is pushing ahead with the espionage and foreign influence transparency scheme bills—despite the fact that the legislation hasn't had enough scrutiny through this place. Not only is it proceeding but it's, in fact, attempting to ram it through the Senate without proper consultation.

These are bills that will change the way in which we conduct our democracy, yet they have only been through the secretive Joint Committee on Intelligence and Security. The only parties that are on that committee are the coalition and the Labor Party. The rest of this chamber is excluded from that. This is extremely bad practice when we're talking about legislation like the espionage bill. George Williams was quoted in this chamber previously this morning. The dean of the University of New South Wales Faculty of Law and constitutional law expert sums up some of the concerns about the espionage bill well. On 11 June, Professor Williams wrote an opinion piece in The Australian and he said:

Even with the changes of the parliamentary joint committee, the bill will remain incomplete and dangerous. It will contain overbroad and uncertain definitions of critical concepts such as national security—

Oops! I said the word 'security'. Take that out of the quote!

The law also will undermine freedom of speech and of the press.

He goes on to say:

As in past inquiries, the committee has given low weight to these values. It has failed to put forward amendments to prevent journalists being imprisoned ... The possibility also remains that people who publish information about Australia’s economic and political relations with other countries will face jail under new espionage offences.

The espionage bill could criminalise activities like protesting in the streets to stop Australia declaring war on another country—something that, in fact, I have done myself—or to draw attention to possible breaches of humanitarian law by the Australian government. Peaceful and non-violent protestors at our detention centres might find themselves classified as saboteurs and subject to 20-year jail terms, according to legal advice obtained by Civil Society. Charities may have won a limited exemption from the Foreign Influence Transparency Scheme Bill so that they won't have to register as agents, but it's a hollow victory when other parts of the legislative package potentially criminalise public discourse on issues like food security, economic conditions and migration and refugee policy.

You might well ask: how can the government get away with this type of behaviour? How can it possibly rush this legislation that is so significant without proper scrutiny? Well, it's with the support of the opposition, with the support of the Labor Party. This is the same Labor Party that, last week, railed against the injustice of the government's undemocratic decision to gag and guillotine debate on the income tax cuts. And, while the Labor Party were in here this morning saying they wouldn't agree to gag and guillotine this debate, they are essentially doing that by siding with the government and ramming this through now, at this sitting, and failing to support the Greens in our attempt to refer these bills to the Legal and Constitutional Affairs Legislation Committee, where we could have scrutinised the 280 amendments that were made, virtually in the blink of an eye, in the House of Representatives yesterday. They have not been through adequate scrutiny. If this had gone to the legal and constitutional affairs committee, those amendments could have been scrutinised.

This is the very same Labor Party that just a week ago said it supported the Hands Off Our Charities Red Line Principles. Those principles urged all MPs not to undermine our democracy or unduly constrain public-interest advocacy. Yet the moment the term 'national security' is bandied about they seem to lose all scruples. Now is the time for Labor to stand up for Australia's democracy. All it has done, so far, as my colleagues have pointed out, is sandpaper off the roughest edges of this legislation. Rather than continue its pattern of slavishly following the government in the name of bipartisanship on security, it should allow the Senate adequate time to consider this legislation.

As Senator Rhiannon pointed out, there are other not-for-profit organisations that are still, potentially, caught up by this legislation. Not all of civil society is protected by the amendments that have been put forward. That is a disgrace in this country. We are a democracy. We need to do all we can to protect civil society. As my former colleague Scott Ludlam put it: with the opposition in this semi-comatose state, the wheels of democracy can still turn, but they are almost completely disengaged from what is really happening below the surface. This is about civil society. That is what I am deeply concerned about. I will always stand up to protect the role of civil society in our democracy. It is time that Labor woke up. They need to join with us to send this legislation off for proper review so that we can make an assessment as to whether the amendments that have been made to this legislation do what the committee recommended they do, to make sure they deliver what the committee recommended. How do we know? We don't—because we haven't had time to look at those amendments.

We all know that this legislation does not need to be passed before the winter break. We know that, given time, we can properly scrutinise this. And I would suggest it is highly likely that we would find some issues with those amendments if they were subject to proper scrutiny. The government's excuse of the upcoming by-elections—really?—has got to sound hollow to themselves. They must feel a little yucky when they use the by-elections as an excuse for this legislation. We need to draw a line in the sand, and we need to protect civil society and democracy in this country.

I'd also like to let people know that I will be moving second reading amendment 8476 once the Senate has dealt with my colleague Senator McKim's amendment. This legislation does not need to be rammed through this place. It should not be rammed through this place. It needs proper scrutiny because it has significant ramifications for democracy in this country. We need to stand up and protect our democracy, not ram this through right now with 280 amendments that we haven't had time to scrutinise properly. We will give it a red-hot shot in this chamber, when we are in Committee of the Whole, to ask the government questions and to look at these amendments. But we can't possibly do the same job in the Committee of the Whole that we could do if we were to subject this to a public inquiry through the Senate Legal and Constitutional Affairs Committee, where we could hear from experts like Professor Williams and a whole range of others who are taking an interest in this legislation. We did not get an opportunity to hear from them before these amendments came before us to be debated.

It is a bad day for this country when this sort of legislation is rammed through this place without that scrutiny of the whole of the community so that we can have access to advice from expertise on these matters. This legislation is going through with poor process. It's poor legislation. I'm deeply concerned about its implications for civil society.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Siewert, could you confirm the number of the foreshadowed second reading amendment?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

It is 8476. My understanding is that it has been circulated in the chamber.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Amendment 8476 has already been moved.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I think you'll find it was 8475.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Is that right, Senator Siewert?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Yes, what he says!

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Leyonhjelm.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I rise to speak on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 and the Foreign Influence Transparency Scheme Bill 2017. While it's true that the bills have been available since late last year, we are now considering something quite significantly different, and I find myself in the difficult position of not having had sufficient opportunity to gain a full understanding of what we are considering. It was only yesterday—24 hours ago—that I actually had a copy of what we are considering today. That's because what we are considering incorporates amendments that arise from the recommendations of the Parliamentary Joint Committee on Intelligence and Security. Those recommendations, and the implementation of those recommendations, have transformed the bills.

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

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

I doubt very much that it did.

I will give one example, but I note, in giving this example, I've only had 24 hours to find examples and to examine the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017. I have no doubt there will be other issues, as there was with previous national security legislation that was similarly rammed through the Senate. The example I give is section 92.2, which states:

(1) A person commits an offence if:

  (a) the person engages in conduct; and

  (b) any of the following circumstances exists …

That is, that that conduct occurs—

… in collaboration with, a foreign principal—

and—

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

  (c) the person intends that the conduct will:

     (i) influence a political or governmental process—

no big deal, and—

  (d) any part of the conduct:

     (i) is covert …

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

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

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

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

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

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

Debate interrupted.