Senator BARTLETT (Queensland) (09:31): According to the speakers list, I am the final speaker before the government's representative concludes the second reading debate on these two pieces of legislation. We will then move into the Committee of the Whole, where there will be a number of amendments and, of course, an obligation on the Senate to query at length the government and, potentially, the Labor opposition about the actual impact of the 280-odd amendments that were made to these pieces of legislation in the House of Representatives just two days ago.

Just to recap for people: we are talking about two very significant pieces of legislation, the Foreign Influence Transparency Scheme Bill 2018 and the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018. These have been around since late last year. They were the subject of an inquiry by the Parliamentary Joint Committee on Intelligence and Security, but, as multiple speakers have noted, that committee excludes anybody other than the Labor and coalition parties, which means that no other party, no other member of the Senate, has had any opportunity to be part of those deliberations. So what we are, in effect, dealing with, given that 280 amendments were made to these two pieces of legislation just two days ago in the House of Representatives, is pretty much new legislation. From all reports, it is improved legislation compared to the original version from last year—and thank heavens for that is all I can say, because they were abominations. But nonetheless, in effect, this is new legislation that the Senate is now having to consider in detail, just a couple of days later. That is the situation we are faced with. It's not the first time that's happened, of course. I am not particularly interested in doing a lot of faux outrage about that. I'm simply describing the situation as it stands.

I will take the opportunity to put on the record again, as I have multiple times in the last few months and as I did multiple times 10 or more years ago, that I think it is completely inappropriate that the Parliamentary Joint Committee on Intelligence and Security excludes people other than the Labor and coalition parties. It has been the case for that committee and its predecessors for a long period of time, apart from a brief interregnum when Andrew Wilkie was on it, at the time when there was a minority government and he was able to use that situation to get himself on it. I think that is correct.

I recall raising this many times when I was here in the past. Senator Robert Ray, in particular, would put the case then that Senator Wong put yesterday—that this is a committee that really is only for people from parties of government. I think those were the precise words she used. And that is clearly the view of the Labor Party and the coalition parties. It perhaps has its own internal logic, but it also demonstrates a serious part of the problem here. We have the Labor Party and the non-Labor parties in their various forms over the years that have basically been part of the political establishment and the governing class for decades—in fact, for over a century. They basically see defence matters, security matters, intelligence matters as their domain, and the public just have to trust them. Some of the time, that is fine, but you honestly don't need to be much of a student of political history to demonstrate that that agency has, at times, acted in a way that's quite clearly inappropriate. In fact, all you need to do is read the actual history that's been put and written or authorised by the actual agencies, such as ASIO—the history of ASIO, for example, that's been quite thoroughly written in recent times and published. The agency has quite clearly been acting in the interests of the governing class against the interests of the public and against people's basic civil liberties.

When I came back into this place towards the end of last year and made what would loosely be called my first speech, in the formal sense of the word, I made the comment that this parliament as a whole—and, historically, parliaments around the world—far too often operates to actually continue to keep the community under the thumb and to suppress people and oppress people in the interests of the establishment and the governing classes. That applies even more to the executive and government, where the executive class and the government class, over time, basically just assume that their interests equate to the public interest. History has shown time and time again that, in our own country, let alone so many other countries that like to call themselves a democracy, that has not been the case. The state operates to protect its own interests against the public, and, where necessary, oppresses and suppresses the public if the state sees its interests are threatened. Time and time again, that has been shown to happen. It's not some conspiracy theory; that's just a natural consequence of how an embedded governing class will operate if there is insufficient transparency. And one of the reasons that is able to happen is precisely because the relevant committee that can examine this stuff is contained and is exclusively for those people from the parties of government, who basically operate as their own separate club on these issues, and the public are excluded from it. The fact that that is happening again now should not be a surprise. In fact, it would be an extraordinary surprise if something different had happened. We all hoped something different might have happened this time. There was a huge amount of civil society outrage about what was being proposed. There were strong calls, particularly on the Labor Party, not to do a deal on this and to just scrap these bills, start again properly and involve civil society in putting forward a better alternative, but the status quo always comes back around each time.

That is not to deny, let me say, that there have no doubt been some good improvements. I'd again use historical equivalence. The former senator John Faulkner, who was widely respected in this place and who did take that role seriously, definitely reduced some of the very dangerous provisions of security legislation in their original form that were put forward by the government of the day. I acknowledge that, and I'm sure that has happened again here. Nonetheless, the simple fact is that, particularly in regard to the espionage and foreign interference bill, this is delivering another massive expansion of state powers with completely inadequate scrutiny and transparency and with completely inadequate opportunity to scrutinise what is happening and to test some of the assertions that will be put forward, I'm sure, by the relevant minister over the course of this debate.

Nowhere is that shown more clearly than if we go back to just yesterday and the reasons given as to why this is urgent. Forget about the procedural issues—whether or not a motion was needed. This is still being pushed through on the last day of the sitting period. We could just as easily deal with this in August. There's plenty of other legislation to deal with today—in particular the Higher Education Support Legislation Amendment (Student Loan Sustainability) Bill 2018, which the Greens and Labor opposes and which has a 1 July start date, so it has to get through if it's going to be operating; although I certainly hope it doesn't get through—but somehow or other it's this national security legislation amendment bill that is urgent, and with no justification.

The only justification, and we all know it, is the political imperative of the by-elections—the so-called super Saturday coming up in four or five weeks. The only reason for the urgency we been given is a very short statement from the government yesterday saying that it's urgent because they say it's urgent in response to an 'unprecedented threat of espionage and foreign interference'. You don't need to have been here for years and years or to have followed these proceedings for years and years like I have to know how hollow the comment of 'unprecedented threat of espionage and foreign interference' is. Any basic student of history in this country, let alone anywhere around the world, knows that Western democracies—anywhere as authoritarian as you like—always fall back on the excuse of 'unprecedented threat of espionage or foreign interference'. It goes back to the history of Federation—'We've got to federate to protect ourselves against foreign interference.' It's the one thing that all governments use to try to justify giving themselves more power and to put fear in the community—they say, 'We have to do this because of this scary thing over there.'

