New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
- bills introduced into the Parliament between 5 and 8 February 2018 (consideration of 8 bills from this period has
been deferred);[1]
- legislative instruments registered on the Federal Register of
Legislation between 15 December 2017 and 8 January 2018 (consideration of 6
legislative instruments from this period has been deferred);[2] and
- bills and legislative instruments previously deferred.
Instruments not raising human rights concerns
1.2
The committee has examined the legislative instruments registered in the
period identified above, as listed on the Federal Register of Legislation. Instruments
raising human rights concerns are identified in this chapter.
1.3
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Response required
1.4
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
National Security Legislation Amendment (Espionage and Foreign
Interference) Bill 2017
Purpose |
Seeks to amend various Acts
in relation to criminal law to: amend espionage offences; introduce new
foreign interference offences targeting covert, deceptive or threatening
actions by foreign entities; amend Commonwealth secrecy offences; introduce
comprehensive new sabotage offences; amend various offences, including
treason; introduce a new theft of trade secrets offence; introduce a new
aggravated offence for providing false and misleading information in the
context of security clearance processes; and allow law enforcement agencies
to have access to telecommunications interception powers. The bill also seeks
to make amendments relevant to the Foreign Influence Transparency Scheme,
including seeking to amend the Foreign Influence Transparency Scheme Act 2017
(currently a bill before Parliament) |
Portfolio |
Attorney-General |
Introduced |
House of Representatives, 7
December 2017 |
Rights |
Freedom of expression; right
to an effective remedy; privacy; freedom of association; presumption of
innocence; to take part in public affairs (see Appendix 2) |
Status |
Seeking additional
information |
Secrecy provisions
1.5
Schedule 2 of the bill would amend the Crimes Act 1914 (Crimes
Act) and the Criminal Code Act 1995 (Criminal Code) to introduce a range
of new criminal offences related to the disclosure or use of government
information. These replace existing offences.[3]
Offences relating to 'inherently
harmful information'
1.6
Proposed subsections 122.1(1)-(2) of the Criminal Code provide that a
person commits an offence if the person communicates or deals with information
that is 'inherently harmful information' in circumstances where the information
was made or obtained by that or any other person by reason of being, or having
been, a 'Commonwealth officer'[4] or otherwise engaged to perform work for a Commonwealth entity.[5]
1.7
Proposed subsections 122.1(3)-(4) would also criminalise removing or
holding 'inherently harmful information' outside a proper place of custody and
failing to comply with a lawful direction regarding the retention, use or
disposal of such information. These proposed offences carry a maximum term of
imprisonment of between 5 to 15 years.
1.8
'Inherently harmful information' is defined to include:
-
security classified information;[6]
-
information the communication of which would, or could reasonably
be expected to, damage the security or defence of Australia;
-
information that was obtained by, or made by or on behalf of, a
domestic intelligence agency or a foreign intelligence agency in connection
with the agency’s functions;
-
information that was provided by a person to the Commonwealth or
an authority of the Commonwealth in order to comply with an obligation under a
law or otherwise by compulsion of law;
-
information relating to the operations, capabilities or
technologies of, or methods or sources used by, a domestic or foreign law
enforcement agency.[7]
Offences of conduct causing harm to
Australia's interests
1.9
Under proposed section 122.2 of the Criminal Code it is an offence for a
person to communicate, deal with or remove or hold information (outside a
proper place of custody) where this conduct causes, or is likely to cause, harm
to Australia's interests and the information was made or obtained by the
person, or any other person, by reason of being, or having been, a
'Commonwealth officer'[8] or otherwise engaged to perform work for a Commonwealth entity. These offences
carry maximum penalties of between 5 and 15 years imprisonment.
Aggravated offences
1.10
In relation to the offences under sections 122.1 and 122.2, proposed
section 122.3 of the Criminal Code would introduce an aggravated offence where
additional circumstances apply.[9] These aggravated offences carry a maximum penalty of between 10 and 20 years
imprisonment.
Unauthorised disclosure by
Commonwealth officers and former Commonwealth officers
1.11
Proposed section 122.4 of the Criminal Code provides that a person
commits an offence if they communicate information which they are required
under Commonwealth law not to disclose where the information was made or
obtained by reason of the person being, or having been, a Commonwealth officer
or otherwise engaged to perform work for a Commonwealth entity.
Defences
1.12
Proposed section 122.5 of the Criminal Code provides for a number of
defences to each of the offences in proposed sections 122.1-122.4 including
where:
-
the person was exercising a power or performing a function or
duty in their capacity as a Commonwealth officer or someone otherwise engaged
to perform work for a Commonwealth entity;
-
the person acted in accordance with an agreement or arrangement
to which the Commonwealth was a party;
-
the information is already public with the authority of the
Commonwealth;
-
the information is communicated to the Inspector-General of
Intelligence and Security, the Commonwealth Ombudsman, the Enforcement
Integrity Commissioner or their staff for the purpose of performing a function
or duty;
-
the information is communicated in accordance with the Public
Interest Disclosure Act 2013;
-
the information is communicated to a court or tribunal;
-
the information is dealt with or held in the 'public interest'[10] in the person's capacity as a journalist for the purposes of fair and accurate
reporting;
-
the information has been previously published and the person has
reasonable grounds for believing that the communication will not cause harm to
Australia's interests or the security or defence of Australia; and
-
the person has reasonable grounds for believing that making or
obtaining the information was required or authorised by Australian law and it
is communicated to the person to whom the information relates or with the
express or implied consent of the person.
1.13
The defendant bears an evidential burden in relation to these defences.
Compatibility of the measures with
the right to freedom of expression
1.14
The right to freedom of expression requires the state not to arbitrarily
interfere with freedom of expression, particularly restrictions on political
debate. By criminalising the disclosure of information as well as particular
forms of use, the proposed secrecy provisions engage and limit the right to
freedom of expression.
1.15
The committee has previously examined the secrecy provisions now
contained in the Australian Border Force Act 2015 (Border Force Act) and
assessed that they may be incompatible with the right to freedom of expression.[11] The measures proposed in the bill raise similar concerns in relation to
freedom of expression but appear to be broader in scope than those now
contained in the Border Force Act. It is noted that concerns have also
previously been raised by United Nations (UN) supervisory mechanisms about the chilling
effect of Australian secrecy provisions on freedom of expression.[12] The type of concerns raised, including that civil society organisations,
whistle-blowers, trade unionists, teachers, social workers, health professionals
and lawyers may face criminal charges 'for speaking out and denouncing the
violations' of the rights of individuals appear to apply equally in respect of
the measures in this bill.[13]
1.16
Measures limiting the right to freedom of expression may be permissible
where the measures pursue a legitimate objective, are rationally connected to
that objective, and are a proportionate way to achieve that objective.[14]
1.17
The statement of compatibility acknowledges that the measures engage and
limit the right to freedom of expression but argues that such limitations are
permissible.[15] In relation to the objective of the bill, the statement of compatibility
states:
The objective of the Bill is to modernise and strengthen
Australia’s espionage, foreign interference, secrecy and related laws to ensure
the protection of Australia's security and Australian interests. Foreign actors
are currently seeking to harm Australian interests on an unprecedented scale,
posing a grave threat to Australia's sovereignty, prosperity and national
security. This threat is a substantial concern for the Australian Government.
If left unchecked, espionage and foreign interference activities may diminish
public confidence in the integrity of political and government institutions,
compromise Australia’s military capabilities and alliance relationships, and
undercut economic and business interests within Australia and overseas.
1.18
While generally these matters are capable of constituting legitimate
objectives for the purposes of international human rights law, it would have
been useful if the statement of compatibility had provided information as to
the importance of these objectives in the context of the specific secrecy
measures.
1.19
The statement of compatibility provides limited information as to
whether the limitations imposed by the measures are rationally connected to
(that is, effective to achieve) these stated objectives.
1.20
In relation to the proportionality of the measures, the statement of
compatibility refers to UN Human Rights Committee General Comment No. 34 on the
right to freedom of expression which says that state parties must ensure that
secrecy laws are crafted so as to constitute permissible limitations on human
rights. The UN Human Rights Committee noted in General Comment No 34 that it is
not a permissible limitation on the right to freedom of expression, for
example:
...to invoke such [secrecy] laws to suppress or withhold from
the public information of legitimate public interest that does not harm
national security or to prosecute journalists, researchers, environmental activists,
human rights defenders, or others, for having disseminated such information. Nor is
it generally appropriate to include in the remit of such laws such categories
of information as those relating to the commercial sector, banking and
scientific progress.[16]
1.21
However, it appears that, as drafted, the proposed measures in question
may give rise to just such concerns.
