Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017

17. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

18. The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (the Bill) amends the Criminal Code Act 1995, the Crimes Act 1914, the Telecommunications (Interception and Access) Act 1979 and the Inspector-General of Intelligence and Security Act 1986 and makes consequential amendments to other legislation in response to the Government's review of Australia's espionage and foreign interference laws. The Bill will modernise and strengthen espionage, secrecy and related laws, and create new foreign interference laws to ensure the protection of Australia and Australia's interests.

19. Outlined below is a brief summary of the substantive changes to each of the relevant Acts.

Criminal Code Act 1995

20. The Bill:

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strengthens existing espionage offences

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introduces new foreign interference offences targeting covert, deceptive or threatening actions by foreign actors who intend to influence Australia's democratic or government processes or to harm Australia

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reforms Commonwealth's secrecy offences, ensuring they appropriately criminalise leaks of harmful information while also protecting freedom of speech

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introduces comprehensive new sabotage offences that effectively protect critical infrastructure in the modern environment

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modernises and reforms offences against government, including treason, to better protect Australia's defence and democracy

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introduce a new theft of trade secrets offence to protect Australia from economic espionage by foreign government principals, and

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introduces a new aggravated offence for providing false and misleading information in the context of security clearance processes, and

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ensures law enforcement agencies have access to telecommunications interception powers to investigate these serious offences.

Crimes Act 1914

21. The amendments to the Crimes Act include repealing existing offences relating to secrecy, sabotage and other offences against government in Part II of the Crimes Act and transferring them to the Criminal Code.

Telecommunications (Interception and Access) Act 1979

22. The definition of 'serious offence' in subsection 5D(1) of the TIA Act will be amended so that the powers in the TIA Act to apply to all offences created in the Bill. This ensures law enforcement agencies have access to telecommunications interception powers to investigate these serious offences.

Inspector-General of Intelligence and Security Act 1986

23. The Bill amends the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to insert an immunity from liability provision to cover people who provide information or documents to the Inspector-General of Intelligence and Security (IGIS) on a voluntary basis, for the purpose of the IGIS performing a function or duty or exercising a power under the IGIS Act.

Human rights implications

24. This Bill engages the following rights:

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the prohibition of torture, or cruel, inhuman and degrading treatment or punishment in Article 7 of the International Covenant on Civil and Political Rights (ICCPR)

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the right to liberty of person and freedom from arbitrary detention in Article 9(1) of the ICCPR

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the right to trial within a reasonable period or to release in Article 9(3) of the ICCPR

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the right to freedom of movement and choice of residence in Article 12(1) of the ICCPR

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the right to leave a country and enter one's own country in Article 12(2) and (4) of the ICCPR

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rights in relation to the expulsion of aliens in Article 13 of the ICCPR

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the right to equality before the courts and tribunals in Article 14(1) of the ICCPR

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the right to be tried without undue delay in Article 14(3)(c) of the ICCPR

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the right to be presumed innocent in Article 14(2) of the ICCPR

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the right to privacy in Article 17 of the ICCPR

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the right to opinion and freedom of expression in Article 19 of the ICCPR

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the prohibition on propaganda for war and advocacy of national, racial or religious hatred in Article 20 of the ICCPR

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the right to peaceful assembly in Article 21 of the ICCPR

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the right to freedom of association in Article 22 of the ICCPR

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the right to the protection of the family in Article 23 of the ICCPR

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the right to take part in public affairs and the right to vote in Article 25 of the ICCPR

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the right to equality before the law in Article 26 of the ICCPR

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the best interests of the child in Article 3 of the Convention on the Rights of the Child (CRC), and

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the right of children to nationality, identity and family in Article 24 of the ICCPR and Article 7 of the CRC.

Human rights promoted by the Bill

Right to liberty and freedom from arbitrary detention

25. Article 9(1) of the ICCPR states that everyone has the right to liberty and security of person and that no one shall be subjected to arbitrary arrest or detention. The Bill engages the right to liberty and freedom from arbitrary detention by requiring consent of the Attorney-General prior to the prosecution of an offence of espionage, foreign interference, sabotage, secrecy, theft of trade secrets, or other threats against security.

26. In circumstances in which a person is not arrested or remanded in custody pending a decision of the Attorney-General, the requirement for consent will protect and promote the right to liberty and freedom from arbitrary detention. This is because in deciding whether to consent to the prosecution of an offence the Attorney-General must consider whether the conduct in question was authorised and therefore whether the accused has a defence available. In this respect a proposed prosecution is scrutinised from both the prosecution and defence perspectives, and a judgment made about the appropriateness of the prosecution, having regard to the facts of the case and the scope of authorised conduct provided for in the Bill.

27. This individualised assessment prior to the prosecution may prevent any unwarranted deprivation of liberty thereby safeguarding the rights contained in Article 9(1).

Right to opinion and freedom of expression, right to freedom of assembly and association and right to take part in public affairs and elections

28. Article 19 of the ICCPR states that everyone has the right to hold opinions without interference and that everyone shall have the right to freedom of expression. Article 21 of the ICCPR recognises the right to peaceful assembly while Article 22 provides for the right to freedom of association with others. Article 25 of the ICCPR further states that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives, and to vote and to be elected at genuine periodic elections.

29. The Bill protects and promotes the right to opinion and freedom of expression, the freedom of assembly and association and the right to take part in public affairs and elections by:

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introducing foreign interference offences, which will criminalise certain conduct that seeks to influence the exercise of Australian democratic or political rights, and

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replacing the offence of 'interference with political liberty' with the offence of 'interference with political rights and duties'.

30. Foreign interference offences will criminalise conduct engaged in on behalf of a foreign principal that is covert or involves deception, threats or menaces and which seeks to influence a political or governmental process of an Australian government or the exercise of an Australian democratic or political right. Reference to the exercise of Australian democratic or political rights is intended to cover a broad range of rights held by Australians in relation to participation in Australia's democracy, including voting in elections and referenda and participating in lawful protests, rights which clearly fall within the scope of Articles 19, 21, 22 and 25.

31. Unlike the routine business of diplomatic influence practised by all nation states, foreign interference is characterised by clandestine and deceptive activities undertaken by foreign actors seeking to cause significant harm to Australia's national interests, or to advance their own interests. Foreign interference can erode Australia's sovereignty by diminishing public confidence in the integrity of Australia's political and government institutions, and undermining Australian societal values. During elections, referendums and plebiscites in particular, foreign interference can undermine the legitimacy or perceived legitimacy of government and its processes, enable the perception of corruption, and obfuscate information that might impact the voting decisions of the public.

32. In addition to foreign interference offences, the Bill creates the offence of 'interference with political rights and duties' which will apply where a person uses force, violence, threats or intimidation to interfere with a person's democratic or political right under the Constitution or Commonwealth law. The term 'Australian democratic or political right' is intended to cover a broad range of rights held by Australians in relation to participation in Australia's democracy, including voting in elections and referenda and participating in lawful protests. The limitation to 'Australian' democratic and political rights is intended to limit the operation of this paragraph to rights that arise because of a person's status as Australian. The limitation to rights which 'arise under the Constitution or a law of the Commonwealth' ties the offence to Commonwealth jurisdiction, excluding rights and duties which arise under state and territory laws. Democratic or political rights which arise under the Constitution or a Commonwealth law may include for example:

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the implied freedom of political communication, and

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the right to vote as provided for in section 41 of the Constitution and in the Commonwealth Electoral Act 1918.

33. The implied freedom of political communication and the right to vote clearly engage Article 19 of the ICCPR (right to opinion and freedom of expression) and Article 25 of the ICCPR (right to take part in political affairs and right to vote).

34. As with foreign interference, conduct which interferes with political rights and duties can diminish public confidence in the integrity of Australia's political and government institutions, enable the perception of corruption, and obfuscate information that might impact the voting decisions of the public during election periods. Unlike foreign interference, the offence of interference with political rights and duties requires the use of force, violence, threats or intimidation. In the worst case scenario, people may be killed or seriously harmed as a result of violence used to interfere with a person's democratic or political rights.

35. By criminalising foreign interference and interference with political rights and duties the Bill will prevent the harmful impact that such acts have on Australians and Australia's political and governmental processes. In accordance with the obligations which arise under Article 19 of the ICCPR, these offences will protect Australians from 'any acts by private persons or entities that would impair the enjoyment of the freedoms of opinion and expression.' During elections, the prohibition on foreign interference will ensure the right 'to vote without undue influence or coercion of any kind' while the offence of interference with political rights and duties will ensure persons are 'free to form opinions without the threat of violence, compulsion, inducement or manipulative interference'.

36. On this basis, the Bill will enable the exercise of democratic and political rights and duties without interference (as described) and thereby protect and promote the rights contained in Articles 19, 21, 22 and 25.

Prohibition on propaganda for war and advocacy of national, racial, or religious hatred

37. Article 20 of the ICCPR states that any propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. According to the United Nations Human Rights Committee (the Human Rights Committee), the prohibition on propaganda for war extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations; while the prohibition on advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence occurs regardless of whether such advocacy is internal or external to the State concerned. Article 20 requires States to provide for laws which clearly prohibit propaganda and advocacy as described and which provide for appropriate sanctions in cases of violation.

