ALHR – Problems Remaining with the FITS Bill

Problems Remaining with the FITS Bill

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otherwise normal and legal behaviour should not be criminalised (if not self-reported) nor should elements of the offences be absolute liability or strict liability – inconsistent with Commonwealth Guidelines for setting penalties, particularly given that many key terms and concepts are too vague and general so people will not know if their behaviour is caught or not. It is particularly unreasonable to impose criminal penalties under the legislation because 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 an appropriate limitation period (2 years?)

while ‘collaboration’ and ‘funding’ are removed from the definition of ‘on behalf of’ in section 11(1) other terms with similar meanings still remain like the reference to ‘or at the request of’ in section 11 (1)(c) and the concept of ‘in the service of’ under section 11(1)(b). In particular, section 11(3) needs to be removed. It needs to be made clear that only a direct principal/agency relationship is caught by the legislation.

what does ‘foreign political organisation’ mean? The Australian Lawyers Alliance (quoted at paragraph 3.53 of the report in relation to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017) has submitted that 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.’The Committee’s report on that Bill appeared to agree also with the Australian Lawyers Alliance submission, saying that the ‘ambiguity should be rectified’ (par 3.86). However no such rectification has been proposed in relation to the Foreign Influence Transparency Scheme Bill 2017. Such rectification is required here also.

It should be made clear that the element of ‘political or governmental influence’ is only in relation to processes not outcomes, and only in relation to Australian politics and Australian governmental issues. ALHR endorses the change to section 12 to delete the phrase “(including the outcome)” so that it is a little clearer that the harm against which the Bill is aimed is interference with government or political processes. However in our view it is still possible that a court could regard the outcome of a process as an integral part of such process, so we submit that it would be preferable rather than deleting the phrase “(including the outcome)” to amend it to read: “(but not including the outcome).”

We also submit that section 12 should be amended to make it clear that it is Australian government and parliamentary influence that is in question. Attempting to influence non-Australian entities should be clearly excluded.Similarly, the definitions of ‘communications activity’ and ‘lobbying’ should be amended to clarify that they do not relate to activities primarily outside Australia and not relating to Australian political or governmental processes.

The legislation (Section 12) should not cover influencing the processes of political campaigners. The amendments to the Bill proposed in Schedule 5 of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, whereby influencing a process in relation to a political campaigner (as so registered under the Electoral Act) would be regarded as constituting political or governmental influence for the purposes of section 12 of the Bill, should not be included in the final wording of the Bill. The examples given in new subclause 12(7) of processes of a political campaigner which might engage section 12 is excessively wide, including processes in relation to the campaigner’s platform and policies on any matter of public concern.

Under section 12(2), a person is regarded as undertaking an activity for the purposes of political or governmental influenceif a sole or primary purpose, or a substantial purpose, of the activity is to influence the public, or a section of the public, in relation to the matter.In other legal contexts, ‘section of the public’ can mean even a very small group of people who have no common connection – for example, an audience at a public talk, no matter how few the number, or the readers of a public article, no matter how few the number.Unless it is very clear in the Bill that the legislation does not apply except in the case of a direct principal/ agency relationship in the traditional legal sense (which, we submit, requires the deletion of subsection 11(3) as explained above), writers and speakers including journalists and academics will be afraid to communicate personal views at variance with those of the government of the day, and perhaps will even be afraid to discuss issues related to foreign interference, when they can be regarded as carrying out political or governmental influence even when they communicate with only a small audience. This is particularly the case because under section 14 the intention of the writer or speaker is not paramount, and they can be regarded as carrying out an activity for the purpose of political or governmental influence even if this is not their intention.The several references in the Bill to communication with ‘a section of the public’ should preferably be deleted but if not should be clearly defined to enable people to understand whether or not they might be carrying out an activity which is caught under the Bill.

For greater comfort and clarity, in order to avoid the chilling of free speech which is otherwise already happening, we recommend specific exclusions relating to academic, cultural, community and charitable work which is not directed by a foreign principal.