Breadth and scope of information
1.22
While the statement of compatibility states that the 'offences in
section 122.1 apply only to information within narrowly defined categories of
inherently harmful information', it is unclear that these categories are
sufficiently circumscribed in respect of the stated objectives of the measures
to meet this description. Rather than being 'narrowly defined' the definition
of 'inherently harmful information', to which the offences under proposed
section 122.1 apply, appears to be very broad.
1.23
As set out above at [1.8], 'inherently harmful information' is defined
to include security classified information; information expected to prejudice
security, defence or international relations of Australia; information from a
domestic intelligence agency or a foreign intelligence agency; information that
was provided by a person to the Commonwealth to comply with an obligation under
a law, as well as a range of other matters. The breadth of the current and
possible definitions therefore raises concerns as to whether the limitation is
proportionate.
1.24
For example, the category of 'security classified information' is to be
defined by regulation[17] and may potentially apply to a broad range of government documents. In this
respect, the Australian government Information security management guidelines set out when government information is or should be marked as security
classified and indicate that the scope of the documents captured by security
classifications is likely to be broad.[18]
1.25
Further, the explanatory memorandum acknowledges that the category of
any information provided by a person to the Commonwealth to comply with another
law is wide. It explains that this category would include information required
to be provided to regulatory agencies, by carriage services and Commonwealth
authorities. While the statement of compatibility refers generally to the
'gravity of the threat posed' by these categories, it is unclear whether each
category of 'inherently harmful information' is necessary to achieve the stated
objective of the measures. It appears that some of the categories could capture
the communication of information that is not harmful or not significantly
harmful to Australia's national interests or not intended to cause harm. This
raises a concern that the measure may not be the least rights restrictive way
of achieving its stated objectives and may be overly broad.
1.26
The proposed offences in section 122.2 relating to communicating,
dealing with or removing or holding information where this conduct causes, or
is likely to cause, harm to Australia's interests also applies to a potentially
broad range of information.[19] The definition of information that 'causes harm to Australia's interests' is
very broad and includes categories that appear less harmful. For example, it
includes interfering with any process concerning breach of a Commonwealth law
that has a civil penalty. As civil penalty provisions relate to civil
processes, the imposition of a criminal sanction for an unauthorised disclosure
of information appears to be serious. It would capture interfering with, for
example, the investigation of relatively minor conduct such as failing to
return an identity card as soon as practicable (which carries a maximum penalty
of 1 penalty unit or $210)[20] or providing a community radio broadcasting service without a licence (which
carries a maximum penalty of 50 penalty units or $10,500).[21] It is unclear that the level of harm is sufficiently connected to the stated
objective of the measure. Accordingly, it appears proposed section 122.2 and
the categories of harm to Australia's interests may also be overly broad with
respect to the stated objective of the measures.
1.27
As set out above, proposed section 122.4 of the Criminal Code
criminalises unauthorised disclosures of information by former and current
Commonwealth officers where they were under a duty not to disclose. The
statement of compatibility states that this provision is a modernised version
of current section 70 of the Crimes Act and as such 'section 122.4 does not
establish a new limitation on the ability of such persons to communicate
information'.[22] However, while proposed section 122.4 is similar to current section 70 of the
Crimes Act, this does not address human rights concerns with the proposed provision.
The concerns about whether the section 122.4 offence is sufficiently
circumscribed arise from there being no harm requirement and it potentially
applying to any information a person has learnt while engaged by the
Commonwealth regardless of its nature. Further, the breadth of any 'duty not to
disclose' is potentially broad as it arises under any law of the Commonwealth.
This accordingly raises concerns that section 122.4 may be overly broad with
respect to the stated objective of the measures.
1.28
More generally, the breadth of the information subject to these offences
would appear to also capture even government information that is not likely to
be harmful to Australia's national interests. It is likely to also capture a
range of information the disclosure of which may be considered in the public
interest or may merely be inconvenient. This raises serious questions about
whether the limitation on the right to freedom of expression is proportionate.
As noted by the UN Special Rapporteur on the right to freedom of expression
'[i]t is not legitimate to limit disclosure in order to protect against
embarrassment or exposure of wrongdoing, or to conceal the functioning of an
institution'.[23]
Breadth and scope of application
1.29
The classes of people to which the offences in proposed sections
122.1-122.4 applies are extremely broad and these sections could criminalise
expression on a broad range of matters by a broad range of people, including Australian
Public Service employees; members of the Australian Defence Force and the
Australian Federal Police; people providing services to government; contractors
performing services for the government such as social workers, teachers,
medical professionals or lawyers.
1.30
The proposed offences in section 122.1-122.3 go further than this and do
not merely cover the conduct of those who are, or have been, engaged or
employed in some manner by the Commonwealth government. They would also
criminalise the conduct of anyone (in other words, 'outsiders') who
communicates, receives, obtains or publishes the categories of government
information described above at
[1.22]–[1.26].
1.31
For example, it would appear that a journalist who deals with (which is defined
very broadly to include 'receives') unsolicited security classified information
made by a Commonwealth employee would commit a criminal offence under section
122.1.[24] It is possible that the defence that the information is dealt with or held in
the 'public interest' in the person's capacity as a journalist engaged in fair
and accurate reporting could potentially be available. However, if the receipt
of the information was not in the 'public interest'[25] because, for example, it is likely to harm the health or safety of a section of
the public then the defence would appear not to apply. Further, the defence
also requires that the journalist is engaged in 'fair and accurate reporting'
such that there may be a range of circumstances where it does not apply. This
is notwithstanding that the receipt of the information in question may be
unsolicited and the journalist may or may not be aware of the security
classification.[26] It also raises a related concern that the measure, as drafted, could apply to
the mere receipt of information regardless of what the journalist (for example)
does with the information afterwards. This raises a particular concern that the
offence provisions in section 122.1 could have a chilling effect on reporting
and that the defences may act as an insufficient safeguard in relation to the
right to freedom of expression.
1.32
More generally, where the 'inherently harmful information' is not
already publicly available and the person is not a journalist, it appears that
by dealing with information the person may be guilty of an offence under
section 122.1 even where they have not solicited such information or are
unaware that it is, for example, subject to a security classification. Proposed
sections 122.1-122.3 would also appear to capture professional conduct by advisers
such as lawyers who may be asked to advise whether a person would commit an
offence. For example, it would appear to constitute an offence for a lawyer to
make a photocopy of a security classified document which a client has received
for the purposes of providing the client with legal advice about whether they
can disclose or publish the document. It would also appear to be a criminal
offence, if the lawyer were to merely receive or make a record of the document
in this context. There does not appear to be an applicable defence in relation
to such conduct.
1.33
Indeed, there are serious questions about whether the proposed statutory
defences provide adequate safeguards in respect of the right to freedom of
expression. For example, in addition to the matters raised above, the defences
may not sufficiently protect disclosure of information that may be in the
public interest or in aid of government accountability and oversight so as to
be a proportionate limit on human rights. While there is a defence where information
was disclosed in accordance with the Public Interest Disclosure Act 2013 (PIO
Act), it is unclear that this would provide adequate protection. The UN Special
Rapporteur on human rights defenders has recently urged the government to
'substantially strengthen the Public Interest Disclosure framework to ensure
effective protection to whistleblowers',[27] noting that 'many potential whistleblowers will not take the risk of disclosing
because of the complexity of the laws, severity and scope of the penalty, and
extremely hostile approach by the Government and media to whistleblowers'.[28] There is no
general public interest defence in relation to the proposed measures. There are
questions as to whether some of the defences such as those contained in
sections 122.5(3) and (4) extend to preparatory acts such as printing or
photocopying.
1.34
Further, the penalties for the offences in schedule 2 of the bill are
serious and range from 2 to 20 years. The severity of such penalties is also
relevant to whether the limitation on the right to freedom of expression is
proportionate. Finally, it is unclear how the proposed provisions will interact
with existing secrecy provisions such as, for example, under the Border Force
Act. In this respect, as noted above, the proposed measures appear to capture a
much broader range of conduct than that currently prohibited under the Border
Force Act.
Committee comment
1.35
The measures engage and limit the right to freedom of expression.
1.36
The preceding analysis raises questions about whether the
measures are compatible with this right.
