The SPEAKER (12:01): I have received the following message from the Senate:

The Senate acquaints the House of Representatives of the following resolution agreed to by the Senate:

That the Commonwealth Electoral Amendment (Lowering Voting Age and Increasing Voter Participation) Bill 2018 be referred to the Joint Standing Committee on Electoral Matters for inquiry and report by 18 October 2018.

Mr DREYFUS (Isaacs—Deputy Manager of Opposition Business) (12:02): On 7 December last year, just hours after marriage equality was voted into reality by an overwhelming majority of this parliament, the Prime Minister walked into a near-empty House and moved the second reading of three bills. The first was the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, the second the Foreign Influence Transparency Scheme Bill 2017 and the third the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017. Today's debate is on the first two of these bills: the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017. These bills are quite distinct in what they do, and I will come to their intended operation a little later, but I will begin by briefly discussing the threats that these bills aim to address.

We in Labor agree with the government on three fundamental points. First, we agree that it is a paramount obligation of all members of parliament to do what we can to ensure that our nation is secure and our community safe. Our record of constructive engagement on national security bills over recent years makes this clear. Second, we agree that, in a rapidly changing global environment in which technology is also constantly evolving, the threats facing Australia are also changing rapidly. Third, we in Labor are in no doubt that the laws of Australia, including our national security laws, must be under a constant state of review so that they can be adapted as necessary to be fit for purpose. In the national security area this means that laws that were developed to deal with threats to our nation as they existed a century ago need to be updated when necessary to address the threats that we face today and that our agencies warn us we may well face tomorrow.

The key threats that these two bills seek to address are those of covert foreign interference and covert foreign influence in our democratic processes. As a democratic nation with a policy of openness marked by public participation not only in elections but also in governmental decision-making we are more open to the threats of covert foreign influence and covert foreign interference than are some other nations with political systems that are largely closed to public involvement. While we in Labor recognise that threat and the need to respond to it, one of the reasons we've been in such a lengthy debate with the government about these bills is that we do not want to respond to the threat of foreign interference by shutting down the openness of our society and of our democratic processes. That would be less a response to the threat than a capitulation to it.

In the form that these laws were introduced by the Prime Minister in December last year, these laws would have had a totally unacceptable impact on our openness as a democratic society. For example, unamended, these bills would have threatened journalists with severe criminal penalties for reporting on matters in the national security space that might have embarrassed the government. They would have imposed enormous administrative burdens on charities across our country—and even on those who supported them—backed up by criminal sanctions for non-compliance. These laws would have required any Australian academic engaged in joint work with an overseas university or academic to register as a foreign agent, again, on pain of criminal prosecution if they did not. Clearly, these outcomes would have been completely unacceptable to most Australians, and it is concerning that the Prime Minister thought that these measures and others of a similar nature were acceptable.

It's also concerning that the Prime Minister sought to so rush the process for review of this legislation by the Parliamentary Joint Committee on Intelligence and Security. The original reporting date for the committee was in February this year. This would have required all submissions to be written, public hearings to be conducted and the committee's report drafted, debated, agreed to and vetted by our agencies in the weeks during the lead-up to Christmas and over the summer break. The view that these bills could be introduced in the last hours of the last parliamentary session and then dealt with before parliament resumed suggests a lack of respect for the public's right to be consulted on laws that would so impact on our democratic rights and freedoms, including the vital freedom of the press to hold governments to account.

Fortunately, the government relented and allowed a more reasonable but still not fully adequate timetable for these bills to be considered by the intelligence committee, and I thank the government for realising its mistake. It is now over six months since the committee received its references on these bills, and many key stakeholders still believe that there has been inadequate time for consultation on these bills and the raft of amendments that have been made to them in the last weeks and hours. As it is, the committee only tabled its report on the Foreign Influence Transparency Scheme Bill yesterday, and substantial amendments were prepared and provided to us only late yesterday. I do want to put on record that the government's claim that these bills have to be passed by the parliament now to ensure that they are in place for the by-election scheduled for 28 July was directly contradicted by evidence given by the Attorney-General's Department to the committee, which made clear that it would take several months to put in place the register of foreign interests that will be established by the Foreign Influence Transparency Scheme Bill.

I now turn to the specific provisions of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill. This bill reforms the Commonwealth's espionage, sabotage, treason, treachery and secrecy laws in the Commonwealth Criminal Code and the Crimes Act 1914. The bill also introduces new offences aimed at criminalising the activities of foreign actors who are seeking to interfere with Australia's democratic and political processes, which are described as foreign interference offences. On 8 December 2017, the Prime Minister referred the bill to the intelligence and security committee. It was an appropriate referral and allowed the committee to continue its important, independent work reviewing security legislation for the parliament. In referring the bill, the Prime Minister acted in keeping with the bipartisan convention of ensuring proper scrutiny of security legislation.

The committee was asked to review the single largest overhaul of Australia's national security legal framework since the 1960s. There are some 38 offences in this bill. Most of them are expanded or reformed offences that have existed in one form or another in Australia's criminal law since 1914, and there are seven new foreign interference offences. Given the scale of the task presented to the committee, I should note that the government's approach before introduction left a lot to be desired. Given the scope and significance of this legislation, it would've been preferable for the former Attorney-General the Hon. George Brandis to publish an exposure draft of the bill or consult with experts. Because criminal sanctions are so serious, criminal law reform needs to be carefully thought through, subjected to public scrutiny and comment, and refined and designed so that it only captures the conduct that we rightly say as a society should be criminalised.

This bill reforms and amends laws which have long carried the potential for long prison sentences. Careful, thoughtful law reform aided by consultation and expertise was most certainly needed for these laws. This was not done. The first that experts and interested parties heard of this bill was when the Prime Minister and the former Attorney-General gave a press conference on their intention to introduce the legislation on 5 December 2017. This lack of proper consultation was compounded by the government seeking submissions from interested citizens, civil society groups and those experts so vital for assisting in the policy development process by 18 January 2018.

The submissions that were ultimately received made clear to all members of the committee, Labor and government members like, that the bill was deeply flawed. It contained numerous drafting errors, significant overreach and inadequate safeguards. I can say that, in the light of significant and growing criticism over the first months of this year, the new Attorney-General, the Hon. Christian Porter, in March presented by way of a submission to the committee inquiry a set of amendments to the bill which attempted to resolve some of the criticisms that had been levelled at the secrecy offences contained in schedule 2 of the bill. That criticism came from, among many others, the joint media organisations, who suggested to the committee that the bill, as presented, could make it a criminal offence, with substantial criminal terms of imprisonment as possible penalties, for journalists and staff of media organisations who innocently received secret information, whether or not that information was classified.

The Law Council of Australia, who made a very detailed submission running to some 78 pages, detailed extensive problems across the entirety of the bill. The Human Rights Law Centre made another helpful submission which focused on the secrecy offences, and that submission reflected that there were significant conceptual difficulties with the bill. They also noted how it deviated from the Australian Law Reform Commission's report titled Secrecy laws and open government in Australia, which was published in December 2009. The Inspector-General of Intelligence and Security made a submission which outlined her concerns that some of the offences would make it impossible for her and her staff to fulfil their statutory duties. Similar concerns were raised by the Office of the Australian Information Commissioner and the Commonwealth Ombudsman. None of these organisations or government office holders had been consulted about the proposed laws.

I'm glad to say that, following months of constructive bipartisan work, with exceptional support from the staff of the committee secretariat, a mammoth 404-page report was tabled on 7 June 2018. The report made 60 recommendations, more than any other committee report on a national security bill since the Abbott and Turnbull governments came to power in 2013. It is my and Labor's hope that, in future, such significant laws are the subject of proper consultation, considered drafting and thorough preparation before they are brought to the parliament. It makes the job of all of us in this place easier. It also makes it easier because Labor has always been determined to ensure that our law enforcement agencies and national security agencies have the powers that are necessary to keep Australians safe. These include the full suite of criminal offences that our security agencies tell us are necessary to disrupt and combat criminal attempts to undermine our democratic system and to use Australia as a venue for conducting espionage against Australia's allies. Had these laws been properly prepared subject to public scrutiny and debate prior to being brought to the parliament, it would not have been 25 June when this debate was taking place. Had proportionate, considered and well-developed law reform been proposed to the parliament, it's possible that our security agencies would already be working in an environment which provided the legal framework that they have sought and need to limit the permissive environment in which unprecedented espionage and foreign influence is taking place.

It is with all of these matters in mind that Labor has engaged in a constructive manner through the Parliamentary Joint Committee on Intelligence and Security with the government on this bill. As I have noted, the PJCIS report made 60 recommendations, 59 of which were for improvements to the bill or explanatory memorandum or making suggestions to the government as to how the bill should be implemented. The fact that there are 60 recommendations in the report reflects that there was always more work to do to try and get the balance right. We believe that the recommendations in the report which have been implemented by the government in the amendments before the House address many of the concerns raised by civil society groups and the media and improve the effectiveness of this bill. The government has produced, in the last sitting week, amendments—those now before the House—responding to and accepting the recommendations of the report. I thank the Attorney-General, the Hon. Christian Porter, for working constructively on the further amendments which were necessary to make this bill workable.

The bill now before the parliament and the two substantial amendment sheets overhaul a significant number of offences traditionally associated with criminalising the malicious interference in Australia's democratic and security apparatus by foreign countries. The bill modernises and reforms offences against government, including the offences of treason, treachery, mutiny, assisting the escape of a prisoner of war and military-style training involving a foreign principal. These will all continue to be in part 5.1 of the Criminal Code. The PJCIS report made it clear that these offences were in no way designed to capture humanitarian work in conflict zones or circumstances where a journalist covers a conflict and presents information which might be seen as supporting a particular group that has been designated an enemy under a proclamation.

The new division 91 in schedule 1 of the bill amends and modernises the existing espionage offences in division 91 of the Criminal Code. Under the new division 91, the number of espionage offences will increase to cover the gaps in the criminal law that Australia's security agencies have identified as being presently exploited by foreign actors conducting espionage against Australia and in Australia against other countries.

I place on record that the interpretation offered by some civil society groups that the espionage offences are capable of criminalising the disclosure of alleged breaches of international law or human rights by Australia or another country is simply not correct. It's not the parliament's intention that a civil society group which discloses to an international organisation otherwise secret information about Australia's or another country's breach of international obligations could be prosecuted under these offences. The object of these offences is to disrupt espionage activities.

Further, for a construction of these offences to have the effect suggested relies on the Commonwealth's only-hypothetical wrong being exposed in order to commence a prosecution. The espionage offences are premised on some element of harm or damage being caused to the Commonwealth. While it might be embarrassing if some future wrong were uncovered and disclosed by civil society groups, mere embarrassment will not be enough to make out the elements of any of the espionage offences. This requirement is coupled with the fact that a prosecution would have to prove beyond reasonable doubt that a civil society organisation or an individual whistleblower had intended to cause prejudice or was reckless as to whether prejudice would be caused to Australia's national security. In circumstances where the disclosure to the relevant international organisation is made to ensure that Australia rectifies and in future does not breach its international obligations, it's difficult to see how that fault element could be proved.

Finally, the espionage offences all require the consent of the Commonwealth Attorney-General. Attorneys-general hold obligations which go beyond the usual political and legal obligations of other ministers. They are the first law officer of the Commonwealth. A Commonwealth Attorney-General who consented to a prosecution in factual circumstances like those given as examples by some who have criticised this bill would, in my opinion, not be fulfilling those high obligations. I say this to assure any concerned citizens that this bill and these espionage offences do not seek to limit the role of civil society and do not threaten the essential role that civil society plays as a vehicle for the improvement of the Australian community, particularly where that objective is sought by improving Australia's status in multilateral institutions.

The bill introduces a new division 92 of the Criminal Code which contains several offences completely new to Australia's criminal law. The object of these offences is the disruption and criminalisation of covert acts of foreign interference which threaten Australia's democratic processes. I take examples that were given by the Prime Minister in introducing these bills: the interference in the US 2016 presidential election, in the Brexit referendum in the United Kingdom and in the presidential election in France, examples which happily have not yet been replicated—or at least no evidence has been presented that these activities have been replicated—in Australia. It's apparent that in other parts of the world, in other countries, covert actors are seeking on an unprecedented scale to interfere with and manipulate the political processes of democratic countries, particularly by attacking free and fair elections. Australia will not allow this conduct to arrive on our shores. The parliament will not allow interference in our elections. Labor will not allow our democratic processes to be the subject of foreign interference, and we will not allow the subversion of our politics to the interests of covert actors. Labor, whether in government or opposition, will not allow foreign interference, and we join with the government in safeguarding our nation's system of government and representative democracy which all Australians cherish and are, rightly, proud of.

The bill updates and modernises Australia's sabotage offences. Labor recognises that, in a complex modern world, it is necessary to criminalise intentional or reckless damage to a broad range of public infrastructure. As with the criticisms that I dealt with earlier in relation to the espionage offences, some critics have suggested that these amended sabotage offences might be used to criminalise innocent and peaceful protest. I would simply say that that is not the way in which these offences are intended to operate. It is not the way, in my view, that a court would interpret them. They are, absolutely, intended to criminalise sabotage, a serious attack on our country, and in no way would be used—as has been suggested and, I say, wrongly—to criminalise peaceful protest. The bill introduces a new 'theft of trade secrets' offence to protect Australia from economic espionage by foreign government principals, and it makes a number of other appropriate, modernising amendments to a range of other offences, including the offence of interfering with political rights and duties and, as I've indicated, important reforms to Australia's secrecy laws.

As a consequence of the amendments put forward by the Attorney-General in March, the secrecy offences are now to be split between offences committed by Commonwealth officers and offences committed by non-Commonwealth officers, which is an appropriate distinction to be made in the criminal law. Through the PJCIS process, Labor has ensured that there will be more limited circumstances applying to non-Commonwealth officers. In particular, Labor has ensured that there will be a robust and broad exemption for journalists and those people engaged in the business of reporting news and engaging in editorial activity. Those exemptions will stop the laws from being used to censor or suppress freedom of expression, which is an appropriate safeguard.

Generally speaking, this bill is much improved by the 59 recommendations for amendment and change both to the bill and to the explanatory memorandum. There will now be 'prior publication' defences. There will now be a public interest defence for the secrecy offence. It is important that there be these limitations. It's important that there are now amendments to make explicit that the protections and immunities for whistleblowers which already exist in the Public Interest Disclosure Act, the Inspector-General of Intelligence and Security Act and the Freedom of Information Act are not affected by this bill. As I've noted already, the bill will now include a requirement for the Attorney-General to consent to a prosecution for espionage and to consent to a prosecution for a secrecy offence, which is an important further safeguard.

Many of the recommendations of the PJCIS—which I thank the government for implementing in full in these amendments now before the House—have the effect of narrowing the impermissible conduct to be criminalised by the offences contained in the bill. In particular, I note the requirement that the offences which use the phrase 'prejudice to Australia's national security' are to be interpreted as requiring a degree of damage or harm to Australia's national security. It's not in the interests of our nation that mere embarrassment would be sufficient to make out this element of the offences containing that phrase. Labor has worked constructively and in good faith with the government to make sure that this bill has been significantly improved. It now properly targets the conduct which the parliament is seeking to criminalise, while always safeguarding those fundamental and essential rights and freedoms which we in Labor will always defend and promote.

I will turn now, in the available time, to the Foreign Influence Transparency Scheme Bill. This bill also was introduced by the Prime Minister on 7 December, and it's quite a different bill to the espionage and foreign interference bill, which of course is dealing with amendments to the criminal law. This bill sets up a registration scheme for persons who act on behalf of foreign governments, foreign government related entities or individuals and foreign political organisations who are seeking to influence an Australian governmental or political process. As with the espionage bill, the Parliamentary Joint Committee on Intelligence and Security received many submissions opposing the bill which were particularly directed to the breadth of the bill. Submitters pointed out that thousands of Australian individuals and organisations whose foreign connections were entirely overt would have been required to register under the bill as originally put forward.

The committee had public hearings on 30 and 31 January and again on 16 March. It was quite apparent, even by mid-March, that the government was going to have to very substantially amend this Foreign Influence Transparency Scheme Bill, but the committee had to wait until six months to the day from when the bill was first introduced by the Prime Minister—7 June 2018—for the Attorney-General to submit a very large set of proposed amendments to this Foreign Influence Transparency Scheme Bill. It was such a large set of amendments that it's fair to consider what is now before the House an almost completely different bill.

The government at that point, on 7 June 2018, indicated that it wanted this further bill, the Foreign Influence Transparency Scheme Bill, to be passed in this sitting week, and happily the committee was able to complete a short further inquiry, by calling for submissions again from all those who had made submissions earlier to the committee, on the new set of amendments produced by the Attorney-General. This resulted in some 30 further submissions, a hearing conducted by the intelligence committee last Monday and some extremely active work by the committee and its secretariat over the succeeding week, leading to the tabling of the report of the committee yesterday, recommending something over 40 further changes in addition to those suggested by the Attorney-General on 7 June.

The changes have the effect that the scope of the bill is now greatly narrowed. It is now clear that the registration scheme is to focus on the activities of foreign governments, foreign government related individuals and entities, and foreign political organisations. That last term too—because it does sound a like a broad term—has been further restricted by the amendments which are before the parliament so as to make it clear that a foreign political organisation is to be treated as a foreign political party or an organisation which is directed wholly or primarily to political activity, and the amendments to the explanatory memorandum will make it clear that an environmental group or other civil society group whose activities are directed to other matters and not solely to political activity is not intended by the parliament to be caught by the term 'foreign political organisation'. Again, the scope of registerable activities has been limited so that it now is clear that it's intended that registerable activities will cover parliamentary and general political lobbying where the relevant conduct is undertaken for the sole or primary purpose of political or government influence or the government's communications activity.

The media organisations who had participated in the earlier part of the inquiry have expressed their satisfaction with the narrowing of the scope of this bill so that, in a very real sense, media organisations will not be caught by its provisions. So, too, charities that had expressed great concern that they were going to be caught up in onerous obligations and paperwork that took them well outside what they would prefer to be spending their time on have also expressed their satisfaction that they are to be exempt. So, too, arts and cultural organisations are to be exempt from the registration requirements under this scheme, and trade unions are to be exempt from the registration requirements under this scheme under particular circumstances. There was already in the bill as originally proposed a religious exemption. That religious exemption has been clarified as a consequence of both the recommendations of the committee and the amendments that the government now brings before the House. Again, that's appropriate.

In its original form, the bill introduced to this House on 7 December was very much using a sledgehammer to crack a nut, when what in truth was required was a more scalpel-like approach. Happily, the government has listened to the very many concerns that have been expressed by civil society and has narrowed the scope of the bill, increased the number of exemptions, and clarified in a very real way the way in which the scheme is intended to operate.

I have to mention an important further matter, which is that there is now to be a complete restoration of parliamentary privilege. It might, in the bill's original form, have been the case that parliamentary privilege was abrogated. It is now made clear by the proposed section 9A of the bill that this is not the case. This bill, if enacted, will not affect anything to do with parliamentary privilege, and, indeed, MPs will not be required to register under the scheme. The committee has recommended that this House and the other place devise, under standing orders, an appropriate matching scheme for members of both houses so as to ensure that there is proper disclosure of any foreign governmental influence working on members of either house.

In a very real sense, there's been constructive work engaged in by both parties on these bills. There's been a great deal of work in the intelligence committee. The government has acted on those recommendations, and I commend both bills to the House.

Mr HASTIE (Canning) (12:32): The Prussian scholar/general Carl von Clausewitz has left an indelible mark on Western strategic and military culture. I first became immersed in his famous work On War as a young officer cadet under the late Professor Jeffrey Grey at the University of New South Wales at the Australian Defence Force Academy some 15 years ago. This is not a unique experience for young minds schooled in the Western military tradition—his writings have taken a pre-eminent place in the way our political and military leaders think about war and strategy. His key insight was into the primal nature of war. 'War,' wrote Clausewitz, 'is an extreme trial of strength and stamina. It is an act of force to compel our enemy to do our will.' But his most quoted dictum, 'War is the continuation of politics by other means,' has led many in the West to insist on a comfortable separation between peace and war. We see war as a distinct form of statecraft conducted outside the realm of peacetime relations. George F. Kennan, the American diplomat and historian, wrestled with this problem in 1948, just as the Iron Curtain was descending across Europe. In a US state department memo entitled The inauguration of organised political warfarehe wrote:

We have been handicapped however by a popular attachment to the concept of a basic difference between peace and war, by a tendency to view war as a sort of sporting context outside of all political context, by a national tendency to seek for a political cure-all, and by a reluctance to recognize the realities of international relations—the perpetual rhythm of struggle, in and out of war.