38. The Bill protects and promotes the prohibitions contained in Article 20 by replacing the existing offence of inciting mutiny with the offence of advocating mutiny and enacting a treachery offence where a person uses force or violence and intends to overthrow the Constitution or an Australian government.

39. The advocating mutiny offence will apply where a person engages in conduct which involves advocating mutiny, reckless as to whether the result will be that a member of the defence force takes part in a mutiny. A person advocates mutiny if the person counsels promotes, encourages or urges mutiny. The term 'mutiny' will be defined as a combination between persons who are, or at least two of whom are, members of the Australian Defence Force (ADF) who overthrow lawful authority in the ADF or in a force of another country that is acting in cooperation with the ADF; or who resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the ADF or of, or of a part of, a force of another country that is acting in cooperation with the ADF.

40. The treachery offence criminalises the use of force or violence intended to overthrow the Constitution, the Government of the Commonwealth or of a State or Territory or the lawful authority of the government of the Commonwealth. The new treachery offence will carry a penalty of life imprisonment.

41. Conduct which involves advocating mutiny or the use of force or violence to overthrow the government falls within the prohibitions contained in Article 20. By its very nature, overthrow of the defence force or government of Australia would involve hostility and/or violence. Advocating the overthrow of the government or defence force of Australia may also constitute national hatred within the context of Article 20. In this respect, the Bill ensures that the propaganda and advocacy described in Article 20 is clearly prohibited and further ensures appropriate sanctions by providing for a penalty of imprisonment in cases of violation. By replacing the existing offence of 'inciting mutiny' to reflect the modern Australian context, the Bill will further strengthen the prohibitions in Article 20.

Human rights limited by the Bill

Legitimate objective of the Bill

42. Under international human rights law, any limitation on rights and freedoms must be reasonable, necessary and proportionate for the pursuit of a legitimate objective. For an objective to be legitimate, it must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.

43. 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.

44. Existing laws in Australia are currently inadequate to deter and counter pervasive espionage and foreign interference activities directed against Australian interests. Espionage, secrecy and related criminal offences fail to take into account the current operational environment and technological advances which have provided hostile foreign intelligence services with greater global reach, access to sensitive data and tools to obscure identity. It is essential to expand the scope of the criminal law to cover contemporary methodologies for espionage and foreign interference currently occurring in Australia, as well as to allow for coverage of such methodologies as may be developed in the future. A lack of serious criminal penalties and law enforcement powers has also resulted in a permissive operating environment for malicious foreign actors, in which Australian agencies are unable to effectively disrupt and mitigate threats. Agencies must have the full suite of powers available to them under law to successfully investigate and prosecute acts of espionage and foreign interference.

45. The Bill will achieve its objective in ensuring the protection of Australia's national security by:

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broadening the investigative powers of Australian agencies

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updating existing offences dealing with espionage, secrecy, sabotage and treason, and

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creating new offences to address foreign interference and the theft of trade secrets.

Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment

46. Article 7 of the ICCPR states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The text of the Article 7 allows no limitation.

47. The Bill engages the prohibition on torture, cruel, inhuman or degrading treatment by providing for penalties of imprisonment. Penalties of imprisonment may amount to cruel, inhuman or degrading treatment where their application is disproportionate to the offence committed.

48. The penalties in the Bill have been set at a level that is adequate to deter and punish a worst case scenario, including repeat offences. Responsibility for determining criminal guilt and imposing an appropriate sentence rests with the courts in their exercise of judicial power. The court will have discretion to implement an appropriate penalty based on all of the circumstances of the case. In this regard, the application of the penalties is not disproportionate.

Right to liberty of person and freedom from arbitrary detention

49. Article 9(1) of the ICCPR states that everyone has the right to liberty and security of person and that no one shall be subjected to arbitrary arrest or detention. Under Article 9(3) the right to liberty extends to the right to be tried within a reasonable period or to be released. Limitations on the right to liberty are permitted to the extent that they are 'in accordance with such procedures as are established by law', provided that the law and the enforcement of it is not arbitrary, and where they are reasonable, necessary and proportionate to achieve a legitimate objective. The Bill limits the right to liberty of a person and freedom from arbitrary arrest and detention by imposing and increasing penalties of imprisonment and by allowing the arrest and remand of persons in custody pending consent of the Attorney-General for the prosecution of certain offences.

Penalties of imprisonment

50. The Bill limits the right to liberty by significantly increasing the penalty of imprisonment for the offences of espionage and sabotage. The purpose of increasing the penalty of imprisonment for these offences is to ensure that the penalties reflect the gravity of each offence, particularly where the offence has been amended to include conduct which is more serious in nature. In this respect, the measures will address the growing risk that espionage and related activities pose to Australia's national security. Increasing penalties of imprisonment in these circumstances is consistent with the established principle of Commonwealth criminal law policy as set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Guide to Framing Commonwealth Offences) to impose a heavier penalty where the consequences of the offence are particularly dangerous or damaging. Increasing penalties of imprisonment will also ensure effective deterrence of the commission of offences. A lack of serious criminal penalties for existing offences has resulted in a permissive operating environment for malicious foreign actors.

51. The Bill also limits the right to liberty by imposing a penalty of imprisonment for the new offences of foreign interference and theft of trade secrets. The penalty of 25 years for foreign interference, and 15 years for theft of the trade secrets, reflects an appropriate gradation with the amended penalties for espionage and sabotage which range from seven years to life imprisonment. Consequently, the penalties for the new offences are proportionate and reflect the seriousness of the conduct engaged in. Tiered penalties for espionage, secrecy and foreign interference offences further ensure that penalties are commensurate with the seriousness and culpability of offending. The higher penalty in each of the tiered offences ensures that penalties are proportionate to the person's intent or the harm flowing from the offence.

52. The Bill further introduces an aggravated offence for providing false or misleading information in relation to an Australian Government security clearance. The aggravated offence will attract a maximum penalty of five years imprisonment as opposed to a maximum penalty of 12 months imprisonment for the underlying offence. The aggravated offence relates to providing false or misleading information in relation to an application for or the maintenance of, an Australian Government security clearance. The introduction of an aggravated offence and higher penalty reflects the significant national security risks of the provision of false or misleading information in security clearance processes. Failing to disclose, or providing false or misleading statements concerning, links to foreign individuals, entities and governments may be considered particularly harmful as vetting and security agencies are unable to adequately assess the risks and vulnerabilities of foreign influence or interference if that person is given access to a range of classified material and places, disclosure of or access to which may cause significant harm. The introduction of the aggravated offence is also consistent with the Guide to Framing Commonwealth Offences principle to impose a heavier penalty where the consequences of the offence are particularly dangerous or damaging.

53. Responsibility for determining criminal guilt and imposing an appropriate sentence rests with the courts in their exercise of judicial power. The court will have discretion to implement an appropriate penalty based on all of the circumstances of the case. In this regard, the application of the penalties is not disproportionate. The offences will be subject to a number of safeguards to ensure their appropriate application and which promote the right to liberty and freedom from arbitrary detention including the availability of defences, bail and parole entitlements and fair trial rights such as to have matters heard by a competent, independent and impartial tribunal established by law.

Defences

54. Specific defences will be available for the offences of sabotage, espionage, foreign interference, secrecy, advocating mutiny, and military-style training involving foreign government principal. In addition to specific defences, the general defences under Part 2.3 of the Criminal Code will be available for all offences. These general defences include mistake or ignorance of fact, ignorance of subordinate legislation that was not available, claim of right over property, duress, sudden or extraordinary emergency, self-defence, and lawful authority. Defences will allow persons at risk of deprivations of liberty to justify their actions and defend the criminal charge against them.

Bail

55. Section 68 of the Judiciary Act 1903 confers federal jurisdiction on state and territory courts for criminal matters including in relation to the procedure for and determination of bail for persons remanded in custody accused of a federal offence. As such, bail applications for federal offences are dealt with according to the bail procedure of the state or territory where the offence was committed. In most states and territories criminal procedure laws provide for a general presumption in favour of bail. This presumption ensures deprivations of liberty are kept to a minimum by allowing the temporary release of an accused pending criminal proceedings.

56. The general presumption in favour of bail may be displaced in certain circumstances. For example, it may be necessary to refuse bail to prevent the communication of information already within the knowledge or possession of the accused or to prevent interference with evidence or flight of the accused. The general presumption may also be displaced by a presumption against bail for certain offences. Under existing section 15AA of the Crimes Act, and the amendments in this Bill, bail must not be granted for offences including treason, treachery and espionage unless 'exceptional circumstances' apply. 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.

57. For offences subject to a presumption against bail the accused will nevertheless be afforded to 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.

58. For foreign inference offences, the Bill limits the circumstances in which the presumption against bail applies to where there is the death of a person or substantial risk of death (consistent with the approach for treachery and espionage offences). This limitation will improve the ability of accused to be granted temporary release pending criminal proceedings and thereby safeguard against any disproportionate application of the presumption against bail in relation to foreign interference offences.

Parole and early release

59. Under section 19AB of the Crimes Act, persons convicted of a federal offence will be entitled to parole in circumstances in which the court imposes a life sentence or an aggregate of sentences which exceeds three years and where the person is not already serving or subject to a federal sentence. The entitlement of parole will ensure that persons will be released from prison after serving a specified period of their federal sentence subject to conditions that they must obey while they are in the community.

