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senate vote 2018-06-28#9
Edited by
mackay staff
on
2018-07-13 14:52:09
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Title
Bills — National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018; in Committee- National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 - in Committee - Sunset provision
Description
<p class="speaker">Nick McKim</p><p>Minister, I'll try again on the matter I was asking about before question time. I was asking you about an organisation—and I used Markets for Change as an example, which attempts to—actually, I'll withdraw that. I'll just use a hypothetical organisation that is based in Australia and travels overseas with the express intention of trying to persuade overseas markets not to purchase products produced in Australia. My understanding, or my recollection, is that, when I put that to you before question time, you said that that organisation would not be caught by this legislation. I wonder if you could step me through the reasons that you believe that such an organisation conducting those activities would not be caught by this legislation and be subject, potentially, to charges of sabotage or any other charge under this legislation.</p> <p class="speaker">Zed Seselja</p>- The majority voted against a [motion](https://www.openaustralia.org.au/senate/?gid=2018-06-28.368.1) to introduce the following sunset provision to the bill:
- > *This Act is repealed at the start of the day 3 years after the day this Act receives the Royal Assent.*
- This motion was introduced by Greens Senator [Nick McKim](https://theyvoteforyou.org.au/people/senate/tasmania/nick_mckim).
- ### What does this bill do?
- This [bill](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/r6022) was introduced to:
- * amend existing, and introduce new, espionage offences relating to a broad range of dealings with information, including solicitation and preparation and planning offences;
- * introduce new offences relating to foreign interference with Australia’s political, governmental or democratic processes;
- * replace the existing sabotage offence with new sabotage offences relating to conduct causing damage to a broad range of critical infrastructure that could prejudice Australia’s national security;
- * introduce a new offence relating to theft of trade secrets on behalf of a foreign government;
- * amend existing, and introduce new, offences relating to treason and other threats to national security, such as interference with Australian democratic or political rights by conduct involving the use of force, violence or intimidation; and
- * introduce a new aggravated offence where a person provides false or misleading information relating to an application for, or maintenance of, an Australian Government security clearance.
- Read more in the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1718a/18bd134).
<p>If I can just go back for a second, in terms of earlier: I've sought to answer all of your questions, and I'll continue to seek to answer your questions. But where I am not answering is where I've answered a question several times. In the case of Senator Rhiannon, I think there was a question that had been asked and answered a number of times. I'm here to give as much information as I can, but I don't think it's helpful to go and ask the same question again. I'll just put that on the record. In relation to this one: there's nothing that you've put forward there that would, in any way, engage the sabotage offences. I can't see any link that would possibly see an organisation that was based in Australia and that campaigned for the boycott of certain Australian products, in any way, engage the sabotage offences—or any others that I can see, but the sabotage is the one you mentioned.</p><p>A sabotage offence is: a person engages in conduct that damages public infrastructure—and that's defined—and intends that, or is reckless as to whether, their conduct will prejudice Australia's national security or advantage the national security of a foreign country. As I said, public infrastructure is defined as certain facilities—Commonwealth facilities, defence premises, telecommunication networks, et cetera. They'd have to be damaging that public infrastructure and they would have to intend to or be reckless as to whether in damaging that public infrastructure their conduct would prejudice Australia's national security. Nothing you've set out there, on the advice I have or on my reading of the legislation, would in any way go anywhere near being an offence under that particular provision or any other provision that I'm aware of.</p> <p class="speaker">Nick McKim</p><p>Thank you, Minister. I appreciate your willingness to engage with that, and the response that you've placed on the record. I do appreciate that genuinely. Because we're on sabotage, I'm going to go back to the matter I was discussing before. I appreciate what you've just said about questions being asked on numerous occasions. I ask you to bear with me this time, because I am going to go back to an issue that I was talking about before. I'm going to try to really clearly step out my concerns. I hope that you're able to respond to them in the genuine way that I'm putting them, notwithstanding the fact that I've already raised similar matters before.</p><p>I want to take your attention to section 82.6, offence of sabotage reckless as to national security. That's a reasonably easy provision to read and understand. I'll step you through this. I'm going back to the hypothetical situation where a person is blockading a port that's being used for the purposes of live sheep export. The first requirement, 82.6(1)(a), is that the person engages in conduct—and, clearly, blockading a port is conduct. Then we go to 82.6(1)(b):</p><p class="italic">(b) the conduct results in damage to public infrastructure …</p><p>First, can you confirm that damage to public infrastructure, as defined, includes preventing access? Second, can you confirm that public infrastructure can include privately owned infrastructure that is being used to deliver a service? Third, can you confirm that even a privately owned loading facility would be caught within the definition of public infrastructure?</p> <p class="speaker">Zed Seselja</p><p>In relation to the first part, as you'd be aware, 82.1(d) defines damage to public infrastructure:</p><p class="italic">(d) the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it;</p><p>I think the answer to that would be yes. In relation to the second part of your question, it is in 82.2, public infrastructure; 82.2(e) reads:</p><p>(e) any infrastructure, facility, premises, network or electronic system … that:</p><p>(i) provides or relates to providing the public with utilities or services … of any kind; and</p><p>(ii) is located in Australia; and</p><p>(iii) belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce.</p><p>Obviously, it would depend on a number of circumstances as to whether it fit that definition.