This was a phenomenon unique to Western democracies. Kennan argued that the Soviet Union under Lenin had fused Marxism and Clausewitz, and this allowed them to develop the most refined and effective political warfare in history. The Soviet Union flipped Clausewitz's logic and read his dictum backwards: 'Politics is the continuation of war by other means'. Political warfare for the Soviets could be both overt and covert. It was part of the rhythm of struggle that Kennan described as an underlying reality of international relations.

Liberal democracies grappled with political warfare during the Cold War and today we face the same problem. We know that today Marxist-Leninist authoritarian regimes are conducting espionage and foreign interference against Western liberal democracies, including Australia, on an unprecedented scale. This has been described as a unique form of authoritarian political warfare, known as comprehensive coercion. I refer to the recent monograph published by the Center for Strategic and Budgetary Assessments entitled Countering comprehensive coercion: competitive strategies against authoritarian political warfare, which was co-authored by Australian Ross Babbage, along with Thomas Mahnken and Toshi Yoshihara. The Parliamentary Joint Committee on Intelligence and Security is privy to a lot of classified information, and in my considered view this open-source document accords most closely with the threat described by our intelligence agencies.

The problem we all face is simply this: authoritarian states are using political warfare to undermine the legitimacy of Western democracies by targeting our media, political processes, financial networks and personal data. These authoritarian states view political warfare as a standard instrument of statecraft rather than a specialised tool. Their centralised regimes can leverage all elements of their national power towards their strategic objectives. They can mobilise all elements of society for political warfare—not just government but also nongovernmental organisations, industry, think tanks, civic associations and individuals. They use political warfare to suppress dissent, discourage foreign narratives that are inimical to their interests, generate support for policies they favour, enhance their freedom of action by keeping their rivals distracted, and mitigate pushback against overt acts of revisionism.

What do these political warfare operations look like? Overt operations are conducted to influence, pressure, coerce, bribe, corrupt and exploit Western countries. To advance their national objectives they mobilise elements of their diaspora residing in Western countries. Embassies and consulates play a vital coordination role in recruiting and controlling ethnic diaspora. They task students in foreign countries to suppress views inimical to their interests on Western university campuses. They influence and manipulate foreign language media in diaspora communities to comply with state-approved narratives. They sponsor pro-regime educational institutions to foster their world views and support their strategic aims. They provide financial support and inducements to individuals and institutions abroad, usually members of the political system, to foster them as agents of influence in the service of their national objectives. They seek to build influence within Western media organisations. They leverage trade and investment dependencies to coerce partners. They mobilise state-owned business enterprises to act in the interest of their strategic goals. They recruit business leaders who have strong economic interests in their country. They penetrate Western research and other institutions to access cutting-edge technology. They conduct sophisticated cyber operations against targeted countries. They conduct espionage operations against Western and partner countries, and they conduct geostrategic manoeuvres to extend their influence over new areas through the acquisition and building of roads, rail, airheads, ports, pipelines, and power and electronic communications infrastructure, to link up their economic aims with their geostrategic ambitions.

All of these operations that I have described thematically are reflected in real-time examples. I do not wish to name individual countries except to say this is a real problem for Western democracies. But I do acknowledge the courage of Australian investigative journalists who have sought to uncover examples of these operations here in Australia. They have done so in the national interest and often with the threat of expensive defamation cases for their efforts. In fact, our defamation laws are at risk of being weaponised in the service of authoritarian states. I think we must consider reform of these laws to prevent our own institutions being used against us by our strategic rivals to suppress free speech.

In the meantime, we need to take legislative action to secure our sovereignty, our political institutions and our economic prosperity. This government has taken action. On 7 December 2017, the Prime Minister introduced the two bills that are now before us in the House. On 8 December, the Prime Minister asked the Parliamentary Joint Committee on Intelligence and Security to inquire into and report on both bills. For me as chair of the committee, it has been a privilege to be involved in the process of reviewing these bills on a bipartisan basis and making recommendations to improve them with amendments. It is a task that we as the PJCIS take very seriously, given the unprecedented scale of the threat that we seek to mitigate. We are also deeply conscious of the need for this parliament to balance security with personal liberty.

Two weeks ago the committee reported on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill, and yesterday we tabled our report on the Foreign Influence Transparency Scheme Bill. Importantly, both bills have received bipartisan support from the committee, and they need to be passed for the sake of our national interest. I've already covered in previous speeches the key elements of each bill and our committee recommendations for improvement. I won't traverse the same ground here, but it is worth reminding ourselves why we are passing this legislation.

Our intelligence and law enforcement agencies and prosecutors do not presently have the tools to counter the threat that we are facing. This bill equips them for the task of protecting our security and sovereignty. The espionage and foreign interference bill replaces and broadens existing espionage and sabotage offences. It introduces new categories of offences, including foreign interference and theft of trade secrets. It revises other offences against the state, including treason and treachery. It creates a new aggravated offence of giving false or misleading information in connection with a security clearance. Significantly, this bill, under the foreign interference offences, makes it criminal to influence state or federal elections on behalf of a foreign power. We've seen authoritarian powers interfere in Brexit and the French and US presidential elections. We cannot afford the same risk in Australia. That is why we are taking action to secure the integrity of our electoral system. When the espionage and foreign interference bill becomes law, those charged with shielding our democracy will be equipped for the incredibly complex task before them.

Complementing the National Security Legislation Amendment (Espionage and Foreign Interference) Bill is the Foreign Influence Transparency Scheme Bill. The Foreign Influence Transparency Scheme Bill seeks to bring into the light covert or obscured foreign influence in our political institutions. It will empower the Australian people with more information about who is shaping our political decision-makers. We cannot have foreign states exercising covert influence over our political landscape. Of course, we welcome overt foreign influence as a necessary part of our democratic processes. We have many foreign partners who engage in regular dialogue with Australian government and civil society through lawful, legitimate and transparent channels. We welcome this. It strengthens us as a country. But it must be declared, and this is what this scheme seeks to do.

The scheme will involve a public register. That register is intended to provide visibility of the level and extent of covert or obscured foreign influence in the course of political and governmental decision-making in this country. Under the bill, a person will be liable to register if they undertake certain activities that seek to influence Australian political or government decisions on behalf of individuals and entities that are closely linked to a foreign government. As I've said, this transparency will empower the Australian people to better understand the foreign influences at work in our political processes. This is a very good thing, because an informed citizenry means a healthy democracy.

I want to say a bit about those who've done a lot of work towards getting these bills to where they are now. They have not occurred in a vacuum, nor can any one individual be credited with their passing. We are here today because a network of committed individuals across government, the media and civil society have worked in the national interest to make the private and public case for these laws. The Australian public can be confident that bipartisanship is still alive and that the network broadly reflects the political colours of blue and red.

The Attorney-General has been outstanding in his principled, rigorous and realistic approach to securing bipartisan support for this legislation, and I thank him on behalf of the intelligence and security committee. Justin Bassi, Daniel Ward, Tim Wellington and Parker Reeve have been instrumental in the passage of these laws. You have done great work in the service of Australia. I think of the deputy chair of the PJCIS, the member for Holt, and our Labor colleagues on the committee, and I also think of the Labor backbenchers who have shown their support for this suite of legislation during this committee process with a quiet word or note. I think of unlikely allies like Clive Hamilton who have shown courage where others have taken counsel of their fears. Many contributors have no political affiliation and are members of the media, government and civil society. Their defining characteristics are analytical courage, clarity and integrity. They have made clear what is at stake for Australia if we fail to act to protect our institutions. I shall not name them, but I will make special note of John Garnaut, who has spoken truth to power and may yet pay for it. Finally, I thank the secretariat of the intelligence and security committee. Your diligence, perseverance and flexibility have enabled us to get to this point. I think I speak for all involved when I commend this historic and landmark national security legislation to the House.

Mr BYRNE (Holt) (12:45): I'll be brief. I thank the shadow Attorney-General, the Leader of the Opposition in this House, the Attorney-General and the chair for their indulgence in allowing me to speak on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and related bill. I note that my friend and colleague the member for Denison wants to speak shortly about these matters too.

I speak today to those abroad who have listened to discordant voices in the course of this debate about our nation's sovereignty. I speak to those who have listened to representatives who have served in this place or other legislatures in this country who provided false hope or false comfort to those who may wish us harm. Today you are hearing the true voice of this nation and of this parliament. We effectively speak with one voice—a stentorian voice destined to be heard everywhere by those who wish us well or wish us harm.

Our nation has a right to defend itself. It has a right to protect and defend its democratic structures, its way of life and the freedom of its people—all of its people, wherever they have come from, near or afar. When you come to this country and become a citizen, you are entitled to the full measure of protection that this country affords. This legislation must offer these protections to you, and, after the exhaustive processes undertaken by the PJCIS, it will.

The perception of autocratic regimes about democracies like ours, the United Kingdom's and the United States's is that the openness of our societies creates weakness and that this weakness can be exploited. This is an act of historical folly that seems destined to be repeated unless common sense and a study of history prevail. Also this misconception could not be further from the truth. Our openness is our greatest strength. Our way of life and our expression of it are also our great strengths. It has come from centuries of struggle and sacrifice from many different nations and many different cultures. Its foundations were laid thousands of years ago by societies whose light still burns bright today and whose impact reverberates throughout our laws, our values, our art and our culture. We are the children and heirs of this foundation and tradition, and we must not squander this hard-won inheritance. Because even through this openness we can be slow to respond to threat, when that threat is revealed something ignites in our democracy: a thirst and an unquenchable desire to protect that democracy and our way of life, whatever the cost, whatever the sacrifice, with the full measure of devotion.

I am from the party which gave this nation one of its greatest treasures—Prime Minister John Curtin, a humble man who stood tall and proud for our country in the darkest days of World War II. He stood tall. He stood for our nation alongside giants such as Winston Churchill and Franklin Roosevelt. Our Prime Minister, who was described as a one-time mild-mannered trade unionist, addressed his nation's first direct radio broadcast from Canberra to American citizens on Friday, 14 March 1942. Praising the people of America during peak-hour broadcasting, Prime Minister Curtin spoke of their shared commitment to total warfare and the importance of preserving Australia as a democratic bastion between the US west coast and Axis enemies. 'I say to you,' he said, 'that the saving of Australia is the saving of America's west coast.' He also said:

I speak to you from Australia. I speak from a united people to a united people, and my speech is aimed to serve all the people of the nations united in the struggle to save mankind.

He stated:

We fight with what we have and what we have is our all. We fight for the same free institutions that you enjoy. We fight so that, in the words of Lincoln, 'government of the people … by the people, shall not perish from the earth'. Our legislature is elected the same as is yours; and we will fight for it, and for the right to have it, just as you will fight to keep the Capitol at Washington the meeting place of freely-elected men and women representative of a free people.

He further stated:

Be assured of the calibre of our national character. This war may see the end of much that we have painfully and slowly built in our 150 years of existence. But even though all of it go, there will still be Australians fighting on Australian soil until the turning point be reached, and we will advance over blackened ruins, through blasted and fire-swepted cities, across scorched plains, until we drive the enemy into the sea. I give you the pledge of my country. There will always be an Australian Government and there will always be an Australian people. We are too strong in our hearts; our spirit is too high; the justice of our cause throbs too deeply in our being for that high purpose to be overcome.

These great words echo down throughout the years to this day. The laws that we debate today may be imperfect, as other speakers may highlight, but they state and embody bipartisan intent. It is our job as legislators and Curtin's heirs to fulfil our commitment to those in our clandestine services, our law enforcement agencies and the Attorney-General's office that we seek these powers to keep our nation safe. We in this parliament, together, have ensured that there are reviews and safeguards required to offer protection as needed. With that in mind and with Curtin's words echoing in my ears, I commend these bills to the House.

Mr WILKIE (Denison) (12:51): It goes without saying that maintaining the security of our nation is clearly one of the most important roles for government, and doing so as a general principle has my full support. But, when it comes to the achievement of our national security, no government whatsoever has any right to ever be misleading or hypocritical. No government has any right to misuse national security in the lead-up to by-elections or an election. No government has the right to take us down the road to being a police state. I regret to say that there's more than a whiff of all of those concerns in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017, which we are debating here in this place today and which we will shortly vote on.

Yes, we do need legislative reform to counter foreign interference and foreign espionage in our country, but the way we do it has to be ever so carefully crafted and crafted in a way that safeguards the liberties that we hold so dear. These bills today do not achieve that standard, and I won't support them. I think the way they are currently presented to the parliament is disappointing. They are bad bills. I think the fundamental deficiency in both of the bills today is in the broad definition of 'national security' and 'foreign influence'. Clearly, they are way too broad definitions, and they should have been remedied before the bills came before the House.

For example, with the way the bills are crafted presently, the act of simply protesting could be deemed sabotage if that protest in some way could be seen to disadvantage or impede our economic security. What about the people who might protest against the Adani coalmine in Queensland—a project that, if it were stopped, would be, on the face of it, a downside to our economy? It could be said that those protesters are engaging in sabotage of Australia's economic security and could be prosecuted under these bills. Also, what about the need we have sometimes to report matters to international organisations like the United Nations? It is something which I've done myself. I have made complaints to the court in The Hague about our response to asylum seekers. Under these bills, people who do that in the future would be liable to be prosecuted because they could be deemed to be engaging in some sort of foreign interference. What about international organisations like Amnesty, the PEW environmental foundation or Save The Children? Are they foreign agents?

Regrettably, with the way the bills are currently crafted, they could be held to be foreign agents and fall within this framework. Even possessing information sensitive not to Defence but to Australia's economic security could be deemed a breach of security.

With the way the bills are currently crafted it is left to the relevant government minister, the Attorney-General, to determine against whom action should or shouldn't be taken. We should never rely on legislation which, at the end of the day, is at the whim of a minister. We have a good minister in the current Attorney-General, and he has my confidence, but what about a future Attorney-General in this government or a future government? Can we have the same confidence? What if we have a downright bad and mischievous Attorney-General or Prime Minister in a future government who would misuse these laws? These laws have the scope within them such that they could be misused. I say to honourable members that we should never sign off on any legislation where there is that freedom to manoeuvre for a government and the relevant minister. We should always craft our laws so tightly that they can never be misused by anyone in the future.

Many years ago now I was involved in a whistleblowing episode, and I have a particular interest in maintaining or creating rights for whistleblowers, because I think they are a very important check on the power of governments. There's nothing in these bills today to give any protection to whistleblowers that might need to speak up about any of the matters to which these bills relate. Not irrelevant is the Public Interest Disclosure Act, which was passed by this place some years ago now. I remind members that there is a specific carve-out in the Public Interest Disclosure Act for national security material and national security officials. Any hope we might have that someone genuinely speaking up because of government misconduct or a security concern relevant to these bills would have any protection is dashed. They don't have protection before these bills; they don't have protection in these bills; and they don't have protection after these bills. I say to the Attorney-General that I would dearly love the government to revisit the carve-out for national security and national security officials in our whistleblower legislation in this country.

I wrap some context around these bills today, because I think that's important. Far too often we look at legislative reforms in isolation and don't take a step back to look at the overall situation. When we do that, I think we should be concerned about the direction this country has gone in since the 9/11 attacks in late 2001. Since 9/11 more than 60 security reforms have come through this place. Some have been necessary and had my support; many have not been necessary, did not have my support and will not have my support. At the end of the day so much of what we're talking about in this place, in the past and today, are ultimately just criminal offences which the laws already on the books have been adequate to deal with. Far too often in this place we're quick to pass a new law using the excuses of border security, national security or foreign espionage—scary words that make people think, 'We need more laws.' Often we don't need more or better laws; often we simply need to better apply the laws we have. Sure, make information-sharing between intelligence agencies and the justice system more effective and efficient, but we don't always need to race to pass another law when it comes to national security.

I make the point again: since 9/11 more than 60 security reforms have passed this place. I would remind honourable members and anyone in the gallery of some alarming security changes passed in the 44th Parliament. For example, there were the amendments made to the Commonwealth Crimes Act in 2014 which allow ASIO officers to conduct controlled operations and, in those controlled operations, to actually commit very serious criminal offences such as burglaries, assaults, kidnapping and fraud knowing they will not be prosecuted and knowing that those controlled operations must be kept secret and that there is scant opportunity for journalists to publicise such controlled operations. Also in the previous parliament there was the Australian Border Force Act, which makes it an offence for people to reveal what goes on in our offshore processing centres overseas. Also, of course, in the previous parliament, who can forget mandatory metadata retention? I would remind the public, because far too often we forget these things, that today there is in place an arrangement where all of our metadata from our phones, our tablets and our computers at home is being recorded and held for two years. It can be accessed by the authorities without warrant.

Even in this parliament, we have the three bills, two of which we're dealing with today. What of the reports just some weeks ago that police are going to be allowed to pull you up in the airport and demand to see your identity papers, even if you're not suspected of anything? Just on a whim, a police officer can pull you up and say 'Show me your papers!' and you have to hand them over. That's not good enough. That's not what should be allowed in a country like Australia.

Deputy Speaker, when you look at the context, when you look at the bills we are dealing with today and the deficiencies of them, I will go so far as to say that Australia is a pre police state. We have passed far too many security laws, and far too many of them have been unnecessary. Our independent media is slowly being diminished with reductions in their funding. Papers are being checked at airports with no good cause. The right to protest, in these bills, is effectively diminished. As I said earlier, if the government wants to say any protest, such as a protest against the Adani Mine, is a threat to our economic national security, then you can be accused of committing an act of espionage and be charged under these bills that we're dealing with today.

Also diminished is access to foreign bodies. What happens the next time someone wants to make a complaint to the United Nations? Are they going to be accused of fostering foreign interference and be charged under these bills? Presumably not, because the Attorney-General has got more sense than that, but what about the next Attorney-General, if he doesn't like the cut of your suit and the fact that you're making a complaint to the International Criminal Court, for example? Will he have you charged for foreign interference and hauled before a court? We can't be sure that he or she won't do that.

I made a reference at the start of my speech to hypocrisy. Governments—and the opposition, I would add—far too often are fired up to beat the national security drum and talk about the grave threats this country faces, but at the same time they took the AFP away from Hobart Airport. At the same time that governments are saying that our greatest security threat is home-grown terrorism—we know there are smart terrorists and would-be terrorists who would target high-profile, iconic soft targets—they take the police away from the airport and refuse to put them back.

What about the hypocrisy that we learnt of today that 12 members of this parliament have been flown to China as guests of Huawei, a company with known links to the Chinese government? That's okay. It's okay for people from this place to jump on a plane—in business class or maybe first class; I don't know how deep Huawei's pockets are—and fly off to China for one or two weeks, go in the tent, drink the Kool-Aid, look at a couple of telephone manufacturing plants and come back, no doubt, great friends of Huawei and great friends of the People's Republic. Then those same MPs will walk in here and vote for these bills today, saying, 'We're gravely concerned about foreign influence and our democratic process.' Just don't mention the business class flight to China in recent times as a guest, effectively, of the Chinese government through their middleman Huawei. What hypocrisy, and what a rush!

The PJCIS has only just finished looking at these matters. We're only just getting our minds around all of the amendments, and we rush it in here. I'll finish in a bit over a minute, the member for Melbourne might speak for 15 minutes, and then I reckon they're going to try to ram this through before 90-second statements, because there's such urgency to energise this issue before the five by-elections. What absolute rot! Since when should this country's national security be pegged onto the political self-interest of the government and the opposition before five by-elections? We should look at these things carefully and slowly and make sure that ultimately what this place deals with and passes is in our national security best interests and not in the political self-interest of a government or an opposition.

