Problems remaining with the Esp FI Bill

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Note: while a report has been issued recommending various amendments, the text of those amendments has not yet been made public.  The following comments are in relation to the current version of the Bill

Communicating with the UN or espionage?  Proposed new Section 91.2

As Amnesty International pointed out in the Sydney Morning Herald on 11 June 2018, under the proposed section 91.2 it is possible that normal activities of human rights organisations such as sharing information with UN bodies, if the relevant information has the potential to embarrass the government and thus perhaps to ‘prejudice’ Australia’s national security interests, could amount to crimes under section 91.2.

While ALHR recognises that it will be clarified that mere embarrassment will not be sufficient to establish harm to Australia’s national security, given the very broad definition of national security (see below) it will be very difficult for organisations and individuals to assess whether or not their actions might be caught by section 91.2.

Comprehensibility of the elements of a crime, including the ability to clearly distinguish different elements of the offence, is crucial but is not established by this section.

We query the apparent suggestions that if dealing with UN bodies is excluded from the section, then spies will find a way to utilise such bodies in order to achieve their espionage ends (par 3.91 of the report in relation to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017).

If there are any gaps in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, it is the fact that ‘foreign principal’ does not include foreign businesses.  It is much more likely that spies would conduct espionage through the gap of foreign business rather than the so-called gap of UN bodies.

It is not appropriate for the public to have to rely on the Commonwealth’s prosecution guidelines to protect them in relation to crimes for which they could be jailed for life, and in relation to which there is no limitation period (a prosecution can be brought at any future date).

Assurances that measures are not intended to be applied by an Attorney General to certain activities or organisations are not a sufficient or acceptable alternative to clearly drafted legislative provisions which capture only the conduct sought to be addressed and which reflect the true intent of the legislature.

And how can we have confidence that prosecution guidelines will apply, given that the offences in both the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and theForeign Influence Transparency Scheme Bill do not appear to be framed in accordance with the Commonwealth’s Guide to Framing Commonwealth Offences?

The apparent defences for sharing or otherwise dealing with information which is already in the public arena generally only apply where the information or article that has already been communicated or made available to the public was made public “with the authority of the Commonwealth”.  Firstly, these provisions will not protect bodies which are making private communications to UN bodies or that have not already published those communications. Secondly, in the normal course of events the Commonwealth would not be authorising such communications and so the defences would not apply.

These concerns also apply to new sections 92.2 and 92.3 as discussed below.

Broad definition of ‘national security’

The proposed new Criminal Code section 90.4 definition of ‘national security’ now includes “the country’s political, military or economic relations with another country or other countries”  as well as, in subsection 90.4(2), “foreign interference.”

We agree with the Committee’s recommendation (par 8.57) that the offences in proposed sections 82.7 and  82.8 which are stated to be offences ‘of introducing vulnerability with intention as to national security’ and ‘of introducing vulnerability reckless as to national security’ should be amended to remove references to:

  • harm or prejudice to Australia’s economic interests;
  • disruption to the functions of the Government of the Commonwealth, of a State or of a Territory; or
  • damage to public infrastructure (no matter how minimal in nature).

However ‘economic relations’ should be deleted from section 90.4 (and excluded from the term ‘international relations’ in section 121.1) and the meaning of ‘foreign interference’ should be clarified in the Bill, not just the explanatory memorandum (as proposed in par 3.81 of the Committee Report).

How will it be possible to know whether Australian economic relations are harmed by any conduct?

Although in practice a number of non-intelligence and non-military issues may have an impact on a country’s national security – such as food security, climatic conditions, economic inequality and energy security, for example – this is no reason to criminalise holding or dealing with information about such matters, as would appear to be the effect of the Bill.

Given that ‘foreign interference’ is not defined, the inclusion of ‘foreign interference’ as one type of national security activity is problematic, as again it is difficult for a person to know if this element of a crime is made out.

There is no defence for harming or causing ‘prejudice to’ or ‘interference with’ national security, even in relation to issues that are matters of public discussion.  All terms are excessively broad and vague and make it very hard to know what is required of people seeking to comply with the legislation.

Lack of other definitions

There were many submissions that it is highly undesirable for key terms such as ‘espionage’,‘sabotage,’ ‘political violence’ and ‘foreign interference’ to be undefined (given that the Bill will remove existing definitions in some cases).  How is it that people will know what the legislation means if terms are not defined? The answer is not to add more explanations to the Explanatory memorandum as the Committee proposes in paragraph 3.81.  Changes should be made to the Bill itself.

The Law Council has said that individuals “just will not know where the boundaries are in terms of whether or not they’re actually committing criminal offences”.

The difficulties of understanding and applying Sections 92.2(2) and 92.3(2)

Comprehensibility of the elements of a crime is crucial but is not established in these sections.  There is no definition of one aspect which is crucial to these provisions, being “an Australian democratic or political right or duty.”  While the Explanatory memorandum suggests voting, the right to make donations (at least domestically) and, ironically, the implied constitutional right of free political communication as such rights, it does not offer any further assistance.  Given that there is no Federal Human Rights Act one must look to implied Constitutional rights, common law rights and Federal anti-discrimination legislation to find what is meant by democratic rights.  This is a complex topic, as the public inquiry on ‘Traditional’ Rights and Freedoms demonstrated.  The meaning of the phrase is not at all clear, but is a crucial element in relation to a potential offence.  It is submitted that this phrase urgently needs clarification.

It is not clear how these sections could operate if the foreign principal was not known to the perpetrator (as is contemplated in subsection (3) of each section). How can the perpetrator notify someone that they are acting ‘on behalf of’ a foreign principal when they do not even have any particular foreign principal in mind?

It is not clear if proposed new sections 92.2(2) and 92.3(2) use the Foreign Interference Transparency Scheme Bill definition of ‘on behalf of’ or not to capture non-agency relationships.  The new sections still retain references to ‘collaboration’ and funding which have been removed from section 11(1) of the Foreign Interference Transparency Scheme Bill.  These references should be removed for consistency and for similar reasons.

Given that ‘Foreign principal’ is defined to include UN bodies, these sections also have the potential to criminalising non-covert normal international communication about human rights breaches.

Definition of ‘foreign political organisation’

As submitted by the Australian Lawyers Alliance (quoted at paragraph 3.53 of the Committee’s report in relation to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017)  there should be a clarification limiting the definition of ‘foreign political organisations’ to ‘foreign governments, foreign political parties and organisations aligned with such governments or parties.’

Criminal penalties, Absolute liability and strict liability

Many offences under this legislation have severe penalties irrespective of whether or not any ham has been caused.  The offences are not necessarily ‘harm based’ and to that extent should not be criminalised nor should elements of the offences be absolute liability or strict liability – inconsistent with Commonwealth Guidelines for setting penalties, given that many key terms and concepts are too vague and general so people will not know if their behaviour is caught or not.  An individual can be tried for a crime at any future time so threat of criminal proceedings may continue for the whole of a person’s life.  There is no limitation period under Commonwealth law for crimes involving imprisonment for more than 6 months – see s 15B Crimes Act.  Alternatively, introduce appropriate limitation periods for specific offences.


Whistleblowing is insufficiently protected (section 122.5(6)). The crime of ‘interfering with’ Australian interests remains very broad and may stifle criticism of police, security or prosecution officials who have acted improperly or negligently. The public interest exception is not available to independent journalists or bloggers, nor to whistleblowers who may be guilty of ‘dealing’ if they contact news media (including with government documents). A person can be guilty of espionage by being reckless as to whether their disclosure of any information or article to a ‘foreign principal’ (widely drafted) might ‘prejudice’ Australia’s national security.