60. As a further safeguard, persons serving a federal sentence may be entitled to early release on licence. Early release on licence allows the Attorney-General to consider exceptional circumstances in which a person should be released from prison prior to the expiration of their sentence. In deciding whether to grant a licence the Attorney-General may have regard to extensive cooperation by the person with law enforcement agencies before or after sentencing or any serious medical condition the person has that cannot adequately be treated or managed within the prison system.

61. The availability of parole and early release will ensure that lawful deprivations of liberty are no longer than is necessary in the circumstances.

Fair trial rights and minimum guarantees in criminal proceedings

62. Fair trial rights include the right to equality before courts and tribunals and the right to a fair and public hearing before a competence, independent and impartial court or tribunal established by law. Fair trial rights are supplemented by minimum guarantees in criminal proceedings which include to be tried in person and without undue delay, to be free from self-incrimination, to have a conviction and sentence reviewed by a higher court and not to be tried or punished for the same offence more than once. These rights and guarantees are protected in common law as well as in the Crimes Act, the Evidence Act 1995 and in the criminal laws and procedures of states and territories.

63. Imprisonment following an unfair trial may amount to arbitrary detention. In these circumstances, the protection of fair trial rights and minimum guarantees will ensure the appropriate application of offences under the Bill and thereby protect the right to liberty and freedom from arbitrary detention.

64. On this basis, the limitation imposed on the right to liberty and freedom from arbitrary detention is reasonable, necessary and proportionate to achieving the legitimate objective of strengthening espionage and foreign interference laws to ensure the protection of Australians and Australia's national security.

Consent of the Attorney-General for prosecution

65. Under the Bill, the consent of the Attorney-General is required for the prosecution of an offence of espionage, foreign interference, sabotage, secrecy, theft of trade secrets, or threats against security offences. The Bill confirms that the requirement for the Attorney-General to provide consent prior to proceedings being commenced for the commitment of a person for trial for an offence does not preclude the arrest, charge, remanding or releasing on bail of a person in relation to the offences. The arrest, charge and remand in custody of a person in such circumstances may limit the right to liberty and freedom from arbitrary arrest and detention, since the person arrested and detained would have no case to answer should the Attorney-General decline to consent to a prosecution. The remand in custody of a person awaiting consent of the Attorney-General may also limit the right to be tried within a reasonable period or to be released.

66. The remand in custody of an accused may be necessary in the circumstances to prevent the communication of information already within the knowledge or possession of the accused which has the potential to damage Australian interests or otherwise threaten Australia's national security. It may also be necessary to prevent interference with evidence or flight of the accused. The granting or refusal of bail is not arbitrary, as it is determined by a court in accordance with the relevant rules and principles of criminal procedure. Further, the Bill ensures that nothing in the relevant provisions authorising arrest, charge, remand or release prior to the Attorney-General's consent will prevent the discharging of the accused if proceedings are not continued within a reasonable time. As such, if there is a significant delay between a person's arrest, charge, remand or release, and the decision of the Attorney-General, a person may be discharged and released from detention.

67. On this basis, the limitation imposed on the right to liberty and freedom from arbitrary detention is reasonable, necessary and proportionate to ensure the protection of Australia's national security.

Right to be tried without undue delay

68. Article 14(3)(c) of the ICCPR states that in the determination of any criminal charge, everyone has the right to be tried without undue delay. This right reflects the common law principle that 'justice delayed is justice denied'. It relates not only to the time by which a trial should commence, but also to the time by which it should conclude and judgment be given.

69. The right to be tried without undue delay may be limited where the delay is not 'undue' and where it is reasonable, necessary and proportionate to achieve a legitimate objective. According the Human Rights Committee, whether a delay is 'undue' will depend on the circumstances of each case taking into account the complexity and seriousness of the case and whether the accused is remanded in custody.

70. The Bill engages the right to be tried without undue delay by requiring consent of the Attorney-General for the prosecution of certain offences. The Bill limits the right to be tried without undue delay to the extent that a person may be charged, arrested and remanded in custody or on bail prior to and pending the Attorney-General's consent. The arrest, charge and remand in custody or on bail of an accused may be necessary in the circumstances to prevent the communication of information already within the knowledge or possession of the accused which has the potential to damage Australian interests or otherwise threaten Australia's national security. Further, the Bill ensures that nothing in the relevant provisions authorising arrest, charge, remand or release prior to the Attorney-General's consent will prevent the discharging of the accused if proceedings are not continued within a reasonable time. As such, if there is a significant delay between a person's arrest, charge, remand or release, and the decision of the Attorney-General, a person may be discharged.

71. On this basis, the limitation imposed on the right to be tried without undue delay is reasonable, necessary and proportionate to ensure the protection of Australia's national security.

Presumption of innocence

72. Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. In General Comment No. 32 (CCPR/C/GC/32) the Human Rights Committee stated that the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. The presumption of innocence may be limited provided the limitation 'is reasonable in the circumstances' and necessary and proportionate to achieve a legitimate objective.

73. The Bill limits the presumption of innocence by:

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imposing strict liability and absolute liability for certain offence elements, and

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placing an evidentiary burden on the defendant with respect to defences.

Strict liability

74. Strict liability applies to elements of the offences of espionage, secrecy, advocating mutiny and treason. For espionage offences these elements include that the information or thing dealt with has a security classification.

75. For secrecy and espionage offences, strict liability applies to elements of the definition of 'security classification'. For the offence of treason (assisting an enemy to engage in armed conflict) strict liability applies to the elements that the enemy is engaged in armed conflict against the Commonwealth or the Australian Defence Force and that the enemy is identified in a Proclamation made under section 80.1AB of the Criminal Code. Strict liability also applies to elements of the advocating mutiny and treason offences to remove the requirement to prove that a body corporate knows that it is incorporated in Australia.

76. The effect of applying strict liability to an element of an offence is that no fault element needs to be proved. This means that the prosecution will be required to prove, for the offence of espionage for example; that information dealt with has a security classification but will not need to prove that the person who dealt with the information knew this. The application of strict liability may limit the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault in the defendant for that particular element. Strict liability provisions will not violate the presumption of innocence so long as they are reasonable in the circumstances, and maintain rights of defence.

77. In relation to the definition of 'security classification', the prosecution will be required to prove that the security classification was applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information as SECRET OR TOP SECRET. Strict liability is appropriate for this element of the definition because the person's state of mind about the fact that the classification was applied under an appropriate Commonwealth policy framework for the purpose of identifying such information is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information was classified as SECRET or TOP SECRET. It is not reasonable to expect that a person would be familiar with the methods for applying classifications to information, nor the exact meaning of the classifications. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the policy framework sitting behind the application of a classification of SECRET or TOP SECRET.

78. The prosecution will also need to prove that the person was reckless as to the fact that the information had a classification equivalent to SECRET or TOP SECRET but not that the person who dealt with the information knew or was reckless as to the fact that this was prescribed by regulations. Strict liability is appropriate for this element of the definition of security classification because the person's state of mind about the fact that the classification was prescribed by regulations is not relevant to their culpability. It is sufficient for the prosecution to prove that the person was reckless as to the fact that the information had a classification equivalent to SECRET or TOP SECRET. It is not reasonable to expect a person to be intimately familiar with the method for prescribing equivalent classifications. There is unlikely to be sufficient evidence to allow the prosecution to prove that a person was reckless about this level of detail about the process for prescribing an equivalent classification.

79. In the case of the treason offence, it is not necessary for the person to have a state of mind as to the specific nature of a Proclamation made under section 80.1AB. The prosecution is already required to prove that the person was reckless as to whether the enemy was engaged in armed conflict involving the Commonwealth or the Australian Defence Force under paragraph 80.1AA(1)(a). It would be inappropriate for a prosecution to be able to proceed where a defendant knew a party was an enemy of Australia but was not aware of a substantial risk that there was a Proclamation made under section 80.1AB. The purpose of the Proclamation is to ensure that a person can identify whether there are any 'enemies' for the purpose of the treason offences should they wish to check, not for them to be specifically aware of the Proclamation in order to commit the offence.

80. The application of strict liability is also necessary to ensure that a person cannot avoid criminal responsibility because they were unaware of certain circumstances for example that that a particular security classification was applied under an appropriate Commonwealth policy framework. Consistent with the Guide to Framing Commonwealth Offences, requiring knowledge of such an element in these circumstances would undermine deterrence of the offence. There are also legitimate grounds for penalising a person's lacking 'fault' in these circumstances because, with an offence of espionage for example, the person still engaged in conduct with the intention to, or reckless as to whether, that conduct would prejudice Australia's national security or advantage the national security of a foreign country.

81. The application of strict liability will also make available the general defence of mistake of fact as set out in section 9.2 of the Criminal Code. This defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

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at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

•

had those facts existed, the conduct would not have constituted an offence.

82. The strict liability measures are proportionate in that they only apply to elements of the offence and not to the offences as a whole. In this respect, the prosecution will still be required to prove, beyond a reasonable doubt, all other elements of the offence including the fault elements of intention or recklessness.

Absolute liability

83. Absolute liability applies to a number of elements of the offences in the Bill.

84. Absolute liability also applies to jurisdictional elements of the offences. A jurisdictional element is an element of an offence that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. According to the Guide to Framing Commonwealth Offences, absolute liability should apply to all jurisdictional elements.