Again, I'm not saying that there are no threats. Of course there are threats. But the issue here is: why do we need these extra powers to deal with those threats? And that question has been asked time and time again for 20 or more years now, for—Senator McKim told me the number yesterday.

Senator McKim: Over 200.

Senator BARTLETT: Over 200 times this has happened with different pieces of legislation and amendments at both state and federal levels over 20 years. At the federal level it would be well into double figures. We've amended these pieces of legislation 30 or 40 times. And each time I'm sure we heard 'unprecedented threat'. Each time I'm sure we heard 'urgent'. We've certainly heard them time and time again. I quoted yesterday from an example from August 2004, under the shadow of the same non-existent urgency to ban same-sex marriage. We also had the non-existent urgency to deal with an 'unspecified threat' that suddenly had to be dealt with.

Each time, we've never really had the opportunity to test why these specific powers are needed. And, inasmuch as there have been reviews of some of the extra powers that have been provided to agencies, like ASIO and espionage and intelligence agencies, very rarely has it been said, 'Yes, it was really good that that change was made because otherwise—' Some of these powers have never been used. But what they do give governments is more and more power to use and act in their own interests. This is the political class and the establishment class and the governing class and the state acting in their own interests against anybody they see as a threat.

I saw an interesting quote in an interview yesterday that Mr Hastie, the Chair of the Parliamentary Joint Committee on Intelligence and Security, gave to the ABC. The interviewer was asking, in respect of journalists, about how much transparency is okay, because the government's likely to say it's made amendments now that makes it okay for journalists—it's safe now, if it's in the national interest. It's the old national interest test that's used in so many pieces of legislation. It's all over the place. It's in the Migration Act as well. It never has any meaning. The government can interpret it to mean whatever it likes. National interest means what the government says it means, which means national interest is the government's interest. And that's how it has basically operated in a legal sense time and time again. But the particular quote that caught my eye was Mr Hastie saying that apparently, under these amended bills, there's robust defence for journalists, and another check and balance is that the Attorney-General has to consent for a prosecution. That's okay then! The Attorney-General has to consent! That makes me feel much more relaxed—not.

We saw—I spoke about this last year, and I think we'll see about a specific case later today—the Pine Gap protesters and the way the Attorney-General not only explicitly consented to pursuing but also tried to get peaceful, harmless protesters, who presented absolutely no security threat at all, jailed for years. On the matter of consent, the Attorney-General enthusiastically pursued the powers that they had—powers that hadn't been used for decades that were set up for completely different purposes under an act during the Cold War—and used those powers totally for political purposes. If they can use powers under a 60-year-old act that had been set up for completely separate purposes, in the context of the Cold War, to pursue harmless protesters conducting prayers and singing songs inside Pine Gap but nowhere near the actual facilities, imagine what they can do with all of the powers that this Senate keeps giving them time and time and time again.

Mr Hastie also said there was protection, saying:

… the Attorney-General actually has to consent for a prosecution, so there's a number of different things that have to be done for a prosecution to proceed, and that's designed to prevent a chilling effect on the media because a free media is critical to democracy and we don't want to diminish that at all, in fact we want to enhance it and I think we've struck the right balance …

The ABC host said, 'Given you've made such bold statements about the need for free reporting of these matters, I'm curious as to whether you are uncomfortable with codifying jail time for journalists for doing just that—for acting as a free media.' Mr Hastie said:

What we can’t have is radical transparency.

This is a new concept—not just any old garden-variety transparency but 'radical transparency'. He said the whole point of the secrecy offences was 'to prevent privileged and classified information from being inappropriately disclosed'. Of course, it will be the government that will decide what is inappropriately disclosed. We all know the government itself, over time, has repeatedly disclosed classified information. When it's in their interests, they're happy to do it. They just don't want anybody else to do it if it's against their interests—and those are the interests of the government of the day. The ABC person said, 'So where do you draw a line? What is "radical transparency"?' Mr Hastie said:

Radical transparency is Julian Assange dropping a whole bunch of commonwealth secrets out for public consumption …

That's what it is. That's just one example. But he is, of course, an Australian citizen—from Queensland originally, I might say—who has basically been abandoned by this government. I'm not giving him a character reference, but I am certainly saying he has a right as an Australian citizen to receive proper support against what has clearly been an international conspiracy by governments to try and silence him. He has been kept in isolation for years. He has been basically silenced already because of the threat he poses to the state—not to the community, not to the public. The things that he exposed and, more specifically and definitely, that Edward Snowden exposed are things that governments wanted hidden, things so-called democratic governments were doing to their own people. So we have that definition: 'Radical transparency is Julian Assange.' These laws are attempts to criminalise and attack people like Julian Assange. Let's not forget that Julian Assange is acknowledged as and registered as a journalist, and actually won a Walkley Award for his work exposing governments acting against their own citizens. We've seen this time and time again in the United States; it's a case of great debate at the moment.

