Supreme Court of QLD found that Wagner brothers have succeeded in their defamation claim against Alan Jones, 2GB, and 4BC . Awarded a total of $3.754m. Read summary and judgment here, https://t.co/zze75fWRnn— Supreme Court of QLD (@SupremeCourtQLD) September 11, 2018
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Saturday 15 September 2018
Tweets of the Week
* Between 28 October 2014 and 20 August 2015, 2GB Radio and
Alan Jones published 30 broadcasts. Twenty-seven of these broadcasts conveyed
76 defamatory imputations of and concerning the Wagner brothers according to
the Court*
Labels:
defamation,
law,
libspill,
Malcolm Bligh Turnbull,
radio,
Supreme Court
Thursday 23 August 2018
“Sneaky laws which declare you as guilty in the eyes of the law the minute the police say you are guilty” - Turnbull Government legislative overreach continues in 2018?
Sydney
Criminal Lawyers,
16 August 2018:
A Senate committee has
just given the Turnbull government the green light to nationalise a scheme that
allows government to seize citizens’ assets unless their legitimate origins can
be explained, even if the owner of the wealth hasn’t been charged with let
alone convicted of an offence.
On 6 August, the Senate
Legal and Constitutional Affairs Legislation Committee recommended that the federal government pass the Unexplained Wealth Legislation Amendment Bill 2018 without
any changes.
Unexplained wealth laws
currently exist in every Australian jurisdiction, but the new scheme provides a
broader model allowing for federal and state authorities to work in
collaboration across jurisdictional borders to target serious and organised
crime.
“The scale and
complexity of this criminal threat has necessitated an enhanced focus on
cooperative, cross-jurisdictional responses by Australian governments,” home
affairs minister Peter Dutton said in the second reading speech of the bill.
However, critics of the
scheme warn that existing unexplained wealth laws undermine the rule of law and
broadening their scope will lead to a further erosion of civil liberties. And
while these laws are meant to target untouchable crime bosses, they’re actually
being used against petty criminals.
Presumption of guilt
“These beefed-up laws
bring down all the secret surveillance and the swapping of scuttlebutt
masquerading as intelligence on everyone in Australia,” Civil Liberties Australia CEO
Bill Rowlings told Sydney Criminal Lawyers.
“The unexplained wealth
laws completely overturn the presumption of innocence, which is part of our
rule of law in Australia,” he continued. “They are sneaky laws which declare
you as guilty in the eyes of the law the minute the police say you are guilty.”
Unexplained wealth laws
are a recent development in Australia. But, unlike other
proceeds of crime laws that allow for the confiscation of assets derived from
prosecuted criminal acts, unexplained wealth places the onus upon the
individual to prove their wealth was legally acquired.
“People don’t
understand, under these laws the government can confiscate your assets even if
you haven’t been found guilty of anything,” Mr Rowlings stressed.
Broadening the reach
The current Commonwealth
unexplained wealth laws were introduced in 2010 via amendments made to
the Proceeds of Crime Act 2002 (Cth) (the Act).
These laws apply where
there are “reasonable grounds to suspect” an individual’s assets have been
derived from a committed federal
offence, “a foreign indictable offence or a state offence that has a
federal aspect.”
There are three sorts of
orders that can be sought in relation to unexplained wealth. Section 20A of the Act provides that a court can issue
an unexplained wealth restraining order, which is an interim order that
restricts an individual’s ability to dispose of property.
Section 179B of the Act allows for the issuance of a
preliminary order, which requires a person to appear in court to prove their
wealth is legitimate. And under section 179E, an order can be issued requiring that the
payment of an amount of wealth deemed unlawful be made to the government.
The new legislation
amends sections 20A and 179E, so that these orders can be issued in respect to
relevant offences of participating states, as well as in relation to territory
offences. Relevant state offences will be outlined in state legislation that
enables participation in the national scheme.
Sharing it around
The legislation broadens
the access authorities have to an individual’s banking information in relation
to an unexplained wealth investigation.