85. For example, the definition of 'public infrastructure' for the purpose of the sabotage offences applies absolute liability to the element that the infrastructure, facility, premises, network or electronic system 'belongs' to the Commonwealth and to the element that 'the infrastructure, facility, premises, network or electronic system belongs to, or is operated by, a constitutional corporation or used to facilitate constitutional trade or commerce'. These matters are not relevant to the offender's culpability and are included in order to link the offences to the Commonwealth's power to legislate under the Constitution.

86. As with strict liability, the application of absolute liability limits the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault in the defendant.

87. The application of absolute liability is also necessary to ensure that a person cannot avoid criminal responsibility because they were unaware of certain circumstances for example that property they damaged or destroyed belonged to a Commonwealth entity or of the level of government law that gave rise to a particular Australian democratic or political right. Consistent with the Guide to Framing Commonwealth Offences, requiring knowledge of such elements in these circumstances would undermine deterrence of the offences. There are also legitimate grounds for penalising a person's lacking 'fault' in these circumstances for example, because the person still intentionally damaged property or used violence to interfere with a person's political right or duty.

88. Further, the absolute liability measures are proportionate in that they only apply to elements of the offence and not to the offences as a whole. In this respect, the prosecution will still be required to prove, beyond a reasonable doubt, all other elements of the offence including fault elements of intention, knowledge or recklessness.

Reversal of burden of proof

89. The Bill creates a number of specific defences applying to the offences in the Bill. Consistent with section 13.3 of the Criminal Code, the defendant bears an evidential burden in relation to a defence, which requires the defendant adduce or point to evidence that suggests a reasonable possibility that a particularly matter exists or does not exist. Reversing the burden of proof limits Article 14(2) in that a defendant's failure to discharge the burden may permit their conviction despite reasonable doubt as to their guilt.

90. The Guide to Framing Commonwealth Offences acknowledges that it is appropriate to reverse the onus of proof and place a burden on the defendant in certain circumstances. This includes where a matter is peculiarly within the knowledge of the defendant and where it would be significantly more difficult and costly for the prosecution to disprove the matter than for the defendant to establish the matter.

91. It is reasonable and necessary for the burden of proof to be placed on the defendant in relation to the offence-specific defences provided for in the Bill. For example, for a defence at section 91.4(2) (espionage) the source of the alleged authority for the defendant's actions is peculiarly within the defendant's knowledge. It would be difficult and more costly for the prosecution to prove, beyond a reasonable doubt, that the person was not acting in their capacity as a public official, in accordance with a law of the Commonwealth or in accordance with an information arrangement or agreement to which the Commonwealth is a party. To do this, it would be necessary to negate the fact that there was authority for the person's actions in any law or in any aspect of the person's duty or in any of the instructions given by the person's supervisors (at any level). Conversely, if a Commonwealth officer had a particular reason for thinking that they were acting in accordance with a law or with their duties, it would not be difficult for them to describe where they thought that authority arose.

92. Similarly, for a defence at subsection 83.3(2) (military-style training involving foreign government principal etc.) the defendant is best placed to know of the existence of the type of agreement therein and to provide evidence in relation to that agreement. It would be significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to disprove the existence of any written agreement to which the Commonwealth is a party.

93. Defences which place an evidential burden on the defendant are proportionate because, the prosecution will still be required to prove each element of the offence beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will be required to disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

Right to privacy

94. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. The Human Rights Committee have interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The right to privacy may be limited where the limitation is lawful and not arbitrary and where it is reasonable, necessary and proportionate to achieve a legitimate objective. The Bill limits the right to privacy in that it will enable the interception of telecommunications under the TIA Act in respect of the offences provided for in the Bill.

Rational connection between TIA Act measures and the objective of the Bill

95. Schedule 4 of the Bill amends the definition of a 'serious offence' in subsection 5D(1)(e) of Part 1.2 of the TIA Act to include the offences provided for in the Bill. A 'serious offence' for the purpose of the TIA Act is one for which declared agencies can seek interception warrants.

96. The offences are appropriately included as 'serious offences' for the purpose of the powers contained in the TIA Act. Including the proposed offences within the remit of the TIA scheme will allow agencies listed in the TIA Act, in prescribed circumstances and subject to appropriate authorisation processes, to intercept communications, access stored communications and access telecommunications data.

97. It is important for such agencies to have appropriate powers to investigate each offence, including under the TIA Act. The covert and hidden nature of the conduct targeted by the offences can make them more difficult to detect and investigate through other means. By their nature, espionage and foreign interference often involve complex networks of people, technological sophistication and avoidance of paper and traceable communications. Approved interception of and access to telecommunications information would complement the range of other investigative options available to agencies in investigating these offences.

98. The seriousness of each offence, coupled with the ability for malicious actors to use electronic means to further conduct in support of the offences, justifies the inclusion of the proposed offences in the definition of 'serious offence' in the TIA Act. The seriousness of each suite of offences, and the gravity of the consequences of the conduct they criminalise, is outlined below:

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Sabotage offences (Division 82): The sabotage offences criminalise conduct causing damage to a broad range of critical infrastructure, including any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth or that is located in Australia and the provides the public with utilities and services. The offences also capture damage to any part of the infrastructure of a telecommunications network. They are necessarily included in the definition of 'serious offence' under the TIA Act because of the serious implications for business, governments and the community disruption to public infrastructure could have.

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Other threats to security - advocating mutiny (Division 83): Mutiny has potentially significant consequences for the defence of Australia. The primary responsibility of the Australian Defence Force is to defend Australia and Australia's interests. By seeking to overthrow the defence force of Australia, acts of mutiny clearly threaten Australia's national security and public order.

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Other threats to security - assisting prisoners of war to escape (Division 83): Assisting prisoners of war can undermine Australia's defence and national security, especially as escaped prisoners may provide assistance to a foreign adversary and cause harm to public safety.

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Other threats to security - military-style training (Division 83): The military-style training offence criminalises the provision, receipt or participation in military-style training where the training is provided on behalf of a foreign government. The offence seeks to ensure that foreign countries are unable to marshal forces within Australia, which could pose extremely serious threats to the defence and security of Australia.

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Other threats to security - interference with political rights and duties (Division 83): Conduct that interferes with political rights and duties, and involves the use of force, violence, intimidation or threats, is a grave threat to Australia's democracy, undermines public confidence in institutions of government and stifles open debate which underpins Australia's democratic society.

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Espionage (Division 91): The espionage offences criminalise dangerous and harmful conduct aimed at prejudicing Australia's national security or advantaging the national security of a foreign country. Acts of espionage have the potential to 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.

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Foreign interference (Division 92): These offences criminalise harmful conduct undertaken by foreign principals to damage or destabilise Australia's system of government and political process, to the detriment of Australia's interests or to create an advantage for the foreign country. Foreign interference involves covert, deceptive or threatening actions by foreign actors who intend to influence Australia's democratic or government processes or to harm Australia, and can be severely damaging to Australia's security and national interests.

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Theft of trade secrets involving foreign government principal (Division 92A): The theft of trade secrets offence seeks to combat the increasing threat of data theft, business interruption and economic espionage, by or on behalf of foreign individuals and entities. Interference in Australia's commercial dealings and trade relations by or on behalf of foreign governments can have serious consequences for Australia's national security and economic interests.

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Aggravated offence for giving false or misleading information (section 137.1A): A person who succeeds in obtaining or maintaining an Australian Government clearance on the basis of false or misleading information may gain access to highly classified or privileged information. If the person seeks to communicate or deal with that information in an unauthorised manner, including by passing it to a foreign principal, this could significantly damage Australia's national security.

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Secrecy of Information (Division 122): Disclosure of inherently harmful information or information that causes harm to Australia's interests can have significant consequences for Australia's national security, in particular if that information is advantageous to a foreign principal's national security and support espionage and foreign interference activities.

Reasonableness and proportionality of TIA Act measures

99. Including the offences within the TIA Act regime is a reasonable and proportionate means to achieve the Bill's legitimate objectives.

100. Under Chapter 2 of the TIA Act, interception warrants may be issued in respect of a person's telecommunications service, if they would be likely to assist an investigation of a serious offence in which either that person is involved, or another person is involved with whom the particular person is likely to communicate using the service. If there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service, the issuing judge may issue a warrant in respect of the named person, allowing access to communications made using a service or device. In both cases, the judge must have regard to the nature and extent of interference with the person's privacy, the gravity of the conduct constituting the offence, the extent to which information gathered under the warrant would be likely to assist an investigation, and other available methods of investigation.

101. Under Chapter 3 of the TIA Act, stored communications warrants may be issued in respect of a person. Such warrants allow an agency, subject to any conditions and restrictions specified in the warrant, to access a stored communication that was made by the person in respect of whom the warrant was issued, or that another person has made and for which the intended recipient is the person in respect of whom the warrant was issued. A judge or AAT member can only issue a warrant if there are reasonable grounds for suspecting that a particular carrier holds the stored communications, and information gathered under warrant would be likely to assist in the agency's investigation of a serious contravention in which the person is involved. A serious contravention is defined in section 5E of the TIA Act to include a serious offence, as well as offences punishable by imprisonment of at least 3 years and offences punishable by at least 180 penalty units. The judge or AAT member must have regard to the nature and extent of interference with the person's privacy, the gravity of the conduct constituting the offence, the extent to which information gathered under the warrant would be likely to assist an investigation, and other available methods of investigation.

