List of Recommendations

Recommendation 1

1.29
The Committee recommends that, following implementation of the recommendations in this report, the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 be passed.

Recommendation 2

3.73
The Committee recommends that the Bill be amended to clarify that, for the purpose of the Bill’s espionage, foreign interference and sabotage offences, the expression ‘prejudice to national security’ cannot consist of
embarrassment alone, and
must also include a degree of damage or harm.

Recommendation 3

3.76
The Committee recommends that the Bill be amended to reflect the intent of the Explanatory Memorandum that the term ‘advantage the national security of a foreign country’ does not apply to conduct that is mutually advantageous to the security of both Australia and the foreign country.

Recommendation 4

3.81
The Committee recommends that the Explanatory Memorandum be amended to provide greater clarity about the intended meaning of the terms ‘espionage’, ‘sabotage’, ‘political violence’ and ‘foreign interference’ for the purposes of the definition of national security at proposed section 90.4.

Recommendation 5

3.83
The Committee recommends that the Bill be amended to clarify that the Bill does not affect the operation of existing provisions in the Australian Security Intelligence Organisation Act 1979, unless explicitly stated.

Recommendation 6

3.88
The Committee recommends that the Bill be amended to define what foreign political organisations may be covered by the term ‘foreign political organisation’.

Recommendation 7

3.94
The Committee recommends that the Bill be amended to define the meaning of ‘Australian Government security clearance’.

Recommendation 8

3.167
The Committee recommends that the Bill be amended to define each ‘security classification’ to which criminal liability attaches. Each definition should include harm-based statutory criteria for determining the proper classification to apply to that information. Any material incorporated by reference into the regulations should be required to be publicly available.

Recommendation 9

3.168
The Committee recommends implementing the Attorney-General’s proposed amendments to
narrow the proposed definition of ‘security classification’ to a classification of SECRET or TOP SECRET, or equivalent, and
remove strict liability from espionage and secrecy offences.

Recommendation 10

3.169
The Committee recommends that the Bill be amended to require that, prior to initiating proceedings for an espionage or secrecy offence that relies on the fact that information is security classified, the head of the originating agency must certify that it is appropriate that the information had a security classification at the time of the conduct that is alleged to constitute the offence.
This certificate should operate as a condition precedent to the initiation of proceedings. The certificate should not have any evidentiary effect.

Recommendation 11

3.170
The Committee recommends that the Bill be amended to remove the evidentiary certificate regimes in proposed sections 93.3(1)(a)‑(b) and 121.3, in relation to security classified information.

Recommendation 12

3.178
The Committee recommends that the Bill be amended to remove the evidentiary certificate regimes in proposed sections 93.3(1)(c)‑(d), in relation to information that ‘concerns Australia’s national security’.

Recommendation 13

3.192
The Committee recommends that the Government amend the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers to identify criteria to be used for determining the kinds of criminal conduct that warrant preparatory offences.

Recommendation 14

4.156
The Committee recommends that the Bill include a note making explicit that the secrecy offences relating to security classified information and other ‘inherently harmful information’ will only apply where a person intentionally deals with the relevant information, and where the person is reckless as to the nature of that information.

Recommendation 15

4.160
The Committee recommends that the Attorney-General’s proposed amendments to narrow the scope of the offences at proposed section 122.1 in relation to ‘inherently harmful information’ be implemented. This includes removing paragraph (d) from the definition of ‘inherently harmful information’, removing strict liability from elements of the offences, and limiting the offences to Commonwealth officers.

Recommendation 16

4.161
The Committee recommends that the Bill be amended to move paragraph (b)—information the communication of which would, or could be reasonably expected to, damage the security or defence of Australia—from the definition of ‘inherently harmful information’ into the definition of ‘cause harm to Australia’s interests’ in proposed section 121.1.

Recommendation 17

4.165
The Committee recommends that the Attorney-General’s proposed amendments to narrow the scope of the offences at proposed section 122.2 in relation to conduct causing harm to Australia’s interests be implemented. This includes removing paragraphs (a)(i), (d) and (e) from the definition of ‘cause harm to Australia’s interests’, clarifying that paragraph (f) applies to the health or safety of the Australian public, or a section of the Australian public, and limiting the offences to Commonwealth officers.