Section 213 of the Act allows certain authorised
Commonwealth officers to issue access notices to financial institutions. This
provision will now be extended to states and territory law enforcement
agencies.
Proposed section 297C of
the Act outlines how federal, state and territory governments will divvy up the
seized wealth. A subcommittee will be established to distribute the money. And
while any state that opts out of the scheme will be eligible for a share, it
will be a less favourable amount.
The legislation also
makes amendments to the sharing of information provisions contained in
the Telecommunications (Interception and Access) Act 1979.…..
Backdoor revenue raising
The NSW government has
already introduced legislation into parliament, which enables that state
to participate in the national scheme. The legislation sets out that the
relevant offences the laws apply to are set out in section 6(2) of the Criminal Assets Recovery Act 1990.
NSW police minister Troy
Grant told parliament that the legislation allows the state to refer matters to
the Commonwealth, which then authorises the Australian federal police to use
certain NSW offences as a basis for the confiscation of unexplained wealth.
But, Mr Rowlings states
that the nationalising of the scheme will actually streamline a process that
sees the unwarranted confiscation of wealth to prop up government coffers.
“The cash seized is
paying for extra government lawyers to help seize more cash,” Mr Rowlings made
clear, “so it’s a devious upward spiral where more and more unconvicted people
will have their assets taken, and then have to prove their innocence or the
government gets their assets.”
Read the full
article here.
Sunday 15 July 2018
"Bad actor" Facebook Inc given £500,000 maximum fine - any future breach may cost up to £1.4bn
The
Guardian, 11
July 20018:
Facebook is to be fined
£500,000, the maximum amount possible, for its part in the
Cambridge Analytica scandal, the information commissioner has announced.
The fine is for two
breaches of the Data Protection Act. The Information Commissioner’s Office
(ICO) concluded that Facebook failed
to safeguard its users’ information and that it failed to be transparent about
how that data was harvested by others.
“Facebook has failed to provide the kind of
protections they are required to under the Data Protection Act,” said Elizabeth
Denham, the information commissioner. “Fines and prosecutions punish the bad
actors, but my real goal is to effect change and restore trust and confidence
in our democratic system.”
In the first quarter of
2018, Facebook took £500,000 in revenue every five and a half minutes. Because
of the timing of the breaches, the ICO said it was unable to levy the penalties
introduced by the European General Data Protection (GDPR), which caps fines at
the higher level of €20m (£17m) or 4% of global turnover – in Facebook’s case,
$1.9bn (£1.4bn). The £500,000 cap was set by the Data Protection Act 1998.
As one of the IT whistleblowers described the situation...
Just to sum up. 1) Facebook broke the law. 2) Cambridge Analytica broke the law. 3) Vote Leave broke the law. 4) LeaveEU broke the law. 5) Brexit and Trump were both won through breaking the law. 6) Facebook let it all happen and covered it up. https://t.co/CAOrP5rKry— Christopher Wylie 🏳️🌈 (@chrisinsilico) July 11, 2018
Labels:
data breach,
Facebook,
law,
privacy,
safety
Friday 13 July 2018
Five to face Brisbane court over serious breaches of environmental law
It is thought
that up to 320 square kilometres of agricultural land around Chinchilla may be at risk from contamination by chemicals and gases, due to alleged mismanagement
of underground burning by Linc Energy
Limited.
In November 2016 former Linc Energy chief executive Peter Bond along with four former
staff members – Donald Schofield (managing
director), Stephen Dumble (chief
operations officer), Jacobus Terblanche
(chief operations manager) and Darryl
Rattai (former general manager) – were summonsed
for breaching environmental law.
However their matters were adjoined until after The Queen v. Linc Energy Ltd was
concluded and are all five are now due to face a committal hearing in the Brisbane
Magistrates Court this month.
BRIEF BACKGROUND
A gas company has been
fined a record $4.5 million for causing serious environmental harm at its
underground coal gasification plant on Queensland's western Darling Downs.
Linc Energy was found guilty by a District Court jury in Brisbane last
month after a 10-week trial.