I would have liked to support both of these bills, because I'm the first to say we should maintain our national security. After all, I'm the fellow who did 20 years in the Army and a number of years in the intelligence services. I'm the first to fight for our national security, but I will not be party to reckless, poorly crafted legislation that unnecessarily diminishes even further our civil rights.

Mr BANDT (Melbourne) (13:06): The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 criminalises dissent. This bill makes it a much more dangerous proposition to stand up to this government or any future government. It makes it a much more dangerous proposition to stand up on human rights and point out our government's record or other governments' records internationally on human rights. It makes it much more dangerous to protest against things that have an economic impact, like the Adani coalmine, because, if these bills pass, there will be sweepingly broad new definitions of what counts as national security, what counts as Australia's economic interests and what counts as our international reputation, and, if you fall foul of those very broad definitions, you could find yourself in jail, because you will have breached espionage laws in this country, which are usually considered some of the most serious offences that there can be.

Many, many people have spoken up about these bills and said not only that these bills are unnecessary but that they take us a step further down the road of becoming the kind of society that these bills are meant to protect us from. As Amnesty International said today, notwithstanding the cosy deal that's been done to rush these bills through the parliament—and I'll talk a bit about that in a moment—these bills still, despite all of that, make it a crime to hold the Australian government to account on human rights, and as such they help shield government from accountability. In their words:

These draconian laws proposed will make Australia more like the authoritarian countries this bill is supposed to protect us from.

When it comes to putting people in jail because they dared to speak up to a government, we should tread very, very carefully in this place. A very strong case needs to be made before we criminalise what most people would think is an everyday right of free speech. To go to a protest against a company doing something that you don't like, even if it potentially embarrasses Australia, to stand up to something that Australia is doing either by itself or with another country, even if it might embarrass Australia, or to say that a government needs to be held to account, even if it might be seen to be harming our international interests, is something that most people in this country would think is a fundamental right. It's what marks out democracies from other forms of society.

But now doing things like protesting against international trade agreements like the TPP, saying governments and people internationally aren't pulling their weight in global climate change negotiations or saying you don't want a new coalmine that might have international consequences are potentially captured by this law, because the government has drawn very, very broad definitions. This has been pointed out by many organisations who've looked at this in the limited time that they've had available and have said, 'There are some big red flags here.' When you look at the way this government treats refugees, who are human beings, and when you look at the way this government takes away the basic rights of other people who've not even committed a crime, that is a precursor, I think, of what they'd be prepared to do to other people in our society, and that is why it is essential, any time a government wants to take away some of the basic precepts of the rule of law or of individual freedoms, that they be held to account and scrutinised very, very carefully.

But what have we got here? We've got a couple of bills, one of which criminalises dissent and the other of which casts a broad net over other people around the world, meaning you'll potentially fall foul of law if you deal with them. The government puts out this bill and says, 'Oh, we need to rush it through very, very quickly.' Then it goes into a committee where there are secret discussions that take place between the government and the opposition, and about 10 minutes ago we just got 50 pages of amendments and were told: 'Trust us. It's okay. Pass this bill with these amendments. We've fixed it all up.' Well, maybe the opposition has secured some good amendments from the government and made this bad bill less bad—and good on them, if they have—but parliament is meant to be the place where you scrutinise what the government is doing. When the government wants to criminalise dissent, when the government wants to say, 'You could face jail time tomorrow for doing something that was perfectly lawful yesterday,' I'm sorry, but we don't take them at face value.

We have seen what you, the government, do to other people when you've got the legal power of the state behind you. We've seen what you do to refugees. We've seen that you take away people's incomes if you don't think they're spending their money properly. We've seen people's lives broken because of the way this government has treated them. And so I am sorry, but we are not prepared to take it on trust that somehow everything is going to be okay and that dissent will not be criminalised in this country.

It is against everything this parliament stands for to lob almost 50 pages of amendments at the parliament and say, 'Right, we're going to pass it today.' We just started debating this bill today. We're going to wind up very soon because a secret deal's been done behind closed doors, and we're told, 'It's okay; just push this through.' Well, I've got news for you, Labor and the Liberals: a growing number of people are not buying what you're selling. A growing number of people are not prepared to take it on trust anymore that you've got the Australian population's best interests at heart, because for too long we have seen people in this place feather their own nests and protect themselves at the expense of everyone else.

It is not good enough, when it comes to potential jail time, to say, 'We've got to rush through some legislation,' because there are some by-elections or whatever other reason people happen to pull out of a hat at that particular time. Once we start using national security as the basis for taking away people's rights, and once we start being told, 'You can no longer question governments publicly or else you'll face jail time,' we start going to a very bad place. But we go there even quicker when the parliament, which is meant to scrutinise government, is told, 'Here's 50 pages of amendments; just vote it through and we'll rush it through very, very quickly because of some spurious reason that we invented last night.'

I've seen the recommendations that have come out of the review into this bill. Many of them are good and will make a bad bill better. But we as parliamentarians are entitled to look through the amendments that we've been given and work out whether they live up to those recommendations. We've seen things rushed through this place before that have had very, very significant consequences. When things are done quickly, when they're done on the basis of a backroom deal, they get denied the scrutiny that we are entitled to and that this parliament is meant to be here to do.

So I ask Labor and the government to give this bill the time to go through a proper and open inquiry, to now allow these amendments that they've cooked up in a back room together to be looked at by all of the organisations who have very legitimate concerns about this bill. The Greens have legitimate concerns about this bill, including what it does to freedom of speech in this country and what it does to the right to dissent. Amnesty has concerns about this bill. GetUp! has concerns about this bill. Lawyers have concerns about this bill. People say, 'Yes, we understand that we need to take steps to protect our national security,' but they also say, 'It should never come at the expense of trading away the basic principles of individual rights and the rules of law that define us as a society.'

If these new amendments to a very bad bill are as good as you, the government, say then give us the time to go over them and to let everyone comment on them and inquire into them, because these almost 50 pages of amendments are an admission that the bill was bad to begin with and had to be amended to within an inch of its life. Now that we've seen those amendments, give us a chance to scrutinise them, because, if they don't do what you say then you've sold us all out and taken everyone for a ride. So, at the very least, I say to these people who have cooked up these amendments: put them out to public scrutiny so we can work out whether they do what you say and so that we can then work out how to vote on the bills and whether the bills should be voted on differently and separately after you've amended them back and forth.

But if what we're being asked to do is just take it at face value that Labor and the Liberals—the parties that lock up refugees offshore and keep them out of sight and out of mind—have now come up with a wonderful scheme to protect our rights, well, sorry, I don't believe you. I don't believe you, and I bet a bunch of other people don't either. When the starting point is that doing something that affects Australia's national interests and its economic interests can potentially land you in jail, I think most people in this country would want to know that every last 'I' has been dotted and every last 'T' has been crossed before we sign off on a bill like that. Many of them, myself included, probably wouldn't support the bill being passed, but, at the very least, everyone would agree that something that so fundamentally affects people's rights in this country ought to be subject to proper scrutiny.

If you want to know why this place and politicians have an increasingly bad reputation and why people don't trust us, you need look no further than this bill. We are being asked, yet again, to just accept a backroom deal that has been done, to take it at face value and to whack it through the whole parliament in a day or so. That is not good enough. The Attorney-General should explain why such a significant piece of legislation can't go through the usual process of scrutiny by the usual Senate committees and allow other people to come in and have a look at it. He may well have struck a deal with the opposition—he may well have done all of that—but the public haven't yet had a chance to look over this and, worse, parliamentarians haven't either. I think it is outrageous that we are being asked to debate, and to vote in just a few minutes on, amendments that we were given maybe half an hour or so ago—when we're dealing with bills which, if passed, may result in people going to jail.

I think the starting principle should be: you are entitled to dissent against a government; you are entitled to hold a government to account; and you are entitled to do things that the government may even say are against the country's interests—if what you're doing is trying to uphold human rights, if what you're doing is to trying to make sure climate change doesn't devastate us, and if what you're doing is trying to make sure there is some accountability and integrity in parliament. If the test becomes, 'Are you embarrassing the government in the international sphere?' then we're all in strife, because then it means you can't stand up to deals that governments do with each other, and you can't hold governments to account for human rights abuses, for environmental abuses or for abuses of their population. That is the road that we are going down. And so I plead with the opposition and with the government, one last time, to allow the full scrutiny of this bill, all its amendments and the associated bill; to not rush this through the parliament; and to give civil society in Australia, and everyone who is going to have their rights diminished by this legislation, time to fully digest it.

Mr PORTER (Pearce—Attorney-General) (13:21): I would like to commence, Mr Deputy Speaker, by thanking all of my parliamentary colleagues for their contributions to the debate on these two bills that we are considering cognately, the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, which is known as the EFI bill, and the Foreign Influence Transparency Scheme Bill 2017, which has become known as the FITS bill. These two bills have been considered in detail by several parliamentary committees, and I thank all of the committees for their contributions.

I would particularly like to express my thanks to the Parliamentary Joint Committee on Intelligence and Security, the joint committee, for their detailed consideration of these two bills. The work of the joint committee was critical in forming the deliberations of government on the necessity and the effectiveness of the critical offences provided for in the EFI bill and the ways to improve the operation of those offences, as well as on the scope of the Foreign Influence Transparency Scheme and its best and most effective operation. I would like to offer specific praise, which is appropriately recorded here, for the parliamentary joint committee chair and its deputy chair and to the shadow Attorney-General, whose dealings with my office have been temperate and skilled and have been conducted in the best of faith.

The government has amended the explanatory memorandums and will move amendments to each of the bills to implement recommendations from committee consideration of the bills. I therefore present a replacement explanatory memorandum to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill, which responds to issues raised by the Parliamentary Joint Committee on Human Rights in its Report 3 of 2018; by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest 4 of 2018; and by the PJCIS in the Advisory report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, tabled on 7 June 2018. I also present a replacement explanatory memorandum to the Foreign Influence Transparency Scheme Bill, which responds to the concerns raised by the Parliamentary Joint Committee on Human Rights in its Report 3 of 2018; by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest 3 of 2018; and by the PJCIS in the Advisory report on the Foreign Influence Transparency Scheme Bill 2017, tabled on 25 June 2018.

I also present the government response to the Advisory report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.I also present the government response to the Advisory report on the Foreign Influence Transparency Scheme Bill 2017.

With respect to the EFI bill, it's the case that covert interference and espionage by nation states are an unfortunate but longstanding global reality and that they have the potential to cause immense harm to our national sovereignty, to the safety of our people, to our economic prosperity and to the very integrity of our democracy. To counter this threat, Australia must have a robust, modern legislative framework to ensure our law enforcement and national security agencies are sufficiently empowered to investigate and disrupt malicious foreign interference. The reforms in the EFI bill are comprehensive. They represent the most significant counterintelligence reforms since the 1970s in Australia, and the measures in the EFI bill will fundamentally reshape our national security offences to protect Australia's sovereignty, its information and the democratic principles and values that underpin our society. The EFI bill will strengthen criminal offences targeting espionage, official secrets, sabotage, treason and other offences against the government, and it will introduce, for the first time, new offences targeting foreign interference and economic espionage by foreign actors. This is the 11th tranche of reforms to our national security legislation framework, but in scale, importance and complexity it completely eclipses the preceding changes.

With respect to the issue of espionage, the EFI bill includes comprehensive new espionage offences that are designed to capture the full range of conduct undertaken and designed to compromise sensitive information and prejudice our national security. These offences will criminalise a broad range of dealings with information, including possessing or receiving information, and protect a broader range of information, including some appropriately unclassified material. The new offences will target not just the person who discloses the relevant information but also the actions of the foreign principal who receives the relevant information. The EFI bill will also, for the first time, criminalise soliciting or procuring a person to engage in espionage and will introduce a new preparation or planning offence which will allow law enforcement agencies to intervene at an earlier stage to prevent harmful conduct from occurring.

The EFI bill will also introduce an offence criminalising economic espionage or the theft of trade secrets, which will apply to dishonest dealings with trade secrets on behalf of a foreign government principal. Until this point, astonishingly and dangerously, no criminal offence in Australia existed to criminalise economic espionage of the type defined in this bill.

Government amendments to the espionage offences and the EFI bill will narrow the scope of the offence at section 91.3—that being dealing with security-classified information—remove the classification of strict liability to elements of the offences, introduce a prior publication defence and require the Attorney-General's certification that information was appropriately security classified prior to prosecution. Government amendments will also provide further clarity to the offences by narrowing the definition of 'security classification' and defining key terms such as 'prejudice to national security' and 'advantaging the national security of a foreign country'.

With respect to foreign interference, the EFI bill will introduce, for the first time, a suite of foreign interference offences into the Criminal Code of the Commonwealth. These offences will complement espionage offences by criminalising a range of other harmful conduct undertaken by foreign principals who seek to interfere with Australia's political, governmental or democratic processes to support their own intelligence activities or to otherwise prejudice Australia's national security. The foreign interference offences will apply where a person's conduct is covert or deceptive, involves threats or menaces, or does not disclose the fact that conduct is undertaken on behalf of a foreign principal. Government amendments to the foreign interference offences will clarify that the offence of supporting a foreign intelligence agency is limited to providing material support.

With respect to secrecy, the EFI bill contains a suite of new Commonwealth secrecy offences which replace sections 70 and 79 of the Commonwealth Crimes Act. The new secrecy offences will apply if the information disclosed is inherently harmful, such as security-classified information, or would otherwise cause demonstrable harm to Australia's national interests. Government amendments to the bill will ensure that there are separate offences that apply with respect to secrecy to Commonwealth officers and non-Commonwealth officers, with the offences applying to non-Commonwealth officers being narrower in scope and attracting lower penalties.

The DEPUTY SPEAKER ( Mr Hogan ): The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour, when the minister will have leave to continue.

Mr PORTER (Pearce—Attorney-General) (16:19): We were at the point where we were noting that defences will apply to ensure that the offences do not apply too broadly, including a defence specifically applying to journalists. Government amendments will ensure that this defence applies to journalists as well as to editorial and support staff who reasonably believe that their conduct was in the public interest. The new secrecy offences ensure that harmful information cannot be released, while also providing appropriate defences to maintain freedom of speech, the press and expression.

With respect to treason, treachery and other threats to security, the EFI bill will update and simplify the longstanding offences of treason and treachery. These are some of the oldest offences on the statute book, and as such they require modernisation and updates to the language to reflect the modern environment and international law concepts of armed conflict.

The EFI bill will also repeal archaic and outdated offences from part II of the Crimes Act. These offences will be modernised and moved to the Criminal Code to ensure that Commonwealth criminal law appropriately supports the needs of the Australian Defence Force and protects Australia's democracy.

The new offences will criminalise threats to Australia's security, including advocating mutiny, assisting prisoners of war to escape, facilitating military-style training for a foreign government, and the use of force, violence or intimidation to interfere with Australian democratic or political rights. Government amendments to these offences include extending the good-faith defence to the offence of advocating mutiny, introducing a defence for staff of the United Nations or the International Committee of the Red Cross for the military-style-training offence, and reducing the penalty for the offence of interference with political rights and duties.

With respect to sabotage, the EFI bill will also introduce comprehensive sabotage offences into the Criminal Code. The new sabotage offences will criminalise conduct causing damage to a broad range of critical infrastructure where it could prejudice Australia's national security. The new offences will apply higher penalties where sabotage offences are committed on behalf of foreign principals and will also contain offences that apply where a person's conduct does not immediately cause damage but leaves an item or system vulnerable to future misuse or exploitation. Government amendments to the EFI bill will also broaden the defence to sabotage offences to include private owners and operators of public infrastructure.

With respect to the Telecommunications (Interception and Access) Act, the final point is that the EFI bill will amend the Telecommunications (Interception and Access) Act 1979 to ensure that the powers under the act are available to investigate the offences contained in the EFI bill.

With respect to the Foreign Influence Transparency Scheme Bill, while it's the case that foreign actors are free to promote their interests in Australia and in our free and open society, this must be done in a lawful, transparent and open way. The FITS Bill will provide transparency for the Australian government and the Australian public about the forms and sources of foreign influence in Australia. Decision-makers in the Australian government and the public should know what interests are being advanced in respect of particular decisions or processes. However, it is difficult to assess the interests of foreign actors when they use intermediaries to advance their interests or activities, such as lobbying or the communication of information or material. This concealment ultimately undermines the ability of the decision-maker and the public to evaluate and reach informed decisions on the basis of those representations.

For the first time, the public and decision-makers in government will have access to information to enable them to accurately assess how foreign sources may be seeking to influence Australia's government and political processes. The FITS Bill will create a scheme that requires persons undertaking certain activities on behalf of a foreign principal to register. The person who registers will be required to disclose information about the nature of their relationship with the foreign principal and activities undertaken pursuant to that relationship. The disclosure requirements will be ongoing, and additional disclosure will be required during elections. Some of the information which a person discloses will be made publicly available, and the FITS Bill also introduces criminal offences for noncompliance with the registry scheme.

The FITS Bill will require persons who undertake activities on behalf of a foreign principal to register under the scheme, depending on who the foreign principal is and the activities that the person undertakes. The term 'foreign principal' in the FITS Bill will capture a foreign government, a foreign political organisation, and persons and entities closely related to foreign governments and foreign political organisations. The FITS Bill will require registration where a person engages in parliamentary or political lobbying, communicates information or material designed to influence debate, or makes certain disbursements. Certain information about registrants and their activities will be made publicly available.

With respect to transparency notices, the FITS Bill will empower the secretary of the department to issue a transparency notice setting out whether a particular entity or individual is related to a foreign government. This mechanism will ensure that a person who undertakes registrable activities on the entity's or individual's behalf will be required to register under the scheme. Transparency notices will assist potential registrants to understand whether they are required to register and will also shed light where a company or individual seeks to conceal their relationship with a foreign principal.

The bill also provides for certain exemptions. The FITS Bill will exempt a range of organisations and persons from registering under the scheme. The exemptions extend to humanitarian assistance, legal advice, diplomatic activities, religious activities, commercial or business pursuits, industry representative bodies, individuals making personal legal representations, registered charities, activities with an artistic purpose, certain registered organisations and certain professions. These exemptions appropriately restrict the application of the scheme to those organisations and persons which seek to influence Australian political and government decisions or processes in a way that threatens Australian institutions.

The FITS Bill will also introduce offences, which will ensure compliance with the scheme. It will be a criminal offence for a person who is liable to register not to be registered under the scheme. (Extension of time granted) Criminal offences will also apply for failing to fulfil responsibilities under the scheme or providing false or misleading information in purported fulfilment of responsibilities and also for destroying records. It will also be a criminal offence not to comply with a notice from the secretary requiring information in relation to the scheme.

By way of conclusion I'd like to thank all of my parliamentary colleagues for recognising the important need for the measures in these two bills. Comprehensive criminal laws are a critical part of Australia's response to the threat of espionage and foreign interference. The EFI bill reflects the government's commitment to addressing this threat and to ensuring that our law enforcement and security agencies have the powers that they need to respond to the broad spectrum of foreign interference and related criminal activities directed against Australia's interests.

Legislative reform is clearly a critical step in shedding light on foreign influence. The FITS Bill reflects the government's commitment to addressing this issue and to ensuring that the public and decision-makers in government will have access to information to enable them to accurately assess how foreign sources may be seeking to influence Australia's government and political processes.

Ultimately, no member of this House—indeed, no citizen of our great democracy—should underestimate the threat being faced by the Australian government, Australian society and Australian democracy. That threat is from new forms of espionage practised in the modern age. These bills are detailed and legally complex, but the central principle of their necessity can be described simply by saying that we cannot protect Australia against modern espionage in the age of Skyfall with counterintelligence laws drafted for the era of Goldfinger. In fact, the threat of espionage wedded to the technologies of a digital age is now catalysed by something even more potentially dangerous. Likely even more dangerous and potentially even more damaging than traditional espionage is the practice that traditional spying now morphs into a massively broad and inventive range of covert foreign interference, or hidden foreign influence, in our democratic systems. The phenomenon of foreign principals attempting to influence our democracy is neither new nor unexpected, but what in the modern age of information technology and digital communications demonstrates true cunning and what can cause immense harm are foreign influence cloaked in the disguise of a purely or uniquely Australian veneer or foreign advocacy channelled by and through a recognised and seemingly independent Australian voice, which might be paid for or directed by foreign principals in a way that is hidden from sight.