1.37
The committee therefore seeks the advice of the Attorney-General
as to:
- how the measures are effective to achieve (that is, rationally
connected to) the stated objectives of the bill;
- whether the limitations are reasonable and proportionate to
achieve the stated objective (including in relation to the breadth of
information subject to secrecy provisions, the adequacy of safeguards and the
severity of criminal penalties); and
- how the measures will interact with existing secrecy
provisions such as those under the Border Force Act which has been previously
considered by the committee.
1.38
In relation to the proportionality of the measures, in light of
the information requested above, if it is intended that the proposed secrecy
provisions in schedule 2 proceed, advice is also sought as to whether it would
be feasible to amend them to:
- appropriately circumscribe the range of 'inherently harmful
information' to which the offence in proposed section 122.1 applies;
- appropriately circumscribe the definition of what information
'causes harm to Australia's interests' for the purposes of section 122.2;
- appropriately circumscribe the definition of 'deals' with
information for the purposes of offences under proposed sections 122.1-122.4;
- appropriately circumscribe the scope of information subject to
the prohibition on disclosure under proposed section 122.4 (by, for example,
introducing a harm element);
- limit the offences in schedule 2 to persons who are or have
been engaged by the Commonwealth as an employee or contractor;
- expand the scope of safeguards and defences (including, for
example, a general 'public interest' defence, an unsolicited information
defence, a broader journalism defence, and the provision of legal advice
defence);
- reduce the severity of the penalties which apply; and
- include a sunset clause in relation to the secrecy provisions
in schedule 2.
1.39
Mr Leeser deliberately did not participate in consideration of
this report entry as he wished to reserve his position pending further
consideration of the bill by the Parliamentary Joint Committee on Intelligence
and Security, of which he is also a member.
Compatibility of the measure with
the right to an effective remedy
1.40
The right to an effective remedy requires states parties to ensure a
right to an effective remedy for violations of human rights. The prohibition on
disclosing information may also affect human rights violations coming to light
and being addressed as required by the right to an effective remedy. That is,
the prohibition on disclosing information may adversely affect the ability of
individual members of the public to know about possible violations of rights
and seek redress. The engagement of this right was not addressed in the
statement of compatibility and accordingly no assessment was provided about
this issue.
Committee comment
1.41
The preceding analysis raises questions about whether the measure
is compatible with the right to an effective remedy. This right was not addressed
in the statement of compatibility.
1.42
The committee therefore seeks the advice of the Attorney-General
as to whether the measure is compatible with the right to an effective remedy.
1.43
Mr Leeser deliberately did not participate in consideration of
this report entry as he wished to reserve his position pending further
consideration of the bill by the Parliamentary Joint Committee on Intelligence
and Security, of which he is also a member.
Compatibility of the measure with
the right to be presumed innocent
1.44
Article 14(2) of the International Covenant on Civil and Political
Rights (ICCPR) protects the right to be presumed innocent until proven guilty
according to law. The right to be presumed innocent usually requires that the
prosecution prove each element of the offence (including fault elements and
physical elements).
1.45
Strict liability offences engage and limit the right to be presumed
innocent as they allow for the imposition of criminal liability without the
need for the prosecution to prove fault. In the case of a strict liability
offence, the prosecution is only required to prove the physical elements of the
offence. The defence of honest and reasonable mistake of fact is, however,
available to the defendant. Strict liability may be applied to whole offences
or to elements of offences.
1.46
An offence provision which requires the defendant to carry an evidential
or legal burden of proof (commonly referred to as 'a reverse burden') with
regard to the existence of some fact also engages and limits the presumption of
innocence. This is because a defendant's failure to discharge the burden of
proof may permit their conviction despite reasonable doubt as to their guilt.
Where a statutory exception, defence or excuse to an offence is provided in
legislation, these defences or exceptions may effectively reverse the burden of
proof and must be considered as part of a contextual and substantive assessment
of potential limitations on the right to be presumed innocent in the context of
an offence provision.
1.47
Reverse burden and strict liability offences will not necessarily be
inconsistent with the presumption of innocence provided that they are within
reasonable limits which take into account the importance of the objective being
sought and maintain the defendant's right to a defence. In other words, such
provisions must pursue a legitimate objective, be rationally connected to that
objective and be a proportionate means of achieving that objective.
Strict liability element
1.48
As outlined above, strict liability applies to the element of the
offence in proposed section 122.1 that the information dealt with or
communicated is 'inherently harmful information' to the extent that the
information is security classified information. The statement of compatibility
acknowledges that this measure engages and may limit the right to be presumed
innocent but argues that this limitation is permissible.[29] It states that this is 'appropriate' as 'information or articles are clearly
marked with the security classification and any person who has access to
security classified information should easily be able to identify as such'.[30]
1.49
However, it is unclear from the information provided whether there could
be circumstances where a security classification marking has been removed but
the substance of the document is still security classified. It may also be
difficult for persons who are not Commonwealth employees to ascertain whether
or not a particular marking on a government document held a 'security
classification'. The statement of compatibility confirms that the strict
liability element means a person cannot avoid liability if they were unaware
the information was security classified, but argues that requiring knowledge
would undermine the deterrence effect of the offence.[31] The statement of compatibility further notes that the general defence of
mistake of fact as set out in section 9.2 of the Criminal Code would apply.
While this is relevant to the proportionality of the limitation, to rely on
this defence a person must hold a reasonable belief that the information is not
security classified. This is a much narrower defence than would otherwise
apply.
1.50
Further, there is a concern that the application of a strict liability
element to whether information had a 'security classification' means that a
person may be found guilty of an offence even where it was not appropriate that
the information in question had a security classification. That is, there may
be circumstances where information has a security classification which was not
appropriately applied or alternatively is no longer appropriate. As such, it
does not appear that an inappropriate security classification would be a matter
that a court could consider in determining whether a person had committed an
offence under proposed section 122.1.
1.51
While the explanatory memorandum argues that the government 'has
well-established practices for determining whether particular classified
information has been properly security classified',[32] it is unclear whether this is a sufficient safeguard in the context of the
strict liability element. In contrast, while the current secrecy provisions in
the Border Force Act raise human rights concerns, there potentially exists a
relevant safeguard in respect of an offence of disclosing security classified
information. Section 50A of the Border Force Act provides that a prosecution
must not be initiated unless the secretary has certified that it is appropriate
that the information had a security classification at the time of the conduct.[33] While this does not fully address human rights concerns, to the extent that it
requires the secretary to certify that the substance of the information
was appropriately classified, it would appear to constitute a relevant
safeguard. As noted above, it is also unclear how these proposed offences will
interact with existing agency specific secrecy offences.
Reverse burden offences
1.52
As set out above, proposed section 122.5 provides offence-specific
defences to the offences in sections 122.1-122.4. In doing so, the provisions
reverse the evidential burden of proof as subsection 13.3(3) of the Criminal
Code provides that a defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification bears an evidential burden in relation
to that matter.
1.53
The explanatory memorandum and statement of compatibility include some
information about the reverse evidential burden. However, the justification for
reversing the evidential burden of proof is generally that the defendant
'should be readily able to point to' the relevant evidence[34] or the defendant is 'best placed' to know of the relevant evidence.[35] However, this does not appear to be sufficient to constitute a proportionate
limitation on human rights. It is unclear that reversing the evidential burden
is necessary as opposed to including additional elements within the offence
provisions themselves.
1.54
In this respect, proposed section 122.1 appears to be framed broadly to
potentially make the work that any Commonwealth officer or engaged contractor
does when dealing with security classified information an offence. It is a
defence to prosecution of this offence, if a person is acting in their capacity
as a Commonwealth officer. However, the effect of this would appear to leave
officers or contractors acting appropriately in the course of their duties open
to a criminal charge and then place the evidential burden of proof on them to
raise evidence to demonstrate that they were in fact acting in accordance with
their employment. This raises questions as to whether the current construction
of the offence, with the reverse evidential burden in the statutory defence, is
a proportionate limitation on the right to be presumed innocent.