The company was charged
with five counts of wilfully and unlawfully causing serious environmental harm
between 2007 and 2013 at Hopeland near Chinchilla.
Linc Energy mismanaged
the underground burning of coal seams, which caused rock to fracture and
allowed the escape of toxic gases which contaminated the air, soil and water on
site.
The court heard the
highest fine imposed upon a company so far in Queensland for similar offending
was $500,000.
Linc Energy did not
defend itself during the trial because it is now in liquidation.
Five executive directors
have been charged with failing to ensure compliance of the company and are due
to face a committal hearing in the Brisbane Magistrates Court in July.
Prosecutor Ralph Devlin
told the court the company knew it was causing damage but pressed ahead with
operations, and described its offending as "serious".
"The defendant
acted in devious and cavalier way … its motivation was commercial gain,"
he said.
"It pursued
commercial interests over environmental safeguards."
The court heard there
would be monitoring and remediation of the site for decades to come, and it
will take potentially between 10 to 20 years for groundwater to recover.
The
Sydney Morning Herald,
10 April 2018:
“It was an undefended
case, the liquidators chose not to defend it, so, of course, there is going to
be a guilty verdict,’’ he [Peter
Bond] told The Australian of Monday's court ruling.
“It means nothing; there
was no one in court to call bullshit and there was a lot of bullshit to that
case."
Excerpt from THE
QUEEN v. LINC ENERGY LTD (IN LIQUIDATION), 11 May 2018, Sentence:
HIS HONOUR: On the 9th
of April 2018, Linc Energy Limited in liquidation was found guilty by a jury of
five counts of wilfully and unlawfully causing serious environmental harm. That
followed a 10-week trial, and the offence is contained in the Environmental
Protection Act. There was no appearance by the defendant in in liquidation pursuant to an order of the
Supreme Court under the Corporations Law. The liquidators did not have to
appear. That caused particular difficulties during the trial and also has an
impact on sentence proceedings as I have not been assisted by any submissions
on behalf of the defendant in relation to penalty.
As the defendant is a
corporation, the only penalties that are open are financial: either a fine or
compensation. The provision in relation to the imposition of fines is covered
by sections 45 to 48 of the Penalties and Sentences Act. The first aspect of
that is that, pursuant to section 48(1)(a) and (b) and subsection (2) of that
Penalties and Sentences Act, the Court must take into account:
…so far as is practicable,
the financial circumstances of the offender and the nature of the burden the
imposition of the fine would have on the offender.
Section 48, subsection
(2) provides the Court may fine if it is unable to find out the matters referred to in subsection (1). There
is no information before me as to the circumstances of the liquidation of the
corporation. I am unaware of any of its assets or liabilities, or whether it
will have the capacity to pay fines. As to the utility of imposing a financial
penalty on a corporation in liquidation, there are no restrictions in law as to
that. Indeed, the cases referred to me demonstrate it is appropriate, 25
whether as a need for denunciation or general deterrence of specific criminal
conduct…..
In relation to counts 1
to 3, a combination of section 437 of the Environmental Protection Act 1994 and
45 section 181B of the Penalties and Sentences Act 1992 provides a maximum
penalty of five times the 4165 penalty units, that is, a total of 1,561,875
thousand dollars for each of the offences covered in counts 1 to 3……
In my view, the
defendant put its commercial interests well above its duty to conduct its
processes in a way that safeguarded the environment. This is shown by its continued
efforts to be seen as a successful Gas to Liquid producer on a commercial
scale, where it operated gasifiers clearly above hydrostatic pressure to
produce suitable gas for the GTL process, well knowing that contaminants were
escaping widely and that damage to the land structure was occurring. As I have
noted during the course of argument, there are varying degrees of wilfulness,
which is an element of each offence.
The Prosecution have
submitted that the appropriate way to approach the quantum is 45 by assessing
the maximum and then reaching an appropriate proportion to address each
offence. In terms of the section I earlier quoted in relation to the quantum of
fines, it seems to me the damage
occasioned by each of these offences is significant and needs to be taken into
account in the calculation of a quantum. In relation to each of counts 1 to 3,
I accept the Prosecution’s submission that it is appropriate to impose 50 per
cent of the maximum in relation to those.