</p> <p class="speaker">Nick McKim</p><p>Thanks, Minister. For the purposes of the question I'm about to ask, can we assume that the tests under 82.6(1)(a) and (b) have been met—that is, the person has been engaged in conduct that is a blockade and the conduct has resulted in damage to public infrastructure? Firstly, damage includes limiting access to, as I think you've just outlined. Secondly, public infrastructure can include private infrastructure, as long as it provides or relates to providing the public with utilities or services, including the transport of people or goods of any kind; it is located in Australia; and it belongs to or is operated by a constitutional corporation.</p><p>We assume that those criteria are met and then we go to 82.6(1)(c). This is a blockade which is done for the purpose of raising the political issue of animal cruelty, but which has a corollary impact of impacting on Australia's economic relationship with another country—by virtue of the fact that it, for example, delays or halts indefinitely the departure of that vessel.</p><p>So my question, Minister, is whether that blockade, in the hypothetical situation that I've outlined, could result in the commission of an offence under this legislation because that blockade, firstly, prejudices national security because of the way 'national security' is defined to include economic relationships between Australia and another country. I just don't see how that action could not be caught under 82.6(1).</p> <p class="speaker">Zed Seselja</p><p>Thank you; I accept that you've asked the question in a slightly different way. I'll do my best to answer it, but I am going over a little bit of old ground. The answer to the question is that, in order for an offence to apply and for a potential charge or prosecution to occur under this particular provision, there would have to be actions by the person to damage the public infrastructure. With the public infrastructure that I've set out in terms of the definition, it's difficult to know in what circumstances. It's possible that it could be public infrastructure, but that is clearly defined and it may or may not be public infrastructure. But, if all of those were there, you would need the damage to the infrastructure and then, if in fact it is public infrastructure, there would have to be either an intent or recklessness to whether the conduct would prejudice Australia's national security or advance the national security of a foreign country—and, in addition to that, the conduct wouldn't be reasonable in the circumstances.</p><p>The government has certainly made it clear that ordinary protests such as picketing an MP's office or a building and the like are not designed to come under the scope of these directions. In terms of the 'reasonableness', the point I would make is that there are a lot of tests that would have to be met. There has to be the damage, it has to be public infrastructure within those definitions, there has to be an intent or recklessness to do damage to Australia's national security and, in addition to that, it wouldn't be reasonable in all of those circumstances for the actions to be taken.</p> <p class="speaker">Nick McKim</p><p>Thanks, Minister. Once again, I thank you for your response. You've stepped us through that, and your response, I think, is helpful for the Senate's understanding, because you've placed clearly on the record the government's intention behind this legislation.</p><p>I will offer, I guess, a comment, if I may. Even though you've done that, and placed the intent on the record, I think an ordinary-English-language reading of this provision does provide for charges to be laid against a person or a group of people in the circumstances that I've outlined. As to how the courts might rule on that, obviously we'd have to wait and see. Again, obviously, it would pivot on the individual circumstances of the case, of course, as cases like this always do in our judicial system. So, even though you've placed the government's intent on the record, I'm not convinced that the way this section is drafted actually does reflect that intent, and I maintain my view that this section, as drafted, at least potentially could catch actions such as the one that I've outlined.</p> <p class="speaker">Lee Rhiannon</p><p>I want to move on to some questions about section 91.1. This is the section about espionage and dealing with information concerning national security—how it's communicated et cetera. Firstly, I want to understand some of the definitions that are dealt with here in terms of what the reach of them is. The word 'deals' is used—we're talking about 'deals with information'. It's defined in section 90.1(1) to include if a person:</p><p class="italic">(a) receives or obtains it;</p><p class="italic">(b) collects it;</p><p class="italic">…   …   …</p><p class="italic">(h) communicates it;</p><p class="italic">(i) publishes it;</p><p class="italic">(j) makes it available.</p><p>Minister, isn't this what journalists do? I'm just checking, therefore—because I have further questions—that this is the section under which people who are communicating, like journalists, could be captured.</p> <p class="speaker">Zed Seselja</p><p>If I understand your question correctly, you're asking whether or not 'dealing with information' potentially attracts these particular provisions. If that's your question, the answer is yes. But looking at one section in isolation doesn't in any way go to whether there's a potential offence. As with the other provisions we've discussed, such as sabotage, in each case there are a series of things that need to be made out. If I understand your question correctly, and you want to lay it as a baseline for further questions, then I think the answer is yes.</p> <p class="speaker">Lee Rhiannon</p><p>Then, to put with that—'national security' is defined in section 90.4(1)(e) to include:</p><p class="italic">… the country's political, military or economic negotiations with another country or other countries.</p><p>Again, an investigative journalist's work explores so many issues. We have a great many of them at the moment, with the issues around the relationship with China, with our whole region, with how DFAT works, et cetera. Going back to the definition I gave, in terms of 'obtain, collect, communicate, publish'—and maybe there are other sections where there are more boundaries on this—the way it's structured, with the definition of 'dealing with information' and the definition of 'national security', the conclusion that I came to from reading this material is that it could have a very broad reach, in terms of people who are analysing relations between Australia and other countries, considering the definition of 'national security'. What I'm really asking you to do is bring the definition of 'national security' in and explain how it will be interpreted in assessing this information about 'dealing with information'.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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