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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Australia: Bills Containing New Espionage, Foreign Interference Offenses, and Establishing Foreign Agent Registry Enacted

(Aug. 21, 2018) On June 28, 2018, the Australian Parliament passed the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 (Cth) (the Bill). (National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018, Parliament of Australia website; National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth), Federal Register of Legislation website.) The Bill received royal assent on June 29, 2018, with the majority of the provisions coming into force the following day. The new secrecy provisions will come into force on a date fixed by proclamation, or otherwise six months after royal assent. (National Security Legislation (Espionage and Foreign Interference) Act 2018 (Cth) s 2.)

Separately, on the same date, the Parliament passed the Foreign Influence Transparency Scheme Bill 2018 (Cth) (FITS Bill). (Foreign Influence Transparency Scheme Bill 2018, Parliament of Australia website; Foreign Influence Transparency Scheme Act 2018 (Cth), Federal Register of Legislation website.) The FITS Bill “will introduce registration obligations for persons and entities who have certain arrangements with, or undertake certain activities on behalf of, foreign principals.” (Espionage, Foreign Interference and Foreign Influence, Attorney-General’s Department website (last visited Aug. 17, 2018).) It will come into effect on a date fixed by proclamation, or 12 months after royal assent. (Foreign Influence Transparency Scheme Act 2018 (Cth) s 2.)

National Security (Espionage and Foreign Interference) Bill

According to the explanatory memorandum for the Bill, it

  • strengthens existing espionage offences
  • introduces new foreign interference offences targeting covert, deceptive or threatening actions by foreign actors who intend to influence Australia’s democratic or government processes or to harm Australia
  • reforms [the] Commonwealth’s secrecy offences, ensuring they appropriately criminalise leaks of harmful information while also protecting freedom of speech
  • introduces comprehensive new sabotage offences that effectively protect critical infrastructure in the modern environment
  • modernises and reforms offences against government, including treason, to better protect Australia’s defence and democracy
  • introduces a new theft of trade secrets offence to protect Australia from economic espionage by foreign government principals,
  • introduces a new aggravated offence for providing false and misleading information in the context of security clearance processes, and
  • ensures law enforcement agencies have access to telecommunications interception powers to investigate these serious offences.

(Parliament of the Commonwealth of Australia, Senate, National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017: Revised Explanatory Memorandum, at 2, Parliament of Australia website.)

The Bill made substantial amendments to chapter 5 of the Criminal Code Act 1995 (Cth) (Federal Register of Legislation website), including amending part 5.2 of the Criminal Code, now titled “Espionage and Related Offences,” to “introduce comprehensive new espionage offences in Division 91. The new offences criminalise a broad range of dealings with information, including possessing or receiving, and protect a broader range of information, including unclassified material.” (Id. at 3.) Furthermore, “[t]he new offences will not just target the person who discloses the information, but also the actions of the foreign principal who receives the information.” (Id.)

The Bill also inserted a new division 92 into part 5.2, containing new foreign interference offenses, which

complement the espionage offences by criminalising a range of other harmful conduct undertaken by foreign principals who seek to interfere with Australia’s political, governmental or democratic processes, to support their own intelligence activities or to otherwise prejudice Australia’s national security. The offences will apply where a person’s conduct is covert or deceptive, involves threats or menaces or does not disclose the fact that conduct is undertaken on behalf of a foreign principal. New Division 92 also criminalises the provision of support or funding to foreign intelligence agencies. (Id.)

A new division 92A of part 5.2 introduces an offense targeting “dishonest dealings with trade secrets on behalf of a foreign government principal,” referred to as “economic espionage.” (Id.)

In addition, the Bill added a new part 5.6 to the Criminal Code, containing new secrecy offenses. These offenses “will apply if the information disclosed is inherently harmful (such as security classified information) or would otherwise cause harm to Australia’s interests.” (Id. at 4.) Separate offenses apply to federal public officials and nonpublic officials. (Id.)

Foreign Influence Transparency Scheme Bill

The FITS Bill establishes a system that will

  • require registration by persons undertaking certain activities on behalf of a foreign principal
  • contain appropriate exemptions for certain activities or classes of persons
  • allow the Secretary to issue a transparency notice stating that a particular entity or individual is related to a foreign government of foreign political organisation
  • require registrants to disclose information about the nature of their relationship with the foreign principal and activities undertaken pursuant to that relationship (both at the initial point of registration and on an ongoing basis for the duration of the relationship)
  • place additional disclosure requirements on registrants during elections and other voting periods
  • allow some information to be made publicly available, to serve the transparency purposes of the scheme
  • be supported by powers which will be vested in the Secretary, including issuing notices to produce information or documents, and
  • be supported by tiered criminal offences for non-compliance.

