The Turnbull Government is about to decide what is in the "public interest" and what is "fair and accurate reporting"...

And how the Turnbull Government couches these definitions in relation to national security and classified information may decide if a whistleblower or journalist ends up spending two years in an Australian gaol.

Excerpts from National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 currently before the Parliament of Australia:

122.4 Unauthorised disclosure of information by Commonwealth officers and former Commonwealth officers

 (1) A person commits an offence if:

(a) the person communicates information; and

(b) the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth  entity; and

(c) the person is under a duty not to disclose the information; and

(d) the duty arises under a law of the Commonwealth.

           Penalty: Imprisonment for 2 years.

(2) Absolute liability applies in relation to paragraph (1)(d)

Note: A defendant bears an evidential burden in relation to the matters in 10 this subsection (see subsection 13.3(3)).

122.5 Defences

Powers, functions and duties in a person’s capacity as a 4 Commonwealth officer etc. or under arrangement……

Information communicated in accordance with the Public Interest Disclosure Act 2013

(4) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information in accordance with the Public Interest Disclosure Act 2013.

Note: A defendant bears an evidential burden in relation to the matters in 24 this subsection (see subsection 13.3(3)).

Information communicated to a court or tribunal

(5) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information to a court or tribunal (whether or not as a result of a requirement).

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3))......

Information dealt with or held for the purposes of fair and accurate reporting…

(6) It is a defence to a prosecution for an offence by a person against this Division relating to the dealing with or holding of information that the person dealt with or held the information:

(a) in the public interest (see subsection (7)); and

(b) in the person’s capacity as a journalist engaged in fair and accurate reporting. Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3))......

Excerpts from Advisory Report On The National Security Legislation Amendment (Espionage And Foreign Interference) Bill 2017, 7 June 2018:

SECRECY OFFENCES - DEFENCES AND OTHER MATTERS

Recommendation 26

5.87 The Committee recommends that the following proposed defences be broadened to cover all dealings with information, rather than being limited to communication of information:

§ proposed section 122.5(3) – relating to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman and the Law Enforcement Integrity Commissioner,

§ proposed section 122.5(4) – relating to the Public Interest Disclosure Act 2013,

§ proposed section 122.5(5) – relating information provided to a court or tribunal, and

§ proposed section 122.5(8) – relating to information that has been previously communicated. 

Recommendation 27

5.90 The Committee recommends that the Attorney-General’s proposed amendments to the defence for journalists at proposed section 122.5(6), and the associated amendments at 122.5(7), be implemented. This includes expanding the defence to all persons engaged in reporting news, presenting current affairs or expressing editorial content in news media where the person reasonably believed that dealing with or holding the information was in the public interest.

The Committee also recommends that the Government consider further refinements to the proposed defence in order to

§ make explicit that editorial support staff are covered by the defence, including legal advisors and administrative staff,

§ ensure editorial staff and lawyers, who are engaging with the substance of the information, be required to hold a reasonable belief that their conduct is in the public interest, and

§ allow administrative support staff working at the direction of a journalist, editor or lawyer who holds the reasonable belief, to benefit from the defence.

The Australian Attorney-General and Liberal MP for Pearce Christian Porter sent out this media release on 7 June 2018:

Attorney-General, Christian Porter, welcomed the release today of the Parliamentary Joint Committee on Intelligence and Security on the Government’s National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.

"This is a major step forward in securing passage of this critical legislation and protecting Australia’s democratic systems from Foreign Interference, and it is my expectation that the Bill will be considered and passed during the next sitting period later this month," the Attorney-General said.

"The Committee has made 60 recommendations, the large majority of which are minor changes to definitions and drafting clarifications. The most substantive changes are those that adopt the Government’s proposed amendments which I submitted to the Committee as part of its deliberations earlier this year.

"Those Government amendments expanded the public interest defence for journalists and created separate graduated offences for commonwealth officers and non-commonwealth officers. The amendments were designed to strike the best possible balance between keeping Australia safe and not impeding the ordinary and important work of journalists and media organisations.