Deception has always been at the heart of espionage, and so transparency is the evergreen counterintelligence to propaganda. So it is that this legislative combination of new foreign interference offences and a register to make transparent the links of Australian advocacy to foreign principals brings Australian counterintelligence laws into the modern age. Ian Fleming once said of his most famous character in espionage that boredom was the only vice that he utterly condemned, and indeed literary commentators have noted that this character displayed both a craving for routine and a hatred of boredom. The practice of modern espionage now being encountered in so many Western democracies across the globe—and the prevalence of deception wedded not merely to traditional spying but to interference and attempts to influence democratic outcomes—means that the only certainty our excellent national security agencies have is that there'll be nothing routine about the threats that they will need to counter and that their government will need to legislate accordingly against. I commend these bills to the House.

The DEPUTY SPEAKER ( Mr Irons ): The question is that this bill be now read a second time.

A division having been called and the bells having been rung—

The DEPUTY SPEAKER: As there are fewer than five members on the side for the noes in this division, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Mr Wilkie and Mr Bandt voting no.

Bill read a second time.

Mr PORTER (Pearce—Attorney-General) (16:35): I present a supplementary explanatory memorandum to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017. I also ask leave of the House to move government amendments (1) to (154) as circulated together.

Leave granted.

Mr PORTER: I move government amendments (1) to (154) as circulated together:

(1) Clause 2, page 3 (at the end of the table), add:

[protection for persons providing information voluntarily to the Inspector ‑General]

(2) Schedule 1, page 4 (after line 13), after item 3, insert:

3A At the end of Subdivision A of Division 80 of the Criminal Code

Add:

80.1AAA Expressions also used in the Australian Security Intelligence Organisation Act 1979

The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

(3) Schedule 1, item 5, page 6 (line 15), omit "section 83.4", substitute "sections 83.1 and 83.4".

(4) Schedule 1, item 8, page 6 (after line 28), after the heading to Division 82, insert:

Subdivision A—Preliminary

(5) Schedule 1, item 8, page 7 (before line 1), before the definition of damage to public infrastructure, insert:

advantage: conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

(6) Schedule 1, item 8, page 7 (after line 17), after the definition of national security, insert:

prejudice: embarrassment alone is not sufficient to prejudice Australia's national security.

(7) Schedule 1, item 8, page 8 (after line 25), after section 82.2, insert:

82.2A Expressions also used in the Australian Security Intelligence Organisation Act 1979

The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

Subdivision B—Offences

(8) Schedule 1, item 8, page 11 (lines 17 to 24), omit paragraph 82.7(d), substitute:

(d) the person engages in the conduct with the intention that prejudice to Australia's national security will occur (whether at the time or at a future time).

(9) Schedule 1, item 8, page 12 (lines 6 to 13), omit paragraph 82.8(d), substitute:

(d) the person engages in the conduct reckless as to whether prejudice to Australia's national security will occur (whether at the time or at a future time).

(10) Schedule 1, item 8, page 13 (lines 1 to 9), omit section 82.10, substitute:

82.10 Defences

(1) It is a defence to a prosecution for an offence by a person against this Division if:

(a) the person is, at the time of the offence, a public official; and

(b) the person engaged in the conduct in good faith in the course of performing duties as a public official; and

(c) the conduct is reasonable in the circumstances for the purpose of performing those duties.

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

(2) It is a defence to a prosecution for an offence by a person against this Division if:

(a) the person is, at the time of the offence:

   (i) an owner or operator of the public infrastructure; or

   (ii) acting on behalf of, or with the consent of, an owner or operator of the public infrastructure; and

(b) the person engaged in the conduct in good faith; and

(c) the conduct is within the lawful authority of the owner or operator; and

(d) the conduct is reasonable in the circumstances for the purpose of exercising that lawful authority.

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

(11) Schedule 1, item 8, page 15 (before line 2), before section 83.1, insert:

83.1A Expressions also used in the Australian Security Intelligence Organisation Act 1979

The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

(12) Schedule 1, item 8, page 15 (before line 19), before the penalty, insert:

Note: The defence in section 80.3 for acts done in good faith applies to this offence.

(13) Schedule 1, item 8, page 15 (after line 19), after subsection 83.1(1) (after the penalty), insert:

(1A) For the purposes of this section:

(a) a person advocates mutiny if the person counsels, promotes, encourages or urges mutiny; and

(b) a reference to advocating mutiny includes a reference to:

   (i) advocating mutiny even if mutiny does not occur; and

   (ii) advocating a specific mutiny; and

   (iii) advocating more than one mutiny.

(14) Schedule 1, item 8, page 16 (line 15), at the end of the heading to section 83.3, add " etc.".

(15) Schedule 1, item 8, page 16 (line 24), at the end of subparagraph 83.3(1) (c) (i), add "or a foreign political organisation within the meaning of that Part (see section 90.1)".

(16) Schedule 1, item 8, page 16 (lines 26 and 27), omit "a person acting on behalf of a foreign government principal", substitute "foreign political organisation, or a person acting on behalf of a foreign government principal or foreign political organisation".

(17) Schedule 1, item 8, page 17 (after line 27), after subsection 83.3(4), insert:

Defence—humanitarian assistance etc.

(4A) Subsection (1) does not apply to a person in relation to conduct engaged in by the person solely or primarily for one or more of the following purposes:

(a) providing aid of a humanitarian nature;

(b) performing an official duty for:

   (i) the United Nations or an agency of the United Nations; or

   (ii) the International Committee of the Red Cross.

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

(18) Schedule 1, item 8, page 18 (line 5), omit "another", substitute "other".

(19) Schedule 1, item 8, page 18 (line 11), omit "10", substitute "3".

(20) Schedule 1, item 8, page 18 (lines 28 and 29), omit "or (3)", substitute ", (3) or (4A)".

(21) Schedule 1, item 8, page 18 (line 30), after "against section", insert "83.1 or".

(22) Schedule 1, item 10, page 19 (before line 4), before the definition of deal, insert:

advantage: conduct will not advantage the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.

concerns: information or an article concerns Australia's national security if the information or article relates to, or is connected with, or is of interest or importance to, or affects, Australia's national security.

(23) Schedule 1, item 10, page 19 (line 16), after "See also", insert "the definition of make available in this subsection and".

(24) Schedule 1, item 10, page 19 (lines 19 and 20), omit the definition of foreign political organisation, substitute:

foreign political organisation includes:

(a) a foreign political party; and

(b) a foreign organisation that exists primarily to pursue political objectives; and

(c) a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.

(25) Schedule 1, item 12, page 19 (before line 27), before the definition of national security, insert:

make available information or an article includes:

(a) place it somewhere it can be accessed by another person; and

(b) give it to an intermediary to give to the intended recipient; and

(c) describe how to obtain access to it, or describe methods that are likely to facilitate access to it (for example, set out the name of a website, an IP address, a URL, a password, or the name of a newsgroup).

(26) Schedule 1, item 12, page 19 (after line 27), after the definition of national security, insert:

prejudice: embarrassment alone is not sufficient to prejudice Australia's national security.

(27) Schedule 1, item 16, page 20 (after line 17), after paragraph 90.2(a), insert:

(aa) a foreign political organisation;

(28) Schedule 1, item 16, page 20 (line 23), after "paragraph", insert "(aa),".

(29) Schedule 1, item 16, page 20 (line 26), after "paragraph (a),", insert "(aa),".

(30) Schedule 1, item 16, page 21 (line 11), omit paragraph (g) of the definition of foreign government principal in section 90.3.

(31) Schedule 1, item 16, page 22 (lines 9 and 10), omit subsection 90.5(1), substitute:

(1) Security classification means:

(a) a classification of secret or top secret that is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:

   (i) for a classification of secret—that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals; or

   (ii) for a classification of top secret—that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest; or

(b) any equivalent classification or marking prescribed by the regulations.

(1A) For the purposes of a reference, in an element of an offence in this Part, to security classification, strict liability applies to the element that:

(a) a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph (1) (a) (i) or (ii); or

(b) a classification or marking is prescribed by the regulations as mentioned in paragraph (1) (b).

(32) Schedule 1, item 16, page 22 (lines 13 and 14), omit "policies of the Government of the Commonwealth in relation to protective security", substitute "policy framework mentioned in paragraph (1) (a)".

(33) Schedule 1, item 16, page 22 (line 19), at the end of subsection 90.5(3), add ", if the instrument or other writing is publicly available".

(34) Schedule 1, item 16, page 22 (after line 19), after section 90.5, insert:

90.6 Expressions also used in the Australian Security Intelligence Organisation Act 1979

The meaning of an expression in this Part does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

(35) Schedule 1, item 17, page 22 (line 25), after " will be", insert " communicated or".

(36) Schedule 1, item 17, page 23 (line 7), after "being", insert "communicated or".

(37) Schedule 1, item 17, page 23 (line 22), after "being", insert "communicated or".

(38) Schedule 1, item 17, page 23 (lines 25 and 26), omit subsection 91.1(3).

(39) Schedule 1, item 17, page 24 (line 5), after " will be", insert " communicated or".

(40) Schedule 1, item 17, page 24 (line 13), after "being", insert "communicated or".

(41) Schedule 1, item 17, page 24 (line 24), after "being", insert "communicated or".

(42) Schedule 1, item 17, page 25 (after line 3), after paragraph 91.3(1) (a), insert:

(aa) the person deals with the information or article for the primary purpose of communicating the information or article, or making it available, to a foreign principal or a person acting on behalf of a foreign principal; and

(43) Schedule 1, item 17, page 25 (line 5), after "being", insert "communicated or".

(44) Schedule 1, item 17, page 25 (lines 7 to 9), omit paragraph 91.3(1) (c), substitute:

(c) the information or article has a security classification.

(45) Schedule 1, item 17, page 25 (line 11), omit "paragraph (1) (b)", substitute "paragraphs (1) (aa) and (b)".

(46) Schedule 1, item 17, page 25 (line 15), omit subsection 91.3(3), substitute:

(3) Strict liability applies to paragraph (1) (aa).

(47) Schedule 1, item 17, page 25 (line 17), after "for an offence", insert "by a person".

(48) Schedule 1, item 17, page 25 (line 26), omit "of an offence", substitute "for an offence by a person".

(49) Schedule 1, item 17, page 25 (after line 32), at the end of section 91.4, add:

(3) It is a defence to a prosecution for an offence by a person against section 91.1, in which the prosecution relies on subparagraph 91.1(1) (c) (ii) or (2) (c) (ii), or against section 91.3, if:

(a) the person did not make or obtain the information or article by reason of any of the following:

   (i) the person being, or having been, a Commonwealth officer (within the meaning of Part 5.6);

   (ii) the person being otherwise engaged to perform work for a Commonwealth entity;

   (iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and

(b) the information or article has already been communicated, or made available, to the public (the prior publication); and

(c) the person was not involved in the prior publication (whether directly or indirectly); and

(d) at the time the person deals with the information or article, the person believes that doing so will not prejudice Australia's national security; and

(e) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.

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

(50) Schedule 1, item 17, page 26 (line 15), after "section 91.1", insert "(other than subsection 91.1(1))".

(51) Schedule 1, item 17, page 26 (lines 19 and 20), omit subparagraph 91.6(1) (b) (i).

(52) Schedule 1, item 17, page 26 (line 29), at the end of subparagraph 91.6(1) (b) (v), add "allowing access to information that has, or articles that have, a security classification of at least secret".

(53) Schedule 1, item 17, page 27 (line 4), omit subsection 91.6(3).

(54) Schedule 1, item 17, page 29 (line 16), after "for an offence", insert "by a person".

(55) Schedule 1, item 17, page 29 (line 25), omit "of an offence", substitute "for an offence by a person".

(56) Schedule 1, item 17, page 31 (line 29), after "for an offence", insert "by a person".

(57) Schedule 1, item 17, page 35 (line 1), omit "deceptive", substitute "involves deception".

(58) Schedule 1, item 17, page 36 (line 18), after "for an offence", insert "by a person".

(59) Schedule 1, item 17, page 37 (line 5), omit "support or resources", substitute "resources, or material support,".

(60) Schedule 1, item 17, page 37 (line 14), omit "support or resources", substitute "resources, or material support, ".

(61) Schedule 1, item 17, page 38 (line 18), after "for an offence", insert "by a person".

(62) Schedule 1, item 18, page 40 (lines 6 to 8), omit subsection 93.1(1), substitute:

(1) Proceedings for the commitment of a person for trial for an offence against this Part must not be instituted without:

(a) the written consent of the Attorney‑General; and

(b) for proceedings that relate to information or an article that has a security classification—a certification by the Attorney‑General that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information or article had a security classification.

(63) Schedule 1, item 18, page 40 (line 10), omit "consent having been given", substitute "consent or certification having been obtained".

(64) Schedule 1, item 18, page 40 (line 20), omit "subsection 91.4(1)", substitute "section 91.4".

(65) Schedule 1, item 18, page 40 (line 23), omit "subsection 91.9(1)", substitute "section 91.9".

(66) Schedule 1, item 20, page 41 (lines 3 to 17), omit section 93.3.

(67) Schedule 1, item 21, page 42 (line 13), omit ", document or other article", substitute "or document".

(68) Schedule 1, item 22, page 43 (lines 6 and 7), omit subsection 132.8A(3).

(69) Schedule 1, item 24, page 43 (before line 13), before the definition of constitutional trade and commerce, insert:

Australian Government security clearance means a security clearance given by the Australian Government Security Vetting Agency or by another Commonwealth, State or Territory agency that is authorised or approved by the Commonwealth to issue security clearances.

(70) Schedule 1, item 28, page 45 (line 15), after "related offences)", insert "other than section 83.4 (interference with political rights and duties)".

(71) Schedule 1, item 29, page 45 (line 25), after "(sabotage)", insert "other than section 82.9 (preparing for or planning sabotage offence)".

(72) Schedule 1, item 29, page 45 (after line 27), after subparagraph 35A(1) (a) (iib), insert:

   (iic) a provision of Division 92 of the Criminal Code (foreign interference);

(73) Schedule 1, item 39, page 47 (lines 16 to 19), omit all the words from and including "if it is alleged" to the end of paragraph 15AA(2) (e), substitute "if:

   (i) the death of a person is alleged to have been caused by conduct that is a physical element of the offence; or

   (ii) conduct that is a physical element of the offence carried a substantial risk of causing the death of a person.".

(74) Schedule 1, page 47 (after line 29), after item 42, insert:

42A Paragraph 19AG(1) (c)

Omit "or 91".

42B After paragraph 19AG(1) (c)

Insert:

; (d) an offence against subsection 91.1(1) or 91.2(1) of the Criminal Code.

(75) Schedule 1, page 47 (after line 31), after item 43, insert:

Criminal Code Act 1995

43A Paragraph 5(2) (d)

Omit "treason, urging violence and advocating terrorism or genocide", substitute "treason and related offences".

43B Paragraph 5(2) (e)

Omit "offences relating to espionage and similar activities", substitute "espionage and related offences".

(76) Schedule 1, page 48 (after line 19), after item 48, insert:

48A Subparagraphs 203(1) (c) (ii) and (iia)

Omit "(i) or (ia)", substitute "(ia) or (ib)".

(77) Schedule 1, page 48 (after line 26), at the end of the Schedule, add:

Part 3—Review by Independent National Security Legislation Monitor

Independent National Security Legislation Monitor Act 2010

51 Subsection 6(1B)

Repeal the subsection, substitute:

(1B) The Independent National Security Legislation Monitor must, as soon as practicable after the third anniversary of the day the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 receives the Royal Assent, begin a review under paragraph (1) (a) of the following provisions of Chapter 5 of the Criminal Code:

(a) Division 82 (sabotage);

(b) Part 5.2 (espionage and related offences);

(c) Part 5.6 (secrecy of information).

(78) Schedule 2, item 6, page 50 (lines 1 to 6), omit paragraph (a) of the definition of cause harm to Australia's interests in subsection 121.1(1), substitute:

(a) interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or

(79) Schedule 2, item 6, page 50 (lines 22 to 25), omit paragraphs (d) and (e) of the definition of cause harm to Australia's interests in subsection 121.1(1).

(80) Schedule 2, item 6, page 50 (line 26), omit "the public", substitute "the Australian public".

(81) Schedule 2, item 6, page 50 (line 27), omit "the public.", substitute "the Australian public; or".

(82) Schedule 2, item 6, page 50 (after line 27), at the end of the definition of cause harm to Australia's interests in subsection 121.1(1), add:

(g) harm or prejudice the security or defence of Australia.

(83) Schedule 2, item 6, page 51 (line 4), at the end of the definition of Commonwealth officer in subsection 121.1(1), add:

; but does not include an officer or employee of, or a person engaged by, the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.

(84) Schedule 2, item 6, page 51 (line 5), omit "the meaning given by subsection 90.1(1)", substitute "the same meaning as in Part 5.2".

(85) Schedule 2, item 6, page 51 (after line 5), at the end of the definition of deal in subsection 121.1(1), add:

Note: For the meaning of deal in that Part, see subsections 90.1(1) and (2).

(86) Schedule 2, item 6, page 51 (after line 12), after the definition of domestic intelligence agency in subsection 121.1(1), insert:

foreign military organisation means:

(a) the armed forces of the government of a foreign country; or

(b) the civilian component of:

   (i) the Department of State of a foreign country; or

   (ii) a government agency in a foreign country;

that is responsible for the defence of the country.

(87) Schedule 2, item 6, page 51 (lines 17 to 19), omit paragraph (b) of the definition of inherently harmful information in subsection 121.1(1).

(88) Schedule 2, item 6, page 51 (lines 23 to 26), omit paragraph (d) of the definition of inherently harmful information in subsection 121.1(1).

(89) Schedule 2, item 6, page 52 (after line 2), after the definition of Regulatory Powers Act in subsection 121.1(1), insert:

security classification has the meaning given by section 90.5.

(90) Schedule 2, item 6, page 52 (line 4), omit "(within the meaning of section 90.4)".

(91) Schedule 2, item 6, page 52 (after line 9), at the end of section 121.1, add:

(3) For the purposes of a reference, in an element of an offence in this Part, to security classified information or security classification, strict liability applies to the element that:

(a) a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1) (a) (i) or (ii); or

(b) a classification or marking is prescribed by the regulations as mentioned in paragraph 90.5(1) (b).

Note: See the definitions of security classified information in subsection (1) and security classification in section 90.5.

(92) Schedule 2, item 6, page 52 (line 17), at the end of subsection 121.2(2), add ", if the instrument or other writing is publicly available".

(93) Schedule 2, item 6, page 52 (lines 18 to 28), omit section 121.3.

(94) Schedule 2, item 6, page 53 (line 2), omit the heading to section 122.1, substitute:

122.1 Communication and other dealings with inherently harmful information by current and former Commonwealth officers etc.

(95) Schedule 2, item 6, page 53 (line 7), omit "or any other".

(96) Schedule 2, item 6, page 53 (line 11), omit "Note", substitute "Note 1".

(97) Schedule 2, item 6, page 53 (after line 11), after the note, insert:

Note 2: The fault elements for this offence are intention for paragraph (1) (a) and recklessness for paragraphs (1) (b) and (c) (see section 5.6).

(98) Schedule 2, item 6, page 53 (line 12), omit the penalty, substitute:

Penalty: Imprisonment for 7 years.

(99) Schedule 2, item 6, page 53 (line 18), omit "or any other".

(100) Schedule 2, item 6, page 53 (before line 22), before the penalty, insert:

Note: The fault elements for this offence are intention for paragraph (2) (a) and recklessness for paragraphs (2) (b) and (c) (see section 5.6).

(101) Schedule 2, item 6, page 53 (line 22), omit the penalty, substitute:

Penalty: Imprisonment for 3 years.

(102) Schedule 2, item 6, page 54 (line 1), omit "or any other".

(103) Schedule 2, item 6, page 54 (before line 5), before the penalty, insert:

Note: The fault elements for this offence are intention for paragraph (3) (a) and recklessness for paragraphs (3) (b) and (c) (see section 5.6).