Let's not forget the other very significant thing. We've had this march over the last couple of decades towards more and more powers for our intelligence agencies. The size of ASIO and relevant organisations has expanded, and the size of their budget has gone through the roof over the last couple of decades—and that's in the context of ASIO's own history, their published history, showing the number of times they've clearly overstepped their legal authority. They have clearly acted against the rights of citizens in this country, based on their own belief, their own internal little bubble. I'm not saying they're bad people; I'm saying that's what happens when people are put in a bubble and made to think that their views are the only views that matter, and where there is no transparency and the powers that people are given are absolute. It is almost inevitable that, regardless of the good character of those involved, if people are put in a situation where they're given such absolute powers with such minimal accountability and transparency, you will get abuse of those powers. So, to expand those powers further, particularly without proper scrutiny and genuine opportunity to test the assertions made by the government of the day as to what those powers will and won't mean, is incredibly dangerous. That's why the Senate should have supported Senator McKim's motion to have these new pieces of legislation scrutinised by a Senate committee.

I'm sure the minister will give answers he believes are true, as he's advised, over the course of the committee stage of this debate. However, there is no capacity for those answers to be tested by a range of other people and all of the legal experts in this country who have a whole range of different political views, ideological perspectives and philosophical ideals. We will do the best we can but, as good as Senator McKim and others in this chamber might be with their forensic minds, it would be much better to open that up to all of the forensic minds around this country to properly test all of the amendments that have been put forward to make sure they do what they say they are going to do. Even if you totally agree philosophically with the intent of what's being proposed here—which I do not—this would make sure that there are not broader powers than are intended, that they're worded the right way and that there are commas in the right places. We all know of times when this has gone wrong in the past. I'm deeply concerned about what is being done here. It is deeply disappointing that the Labor opposition is going along with the government in this process, although it is unfortunately not surprising because it's happened so many times before. (Time expired)

Senator WONG (South Australia—Leader of the Opposition in the Senate) (09:51): I have spoken already in this debate, so I don't seek to add to the substantive debate. I do, however, wish to briefly respond to the second reading amendments which were moved after I spoke. There were second reading amendments moved by Senator McKim, on sheets 8475 and 8476. There is also an amendment to be moved by Senator Patrick. Senator McKim's amendments seek to refer these bills to a further committee inquiry, and Senator Patrick is seeking to refer his amendments on sheet 8446 to an inquiry by the PJCIS.

First, the effect of all of these amendments would be to interrupt further consideration of the bills. Under the committee's report in August, for the reasons that I outlined yesterday, the opposition will not be supporting further inquiry or delay on these bills, noting the extensive inquiry that has been undertaken by the Parliamentary Joint Committee on Intelligence and Security.

The amendments proposed by Senator Patrick on sheet 8472, which are the subject of referrals, seek to inform the intelligence committee's oversight powers in the Intelligence Services Act. I do wish to, again, mark that Labor has long sought to improve the oversight powers of the parliament with respect to intelligence and security legislation, and the operations of intelligence and security agencies. In addition, the L'Estrange and Merchant review of the Australian intelligence community recommended changes to the oversight powers of the PJCIS. The opposition welcomed these recommendations, and we hope the government will similarly consider them with a favourable eye.

The oversight imperative was the purpose of the Faulkner reforms, which were proposed in this place by former senator John Faulkner—also a member, at that time, of the intelligence committee prior to his retirement. I would invite Senator Patrick to engage with the opposition and, in particular, Senator McAllister, who now has carriage of the legislation on these matters. I also invite the government to work with us to progress sensible and constructive reforms in line with the L'Estrange and Merchant review of the Australian intelligence community.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (09:54): I want to thank my parliamentary colleagues for their contributions to the debate on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018—the EFI Bill; and the Foreign Influence Transparency Scheme Bill 2017—the FITS Bill.

These two bills have been considered in detail by several parliamentary committees, and I thank those committees for their contributions. I particularly thank the Parliamentary Joint Committee on Intelligence and Security for their detailed consideration of these two bills. The committee has produced detailed and robust reports, having considered the bills over a period of some six months. It received a total of 143 submissions and 68 supplementary submissions, held multiple public and private hearings and received multiple classified briefings. The committee considered the detailed proposed government amendments to each bill provided to it by the Attorney-General, which were the subject of further public hearings and submissions. The committee tabled its report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill on 7 June 2018 and its report on the Foreign Influence Transparency Scheme Bill on 25 June 2018. The government has accepted all of the committee's recommendations, as it has for each of the previous 10 tranches of national security legislation.

With respect to the EFI bill, covert interference and espionage by nation states are global realities which have the potential to cause immense harm to our national sovereignty, the safety of our people, our economic prosperity and the very integrity of our democracy. To counter this threat, Australia must have a robust 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. The measures in the bill will fundamentally reshape our national security offences to protect Australia's sovereignty and information, and protect the democratic principles and values that underpin our society.

The EFI bill includes comprehensive new espionage offences that are designed to capture the full range of conduct undertaken to compromise sensitive information and prejudice our national security. The new offences will target not just the person who discloses the information but also the actions of the foreign principal who receives the information. The 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.

Senator McKim expressed the view that the espionage offences might capture persons who disclose information about potential human rights abuses or breaches of international law to international advocacy organisations or the United Nations. Senator Wong addressed these issues in her contribution to the debate, as did the shadow Attorney-General in his contribution to the second reading debate in the other place. I will not restate the point that Senator Wong and the shadow Attorney-General correctly made. A person seeking to draw human rights concerns to the attention of the United Nations or other international organisations will not commit an espionage offence as they did not intend to; nor are they reckless as to whether their conduct will prejudice Australia's national security.

The EFI bill will introduce, for the first time, a suite of foreign interference offences into the Criminal Code. 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. Senator Leyonhjelm set out a series of scenarios where a person might entirely properly communicate with a foreign government in private in the course of informing themselves on a matter of public importance before engaging in debate in Australia. I want to thank the senator for providing specific examples and for clearly identifying the legislative provisions that he is concerned may be engaged. I can reassure the senator that the scenarios, as he described them, would not constitute foreign interference offences. In the scenarios he sets out, a person will only commit a foreign interference offence if they seek to covertly or deceptively influence a political or governmental process on behalf of or in collaboration with a foreign government—that is to say: it is the act of influence in the process that must be covert or deceptive for the offence to be committed.