(Parliament of Australia, Senate, Foreign Influence Transparency Scheme Bill: Revised Explanatory Memorandum, at 2, Parliament of Australia website.)

Reactions to the New Legislation

When the Bill and FITS Bill were first introduced in December 2017, various concerns were raised about their scope and potential impact on journalists and whistle-blowers. For example, a joint submission from several media organizations to the Parliamentary Joint Committee (PJCIS) on Intelligence and Security, as part of its consideration of the Bill, argued that the Bill “criminalises all steps of news reporting, from gathering and researching of information to publication/communication, and applies criminal risk to journalists, other editorial staff and support staff that knows of the information that is now an offence to ‘deal’ with, hold and communicate.” (Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, Submission 9, at 1 (Jan. 22, 2018), Parliament of Australia website.)

The final version of the Bill included numerous changes recommended by the PJCIS. (PJCIS, Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (June 2018), Parliament of Australia website; Press Release, Hon Christian Porter MP, Amendments to Espionage and Foreign Interference Bill (Mar. 6, 2018), Attorney-General for Australia website.) This included amending the defenses to some of the new provisions “to ensure the offences do not apply too broadly, including a defence specifically applying to journalists (as well as editorial and support staff) who reasonably believe that their conduct was in the public interest.” (Revised Explanatory Memorandum, supra, at 4.)

The Australian government argued that the reforms were needed to “counter the threat of foreign states exerting improper influence over our system of government and our political landscape.” (Speech, Hon Malcolm Turnbull MP, Speech Introducing the National Security Legislation Amendment (Espionage and Foreign Interference) Bill (Dec. 7, 2017), Prime Minister of Australia website.) In his speech upon the introduction of the Bill in the Parliament, the Prime Minister referred to Russian activities with respect to the 2016 US election and the Brexit referendum, as well as to media reports that “suggested that the Chinese Communist Party has been working to covertly interfere with our media, our universities and even the decisions of elected representatives right here in this building.” (Id.) Such comments were reported as increasing diplomatic tension between the Australian and Chinese governments, which stated that “[w]e are strongly dissatisfied with those remarks and have lodged stern representations with the Australian side.” (China Meets Australian Ambassador Amid ‘Influence’ Debate, BBC NEWS (Dec. 14, 2017).)

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Japan: Smoking Regulations Are Getting Stricter

(Aug. 20, 2018) Japan has strengthened its tobacco regulations with an act to amend the Health Promotion Act. The amending act was promulgated on July 25, 2018. (Act No. 103 of 2002, as amended, e-Gov website (in Japanese); Act No. 78 of 2018, Kanpou website (in Japanese).)  In order to protect people who want to avoid second-hand smoke, the management of an indoor facility used by “many people” is obligated under the amended Act to make the facility smoke-free, with some exceptions. (Reasons for the Proposal of the Bill, Cabinet Bill No. 47 of 196th Diet Session (in Japanese).) The Health Promotion Act will be amended three times by this amendment Act—within six months and eighteen months of the promulgation date, and again on April 1, 2020. (Act No. 78 of 2018 supp. provisions, art. 1.)  The regulations will be stricter in each phase.

The amended Act will ban smoking indoors at schools, hospitals, and government offices within 18 months of the promulgation date.  (Health Promotion Act, Act No. 103 of 2002, as amended by Act No. 78 of 2018, art. 25-4, item 4 and art. 25-5 (second phase).)

From April 2020, other facilities that “many people” use must be smoke-free, except for smoking rooms that meet certain criteria. (Id. art. 29 & art. 33, para. 1 (third/last phase).)  The management of a facility must not allow persons under twenty years of age to be in the smoking room. (Id. art. 33, para. 5.)  The amended Act allows a person to establish a facility whose main purpose is to provide a place for smoking.  Even in this case, the facility must have a means of preventing smoke from going outside the facility. (Id. arts. 28, 29 & 35.)

