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Foreign Interference) Bill 2017 January 2018 Parliamentary Joint Committee on Intelligence and Security Attorney-General’s Department Submission Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 Contents Contents ............................................................................................................................................ 2 Introduction ....................................................................................................................................... 3 Background .................................................................................................................................. 3 Overview of legislative package ................................................................................................... 3 Overview of submission ............................................................................................................... 4 Challenges faced by law enforcement and national security agencies ....................................... 6 The current threat environment .................................................................................................... 6 Outdated and ineffective laws ...................................................................................................... 7 National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 ..... 8 Overview ...................................................................................................................................... 8 Espionage and theft of trade secrets ............................................................................................ 8 Foreign interference ................................................................................................................... 19 Secrecy ...................................................................................................................................... 24 Sabotage .................................................................................................................................... 34 Treason, treachery and other threats to security ........................................................................ 40 False or misleading information ................................................................................................. 46 TIA Act amendments .................................................................................................................. 47 Legislative safeguards ............................................................................................................... 48 Appendix A – ASIO unclassified conduct examples ................................................................... 50 Appendix B – Comparison of international regimes .................................................................... 52 Espionage .................................................................................................................................. 52 Theft of trade secrets ................................................................................................................. 54 Foreign Interference ................................................................................................................... 60 Secrecy ...................................................................................................................................... 61 Sabotage .................................................................................................................................... 69 Treason ...................................................................................................................................... 71 Appendix C – Comparison of old and new offences ................................................................... 75 Page | 2 Introduction 1. The Attorney-General’s Department welcomes the opportunity to provide the Parliamentary Joint Committee on Intelligence and Security with this submission as part of the Committee’s inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017. 2. The Bill was introduced into the House of Representatives on 7 December 2017 by the Prime Minister, the Hon Malcolm Turnbull MP, and referred to the Committee on 8 December 2017 for inquiry and report by February 2018. Background 3. On 12 May 2017 the Prime Minister requested that the then Attorney-General, Senator the Hon George Brandis QC undertake a review of Australia’s espionage and foreign interference legislation, to consider: the adequacy and effectiveness of existing espionage and treason offences under the Criminal Code Act 1995 (Cth) (Criminal Code), and the official secrets offences under the Crimes Act 1914 (Cth) (Crimes Act) the merit of creating specific foreign interference offences within the Criminal Code the merit of creating a legislative regime based on the United States’ Foreign Agents Registration Act 1938, and whether there are any complementary provisions that would strengthen agencies’ ability to investigate and prosecute acts of espionage and foreign interference. 4. It was apparent to the review that foreign intelligence services are currently seeking to harm Australia’s interests on an unprecedented scale and through a variety of means, including by obtaining classified information or by seeking to influence the outcome of Australia’s democratic and institutional processes. The review found that existing criminal offences have proven inadequate in addressing such conduct and have therefore had limited impact in deterring and countering espionage and foreign interference activities occurring in Australia. Overview of legislative package 5. On 7 December 2017 the Prime Minister introduced a comprehensive package of legislative reforms in response to the Attorney-General’s review, including: the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 the Foreign Influence Transparency Scheme Bill 2017, and Page | 3 the Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017. 6. The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 will amend the Criminal Code, the Crimes Act and the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act). The purpose of the Bill is to modernise and strengthen espionage, treason, secrecy and related criminal offences, and to create new foreign interference offences to ensure the protection of Australia and Australia’s national security interests. 7. The Foreign Influence Transparency Scheme Bill 2017 will establish the Foreign Influence Transparency Scheme. The scheme will introduce registration obligations for persons and entities who have certain arrangements with, or undertake certain activities on behalf of, foreign principals. The scheme provides visibility of the nature and extent of foreign influence over Australia’s government and political processes. 8. The Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017 will provide legislative authority for the Government to impose charges for applications for registration and renewal of registration under the scheme. Charges are intended to partially offset the costs involved in establishing, administering and maintaining the scheme. 9. In addition to these legislative reforms, the Minister for Finance introduced the Electoral Legislation Amendment Act (Electoral Funding and Disclosure Reform) Bill 2017, which amends the Commonwealth Electoral Act 1918 (Cth) to improve the consistency of regulations that apply to the financed election campaigns of key political actors. The bill will restrict the ability of foreign money to finance domestic election campaigns by prohibiting donations from foreign governments and state-owned enterprises and will further prohibit political actors from using donations from foreign sources to fund reportable political expenditure. 10. The legislative package represents a comprehensive, whole-of-government effort to address the threat of espionage, foreign interference and foreign influence in Australia. Overview of submission 11. The submission provides an overview of the nature and extent of the threat of espionage and foreign interference in Australia and the challenges facing law enforcement and national security agencies in addressing this threat. 12. The submission then examines key elements of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, including offences for: espionage and theft of trade secrets foreign interference secrecy sabotage Page | 4 treason, treachery and other threats to security, and false or misleading information. 13. The submission also outlines amendments to the TIA Act, which will enable law enforcement and national security agencies to access telecommunications interception powers to investigate the offences included in the Bill. 14. Finally, the submission outlines a number of legislative safeguards in the Bill, which ensure that the offences balance the protection of Australia’s national security with the protection of individual rights and freedoms. Page | 5 Challenges faced by law enforcement and national security agencies 15. Australia’s law enforcement and national security agencies face significant challenges in addressing foreign interference and related activities in Australia. A key challenge is the lack of criminal offences for acts of foreign interference, and ineffective
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