1.55
Indeed, it appears in some circumstances, it would be very difficult for
Commonwealth officers to discharge the evidential burden. For example, the
Inspector-General of Intelligence and Security (IGIS) explains that if a
current or former IGIS officer was charged under proposed section 122 of the
Criminal Code 'it would, for all practical purposes, be impossible for them to
discharge the evidential burden of proving that the alleged dealing with or
communication of information contrary to the proposed offences was undertaken
in the course of their duties'. This is because they would 'potentially commit
an offence under s 34(1) of the [Inspector-General of Intelligence and
Security Act 1986] by disclosing that information in their defence at
trial, or providing it to law enforcement officials investigating the potential
commission of an offence'.[36]
Committee comment
1.56
The preceding analysis raises questions as to the compatibility
of the reverse burden offences and a strict liability element of an offence
with the right to be presumed innocent.
1.57
In relation to the strict liability which applies to the element
of the offence in proposed section 122.1, the committee therefore requests the
advice of the Attorney-General as to:
- whether the limitation is a reasonable and proportionate
measure to achieve a legitimate objective (including the scope of application
to persons who may not be aware of the security classification; the ability of
courts to consider whether a security classification is inappropriate; and any
safeguards); and
- if the measure proceeds, whether it would be feasible to amend
proposed section 122.1 to provide a prosecution must not be initiated or
continued unless it is appropriate that the substance of the information had a
security classification at the time of the conduct.
1.58
In relation to the reverse evidential burdens, the committee
requests the advice of the Attorney-General as to:
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective (including why the reverse evidential
burdens are necessary and the scope of conduct caught by the offence provisions);
- whether there are existing secrecy provisions that would
prevent a defendant raising a defence and discharging the evidential burden,
and if so, whether this is proportionate to the stated objective; and
- whether it would be feasible to amend the measures so that the
relevant matters (currently in defences) are included as elements of the
offence or alternatively, to provide that despite section 13.3 of the Criminal
Code, a defendant does not bear an evidential (or legal) burden of proof in
relying on the offence-specific defences.
1.59
Mr Leeser deliberately did not participate in consideration of
this report entry as he wished to reserve his position pending further
consideration of the bill by the Parliamentary Joint Committee on Intelligence
and Security, of which he is also a member.
Offences relating to espionage
1.60
Schedule 1 of the bill seeks to amend a number of offences in the
Criminal Code including those relating to foreign actors and persons who act on
their behalf against Australia's interests.
1.61
While the Criminal Code currently contains espionage offences, schedule
1 would create a broader range of new espionage offences.[37] The new offences would criminalise a broad range of dealings with information,
including both classified and unclassified information, including making it an
offence:[38]
-
to deal with (including to possess or receive)[39] information or an article that has a security classification[40] or concerns Australia's national security where the person intends, or is
reckless as to whether, the conduct will prejudice Australia's national
security or advantage the national security[41] of a foreign country and the conduct results or will result in the information
or article being made available to a foreign principal[42] or someone acting on behalf of a foreign principal.[43]
-
to deal with information, even where it does not have a security
classification or concern Australia's national security, where the person
intends, or is reckless as to whether, the conduct will prejudice Australia's
national security where the conduct results or will result in the information
or article being made available to a foreign principal or someone acting on
behalf of a foreign principal.[44]
-
to deal with information or an article which has a security
classification or concerns Australia's national security where the conduct
results or will result in the information or article being made available to a
foreign principal or someone acting on behalf of the foreign principal.[45]
1.62
In addition to these new espionage offences, it would be an offence:
-
to engage in espionage[46] on behalf of a foreign principal;[47]
-
to solicit or procure a person to engage in espionage;[48]
-
to prepare or plan for an offence of espionage.[49]
1.63
These offences carry a maximum penalty of between 20 years and life
imprisonment. The bill contains a number of limited defences to the offences.[50]
Compatibility of the measures with
the right to freedom of expression
1.64
By criminalising disclosure and use of information in particular
circumstances, the measures engage and limit the right to freedom of
expression. The statement of compatibility does not expressly acknowledge that
the proposed espionage offences engage and limit this right and accordingly
does not provide a full assessment of whether the limitation is permissible.
1.65
The objective of the bill identified above, summarised as protecting
Australia's security and Australian interests, is likely to be capable of being
a legitimate objective for the purposes of international human rights law.
However, it is unclear from the information provided whether these specific
measures are rationally connected and proportionate to that objective.
1.66
For a measure to be a proportionate limitation on the right to freedom
of expression it must be sufficiently circumscribed. In this respect, it
appears that the offences as drafted capture a very broad range of conduct. For
example, under the offence of dealing with security classified information
under proposed section 91.3, it appears that a journalist, by publishing any
information subject to a security classification online, will commit an
offence. This is because online publication would necessarily make the
information available to a foreign principal. Noting that a large number of
government documents may be defined as security classified,[51] the extent of the limitation on the right to freedom of expression imposed by
these offences is extensive.
1.67
Further, it would appear to still be an offence for a journalist in the
above example even if the information were unclassified if it concerned
'Australia's national security'. The concept of 'national security'[52] in the bill is
very broadly defined so that reporting on a range of matters of public
significance may be captured including, for example, political, military or
economic relations with another country. There do not appear to be any
applicable defences available unless the materials were already in the public
domain with the Commonwealth's authorisation.[53] Indeed, the proposed offence under section 91.3 applies without any requirement
of intention to harm and without any requirement that the person has in mind a
particular foreign principal or principals.
1.68
It also appears that these offences may capture the conduct of civil
society organisations. For example, if a civil society organisation disclosed
unclassified information it had received from a whistleblower to UN bodies,
international non-government organisations or foreign governments about, for
example, Australia's human rights record, this would appear to be covered by
the proposed offence under section 91.3. This is because such information could
affect Australia's relations with a foreign country or countries and it would
accordingly fall within the definition of 'concerning Australia's national
security'. Under the proposed provisions, which make it an offence to deal with
information concerning Australia's 'national security' and where that
information is made available to foreign principals, there does not appear to
be an applicable defence for civil society organisations available unless the
information has already been made public with the authorisation of the
Commonwealth.
1.69
As such, this raises concerns that the offences as drafted may be overly
broad with respect to their stated objective. It is also unclear from the
statement of compatibility whether there are adequate and effective safeguards,
including relevant defences, to ensure the limitation on the right to freedom
of expression is proportionate.
Committee comment
1.70
The measures engage and limit the right to freedom of expression.
1.71
The preceding analysis raises questions about whether the
measures are compatible with this right.
1.72
The committee therefore seeks the advice of the Attorney-General
as to:
- how the measures are effective to achieve (that is, rationally
connected to) the stated objectives of the bill; and
- whether the limitations are reasonable and proportionate to
achieve the stated objective (including in relation to the breadth and types of
information subject to espionage provisions, the scope of the definition of
'national security' and the adequacy of safeguards).
1.73
In light of the information requested above, if it is intended
that the espionage offences proceed, advice is also sought as to whether it
would be feasible to amend them to:
- appropriately circumscribe the range of information to which
the offences apply;
- appropriately circumscribe the definition of what information
concerns 'Australia's national interests' where making such information
available to a foreign national would constitute a criminal offence;
- appropriately circumscribe the definition of 'deals' with
information for the purposes of espionage offences under proposed sections
91.1-91.13;
- appropriately circumscribe the scope of conduct covered by
proposed section 91.3 (by, for example, introducing a harm element);
- expand the scope of safeguards and defences; and
- include a sunset clause in relation to the espionage
provisions in schedule 1.
1.74
Mr Leeser deliberately did not participate in consideration of
this report entry as he wished to reserve his position pending further
consideration of the bill by the Parliamentary Joint Committee on Intelligence
and Security, of which he is also a member.
Compatibility of the measure with
the right to be presumed innocent
1.75
As noted above, strict liability offences engage and limit the right to
be presumed innocent as they allow for the imposition of criminal liability
without the need for the prosecution to prove fault. Strict liability applies
to the element of the offence that the information is security classified
information.
1.76
Consistently with the concerns in relation to the above strict liability
offence (see [1.44] – [1.51]), it is unclear from the information provided
whether there could be circumstances where a security classification marking
has been removed but the substance of the document is still security
classified. It may also be difficult for persons who are not Commonwealth
employees to ascertain whether or not a particular marking on a government
document held a 'security classification'.
1.77
Further, there is a concern that the application of a strict liability
element to whether information had a 'security classification' means that a
person may be found guilty of an offence even where it was not appropriate that
the information in question had a security classification. That is, there may
be circumstances where information has a security classification which was not
appropriately applied or is no longer appropriate.
Committee comment
1.78
The preceding analysis raises questions as to the compatibility
of the strict liability element of the offences in proposed sections 91.1 and
91.3 with the right to be presumed innocent.