Recommendation 18

4.167
The Committee recommends that the Bill be amended to require that any material incorporated into regulations for the purpose of the definition of ‘proper place of custody’ at proposed section 121.2 be publicly available.

Recommendation 19

4.170
The Committee recommends that the Bill be amended to limit the secrecy offence at proposed section 122.1(4), in relation to failing to comply with a lawful direction, to directions that have been issued for the purpose of protecting the security of the ‘inherently harmful information’ against unauthorised access or disclosure.

Recommendation 20

4.175
The Committee recommends that the Bill be amended to limit the aggravating factor at subparagraph 122.3(1)(b)(v), in relation to the proposed secrecy offences for Commonwealth officers, to persons holding an Australian Government security clearance that allows the person to access information with a classification of SECRET or above.

Recommendation 21

4.179
The Committee recommends that the Attorney-General’s proposed amendments, to create separate secrecy offences that apply to non‑Commonwealth officers that are narrower in scope than those applying to Commonwealth officers, be implemented.

Recommendation 22

4.183
The Committee recommends that the Bill be amended to make clear the effect of the defences in subsections 122.5(1) and (2) in relation to the Freedom of Information Act 1982.

Recommendation 23

4.187
The Committee recommends that the Bill be amended to apply a sunset period of five years to proposed section 122.4 (‘Unauthorised disclosure of information by current and former Commonwealth officers etc.’).

Recommendation 24

4.190
The Committee recommends that, following the passage of the general secrecy offences in Schedule 2 to the Bill, the Attorney-General initiate a review of existing secrecy offences contained in other legislation, taking into account the set of principles contained in the Australia Law Reform Commission’s report, Secrecy Laws and Open Government in Australia.

Recommendation 25

5.85
The Committee recommends that the Bill be amended to ensure that staff of the Inspector-General of Intelligence and Security are appropriately protected, noting the limitations on the Inspector-General and members of staff of the Inspector-General giving evidence under the Inspector-General of Intelligence and Security Act 1986. The Committee recommends that this amendment be developed in consultation with the Inspector-General and her Office.

Recommendation 26

5.87
The Committee recommends that the following proposed defences be broadened to cover all dealings with information, rather than being limited to communication of information:
proposed section 122.5(3) – relating to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman and the Law Enforcement Integrity Commissioner,
proposed section 122.5(4) – relating to the Public Interest Disclosure Act 2013,
proposed section 122.5(5) – relating information provided to a court or tribunal, and
proposed section 122.5(8) – relating to information that has been previously communicated.

Recommendation 27

5.90
The Committee recommends that the Attorney-General’s proposed amendments to the defence for journalists at proposed section 122.5(6), and the associated amendments at 122.5(7), be implemented. This includes expanding the defence to all persons engaged in reporting news, presenting current affairs or expressing editorial content in news media where the person reasonably believed that dealing with or holding the information was in the public interest.
The Committee also recommends that the Government consider further refinements to the proposed defence in order to
make explicit that editorial support staff are covered by the defence, including legal advisors and administrative staff,
ensure editorial staff and lawyers, who are engaging with the substance of the information, be required to hold a reasonable belief that their conduct is in the public interest, and
allow administrative support staff working at the direction of a journalist, editor or lawyer who holds the reasonable belief, to benefit from the defence.

Recommendation 28

5.95
The Committee recommends that the Bill be amended to remove proposed paragraph 122.5(7)(d), which currently limits the availability of the defence for persons engaged in reporting news.

Recommendation 29

5.104
The Committee recommends that the Bill be amended to provide for a defence for a person who reports, to an appropriate entity, malpractice or maladministration in the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth or the functions of the Australian Federal Police under paragraph 8(1)(be) of the Australian Federal Police Act 1979 or the Proceeds of Crimes Act 2002.

Recommendation 30

5.106
The Committee recommends that the Bill be amended to include a defence for dealing with information for the purpose of obtaining legal advice.