102. The requirement that 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 safeguards against arbitrary or capricious use of the interception regime.

103. The TIA Act also contains strict prohibitions on communicating, using and making records of communications. Agencies are also required to destroy stored communications when they are no longer required for the purpose for which they were obtained. The Commonwealth Ombudsman and state oversight bodies inspect and report on agency use of interception powers to ensure law enforcement agencies exercise their authority appropriately. Agencies are required to keep comprehensive records to assist the Ombudsman and state oversight bodies for these purposes.

104. Additionally, agencies are required to report annually to the Minister on the:

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interceptions carried out by the agency, including

o

the use made by the agency of information obtained by interceptions

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the communications of information to persons other than officers of the agency

o

the number of arrests made on the basis of accessed information, and

o

the usefulness of information obtained.

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stored communications accessed by agencies, including:

o

how many applications were made and warrants issued

o

the number of arrests made on the basis of the accessed information, and

o

how many court proceedings used the records in evidence.

105. Reports must be tabled in Parliament each year to enable public scrutiny. Oversight of interception powers including the dissemination and destruction of intercepted information, by the Minister and Commonwealth Ombudsman further ensures that the use of interception powers are proportionate to achieve the national security objective of the Bill.

Freedom of expression

106. Article 19(2) of the ICCPR states that everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Any limitation on the right to freedom of expression must be reasonable, necessary, and proportionate for the pursuit of a legitimate objective and for the respect of the rights or reputations of others or for the protection of national security, public order, or public health or morals.

107. The Bill engages the right to freedom of expression by:

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replacing the offence of 'inciting mutiny' with the offence of 'advocating mutiny'

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amending espionage offences which deal with the communication and publication of information, and

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amending secrecy offences to better deal with unauthorised disclosure and unlawful handling of Commonwealth information.

Advocating mutiny

108. The new offence of advocating mutiny will apply where a person engages in conduct which involves advocating mutiny, reckless as to whether the result will be that a member of the defence force takes part in a mutiny. The term 'mutiny' will be defined as a combination between persons who are, or at least 2 of whom are, members of the Australian Defence Force (ADF) who overthrow lawful authority in the ADF or in a force of another country that is acting in cooperation with the ADF; or who resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the ADF or of, or of a part of, a force of another country that is acting in cooperation with the ADF. A person advocates mutiny if the person counsels promotes, encourages or urges mutiny. Such conduct falls within the scope of the right to freedom of expression in so far as advocating is form of expression which involves the imparting of information and ideas. By criminalising conduct which involves advocating mutiny, the Bill will limit the right to freedom of expression.

109. As established, the criminalisation of conduct which involves advocating mutiny will ensure the protection of the prohibitions contained in Article 20 regarding propaganda for war and advocacy of national, racial or religious hatred. According to the Human Rights Committee, the prohibitions provided for in Article 20 are fully compatible with the right to freedom of expression, the exercise of which carries special duties and responsibilities. As such, according to the Committee, any limitation that is justified on the basis of Article 20 must still comply with Article 19(3), that is that it must be necessary for the respect of the rights or reputations of others or for the protection of national security, public order, or public health or morals.

110. The primary responsibility of the Australian Defence Force is to defend Australia and Australia's interests. By seeking to overthrow the defence force of Australia, acts of mutiny clearly threaten Australia's national security and public order. In certain circumstances, acts of mutiny may also result in the arbitrary detention, torture or cruel, inhuman or degrading treatment or even the death of persons. Prohibiting conduct which involves advocating mutiny in these circumstances will promote the rights of others including the right to life, the right to liberty and the right not to be subject to torture as covered by Article 6, 7 and 9 of the ICCPR respectively. The gravity of the threat posed by acts of mutiny both to Australia's national security and public order and to the rights and freedoms of others demonstrates the need to take reasonable steps to discourage behaviour that promotes such activities. Besides prohibition there is no less restrictive measure to ensure the deterrence of conduct which involves advocating mutiny. The availability of the general defences under Part 2.3 of the Criminal Code including the defences of duress and self-defence will ensure that the application of the offence of advocating mutiny is reasonable and proportionate to achieve its objective.

Espionage - Rational connection between the measures and the objective of the Bill

111. The proposed espionage offences in Division 91 cover the full range of espionage conduct being engaged in by Australia's foreign adversaries. The new offences criminalise a broad range of dealings with information, including possessing or receiving, and protect a broader range of information, including unclassified material. The current methodology of Australia's adversaries means that dealings with unclassified information, if accompanied by the requisite intention to harm Australia, can be as damaging as the passage of classified information. It is important to note that dealings with such information are only criminal if the defendant intends, or is reckless as to whether their conduct will, harm Australia's national security. The person will also have to deal with information in a way that makes it available to a foreign principal.

112. The definition of national security in section 90.4 of the Bill is exhaustive and has been drafted consistent with definitions in other Commonwealth legislation, to ensure it reflects contemporary matters relevant to a nation's ability to protect itself from threats. This includes the definition of 'security' in section 4 of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and the definition of 'national security' in section 8 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act). The definition of 'national security' in the NSI Act substantially implemented the recommendations of the Australian Law Reform Commission (ALRC) in Keeping Secrets: The Protection of Classified and Security Sensitive Information (Report 98, June 2004).

113. The definition of deal in section 90.1 of the Bill covers the full range of harmful conduct that can constitute espionage offences. This is to ensure the offences comprehensively address the continuum of criminal behaviour which may be undertaken in the commission of espionage offences, and allow authorities to intervene at any stage. While the definition of 'deal' is necessarily broad, a person will only be criminally responsible for an espionage offence where every element of the offence is satisfied. For example, a person will only commit an offence under subsection 91.1(1) where he or she deals with security classified information or information concerning Australia's security, and the person intends for the conduct to prejudice Australia's national security or advantage the national security of a foreign country, and this results or will result in the information being communicated or made available to a foreign principal.

114. It is appropriate for the espionage offences to apply to a broad range of information, including unclassified material. Activities up to communication of information, such as possession, altering, concealing or receiving, can be damaging in themselves as well as part of a course of conduct leading up to disclosure. The current methodology of Australia's adversaries means that dealing with unclassified information, if accompanied by the requisite intention to, or recklessness as to whether the conduct will, harm Australia, can be as damaging as the passage of classified information. The fault element of intention will apply to the physical element of the offence that a person communicates or deals with the information.

115. The new offences will not just target the person who discloses the information, but also the actions of the foreign principal who receives the information. This is appropriate to ensure that espionage offences apply to the full suite of harmful conduct designed to harm Australia's national security or advantage the national security of a foreign country. The offences of espionage on behalf of a foreign principal in Subdivision B of Division 91 are circumscribed in that the prosecution must prove that the person who received the information did so with an intention to, or reckless as to whether their conduct would, prejudice Australia's national security or advantage the national security of a foreign country.

116. The new offences in Division 91 will also criminalise soliciting or procuring a person to engage in espionage and will introduce a new preparation or planning offence, which will allow law enforcement agencies to intervene at an earlier stage to prevent harmful conduct occurring. Serious harm can flow from activities which seek to solicit or procure a person to engage in espionage, especially if the foreign principal is successful in obtaining classified information that will prejudice Australia's national security. These offences will allow law enforcement to deal with the conduct at the time it occurs, without the need to wait until an espionage offence is committed or sensitive information is actually passed to a foreign principal.

Espionage - Reasonableness and proportionality

117. The espionage offences are a reasonable and proportionate way to achieve the Bill's objectives. Espionage can cause severe harm to Australia's national security, compromising Australia's military capabilities and alliance relationships, and can pose a grave threat to Australia's economic stability and wellbeing. The offences are structured to capture the full range of harmful espionage conduct, while also being appropriately circumscribed to ensure they do not capture non-threatening activities. As noted above, the prosecution must prove beyond reasonable doubt that the defendant intended to, or was reckless as to whether their conduct would, harm Australia's national security. The information must also have been made available to a foreign principal. The fault element of intention will apply to the physical element of the offence that a person communicates or deals with the information. Consistent with subsection 5.2(1) of the Criminal Code, this means that the person must have meant to engage in the conduct - mere receipt of information would not necessarily satisfy this fault element.

118. The offences are appropriately limited by defences in subsections 91.4(1), 91.9(1) and 91.13(1) for dealing with information in accordance with a law of the Commonwealth, in accordance with an arrangement or agreement to which the Commonwealth is party, or in the person's capacity as a public official. It is also a defence under subsections 91.4(2) and 91.9(2) if the person deals with information that has already been communicated or made available to the public with the authority of the Commonwealth. A further defence will be available under subsection 91.4(3) where there has been a prior publication of the information in certain circumstances.