The EFI bill contains a suite of new Commonwealth secrecy offences, which replaces sections 70 and 79 of the Crimes Act. There will be separate offences that apply to Commonwealth officers and non-Commonwealth officers. The offences that apply to non-Commonwealth officers will be narrower in scope and attract lower penalties. Defences will apply to ensure the offences do not apply too broadly, including a defence specifically applying to journalists as well as editorial and support staff who reasonably believe that their conduct was in the public interest. The new secrecy offences ensure harmful information cannot be released, while appropriate defences protect freedom of speech.

The EFI bill will update and simplify the offences of treason and treachery, as well as archaic and outdated offences in part 2 of the Crimes Act. These are some of the oldest offences in the statute book. 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 introduce reformed sabotage offences into the Criminal Code. The new offences will criminalise conduct causing damage to 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 leaves an item or system vulnerable to future misuse or exploitation. Senator McKim expressed the view that the sabotage offences might capture persons who picket a coalmine or port. Senator Wong addressed these issues also in her contribution to the debate, as did the shadow Attorney-General in his contribution to the second reading debate in the other place. A person engaged in ordinary and lawful protest will not commit a sabotage offence, as they did not intend to nor are they reckless as to whether their conduct will prejudice Australia's national security.

Finally, the EFI bill will amend the Telecommunications (Interception and Access) Act 1979 to ensure the powers under that act are available to investigate the offences contained in the EFI bill. While foreign actors are free to promote their interests in Australia's free and open society this must be done in a lawful and open way. The FITS Bill will provide transparency for the Australian government and the Australian public about efforts by foreign governments, foreign political organisations, and persons and entities closely related to foreign governments and foreign political organisations to use intermediaries to influence Australia's political and government processes. Decision-makers in the Australian government—and the public—should know what interests are being advanced in respect of a particular decision or process. 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 bill will empower the Secretary of the Attorney-General's Department to issue a transparency notice setting out whether a particular entity or individual is related to a foreign government. 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 FITS bill exempts 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. Senator McCarthy raised the issue of Indigenous rangers working in collaboration with international charities such as The Pew Charitable Trusts. I am pleased to say that the bill, incorporating the Attorney-General's amendments as well as those recommended by the PJCIS, will place beyond doubt that Indigenous rangers are not required to register in such circumstances. The FITS Bill will introduce offences which will promote compliance with the scheme.

I would like to thank my parliamentary colleagues for recognising the need for these important 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 ensuring that our law enforcement and security agencies have the powers they need to respond to the broad spectrum of foreign interference and related criminal activities directed against Australia's interests. Legislative reform is also a critical step in shedding light on foreign interference. 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. I commend both bills to the Senate.

The PRESIDENT: The question is that the second reading amendment moved by Senator McKim be agreed to.

Senator SIEWERT (Western Australia—Australian Greens Whip) (10:11): In respect of the Foreign Influence Transparency Scheme Bill 2018, I move:

At the end of the motion, add:

", and the bill be referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 14 August 2018."

The PRESIDENT: The question is that the amendment moved by Senator Siewert be agreed to.

Senator PATRICK (South Australia) (10:15): I move the second reading amendment on sheet 8472:

At the end of the motion, add:

", and:

(a) the amendments circulated by Senator Patrick on sheet 8446 be referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 13 August 2018; and

(b) further consideration of the bill be made an order of the day for the first sitting day after the committee has reported."

The PRESIDENT: The question is that the amendment moved by Senator Patrick on sheet 8472 be agreed to.

The PRESIDENT (10:21): The question is that the bills be read a second time.

Senator McKIM (Tasmania) (10:24): I would like to place it on the record that it's not my wish and I ask that the bills be considered separately in committee.

The TEMPORARY CHAIR: Okay. We'll deal with the national security legislation amendment first. Minister?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:24): I'm just seeking some guidance as to the procedural way forward. These bills are being considered cognately, and we don't agree with them being separated—though obviously separate amendments will be considered separately. So I seek your guidance as to the procedure going forward. But we want to see these bills considered cognately, as was the understanding going into this debate.

The TEMPORARY CHAIR: Minister, effectively, leave is sought by the Senate to deal with them together, and Senator McKim's actions have effectively denied leave. So we will deal with the bills separately. We will deal with the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 first.

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018

Senator McKIM (Tasmania) (10:26): First, Minister, I'd like to go to the issue of urgency, which has been claimed repeatedly by the government and the opposition on what I believe to be totally spurious grounds. We've had numerous pieces of public commentary from government ministers over the last couple of weeks that said that these bills had to be passed before the by-elections occurred. So I'd like you, Minister, please, to explain whether that is still the government's position—that these bills are urgent because of the up coming by-elections. If you are still going to claim that as a position, could you explain why? If you are going to walk away from that position, could you explain why so many government ministers were on the public record as saying that these bills needed to be passed before the by-elections, when, if you are walking away from that position, that is an admission that they do not need to be passed before the by-elections?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:27): In relation to the urgency: absolutely, the government believes that this is an urgent threat and it is important that we have legislation in place to deal with that threat as quickly as possible. Obviously, by-elections are major exercises in democracy. So, where we've been in a situation where we don't have strengthened laws, obviously that provides potential for interference in our democratic processes. So, whether it's the by-elections coming up or any other democratic event beyond that, this legislation is urgent and the government absolutely maintains that. That's why we believe it's important that it's passed through the Senate as quickly as possible.

