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Article 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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Chicago citation style:

Buchanan, Kelly. Australia: Bills Containing New Espionage, Foreign Interference Offenses, and Establishing Foreign Agent Registry Enacted. 2018. Web Page. https://www.loc.gov/item/global-legal-monitor/2018-08-21/australia-bills-containing-new-espionage-foreign-interference-offenses-and-establishing-foreign-agent-registry-enacted/.

APA citation style:

Buchanan, K. (2018) Australia: Bills Containing New Espionage, Foreign Interference Offenses, and Establishing Foreign Agent Registry Enacted. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2018-08-21/australia-bills-containing-new-espionage-foreign-interference-offenses-and-establishing-foreign-agent-registry-enacted/.

MLA citation style:

Buchanan, Kelly. Australia: Bills Containing New Espionage, Foreign Interference Offenses, and Establishing Foreign Agent Registry Enacted. 2018. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2018-08-21/australia-bills-containing-new-espionage-foreign-interference-offenses-and-establishing-foreign-agent-registry-enacted/>.