In relation to each of
counts 4 and 5, as I have noted, there are aggravating features. The defendant
was well aware of the problems with the site and proceeded in disregard of its
own experts. They had clearly advised the site was unsuitable because of the
earlier gasifier operations; however, the defendant persisted simply 10 on a
commercial basis.
In relation to the final
count, the defendant purposely hid the issue of groundwater contamination from
the regulator. I accept the Prosecution’s submission that fines in relation to
each of those later offences should be at 75 per cent of the maximum.
I intend to reduce each
of those fines to recognise the totality issues that I have spoken about,
including the interplay between each offence and the damage that has actually
been occasioned. On each of counts 1, 2 and 3, I fine the defendant the sum of
$700,000. On each of counts 4 and 5, I fine the defendant the sum of
$1,200,000. Convictions are recorded. The Prosecution does not seek its costs
in relation to this Prosecution.
Labels:
Coal Seam Gas Mining,
court,
environmental vandalism,
law,
pollution
Friday 29 June 2018
Adani Group At Work: using backroom political deals & big money to make fools of us all
The Wangan and Jagalingou Peoples registered a Native Title application on 5 July 2004 and their interests are often presented to the media via the Wangan and Jagalingou Family Council.
According to ORIC
Kyburra Munda Yalga Aboriginal
Corporation RNTBC was originally registered on 5 July 2011 as Kyburra
Munda Yalga Aboriginal Corporation and its name changed on 6 March 2013 and,
according to ASIC Juru Enterprises
Limited was registered on 23 April 2012.
On 11 July
2014 and 26 June 2015 the Juru People
were granted Native Title by the Federal Court over land in north Queensland.
Then foreign multinational resources and energy corporation, the Adani Group, went to work......
The
Sydney Morning Herald,
4 July 2015:
The Wangan and
Jagalingou people gathered two weeks ago at a convention centre in Carseldine
north of Brisbane.
They were there to vote
on a proposal to make sure those responsible for their native title claim were
truly representative of the Wangan and Jagalingou people. These are the
traditional owners of the land in the Galilee Basin, precisely where Indian
company Adani aims to build Australia's biggest coal mine, the controversial
$16 billion Carmichael project.
Twice in three years,
the Wangan and Jagalingou (W&J) had rejected Adani's advances to sign a
land deal for the mine, and twice Adani had dragged them off to the Native
Title Tribunal and sought approval for the state to override their opposition
to the mine.
It was just after 9am on
Saturday, June 20, when two charter buses turned up at the Tavernetta Function
Centre in Carseldine. Adani had bussed in 150 people in a sly bid to force
consideration of a new memorandum of understanding they claimed to have with
W&J, despite the previous 'no vote' from W&J. It was an Adani ambush,
and it must have cost a fortune: three days of food, accommodation and
transport for 150 people.
"We saw the buses
turn up and we were wondering what was going on," says traditional owner
and W&J lead spokesman Adrian Burragubba.
"They tried to
organise their own meeting after ours in order to get the people to agree to
their MoU - a kind of tricked ILUA [Indigenous Land Use Agreement] when they
knew they didn't have one. Right now we're in the Federal Court precisely
because we refused an ILUA and they have tried to override us."
But Adani's cunning
stunt backfired. They hadn't counted on their 150 voters changing their minds
after impassioned speeches from the likes of Burragubba. W&J tribal elders
are deeply concerned about the effect of the mine on their cultural heritage
and the risks it poses to water and wildlife.
By the end of the day,
Adani's reps had been asked to leave the meeting. Of the W&J's 12 "new
applicants", or claim representatives, at least seven were against Adani,
despite all the money flying about to skew the vote, and three were in favour.
The views of the other two appear in the balance….
Its latest public
missive on the subject came three days before the W&J meeting: "Adani
deepens partnership with Traditional Owners."