(104) Schedule 2, item 6, page 54 (line 5), omit the penalty, substitute:

Penalty: Imprisonment for 3 years.

(105) Schedule 2, item 6, page 54 (after line 11), after paragraph 122.1(4) (c), insert:

(ca) the failure to comply with the direction results in a risk to the security of the information; and

(106) Schedule 2, item 6, page 54 (line 13), omit "or any other".

(107) Schedule 2, item 6, page 54 (before line 17), before the penalty, insert:

Note: The fault elements for this offence are intention for paragraph (4) (c) and recklessness for paragraphs (4) (a), (b), (ca), (d) and (e) (see section 5.6).

(108) Schedule 2, item 6, page 54 (line 17), omit the penalty, substitute:

Penalty: Imprisonment for 3 years.

(109) Schedule 2, item 6, page 54 (lines 18 and 19), omit subsection 122.1(5).

(110) Schedule 2, item 6, page 54 (line 20), omit the heading to section 122.2, substitute:

122.2 Conduct by current and former Commonwealth officers etc. causing harm to Australia's interests

(111) Schedule 2, item 6, page 54 (line 29), omit "or any other".

(112) Schedule 2, item 6, page 55 (line 4), omit the penalty, substitute:

Penalty: Imprisonment for 7 years.

(113) Schedule 2, item 6, page 55 (line 13), omit "or any other".

(114) Schedule 2, item 6, page 55 (line 17), omit the penalty, substitute:

Penalty: Imprisonment for 3 years.

(115) Schedule 2, item 6, page 55 (line 31), omit "or any other".

(116) Schedule 2, item 6, page 56 (line 1), omit the penalty, substitute:

Penalty: Imprisonment for 3 years.

(117) Schedule 2, item 6, page 56 (line 13), omit "or any other".

(118) Schedule 2, item 6, page 56 (line 17), omit the penalty, substitute:

Penalty: Imprisonment for 3 years.

(119) Schedule 2, item 6, page 56 (lines 24 to 26), omit subparagraph 122.3(1) (b) (i).

(120) Schedule 2, item 6, page 56 (line 28), omit "containing the relevant information".

(121) Schedule 2, item 6, page 57 (line 6), at the end of subparagraph 122.3(1) (b) (v), add "allowing the person to access information that has a security classification of at least secret".

(122) Schedule 2, item 6, page 57 (line 9), omit "15 years—imprisonment for 20", substitute "7 years—imprisonment for 10".

(123) Schedule 2, item 6, page 57 (line 11), omit "5 years—imprisonment for 10", substitute "3 years—imprisonment for 5".

(124) Schedule 2, item 6, page 57 (line 15), omit subsection 122.3(3).

(125) Schedule 2, item 6, page 57 (lines 23 and 24), omit the heading to section 122.4, substitute:

122.4 Unauthorised disclosure of information by current and former Commonwealth officers etc.

(126) Schedule 2, item 6, page 58 (after line 1), at the end of section 122.4, add:

Sunset provision

(3) This section does not apply in relation to any communication of information that occurs after the end of 5 years after this section commences.

(127) Schedule 2, item 6, page 58 (after line 1), after section 122.4, insert:

122.4A Communicating and dealing with information by non ‑Commonwealth officers etc.

Communication of information

(1) A person commits an offence if:

(a) the person communicates information; and

(b) the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and

(c) the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and

(d) any one or more of the following applies:

   (i) the information has a security classification of secret or top secret;

   (ii) the communication of the information damages the security or defence of Australia;

   (iii) the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth;

   (iv) the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.

Note 1: For exceptions to the offences in this section, see section 122.5.

Note 2: The fault elements for this offence are intention for paragraph (1) (a) and recklessness for paragraphs (1) (b) to (d) (see section 5.6).

Penalty: Imprisonment for 5 years.

Other dealings with information

(2) A person commits an offence if:

(a) the person deals with information (other than by communicating it); and

(b) the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and

(c) the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and

(d) any one or more of the following applies:

   (i) the information has a security classification of secret or top secret;

   (ii) the dealing with the information damages the security or defence of Australia;

   (iii) the dealing with the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against of a law of the Commonwealth;

   (iv) the dealing with the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.

Note: The fault elements for this offence are intention for paragraph (2) (a) and recklessness for paragraphs (2) (b) to (d) (see section 5.6).

Penalty: Imprisonment for 2 years.

Proof of identity not required

(3) In proceedings for an offence against this section, the prosecution is not required to prove the identity of the other person referred to in paragraph (1) (c) or (2) (c).

(128) Schedule 2, item 6, page 58 (line 4), omit " Commonwealth officer", substitute " public official".

(129) Schedule 2, item 6, page 58 (line 8), omit "Commonwealth officer", substitute "public official".

(130) Schedule 2, item 6, page 58 (line 11), omit "dealt with, removed or held", substitute "communicated, removed, held or otherwise dealt with".

(131) Schedule 2, item 6, page 58 (lines 15 and 16), omit the note, substitute:

Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).

(132) Schedule 2, item 6, page 58 (lines 19 and 20), omit "the information in relation to which the offence is committed is information that", substitute "the relevant information".

(133) Schedule 2, item 6, page 58 (lines 25 to 27), omit the heading to subsection 122.5(3), substitute:

Information communicated etc. to integrity agency

(134) Schedule 2, item 6, page 58 (lines 29 and 30), omit "relating to the communication of information that the person communicated the information", substitute "that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it".

(135) Schedule 2, item 6, page 59 (after line 6), after subparagraph 122.5(3) (a) (ii), insert:

   (iia) the Australian Information Commissioner, a member of the staff of the Office of the Australian Information Commissioner, or a consultant engaged under the Australian Information Commissioner Act 2010;

(136) Schedule 2, item 6, page 59 (line 11), after "the Ombudsman", insert ", the Australian Information Commissioner".

(137) Schedule 2, item 6, page 59 (lines 15 and 16), omit the note, substitute:

Note: A person mentioned in paragraph (3) (a) does not bear an evidential burden in relation to the matters in this subsection (see subsection (12)).

(138) Schedule 2, item 6, page 59 (lines 17 to 24), omit subsection 122.5(4), substitute:

Information communicated etc. in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982

(4) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, in accordance with:

(a) the Public Interest Disclosure Act 2013; or

(b) the Freedom of Information Act 1982.

Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).

Information communicated etc. for the purpose of reporting offences and maladministration

(4A) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of reporting, to an appropriate agency of the Commonwealth, a State or a Territory:

(a) a criminal offence, or alleged criminal offence, against a law of the Commonwealth; or

(b) maladministration relating to the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or

(c) maladministration relating to the performance of functions of the Australian Federal Police under:

   (i) the Australian Federal Police Act 1979; or

   (ii) the Proceeds of Crime Act 2002.

Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).

(139) Schedule 2, item 6, page 59 (line 25), after " communicated", insert " etc.".

(140) Schedule 2, item 6, page 59 (lines 27 and 28), omit "relating to the communication of information that the person communicated the information", substitute "that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it,".

(141) Schedule 2, item 6, page 59 (after line 31), after subsection 122.5(5), insert:

Information communicated etc. for the purposes of obtaining or providing legal advice

(5A) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of obtaining or providing, in good faith, legal advice in relation to:

(a) an offence against this Part; or

(b) the application of any right, privilege, immunity or defence (whether or not in this Part) in relation to such an offence;

whether that advice was obtained or provided before or after the person engaged in the conduct constituting the offence.

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

(142) Schedule 2, item 6, page 60 (lines 1 to 27), omit subsections 122.5(6) and (7), substitute:

Information communicated etc. by persons engaged in business of reporting news etc.

(6) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information in the person's capacity as a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media, and:

(a) at that time, the person reasonably believed that engaging in that conduct was in the public interest (see subsection (7)); or

(b) the person:

   (i) was, at that time, a member of the administrative staff of an entity that was engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media; and

   (ii) acted under the direction of a journalist, editor or lawyer who was also a member of the staff of the entity, and who reasonably believed that engaging in that conduct was in the public interest (see subsection (7)).

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

(7) Without limiting paragraph (6) (a) or (b), a person may not reasonably believe that communicating, removing, holding or otherwise dealing with information is in the public interest if:

(a) engaging in that conduct would be an offence under section 92 of the Australian Security Intelligence Organisation Act 1979 (publication of identity of ASIO employee or ASIO affiliate); or

(b) engaging in that conduct would be an offence under section 41 of the Intelligence Services Act 2001 (publication of identity of staff); or

(c) engaging in that conduct would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 (offences relating to Commonwealth, Territory, State participants or information about the national witness protection program); or

(d) that conduct was engaged in for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation.

(143) Schedule 2, item 6, page 60 (line 30), omit "relating to the communication of information".

(144) Schedule 2, item 6, page 60 (line 31), omit "the information", substitute "the relevant information".

(145) Schedule 2, item 6, page 61 (lines 8 and 9), omit "the communication, the person believes that the communication", substitute "the communication, removal, holding or dealing, the person believes that engaging in that conduct".

(146) Schedule 2, item 6, page 61 (line 17), omit "relating to dealing with information".

(147) Schedule 2, item 6, page 61 (line 18), omit "the information", substitute "the relevant information".

(148) Schedule 2, item 6, page 61 (line 27), omit "dealing", substitute "communication, removal, holding or dealing".

(149) Schedule 2, item 6, page 62 (line 1), omit "dealing", substitute "communication, removal, holding or dealing".

(150) Schedule 2, item 6, page 62 (after line 6), at the end of section 122.5, add:

Removing, holding or otherwise dealing with information for the purposes of communicating information

(11) For the purposes of subsection (3), (4), (5) or (5A), it is not necessary to prove that information, that was removed, held or otherwise dealt with for the purposes of communicating it, was actually communicated.

Burden of proof for integrity agency officials

(12) Despite subsection 13.3(3), in a prosecution for an offence against this Division, a person mentioned in subparagraph (3) (a) (i), (ii), (iia) or (iii) does not bear an evidential burden in relation to the matter in:

(a) subsection (1), (4) or (4A); or

(b) either of the following:

   (i) subparagraph (3) (a) (i), (ii), (iia) or (iii);

   (ii) paragraph (3) (b), to the extent that that paragraph relates to the Inspector‑General of Intelligence and Security, the Ombudsman, the Australian Information Commissioner or the Law Enforcement Integrity Commissioner.

Defences do not limit each other

(13) No defence in this section limits the operation of any other defence in this section.

(151) Schedule 2, item 6, page 63 (after line 9), at the end of Division 123, add:

123.4 Effect of this Part on other rights, privileges, immunities or defences

Nothing in this Part limits or affects any other right, privilege, immunity or defence existing apart from this Part.

123.5 Requirements before proceedings can be initiated

(1) Proceedings for the commitment of a person for trial for an offence against this Part must not be instituted without:

(a) the written consent of the Attorney‑General; and

(b) for proceedings that relate to security classified information—a certification by the Attorney‑General that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information had a security classification.

(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent or certification having been obtained:

(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;

(b) a person may be charged with the offence;

(c) a person so charged may be remanded in custody or on bail.

(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised in a way mentioned in section 122.5.

(152) Schedule 2, item 11, page 64 (lines 15 to 17), omit the item.

(153) Schedule 5, item 5, page 75 (lines 2 to 5), omit subparagraph 12(7) (a) (vi), substitute:

   (vi) relationships with foreign principals;

(154) Page 75 (after line 11), at the end of the Bill, add:

Schedule 6—Protection for persons providing information voluntarily to the Inspector ‑General

Inspector ‑General of Intelligence and Security Act 1986

1 After section 34A

Insert:

34B Protection for persons providing information voluntarily to the Inspector ‑General

(1) This section applies in relation to a person if the person voluntarily provides, or makes available, information or documents to the Inspector‑General for any of the following purposes:

(a) making a complaint under Division 2 of Part II;

(b) the Inspector‑General conducting an inspection under section 9A;

(c) the Inspector‑General conducting a preliminary inquiry into a complaint under section 14;

(d) the Inspector‑General conducting an inquiry under Division 3 of Part II.

Person not liable to penalties under Commonwealth laws

(2) The person is not (subject to subsection (3)) liable to a penalty under any law of the Commonwealth for providing or making available the information or documents in accordance with subsection (1).

Exceptions

(3) Subsection (2) does not apply:

(a) in relation to proceedings for an offence against:

   (i) section 137.1 or 137.2 (false or misleading information and documents), section 145.1 (using forged document) or 149.1 (obstructing Commonwealth officials) of the Criminal Code; or

   (ii) Division 3 of Part III of the Crimes Act 1914 (offences relating to evidence and witnesses); or

   (iii) section 6 of the Crimes Act 1914, or section 11.1, 11.4 or 11.5 of the Criminal Code, in relation to an offence referred to in subparagraph (i) or (ii); or

(b) if the provision:

   (i) is enacted after the commencement of this section; and

   (ii) is expressed to have effect despite this section.

Question agreed to.

Bill, as amended, agreed to.

Mr PORTER (Pearce—Attorney-General) (16:36): by leave—I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

The DEPUTY SPEAKER ( Mr Irons ) (16:37): The question is that this bill be now read a second time.

A division having been called and the bells having been rung—

The DEPUTY SPEAKER: As there are fewer than five members on the side for the noes in this division, I declare the question negated in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Mr Bandt and Mr Wilkie voting no.

Bill read a second time.

Mr PORTER (Pearce—Attorney-General) (16:42): I present a supplementary explanatory memorandum to the bill, being the Foreign Influence Transparency Scheme Bill 2017. I also ask leave of the House to move government amendments (1) to (126) together.

Leave granted.

Mr PORTER: I move government amendments (1) to (126) together:

(1) Clause 3, page 2 (line 16), omit ", foreign businesses".

(2) Clause 4, page 2 (line 23) to page 3 (line 2), omit "whether the person has recently held a senior Commonwealth position (including as a member of Parliament)", substitute "the person's former status".

(3) Clause 6, page 3 (lines 18 and 19), omit the clause.

(4) Page 5 (after line 21), at the end of Division 1, add:

9A Relationship of this Act to certain privileges and immunities

Parliamentary privilege

(1) To avoid doubt, this Act does not affect the law relating to the powers, privileges and immunities of any of the following:

(a) each House of the Parliament;

(b) the members of each House of the Parliament;

(c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.

Legal professional privilege

(2) To avoid doubt, this Act does not affect the law relating to legal professional privilege.

Effect on Secretary ' s power to obtain information and documents

(3) In particular:

(a) the Secretary's powers under sections 45 and 46 do not extend to requiring a person to give information, or produce documents or copies of documents, if:

   (i) the information or documents are protected by a privilege or immunity mentioned in subsection (1) or (2); or

   (ii) complying with the requirement would involve a breach of a privilege or immunity mentioned in subsection (1) or (2); and

(b) the person need not comply with any purported requirement to that effect.

(5) Clause 10, page 6 (before line 4), before the definition of approved form, insert:

applicable disallowance period: see subsection 53(5).

(6) Clause 10, page 6 (lines 13 to 24), omit the definition of broadcaster.

(7) Clause 10, page 7 (line 6), omit "subsection 13(1)", substitute "section 13".

(8) Clause 10, page 7 (lines 7 to 30), omit the definition of controlled.

(9) Clause 10, page 7 (after line 33), after the definition of deal, insert:

designated position holder means:

(a) a Minister; or

(b) a member of the Parliament; or

(c) a person employed under section 13 or 20 of the Members of Parliament (Staff) Act 1984 who is a member of the staff of a Minister and whose position is at or above the level of Senior Advisor; or

(d) an Agency Head (within the meaning of the Public Service Act 1999); or

(e) a deputy agency head (however described); or

(f) the holder of an office established by or under a law of the Commonwealth and equivalent to that of Agency Head or deputy agency head; or

(g) the holder of an office of the Commonwealth as an Ambassador or High Commissioner, in a country or place outside Australia.

(10) Clause 10, page 8 (lines 5 to 9), omit the definition of donor activity, substitute:

disbursement activity: a person undertakes disbursementactivity if:

(a) the person disburses money or things of value; and

(b) neither the person nor a recipient of the disbursement is required to disclose it under Division 4, 5 or 5A of Part XX of the Commonwealth Electoral Act 1918.

(11) Clause 10, page 8 (after line 13), after the definition of federal election, insert:

final transparency notice: see subsection 14C(4).

(12) Clause 10, page 8 (lines 14 to 21), omit the definition of foreign business.

(13) Clause 10, page 8 (after line 31), after the definition of foreign government, insert:

foreign government related entity means a person, other than an individual, who is related to a foreign principal that is a foreign government or a foreign political organisation in one or more of the following ways:

(a) if the person is a company—one or more of the following applies:

   (i) the foreign principal holds more than 15% of the issued share capital of the company;

   (ii) the foreign principal holds more than 15% of the voting power in the company;

   (iii) the foreign principal is in a position to appoint at least 20% of the company's board of directors;

   (iv) the directors (however described) of the company are accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign principal;

   (v) the foreign principal is in a position to exercise, in any other way, total orsubstantial control over the company;

(b) if the person is not a company—either of the following applies:

   (i) the members of the executive committee (however described) of the person are accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign principal;

   (ii) the foreign principal is in a position to exercise, in any other way, total orsubstantial control over the person;

(c) if the person is a person other than a body politic and the foreign principal is a foreign political organisation:

   (i) a director, officer or employee of the person, or any part of the person, is required to be a member or part (however described) of that foreign political organisation; and

   (ii) that requirement is contained in a law, or in the constitution, rules or other governing documents by which the person is constituted or according to which the person operates.

Note: A transparency notice issued under Division 3 of this Part may state that a person is a foreign government related entity.

foreign government related individual means an individual:

(a) who is neither an Australian citizen nor a permanent Australian resident; and

(b) who is related to a foreign principal that is a foreign government, foreign government related entity or foreign political organisation in either or both of the following ways:

   (i) the individual is accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign principal;

   (ii) the foreign principal is in a position to exercise, in any other way, total or substantial control over the individual.

Note: A transparency notice issued under Division 3 of this Part may state that a person is a foreign government related individual.

(14) Clause 10, page 8 (line 32), omit the definition of foreign political organisation, substitute:

foreign political organisation includes:

(a) a foreign political party; and

(b) a foreign organisationthat exists primarily to pursue political objectives.

(15) Clause 10, page 9 (line 3), omit "public enterprise", substitute "government related entity".

(16) Clause 10, page 9 (lines 5 to 7), omit paragraphs (d) and (e) of the definition of foreign principal, substitute:

(d) a foreign government related individual.

(17) Clause 10, page 9 (lines 8 to 10), omit the definition of foreign public enterprise.

(18) Clause 10, page 9 (after line 10), after the definition of foreign public enterprise, insert:

former Cabinet Minister, at a particular time, means a person:

(a) who was a member of the Cabinet at any time before the particular time; and

(b) who is not at the particular time a designated position holder.

(19) Clause 10, page 9 (line 31), omit the definition of periodical.

(20) Clause 10, page 10 (after line 16), after the definition of political or governmental influence, insert:

provisional transparency notice: see subsection 14B(1).

(21) Clause 10, page 10 (lines 18 to 22), omit the definition of recent Cabinet Minister.

(22) Clause 10, page 10 (after line 22), after the definition of recent Cabinet Minister, insert:

recent designated position holder, at a particular time, means a person:

(a) who was a designated position holder at any time in the 15 years before the particular time; and

(b) who is not at the particular time a designated position holder.

(23) Clause 10, page 10 (lines 23 to 28), omit the definition of recent holder of a senior Commonwealth position.

(24) Clause 10, page 10 (line 29) to page 11 (line 2), omit the definition of recent Minister or member of Parliament.

(25) Clause 10, page 11 (lines 11 to 14), omit the definition of registrable arrangement, substitute:

registrable arrangement: see section 13A.

(26) Clause 10, page 11 (lines 18 to 20), omit ", the rules, the Foreign Influence Transparency Scheme (Charges Imposition) Act 2017 and the regulations made under that Act", substitute "and the rules".

(27) Clause 10, page 11 (line 22), omit "subsection 51(1)", substitute "section 51".

(28) Clause 10, page 11 (lines 24 to 30), omit the definition of senior Commonwealth position.