The amended Act gives existing small cafés, bars, and restaurants that are not owned by large companies a moratorium period. Until a date to be decided later, such businesses may allow smoking within the entire facility if the facility has a means of preventing smoke from going outside the facility. (Act No. 78 of 2018 supp. provisions, art. 2.)

The prefecture governor can order a person who smokes in a prohibited area to stop smoking or leave the area. Failure to follow such an order is punishable by a fine up to 300,000 yen (approximately US$2,700). (Health Promotion Act, as amended by Act No. 78 of 2018, art. 77 (third phase).)

The Tokyo Metropolitan Government enacted its own ordinance to regulate smoking that is even stricter than the amended Health Promotion Act. The ordinance bans smoking even outside the buildings of daycare centers and elementary, middle, and high schools. It also bans smoking at cafés, bars, and restaurants that employ workers regardless of the size of seating space. (Tokyo Metropolitan Government Secondhand Smoking Prevention Ordinance, Bureau of Social Welfare and Public Health, Tokyo Metropolitan Government website (in Japanese) (last visited Aug. 9, 2018).)

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China: Tax Incentives Extended to More Small Businesses

(Aug. 17, 2018) On July 11, 2018, China’s Ministry of Finance (MOF) and State Administration of Taxation (SAT) jointly issued a notice mandating the doubling of the income threshold for small, low-profit companies to be eligible for preferential corporate income-tax incentives. (MOF and SAT, Notice on Further Expanding the Scope of Application of the Preferential Income Tax Policies on Small and Micro Enterprises (July 11, 2018) (in Chinese), SAT website.)

According to the notice, for the years 2018 to 2020, the annual taxable income threshold for small and low-profit companies to be eligible for preferential corporate income tax incentives will increase from 500,000 yuan renminbi (RMB) (about US$72,951) to RMB1 million (about US$145,918). (Id.)

To be eligible, a small, low-profit company must not belong to business sectors prohibited or restricted by the state, and must satisfy the following standards:

  • Industrial enterprises must not have more than 100 employees and no more than RMB30 million (about US$4.38 million) in assets.
  • Other enterprises must not have more than 80 employees and no more than RMB10 million (about US$1.46 million) in assets. (Id.)

For eligible small, low-profit companies, the corporate income tax is to be levied on 50% of their actual taxable income and at the preferential rate of 20%. (Id.) China’s 2008 Enterprise Income Tax Law sets up a standard 25% corporate income-tax rate for all resident companies and nonresident companies having income-generating establishments in China. (Law of the People’s Republic of China on Enterprise Income Tax (adopted by the National People’s Congress (NPC) on Mar. 16, 2007, effective Jan. 1, 2008), NPC website.)

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China: 2020 Air Pollution Action Plan Released

(Aug. 16, 2018) On June 27, 2018, the State Council (China’s cabinet) released a three-year action plan for tackling air pollution, which sets up targets for improving the air quality of the country by 2020. (State Council, Three-Year Action Plan for Winning the Blue Sky War (Guo Fa [2018] No. 22, June 27, 2018) (Three-Year Action Plan) (in Chinese), State Council website; Hao Feng, China Releases 2020 Action Plan for Air Pollution, CHINADIALOGUE (July 6, 2018).)

The Three-Year Action Plan contains specific targets for reducing emissions of sulfur dioxide (SO2) and nitrogen oxides by 2020, with both to decrease by at least 15% compared with 2015. For cities where the existing PM2.5 (fine particulate matter) standards have not been met, the urban concentration of PM2.5 is targeted to decrease by at least 18% compared with 2015. The annual numbers of days with fairly good air quality is targeted to increase to at least 80%, and highly polluted days to decrease by at least 25% compared with 2015. (Three-Year Action Plan, supra.)

The Plan focuses more on controlling ozone than the previous action plan by adding specific targets not only for nitrogen oxides, but also for volatile organic compounds (VOCs). Ozone is created when VOCs react with nitrogen oxides. By 2020, VOCs are targeted to decrease by 10% compared with 2015.  (Id.; Feng, supra.)

Another notable change is that the Three-Year Action Plan redefines the key regions where air pollution is heavy. The Plan does not include the Pearl River Delta, which was one of the three key regions in the previous air pollution action plan. A new key region has been added: the Fen-Wei Plains, which include Xi’an, the capital city of Shaanxi province, as well as other parts of Shaanxi; Henan province; and Shanxi province. Furthermore, the Beijing-Tianjin-Hebei key region has been expanded to include the surrounding areas, including parts of Shanxi, Shandong, and Henan provinces. (Three-Year Action Plan, supra.)

