National Security Bills pass
29 June 2018
The Australian Government has passed both the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 and Foreign Influence Transparency Scheme Bill 2018.
Both Bills underwent a series of substantial amendments, which in the Law Council’s view were necessary and vastly improve on earlier draft versions.
With regard to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 the Law Council was supportive of changes which included important recommendations aimed at:
- clarifying key definitions such as ‘national security’ and ‘security classification’ which underpin a range of offences in the Bill;
- broadening several defences such as extending the journalist defence for secrecy offences to editorial, legal and administrative staff within the news organisation; and
- reducing maximum penalties for proposed new secrecy offences, and requiring the consent of the Attorney-General to any prosecution under these offences.
The Law Council made a number of submissions in relation to National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 and appeared before the Parliamentary Joint Committee Parliamentary Joint Committee on Intelligence and Security in relation to the Bill.
There was a significant need to ensure the Bill was proportionate and appropriately targeted to the threat, while strengthening and modernising current espionage and foreign interference laws.
The Law Council would have preferred:
- clarifications to definitions such as ‘national security’ set out in the legislation, not simply contained within the Explanatory Memorandum;
- defences strengthened further to include for example a ‘good faith’ defence for espionage offences; and
- a public interest defence for individuals other than journalists or those assisting them.
Similarly, amendments to the Australian Government’s Foreign Influence Transparency Scheme (FITS) Bill addressed many of the significant concerns raised by the Law Council and others.
The Law Council raised concerns about the creation of a transparency notice scheme, which would allow the Secretary of the Attorney-General’s Department to issue transparency notices determining a person or organisation a government related entity or individual for the purposes of the scheme.
The amendment to include a ‘provisional’ transparency notice, and a ‘final’ transparency notice in the scheme was sensible, however their adequacy in addressing concerns raised regarding a lack of procedural fairness is yet to be fully realised.
Law Council President, Morry Bailes, said the original Bill had the potential to create a chilling effect on public policy dialogue, due to the potential legislative over-reach of the scheme, the ambiguity of its key terms, and the significant penalties attached to non-compliance.
The Law Council was pleased to see a number of the Committee’s recommendations included in the Bill, particularly:
- a recommended exemption for charities, arts organisations and industrial associations from the proposed legislation;
- changes to proposed subsection11(3), which includes the clarification that an activity is only conducted on behalf of a foreign principal where both the person and foreign principal knew or expected that the activity would take place, and;
- the Committee’s recommendation for the Australian Government to consider further amending section 25 and the exemption for legal advice/representation by covering activities that are ‘incidental to’ the matters currently listed in paragraphs (a) to (c).
The exemption for the provision of legal advice beyond just representation in proceedings, including in relation to the administrative processes of government, was particularly pleasing as were protections for parliamentary and legal professional privilege.