Commonwealth Attorney-General Welcomes PJCIS Report on Espionage and Foreign Interference Bill

Friday 15 June 2018 @ 1.53 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

In a Media Release from the Commonwealth Attorney General's office dated 7 June 2018, Attorney General Christian Porter has welcomed the release  of the Parliamentary Joint Committee on Intelligence and Security ("the Committee") report into the Government’s National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, saying that the report was  "a major step forward in securing passage of this critical legislation and protecting Australia’s democratic systems from Foreign Interference" and that it was his expectation that the Bill would be considered and passed during the next parliamentary sitting period, later in June 2018.

The Committees Recommendations

In its report the Committee made 60 recommendations, ranging from minor changes to definitions and clarifications of drafting to more substantive changes such as  adopting the Government’s proposed amendments submitted to the Committee as part of its deliberations earlier in 2018. The amendments proposed by the Government expand the public interest defence for journalists and create separate graduated offences for commonwealth officers and non-commonwealth officers. The amendments according to the Attorney General are "designed to strike the best possible balance between keeping Australia safe and not impeding the ordinary and important work of journalists and media organisations".

In addition to the already described recommendations, the additional substantive changes recommended by the Committee include that:

  • there be a reduction to the maximum penalties for the proposed new secrecy offences, and 
  • a requirement for the consent of the Attorney-General to any prosecution under these proposed new  secrecy offences;
  • all secrecy offences under other Commonwealth legislation be reviewed; and
  • clarification that the journalism defence extends to all editorial, legal and administrative staff within the news organisation.

Urgency of Passage

In the Attorney General's view it is urgent that the Bill as reviewed by the Committee  and the other related Bill, the Foreign Influence Transparency Scheme Bill 2017, also being reviewed by the Committee, be passed in the next parliamentary sittings before the by-elections to be held in July 2018. According to the Attorney General:

"Even in the time that it has taken to consider the Espionage and Foreign Interference Bill, the threat environment has changed and become more acute. As senior ASIO officials have said repeatedly in recent months, we now live in a time of unprecedented foreign intelligence activity against Australia with more foreign agents, from more foreign powers, using more trade craft to engage in espionage and foreign interference than at any time since the Cold War. . . . Given the rapid change in the threat environment it is the Government’s intention to consider the report and recommendations for amendments very quickly and my expectation is that the Bill, in essentially the form now recommend by the Committee, should be passed through Parliament during the next sitting period later this month; noting of course the primary and most significant  recommendation of the report is that the Bill be passed."

In the Attorney-General's Media Release he indicates that the Bill and the Foreign Influence Transparency Scheme Bill 2017 are ". . . both critical to modernising our national security laws "  to keep Australians safe . Interestingly, the Attorney General indicated that since 2014 there had been 10 tranches of national security law passed with the Government accepting 128 recommendations from the Committee which had resulted in 293 Government Amendments..

Associated Bill

The Foreign Influence Transparency Scheme Bill 2017 was introduced with the Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017, to establish the Foreign Influence Transparency Scheme which will require registration by certain persons undertaking certain activities on behalf of a foreign principal. It will require registrants to disclose information about the nature of their relationship with the foreign principal and activities undertaken pursuant to that relationship. The Bill also places additional disclosure requirements on registrants during elections and other voting periods; and establishes a register of scheme information. It provides for certain information to be made publicly available;  for the secretary to have powers to obtain information and documents; and establishes various penalties for non-compliance with the scheme.

Concerns Arising from the Proposed Laws

One of the main concerns is what is described as the "need [for] clear exemptions for civil society". An opinion piece published on The Guardian Australia had this comment from Claire O’Rourke, of Amnesty International Australia:

"With the bill in its current form it could become a crime for charities, including Amnesty, to hold the Australian government to account on its human rights record. Amnesty’s core work is to expose human rights abuses in all countries. These rights violations often have not previously been made public – that’s exactly the point. Therefore, politicians’ claims ring hollow that NGOs would simply need to use the 'prior publication' defence in order to be spared the criminal charges outlined in this Bill."

Hannah Ryan, of the Human Rights Law Centre, also said in the piece:

"Don’t cripple the democratic processes we should be protecting . . .The laws proposed to parliament pose an unacceptable threat to Australians’ freedom of expression and the freedom of the press."

The key concern appears to be that rather than protecting democracy in Australia, these laws will be misused and democracy will be further eroded.

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