Andrew Bartlett (Queensland, Australian Greens) Share this | Link to this | Hansard source

I will just continue with trying to get some clarity from the minister—and I appreciate his contributions to date—about what the meaning of some of the wordings and the concepts in this legislation will be. It's actually something I referred to in my second reading contribution this morning where Mr Hastie specifically signalled out Julian Assange, using the term and concept of 'radical transparency', as opposed to just general transparency. This is relevant for the entire community, but it's particularly relevant for journalists. As we all know, the concept of journalism and citizen journalism is itself a fluid one. Within that concept is one of people wanting to ensure adequate transparency. As I said in my second reading contribution in a more general philosophical sense, the issue of adequate transparency of the activities of intelligence agencies and law enforcement agencies—not just our own, of course, but our allies that we work with very, very closely with—is a key one. It's a contestable one. People will have different views about what is an adequate degree of transparency, but hopefully there is a recognition that there does need to be some degree of transparency. My initial question goes to the idea of where that line is with regard to radical transparency. Given that Mr Hastie specifically referred to Julian Assange, is there actually an explicit focus on the activities of him and his organisation?

Zed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | Link to this | Hansard source

The answer is no.

Andrew Bartlett (Queensland, Australian Greens) Share this | Link to this | Hansard source

The answer to my second question is no—thank you for that. The first part of my question was about this concept of 'radical transparency' as opposed to 'general transparency'. It was in the context of an interview between Mr Hastie and a journalist who, not surprisingly, was interested to know where the line is about not just what they can expose directly but whether any organisation, such as WikiLeaks, or Edward Snowden or The Intercept or any of the organisations focused on this release information—where the risks are for the journalists in reporting these things. They haven't been the ones who have put them in the public arena, but, if there's been an act of radical transparency, what risk is there for others in reporting about the content that's been released under the radical transparency?

Zed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | Link to this | Hansard source

That term you refer to is not something that's in the bill, but the offences in the bill have been very carefully scoped to ensure that they target harmful conduct. I have a couple of important points to make. With the exception of secrecy offences, it's not appropriate to carve out journalists from the application of most of the offences. For example, the espionage offences apply where a person intends to or is reckless as to whether their conduct will prejudice Australia's national security or advantage the national security of a foreign country. There must also be a link to a foreign principal. If a journalist engaged in the relevant conduct and these circumstances existed, it would be appropriate for the espionage offences to apply.

In relation to foreign interference, it's necessary for the prosecution to prove that the person's conduct is covert or deceptive, involves a threat to cause serious harm or involves a demand with menaces. Alternatively, a person must be seeking to exert undisclosed influence over another person. The secrecy offences are, however, an exception. For these offences, a specific defence is available to journalists reporting in the public interest. This defence will apply where a person dealt with or held information in the person's capacity as a person 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 defence covers a range of staff, including legal, editorial and other administrative support staff engaged in news reporting in media organisations. The defence extends to communication holding, removing or otherwise dealing with information to allow journalists and other staff to undertake a range of activities that are necessary in the course of their work. We believe the journalist defence strikes an appropriate balance between deterring the covert and deceptive activities of foreign actors and recognising the critical role of journalists in informing debate that is in the public interest.

Andrew Bartlett (Queensland, Australian Greens) Share this | Link to this | Hansard source

Thank you for that. With regard to the details that you spoke about, usually when people hear the words you've talked about they think they're about spy activity between various governments and giving away secrets that would be of advantage to other governments to use against us. But one of the aspects of this legislation that many people voice concern about is the fact of how it can flow over into economic interests, and not just government economic interests but also corporate economic interests.

Again, to use the example of exposure of things: we've seen exposure of draft trade treaties. If somebody were to reveal the content of a trade treaty—and we all know from debates in this place how much concern there was about the Trans-Pacific Partnership not being able to be made public—would that trigger the sorts of details that you described just then?

Zed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | Link to this | Hansard source

It does come back to the earlier discussion, which was in relation to all of those elements. In those circumstances there would have to be an intention, or recklessness—I think in that case it would be intention—in relation to damaging Australia's national interests.

Andrew Bartlett (Queensland, Australian Greens) Share this | Link to this | Hansard source

I'm certainly not intending to go over words, definitions and specific examples that have been covered previously. I know that there is a series of amendments and there are some questions that others may wish to ask before we get onto the amendments. But, for the sake of having as much confidence as possible, we need to have as much certainty as possible about aspects of things like making something available.

