Espionage and Foreign Influence

New Australian national security laws criminalise journalism by punishing reporters with lengthy jail terms for doing their job: publishing legitimate news stories in the public interest.

On June 28 2018, just hours before the Parliament rose for its winter break, the Senate rushed through two crucial pieces of legislation. The Guardian wrote: “The Senate has passed laws that amount to the most significant overhaul of Australia’s security and foreign interference laws in decades — creating new espionage offences, introducing tougher penalties on spies and establishing a register of foreign political agents.”[i]

The Bills, the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017 (FITS) were introduced to the Parliament on December 7 2017 and then went to committee for inquiry during which time many submissions were made. MEAA reported its concerns at length in the 2018 report into the state of press freedom, Criminalising Journalism.[ii]

MEAA, together with Australia’s Right To Know media industry lobbying group, made numerous submissions to both inquiries. MEAA was particularly concerned with the implications of the Espionage Bill.[iii]

Once the inquiries concluded and subsequently reported, the Bills passed following the acceptance of many amendments.

MEAA welcomed many of the recommendations in the Parliamentary Joint Committee on Intelligence and Security report into the Espionage Bill.[iv] It was clear that the concerns raised by MEAA, media organisations and many civil society bodies were justified, given the Committee made 60 recommendations for changes to the Bill in its 400-page report.

MEAA chief executive Paul Murphy commented: “We said from the outset that this was a poorly drafted Bill and thanks to the detailed submissions of many organisations, those failings have been pointed out to the Committee and the Parliament. In response, the recommendations clearly seek to implement sensible and proper improvements to the Bill and MEAA welcomes those changes.”

However, MEAA remained concerned that there is still no media exemption recommended by the inquiry, only changes to a defence and one that overly relies on the Attorney General of the day agreeing to prosecute or not.

MEAA said: “The failure of the Committee’s report to allow for a media exemption means that this Bill would enable the Australian Parliament to further legislate to criminalise journalism. The report still recommends a journalist receive a lengthy jail term for having reported and published or broadcast a legitimate news story. That would make Australia one of the worst countries in the free world for criminalising journalism, and would mean Australia joins the rogues’ gallery of countries that use national security laws to jail journalists such as Turkey, Egypt and China.”

Recommendation 2 of the report still states that the Bill would create an offence of causing “national embarrassment”. Murphy noted “As the late Washington Post editor Ben Bradlee said: “national security powers should not be used to cover up national embarrassment. Journalists must be allowed to scrutinise government in order to inform the community and maintain a healthy, functioning democracy. Laws that curtail the media’s ability to do that, and that impose jail terms for legitimate journalism, are attacks on press freedom and democracy. The Australian media has regularly shown that when it comes to stories about national security, it has been extremely responsible.”

Murphy added that while defences were offered for media organisations’ editorial and administrative support staff as well as legal advisers, there was little protection afforded to whistleblowers and others who work with journalists.

MEAA also noted that the report, in recommendation 41, still sought to impose limitations on the right to freedom of expression. “This is a dangerous step that has far-reaching and very dangerous implications for free speech and press freedom in Australia,” Murphy said.

“This Bill, while it has been improved, is still flawed and irresponsible. Bad laws should never be rushed through Parliament. This report makes 60 recommendations but this is still not a good Bill. MEAA urges all parties to redraft the Bill and then allow for extensive consultation and feedback from civil society to ensure that the extensive powers being granted to government are responsible, uphold and protect press freedom, and respect the public’s right to know.”

[i] “Sweeping foreign interference and spying laws pass Senate”, Gareth Hutchens, June 29 2018 https://www.theguardian.com/australia-news/2018/jun/29/sweeping-foreign-interference-and-spying-laws-pass-senate

[ii] Criminalising Journalism: the MEAA Report into the State of Press Freedom in Australia in 2018, MEAA, May 3 2018 https://www.meaa.org/download/criminalising-journalism-the-meaa-report-into-the-state-of-press-freedom-in-australia-in-2018/

[iii] Joint Media Organisations submission on National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, submission, ARTK, MEAA January 23 2018 https://www.meaa.org/download/joint-media-organisations-submission-on-national-security-legislation-amendment-espionage-and-foreign-interference-bill-2017 / and Joint media organisations 2nd supplementary submission on the Espionage Bill — 180313, ARTK, MEAA, March 14 2018 https://www.meaa.org/download/joint-media-organisations-2nd-supplementary-submission-on-the-espionage-bill-1803013/

[iv] “Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017”, Parliament of Australia https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/EspionageFInterferencev