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Speech: National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018: In Committee

Estimates & Committees
Lee Rhiannon 27 Jul 2018

Thursday, 28 June 2018

Senator RHIANNON (New South Wales) (13:38): 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.


Senator RHIANNON (New South Wales) (13:41): 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?



Senator RHIANNON (New South Wales) (13:45): 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?


Senator RHIANNON (New South Wales) (13:47): 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?


Senator RHIANNON (New South Wales) (13:55): 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.


Senator RHIANNON (New South Wales) (16:43): 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:

(a) receives or obtains it;

(b) collects it;

…   …   …

(h) communicates it;

(i) publishes it;

(j) makes it available.

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.


Senator RHIANNON (New South Wales) (16:46): Then, to put with that—'national security' is defined in section 90.4(1)(e) to include:

… the country's political, military or economic negotiations with another country or other countries.

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'.


Senator RHIANNON (New South Wales) (16:51): Thank you, Minister. I will ask about an example shortly, just to try and understand this further, but first I will just pick up on some of your remarks. You spoke a number of times about the 'public interest'. It's an interesting term. It's an important term. But, when you think about it, so often—and maybe more so when a politician uses it—it's equated with what the government's interests are. To highlight what I mean by that, I will use some examples from history.

There was a period when Australia actually supported apartheid. Australian government figures supported apartheid in South Africa and supported the Vietnam War. Now, in time, we—all politicians of all persuasions—came to realise that those were very wrong aspects of our foreign policy. First I will make a comment, and then I'll ask a question. I think this will give context to the question. Let's think about reporting when there were dominant forces in the Australian government who were sympathetic to and supportive, in various ways, of the apartheid regime in South Africa, and, as we know, actually were directly involved in the Vietnam War. Say this bill had been in legislation at that time, and there had been reporting of criticisms—for instance, of the My Lai massacre. At the time when it was first reported, it was as just part of the war effort, with Australia supposedly doing the right thing by stopping the invasion of communist hordes coming down to invade this country, so we had to send troops there. In time, we came to find out about the My Lai massacre—and I'm not suggesting Australians were involved in that, but it's one of the standout examples. It was deeply shocking, with children, women and elderly men killed, and many rapes, and the village burnt. But the initial reporting on it was that it was part of the war effort. It was courageous journalists who pushed through, and some courageous soldiers who gave the story. But considering we were supporting that war effort, if this legislation had been in place wouldn't it have been necessary to prosecute reporters who were writing to expose what actually happened there and who weren't directly supporting the government interest, which so often is interpreted as the public interest, considering at that time the government was presenting the public interest as stopping communist hordes coming down from Vietnam, China and elsewhere into this country and that our soldiers had to be sent there? So if this espionage legislation was in place at the time, journalists who were writing about what actually happened could have been charged for receiving and obtaining, collecting, communicating, publishing or making information available that was contrary to the government interest and public interest of the time?


Senator RHIANNON (New South Wales) (17:05): I want to go back to the example, but I did want to pick up on your response to my last question. You made the point, which is very apt, that espionage measures have existed in the law of this land for a long time—which is actually very relevant to the fact that we have this new legislation before us. Why was it judged that new legislation on espionage was needed, considering you've said it's already in the law? In answering that question, could you also advise what the threats were that you judged required that this new law was needed?


Senator RHIANNON (New South Wales) (17:07): Minister, you just said that it is a summary of the new provisions. But my question was actually about what the threats are. I think that is very relevant to the discussion here. What are the threats that warrant this legislation, which has come under enormous criticism? The government itself effectively acknowledged that by the fact that it recognised that it had to seriously amend the bill and there were 280 amendments, I understand. So my question was not about the actual provisions and the description of the new aspects of the espionage legislation that will play out if this goes through; my question was: what are the actual threats that warranted coming forward with this legislation?


Senator RHIANNON (New South Wales) (17:48): That was very disappointing and quite serious. We've had all these amendments coming through and we're still trying to understand them. There were changes, from what I understand, with regard to foreign companies. The scope of the original legislation included foreign governments, foreign related entities, foreign government directed individuals, foreign political organisations and foreign companies. I understand that foreign companies have now been excluded. Is that correct, Minister?