We're talking about people making something available, and it seems to be continually falling back on whether that's done recklessly. Is that simply the core factor that's involved, that people just need to have enough awareness about what they're doing in making information available? That's by whatever means; I don't really want to get into whether it's through particular applications, or through the internet or whatever. But is that the core factor that it really boils down to there—whether people are being reckless in regard to this?

Zed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | Link to this | Hansard source

The information would have to be of a certain character. They'd have to be reckless as to that, as well as making it available and as well as the issues around damage. Your question appears to suggest that if someone acts recklessly then, potentially, they are somehow going to offend against these provisions. That is not the case.

At the risk of repeating myself: a number of times I have stepped through the fact that there are a number of different elements to an offence and that, depending on the offence, we are talking about either the mental element or the fault element of intention or recklessness applying. But to answer your question very simply and straightforwardly: simply being reckless is not enough; it's certain types of information, it's the use of that information and fault elements right across the board.

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

Minister, I want to explore the issue of intention, particularly with regard to bringing international attention to, say, any breach of law by the Australian government. I'm trying to understand if that would qualify as an intent to prejudice Australia's national security. To provide you with some examples of what I'm thinking of, I think that many of the senators and many of the parliamentarians in this place come across a range of people engaging in various activities where they have concerns. They try to develop and understand what their concerns are. I'm thinking here of the Great Barrier Reef. It's very much of global interest, and therefore people in other countries and in overseas organisations are engaging—global organisations, organisations in other countries and governments of other nations.

That's one example. Another big one that's ongoing and that we've seen in the past is around the Trans-Pacific Partnership. Again, it becomes a global network of organisations from different countries that are then bringing their concerns to a range of countries just wanting to highlight, by using the global stage and using media and social media, that the Australian government could end up breaching the law if it engaged in certain practices, or refused to engage in certain practices, when it comes to the Trans-Pacific Partnership. Would there be intent there to prejudice Australia's national security? I do feel that we need to understand thoroughly what it means, and how it will play out. If you could elaborate on that, I think it would be very helpful.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | Link to this | Hansard source

Certainly, Senator. I think it's very, very clear that the issue you've raised of, for instance, NGOs and others engaging with international counterparts—and I'll give a couple of examples; in fact, I'll even quote the shadow Attorney-General, who said during the second reading debate:

… the interpretation offered by some civil society groups that the espionage offences are capable of criminalising the disclosure of alleged breaches of international law or human rights by Australia or another country is simply not correct.

The espionage offences in sections 91.1 and 91.2 require proof beyond reasonable doubt that a person either intended to prejudice Australia's national security, or was aware of a substantial risk that his or her conduct would prejudice Australia's national security and that, in all the circumstances known to him or her, it was unjustifiable to take that risk.

Now an NGO seeking to draw human rights concerns to the attention of the UN or international counterparts plainly doesn't intend to prejudice Australia's national security. Similarly, even if there was a substantial risk that drawing such concerns to the attention of the UN or another NGO might prejudice Australia's national security beyond causing mere embarrassment to the Australian government—of course, that's difficult to conceive—then an NGO would plainly have a justification for drawing attention to such concerns.

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

I think there's still looseness in the language there though, and that does need to be explored—in particular, when you're talking about national security and proof of intention to jeopardise national security. There is a big cloud over 'national security', and I raised that earlier with regard to what the dean of the UNSW Law School, George Williams, has raised.

So you're ruling out the international human rights example, but what about with regard to climate issues? Climate issues take into account the coal industry. Your government could interpret that coal is an essential service and so any criticism or protest or blockade could be seen as proof that it's intended to jeopardise national security. I'm sure you understand the examples that I'm referring to. I do think we need to dig into it a bit deeper considering there is a dispute about 'national security'.

Even accepting your definition, let's look at the climate example. Where people engage in activities of climate action—whether it's knitting nannas who sit outside the gates of a coalmine or people who actually go into the coalmine area to erect a banner—are they in breach? Considering it's the coal industry, and the coal industry means a lot to the government, you may classify it as an essential service; therefore, if anything is deemed to jeopardise it, could those people then be prosecuted? I'd like to go into the issue of what the nature of the prosecution would be, but, firstly, is that a scenario that could be captured by how your bill is structured?

Zed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | Link to this | Hansard source

With respect, Senator, we are now very much going over ground that's already been covered in a lot of detail. I'll cover it one more time, but I don't intend to go over and over and over the same questions that are just framed in a slightly different way.

