Hans Lovejoy
Broad definitions of national security and security classification have been introduced into a new federal Bill aimed at espionage and foreign interference, sparking concern from peak law and human rights advocates.
A Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 was released last week. It says ‘a number of participants in the inquiry expressed concern about the breadth of the definition.’
Definition
Under a subsection of the Criminal Code, the Bill proposes to define national security as: ‘a) the defence of the country, b) the protection of the country, the people of the country or any part of it, from certain activities covered by subsection (2), c) the protection of the integrity of the country’s territory and borders from serious threats, d) the carrying out of the country’s responsibilities to any other country in relation to the matter mentioned in paragraph (c) or activities covered by subsection (2), and e) the country’s political, military or economic relations with another country or other countries.’
Yet the Bill, which is yet to become law and may be adjusted to reflect the PJCIS’s 60 recommendations, appears not all bad.
One PJCIS recommendation includes ‘broadening several defences such as extending the journalist defence for secrecy offences to editorial, legal and administrative staff within the news organisation.’
The PJCIS press release reads, ‘The Bill repeals existing criminal offences and introduces a range of new offences into the Criminal Code in relation to espionage, foreign interference, theft of trade secrets, sabotage, and secrecy of Commonwealth information.’
Concerns about the breadth of the definition were canvassed by the Australian Lawyers Alliance (ALA), who told the PJCIS they considered that elements of the definition would ‘expand national security beyond the traditional confines of the work of intelligence and security agencies to cover matters that are usually considered squarely within standard government.’
‘The ALA questions why the government is seeking to expand this concept so significantly, and is concerned that such an expansion could obscure damaging government practices, including illegal activities and corruption.’
The PJCIS reads, ‘GetUp considered that, [owing] to the broad definition of national security, the offences in the Bill would impact upon GetUp’s campaigning on issues such as the Trans-Pacific Partnership, refugees and climate change.’
Unworkably vague
‘The Australian Lawyers for Human Rights also submitted that to include economic relations or interests as national security matters is unworkably vague and will have an unreasonably chilling impact on freedom of speech and discourse regarding matters of genuine public interest.
‘This is inconsistent with democratic principles. 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.’
Crikey’s Bernard Keane wrote that the bill was more about curbing transparency than foreign interference.
Parts of the original Bill by former AG George Brandis made it through, says Keane, which furthers the government’s ‘effort to push us toward a police state.’
He wrote, ‘Whistleblowers remain unprotected – they are instead required to go through the labyrinthine APS processes laid down by internal whistleblower laws.’
‘You can still be prosecuted for viewing, sharing and republishing WikiLeaks-style leaked governments documents, unless you can prove you believed the information would not “cause harm to Australia’s interests.”’
The Echo asked local federal MP Justine Elliot if Crikey’s Keane was correct, and if not why? And, does Labor support this Bill?
Mrs Elliot instead replied, ‘Labor urges the government to accept all recommendations of the PJCIS committee for improvements to the Bill.’
‘The recommendations include important safeguards for journalists, whistleblowers and non-government organisations.
‘Labor will always work in a constructive and bipartisan manner with the government when it comes to keeping Australians safe, and giving our agencies the tools they need to achieve that outcome.
‘We also work to achieve an important balance between the security of Australian citizens, privacy, personal liberty and political freedom.’
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