The Plan explicitly calls for a reduction in emissions of pollutants “in coordination with” a reduction in emissions of greenhouse gases, indicating that China is integrating the management of air pollution and climate change. (Feng, supra.) The National Development and Reform Commission (NDRC) used to be responsible for managing greenhouse gases and combating climate change, while the management of air pollutants other than greenhouse gases was the responsibility of the Ministry of Environmental Protection (MEP). In April 2018, a new Ministry of Ecology and Environment (MEE) was established. The MEE absorbed the environmental protection functions of the former MEP and several other central government departments, including the NDRC. (Ma Tianjie & Liu Qin, China Reshapes Ministries to Better Protect Environment, CHINADIALOGUE (Mar. 14, 2018).)

The Three-Year Action Plan was issued following the expiration in 2017 of the earlier plan released in 2013. (State Council, Air Pollution Prevention and Control Action Plan (Guo Fa [2013] No. 37, Sept. 10, 2013) (in Chinese), English translation available on the Clean Air Alliance of China website.) The 2013 Plan has been called China’s most influential environmental policy of the past five years and an important factor in significantly improving China’s air quality by setting PM2.5 targets for key regions. (Feng, supra.)

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Sweden: Supreme Court Rules Live Broadcast of Rape Is Aggravated Defamation but Not Violation of Duty to Report Ongoing Rape

(Aug. 8, 2018) On July 2, 2018, the Swedish Supreme Court ruled that a man who had filmed an ongoing rape and broadcast it on Facebook Live was guilty of aggravated defamation (grovt förtal) but not of the crime of failure to report a rape. (Högsta domstolen [Swedish Supreme Court], Case No. B 3552-17 (July 2, 2018), Supreme Court website.) The prosecutor had initially charged the man with failure to report an ongoing rape, aiding in the rape, and aggravated defamation. (Id. ¶¶ 3–4.) Failure to report an ongoing rape is a separate crime in Sweden. (6 kap. 15 § Brottsbalken (BrB) [CRIMINAL CODE], Swedish Parliament website.)

Background

On a night in January 2017, one woman, incapacitated because of alcohol and drug consumption, was consecutively raped by two men while a third filmed and streamed the incident. (Case No. B 3552-17, ¶¶ 1–3.) Subsequently, both the District Court and the Appeals Court convicted the third man of failing to report the crime and of aggravated defamation, but not of aiding in the rape. (Id. ¶¶ 6–8.)

Supreme Court Holding

The Supreme Court found that because the prosecutor had initially prosecuted him for involvement in the crime, it could not also charge the man with failure to report the crime in the alternative, as fear of being charged with an ongoing crime is a legal defense against having to report it. Thus, the Supreme Court held that because the man was charged with aiding in the crime meant he could not be charged with failure to report it. (Id. ¶¶ 15–16.)

Aggravated Defamation Defense

The defendant had argued in defense against the aggravated defamation charge that the broadcast of the rape on Facebook Live was protected by his constitutional rights to broadcast under the Yttrandefrihetsgrundlagen (YGL)—The Fundamental Law on Freedom and Expression. If deemed a constitutionally protected broadcast the action could not have resulted in a conviction of aggravated defamation. Under Swedish law, some broadcasts by private citizens are constitutionally protected. To be constitutionally protected a broadcast must be directed to the public and be viewed as “a program” as defined in the Web Broadcast Rule. (Id. ¶¶ 21, 26; 1 kap. 6 Yttrandefrihetsgrundlagen (YGL) [Fundamental Law on Freedom of Expression], Parliament website.)

The Supreme Court found that in order for a broadcast to constitute a broadcast “program,” the broadcast needs to have a thematic purpose and that not all spontaneous broadcasts could be described as programs. In this case the live streaming on a closed Facebook page could not be considered a program and was thus not constitutionally protected. Accordingly, the broadcast could be considered as aggravated defamation. (Case No. B 3552-17, ¶¶ 28, 29, 32.)

Sentencing

The Supreme Court ruled that the man should be sentenced to four months’ imprisonment, as he had committed the crime while on probation. (Id. Domslut & ¶ 36.)

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