As far as W&J are
concerned nothing could be further from the mark. While Adani has signed up
ILUAs with other Indigenous groups – the Juru, Birriah and Jangga Aboriginal
people – whose land lies either on the rail corridors from the Galilee or on
the coast at Abbot Point where the coal is to be shipped to India, there is
only a draft memorandum of understanding intended for the W&J, and one
which is not representative of the majority of families at that.
It is getting messy.
W&J now has a claim before the Federal Court alleging Adani misled the
W&J people. The Native Title Tribunal and the state of Queensland are also
listed as defendants for failing to properly follow process…..
NITV, 1 April 2016:
In a stunning video,
traditional owners Aunty Carol Prior and Andrew Morrell call on the Queensland
government to protect their cultural heritage from the Adani Carmichael
coalmine in the Galilee Basin.
Juru country sits to the
east of the proposed mine, but the existing Abbot Point coal port resides on
the Juru coast. This means the proposed rail line linking the mine and Abbot
Point will go right through Juru country.
Traditional owners say
the rail line will block access to ancient rock art sites and ochre ground near
Mount Roadback, and an expansion of Abbot Point will be built just five metres
from sacred burial grounds.
They’ve created a petition calling on the Queensland government to
register their cultural sites under the Queensland Cultural Heritage Act as
‘significant Aboriginal areas.’
Green
Left Weekly, 16
February 2018:
The Wangan and
Jagalingou (W&J) traditional owners of the land on which Adani has approval
to build its Carmichael coalmine are concerned that the Queensland government
will act to extinguish their native title rights prior to a Federal Court
hearing scheduled for March 12–15.
This follows the
decision by the Federal Court to not extend an interim injunction, which had
been in place since December 18, restraining the Queensland government from
extinguishing native title under the terms of the purported Indigenous Land Use
Agreement (ILUA).
The W&J traditional
owners have never consented to the mine going ahead. They say the group has
voted four times since 2012 to reject an ILUA with Adani, most recently on 2
December.
On December 8 the Native
Title Tribunal registered Adani’s ILUA documents. The validity of the purported
ILUA is being challenged by W&J Traditional Owners in a Federal Court
hearing scheduled for March. It will consider evidence that the meeting that is
claimed to have authorised the ILUA was stacked with people who had no
authority to authorise a deal and sign away W&J country.
Adrian Burragubba,
Murrawah Johnson and Linda Bobongie for the Wangan and Jagalingou Traditional Owners Family Council said:
“A substantial injustice may be done if we are denied an appeal and the interim
injunction is lifted before the trial.
“Nothing can
hide the facts that Adani has worked to divide our community, overturn
our decisions, buy off individuals, split our claim group and engineer a sham
meeting to ‘authorise’ a sham ILUA. And the Queensland government has aided and
abetted them. This deal is illegitimate and should never have gone through.
“The Queensland Labor
government has the power to do something about this, and it’s time they did!
“If we cannot restrain
Adani with an injunction, then the Queensland Government must hear loud and
clear that our land rights and culture cannot be surrendered for Adani’s
profit.
“For us, this campaign
has never just been about Adani. It has always been about protecting and
conserving our land and culture so we can determine our own path forward for
our people. One based on strong respect for our law and culture, the health of
our Country and a resilient community — and clean enterprises and jobs in the
new growth industries like solar energy generation.”
In a 24 May 2018 the Federal Court of Australia ruled that the Juru People themselves had not agreed that Kyburra Munda Yalga Aboriginal Corporation RNTBC should replace Juru Enterprises Limited as the nominated body negotiating an agreement with Adani Australia Pty Ltd. At time of judgment Kyburra Munda Yalga Aboriginal Corporation RNTBC was under administration.
The
Guardian, 22
June 2018:
A north Queensland Indigenous
organisation kept secret more than $2m in payments by the Adani mining company,
federal court documents show.
Guardian Australia has
obtained court documents that show the Kyburra Munda Yalga Aboriginal
Corporation did not account for payments by Adani, then paid its own directors
up to $1,000 a day cash-in-hand to conduct now-invalidated cultural heritage
assessments for the Indian mining company.
The federal court last
month delivered a ruling that may void the assessments, which are required to
protect sacred sites from development.
