‘Minority Report’ laws could mean jail before you break the law

24th Jan 2018

People could be jailed for crimes before they have had the chance to actually break the law under proposed Commonwealth national security reforms, the Australian Lawyers Alliance (ALA) said today.

The Federal Government is seeking to amend the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 by dramatically broadening espionage and secrecy laws. The Parliamentary Joint Committee on Intelligence and Security is conducting an inquiry into the proposed Bill.

ALA spokesperson and barrister Greg Barns said that the Bill seeks to expand preparatory offences, which would include engaging in conduct with the intention of preparing for or planning an offence under the Bill.

“The Commonwealth’s bid to extend preparatory offences continues a dangerous trend of criminalising activities prior to the commission of an offence,” Mr Barns said.

“The criminalisation of preparatory offences has traditionally been dealt with very carefully, because people can always change their mind before committing the actual offence.”

“If someone is to be convicted of attempting to commit a crime under the current law, the offence must be imminent: the chance that they will change their mind must be almost non-existent.

“Under this Bill, merely having an intention to prepare for or plan an offence can mean you are guilty and can be sentenced to up to 15 years in prison,” Mr Barns said.

“Expanding these types of preparatory offences risks imprisoning people who would not in fact have actually gone through and committed a crime,” Mr Barns said.

“This would undoubtedly add additional pressure to our already-overstretched prison system, and tear families apart needlessly.”

Mr Barns said the reforms also seek to dramatically expand the definition of national security, making it an offence to deal with information that relates to Australia’s political relations with other countries. He said doing so could mean that person is guilty of espionage.

“For example, revelations regarding former Senator Sam Dastyari’s alleged inappropriate dealings with Chinese political donors may have impacted on Australia’s political relations with China. If the person who revealed that information was reckless as to that outcome, they could be convicted of espionage,” Mr Barns said.

“However, this revelation was essential for protecting Australia’s interests, by revealing potentially inappropriate influence being exercised between a foreign government and a member of the Australian Parliament.”

“It should not be possible for these laws to be used to protect politicians from embarrassment, or to prevent revelations of illegal or unethical behaviour, but as they are currently drafted they will be able to do just that,” Mr Barns said.

“These reforms will potentially severely limit the voices that will able to be heard in policy debates,” Mr Barns said.

“We live in an increasingly globalised world. While we do need to protect ourselves from foreign interference, these laws go much further than that by limiting the ability of all kinds of international organisations, which have no political affiliation, from providing their insights.”

Mr Barns said that ultimately these proposed legislative reforms could conflict with the freedom of political communication and stifle national debate, a freedom that the High Court has acknowledged as being a necessary foundation for a thriving democracy.

“However, for such a finding to be made by the courts, someone would need to demonstrate standing, which is most easily done if they are prosecuted under the law in question,” Mr Barns said.

“Given existing espionage and secrecy laws are rarely used, it is possible that, if passed, this Bill may have a chilling effect on debate for many years, even if it is ultimately found to be unconstitutional.”

“There is significant public interest in having an open government,” Mr Barns said. “All information about and by government should be available to the public by default, unless a clear reason for its secrecy exists.”

The ALA’s submission to the Inquiry can be read here.

Tags: police powers