(29) Clause 10, page 11 (after line 30), after the definition of senior Commonwealth position, insert:

transparency notice: see subsection 14A(2).

(30) Clause 11, page 12 (lines 23 to 30), omit subclause (1), substitute:

(1) A person undertakes an activity on behalf of a foreign principal if:

(a) the person undertakes the activity in any of the following circumstances:

   (i) under an arrangement with the foreign principal;

   (ii) in the service of the foreign principal;

   (iii) on the order or at the request of the foreign principal;

   (iv) under the direction of the foreign principal; and

(b) at the time the arrangement or service is entered into, or the order, request or direction made, both the person and the foreign principal knew or expected that:

   (i) the person would or might undertake the activity; and

   (ii) the person would or might do so in circumstances set out in section 20, 21, 22 or 23 (whether or not the parties expressly considered the existence of the scheme).

(31) Clause 11, page 13 (lines 1 to 7), omit subclause (3), substitute:

(3) An activity undertaken by a company registered under the Corporations Act 2001 is not undertaken on behalf of a foreign principal merely because the company is a subsidiary (within the meaning of the Corporations Act 2001) of a foreign principal.

(32) Clause 12, page 13 (lines 10 to 13), omit all the words from and including "a purpose" to and including "the following", substitute "the sole or primary purpose, or a substantial purpose, of the activity is to influence one or more of the following".

(33) Clause 12, page 13 (lines 22 to 26), omit subclause (2), substitute:

(2) A person also undertakes an activity for the purposes of political or governmental influence if the sole or primary purpose, or a substantial purpose, of the activity is to influence the public, or a section of the public, in relation to a process or proceedings mentioned in subsection (1).

(34) Clause 12, page 14 (lines 24 to 27), omit subparagraph (5) (a) (vi), substitute:

   (vi) relationships with foreign principals;

(35) Clause 12, page 15 (lines 18 to 21), omit subparagraph (6) (a) (iv), substitute:

   (iv) relationships with foreign principals;

(36) Clause 13, page 15 (line 28), at the end of subclause (1), add "to the public or a section of the public".

(37) Clause 13, page 15 (line 30), omit "materials includes information or materials", substitute "material includes information or material".

(38) Clause 13, page 15 (line 32) to page 16 (line 18), omit subclauses (3) to (5), substitute:

(3) Despite subsection (1), an activity undertaken by a person (the disseminator) is not communications activity if:

(a) the activity is undertaken in the ordinary course of the disseminator's business; and

(b) the activity is communicating or distributing, to the public or a section of the public, information or material:

   (i) produced entirely by a person other than the disseminator; or

   (ii) produced by the disseminator only to the extent that the disseminator alters the information or material, without affecting substance, to ensure compliance with the law or to fit time or space constraints; and

(c) the identity of:

   (i) if the producer produced the information or material on behalf of another person—that other person; or

   (ii) otherwise—the producer of the information or material;

is either apparent in the communicating or distributing or is disclosed in accordance with rules prescribed for the purposes of this paragraph.

(4) Despite subsection (1), a carriage service provider (within the meaning of section 87 of the Telecommunications Act 1997) does not undertake communications activity in relation to information or material merely because the carriage service provider supplies the listed carriage service (within the meaning of section 16 of that Act) used to communicate the information or material.

(39) Page 16 (after line 18), after clause 13, insert:

13A Registrable arrangement

(1) A registrable arrangement is an arrangement between a person and a foreign principal for the person to undertake, on behalf of the foreign principal, one or more activities that, if undertaken by the person on behalf of the foreign principal, would be registrable in relation to the foreign principal.

(2) An arrangement is not a registrable arrangement to the extent that the arrangement is for the person to undertake an activity in circumstances in which the person would be exempt under Division 4 of Part 2.

(40) Clause 14, page 16 (lines 19 to 28), omit the clause, substitute:

14 Purpose of activity

The purpose of an activity must be determined by having regard to:

(a) the intention or belief of the person undertaking the activity; and

(b) either or both of the following:

   (i) the intention of any foreign principal on whose behalf the activity is undertaken;

   (ii) all of the circumstances in which the activity is undertaken.

(41) Page 16 (after line 28), at the end of Part 1, add:

Division 3—Transparency notices

14A Transparency notices

(1) For the purposes of this Act:

(a) a person stated to be a foreign government related entity in a transparency notice that is in force is taken to be a foreign government related entity; and

(b) a person stated to be a foreign government related individual in a transparency notice that is in force is taken to be a foreign government related individual.

Note: Section 14D sets out when a transparency notice is in force.

(2) A transparency notice means:

(a) a provisional transparency notice; or

(b) a final transparency notice.

14B Provisional transparency notice

(1) If the Secretary is satisfied that a person is a foreign government related entity or a foreign government related individual, the Secretary may issue a notice (a provisionaltransparency notice) stating that the person is a foreign government related entity or a foreign government related individual (as the case requires).

Note: The Secretary's powers to obtain information or documents under section 46 may assist the Secretary to be satisfied about whether a person is a foreign government related entity or foreign government related individual.

(2) The provisional transparency notice must:

(a) be in writing; and

(b) include such details as the Secretary considers necessary to identify the person who is the subject of the notice.

Note 1: The Secretary must make provisional transparency notices publicly available on a website (see subsection 43(2A)).

Note 2: Section 14C provides for the person who is the subject of the notice to make submissions about the notice. A decision to issue a provisional transparency notice is also reviewable (see section 14H). Notice of review rights must be provided on the website with the provisional transparency notice (see subsection 43(2A)).

14C Submissions in relation to provisional transparency notice

(1) If the Secretary issues a provisional transparency notice, the Secretary must also:

(a) prepare an invitation for the person who is the subject of the notice in accordance with subsection (2); and

(b) take reasonable steps to give the invitation and the provisional transparency notice to the person as soon as practicable.

(2) The invitation must:

(a) invite the person to make submissions to the Secretary about the provisional transparency notice within 14 days of the date of the invitation; and

(b) set out the effect of sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents); and

(c) notify the person of the person's right to have the decision to issue the provisional transparency notice reviewed.

(3) If the person makes submissions about the provisional transparency notice within 14 days of the date of the invitation, the Secretary must consider the submissions before the end of the period of 28 days after the date of the invitation.

(4) If a provisional transparency notice is not revoked before the end of the period of 28 days after the date of the invitation, the provisional transparency notice becomes a final transparency notice at the end of that period.

14D When a transparency notice is in force

A transparency notice:

(a) comes into force on the day the provisional transparency notice is first made available to the public on a website under subsection 43(2A); and

(b) remains in force, whether as a provisional transparency notice or a final transparency notice, until revoked.

Note: If a provisional transparency notice becomes a final transparency notice under subsection 14C(4), the provisional transparency notice made publicly available on a website must be accompanied by a statement to that effect (see subsection 43(2A)).

14E Varying or revoking transparency notices

(1) The Secretary may vary a transparency notice if the Secretary is satisfied that the details in the notice that identify the person stated to be a foreign government related entity or a foreign government related individual (as the case requires) should be updated or corrected.

(2) The Secretary must revoke a transparency notice if the Secretary ceases to be satisfied that the person is a foreign government related entity or a foreign government related individual (as the case requires).

(3) A variation or revocation of a transparency notice must be in writing.

Note 1: The Secretary must make a variation or revocation of a transparency notice publicly available on a website (see subsection 43(2A)).

Note 2: A decision to vary or revoke a transparency notice is reviewable (see section 14H). Notice of review rights must be provided on the website with the variation or revocation (see subsection 43(2A)).

14F Transparency notice is not a legislative instrument

A transparency notice, or a variation or revocation of a transparency notice, is not a legislative instrument.

14G Requirements in relation to procedural fairness

The Secretary is not required to observe any requirements of procedural fairness in exercising a power or performing a function under this Division other than those set out in section 14C.

14H Review of decisions relating to transparency notices

Applications may be made to the Administrative Appeals Tribunal for review of the following decisions of the Secretary:

(a) a decision under subsection 14B(1) to issue a provisional transparency notice;

(b) a decision under subsection 14E(1) to vary a transparency notice;

(c) a decision under subsection 14E(2) to revoke a transparency notice.

14J Protection against actions for defamation

(1) No action for defamation lies against the Commonwealth, a Minister, the Secretary, the Department or another Agency (within the meaning of the Public Service Act 1999), or an officer of the Department or another Agency, because the Secretary or an officer takes any of the following actions:

(a) issues, varies or revokes a transparency notice;

(b) includes a transparency notice, or any variation or revocation of a transparency notice, on the register;

(c) makes available a transparency notice, or any variation or revocation of a transparency notice, on a website;

(d) publishes or otherwise makes available, in any way, a transparency notice, or any variation or revocation of a transparency notice;

(e) supplies or gives access to a draft transparency notice, or a draft of any variation or revocation of a transparency notice, to a Minister or Agency or any other person.

(2) Subsection (1) applies even if, in taking the action, there has been a failure to comply with a requirement of this Act or the Administrative Appeals Tribunal Act 1975.

(3) In this section:

officer of a Department or Agency includes:

(a) a scheme official; and

(b) an APS employee in the Department or Agency; and

(c) a member of the staff of the Department or Agency; and

(d) a member of the Agency; and

(e) a person engaged to perform services for the Department or Agency.

(42) Clause 15, page 17 (lines 14 and 15), omit "whether the person has recently held a senior Commonwealth position (including as a member of Parliament)", substitute "the person's former status".

(43) Clause 16, page 19 (line 18), omit the note.

(44) Clause 19, page 20 (line 32), omit "recent", substitute "former".

(45) Clause 19, page 20 (lines 33 and 34), omit paragraphs (b) and (c), substitute:

(b) a recent designated position holder.

(46) Clause 21, page 21 (table item 1, column headed "Foreign principal"), omit paragraph (a), substitute:

(a) a foreign government related entity; or

(47) Clause 21, page 21 (table item 1, column headed "Foreign principal"), omit paragraphs (c) and (d), substitute:

(c) a foreign government related individual

(48) Clause 21, page 22 (table item 4, column headed "Activity"), omit "Donor activity", substitute "Disbursement activity".

(49) Clause 21, page 22 (table item 4, column headed "Foreign principal"), omit paragraphs (a), (b) and (c), substitute:

any kind of foreign principal

(50) Heading to clause 22, page 22 (line 4), omit "recent", substitute "former".

(51) Clause 22, page 22 (line 7), omit "recent", substitute "former".

(52) Clause 22, page 22 (line 8), omit paragraph (b).

(53) Clause 23, page 22 (line 13) to page 23 (line 6), omit the clause, substitute:

23 Registrable activities: recent designated position holders

An activity that a person undertakes on behalf of a foreign principal is registrable in relation to the foreign principal if:

(a) the person is a recent designated position holder; and

(b) in undertaking the activity, the person contributes experience, knowledge, skills or contacts gained in the person's former capacity as a designated position holder; and

(c) the activity is not registrable in relation to the foreign principal under another provision of this Division; and

(d) the person is not exempt under Division 4 in relation to the activity.

(54) Clause 24, page 24 (line 4), omit "solely", substitute "primarily".

(55) Clause 25, page 24 (lines 6 to 11), omit the clause, substitute:

25 Exemption: legal advice or representation

A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if the activity is, or relates primarily to, or is incidental to, the provision of:

(a) legal advice; or

(b) legal representation in judicial, criminal or civil inquiries, investigations or proceedings; or

(c) legal representation in relation to a government administrative processinvolving the foreign principal.

(56) Page 24 (after line 11), after clause 25, insert:

25A Exemption: members of Parliament and statutory office holders

A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if the person:

(a) is a member of the Parliament; or

(b) is a member of the Parliament of a State, the Legislative Assembly for the Australian Capital Territory or the Legislative Assembly of the Northern Territory; or

(c) holds any office or appointment under a law of the Commonwealth, or under a law of a State or Territory.

(57) Clause 27, page 25 (lines 7 to 19), omit the clause, substitute:

27 Exemption: religion

A person is exempt in relation to a religious activity the person undertakes, in good faith, on behalf of a foreign principal.

(58) Clause 28, page 25 (line 20) to page 26 (line 2), omit the clause.

(59) Clause 29, page 26 (lines 3 to 29), omit the clause, substitute:

29 Exemption: foreign government employees and commercial or business pursuits

Individual employed by foreign government

(1) An individual is exempt in relation to an activity the individual undertakes on behalf of a foreign principal if:

(a) the foreign principal is a foreign government; and

(b) the individual undertakes the activity:

   (i) in the individual's capacity as an officer or employee of the foreign principal; and

   (ii) in the name of the foreign principal.

Individual employed by foreign government related entity

(2) An individual is exempt in relation to an activity the individual undertakes on behalf of a foreign principal if:

(a) the foreign principal is a foreign government related entity; and

(b) the activity is a commercial or business pursuit undertaken by the individual in the individual's capacity as a director, officer or employee of the foreign principal; and

(c) it is apparent in the circumstances that the individual is undertaking the activity in that capacity.

Person operating under name of foreign government related entity

(3) A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

(a) the foreign principal is a foreign government related entity; and

(b) the activity is a commercial or business pursuit undertaken by the person in or under the name of the foreign principal or under a substantially similar name.

Exemption not applicable to former Cabinet Ministers or recent designated position holders

(4) This section does not apply in relation to an activity undertaken by a former Cabinet Minister or a recent designated position holder.

(60) Page 26 (after line 29), after clause 29, insert:

29A Exemption: industry representative bodies

A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

(a) the person is an entity formed in Australia, or incorporated under a law of the Commonwealth, a State or a Territory (an Australian entity); and

(b) the person's purpose is to represent the interests of business or a particular sector of business or industry; and

(c) the person has members who are also Australian entities; and

(d) the activity is, or relates primarily to, representing the interests of business, or the particular sector, as a whole.

(61) Page 26, after proposed clause 29A, insert:

29B Exemption: personal representation in relation to government administrative process etc.

An individual is exempt in relation to an activity the individual undertakes on behalf of a foreign principal who is also an individual if:

(a) the individuals either:

   (i) are members of the same family; or

   (ii) know each other personally and the individual undertaking the activity does so because of this and in that individual's personal capacity; and

(b) the activity is, or relates primarily to, representing in good faith the interests of the foreign principal in relation to:

   (i) a government administrative process involving the foreign principal; or

   (ii) matters affecting the personal welfare of the foreign principal.

(62) Page 26, after proposed clause 29B, insert:

29C Exemption: registered charities

A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

(a) the person is registered as a charity under the Australian Charities and Not‑for‑profits Commission Act 2012; and

(b) the activity is undertaken in pursuit of a charitable purpose of the person within the meaning of Part 3 of the Charities Act 2013; and

(c) the activity is not disbursement activity; and

(d) at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:

   (i) the fact that the person is undertaking the activity on behalf of a foreign principal;

   (ii) the identity of the foreign principal.

(63) Page 26, after proposed clause 29C, insert:

29D Exemption: artistic purposes

A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

(a) for a person other than an individual:

   (i) the person's purpose is, or relates primarily to, the arts; and

   (ii) the activity is, or relates primarily to, or is incidental to, the person's artistic purposes; and

(b) for an individual—the person's purpose in undertaking the activity is, or relates primarily to, or is incidental to, the arts; and

(c) the activity is not disbursement activity; and

(d) at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:

   (i) the fact that the person is undertaking the activity on behalf of a foreign principal;

   (ii) the identity of the foreign principal.

(64) Page 26, after proposed clause 29D, insert:

29E Exemption: certain registered organisations

A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

(a) the person is an association of employees, or an enterprise association, that is registered as an organisation under the Fair Work (Registered Organisations) Act 2009; and

(b) the activity is undertaken in the interests of members of the organisation in Australia; and

(c) the activity is not communications activity or disbursement activity; and

(d) at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:

   (i) the fact that the person is undertaking the activity on behalf of a foreign principal;

   (ii) the identity of the foreign principal.

(65) Page 26, after proposed clause 29E, insert:

29F Exemption: activities of members of certain professions

A person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

(a) the person's profession is any of the following:

   (i) a tax agent;

   (ii) a customs broker;

   (iii) a liquidator or receiver; and

(b) the activity is undertaken in the ordinary course of the person's practice of that profession; and

(c) the activity is, or relates primarily to, or is incidental to, the provision of representation in relation to a government administrative process involving the foreign principal; and

(d) at the time the activity is undertaken, both of the following matters are either apparent to all persons with whom the person is dealing or disclosed to them:

   (i) the fact that the person is undertaking the activity on behalf of a foreign principal;

   (ii) the identity of the foreign principal.

(66) Clause 31, page 28 (line 17), omit "57", substitute "57A".

(67) Clause 33, page 30 (line 8), omit "donor activity", substitute "disbursement activity".

(68) Heading to clause 35, page 32 (line 19), omit "donor activity", substitute "disbursement activity".

(69) Clause 35, page 32 (line 24), omit "donor activity", substitute "disbursement activity".

(70) Clause 35, page 32 (line 26), omit "donor activity", substitute "disbursement activity".

(71) Clause 35, page 32 (line 31), omit "donor activity", substitute "disbursement activity".

(72) Clause 37, page 34 (line 32), omit "donor activity", substitute "disbursement activity".

(73) Clause 37, page 34 (line 33), omit "donor activity", substitute "disbursement activity".

(74) Clause 37, page 35 (line 1), omit "donor activity", substitute "disbursement activity".

(75) Clause 37, page 35 (line 6), omit "donor activity", substitute "disbursement activity".

(76) Clause 39, page 36 (line 31), omit "Note 1", substitute "Note".

(77) Clause 39, page 37 (line 1), omit the note.

(78) Clause 40, page 38 (line 3), omit "5", substitute "3".

(79) Clause 40, page 38 (after line 5), after subclause (1), insert:

(1A) Despite subsection (1), a person is not required to keep any particular record for more than 10 years from the day the record was made.

(80) Clause 40, page 38 (line 14), after "or distributed", insert "to the public or a section of the public".

(81) Clause 42, page 40 (before line 25), before paragraph (3) (a), insert:

(aa) any provisional transparency notices issued under section 14B;

(ab) any variation or revocation of a transparency notice under section 14E;

(ac) for any provisional transparency notices that become final transparency notices under subsection 14C(4)—a statement to that effect;

(82) Clause 43, page 41 (before line 7), before subclause (1), insert:

Information relating to registrants

(83) Clause 43, page 41 (after line 14), after subclause (1), insert:

(1A) If information that the Secretary is required to make available under subsection (1) is provided to the Secretary under section 36 (reporting on registration review when voting period begins) or 37 (reporting registrable activity during voting periods), the information must be made available within 48 hours of it being provided to the Secretary.

(1B) Other information that the Secretary is required to make available under subsection (1) must be made available within 4 weeks of it being provided to the Secretary.

(1C) However, the Secretary need not comply with subsection (1A) or (1B) if the Secretary is considering whether subsection (2) applies to the information.

(84) Clause 43, page 41 (lines 15 to 17), omit "the Secretary may decide not to make particular information available to the public if the Secretary is satisfied that the information", substitute "the website must not include information that the Secretary is satisfied".

(85) Clause 43, page 41 (after line 23), after subclause (2), insert:

Information relating to transparency notices

(2A) The Secretary must also make available to the public, on a website, the following:

(a) each provisional transparency notice issued under section 14B, along with:

   (i) a written statement to the effect that a person whose interests are affected by the decision to issue the notice may, subject to the Administrative Appeals Tribunal Act 1975, apply to the Administrative Appeals Tribunal for review of the decision; and

   (ii) if the notice becomes a final transparency notice under subsection 14C(4)—a written statement to that effect;

(b) any variation or revocation of a transparency notice under section 14E, along with a written statement to the effect that a person whose interests are affected by the decision to vary or revoke the notice may, subject to the Administrative Appeals Tribunal Act 1975, apply to the Administrative Appeals Tribunal for review of the decision.

Note: See also section 14H (review of decisions relating to transparency notices).

Removal of information from website

(86) Clause 45, page 42 (line 7), omit "the foreign", substitute "a foreign".

(87) Clause 45, page 42 (line 24), at the end of the note, add "However, the notice does not override certain privileges and immunities (see section 9A).".