Secrecy

119. Secrecy offences relating to inherently harmful information will apply where a person communicates or publishes (subsection 122.1(1)) or otherwise deals with (subsection 122.1(2)) inherently harmful information and the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity. Secrecy offences causing harm to Australia's interests will apply where a person communicates (subsection 122.2(1)) or otherwise deals with (subsection 122.1(2)) information, the communication or dealing with causes, will cause or is likely to cause harm to Australia's interest and the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity. A person deals with information if the person receives, obtains, collects, possesses, makes a record of, copies, alters, conceals, communicates, publishes or makes available the information. Further, an offence of unauthorised disclosure of information by current and former Commonwealth officers (section 122.4) will apply where a person communications information which was made or obtained by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and the person is under a duty, which rises under law of the Commonwealth, not to disclose the information. Section 122.4A creates separate secrecy offences relating to the communication of, and dealing with, information by persons who are not, and have not previously been, Commonwealth officers.

120. Conduct which receives, obtains, collects, communicates, publishes or makes available information clearly falls within the scope of the right to freedom of expression in so far as it involves the seeking, receiving or imparting of information and ideas. By criminalising these activities in certain circumstances secrecy offences will limit the right to freedom of expression.

121. In General Comment No. 34 (CCPR/C/GC/34) the Human Rights Committee stated that care must be taken by States parties to ensure official secrets laws, are crafted and applied in a manner that conforms to the requirements of Article 19(3). According to the Committee:

It is not compatible with paragraph 3, for instance, to invoke such 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.

122. The offences in section 122.1 apply only to information within narrowly defined categories of inherently harmful information. The offences in section 122.2 apply only to information made or obtained by a Commonwealth officer, the communication of which would cause harm to specified essential public interests, and where that harm does or was likely to eventuate as a result of the person's conduct. The gravity of the threat posed by the disclosure of inherently harmful information or information which causes or will cause harm to Australia's interests demonstrates the need to criminalise such conduct.

123. Section 122.4 does not criminalise the disclosure of any particular information in its own right. Section 122.4 contains a narrower and modernised version of the general secrecy offence currently contained in section 70 of the Crimes Act, which will make it an offence for a Commonwealth officer or a person engaged to perform work for a Commonwealth entity to communicate information in breach of a duty arising elsewhere under the law of the Commonwealth. As such, section 122.4 does not establish a new limitation on the ability of such persons to communicate information. Subsection 122.4(3) provides for a sunset clause, which ensures that section 122.4 does not apply in relation to any communication of information that occurs after the end of five years after the section commences. This clause limits the application of the section 122.4 to a defined period.

124. Section 122.4A creates a separate secrecy offence that applies to non-Commonwealth officers. The offences in section 122.4 apply to narrower subsets of information and conduct, and attract lower maximum penalties than the secrecy offences applying to current and former Commonwealth officers at sections 122.1 and 122.2. This recognises that secrecy offences should apply differently to Commonwealth and non-Commonwealth officers given the former have a higher duty to protect such information, should be well trained in security requirements procedures and, in many cases, have security clearances.

125. The availability of the general defences under Part 2.3 of the Criminal Code as well as the specific defences provided for in section 122.5, in particular the defence for media organisations which protect freedom of expression in respect of important matters such as freedom of press, whistle-blowers, and access to the law, will further ensure that the application of secrecy offences is reasonable and proportionate to achieve their objective.

Freedom of assembly and association

126. Article 21 of the ICCPR recognises the right to peaceful assembly. This right protects the rights of individuals and groups to meet and to engage in peaceful protest. Article 21 extends to all gatherings for peaceful purposes, regardless of the degree of public support for the purpose of the gathering. Article 22 of the ICCPR states that everyone shall have the right to freedom of association with others. This right protects the right to form and join associations to pursue common goals.

127. The Bill engages the right to freedom of assembly and association by replacing the offence of 'unlawful drilling' with the offence of 'military-style training involving a foreign government principal etc.'. This offence applies where a person provides, receives or participates in training that involves using arms or practising military exercises, movements or evolutions on behalf of or directed, funded or supervised by a foreign government principal or a foreign political organisation or by a person acting on behalf of a foreign government principal or foreign political organisation.

128. The conduct involved in the offences falls within the scope of Articles 21 and 22 to the extent that the meeting of one or more persons for the purpose of military-style training constitutes an assembly and/or an association of persons. By criminalising such conduct, the Bill will limit the right to freedom of assembly and association. Any limitation on the freedom of assembly and association must be necessary in a democratic society in the interest of national security or public safety, public order, the protection of health or morals or the protection of the rights and freedoms of others.

129. Military-style training on behalf of a foreign government can erode Australia's sovereignty and undermine the authority of the Australian military. On this basis, military-style training threatens Australia's national security and public order. In the worst case scenario, military-style training may result in the death of persons. Prohibiting military-style training in these circumstances will promote public safety and the rights of others including the right to life as covered by Article 6 of the ICCPR.

130. The gravity of the threat posed by military-style training both to Australia's national security, public safety and public order and to the rights of others demonstrates the need to take reasonable steps to prevent such activities. Besides prohibition there is no less restrictive measure to ensure the deterrence of military-style training. The availability of the general defences under Part 2.3 of the Criminal Code and the specific defences provided in section 83.3 ensures that the application of the offence is reasonable and proportionate to achieve its objective.

Rights relating to cessation of citizenship

131. The Bill will insert the offences against proposed Division 92 of the Criminal Code (foreign interference) within the scope of section 35A of the Australian Citizenship Act 2007. This means that the Minister may determine in writing that a person ceases to be an Australia citizen where the person has been convicted of an offence against Division 92 (foreign interference) if other relevant statutory criteria are satisfied. These criteria include that the person has been sentenced to at least six years' imprisonment or to periods of imprisonment that total at least six years, and is a national or citizen of a country other than Australia, and the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen.

132. The objective of section 35A of the Australian Citizenship Act 2007 is to protect the Australian community and the values it upholds. Australian citizenship is a common bond, involving reciprocal rights and obligations. Citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia. The purpose of section 35A is to deal with the threat caused by those who have acted in a manner contrary to their allegiance to Australia by removing them from formal membership of the Australian community. Removing a person's formal membership of the Australian community is appropriate to reduce the possibility of a person engaging in acts or further acts that harm Australians or Australian interests.

133. The offences currently specified in section 35A are those that prima facie indicate that a person has acted contrary to his or her allegiance to Australia. For example, offences involving terrorism and or other serious threats to Australia and Australia's interests (including espionage and treason).

134. The foreign interference offences in Division 92 criminalise covert, deceptive or undisclosed conduct undertaken on behalf of a foreign principal that is intended to interfere with Australian democratic systems and processes, support the intelligence activities of a foreign government or harm Australia's national security. By doing so, these offences seek to protect Australia's national security and the rights and freedoms of the Australian community at large. Penalties range from 10 to 20 years' imprisonment. The foreign interference offences, therefore, have a comparable character and seriousness to the existing offences covered by section 35A. On this basis, their inclusion within the scope of section 35A is rationally connected to the objective of the Bill and section 35A in protecting Australians and Australia's national security, and will not significantly alter the proportionality of section 35A in achieving this objective.

135. The requirement that the Minister be satisfied that it is not in the public interest for the person to remain an Australian citizen acts as a safeguards against any unnecessary or disproportionate application of section 35A. In determining whether it is not in the public interest for the person to remain an Australian citizen the Minister is to have regard to the following factors:

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the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences

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the degree of threat posed by the person to the Australian community;

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the age of the person

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if the person is aged under 18-the best interests of the child as a primary consideration

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the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person

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Australia's international relations, and

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any other matters of public interest.

136. Moreover, a person may seek judicial review of a determination made under subsection 35A(1) in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903. The availability of judicial review of a determination made under section 35A further safeguards against unreasonable or unnecessary cessations of citizenship.

137. An analysis of the impact of section 35A on specific rights and freedoms is outlined in the statement of compatibility with human rights in the explanatory memorandum to the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. Section 35A has been assessed as being compatible with human rights because to the extent that it may limit some human rights, those limitations are reasonable, necessary and proportionate in light of the provision's objective and purpose. In accordance with this analysis, information in relation to each of the specific rights engaged by the inclusion of foreign interference offences in section 35A is outlined below.

Freedom of movement and choice of residence

138. Article 12(1) of the ICCPR states that everyone lawfully within the territory of a country shall have the right to liberty of movement and freedom to choose his residence. Article 12(3) states that this right may be limited on bases that are provided by law, and necessary to protect national security, public order, or the rights and freedoms of others.

139. The exercise of the power to cease a person's citizenship while that person is in Australia will not of its own force alter a person's liberty of movement and freedom to choose their residence. However, cessation may lead to circumstances in which a person could be held in immigration detention, which would impact their freedom of movement and residence.

140. Section 35 of the Migration Act 1958 provides for the automatic grant of an ex-citizen visa to a person who is in the migration zone when his or her citizenship ceases. The ex-citizen visa is a permanent visa allowing the holder to remain in, but not re-enter, Australia. However, in the circumstances in which a person's citizenship is revoked due to a relevant criminal conviction, the Minister may consider immediately cancelling this visa on character or national interest grounds, assuming the relevant criteria were met.

141. As such, a move to cease a person's citizenship cannot be absolutely separated from the visa cancellation, and liability for removal from Australia, which cessation would make possible. Cessation should, therefore, be viewed as a measure which may lead to the removal of the ability to remain lawfully within Australia.

142. In circumstances where a person has been convicted and sentenced to imprisonment for a foreign interference offence such that their continued citizenship is, in the Minister's view, not in the public interest, such measures will be necessary to protect national security, and the rights and freedoms of the Australian community at large. On this basis, the limitation on the right to freedom of movement and choice of residence is proportionate to ensure protection of Australia's national security.