It ruled that another
Indigenous business, Juru Enterprises Limited, was the proper “nominated body”
to represent traditional owners on a land-use agreement with Adani.
The impact of the
decision could be wide-ranging. Traditional owners from near Bowen say they are
“hugely worried” Adani has conducted work at its Abbot Point port based on
improper or conflicted advice from the cultural assessment surveys.
Juru Enterprises could
now demand Adani “redesign or reconfigure” any plans or works near sacred
sites.
The court case has also
exposed how Adani funding was central to alleged rorts conducted by Kyburra
board members. Guardian Australia has seen letters, minutes of meetings, police
reports, auditors reports and sworn affidavits that detail how Kyburra kept
money paid by Adani off the books and then funnelled it to directors through
“fees” and “loans”.
Kyburra declared only
$50,000 total income in consecutive years: 2014/2015 and 2015/16. About $2m was
paid to the organisation by Adani in 2014 and 2015, including an estimated
$800,000 for cultural assessments. But none of it showed up in Kyburra’s annual
financial statements.
Traditional owners said
in a 2016 complaint letter they were suspicious about “secret payments by
Adani”.
The issue before the
federal court was whether Kyburra validly appointed itself as the Juru
nominated body to represent traditional owners on a land-use agreement with
Adani. The Indian company filed a notice submitting to any order the court
might make, except as to costs.
Adani has rejected
suggestions it should have been aware of mismanagement at Kyburra and alleged
rorts by directors, and there is no suggestion the payments themselves were
improper. The company said it was only made aware of “financial matters”
through the court proceedings.
Guardian Australia can
reveal that both the Office of the Registrar of Indigenous Corporations (Oric)
and the Australian federal police were aware of concerns about Kyburra in 2015
and 2016….
In 2016, a lawyer
representing disgruntled members of Kyburra wrote to Oric asking for an
investigation into the organisation. The letter was also submitted to the court
in the proceedings but not tendered at hearing.
It outlined what Oric
later confirmed in an audit – that Kyburra failed to declare significant income
each year from land-use agreements, including the lucrative deal with Adani. By
declaring only $50,000 annual income, the organisation was exempted from having
to provide audited financial statements. Money from Adani, notionally “for the
benefit and use of the Juru people”, was not accounted for.
“In our submission Kyburra actually received
monies from Adani Mining Pty Ltd ... in the amount of $1,225,000. In addition
... Adani transferred $825,000 to Kyburra for cultural heritage survey
activities,” the letter says.
“Further, our clients
advise that the surveys are conducted by directors alone – about six directors
would be present at any survey – with a daily rate of approximately $1,000 paid
individually to them.
“Our clients are suspicious of similar secret
payments by Adani on behalf of Kyburra.”…..
Morrell[ traditional owner] told
Guardian Australia on Monday he could not explain why Kyburra moved in 2015 to
replace Juru Enterprises as the “nominated body” representing the Juru people
on a land use agreement with Adani. He also questioned why Adani had simply
accepted the switch.
“I really could not tell you that one. That
one really has me baffled.”
He said the court ruling
meant any work carried out by Kyburra for Adani had “not been carried out under
the agreements” and was voided.
“We’re happy to do the
work again. Kyburra and Adani have never forwarded or allowed anyone to see any
of the work being carried out, any of the reports on the work being carried
out. That’s left all the Juru people wondering what was going on.
“We’ll work with them, but everything that has been done will need to be revised and reviewed and we haven’t had the opportunity to do that yet……
“We’ll work with them, but everything that has been done will need to be revised and reviewed and we haven’t had the opportunity to do that yet……
“We’re hugely worried.
Throughout the state development area at Abbot Point alone there’s numerous
places where we have burial sites, rock art, rock carvings, sacred sites. If
any of those areas are being impacted they need to have that impact removed
from that area.
Labels:
Adani Group,
Federal Court,
law,
Native Title
Monday 11 June 2018
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."
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.
Labels:
activists,
environment,
journalists,
law,
legislation,
people power,
whistelblower
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