(88) Clause 45, page 43 (lines 3 to 5), omit subclause (7), substitute:

(7) The notice must set out:

(a) the relationship of this Act to the privileges and immunities mentioned in section 9A; and

(b) the effect of section 60 of this Act and sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).

(8) Nothing in this section authorises the Secretary to give a person a notice for the purpose of obtaining information or documents in relation to the possibility of the person having committed an offence against Part 5.1 (treason and related offences), Part 5.2 (espionage and related offences) or Part 5.6 (secrecy of information) of the Criminal Code.

(89) Clause 46, page 43 (line 19), at the end of the note, add "However, the notice does not override certain privileges and immunities (see section 9A).".

(90) Clause 46, page 43 (lines 29 to 31), omit subclause (7), substitute:

(7) The notice must set out:

(a) the relationship of this Act to the privileges and immunities mentioned in section 9A; and

(b) the effect of section 60 of this Act and sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).

(8) Nothing in this section authorises the Secretary to give a person a notice for the purpose of obtaining information or documents in relation to the possibility of the person having committed an offence against Part 5.1 (treason and related offences), Part 5.2 (espionage and related offences) or Part 5.6 (secrecy of information) of the Criminal Code.

(91) Clause 47, page 44 (after line 18), at the end of subclause (2), add:

Note: Paragraph (2) (c) confers a derivative use immunity. For example, in criminal proceedings for an offence by an individual against Part 5.2 of the Criminal Code (espionage and related offences), any information, document or other thing obtained as a direct or indirect consequence of the individual giving information or producing documents in compliance with a notice under section 45 or 46 would not be admissible.

(92) Heading to subclause 51(1), page 46 (line 11), omit the heading.

(93) Clause 51, page 46 (line 12), omit "(1)".

(94) Clause 51, page 46 (lines 21 to 28), omit subclauses (2) and (3).

(95) Clause 53, page 48 (after line 3), at the end of the clause, add:

(3) The Parliamentary Joint Committee on Intelligence and Security must:

(a) review rules made for the purposes of item 4 of the table in subsection (1) as soon as possible after the rules are made; and

(b) report the Committee's comments and recommendations to each House of the Parliament before the end of the applicable disallowance period for that House.

(4) If the Committee's report on a review of the rules is tabled in a House of the Parliament:

(a) during the applicable disallowance period for that House; and

(b) on or after the eighth sitting day of the applicable disallowance period;

then Part 2 of Chapter 3 of the Legislation Act 2003 has effect, in relation to the rules and that House, as if each period of 15 sitting days referred to in that Part were extended in accordance with the following table.

(5) The applicable disallowance period for a House of the Parliament means the period of 15 sitting days of that House after the rules, or a copy of the rules, was laid before that House in accordance with section 38 of the Legislation Act 2003.

(96) Heading to clause 57, page 49 (line 11), omit "maintain", substitute "renew".

(97) Heading to subclause 57(1), page 49 (lines 12 and 13), omit the heading, substitute:

Intentional omission to apply or renew knowing required to do so, and registrable activity undertaken

(98) Clause 57, page 49 (line 17), omit "the foreign", substitute "a foreign".

(99) Clause 57, page 49 (line 18), omit "relation to the foreign", substitute "under the scheme in relation to a foreign".

(100) Clause 57, page 49 (line 24), omit "7", substitute "5".

(101) Clause 57, page 49 (line 25) to page 50 (line 14), omit subclause (2), substitute:

Intentional omission to apply or renew reckless as to whether required to do so, and registrable activity undertaken

(2) A person commits an offence if:

(a) the person is required:

   (i) to apply for registration under the scheme in relation to a foreign principal by the end of a period; or

   (ii) to renew the person's registration under the scheme in relation to a foreign principal by the end of a period; and

(b) the person intentionally omits to do so; and

(c) the person undertakes an activity on behalf of the foreign principal after the end of the period; and

(d) the activity is registrable in relation to the foreign principal.

Penalty: Imprisonment for 3 years.

(102) Heading to subclause 57(3), page 50 (lines 15 and 16), omit the heading, substitute:

Reckless omission to apply or renew knowing required to do so, and registrable activity undertaken

(103) Clause 57, page 50 (line 20), omit "the foreign", substitute "a foreign".

(104) Clause 57, page 50 (lines 21 and 22), omit "in relation to the foreign", substitute "under the scheme in relation to a foreign".

(105) Clause 57, page 50 (line 28), omit "5", substitute "3".

(106) Clause 57, page 50 (after line 28), after subclause (3), insert:

Reckless omission to apply or renew reckless as to whether required to do so, and registrable activity undertaken

(3A) A person commits an offence if:

(a) the person is required:

   (i) to apply for registration under the scheme in relation to a foreign principal by the end of a period; or

   (ii) to renew the person's registration under the scheme in relation to a foreign principal by the end of a period; and

(b) the person is reckless as to whether the person has omitted to do so; and

(c) the person undertakes an activity on behalf of the foreign principal after the end of the period; and

(d) the activity is registrable in relation to the foreign principal.

Penalty: Imprisonment for 2 years.

(107) Clause 57, page 51 (line 2), omit "the foreign", substitute "a foreign".

(108) Clause 57, page 51 (line 3), omit "relation to the foreign", substitute "under the scheme in relation to a foreign".

(109) Clause 57, page 51 (lines 8 to 21), omit subclause (5).

(110) Page 51 (after line 21), after clause 57, insert:

57A Giving notice of end of liability to register while still liable to register

Notice given knowing arrangement still exists, and registrable activity undertaken

(1) A person commits an offence if:

(a) the person gives the Secretary a notice under section 31 (notice of end of liability to register) for the person's registration under the scheme in relation to a foreign principal; and

(b) at the time the person does so a registrable arrangement exists between the person and the foreign principal; and

(c) the person knows that the registrable arrangement will still be in existence on the day specified in the notice under subsection 31(3) as the day the person's registration in relation to the foreign principal is to cease; and

(d) the person undertakes an activity on behalf of the foreign principal after that day; and

(e) the activity is registrable in relation to the foreign principal.

Penalty: Imprisonment for 5 years.

Notice given reckless as to whether arrangement still exists, and registrable activity undertaken

(2) A person commits an offence if:

(a) the person gives the Secretary a notice under section 31 (notice of end of liability to register) for the person's registration under the scheme in relation to a foreign principal; and

(b) at the time the person does so a registrable arrangement exists between the person and the foreign principal; and

(c) the registrable arrangement will still be in existence on the day specified in the notice under subsection 31(3) as the day the person's registration in relation to the foreign principal is to cease; and

(d) the person undertakes an activity on behalf of the foreign principal after that day; and

(e) the activity is registrable in relation to the foreign principal.

Penalty: Imprisonment for 3 years.

Notice given knowing arrangement still exists, whether or not registrable activity undertaken

(3) A person commits an offence if:

(a) the person gives the Secretary a notice under section 31 (notice of end of liability to register) for the person's registration under the scheme in relation to the foreign principal; and

(b) at the time the person does so a registrable arrangement exists between the person and the foreign principal; and

(c) the person knows that the registrable arrangement will still be in existence on the day specified in the notice under subsection 31(3) as the day the person's registration in relation to the foreign principal is to cease.

Penalty: Imprisonment for 12 months.

Notice given reckless as to whether arrangement still exists, whether or not registrable activity undertaken

(4) A person commits an offence if:

(a) the person gives the Secretary a notice under section 31 (notice of end of liability to register) for the person's registration under the scheme in relation to the foreign principal; and

(b) at the time the person does so a registrable arrangement exists between the person and the foreign principal; and

(c) the registrable arrangement will still be in existence on the day specified in the notice under subsection 31(3) as the day the person's registration in relation to the foreign principal is to cease.

Penalty: Imprisonment for 6 months.

(111) Clause 58, page 51 (line 24), omit "of strict liability".

(112) Clause 58, page 52 (line 3), omit "of strict liability".

(113) Clause 58, page 52 (line 11), omit "of strict liability".

(114) Clause 59, page 52 (before line 23), before the penalty, insert:

Note: A notice given under section 45 or 46 does not override certain privileges and immunities (see section 9A).

(115) Clause 60, page 53 (line 16), omit "5", substitute "3".

(116) Clause 61, page 54 (line 22), omit "(1)".

(117) Clause 61, page 55 (line 1), omit "3", substitute "2".

(118) Clause 61, page 55 (line 2), omit subclause (2).

(119) Page 55 (after line 2), at the end of Part 5, add:

61A Geographical jurisdiction of offences

(1) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against this Part if, at the time of the conduct constituting the offence, the defendant was a former Cabinet Minister or a recent designated position holder.

(2) Section 14.1 of the Criminal Code (standard geographical jurisdiction) applies to any other offence against this Part.

(120) Clause 62, page 56 (lines 4 and 5), omit "matters relating to charges payable under the scheme,".

(121) Clause 62, page 56 (lines 10 and 11), omit "scheme to be reviewed before the end of its first 5 years of operation", substitute "Parliamentary Joint Committee on Intelligence and Security to begin a review of the scheme within 3 years of the scheme commencing".

(122) Clause 63, page 56 (line 12) to page 57 (line 2), omit the clause.

(123) Clause 67, page 58 (line 2), omit "The", substitute "Subject to subsections (1A) and (1B), the".

(124) Clause 67, page 58 (after line 9), after subclause (1), insert:

(1A) The Secretary must not delegate the Secretary's functions or powers under any of the following provisions:

(a) section 14B (issuing provisional transparency notices);

(b) section 14E (varying or revoking transparency notices).

(1B) The Secretary may only delegate the Secretary's functions or powers under the following provisions to a person mentioned in paragraph (1) (a):

(a) section 43 (certain information to be made publicly available);

(b) section 45 (notice requiring information to satisfy Secretary whether person is liable to register under the scheme);

(c) section 46 (notice requiring information relevant to scheme);

(d) subsection 53(1) (authorisation for Secretary to communicate scheme information).

(125) Clause 69, page 58 (lines 25 and 26), omit subclause (2), substitute:

(2) The report must include the following matters in relation to the financial year:

(a) the number of new registrations;

(b) the number of registrations that ended;

(c) the number of notices given to the Secretary under Division 2 of Part 3 (reporting to the Secretary);

(d) a statement as to whether the Secretary has complied with section 42 (requirement to keep a register);

(e) the number of provisional transparency notices issued;

(f) the number of submissions made in response to invitations prepared under subsection 14C(1) for the subjects of provisional transparency notices;

(g) the number of transparency notices varied or revoked;

(h) the number of notices issued under section 45 (notice requiring information to satisfy Secretary whether person is liable to register under the scheme);

   (i) the number of notices issued under section 46 (notice requiring information relevant to scheme);

(j) the number of documents produced to the Secretary in compliance with notices issued under section 46;

(k) the number of occasions on which the Secretary or a scheme official communicates scheme information to a person in reliance on the authorisation in section 52 (purposes of scheme) or 53 (other purposes) (whether or not any other authorisation is also relied on);

(l) a list of Departments, agencies, authorities or Australian police forces to which scheme information has been communicated in reliance on the authorisation in section 52 or 53 (whether or not any other authorisation is also relied on);

(m) the number of persons charged with offences under Part 5 (enforcement);

(n) the number of proceedings before the courts in relation to the scheme;

(o) any other matters prescribed by the rules for the purposes of this section.

(126) Clause 70, page 59 (lines 5 to 14), omit the clause, substitute:

70 Review of scheme by Parliamentary Joint Committee on Intelligence and Security

The Parliamentary Joint Committee on Intelligence and Security must:

(a) begin a review of the operation, effectiveness and implications of the scheme by the third anniversary of the day this Act commences; and

(b) report the Committee's comments and recommendations to each House of the Parliament as soon as practicable after completing the review.

Question agreed to.

Bill, as amended, agreed to.

Mr PORTER (Pearce—Attorney-General) (16:43): by leave—I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Mr TAYLOR (Hume—Minister for Law Enforcement and Cyber Security) (16:46): I move:

That the second reading be made an order of the day for the next sitting day.

Mr DREYFUS (Isaacs—Deputy Manager of Opposition Business) (16:46): I move as an amendment:

That all words after 'That' be omitted with a view to substituting the following words—

Mr TAYLOR (Hume—Minister for Law Enforcement and Cyber Security) (16:46): I move:

That the question be now put.

Mr Dreyfus: I'm moving an amendment.

The DEPUTY SPEAKER ( Mr Irons ): He can move that the question be put. We had this the other day.

The SPEAKER: The question is that the motion be put.

Ms HENDERSON (Corangamite) (16:56): On behalf of the Standing Committee on Economics, I present the committee's report entitled Review of the Australian Prudential Regulation Authority annual report 2017 together with the minutes of proceedings and I ask leave of the House to make a short statement in connection with the report.

Report made a parliamentary paper in accordance with standing order 39(e).

Ms HENDERSON: by leave—On 28 March 2018, the Australian Prudential Regulation Authority, APRA, appeared before the Standing Committee on Economics as part of the review of APRA's annual report 2017. As chair of this committee, I'm very pleased to table this report. The committee examined APRA's activities supervising and enforcing prudential standards and practices in the Australian financial system. APRA explained that its focus has been on improving resilience in the financial system. The committee scrutinised APRA on its work on issues of governance, risk management and culture in financial institutions. In particular, the committee focused on measures to reinforce sound lending practices to ensure that Australian banks remained prudentially strong. In addition, the committee examined the new Banking Executive Accountability Regime, otherwise known as BEAR.

While APRA is seeking to improve responsible lending practices in the Australian financial sector, there is still a lot of work to be done in this area. The disturbing evidence coming out of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry suggests that the major banks, in a number of cases, are moving from a low base when improving their responsible lending practices.

In recent years, APRA has provided guidance on lending practices that was aimed at maintaining strong lending in an environment of heightened risks. The benchmark limiting the growth of investor loans to 10 per cent, issued in December 2014, was updated in guidance from APRA on 26 April 2018. From 1 July 2018, financial institutions will no longer have to meet this requirement if they are able to provide APRA with certain assurances about the strength of their lending practices. The benchmark limiting the flow of new interest-only lending, established in APRA guidance on 31 March 2017, remains in place.

Strengthening accountability measures for senior executives was a key recommendation of the committee's review of the four major banks. The BEAR will provide mechanisms to make senior bank executives more accountable and subject to additional oversight by APRA. It comes into effect on 1 July 2018 for the major banks. There will be a measured transition for smaller institutions.

The committee also sees a need to continue to improve competition in the banking sector. In its review of the four major banks, the committee previously called for removing barriers to new entrants to the sector. It welcomes the recent changes to the restrictions on institutions using the term 'bank' in lifting this barrier to new entrants.

The new crisis-management powers introduced by the government provide important new tools for APRA. They will empower APRA to better prepare and take decisive action to more quickly and effectively address crises in Australia's financial system.

The proposed changes to superannuation will improve governance and transparency in the industry. The committee expects that, once the measures are implemented, it will better position APRA-related superannuation licensees to deliver sound outcomes for their members. The committee notes that APRA has extended its strategic focus to superannuation and will monitor APRA's performance in this area.

Certainly one of the issues raised in this respect was third-party transactions of superannuation members' funds, particularly to unions. This is money belonging to members, and I am concerned that APRA—these were issues that I raised—has not been focused enough on regulating these practices which undermine the confidence that members have in the trustees of superannuation funds. I trust that these matters will be better regulated and there will be a strong regulatory eye on these practices in the future.

In closing, I want to reiterate the very strong action that our government is taking to reform the banking and financial services sector across Australia. Over and above the reforms that we have passed to bolster the resources, penalties and powers available to ASIC, the Turnbull government very proudly has passed legislation to establish the Australian Financial Complaints Authority, AFCA, and a one-stop shop dispute resolution scheme to provide consumers with independent and timely access to justice and access to compensation where appropriate.

As I've talked about, the government has also passed legislation to create the new BEAR regime, with enhanced powers for APRA to remove and disqualify an executive or director, to direct adjustments to remuneration policies and variable pay and to enforce new prudential risk-management conduct obligations with penalties of up to $200 million where these are not met.

In March 2017, legislation was passed to establish a new Commonwealth company, the Financial Advisor Standards and Ethics Authority, to lift the professional, education and ethical standards of financial advisers. We've seen in evidence before the royal commission that some financial advisers have fallen well short of expected standards. We've passed legislation to cap the incentives paid to advisers for the sale of life insurance products. We've also passed new laws to ensure that retail client moneys are protected where financial firms become insolvent.

In December 2017, the government introduced legislation to bolster the whistleblower protection regime in the Corporations Act by providing protection for a wider range of disclosures, protection for anonymous disclosures and easier access to justice for those who suffer reprisals as a result of blowing the whistle. These are all very, very important reforms in strengthening our banking and financial services industry and the sector across the country.

On behalf of the committee, I would like to thank the chairman of APRA, Mr Wayne Byers, and other APRA representatives for appearing at the public hearing.

I commend the report to the House.

Mr THISTLETHWAITE (Kingsford Smith) (17:04): by leave—When it comes to financial services, the main show in town at the moment is, of course, the banking royal commission. We've seen some shocking revelations from that inquiry at the moment into financial services and banks, particularly in the wealth management sector, where we saw numerous cases of victims of predatory lending, alleged fraud, fees for no service and clear breaches of the Future of Financial Advice reforms and section 961B of the Corporations Act. It should never be forgotten that it was this government, the Turnbull government, that opposed that royal commission for 600 days, and Labor ensured that we pushed the government to establish this important inquiry. Labor have been totally vindicated in our calls for a royal commission into banking and finance in this country.

One of the worst offenders at the moment, unfortunately, is the once mighty Commonwealth Bank of Australia. It's got to the situation where there have been special inquiries by our regulators into what's been going on at the Commonwealth Bank. In the recent inquiry that we held with APRA, we discussed that with the representatives from APRA—in particular their inquiry into the Commonwealth Bank's governance, its culture and its accountability frameworks. What APRA determined in respect of what was going on in the Commonwealth Bank can basically be summed up in one sentence: too much focus on profit and not enough focus on culture, accountability and their customers. That's exactly what's been going on in the Commonwealth Bank and, unfortunately, in too many other banks and financial service providers in this country.

It took a Labor government, when we were in office, to actually put in place a best-interests duty in our legislation to ensure that financial advisers actually have to act in the best interests of their customers, because—believe it or not—prior to Labor instilling that legislation in 2012, there was no legal obligation for financial advisers to act in the best interests of their client, and guess what: they didn't. In many cases, they didn't. It was this government and its representatives that opposed Labor putting those Future of Financial Advice reforms in that legislation. So if the government had had its way, when you look at it, the cases in the evidence that's coming out of the royal commission—those shocking cases of what the counsel assisting the royal commission is recommending be prosecuted as criminal conduct—would not have been illegal. They simply would have been a bad look for some of the banks. That should never, ever be forgotten.

So there has been too much focus on profit and not enough on customers, accountability and culture. The Commonwealth Bank has had to enter into enforceable undertakings and a remediation program that's now being overseen by APRA, and APRA have assured our committee that they will continue to monitor what's going on in the Commonwealth Bank. Heap on top of that the AUSTRAC scandal and the alleged clear breaches of Australia's anti-money-laundering and counter-terrorism-financing laws by our biggest bank. The Commonwealth Bank have entered into a settlement with AUSTRAC, and it's a record settlement fine, up to $700 million, that the Commonwealth Bank will pay. When I questioned, in particular, the chairwoman of the Commonwealth Bank and the former CEO when they appeared before our committee on the last occasion, they used this notion of the sub judice rule. They said: 'Oh, we can't answer many of those questions, because these matters are before the court. We can't answer these questions, because these matters are before the court and they may be sub judice.' I made the point at that hearing that I wanted the Commonwealth Bank to answer those questions because it was likely that the matter would be settled and the Australian people would never, ever find out what had actually gone on in the Commonwealth Bank's boardroom and their decision-making processes about the AUSTRAC scandal. Well, what do you know? That's exactly what's happened. The Commonwealth Bank have settled the matter, and the Australian public are none the wiser about what's actually been going on in this bank. So I'm looking forward to representatives of the Commonwealth Bank coming back to our committee in October this year to, hopefully, answer some of those questions.