Senator McKIM (Tasmania) (10:28): Minister, thanks for that response. Can you confirm that the Attorney-General's Department gave advice to the Joint Standing Committee on Intelligence and Security that some of the frameworks that this legislation seeks to establish will take many months to put in place?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:28): That's correct.

Senator McKIM (Tasmania) (10:28): Precisely which frameworks will take many months? And are you able to provide advice to the Senate or to this committee on the estimated length of time it will take AGD to establish which frameworks?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:29): I'm advised: the transparency scheme and the secrecy provisions, and they have a delayed commencement by proclamation to take account of that.

Senator McKIM (Tasmania) (10:29): Presumably, the delayed proclamation is based on the advice that you've just confirmed was given to the Intelligence and Security Committee and which, presumably, was also given to government by the Attorney-General's Department. Are you able to provide a time frame for the implementation of those two frameworks? I acknowledge that the transparency scheme is not the bill that is currently before the committee, Minister. I'm happy if you want to defer until we consider that bill, but you might be able to provide some advice about that now.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:30): I can answer both. The transparency has to commence within 12 months, and the secrecy within six months. But, obviously, proclamation provides flexibility as the details are finalised.

Senator McKIM (Tasmania) (10:30): Are there any other frameworks which will take any time beyond proclamation to establish?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:30): No.

Senator McKIM (Tasmania) (10:30): Thank you, Minister; I appreciate that. In response, I guess I'd make the obvious point that I'm not convinced that the argument we needed to get these in place for by-elections was anything other than a political argument. I note for the record that the statement of reasons for urgency that was tabled earlier this week by the government did not mention by-elections at all.

Minister, I want to take you now to some of the matters which have been contested between you and me in this debate, and that is the impact of these laws—should they pass as they currently stand—on things like peaceful protest and public interest journalism. I want to go first to the issue of peaceful protest. I note that in your summary on the second reading only moments ago, you were very careful to include the word 'lawful' in what you said, saying that this legislation would not have any impact on someone who was engaged in 'lawful' protests.

I want to remove that word from our discussions, Minister, because, as you know, blockading a road or an entrance gate to a particular industrial facility is actually not lawful; it's unlawful, under current law. So I want to ask, specifically, about those kinds of protests—peaceful, non-violent protests which are not lawful under current law. I think the easiest way for us to do that is to talk about examples. I want to use the example of a person or a group of people who blockade, unlawfully, a road or an access point that leads into a port that is being used for live sheep exports. Could a person or group of people who do that be charged with the sabotage offences currently contained in this legislation?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:33): The short answer is no, and I'll just go through why. All of the sabotage offences need to be read together. The sabotage offences can only be committed where a person damages public infrastructure and intends for their conduct—or is reckless as to whether it does—to prejudice Australia's national security or to advantage the national security of a foreign country. There are a number of reasons why these offences wouldn't apply in that particular scenario.

'Public infrastructure' is a defined term set out in section 82.2 of the bill. This definition is unchanged since December, when it was first introduced. It includes Commonwealth facilities, premises and systems, defence premises, telecommunications networks and infrastructure that provides utilities or services to the public, such as the electricity or water grids. But I want to deal briefly and specifically with your line of questioning about the lawful versus the unlawful and whether or not that would, in and of itself, attract the sabotage offences. Obviously the government does not and would not condone behaviour that breaks state and territory laws in the context of protest. However, the fact that those laws may have been broken would not be enough to constitute a sabotage offence under sections 82.5 or 82.6. As stated earlier, these offences require a person to intend to, or to be, reckless as to whether they'll prejudice Australia's national security or advantage the national security of a foreign country. Simply breaking state and territory laws wouldn't be sufficient to satisfy that element.

Senator McKIM (Tasmania) (10:35): Minister, thanks for that response. I want to take you to section 90.4 and the definition of national security. This goes to the argument you've just made about someone needing to be reckless as to the intent of their actions. Can you please confirm firstly that 'caught' in the definition of national security is something which would engage a country's political or economic relationship with another country or countries? If that is the case, wouldn't you agree that somebody who blockaded a port or an export facility in trying to prevent the loading of live sheep exports would impact on Australia's economic relations with another country and, therefore, be caught under this definition?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:36): The answer to the first part of your question is yes. But there is a big difference between the actions you're suggesting—actions which are taken for the intention of animal welfare—and actions which are taken either intentionally or recklessly to damage the national security of our nation.

Senator McKIM (Tasmania) (10:37): I don't accept that at all, and I want to talk you through why I don't accept that. Actually, perhaps we can do this in question and answer, which is the way the forms of this committee are established. If somebody took a protest action with the intent of damaging Australia's economic relations with another country would that be caught under the sabotage provisions because of the way national security is defined in section 90.4?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:38): Again, we're distinguishing between different intent. You are talking about someone who intends to disrupt a particular trade for a particular reason as opposed to someone who intends to damage Australia's interests. That is quite a separate intention. That's why there's no prospect of that in circumstances where someone was acting in order to deal with animal welfare issues as opposed to the intent or recklessness that's needed. If you go to chapter 2 of the Criminal Code, obviously intent is pretty clear. But when we talk about recklessness the prosecution is required to prove that a person is aware of a substantial risk that their conduct will prejudice Australia's national security or advantage the national security of a foreign country, and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Senator McKIM (Tasmania) (10:39): Thanks. Even though I've still got some concerns around intent, I do want to ask some questions about the recklessness aspect of this. Let's say someone did want to make a protest for a political reason to make a point about animal cruelty, as you've raised in a couple of your responses moments ago, so they decided to do that unlawful protest by blockading a port where live sheep were being loaded for export. They were doing it with the intent of making a political point, but they knew that their actions would damage Australia's economic relations with the country to which these sheep were being exported. Wouldn't they then be caught by the sabotage provisions of this legislation because of the way 'national security' is defined in proposed section 90.4?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:40): Obviously, ultimately these would be matters for the courts, but we've set out how the legislation applies. What we're talking about is that what this turns on is unjustifiable risk and unjustifiable actions. When someone is setting out or is reckless as to the fact that their actions are going to affect national security, potentially, then the elements are made out. But where someone sets out to make a political point, to protest about animal welfare, obviously that is in a different category in terms of what their intent is and what the fault element is in relation to an offence.