With the circumstances you've just referred to, it would presumably be some form of sabotage offence. I'm trying to figure out where else this might sit. We did deal with this, but I will go over it again. The sabotage offences can be committed only when a person damages public infrastructure and intends to or is reckless as to whether their conduct will prejudice Australia's national security or advantage the national security of a foreign country. 'Public infrastructure' is a defined term set out in section 82.2 of the bill. It doesn't include areas such as mines. Finally, on the other point, which was also covered before in terms of the definition of 'national security', it has been well-defined in a way that hasn't been the case in the past. I went to some detail in rejecting those assertions. With respect, we are very much going over old ground and I don't intend to give the same answer multiple times.

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

You said that it's sabotage only if it damages infrastructure, but, Minister, we are in the committee stage. It's one of the very fine aspects of our parliaments, where we can actually explore the meaning of legislation. What you mean by 'damage' and what you mean by 'infrastructure' does need to be spelled out now. Is 'damage' actually breaking a machine so it doesn't function or does damage to infrastructure mean that somebody is sitting at the gates and part of that infrastructure can't be accessed? There is a clear responsibility as a minister looking after the legislation in this parliament: the public has a right to understand what this bill means. I think that should always be the case, but, considering the huge controversy that there has been around this issue, this is our opportunity for the government to get on the record what it means so that, when it's enacted—and, now we know that Labor's onboard, that's going to happen—there won't be doubt. At the moment, there is a lot of doubt. Could you actually spell out the answer to that, please?

Zed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | Link to this | Hansard source

Senator Rhiannon, again, with respect, it is in the bill; it is in the definitions. Asking me questions about things that have been there for six months and are clearly defined is simply going over old ground. But, for your benefit, the definitions have been there for months. It says:

damage to public infrastructure: conduct results in damage to public infrastructure if any of the following paragraphs apply ...

It goes into some detail. You're welcome to read that. It's been on the public record for some time. Each of those terms is defined. I read out to you the definition of 'public infrastructure', which doesn't include mines, but, in terms of damage, it is defined. In terms of 'public infrastructure', it is defined. The legislation sets all of those things out very, very clearly.

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

An example of where the government can run into big problems when they don't really spell out what the details are has been shown with the Tasmanian antiprotest laws. They were recently shown to be unconstitutional. My colleague Senator Nick McKim, who has carriage of this for the Greens, can obviously, coming from Tasmania, go into a lot more detail. But I certainly followed it closely because (1) I have interest in it, and (2) it was quite extraordinary. I remember that at the time, when it was being brought forward by the government, the government was absolute about it—absolute that this would work and was needed; the laws were effective and ready to go into action. What happened? They were found to be unconstitutional. That's why I'm pursuing this, Minister. This is the time when we have an opportunity to really get into how it all works. In that case, when it was found to be unconstitutional, it was found that it would breach the right of free speech. So let's go back to that one again. What advice have you received that you're not going to go down the same path as the Tasmanian government by bringing forward a law and saying, 'We've got the other major parties onboard. Labor are solidly with us here. This legislation is urgently needed to deal with any issues of national security and possible sabotage'—all the things that you're saying to argue the case that it's as solid as a rock. What advice have you received that it's not unconstitutional and it would stand up to any challenges?

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

This is what we expected would happen. When the government has had enough and when the government's not able to answer quite reasonable questions on legislation like this, they simply crack the sads, have a bit of a sook, and sit there and don't answer questions. It's contemptuous of the Senate; it's contemptuous of our democracy. Minister Seselja can sit there and have a sulk for as long as he likes, but there are plenty of Greens to keep this debate going in this place, and we intend to scrutinise this legislation to the greatest of our capacity.

I've just come from a press conference with Bernard Collaery, who's been charged with conspiracy. Bernard Collaery, remember, is the lawyer who represents Witness K, the person who first revealed that the Australian government had bugged the government of Timor-Leste in an attempt to defraud one of our very close neighbours of their rightful revenue flows from the oil and gas fields in the Timor Sea. He's now been charged with conspiracy. And it's hard to escape the conclusion that those charges are politically motivated.

The reason I raise that in this debate is to support the contention that Australia is becoming a police state, a surveillance state and an authoritarian state. We've got social media companies scraping data off our mobile phones without permission and the government is doing nothing about it. We've got the government rolling along on its legislation to deny fundamental rights and liberties in this country that we used to sacrifice Australian lives to defend. In fact, relatives of mine have lost their lives defending those. Minister, if you think I'm going to let my relatives' sacrifice be in vain you've got another thing coming! So please show some respect for this parliament and answer the questions that you're asked.