Senator Seselja: Sorry, I'll take a point of order on this. This is not the bill we're dealing with right now. This is the other bill.

Senator RHIANNON: I apologise. I do have some questions following on from proposed section 91.1, which you answered some questions about before with regard to journalists. I'll go back to those. I do think we need to discuss this in greater depth because this is the section where the penalty is imprisonment for life. We have some really serious criminal penalties here and also, let's be frank about it, this is one of the sections that have come under considerable criticism from a range of organisations—the media, universities, religious organisations and legal groups. Certainly we've been asked about it many times. I feel I need to bring those questions here because it's where there is the most serious criminal penalty.

You talk about prejudice. I'd like you to explain how the word 'prejudice' is used. It's set out that it's not embarrassment alone; it goes further than that. I think it's about where there is an advantage to the foreign powers. Could you explain in more detail the meaning of that word, because it obviously has great significance with regard to how national security measures are being judged in this legislation?


Senator RHIANNON (New South Wales) (17:51): So you're saying that there has been no change at all. I thought there was a change there in terms of how it's interpreted and then who is advantaged in terms of Australia's national security.

The TEMPORARY CHAIR: Minister? Senator Rhiannon?

Senator RHIANNON (New South Wales) (17:51): Seriously, Minister? We're talking about people being jailed for the rest of their natural life. Imprisonment for life is what we're talking about here. You don't answer. Seriously? It's not surprising that people are starting to call it a police state and say it's out of control and there's a degree of authoritarianism. You don't even answer questions about things that have been done in haste. It has a huge penalty on it.

I will try an example. If a journalist were writing about trade agreements with another country and those trade agreements bring us in dispute with the World Trade Organization and if their reporting were seen to be more favourable and benefiting the trading partner, how would it be judged in terms of the dissemination of information and if prejudices came into the way the journalist or academic had undertaken the work? I'm really just asking you to explain how that section of the bill will work.


Senator RHIANNON (New South Wales) (17:57): We've come to one of the most serious aspects of the legislation before us, where people can be jailed for the rest of their life. For people who are listening to this or reading it at some stage, it's probably worth them understanding what is happening. The minister hasn't been that particularly cooperative, but we have got onto a new section and he was being half reasonable and starting to answer some questions. But a senior minister to Minister Seselja, Minister Birmingham, came in and they had a talk, and I can only assume that he said: 'Start curtailing your answers. You don't have to get up and reply to this; just sit there'—because that's what's now happening. We have got on to a section that has been so incredibly criticised in this country—by religious people, by legal experts, by charities, by university academics, by legal academics and by constitutional experts. It's unbelievable! It's like being back in the Cold War! They just sit there because they've got the numbers—because Labor delivered them. This minister was answering a few questions but now he's decided to bunker down. Why has he bunkered down? I would have to conclude that he's been given advice. This is really serious. It is no way for the Senate to be used—or abused, because that's what you're now doing.

People can now be captured by these laws. My colleague Senator Nick McKim has said—as have many others; I acknowledge that—that it has a 'chilling effect'. That 'chilling effect' means that people will think, 'I've got to be really careful about what I do'; 'Maybe I shouldn't write that article'; or, 'Maybe I shouldn't go and give that speech to that group of people who are concerned about the direction of Australian foreign policy or the direction of what's happening to our lack of interest in overseas aid and how it's misconstrued.' Look at the rubbish on the front page of The Daily Telegraph today. That chilling effect means that people back off from having an active and open engagement with public life. That is what this legislation will do. Maybe not many people will go to jail, but the government will have achieved what they're trying to do here: advance corporate interests and stifle civil society. The criticism that the government sometimes cops will be reduced, but so will the very rich fabric of what it means to live in a truly democratic society.

It is really alarming sitting in this senate tonight, 28 June. I think we should get it in the Hansard. There are three Labor people here. There are three coalition people here. There are three Greens here. There is one Centre Alliance here. I know people are busy—I'm often not here myself—but, seriously, what the coalition is getting away with is scandalous. What Labor's engaged in, what they've signed off on, will be remembered. We are talking about people going to jail for the rest of their lives, and a minister won't even get up and speak about it—disgraceful.


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