Senator McKIM (Tasmania) (10:41): I invite you to reconsider the advice you've just given to this chamber, Minister. I think you were loose with the words you just used, and I'm concerned that you're placing inaccurate information on the record and potentially misleading this chamber. I thought I made my argument clear, but I'll make it again: proposed section 90.4 defines the 'national security' of Australia to mean any of the following—and then it goes through a series of criteria that you would think are reasonable in terms of how 'national security' is defined: the defence of our country, the protection of our country, the protection of the integrity of our country's territory and borders, and so forth. I want to put those aside and take you to section 90.4(1)(e), which catches a country's, including Australia's, 'economic relations' with another country.

So, again, I put to you: if someone, even though their intent may be to make a political point about animal cruelty—for example, in the context of the hypothetical that I've put to you—is 'aware' that their actions could or would damage Australia's economic relations with the country to which the sheep are being exported, by delaying and perhaps preventing, totally, the export of those sheep, wouldn't that place them in a category of being 'reckless' and caught under the sabotage provisions of this legislation because of the way you've defined 'national security' in section 90.4(1)(e)?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:43): No. Again, I go back to the fault elements. You're dealing with recklessness here. I've dealt with it, but I'll deal with it again. The prosecution is required to prove that a person is aware of a substantial risk that their conduct will prejudice Australia's national security or advantage the national security of a foreign country, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk. We are not dealing with a low bar when it comes to that in terms of recklessness. We're not dealing with carelessness as is dealt with in other areas; we are dealing with recklessness or intent. I simply don't accept the proposition that you're putting—that there is such a low bar that activity such as you're describing would fall foul of that provision.

Senator McKIM (Tasmania) (10:44): Your defence here relates to the establishment of fault, and you've just advised this committee—and please correct me if I've got this wrong—that there are two elements to that: one is that the person is aware that there is a substantial risk that their actions may impact on national security. Remember, we're talking about economic relationships here, within the very broad definition of national security in section 90.4. The first bar that needs to be cleared, if you like, is that the person needs to be aware that there's substantial risk that their activities might damage Australia's economic relationship with another country. I submit to you that, in the hypothetical I've given you, that bar is comfortably cleared, because the person is well aware that their protest may delay or entirely prevent the loading of the sheep for live export, and that therefore they have cleared that bar because they have an awareness that their actions constitute a substantial risk to Australia's economic relationship with the country to which the boat is being loaded to travel to. Am I not correct in that categorisation of the first bar that needs to be cleared?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:45): Again, all of those elements need to be taken together. I'll take you back to one of the pieces of language you used, which was 'impact' national security. The legislation talks about 'prejudicing'. You are talking about a substantial risk that the conduct will prejudice Australia's national security, and, in all of the circumstances, it's unjustifiable to take the risk. No, I don't accept the proposition that you're putting.

Senator McKIM (Tasmania) (10:46): We'll come to the second bar in a minute. By the way, I do accept that these elements would be considered together by courts if this hypothetical situation ever got to the courts—and I hope it doesn't but I suspect that it will at some stage in the future. I'll give a philosophical underpinning to my concerns here. A close reading of human history shows that, if parliaments create a particular power, power-hungry, desperate governments—including in Western democracies—have a track record of using those powers to the fullest extent to quash people taking action to hold governments to account. Your government has been guilty of this overreach on many, many occasions. If you want, I'll give you an ad hoc chapter and verse on that. In order to try to save us time, the philosophical underpinning of my expression of concern on behalf of the Greens here is that governments have a track record of utilising every last bit of power that parliaments make available to them if they feel politically threatened by the actions of a citizen or a particular group of citizens.

Having placed that on the record, and having said that I accept that a court would need to consider the fault elements together, I still want to take you to the first bar, which is the requirement that a person would have to have an awareness that there was a substantial risk that their action might—it's not 'impact', Minister, I'm sorry; the word you used was—

Senator Seselja: Prejudiced.

Senator McAllister: Prejudiced.

Senator McKIM: Prejudiced. Thank you, Senator McAllister and Senator Seselja. If the person is aware that there is a substantial risk that their actions might prejudice Australia's economic relations with the country to which the live sheep are being exported, surely you have to accept, Minister, that that first bar, the substantial risk bar, is cleared. Do you not accept that?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:48): What you're now asking is for me to, in this forum, start to get into the realm of what a court would be doing and what evidence would be considered. I've put out very clearly, and through a range of processes we've put out clearly, exactly what those elements are. They are designed to deal with particular actions of sabotage. In terms of getting into the kinds of details that you're now inviting me to get into, I can't prejudge what kind of evidence might be put to a court in those circumstances. I think you're now asking me to get into that level of detail. We've set it out—I've set it out very clearly and it is set out very clearly in the legislation. The government believe and the opposition believe, having considered it as well, that these bars are at very reasonable levels before this offence is engaged. It is not aimed at the kind of political activity that you are referring to, but you are now inviting me to get into the realm of what a court would do. I don't believe that that's appropriate.

Senator McKIM (Tasmania) (10:49): I'm actually not inviting you to do that at all, Minister. I'm putting a very specific circumstance to you and asking whether that circumstance would actually clear the bar that you have advised this committee exists? But, Minister, your response actually comes to the nature of the Greens' concerns, and the chilling effect that this legislation will have on participation in our democracy. That is because you're trying to now avoid answering entirely reasonable questions on this legislation on the basis that you don't want to start speculating about how a court might rule.