"In addition to minor drafting amendments and the adoption of the substantive Government amendments that I provided earlier this year, the additional substantive changes now recommended include that:

*There be a reduction to the maximum penalties for the proposed new secrecy offences, and to require the consent of the Attorney-General to any prosecution under these proposed new secrecy offences;

* That all secrecy offences in other Commonwealth legislation are reviewed; and

* Clarification that the journalism defence extends to all editorial, legal and administrative staff within the news organisation.

"Even in the time that it has taken to consider the Espionage and Foreign Interference Bill, the threat environment has changed and become more acute. As senior ASIO officials have said repeatedly in recent months, we now live in a time of unprecedented foreign intelligence activity against Australia with more foreign agents, from more foreign powers, using more tradecraft to engage in espionage and foreign interference than at any time since the Cold War."

"Given the rapid change in the threat environment it is the Government’s intention to consider the report and recommendations for amendments very quickly and my expectation is that the Bill, in essentially the form now recommend by the Committee, should be passed through Parliament during the next sitting period later this month; noting of course the primary and most significant recommendation of the report is that the Bill be passed."

The Attorney-General said this Bill and the Foreign Influence Transparency Scheme Bill were both critical to modernising our national security laws as part of the Turnbull Government’s commitment to keep Australians safe and the Attorney-General wanted to make particular note of the hard work of the Committee in the last two weeks to produce this most recent Report.

"Safeguarding Australia’s national security will always remain the Turnbull Government’s number one priority and the Committee’s role in considering and making amendments to national security legislation is at the centre of a process that has seen ten tranches of national security laws passed since 2014, with the Government accepting 128 recommendations of the Committee, resulting in 293 Government amendments," the Attorney-General said.

"This process was conducted squarely in the national interest and represented a real fulfilment of Australians expectations for cooperative bipartisan conduct when serious national security issues are at stake. On this point I would like to personally thank the Chair Andrew Hastie MP, the Shadow Attorney–General, the Hon Mark Dreyfus QC MP, and Deputy Chair, the Hon Anthony Byrne MP, for their skilled and good faith dealings with my office to deliver recommendations which ultimately improve the Bill."

It goes without saying that incorporated community organisations, grassroots activists and social media bloggers/commentators are not afforded the protection of any detailed set of defences set out in the bill or in report recommendations.

On 8 June 2018 this was how the Australian Conservation Foundation (ACF) and World Wildlife Fund - Australia saw their position under the provisions of this bill and review recommendations:

WWF-Australia and the Australian Conservation Foundation say charities who hold the Australian Government to account on its environmental record, could be charged under proposed foreign interference and espionage laws.

Both groups say changes recommended by a bipartisan committee, to address “overreach” concerns with the Bill, don’t go far enough.

“We could still be charged with espionage just for doing our job, which is a ridiculous situation,” said WWF-Australia CEO Dermot O’Gorman.

Charities such as WWF-Australia and ACF are often sought out by international bodies to provide independent analysis and a scientific assessment on the Australian Government’s environmental performance.

If either organisation briefed the International Union for the Conservation of Nature (IUCN) on failings to address threats to endangered species they could be charged with espionage. 

Or if they gave evidence to the Organisation for Economic Co-operation and Development (OECD) on shortfalls in Australia’s record on the environment they could face espionage charges. 

“Providing independent analysis is core business for environmental organisations trying to save Australia’s forests and threatened species,” Mr O’Gorman said.

“Would the 2050 Plan to save the Great Barrier Reef have happened without attention from UNESCO?”

ACF Acting Chief Executive Officer, Dr Paul Sinclair said: “Protests and advocacy may make some politicians uncomfortable, but they are essential ingredients of a vibrant democracy and healthy environment.

“Our security is of course important. But restricting civil society advocacy in its name is dangerous and would limit the community’s ability to hold the powerful to account for any damage they cause to our clean air, clean water and safe climate.

“All parties must work to rewrite this bill to strengthen protections for the public oversight, free expression and peaceful protest that makes our democracy strong.”

These conservation organisations have some reason to be concerned as committal for trial for an espionage or foreign interference offence is essentially a political decision taken by the Attorney-General, given s93.1 of National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 requires consent from the Attorney-General to proceed.

Given the antipathy displayed by the Abbott and Turnbull Coalition Governments towards any form of organised political, social or environmental activism, it is not hard to imagine a scenario in which a federal government would act maliciously against those opposing its policy positions or actions and use the provisions in this bill to effect such an act.