Right to leave a country

143. Article 12(2) of the ICCPR provides that everyone shall be free to leave any country, including his own.

144. The ability to leave Australia will not be directly affected by the cessation provisions, but there are several ways in which the right may be indirectly affected. Clearly this is relevant only to people whose citizenship ceases while they are in Australia. In some cases the cessation may lead to visa cancellation and removal; in these circumstances Article 12(2) would not be relevant.

145. If the person is allowed to remain in Australia it may be the case that their ability to leave the country is restricted under other legislation. The most obvious current example is preventing travel where the person is likely to join an extremist movement overseas. The UN Human Rights Committee has noted that 'since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents.' The inability to hold an Australian passport as a result of cessation of citizenship could potentially prevent travel outside Australia, but if necessary in the circumstances either a travel document from the person's other country of nationality, a temporary document issued by Australia, or some other facility could potentially be used.

Right to enter one's own country

146. Article 12(4) of the ICCPR provides that no one shall be arbitrarily deprived of the right to enter his own country.

147. While a person whose citizenship has ceased would no longer be a citizen under Australian law, under international law Australia may still be considered their 'own country' for the purposes of Article 12(4). The phrase 'his own country' has been interpreted broadly by the UN Human Rights Committee, and the drafting history of the provision supports the interpretation that 'own country' goes beyond mere nationality. However, it is the Government's view that, where a person has objectively demonstrated through their conduct that they have repudiated their allegiance to Australia, which under the cessation provisions will necessarily be in circumstances where they hold another citizenship, any ties they may have to Australia for the purposes of Article 12(4) have been voluntarily severed. Regardless of prior connections, the person should not be entitled to gain any advantage from a relationship they are responsible for breaking.

148. Should circumstances arise where a person whose citizenship has ceased and who properly considers Australia to be 'his [or her] own country', and where the person is outside Australia when the Minister determines that they cease to be an Australian citizen, depriving that person of the right to enter Australia would not be arbitrary. This is because the deprivation of the right to enter Australian would be based on a genuine threat to Australia's security posed by a person who has objectively demonstrated repudiation of their allegiance to Australia. The very serious consequence of ceasing citizenship (thereby preventing return to Australia) is, in the Government's view, proportionate to the legitimate goal of ensuring the security of the Australian community.

149. A person whose citizenship ceases while they are outside Australia may apply for a visa for entry to Australia, though as noted above, in the circumstances it is likely they would fail the character test.

Expulsion of aliens

150. Article 13 of the ICCPR provides that:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

151. While technically the power to cease a person's citizenship would not result directly in the expulsion of a person from Australia, as outlined above, expulsion (most likely removal from Australia under section 198 of the Migration Act) is the most likely outcome of the process which begins with cessation where a person is in Australia at the time.

152. Any removal would come only after the person's lawful status in Australia (i.e. any visa they held after the cessation of their citizenship) was cancelled. In that sense they would not be able to claim the benefit of Article 13 (as they would not be lawfully in Australia's territory), but that is a distinction which avoids the reality that these are two steps in a closely linked process.

153. However, decisions leading to removal from Australia following cessation of citizenship would all be conducted in line with the relevant provisions in the Migration Act, so removal itself would be in pursuance of a decision reached in accordance with law. Further, those decisions would most likely be subject to review by a tribunal or court.

Equality before the courts and tribunals

154. Article 14(1) of the ICCPR provides that:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

155. The right to a fair trial and fair hearing are not limited by section 35A. In a judicial review action, the court would consider whether or not the power given by the Australian Citizenship Act has been exercised according to law. A person also has a right to seek declaratory relief as to whether the conditions giving rise to the cessation have been met.

156. It is also the case that, as reflected in the note to section 35A(1), an affected person may seek judicial review of a determination made under subsection 35A(1). Further, a person's citizenship is taken never to have ceased if the Minister revokes a determination made where the conviction that led to the determination is overturned or quashed.

Equality before the law

157. Article 26 of the ICCPR states that:

158. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

159. This a stand-alone right which will be breached if a person does not enjoy equality before the law or equal protection of the law with others, on the basis of discrimination on a prohibited ground.

160. The proposed application of cessation provisions to the foreign interference offences provided for Division 92 does not discriminate on a prohibited ground but rather operates on the basis of certain conduct or a conviction or convictions of a particular kind i.e. a conviction for a foreign interference offence. To the extent that the cessation powers in the Australian Citizenship Act differentiate on the basis that they apply only to those people who hold foreign citizenship or nationality in addition to their Australian citizenship, this is considered reasonable and proportionate and consistent with Australia's obligations under the statelessness conventions.

161. As observed by the Human Rights Committee in General Comment no. 18, not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICCPR.

162. Differentiation on the basis of dual nationality is the consequence of international obligations relating to statelessness, and as such represents a measure of extra protection for those without dual nationality, rather than a means of positively selecting those who may be subject to the new cessation power.

163. The differentiation at the heart of the cessation provisions relevant to the Bill is that the person has been convicted of a crime of a particular character, which demonstrates repudiation of allegiance to Australia. These provisions operate only in the most serious of circumstances, and the consequence of their operation - the cessation of a person's citizenship - is proportionate to the seriousness of the conduct.

The best interests of the child

164. Article 3 of the CRC provides that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

165. This right would be engaged by the cessation power in section 35A of the Australian Citizenship Act, which applies to all persons regardless of age.

166. The cessation power would only be enlivened in relation to a child directly when the child meets the crime or conduct thresholds. Given the type of conduct captured by the foreign interference offences, it is unlikely that a child would commit such an offence.

167. The cessation power in section 35A is discretionary and allows the Minister to take into account all the circumstances of each individual case. The Minister must expressly have regard to the best interests of the child as a primary consideration when reaching satisfaction on whether it is in the public interest for the child to remain an Australian citizen. The Minister also has the power to revoke a determination made under section 35A if a conviction (in relation to a child or otherwise) is later overturned or quashed.

168. This right is also engaged where a parent's citizenship ceases. In circumstances where the parent is in Australia at the time of cessation, decisions which might flow from that cessation would all be lawfully based in the Migration Act. The best interests of the child would be a primary consideration in all of those decisions, though may be outweighed by countervailing considerations such as the integrity of the citizenship programme and national security risks.

Rights of children to nationality, identity, family etc.

169. Article 23(1) of the ICCPR provides that 'the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.' Article 24 of the ICCPR further provides that every child shall have the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State and the right to acquire a nationality. Article 7 of the CRC also provides that the child shall have the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

170. The cessation power would only be enlivened in relation to a child directly when the child meets the crime or conduct thresholds. Given the type of conduct captured by the foreign interference offences, it is unlikely that a child would commit such an offence.

171. The right in Articles 7 and 24 to acquire a nationality is not the same as a right to retain a nationality. Cessation of a child's citizenship must of necessity occur after a child has acquired citizenship, however section 35A does not operate if a person would be rendered stateless by the cessation. That is, the Minister may only make a determination under section 35A if the person is also a citizen of a country other than Australia at the time of the determination. Consequently the right to acquire a nationality is not limited by section 35A.

172. The power in section 35A is also discretionary such that it allows the Minister to take into account all the circumstances of each individual case. In considering the possible cessation of citizenship in respect of a child, the Minister is required to consider the child's best interests as a primary consideration.

173. These rights are also engaged where a parent's citizenship ceases, which may affect the family unit. In circumstances where the parent is in Australia at the time of cessation, decisions which might flow from that cessation would all be lawfully based in the Migration Act. The best interests of the child would be a primary consideration in all of those decisions, though may be outweighed by countervailing considerations such as the integrity of the citizenship programme and national security risks.

Rights relating to Schedule 5 - Foreign Influence Transparency Scheme

174. Schedule 5 of the Bill makes amendments relevant to the Foreign Influence Transparency Scheme (the Scheme), including amendments that reflect the interaction between the Foreign Influence Transparency Scheme Act 2017 (FITS Act) and the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2017.

175. The Scheme introduces registration obligations for persons or entities who have arrangements with, or undertake certain activities on behalf of foreign principals, including 'general political lobbying' activities undertaken for the purpose of 'political or governmental influence'. Schedule 5 of the Bill amends the definition of 'general political lobbying' under the FITS Act to include lobbying of persons or entities registered under the Commonwealth Electoral Act 1918 as a political campaigner. The effect of this amendment is that a person or entity may be liable to register where they lobby political campaigners on behalf of a foreign principal. Whether a person is liable to register will depend on whether the lobbying is undertaken on behalf of a foreign principal for the purpose of political or governmental influence and whether any relevant exemptions apply.

176. By expanding the types of registrable activities under the Scheme, Schedule 5 limits a number of human rights and freedoms including the right to privacy, the right to freedom of expression and the right to take part in the conduct of political affairs. Any limitation on rights and freedoms must be reasonable, necessary and proportionate for the pursuit of a legitimate objective. For an objective to be legitimate, it must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.

Legitimate objective of the Scheme

177. The legitimate objective the Scheme is 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.

178. If not transparent, foreign influence can have serious implications for political sovereignty and national policy as it may result in the prioritisation of foreign interests over domestic interests. For example, where a foreign principal engages an intermediary to represent their interests within Australia, the relationship between the intermediary and the foreign principal, and thereby the foreign interest, can remain hidden. This undermines the ability of decision-makers in government, as well as the public, to fully understand and evaluate the actions of that intermediary, and to make informed decisions.