Imagine how a citizen is going to feel, Minister, when they ask themselves, 'Should I actually participate in this blockade of a live sheep export? What legal risk am I exposing myself to?' How are they supposed to understand where the bar is set if you won't place it on the record in this committee? You refusing to answer these entirely reasonable questions is actually compounding the problem, because citizens who want to participate in our democracy, who want to express their justifiable abhorrence about the live sheep exports that your government so cruelly supports, are going to ask themselves the question: 'What is my legal jeopardy here? Am I likely to be charged with sabotage under espionage provisions simply because my actions actually carry a substantial risk that they will impact on Australia's economic relationship with another country?' I mean, can't you understand the terrible situation that you are placing people in here and, more broadly—and actually more importantly for our democracy—do you accept the chilling effect that these laws will have on public participation, including engaging in peaceful protest action, whether it be lawful or unlawful?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:52): No. I'd just make a couple of points. I think we're going around in circles a little bit, but you're talking about people engaging certain defences. When people act unlawfully, as you are describing—that is the basis of the propositions you are putting—of course they potentially attract the law as it stands. But what you seem to be trying to suggest is that the definition of 'national security' in this bill is somehow going to open up people to prosecution that may or may not be intended in the way that you're describing. And I'll just make the point that there is absolutely nothing unusual about the definition of 'national security' in this bill. It is consistent with existing definitions in the National Security Information (Criminal and Civil Proceedings) Act 2004 and with the Australian Law Reform Commission's 2009 report recommending reforms to Australia's secrecy offences. So the very proposition you're putting, that somehow there's a change in definition here, is flawed for the reasons I've set out.

Senator McKIM (Tasmania) (10:53): In fact, I have not put a proposition that there is a change in definition as you've just asserted, Minister, so I'll just place that on the record. Look, we could probably debate this all day. Unfortunately, your refusal to engage fully—although I acknowledge you've attempted to engage partially—on this issue has reinforced our concerns about the chilling effect of this legislation on political participation, freedom of speech and freedom of political expression in our country, and you've abjectly failed to convince me that I was wrong in any way with the arguments I was putting in my speech in the second reading, which you've rejected but failed to rebut. You've denied them, but you've failed to fully explain, in a reasonable way, why you think I was wrong. Talking about freedom of speech and freedom of political communication, has the government taken advice from the Solicitor-General on whether these laws breach the implied right of freedom of political expression in Australia enshrined in our Constitution?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:55): Senator, I'm not going to get into specific advice, but obviously this has been a consideration for government. The government is absolutely satisfied that it doesn't breach the implied freedom of political communication.

Senator McKIM (Tasmania) (10:55): You do presumably acknowledge, Minister, that that's not a view shared by other legal experts who have offered comment on this legislation? I think my colleague Senator Rhiannon is, if given the call, going to ask a question about Professor George Williams's publicly expressed views on this legislation. I believe Senator Rhiannon may ask whether you're aware of those views. But I want to ask whether you, or any of your departmental officials, are aware of any other views that have been publicly expressed by constitutional experts, including by Ms Kate Eastman SC. If you are aware, do you agree or disagree? If you disagree, could you place on the record, please, the reasons for that disagreement?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (10:56): You've put a number of things in those questions. Obviously it's not a surprise that legal experts and lawyers disagree. That is often the case. In fact, that is virtually always the case when it comes to considering legislation and, in fact, things that may or may not be considered by the courts in the future. You cite a number of eminent experts. Of course they are entitled to their views. I'm aware that a number of those experts have expressed views in relation to a number of cases that have come before the High Court. Sometimes they get it right; sometimes they get it wrong. We have taken comprehensive advice on it, and we are firmly of the view that with all of the safeguards that are in the legislation, and because, fundamentally, this builds on previous legislation, we are absolutely satisfied, as a government, that it doesn't engage the implied freedom of political communication—well, it doesn't offend it.

Senator RHIANNON (New South Wales) (10:57): Minister, I was concerned that you used the term that the debate was 'going round in circles'. These are very significant issues that go to the heart of problematic legislation. There has been such a range of groups' legal advice on this, and these groups advise that they are very troubled about where these two bills will take the fabric of Australian society and how our democratic processes work. To try to sidestep it by using terms like 'round in circles' doesn't do you justice or serve the debate well at all.

To go to my colleague Senator Nick McKim: he asked very clear questions; they weren't confusing questions at all. I would like to repeat those questions and put them in the context of some significant comments that have come from the dean of the University of New South Wales Law School and constitutional law expert, George Williams: This is what he said about the bill:

Even with the changes of the parliamentary joint committee, the bill will remain incomplete and dangerous. It will contain overbroad and uncertain definitions of critical concepts such as national security. The law also will undermine freedom of speech and of the press. As in past inquiries, the committee has given low weight to these values. It has failed to put forward amendments to prevent journalists being imprisoned. The possibility also remains that people who publish information about Australia's economic and political relations with other countries will face jail under new espionage offences.

I want to take you back to that comment from Mr Williams, where he says:

It—

referring to the bill—

will contain overbroad and uncertain definitions of critical concepts such as national security.

I ask: (1) are you aware of these views of Mr Williams, and (2) can you respond to these views, particularly in the context of the debate that we are having here about the bill and those sections of it relevant to the definition of 'national security'?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:00): Professor Williams criticised the definition of 'national security' for being 'uncertain and overbroad'. The government rejects this. This isn't correct. Espionage offences currently refer to 'security and defence of Australia', with no definition. In this bill, this term is replaced by 'national security', which is in turn exhaustively defined in a way that is consistent with definitions in other longstanding acts, including the Australian Security Intelligence Organisation Act 1979 and the National Security Information (Criminal and Civil Proceedings) Act 2004.