1.79
The committee therefore requests the advice of the Attorney-General
as to whether the limitation is a reasonable and proportionate measure to
achieve a legitimate objective (including the scope of application to persons who
may not be aware of the security classification; the ability of courts to
consider whether a security classification is inappropriate; and any
safeguards).
1.80
Mr Leeser deliberately did not participate in consideration of
this report entry as he wished to reserve his position pending further
consideration of the bill by the Parliamentary Joint Committee on Intelligence
and Security, of which he is also a member.
Compatibility of the measure with
the right to an effective remedy
1.81
As noted above, the right to an effective remedy requires states parties
to ensure a right to an effective remedy for violations of human rights. The
breadth of the proposed offence could also affect human rights violations
coming to light and being addressed as required by the right to an effective
remedy. The engagement of this right was not addressed in the statement of
compatibility and accordingly no assessment was provided about this issue.
Committee comment
1.82
The preceding analysis raises questions about whether the measure
is compatible with the right to an effective remedy. This right was not
addressed in the statement of compatibility.
1.83
The committee therefore seeks the advice of the Attorney-General
as to whether the measure is compatible with the right to an effective remedy.
1.84
Mr Leeser deliberately did not participate in consideration of
this report entry as he wished to reserve his position pending further
consideration of the bill by the Parliamentary Joint Committee on Intelligence
and Security, of which he is also a member.
Foreign interference offences
1.85
Schedule 1 of the bill introduces new offences relating to foreign
interference. The proposed offences would apply where a person's conduct is
covert or deceptive, involves threats or menaces or involves a failure to disclose
particular connections with a foreign principal or involves preparing for an
offence.[54] For example, the offences of foreign interference involving 'targeted persons'
provides:
-
that a person engages in conduct on behalf of or in collaboration
with a foreign principal, or a person acting on behalf of a foreign principal,
where the conduct is directed, funded or supervised by a foreign principal (or
person acting on their behalf) and the person intends or is reckless as to
whether the conduct influences another person (the target) in relation to:
-
a political or government process of the Commonwealth or state or
territory; or
-
the target's exercise of an Australian democratic or political
right or duty;
in circumstances where the person
conceals from, or fails to disclose to, the target.[55]
1.86
Proposed sections 92.7 to 92.9 also criminalise the provision of support
or funding to foreign intelligence agencies.
1.87
The foreign interference offences each carry a maximum term of
imprisonment of between 10 and 15 years.[56] The bill contains a number of limited defences to the offences.[57]
Compatibility of
the measures with the right to freedom of expression
1.88
By criminalising types of conduct which influence another person, the
measures engage and limit the right to freedom of expression. The statement of
compatibility does not expressly acknowledge that the proposed foreign offences
engage and limit this right and accordingly does not provide a full assessment
of whether the limitation is permissible.
1.89
The objective of the bill identified above, summarised as protecting
Australia's security and Australian interests, is likely to be capable of being
a legitimate objective for the purposes of international human rights law.
However, as with the espionage offences discussed above, it is unclear from the
information provided whether the measures are rationally connected and
proportionate to that objective.
1.90
In relation to the proportionality of the limitation, aspects of the
offences appear to be overly broad with respect to the stated objective of the
measure. The offences appear to capture a very broad range of conduct,
including conduct engaged in by civil society organisations. It is common for
civil society organisations to work in collaboration to form international
coalitions about campaigns or work with public international organisations. It
is noted that public international organisations would fall within the
definition of a 'foreign principal'.[58] Accordingly, in this context, if a member of an Australian civil society
organisation were to lobby an Australian parliamentarian to adopt a particular
policy in the context of a campaign this may constitute a criminal offence
under proposed subsection 92.2(2) if the person fails to disclose that their
organisation is, for example, collaborating with public international
organisations. There do not appear to be any relevant defences to such conduct.[59] This also raises a concern that there appear to be insufficient safeguards,
including relevant defences, to protect freedom of expression.
1.91
Further, the offences of providing support to a foreign intelligence
agency appear to be very broad. For example, if 'support' were to be given its
ordinary meaning, the offence could potentially cover the publication of a news
article which reported positively about the activities of a foreign
intelligence organisation. There do not appear to be any relevant defences in
relation to this kind of conduct.[60]
Committee comment
1.92
The measures engage and limit the right to freedom of expression.
1.93
The preceding analysis raises questions about whether the
measures impose a proportionate limit on this right.
1.94
The committee therefore seeks the advice of the Attorney-General
as to:
- how the measures are effective to achieve (that is, rationally
connected to) the stated objectives of the bill; and
- whether the limitations are reasonable and proportionate to
achieve the stated objective (including in relation to the breadth of the
offences and the adequacy of safeguards).
1.95
In light of the information requested above, if it is intended
that the foreign interference offences proceed, advice is also sought as to
whether it would be feasible to amend them to:
- appropriately circumscribe the range of conduct to which the
offences apply;
- expand the scope of safeguards and defences; and
- include a sunset clause in relation to the foreign
interference provisions in schedule 1.
1.96
Mr Leeser deliberately did not participate in consideration of
this report entry as he wished to reserve his position pending further
consideration of the bill by the Parliamentary Joint Committee on Intelligence
and Security, of which he is also a member.
Presumption against bail
1.97
Section 15AA of the Crimes Act provides for a presumption against bail
for persons charged with, or convicted of, certain Commonwealth offences unless
exceptional circumstances exist. Schedule 1 would update references to offences
and apply the presumption against bail to the proposed offences in Division 80
and 91 of the Criminal Code (urging violence, advocating terrorism, genocide,
offences relating to espionage).[61] It would also apply the presumption against bail to the new foreign
interference offences where it is alleged that the defendant's conduct involved
making a threat to cause serious harm or a demand with menaces.[62]
Compatibility of the measure with
the right to release pending trial
1.98
The right to liberty includes the right to release pending trial.
Article 9(3) of the ICCPR provides that the 'general rule' for people
awaiting trial is that they should not be detained in custody. The UN Human
Rights Committee has stated on a number of occasions that pre-trial detention
should remain the exception and that bail should be granted except in circumstances
where the likelihood exists that, for example, the accused would abscond,
tamper with evidence, influence witnesses or flee from the jurisdiction.[63] As the measure creates a presumption against bail it engages and limits this
right.[64]
1.99
In relation to the presumption against bail, the statement of
compatibility states:
The presumption against bail is appropriately reserved for
serious offences recognising the need to balance the right to liberty and the
protection of the community.[65]
1.100
The statement of compatibility accordingly identifies the objective of
the presumption as 'the protection of the community.'[66] In a broad sense, incapacitation through imprisonment could be capable of
addressing community protection, however, no specific information was provided
in the statement of compatibility about whether the measure is rationally
connected to (that is, effective to achieve) the stated objective. In
particular, it would be relevant whether the offences to which the presumption
applies create particular risks while a person is on bail.
1.101
The presumption against bail applies not only to those convicted of the
defined offences, but also those who are accused and in respect of which there
has been no determination of guilt. That is, while the objective identified in
the statement of compatibility refers to 'community protection' it applies more
broadly to those that are accused of particular offences.
1.102
In this respect, the presumption against bail goes further than
requiring that bail authorities and courts consider particular criteria, risks
or conditions in deciding whether to grant bail. It is not evident from the
information provided that the balancing exercise that bail authorities and
courts usually undertake in determining whether to grant bail would be insufficient
to address the stated objective of 'community protection' or that courts would
fail to consider the serious nature of an offence in determining whether to
grant bail.[67] This raises a specific concern that the measure may not be the least rights restrictive
alternative, reasonably available, as required for it to constitute a
proportionate limit on human rights.
1.103
In relation to the proportionality of the measure, the statement of
compatibility further states that:
For offences subject to a presumption against bail the
accused will nevertheless be afforded [the] opportunity to rebut the
presumption. Further, the granting or refusing of bail is not arbitrary, as it
is determined by a court in accordance with the relevant rules and principles
of criminal procedure.[68]
1.104
However, a presumption against bail fundamentally alters the starting
point of an inquiry as to the grant of bail. That is, unless there is
countervailing evidence, a person will be incarcerated pending trial. In this
respect, the bill does not specify the threshold for rebutting this
presumption, including what constitutes 'exceptional circumstances' to justify
bail.