There was also clear discussion about the macroprudential standards that have been instituted by APRA—in particular the limit on the flow of new interest-only lending to 30 per cent of new residential mortgage lending, following an earlier 10 per cent benchmark. What the banks basically did in meeting that target was to push up the cost of interest-only lending. But they didn't do it only for new loans; they did it for existing loans as well. So existing customers got hit with the increase in the cost of credit on their existing loans, when clearly APRA and the regulator were talking about stemming the flow of new loans. I think most Australians would disagree with the approach of the banks there. Really, that's one of the reasons why a lot of Australians hate the banks—because they do things like this. They give an inch and take a mile when it comes to these macroprudential changes. That's exactly what the banks have done.

There was also a discussion about the competitive nature of those reforms and the fact that they locked in a market share for some of the bigger players compared to the smaller players, and, in many respects, have stifled competition in that market. They are the issues that were discussed. We look forward to our continuing relationship with APRA. I thank the officers of APRA and I thank the officers of our committee for the fine work that they do.

Mr GOODENOUGH (Moore) (17:10): On behalf of the Parliamentary Joint Committee on Human Rights, I present the committee's report entitled Human Rights Scrutiny Report 6 of 2018.

Report made a parliamentary paper in accordance with standing order 39(e).

Mr GOODENOUGH: by leave—The committee's scrutiny reports provide parliament with a technical examination of the compatibility of bills and legislative instruments with Australia's human rights obligations under international human rights law. The reports do not assess the broader merits of particular measures.

A number of bills examined in the current report are scheduled for debate this week, including in relation to counterterrorism, the Australian Institute of Health and Welfare, mandatory comprehensive credit reporting, farm household support and underwater cultural heritage. Of the new bills in this report, six have been assessed as not raising human rights concerns, as they promote, permissibly limit or do not engage human rights. The committee is also seeking further information in relation to four bills and legislative instruments. Chapter 2 of the report contains the committee's concluded examination of seven bills and a number of legislative instruments. It includes the committee's concluded examination of the Underwater Cultural Heritage Bill 2018, which I would like to particularly highlight.

In relation to this bill, the committee sought further information from the minister as to whether certain penalties in the bill may be criminal for the purposes of international human rights law and, if so, whether the provisions were compatible with criminal process guarantees. Following correspondence with the relevant minister, the committee considered that the civil penalty provisions may be considered criminal for the purposes of human rights law. However, the further information usefully provided by the assistant minister allowed the committee to nevertheless conclude that the penalties may be compatible with criminal process rights, such as the right to be presumed innocent.

The committee's analysis highlights how, in the context of civil penalties, if a penalty meets the test of being criminal under international human rights law, this does not convert the relevant conduct into a criminal offence or mean that the civil penalty is illegitimate. Instead, it means that the civil penalties must be compatible with criminal process rights. The assistant minister's detailed and helpful response outlined how the penalties constitute permissible limitations on criminal process rights. This response from the assistant minister and the department is accordingly to be commended. It is also a strong example of the type of information that should be included in statements of compatibility in relation to civil penalty provisions.

I encourage my fellow members and others to examine the committee's report to better inform their consideration of proposed legislation. With these comments, I commend the committee's Human Rights Scrutiny Report 6 of 2018 to the House.

Mr FITZGIBBON (Hunter) (17:14): I begin my contribution this afternoon by acknowledging the severity of the drought our country currently faces, which is experienced by not only our farmers and their families but also the rural communities that rely so heavily on the health of the farming sector. When our farming income is down then the local economy is also down. If ever there were an issue in the parliament on which we should be taking a bipartisan approach, this is it. I'm not suggesting that this speech will be particularly bipartisan, because we seem to be somewhat beyond that, but with the departure of the member for New England I believe there is still an opportunity for us to regroup and approach drought on a bipartisan basis.

The DEPUTY SPEAKER ( Mr Irons ): That's very good to hear, Member for Hunter.

Mr FITZGIBBON: It is all right to extend sympathy to our farming families, which I do tonight on behalf of the opposition, but they need much more than sympathy; they need a parliament and a government working for them, making the real and meaningful responses to drought that can take us well and truly into the future in a way that offers them confidence. Whatever those policies look like, they need to be underpinned by the basic acceptance that drought in our country should no longer be treated as abnormal event, something which will come along occasionally and which, hopefully, won't last too long, and that, rather, our climate is changing—and neither this evening nor the course of this policy debate is the time to argue about what is causing the change; that is for another day—in a way which is making it far more difficult for our farming communities. We need to recognise that is unlikely to change; it's the new normal. We need to accept that protracted drought will be with us again and again, part of our climate on a permanent basis, and approach the policy with those fundamentals in mind.

I am still not sure why the Prime Minister recently had a drought tour. I would've thought that, after five years in government and at least seven years of drought, he might've understood the drought and what we as a parliament should be doing about it. More surprisingly, he didn't come back from the drought tour with a policy announcement. I accept that prime ministers look for a photo opportunity when parts of our community are facing natural disasters, but they usually do that ahead of a policy announcement, and on the Prime Minister's return, disappointingly, he offered no such thing.

The fact that we are debating this Farm Household Support Amendment Bill 2018 this evening poses four key questions for me. First of all, what has happened in drought policy over the last 10 years? I think that's worth sharing with the House. Second, why are we debating this bill before the House now in June 2018? Third, what does the future hold for drought policy in this country? That's something I've already touched on. Fourth, what are the government's policy priorities, and how do the agriculture, forestry and fisheries sectors rate in the government's considerations?

Ten years ago now, back in 2008, Commonwealth and state governments started to reflect upon the history of drought policy in this country and its failings. In 2013 something quite historic took place: the Commonwealth and each of the states and territories agreed to a whole new approach to drought policy and entered into an intergovernmental agreement which will have lasted five years, coming to an end 1 July this year, only days away. A number of principles were embraced within that agreement. I should say that agreement had the support of key farm leadership groups like the National Farmers' Federation, and within this parliament it had bipartisan support. It was agreed, with the helping hand and guidance of a Productivity Commission report, that the way we were doing drought policy in this place was failing our farmers, our economy, our communities and indeed, of course, the budget. We were spending a billion dollars a year on a number of initiatives which usually fall under the umbrella of exceptional circumstances. They were costing us a billion dollars a year. A considerable proportion of farming families, as the Productivity Commission indicated, have been on the welfare payment for many, many years—too many years. Of course, the Productivity Commission identified the fact that many of our farm businesses hadn't made a profit for many years, and it was clear that the drought policies that were in place were not working and were failing our farmers, our communities and our economies.

So the states and the Commonwealth said, 'Let's try a new approach,' and the agreement was underpinned by a number of principles. I want to share them with the House. There are five of them. The first was to assist farm families and primary producers to adapt to and prepare for the impacts of increased climate variability. The second was to encourage farm families and primary producers to adopt self-reliant approaches to manage business risks. The third was to ensure families in hardship have access to a support payment that recognises the special circumstances of a farmer, and that's the principle which is leading us to this debate tonight. The fifth was to provide a framework for jurisdictions' responses during periods of drought. I missed the fourth; I'm sorry, Mr Deputy Speaker. It was to ensure that social support services are accessible to farm families. So they are the principles that underpin the intergovernmental agreement which comes to an end on 1 July this year.

Of course, the governments—plural, because it commenced under the former Labor government—moved pretty quickly to establish farm household allowance as one of those key principles. Farm household allowance, for those who don't know this area well, is basically an unemployment benefit for farmers. It comes with a more generous or liberal assets test, because obviously farmers can be very cash poor in times of hardship—not necessarily just drought—but still be quite asset rich and unable, of course, to readily pass off those assets. So we need a welfare payment. I think the welfare payment is an important part of the equation, and farm household allowance represents that welfare payment.

Importantly, the COAG discussion included an embrace of the idea that the welfare payment should not be ongoing ad infinitum. The concept is really that farmers should get income support for a period of time—three years was chosen—and in that time they should be expected, with some government support and guidance, to make themselves more resilient and more adaptable, to embrace new business models, maybe to get other off-farm income or maybe to leave the land, if that's absolutely necessary and they conclude that that's the only option available to them.

What brings us to the debate tonight is the fact that a couple of thousand farming families have now reached the end of their three-year entitlement to farm household allowance, and the government is now seeking to extend it by one year for those who are already on it or have just left farm household allowance because their time has expired—and, indeed, for those who are coming onto it. I need to make clear to the House that, for new entrants on the farm household allowance, the period will now be four years, not three—thus the considerable impact on the budget bottom line. It's not just existing farmers; there will be future farmers as well.

The problem with all of that is that the work simply hasn't been done along the way. We've lost five years, basically. The first act of the member for New England when he became the minister was actually to abolish the COAG process. The whole concept of the IGA relied upon the idea of greater collaboration between the Commonwealth and the states. It's true that, as the mainland managers, under our Constitution the states have to be part of the equation; they have to be part of the solution. There was an entity called the Standing Council on Primary Industries, which dealt with these matters under the umbrella of COAG. SCoPI, the Standing Council on Primary Industries, was not only the ministers meeting but also the committee on which the secretaries were represented. It was the role of that COAG committee to continue to progress the next stages of that drought reform plan.

That was then pulled away. Under pressure, it was eventually replaced with a thing called AGMIN—that is, the ag ministers group—which didn't have anything like the construction, secretarial support or resourcing that the Standing Council on Primary Industries had. I'll never understand why SCoPI was abolished, but it was a great mistake by this government. It was a decision authorised by no less than the Prime Minister of the day. It is something the current Prime Minister hasn't sought to turn around; he should turn it around. If we're going to have any hope of producing real and meaningful drought policy in this place, we need a COAG process and we need it very quickly. We've seen other areas of government policy where we've been let down by the diminution of the COAG process.

What we have had over the last five years is an increasing reliance on concessional loans. It was a former Labor government that first went down the path of concessional loans for our farmers. At that time, it was not because of drought but because of high indebtedness. That was the major issue of the day. I still believe that, in the higher interest rate environment at that time, there was a role for concessional loans, but this government has fallen into the trap of offering concessional loans for just about any hill any business ever faces: Northern Australia infrastructure loans, concessional loans to farmers—and the list goes on and on. But, as a drought response, the reality is that more debt or switching debt is simply not a solution or an option for many farmers. It entails challenging your relationship with the bank. We've learnt time and time again in this place that it means going through a terrible number of hoops in terms of paperwork during the application process. It is very, very difficult.

We've had this over-reliance on concessional loans, and of course the concessional loans have allowed the government to spruik the capital value of the land. We read in the Agricultural competitiveness white paper the government's $4 billion investment. It is a failed document; I think there's a general consensus in the sector on that now. It's $4 billion because that would be the total capital value of all the loans if they were all lent out. Of course, that's not the cost to the budget bottom line. The cost of the budget bottom line is the cost of administering the loans and any bad debts. We need to look at the difference between the government's bond-borrowing rate and the interest rate of the loans. The cost to government is not great. The government has become very fond of these loans because it doesn't cost the budget bottom line and it allows them to spruik that larger amounts of money are going to our farmers. It's a sleight of hand, it's not an approach which is conducive to bipartisanship in this place and it's certainly not a way of helping our farmers.

By way of completeness, I acknowledge that the government has improved the farm management deposit scheme in recent years. That's a good thing. It's a very wise policy to allow people to put money away in good times for use in bad times and to use the taxation system to make that attractive. We should continue to make that a key centrepiece of drought policy. The government has also done a little bit of work around capital depreciation—that is, accelerated depreciation for certain infrastructure projects on-farm, whether it be water or otherwise. The problem is that accelerated depreciation is no good to someone who's not making a profit. You have to spend the money in the first place but if you're suffering a very bad drought then you're not likely to have the money to invest.

That takes me to the Regional Investment Corporation. The government is so fond of these loans that it's now going to establish the so-called Regional Investment Corporation in Orange. Why Orange? I think you know the answer to that: because that's where the Nationals lost a state seat for the first time in 69 years, and the best way to grab it back from the Shooters, Fishers and Farmers Party might be to run a little boondoggle or pork-barrelling exercise out to Orange. The problem with the Regional Investment Corporation—

Mr Broad interjecting—

Mr FITZGIBBON: I acknowledge that the member for Mallee would have liked to have had the Regional Investment Corporation, but I will put his mind at rest by saying, 'Don't worry; I don't think the Regional Investment Corporation will ever eventuate.' I don't think we're going to have a regional investment corporation. I've already mentioned 1 July, which is supposed to be day that the Regional Investment Corporation opens its doors and starts making farmers right around the country happy and gives a huge boost to our national economy. Everywhere Mr Littleproud goes, no matter what the problem in the agricultural sector, he says, 'Don't worry; you're going to have the Regional Investment Corporation.'

Well, that isn't happening. There won't be any doors opening in Orange on 1 July—at the end of this week or whenever that is—because the Regional Investment Corporation has no real objective, no CEO and no staff. It doesn't even have a location, let alone a building. In fact, the board turned up in Orange I think for the first time last week. There is a board. The minister has appointed a board, and they met in a park. We had the APVMA team, small as it is, meeting at Macca's in Armidale, in the electorate of New England.

Mr Broad interjecting—

Mr FITZGIBBON: I'll pick up the member for Mallee's interjections—no reflection on Macca's; it's a good choice. Their coffee's not too bad. But we have the APVMA CEO holding her business in Macca's in Armidale and now we have the RIC board meeting on a park bench in Orange. This is a disgrace. It should stop and it should stop now. The new minister should walk away from the antics of the former minister and just say: 'This is enough. This is not working. This is $28 million of money which could go to drought-affected farmers tomorrow.' That would be a better use of the money.

What is the RIC going to do if ever it opens, unlikely as that is? It's going to do the same thing the states are already doing through their rural adjustment authorities: it's going to administer concessional loans to farmers, but only new loans. We'll have a situation where the states will continue to administer old loans for up to 10 years and the Regional Investment Corporation will administer new loans. This is just silly. It's a duplication and an unnecessary one. The minister will say, 'The states weren't doing a very good job of it.' Well, I challenge that, but a good minister would work with the states, bring them in and say: 'I'm not completely happy with the way these loans are being administered. Let's do it better.' That's what a minister showing leadership would do, but it's certainly not what this minister is doing. I should say that the RIC is allegedly also going to administer some water infrastructure loans. We shall see.

While I think of it, I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House notes the Turnbull Government's failure to provide timely and effective legislative amendments to support Australia's farmers and agricultural industries".

I'm sure the member for Griffith will be happy to second that for me.

Ms Butler: Quite right!

Mr FITZGIBBON: The APVMA is a shocking pork-barrelling exercise that threatens our farming community. It's already destroying productivity in the farming community. The Pesticides and Veterinary Medicines Authority is a critical part of our farm economy and makes sure not only that farmers get their crop sprays and other chemicals and veterinary medicines that they need but also that they get them in a timely way—when new products are offered to the market, they get to the market very quickly. This forced relocation to Armidale is destroying the joint. Staff have left in a mass exodus, and it's impacting on the entity's capacity to do its job. I'll make a bet now: in the not-too-distant future the new minister, finally, will be making big changes. He will be revisiting the general policy order and saying, 'We are going to extend the time available to the APVMA to make this work,' but, more importantly, they will be changing it in a way that will allow more people to stay here in Canberra to work. In the not-too-distant future this government will be admitting that the APVMA relocation has been a failure. They will be left with no choice but to pretend they're having a relocation to Armidale, but in fact a large number of staff will be working here in Canberra, because they cannot find the personnel—the expert lawyers and the regulatory scientists—they need to do that work.

I challenge Minister Littleproud: he should just run up the white flag now and differentiate himself from the former minister and say: 'We're not going to waste $50 million or more on this relocation to Armidale. We're not going to undermine the productivity of our farmers. We're not going to threaten consumer health, because we eat the stuff that those sprays are used on and we want to make sure the regulator is up to the job. And we're not going to undermine our exports, because the APVMA plays a role in that regulatory regime, as well. We're not going to do that. We're going to gut this idea, forget the pork barrel and bring the APVMA back to Canberra, where it absolutely belongs.'

In posing my question—why are we debating this bill now?—I've touched on the history. People have already gone off the farm household allowance. They have exhausted their entitlement and here we are, in the last sitting fortnight, rushing a bill through the parliament to create this extension. We are still very unclear about what hoops people will have to go through who have already come off the farm household allowance. I invite the minister to explain that further to us when he makes his closing remarks. Is it going to be as hard as it was for people when they first went on the farm household allowance? Remember the member for New England saying: 'Oh, they don't have to apply or wait; they just get it.' That is the statement that led to the doctoring of his Hansard and subsequently the dismissal of his departmental secretary—one of the darkest periods of our history in this place. Why are we debating a bill that needs to be given effect basically from 1 July—this week? The government couldn't work out a month, two months or six months ago that in the absence of any other policy work in the last five years they're going to have to extend the farm household allowance? They had to wait until now? This is just incredible. Was it the drought tour that convinced the Prime Minister that he needed to extend the farm household allowance by a year? Surely not. I hope not, because that was just obvious to all and sundry.

What does the future hold for drought policy in this country? This is an interesting question. Something very curious happened in the Federation Chamber last night. I welcome the fact that during the week of the Prime Minister's infamous drought tour the relatively new Minister for Agriculture and Water started talking about climate, recognising the things I was saying earlier about accepting drought as not an abnormal event. He talked about resilience, he talked about adaptation and he talked about the challenge for some people in some parts of the country that were capable of being farmed 100 years ago and are not so capable of being farmed today. He was using all the right language. But the member for Calare had a motion on drought last night in which he mentioned none of those things. Interestingly, the member for New England contributed to that debate and, again, mentioned none of those things. I'm glad the member for Mallee is here, because he did. He understands this subject pretty well, in my view, and I'll give credit where credit is due. But who's in charge? Is the former member for New England still in charge of drought policy? He's still in denial, still wanting to roll out the boondoggles and defend his legacy. Or is the new minister in charge, backed by people like the member for Mallee? I hope it's the new minister, and I wish the member for Mallee the best in that regard, because we do need to get this job done. We need to embrace the intergovernmental agreement review. We need to rebuild the SCoPI process and construction, because that's the first step.

The other question I posed was on government priorities. Remember when agriculture was one of this government's five pillars of the economy? They hardly talk about the agriculture sector anymore. The member for New England was very fond of claiming credit when commodity prices were high and everything was good, but, now we have a crisis in all sorts of places, including the dairy industry, no-one wants to talk about agriculture anymore.

Let's have a look at the legislative agenda. The Agricultural and Veterinary Chemicals Legislation Amendment (Operational Efficiency) Bill 2017 was introduced into this House on 25 October last year. This bill enjoys bipartisan support. It has disappeared. The Export Control Bill 2017, a very important bill, was introduced into the Senate on 7 December last year. It hasn't been prioritised and has disappeared. It's an important bill which enjoys bipartisan support. The Biosecurity Legislation Amendment (Miscellaneous Measures) Bill 2018, another very important bill, was introduced into the House on 28 March last year. It is still in the House. It was introduced and has disappeared. The penalties for breaches of animal welfare standards in the live export trade were introduced on 24 May, never to be seen again. We know the reason for the last one: I foreshadowed an amendment, and the government won't bring the bill back, because it's fearful of people crossing the floor and of losing the vote.

How does this reflect on the government's priorities for agriculture? They won't even bring bipartisan bills into the House for debate and to be voted upon. They won't even put these bills on the legislative agenda. I don't have time to go through them tonight, but these are important bills. The department of agriculture is spending a very large slice of its time and resources trying to work out how to make the APVMA work in Armidale and the Regional Investment Corporation work in Orange, when it should be focusing on these very important and meaningful matters that affect our agricultural sector.

When the former minister was here, we heard about dams which were unproven, uneconomic and will never come to reality, and silly stunts around carp eradication. I said so many times that he was the worst agriculture minister in the history of Federation. That's in the past. I want the new minister to step forward and demonstrate that he's prepared to take the agriculture portfolio seriously. It's not just agriculture; they wiped fisheries and forestry out of the portfolio title—another silly mistake. We don't hear the new minister talk about fisheries or forestry. I know Senator Ruston does work in that area, but people want to hear their lead minister talk about these issues.