Dangerous changes to espionage law


Espionage is dramatic. A popular US series, for example, tells of soldier returning from being kidnapped by the al-Qaeda for years. He is clearly traumatised, but is there more? Is he now acting as an agent for his captors, to bring down the government he once fought for? Or are we, the viewers, just being paranoid? What is he thinking? What is he planning? Whose side is he on?
The law, while less exciting, navigates similar plot lines. Activities are identified as espionage based on what the person concerned aims to do. If they are sharing information about the Commonwealth’s security or defence (or the security or defence of another country obtained from the Commonwealth), with the intention of prejudicing that security or defence, they can be liable for heavy penalties. As technology advances, it is important that the law keeps up. Equally important, however, is the maintenance of our fundamental rights. If the Turnbull government gets its way, proposed legislation, introduced on the day the same sex marriage law passed the House of Representatives, means that innocent people could be treated and punished as a foreign agent for simply doing their job or following their principles. Such reforms would be dangerous: laws that unnecessarily undermine fundamental rights do not make us safer.
Last year, the Prime Minister established a review into espionage and foreign interference, to assess whether existing laws met the challenges of the modern age. The outcome of the report is confidential, but we have been ‘assured’ that there is an urgent need for reform. 
This Bill, which we are told is based on the recommendations of this secret report, would radically widened the meaning of espionage.
The Bill defines ‘national security’ more broadly than the current law: it proposes to include the defence of the country and the protection of the country or its people, as well as border protection and political, military or economic relations with other countries. The Explanatory Memorandum, a guide to the Bill, clarifies that only border protection matters that affect national security measures are captured by the definition. Tobacco smuggling, for example, would not give rise to national security concerns. It does not, however, mention asylum seekers. Given previous conflation of national security and asylum seekers, it is perhaps safe to assume that this element of border protection would be captured by the definition. 
Similarly, ‘espionage’ is defined more broadly than under existing legislation. Specifically, any person who makes information or an article available to a foreign government or similar, where that information concerns Australia’s national security (regardless of whether it has a security classification), would be committing an offence punishable by up to 20 years imprisonment. There is no requirement for the intention either to disadvantage Australia or advantage other countries before this penalty can be imposed. A reporter publishing an article could fall foul of this proposed law. Organisations like Wikileaks or the International Consortium of Investigative Journalists which published the Panama Papers, would be caught by this dangerous proposed law.
In the criminal law generally you have to intend to commit an act before liability will arise, but the Bill no longer requires someone to have the intent to cause harm before they can be found guilty of espionage. There are many reasons that someone might think that it is important to publish information that fits within the broad definition of national security found in the Bill. Many have done so already. Whistle-blowers revealing dangerous and harmful conditions in offshore detention could be caught by this new law. Reporters revealing misconduct or corruption could be captured. Even reporting on domestic or international politics could contravene the provisions, depending on how the courts interpreted them. All of this reporting could be intended to strengthen the security of our community and our country, by highlighting weaknesses that need to be remedied. However, with the removal of negative intention as a requirement, such whistle-blowers could be prosecuted and imprisoned. There is no public interest defence.
This broadly drafted Bill dramatically undermines freedom of expression. Of course, when it comes to freedom of expression, balance is always required if there is a possibility that national security will be compromised. Any limitations that are necessary to maintain public safety, and that are proportionate to the threat, will usually be appropriate. However, this balance is not required under the Bill. 
Nothing in this draft suggests that any potential compromise of the safety of Australia (or indeed to any other country) or the people who live here must be established before this penalty becomes available. Reporting that makes us safer could potentially be captured by this definition. 
What is even more concerning is that this adds yet another layer on existing legislation that can protect the government from embarrassment, rather than from genuine threats. The Australian Border Force Act 2015 (Cth), for example, continues to criminalise disclosure by staff or contractors of the Australian Border Force, despite recent reforms to reduce the scope of secrecy provisions. These provisions serve only to protect the government and its agencies from embarrassment; they do not protect the people or the integrity of our nation. They are not necessary or proportionate to any threat.
In removing the need for a negative intention, and dramatically broadening the application of the law, this Bill has the potential to cause significant harm to our democracy. It does not restrict its severe penalties to circumstances in which it is necessary or proportionate to the threat faced.
The Bill is currently being reviewed by the Parliamentary Joint Committee on Intelligence and Security. Submissions are due on 22 January 2018. 

Greg Barns is a barrister, spokesperson for the Prison Action and Reform Group Inc and the Australian Lawyers Alliance.


Anna Talbot is the Legal and Policy Adviser at the Australian Lawyers Alliance.


The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: National security Espionage National Security Legislation Amendment (Espionage And Foreign Interference) Bill 2017 Australian Border Force Act 2015 (Cth) Australian Border Force