1.105
While bail may continue to be available in some circumstances, based on
the information provided, it is unclear that the presumption against bail is a
proportionate limitation on the right to release pending trial.[69] Relevantly, in the context of the Human Rights Act 2004 (ACT) (ACT HRA),
the ACT Supreme Court considered whether a presumption against bail under
section 9C of the Bail Act 1992 (ACT) (ACT Bail Act) was incompatible
with section 18(5) of the ACT HRA. Section 18(5) of the ACT HRA relevantly
provides that a person awaiting trial is not to be detained in custody as a
general rule. However, section 9C of the ACT Bail Act contains a presumption
against bail in respect of particular offences and requires those accused of
murder, certain drug offences and ancillary offences, to show 'exceptional
circumstances' before the usual assessment as to whether bail should be granted
is undertaken. In the matter of an application for Bail
by Isa Islam [2010] ACTSC 147, the ACT Supreme Court considered these
provisions and decided that section 9C of the ACT Bail Act was not consistent
with the requirement in section 18(5) of the ACT HRA that a person awaiting
trial not be detained in custody as a general rule.
Committee comment
1.106
The preceding analysis indicates that there are questions as to the
compatibility of the measure with the right to release pending trial.
1.107
The committee seeks the advice of the Attorney-General as to:
- how the measure is effective to achieve (that is, rationally
connected to) its stated objective (including whether offences to which the
presumption applies create particular risks while a person is on bail);
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective including:
- why the current balancing exercise undertaken by bail
authorities and courts is insufficient to address the stated objective of the
measure;
- whether less rights restrictive alternatives are reasonably
available (such as adjusting criteria to be applied in determining whether to
grant bail rather than a presumption against bail);
- the existence of adequate and effective safeguards to ensure a
person is not deprived of liberty where it is not reasonable, necessary and
proportionate in all the circumstances; and
- advice as to the threshold for rebuttal of the presumption
against bail including what is likely to constitute 'exceptional circumstances'
to justify bail.
1.108
Mr Leeser deliberately did not participate in consideration of
this report entry as he wished to reserve his position pending further
consideration of the bill by the Parliamentary Joint Committee on Intelligence
and Security, of which he is also a member.
Telecommunications and serious offences
1.109
Schedule 4 of the bill extends the definition of a 'serious offence' in
subsection 5D(1)(e) of Part 1.2 of the Telecommunications (Interception and
Access) Act 1979 (TIA Act) to include the offences provided for in the bill
including sabotage, espionage, foreign interference, other threats to security,
theft of trade secrets involving government principals, an aggravated offence
for giving false and misleading information as well as secrecy offences under
proposed section 122.[70] A 'serious offence' for the purpose of the TIA Act is one in respect of which
declared agencies can apply for interception warrants to access the content of
communications.[71]
Compatibility of the measure with
the right to privacy
1.110
The right to privacy includes the right to respect for private and
confidential information, particularly the storing, use and sharing of such
information and the right to control the dissemination of information about
one's private life. By extending the definition of 'serious offence' and
thereby permitting agencies to apply for a warrant to access private
communications for investigation of such offences, the measure engages and
limits the right to privacy.
1.111
As the TIA Act was legislated prior to the establishment of the
committee, the scheme has never been required to be subject to a foundational
human rights compatibility assessment in accordance with the terms of the Human
Rights (Parliamentary Scrutiny) Act 2011 (Human Rights Act).[72] The committee is therefore faced with the difficult task of assessing the human
rights compatibility of extending the potential access to private
communications under the TIA Act without the benefit of a foundational human
rights assessment of the Act. On a number of previous occasions the committee
has recommended that the TIA Act would benefit from a foundational review of
its human rights compatibility.[73]
1.112
The statement of compatibility identifies that the measure engages and
limits the right to privacy and argues that it constitutes a permissible
limitation on this right. Limitations on the right to privacy will be
permissible where they are not arbitrary such that they pursue a legitimate
objective, are rationally connected to that objective and are a proportionate
means of achieving that objective.
1.113
In relation to the objective of the measures, the statement of
compatibility provides that:
The gravity of the threat posed to Australia’s national
security by espionage, foreign interference and related activities demonstrates
the need to take reasonable steps to detect, investigate and prosecute those
suspected of engaging in such conduct. The current lack of law enforcement and
intelligence powers with respect to these activities has resulted in a
permissive operating environment for malicious foreign actors, which Australian
agencies are unable to effectively disrupt and mitigate.[74]
1.114
This is likely to constitute a legitimate objective for the purposes of
international human rights law. Providing law enforcement agencies access to telecommunications
content to investigate serious categories of crime is likely to be rationally
connected to this objective.
1.115
In relation to the proportionality of the measure, the statement of
compatibility points to the threshold requirements for issuing a warrant:
Before issuing an interception warrant, the relevant
authority must be satisfied that the agency is investigating a serious offence,
the gravity of the offence warrants intrusion into privacy and the interception
is likely to support the investigation. This threshold acts as a safeguard
against the arbitrary or capricious use of the interception regime and also
ensures that any interception will be proportionate to the national security
objective.[75]
1.116
This is likely to be a relevant safeguard to assist to ensure that the
limitation on the right to privacy is necessary. The statement of compatibility
further points to independent oversight mechanisms such as the Commonwealth
Ombudsman.
1.117
Notwithstanding these important safeguards, there are still some
questions in relation to whether the expansion of the definition of 'serious
offence' is permissible in the context of the underlying scheme under the TIA
Act. In this respect, it appears that while some of the offences are very
serious, others are less so. Further information as to why allowing warranted
access for the investigation of each criminal offence is necessary would be
useful to determining whether the limitation is proportionate.
1.118
In order to constitute a proportionate limitation on the right to
privacy, a limitation must only be as extensive as is strictly necessary.
However, it is unclear from the statement of compatibility who or what devices
could be subject to warranted access under the TIA Act. It is also unclear what
safeguards there are in place with respect to the use, storage and retention of
telecommunications content. As such it is unclear whether the expanded
definitions of 'serious offences' would be permissible limitations.
Committee comment
1.119
The preceding analysis raises questions as to whether the
expanded definition of 'serious crimes' is a proportionate limitation on the
right to privacy.
1.120
The committee therefore requests the advice of the
Attorney-General as to:
- whether the expanded definition of 'serious offence' in the
context of existing provisions of the TIA Act constitutes a proportionate limit
on the right to privacy (including why allowing warranted access for the
investigation of each criminal offence is necessary; who or what devices could
be subject to warranted access; and what safeguards there are with respect to
the use, storage and retention of telecommunications content); and
- whether an assessment of the TIA Act could be undertaken to
determine its compatibility with the right to privacy.
1.121
Mr Leeser deliberately did not participate in consideration of
this report entry as he wished to reserve his position pending further
consideration of the bill by the Parliamentary Joint Committee on Intelligence
and Security, of which he is also a member.
Amendments to the Foreign Influence Transparency Scheme legislation
1.122
Schedule 5 seeks to amend the definition of 'general political lobbying'
in section 10 of the Foreign Influence Transparency Bill 2017 (the foreign influence
bill) to include within the definition lobbying of 'a person or entity that is
registered under the Commonwealth Electoral Act as a political
campaigner'.[76] The effect of the amendments is that a person may be liable to
register under the proposed foreign influence transparency scheme where they
lobby a registered political campaigner on behalf of a foreign principal 'for
the purpose of political or governmental influence'.[77]
1.123
The reference to 'political campaigner' in item 3 incorporates the
proposed amendments to the Commonwealth Electoral Act 1918 that are currently
before Parliament in the Electoral Legislation Amendment (Electoral Funding and
Disclosure Reform) Bill 2017 (the electoral funding bill). As such,
section 2 of the bill provides that if either of the foreign influence bill or
electoral funding bill does not pass, part 2 of schedule 5 will not commence.