Recommendation 31

5.137
The Committee recommends that the Bill be amended to clarify that the secrecy offences in Schedule 2 do not override the obligations and immunities included in the:
Freedom of Information Act 1982,
Privacy Act 1988,
Ombudsman Act 1976,
Inspector-General of Intelligence and Security Act 1986, or
Public Interest Disclosure Act 2013.

Recommendation 32

5.138
The Committee recommends that the Inspector-General of Intelligence and Security Act 1986 be amended to extend statutory immunity to persons who voluntarily provide information to the Inspector-General or her office.

Recommendation 33

5.141
The Committee recommends that Bill be amended to require the Attorney General’s consent for a prosecution under the proposed secrecy offences in Division 122 of the Bill. In deciding whether to consent, the Attorney-General should be required to consider whether the conduct might have been authorised or is otherwise covered by an exception under any of the proposed defences in the Division.

Recommendation 34

5.144
Consistent with recommendations of the Australian Law Reform Commission, the Committee recommends that the Bill be amended to reduce the maximum penalty for the secrecy offences in proposed sections 122.1, 122.2 and 122.4A to seven years’ imprisonment for conduct involving communication of information, and three years’ imprisonment for other dealings.
The maximum penalty for the aggravated secrecy offences in proposed section 122.3 should be ten years’ imprisonment for conduct involving communication of information (consistent with the most serious secrecy offences in the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001), and five years’ for other dealings.

Recommendation 35

6.151
The Committee recommends that the Bill be amended to define the term ‘concerns’ national security.

Recommendation 36

6.156
The Committee recommends that the Bill be amended to define the term ‘made available’ for the purpose of the espionage offences.

Recommendation 37

6.158
The Committee recommends that the Bill be amended to introduce a prior publication defence for the proposed espionage offences. The defence should be appropriately drafted to ensure the effectiveness of the provisions whilst protecting freedom of expression and the implied constitutional right to freedom of political communication.
The Bill should further be amended to require that, prior to instituting proceedings to commit a person to trial for an espionage offence, the Attorney-General must consider whether the conduct might be authorised in any of the defences outlined in Division 91.

Recommendation 38

6.161
The Committee recommends that the Attorney-General’s proposed amendments to narrow the scope of the offence in proposed section 91.3 of the Bill be implemented. This includes requiring that the person dealt with the information for the ‘primary purpose’ of making it available to a foreign principal, limiting the offence to information or articles that have a security classification, and removing strict liability from the offence.

Recommendation 39

6.163
The Committee recommends that the Explanatory Memorandum be amended to clarify the intended scope of the proposed defence in Division 91 for dealings ‘in accordance with a law of the Commonwealth’. The Explanatory Memorandum should provide examples of situations in which conduct would be excused by the specific defence, but not the general defence of lawful authority available under section 10.5 of the Criminal Code.

Recommendation 40

6.165
The Committee recommends that the Bill be amended to limit the aggravating factor at subparagraph 91.6(1)(b)(v), in relation to the proposed espionage offences, to persons holding an Australian Government security clearance that allows the person to access information with a classification of SECRET or above.

Recommendation 41

6.168
The Committee recommends that the Explanatory Memorandum be amended so that the Statement of Compatibility with Human Rights explicitly addresses the limitation to the right to freedom of expression imposed by the espionage offences.

Recommendation 42

7.71
The Committee recommends that the Bill be amended to explicitly provide that the term ‘support’ refers to ‘material support’, and that the Explanatory Memorandum provide examples of conduct that will not constitute material support, for example, news reporting, editorial or opinion writing and humanitarian assistance.

Recommendation 43

7.107
The Committee recommends that the Explanatory Memorandum be amended to clarify whether the offence is intended to capture the theft of trade secrets by hacking or other online vectors.

Recommendation 44

8.57
Consistent with the other sabotage offences in the Bill, the Committee recommends that proposed sections 82.7 and 82.8 (introducing vulnerability with intention, or recklessness, as to national security) be amended to remove the following elements:
harm or prejudice to Australia’s economic interests,
disruption to the functions of the Government of the Commonwealth, or a State or of a Territory, and
damage to public infrastructure.

Recommendation 45

8.60
The Committee recommends that the defence at proposed section 82.10, in relation to the Bill’s sabotage offences, be broadened to include conduct engaged in on behalf of a private owner or operator of infrastructure, in addition to public officials.