179. During elections, referendums and plebiscites in particular, foreign influence can undermine the legitimacy or perceived legitimacy of government and its processes, enable the perception of corruption, and obfuscate information that might impact the voting decisions of the public. Consequently, it is important that activities that could impact Australia's government and political systems and processes, which are undertaken on behalf of foreign principals, are distinguished from activities undertaken by domestic principals to influence such processes.

180. There is currently no formal mechanism requiring instances of foreign influence to be made known to government and the public. While some forms of foreign influence are captured through lobbying registers, these registers primarily target very narrow conduct, being lobbying of government representatives and politicians. Furthermore, these registers are not supported by binding legislative or regulatory frameworks and enforcement mechanisms. Similarly, Ministerial codes of conduct that variously regulate the post-employment activities of Ministers, are not supported by binding legislative or regulatory frameworks. This can impede the ability of these schemes to illuminate activities undertaken by former Ministers on behalf of foreign actors.

181. The Scheme will achieve its transparency objective by publicly identifying the forms and sources of foreign influence exerted over political and governmental processes in Australia. It will do this by way of a publicly available register, containing information about the nature of a person's relationship with a foreign principal, and the activities undertaken pursuant to that relationship.

Rationale connection between the measures and the objective of the Scheme

182. Extending the definition of 'general political lobbying' in section 10 of the FITS Act to include lobbying of political campaigners registered under the Commonwealth Electoral Act 1918 is rationally connected to the objective of the Scheme. As political campaigners occupy a significant position of influence within the Australian political system, it is appropriate that the Scheme provide transparency of the nature and extent of foreign influence being brought to bear over such persons and entities. If not disclosed, this type of foreign influence exerted through intermediaries has the potential to impact political campaigners' positions on public policy which could, ultimately, undermine Australia's political sovereignty.

183. As noted above, a person who undertakes general political lobbying of political campaigners on behalf of a foreign principal is required to register under the Scheme where they do so for the purpose of 'political or governmental influence' and an exemption does not apply. In order for the Scheme to meet its legitimate objective, it is necessary for the definition 'political or governmental influence' to cover the full range of processes in relation to registered political campaigners.

184. Political campaigning is an inherently political activity, by its nature designed to influence elections, government and parliamentary decision-making, or the creation and implementation of laws and policies. It is important that the concept of 'political or governmental influence' recognises that the lobbying of political campaigners can occur in a number of ways and throughout the political cycle. A person may seek to influence the internal functioning of the political campaigner, such as its constitution, administration or membership, in order to affect the political campaigner's external activities, including in relation to their policy position or election strategy. For example, a person acting on behalf of a foreign principal may seek to adjust a political campaigner's funding decisions as an indirect method of influencing policy priorities. The definition of 'political or governmental influence' furthers the legitimate objective of the Scheme to bring public awareness to the range of activities in need of greater transparency.

Freedom of expression and the right to take part in the conduct of public affairs

185. Article 19(2) of the ICCPR states that everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The right to freedom of expression also includes the right not to impart information. Article 25 of the ICCPR further states that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives, and to vote and to be elected, without unreasonable restrictions.

186. Schedule 5 of the Bill limits the freedom of expression and the right to take part in the conduct of public affairs as it will regulate lobbying of political campaigners by persons who act on behalf of a foreign principal. This may include for example activities which seek, receive and impart information and ideas as well as activities which could be described as 'influencing through public debate and dialogue.' Schedule 5 will further limit the right to freedom of expression by requiring disclosure of information relating to such activities. A limitation on the freedom of expression is permissible where it is necessary for the respect of the rights or reputations of others or for the protection of national security, public order or public health or morals. A limitation on the right to take part in the conduct of public affairs is permissible providing the limitation is not unreasonable. Limitations must also be proportionate to the pursuit of a legitimate objective.

187. The limitations imposed on freedom of expression and the right to take part in the conduct of public affairs are necessary to protect and promote the rights of others and are reasonable and proportionate to achieving the transparency objective of the Scheme.

188. The obligation to register and provide ongoing reports is intended to support the transparency objectives of the Scheme by enabling the Australian Government and public to understand and properly judge the activities of persons who act on behalf of foreign principals. In General Comment No. 34 (CCPR/C/GC/34), the UN Human Rights Committee emphasised the importance of the principles of transparency and accountability for the protection and promotion of human rights. By ensuring transparency of the sources and interests behind certain activities, the Scheme will promote the rights of individuals to hold opinions as protected by Article 19(1). It does this by ensuring access to current and accurate information about activities being undertaken to influence political and governmental systems and processes.

189. Similarly, in General Comment No. 25 (CCPR/C/21/Rev. 1/Add. 7) the UN Human Rights Committee stressed the importance of voter education to ensure the effective exercise of Article 25 rights by an informed community. The Scheme will support voter education by informing the public of foreign influence over political campaigners in relation to federal elections, referendums and other votes. This will enable the community to make informed judgments and decisions about all of the influences that are brought to bear over a particular vote.

190. As noted above, political campaigners occupy a significant position of influence within the Australian political system, and as such it is appropriate that the Scheme provide transparency of the nature and extent of foreign influence over such persons and entities. If not disclosed, this type of foreign influence exerted through intermediaries has the potential to impact political campaigners' positions on public policy which could, ultimately, undermine Australia's political sovereignty.

191. The term political campaigner is appropriately defined in order to meet the Scheme's objective while limiting its impact on human rights and the cost of compliance. A political campaigner will be defined by reference to amendments to the Commonwealth Electoral Act 1918 currently before Parliament as part of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 (the Electoral Funding Bill). A political campaigner will 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. 'Political expenditure' is defined broadly as expenditure for political purposes, including, as noted by the committee, 'the public expression by any means of views on an issue that is, or is likely to be, before electors in an election.' This ensures that the range of activities undertaken by political campaigners, which may influence Australia's political and governmental processes, is captured. The financial threshold of expenditure by political campaigners imports proportionality into the Scheme and ensures it is targeted to activities most in need of transparency.

192. The exemptions provided for in the FITS Act further limit the Scheme's application in relation to political campaigners and therefore safeguard against unnecessary or disproportionate limitations on the freedom of expression and the right to take part in public affairs. Registration exemptions are provided for:

•

activities undertaken to provide humanitarian aid or assistance (section 24)

•

legal advice or representation (section 25)

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diplomatic, consular, United Nations and other relevant staff (section 26)

•

certain religious activities (section 27)

•

news media (section 28)

•

commercial negotiations regarding bona fide business or commercial interests (subsection 29(1)), and

•

persons employed by, or operating under the name of, the foreign principal (subsection 29(2)).

193. It is also important to note that a requirement to register with the Scheme does not in any way preclude a person or entity from lobbying a political campaigner under an arrangement with or on behalf of a foreign principal. This further ensures that the limitation imposed by the regulation of certain activities on the freedom of expression and the right to take part in public affairs is reasonable and proportionate.

Right to Privacy

194. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence. The UN Human Rights Committee have interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. Schedule 5 limits the right to privacy in that it will require the disclosure of information pertaining to the activities and relationships of those lobbying registered political campaigners on behalf of a foreign principal.

195. This limitation is reasonable and proportionate because the Scheme will require minimal information to be provided by registrants upfront. The information to be collected will be limited to that which is essential for the effective administration of the Scheme to provide decision-makers and the public with visibility of the foreign influences in Australia's political and governmental processes, and to allow for appropriate investigations into potential non-compliance with the Scheme. Moreover, only a subset of the information provided will be made publicly available, further safeguarding registrants' right to privacy. Information made publicly available will include for example, the name of the person and the foreign principal and a description of the kind of registrable activities the person undertakes on behalf of the foreign principal.

196. To the extent that expanding the type of registrable activities under the Scheme to include lobbying of political campaigners limits the right to privacy, freedom of expression and the right to take part in the conduct of public affairs, it does so in a way that is reasonable, necessary and proportionate to achieve the legitimate objective of the Scheme, that is to make transparent to government and the public the sources of foreign influence in Australia's political and governmental processes.

Review by the Independent National Security Legislation Monitor

197. The Bill will amend the Independent National Security Legislation Monitor Act 2010 to require a review of the new secrecy, espionage, foreign interference and related provisions in the Bill. The Monitor must begin the review as soon as practicable after three years of the Bill receiving Royal Assent.

198. This review mechanism will facilitate examination of the extent to which the reforms have achieved the intended goal of strengthening espionage, foreign interference, secrecy and related laws while maintaining appropriate human rights safeguards. It is appropriate for the Monitor to undertake this review and its role is to independently review the operation, effectiveness and implications of national security laws; and to consider whether the laws contain appropriate protections for individual rights and that the limitations on the abovementioned rights and freedoms remain reasonable, necessary and proportionate to the objective of the Bill to ensure the protection of Australia's national security.

Conclusion

199. The Bill is compatible with human rights because it promotes the protection of a number of human rights including the right to liberty, the right to freedom expression, assembly and association and the right to take part in public affairs and elections. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to the legitimate objective of the Bill, that is primarily to ensure the protection of Australia's national security.