1.124
'Political campaigner' is defined in the electoral funding bill to mean
a person or entity that incurs 'political expenditure' during the current, or
in any of the previous three, financial years of $100,000 or more.[78] 'Political expenditure' is expenditure incurred for a 'political purpose', the
latter of which is defined in the electoral funding bill to include
(relevantly) the public expression by any means of views on a political party,
a candidate in an election or a member of the House of Representatives or the
Senate, and the public expression by any means of views on an issue that is, or
is likely to be, before electors in an election (whether or not a writ has been
issued for the election).[79]
1.125
Item 4 of the bill also seeks to amend section 12 of the foreign
influence bill to expand the circumstances in which an activity is done for
'political or governmental influence'. The amendments provide that a person
will undertake activity on behalf of a foreign principal for the purpose of
political or governmental influence if the purpose of the activity is to
influence, directly or indirectly, any aspect of 'processes in relation to a
person or entity registered under the Commonwealth Electoral Act 1918 as
a political campaigner'.[80] Item 5 further adds to section 12 examples of 'processes in relation to' a
registered political campaigner:
(a) processes in relation to the campaigner's:
(i) constitution; or
(ii) platform; or
(iii) policy on any matter of public concern;
or
(iv) administrative
or financial affairs (in his or her capacity as a campaigner, if the campaigner
is an individual); or
(v) membership;
or
(vi) relationship
with foreign principals within the meaning of paragraph (a),(b) or (c) of the
definition of foreign principal in section 10,[81] or with bodies controlled by such foreign principals;
(b) the
conduct of the campaigner's campaign in relation to a federal election or
designated vote;
(c) the
selection (however done) of officers of the campaigner's executive or delegates
to its conferences;
(d) the
selection (however done) of the campaigner's leader and any spokespersons for
the campaign.
Compatibility of the measure with
multiple rights
Previous committee comment on the
Foreign Influence Transparency Scheme Bill
1.126
The committee considered the foreign influence bill in its Report 1
of 2018.[82]
In that report, the committee sought further information from the
Attorney-General as to the compatibility of the proposed foreign influence
transparency scheme with the freedom of expression,[83] the freedom of association,[84] the right to take part in the conduct of public affairs,[85] and the right to privacy.[86]
1.127
The committee raised concerns in relation to limitations on these rights
due to the breadth of the definitions of 'foreign principal', 'on behalf of'
and 'for the purpose of political or governmental influence', and whether those
definitions caught within the scope of the scheme an uncertain and potentially
very broad range of conduct. The committee noted:
For example, concerns have been expressed as to the
implications for academic freedom and reputation where an Australian university
academic would be required to register upon receipt of a scholarship or grant
wholly or partially from foreign sources, where that funding is conditional on
the researcher undertaking and publishing research that is intended to
influence Australian policy-making. Such behaviour would appear to fall within
the types of registrable activities that a person may undertake 'on behalf of'
a foreign principal, as it is an activity undertaken 'with funding or
supervision by the foreign principal' for the purpose of influencing 'a process
in relation to a federal government decision'.[87]
1.128
The committee also noted that the definition of 'foreign principal'
coupled with the definition of 'on behalf of' was very broad:
This definition, coupled with the definition of 'on behalf
of', appears to be broad enough to mean that section 21 of the bill imposes a
registration requirement on domestic civil society, arts or sporting
organisations which may have non-Australian members (such as individuals
residing in Australia under a non-permanent resident visa, or foreign members)
who may be considered as acting 'on behalf of' a foreign principal where they
have undertaken activity 'in collaboration with' or 'in the service of' their
membership (including foreign members) when seeking funding from government,
engaging in advocacy work, or pursuing policy reform.[88]
1.129
The committee noted that the breadth of these definitions, their
potential application, the cost of compliance and the consequence of
non-compliance raised concerns that the foreign influence bill may be
insufficiently circumscribed.[89]
Previous committee comment on the
Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill
2017
1.130
The committee has considered the electoral reform bill in its Report
1 of 2018.[90]
1.131
The committee sought advice from the minister as to the compatibility of
the obligation to register as a 'political campaigner' with the freedom of
expression, the freedom of association, the right to take part in the conduct
of public affairs, and the right to privacy. In particular, the committee noted
that concerns arose in relation to the breadth of the definition of 'political
expenditure' that triggers the obligation to register as a political
campaigner. As noted earlier, the definition of 'political expenditure' broadly
refers to expenditure for political purposes. 'Political purpose' is in turn
defined broadly, including 'the public expression by any means of views on an
issue that is, or is likely to be, before electors in an election', regardless
of whether or not a writ has been issued for the election. This would appear to
capture activities that arise in an election regardless of how insignificant or
incidental the issue is at an election, as no distinction appears to be drawn
between whether an issue was one common to all political parties, or an issue
that is only raised by one candidate in an election. It is also not clear the
basis on which it is, or could be, determined whether an issue is 'likely to be
an issue' before electors at an election, and what criteria are in place to
make such a determination. The committee noted:
Thus, the ambiguity in the definition of 'political
expenditure' ...could lead to considerable uncertainty for persons and entities
who may be liable to register. As such, this raises concerns as to whether the
proposed registration requirements for individuals and entities are sufficiently
circumscribed. The measure could also act as a potential disincentive for some
individuals and civil society organisations to run important campaigns, or
could act as a disincentive for individuals to form organisations to run such
campaigns. In other words, the registration requirement may have a particular
'chilling effect' on the freedom of expression, freedom of association and
right to take part in public affairs for some groups and individuals.[91]
1.132
The committee also noted that an additional issue that arose was that as
a consequence of registration, personal information about individuals may be
publicly available. The committee noted:
In circumstances where the definition of 'political
expenditure' is very broad and may capture a wide range of individuals and
groups, this raises additional concerns that the bill goes further than what is
strictly necessary to serve the legitimate objective, and may insufficiently
protect against attacks on reputation that may result from individuals and
entities being required to register.[92]
Compatibility of the amendments
1.133
The statement of compatibility to the bill does not specifically address
the amendments that are introduced by schedule 5 of the bill. However, as these
amendments broaden the scope of the foreign influence transparency scheme by
including lobbying of 'political campaigners' on behalf of foreign principals,
the existing human rights concerns with the operation of the foreign influence
bill and the electoral funding bill are equally applicable here.
1.134
In particular, as noted in the initial analysis of the electoral funding
bill, because the definition of 'political campaigner' may capture a broad
variety of persons or entities who undertake expenditure for a 'political
purpose', this may give rise to considerable uncertainty as to which persons
and entities are required to register, and also raises potential concerns that
rather than providing greater transparency the measure may create confusion in
certain circumstances about degrees of political connection.[93] By introducing an obligation to register under the foreign influence
transparency scheme for persons who lobby political campaigners on behalf of
foreign principals, the uncertainty that is introduced with the concept of
'political campaigner' is incorporated into the foreign influence bill.
1.135
There are also related concerns about the expanded definition of
'political or governmental influence' to include processes relating to the
internal functioning of the political campaigner, such as its constitution,
administration and membership. It is not clear how introducing a registration
obligation on persons or entities who lobby political campaigners in such
circumstances is rationally connected to the stated objective of the foreign
influence bill (namely, 'to enhance government and public knowledge of the
level and extent to which foreign sources may, through intermediaries acting on
their behalf, influence the conduct of Australia's elections, government and
parliamentary decision-making, and the creation and implementation of laws and
policies'[94]).
Further, concerns also arise as to whether the expanded definition of
'political or governmental influence' is proportionate, having regard to the
principle that limitations must be sufficiently circumscribed to ensure that
they are only as is strictly necessary to achieve their objective.
Committee comment
1.136
The statement of compatibility does not address the human rights
compatibility of schedule 5 of the bill, which amends the Foreign Influence
Transparency Scheme Bill 2017 by incorporating the concept of 'political
campaigner' from the Electoral Legislation Amendment (Electoral Funding and
Disclosure Reform) Bill 2017. However, as noted in its Report 1 of 2018, the
proposed foreign influence transparency scheme and the electoral funding reform
bill engage and limit the freedom of expression, the freedom of association,
the right to take part in the conduct of public affairs, and the right to
privacy.
1.137
The committee therefore seeks the advice of the Attorney-General
as to whether the amendments to the Foreign Influence Transparency Scheme Bill
2017 introduced by schedule 5 pursue a legitimate objective, are
rationally connected and proportionate to that objective. In particular:
-
whether introducing a requirement for persons to register under
the foreign influence transparency scheme when they lobby a 'political
campaigner' on behalf of a foreign principal is sufficiently circumscribed,
having regard to the definition of 'political campaigner' in the Electoral
Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017; and
-
whether expanding the definition of 'political or governmental
influence' to include the matters raised in item 5 of schedule 5 is rationally
connected to the objective of the foreign influence transparency scheme, and
whether it is sufficiently circumscribed so as to constitute a proportionate
limitation on human rights.
1.138
Mr Leeser deliberately did not participate in consideration of
this report entry as he wished to reserve his position pending further
consideration of the bill by the Parliamentary Joint Committee on Intelligence
and Security, of which he is also a member.