Recommendation 46

9.99
The Committee recommends that the Bill be amended to define the term ‘advocating’ for the purpose of proposed section 83.1 (advocating mutiny), consistent with other existing offences in the Criminal Code.

Recommendation 47

9.103
The Committee recommends that the Bill be amended to provide that the ‘good faith’ defence at section 80.3 of the Criminal Code is available for the offence of advocating mutiny.

Recommendation 48

9.105
The Committee recommends that proposed section 83.5(4) ‘Consent of Attorney-General required for prosecutions’ be amended so that, for an offence against section 83.1 (advocating mutiny), the Attorney-General must consider whether conduct might be authorised in a way mentioned in section 80.3.

Recommendation 49

9.111
The Committee recommends that proposed section 83.3 (military style training involving foreign government) be amended to provide a defence against prosecution for those engaged in humanitarian work, including compliance training on the laws of armed conflict.

Recommendation 50

9.114
The Committee recommends that the Government reduce the penalty for the offence of ‘interference with political rights and duties’ at proposed section 83.4 from 10 years’ imprisonment.

Recommendation 51

9.115
The Committee recommends that the Explanatory Memorandum be amended to clarify that nothing in the Bill affects the Parliament’s powers in relation to contempt.

Recommendation 52

10.39
The Committee recommends that the Explanatory Memorandum be amended so that the Statement of Compatibility with Human Rights explicitly addresses the necessity, reasonableness, and proportionality of the expansion of telecommunications interceptions powers to all of the offences specified in Schedule 4 of the Bill.

Recommendation 53

10.62
The Committee recommends that Schedule 1, item 29 of the Bill be amended such that section 35A of the Australia Citizenship Act 2007 applies to the foreign interference offences in the Bill, and does not apply to
proposed section 82.9 (preparing for or planning sabotage offence),
proposed section 83.4 (interference with political rights and duties), or
proposed Part 5.6 – Secrecy of information.

Recommendation 54

10.74
The Committee recommends that the Bill be amended such that the phrase ‘national security offence’ in the Australian Citizenship Act 2007 is limited to those offences which contain a clear nexus to national security.

Recommendation 55

10.75
The Committee recommends that the Explanatory Memorandum be amended so that the Statement of Compatibility with Human Rights explicitly addresses the interaction between the proposed consequential amendments to citizenship application provisions, and Australia’s international obligations regarding stateless persons.

Recommendation 56

10.103
The Committee recommends that the Bill be amended to provide that section 15AA(1) of the Crimes Act 1914 applies to an offence against proposed Division 80, Division 91, and Division 92 of the Criminal Code only if:
the death of a person is alleged to have been caused by conduct that is a physical element of the offence, or
conduct that is a physical element of the offence carried a substantial risk of causing the death of a person.

Recommendation 57

10.113
The Committee recommends that the Explanatory Memorandum for the Bill be amended to clarify the scope and application of section 93.2 of the Criminal Code.

Recommendation 58

10.125
The Committee recommends that the Bill be amended to provide that section 19AG of the Crimes Act 1914, relating to minimum non-parole periods for certain offences, applies to an espionage offence against section 91.1(1) or 91.2(1), rather than all espionage offences in Division 91.

Recommendation 59

11.3
The Committee recommends that, after a period of three years, the Independent National Security Legislation Monitor be required to conduct a review of Division 82 (sabotage), Part 5.2 (espionage, foreign interference, theft of trade secrets), and Part 5.6 (secrecy) of the Criminal Code.
A copy of the report on the independent review should be provided to the Attorney-General, who should be required to provide it to the Committee. Any amendments proposed to be made to the laws as a result of the review should be referred to the Committee for inquiry.

Recommendation 60

11.5
The Committee recommends that the Attorney-General’s Department review the Bill and Explanatory Memorandum in detail with a view to making amendments to correct any drafting errors prior to the conclusion of debate in the Parliament.

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About this inquiry

On 7 June 2018 the Committee tabled the Advisory report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.



Past Public Hearings

16 Mar 2018: East Melbourne
16 Feb 2018: Canberra
15 Feb 2018: Canberra