I want to ask the question about the Tasmanian anti-protest legislation as well, parts of which were recently found to be unconstitutional by the High Court. Bless you, Bob Brown! Bob Brown was a distinguished senator and Leader of the Australian Greens for so long. He was one of the founders of the Australian Greens and, in fact, one of the founders of the global Greens movement that all of us who represent the Greens in this place are so proud to be part of. Bob was arrested at Lapoinya—a logging coop which I myself have visited, I might add. It's in this beautiful little patch of bushland in the north-west of Tassie. It's something that meant so much to the spirit of that local community. Then, of course, the Tasmanian government thought it was only worth something in dollar terms because, of course, they're Liberals. They're Tories, so they only understand value when there's a dollar sign in front of it. They decided they wanted to log it. Bob Brown got arrested there. I've actually lost count of the amount of times Bob's been arrested. I reckon he's pretty close to double figures, if he's not there already, through his activist and parliamentary career. He was arrested under some of the most draconian legislation that I saw in my time in the Tasmanian parliament.

By the way, this one trumps it hands down. If you want an assessment of where this sits—I've been in parliaments for about 16 years and this one's in the top three most draconian and frightening pieces of legislation that I've ever dealt with in my time in parliaments. And I've seen a few corrupt pieces of legislation—like the Tasmanian Pulp Mill Assessment Act, which was based on corrupt relationships between the Tasmanian government and Gunns Limited. And we're not missing Gunns Limited, by the way, down in Tassie. Those of us who care about the place are very happy to see the back of that company and convicted inside trader John Gay, who was their CEO and chair for so long.

But Bob Brown took the laws to the High Court and he won. Parts of those laws were found to be unconstitutional. That makes Senator Rhiannon's line of questioning entirely reasonable—and something that warrants greater engagement from you, Minister. I'm very happy for Senator Rhiannon to keep asking her questions, and I've risen in order to give her the opportunity to continue down that line of questioning. So I'll conclude this contribution and pass back to Senator Rhiannon, if the minister has no comment to make, by saying I'd be extremely interested in the minister answering Senator Rhiannon's question.

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

I'm keen to hear the minister. I did ask the questions. I don't think I need to repeat them. So, first off, I am keen to hear from the minister.

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

So this is how it's going to be, is it, Minister? You're just going to sit there, not answer questions, have a sulk and a bit of a sook—is that how it's going to be?

Zed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | Link to this | Hansard source

I've already answered the question.

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

All right, Minister. I think that's arguable and contestable. But I want to go back to the definitions that you and I were discussing before Senator Rhiannon began her line of questioning and before other parliamentary procedures intervened and ask about organisations like, for example, Markets for Change, and about other politicians who might prepare in Australia to travel overseas with the express intent of convincing foreign markets not to purchase Australian products. I'll use, again, Tasmania as the context for this question. Say somebody in Australia works with other people in Australia—and there's a potential conspiracy, in my view, under the draconian terms of this legislation—to plan their overseas trip, and that overseas trip is designed with the specific intention of impacting on Australia's economic relationship with another country by convincing markets in that country not to purchase particular Australian products. Say, in the Tasmanian context, these are products from our native forests, which are so criminally still being crashed. Would a person in that situation, Minister, be caught by the provisions of this act and subject to the sabotage provisions?

Zed Seselja (ACT, Liberal Party, Assistant Minister for Science, Jobs and Innovation) Share this | Link to this | Hansard source

No, the sabotage offences don't apply. I can take you through the sabotage offences again, but you'd have to provide me with some more information. I'm really just not following the logic here, Senator McKim. You're saying that if someone were to go overseas and advocate certain things they would effectively, potentially, fall foul of the sabotage offences which talk about the destruction of certain types of property? No.

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

Well, Minister! You can get up and say no as long as you like. And I'm not sure whether that's based on advice from your office or from the Attorney-General's Department or not. But I will step you through—in the minute or two left to me before two o'clock rolls around and we go into question time—the reasons that I believe that someone who engages in the actions I've just taken you through actually would be caught by the definitions in this act and subject to a potential charge and a potential term of imprisonment of 20 years, firstly the offence of sabotage involving a foreign principal that is reckless as to national security. I'll tell you what, Minister: perhaps, as I've got only 45 seconds left, we can return to this when the legislation comes along. I just want to repeat what I said earlier: your government, with the complicity of the Australian Labor Party—yes, the complicity of the Labor Party—is walking this country ever more rapidly down the road to an authoritarian police state—

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

Order! It being nearly two o'clock, the committee will report progress.

Progress reported.