Advice only
1.139
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation proponent on an advice only basis. The
committee does not require a response to these comments.
Purpose |
Determines the Northern
Territory Department of Health as a recognised State/Territory authority for
the purposes of Part 3B of the Social Security (Administration) Act 1999. |
Portfolio |
Social Services |
Authorising legislation |
Social Security
(Administration) Act 1999 |
Last day to disallow |
15 sitting days after
tabling (tabled Senate 13 November 2017). Notice of motion to disallow
currently must be given by
8 February 2018 |
Rights |
Multiple Rights (see Appendix
2) |
Status |
Advice only |
Background
1.140
The Social Security (Administration) Act 1999 provides the
legislative basis for the income management regime for certain welfare
recipients in the Northern Territory and other prescribed locations.[95] Income management limits the amount of income support paid to recipients as
unconditional cash transfers and imposes restrictions on how the remaining
'quarantined' funds can be spent. A person's income support can be subject
to automatic deductions to meet 'priority needs', such as food, housing and
healthcare. The remainder of the restricted funds can only be accessed using a
'BasicsCard', which can only be used in certain stores and cannot be used to
purchase 'excluded goods' or 'excluded services'.[96]
1.141
A person on welfare benefits can voluntarily sign up for income
management, or be made subject to compulsory income management.
1.142
The committee examined the income management regime in its 2013 and 2016
Reviews of the Stronger Futures measures.[97] In its 2016 review, the committee noted that the income management measures
engage and limit the right to equality and non-discrimination, the right to
social security and the right to privacy and family.[98]
Determining the Northern Territory Department of Health as a recognised
State/Territory authority for the purposes of Part 3B of the Social Security
(Administration) Act 1999
1.143
The Social Security (Administration) (Recognised State/Territory
Authority – Northern Territory Department of Health) Determination 2017 (the
determination) determines the Northern Territory Department of Health as a
recognised State/Territory authority for the purposes of Part 3B of the Social
Security (Administration) Act. The effect of being recognised as a
State/Territory authority is that an officer or employee of the Northern
Territory Department of Health may give the Secretary of the relevant
Commonwealth department a written notice requiring that a person be subject to
income management.[99]
1.144
The determination replaces the Social Security (Administration)
(Recognised State/Territory Authority – NT Alcohol Mandatory Treatment
Tribunal) Determination 2013 which recognised the NT Alcohol Mandatory
Treatment Tribunal (AMTT) as a State/Territory authority for the purposes of
Part 3B. The AMTT previously had responsibility for issuing notices that people
be subject to income management in accordance with the Alcohol Mandatory
Treatment Act 2013 (NT) (AMT Act).
1.145
However, the AMT Act and AMTT framework were repealed and replaced by
the Alcohol Harm Reduction Act 2017 (NT) (Alcohol Harm Reduction Act).
The Alcohol Harm Reduction Act establishes a legal framework for making banned
drinker orders (BDOs) to enable adults to be registered on the banned drinkers
register (BDR). BDOs and the BDR are facilitated by the BDR Registrar, who is
located within the Northern Territory Department of Health and is an employee
of that department.
1.146
The Alcohol Harm Reduction Act provides that the BDR Registrar may
order than an adult is required to be subject to income management if the BDR
Registrar is satisfied that:
(a) either:
(i) a BDO is in force for the adult for a
period of 12 months; or
(ii) a
BDO will be in force for the adult for a period of 12 months when the income
management order comes into force; and
(b) the
adult would benefit from the making of an income management order; and
(c) the
adult, or the adult's partner, is an eligible recipient of a category H welfare
payment under Part 3B of the Social Security Administration Act.[100]
Compatibility of the measure with
multiple rights
1.147
The 2016 Review considered that income management, including the income
management referral scheme undertaken by the former AMTT,[101] engages and limits the following rights:
-
the right to equality and non-discrimination;
-
the right to social security; and
-
the right to privacy and family.
1.148
Each of these rights is discussed in detail in the context of the income
management regime in the committee's 2016 Review of Stronger Futures
measures (2016 Review).[102]
1.149
The statement of compatibility for the determination recognises that
multiple rights are engaged and limited by the determination. In relation to
the right to social security, the statement of compatibility explains that
income management does not reduce a person's social security payment, it just
changes the way the person receives it.[103] The statement of compatibility further states that to the extent income
management may disproportionately affect Indigenous Australians, any such
limitation is reasonable and proportionate.[104] Further, it states that the limitation on how a person accesses and spends
their money is a proportionate limitation on a person's right to a private life
in order to achieve the objectives of ensuring income support payments are used
to meet the essential needs of vulnerable people and their dependents.[105] It concludes:
The recognition of the Northern Territory Department of
Health as an income management referring authority will advance the protection
of human rights by ensuring that income support payments are spent in the best
interests of welfare payment recipients and their dependents. To the extent the
determination may limit human rights, those limitations are reasonable,
necessary and proportionate to achieving the legitimate objective of income
management.[106]
1.150
In the 2016 Review, the committee accepted that the income management regime
pursues a legitimate objective for the purposes of international human rights law,
but questioned whether the measures were rationally connected to achieving the
stated objective and were proportionate.[107] The committee's report noted:
While the income management regime may be of some benefit to
those who voluntarily enter the program, it has limited effectiveness for the
vast majority of people who are compelled to be part of it.[108]
1.151
The previous regime for referral to income management under the AMT Act
required the AMTT to make an income management order if a person is subject to
a mandatory treatment order.[109] In its 2016 review, the committee noted that the availability of any individual
assessment of whether income management was appropriate for persons who
received payments was relevant in assessing the proportionality of the measure:
In assessing whether a measure is proportionate some of the
relevant factors to consider include whether the measure provides sufficient
flexibility to treat different cases differently or whether it imposes a
blanket policy without regard to the merits of an individual case, whether
affected groups are particularly vulnerable, and whether there are other less
restrictive ways to achieve the same aim...[110]
1.152
The BDR Registrar's powers in the Alcohol Harm Reduction Act provide
greater flexibility to consider individual circumstances when determining
whether income management should be ordered, including considering whether 'the
adult would benefit from the making of an income management order'. An adult who
is subject to income management may also apply to the BDR Registrar for
variation or revocation of an income management order, and upon such
application the BDR Registrar may vary or revoke the order if satisfied that it
is appropriate to do so having regard to the criteria for making the order.[111] The new determination, and the income management referral scheme under the
Alcohol Harm Reduction Act enabled by the determination, is therefore an
improvement to the continuing compulsory income management as it allows
flexibility to treat different cases differently and provides for consideration
of a person's individual suitability for the program.
1.153
However, notwithstanding the greater flexibility to consider individual
circumstances, the income management orders made by the BDR Registrar still
impose compulsory, rather than voluntary, income management. The committee
previously raised concerns in its 2016 review that imposing income management
compulsorily may not be the least rights restrictive means of achieving the
legitimate objectives of the measure.[112] Therefore, insofar as the regime does not operate voluntarily, the concerns
raised in the 2016 Review regarding compulsory income management remain.
Committee comment
1.154
The effect of the determination is that an officer or employee of
the Northern Territory Department of Health may give the Secretary a written
notice requiring that a person be subject to income management.
1.155
Noting the human rights concerns regarding income management
identified in the committee's 2016 Review of Stronger Futures measures,
the committee draws the human rights implications of the determination to the
attention of the Parliament.
Bills not raising human rights
concerns
1.156
Of the bills introduced into the Parliament between 5 and 8 February,
the following did not raise human rights concerns (this may be because the bill
does not engage or promotes human rights, and/or permissibly limits human
rights):
- Commonwealth Inscribed Stock Amendment (Debt Ceiling) Bill 2018;
-
Fair Work Amendment (Improving National Employment Standards)
Bill 2018;
- Foreign Acquisitions and Takeovers Fees Imposition Amendment
(Near-new Dwelling Interests) Bill 2018;
- Road Vehicle Standards Charges (Imposition—Customs) Bill 2018;
- Road Vehicle Standards Charges (Imposition—Excise) Bill 2018;
- Road Vehicle Standards Charges (Imposition—General) Bill 2018;
-
Road Vehicle Standards (Consequential and Transitional
Provisions) Bill 2018;
- Treasury Laws Amendment (2018 Measures No. 1) Bill 2018; and
- Treasury Laws Amendment (2018 Measures No. 2) Bill 2018.
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