Senator LEYONHJELM (New South Wales) (11:00): Minister, I have some questions in relation to section 92.2. First of all, I'm grateful for your response to my earlier comments on that matter. Also, I express some sympathy for the fact that you have to seek advice to each response. I imagine that you've probably had no more time to consider this bill than we've had and therefore you are at the same disadvantage as we are. Nonetheless, section 92.2 says:

(1) A person commits an offence if …

      (i) the person engages in the conduct … in collaboration with, a foreign principal or a person acting on behalf of a foreign principal—

and—

… the conduct is directed, funded or supervised by a foreign principal—

and they intend that it will—

… influence a political or governmental process—

and—

   (d) any part of the conduct:

      (i) is covert …

I was listening very intently during your summing up, although I wasn't in the chamber, and you commented that the covert aspect—and I note that 'covert' is not defined anywhere in the bill—had to relate to the influence in relation to the political or government process. How do you arrive at that conclusion? Section 92.2(1)(d) specifically says 'any part of the conduct'. That would seem to include covert conduct between the person and the foreign principal.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:03): If we look at section 92.2, we can't simply take (d) in isolation. If you look at the entirety of the offence:

(a) the person engages in conduct; and

(b) any of the following circumstances exists—

—that is:

… acting on behalf of a foreign principal;

   (ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and

(c) the person intends that the conduct will:

   (i) influence—

as set out in (c). Taking (d) in isolation is what you are seeking to do. I would simply respond by saying that it is the entirety of it and all of that conduct, as set out in section 92.2.

Senator LEYONHJELM (New South Wales) (11:04): Yes, I accept that it has to be read in its entirety. Nonetheless, I don't think the statement you made in your summing up, that a covert aspect referred only to the element in which the person is seeking to influence political or government process, is accurate. Any part of the covert process would seem to be sufficient as a component of the offence.

I acknowledge that it has to occur in collaboration with a foreign principal, supervised, directed or funded by the foreign principal, and seeking to influence a political or government process or a right or duty and so forth. It then specifically says: 'any part of the conduct … is covert'. That's in addition to those other elements, which I acknowledge. So it would seem to me that, as to your summing up—in which you said that the covert aspect only refers to the communication between the person and the influencing of political or government processes and so forth—it is required. I can't see how that can be accurate.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:05): I am trying to better understand your question, because you seem to be suggesting that, if any part of the conduct is covert, that will attract the offence. But is it in relation to the communication that you're talking about? If you look at how the offence is structured, it involves a number of elements that are covert. I'm just not quite understanding your question. Perhaps you could just articulate it for me a little more clearly.

Senator LEYONHJELM (New South Wales) (11:06): Perhaps it would be easier if I elaborated on it by means of an example. Assume, for the moment, that I am not exempt from this legislation. I'm not sure, actually; I may be confused between the two, being a senator. But, anyway, let's assume I am not subject to this legislation—or even let's assume that I am not a senator—and I am advocating, on behalf of Israel, that Australia's aid should no longer fund Hamas in the Palestinian Territories, and that I am advocating that Australia should cease that kind of funding. So I'm seeking to influence a political process. I'm working in collaboration with a representative of the Israeli government, because they have a common interest in that issue. I may be coordinating with them to ensure that I don't say anything which conflicts with what they're doing. I may be coordinating with them to ensure that the timing of my activities is complementary to anything they might do. And I may be communicating with the representatives of the Israeli government via means of WhatsApp, or telegram, or some other, encrypted, mechanism—which I would've thought would come within the definition of 'covert'. It would seem to me that all of that would add up to meeting the elements of the offence under section 92.2, for which there is, potentially, a 20-year jail sentence. Perhaps you'd like to address that example.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:08): In terms of that example, the conduct which would need to be covert would be the conduct where one is seeking to influence the outcome or the process. It is not merely in communicating using WhatsApp, in your example. It's impossible to see how that, in any way, could be seen as covert conduct which is engaging in the influence of these various processes. It's simply communicating with others. But you're not acting covertly in those circumstances, in the influencing of the process itself.

Senator LEYONHJELM (New South Wales) (11:09): This is at the core of the dilemma. That's essentially what you said in your summing up as well—except that section 92.2(1)(d) says: 'any part of the conduct … is covert'. It doesn't limit the covert conduct to communications directed at the Australian government or the Australian political process. On my reading of the bill, any part of the conduct would include communication with the foreign principal. I'm struggling to understand how you can interpret it in the way that you're describing. Perhaps you can help me there.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:10): Again, Senator, I understand the challenge, but it does take a stepping through of all the elements of the offence. So, starting with (1)(a), the person commits the offence if the person engages in conduct. Then, if any of those circumstances exist—that is, acting in collaboration with or on behalf of the foreign principal and, then, intending that conduct to influence the various processes set out in (c)—that conduct, going back to (a), is covert or involves deception. Simply communicating via an encrypted messaging service such as WhatsApp does not engage the covertness element when it comes to engaging in conduct and the other elements that make up the offence.

Senator LEYONHJELM (New South Wales) (11:11): I will move on. Let's use a little more of that same example of communicating in relation to Australian aid funding terrorism in the Palestinian territories. Let's assume that I indicate my views. I have been communicating with a representative of the Israeli government, so that would qualify as collaboration. I have sent a message to the Minister for Foreign Affairs via WhatsApp or telegram or some encrypted option. What would constitute 'supervised by' in this section—section 92.1(1)(b)(ii)? I draw your attention to the fact that 'directed' is also there, so it's obviously not synonymous with 'directed'. How is 'supervised' distinguished from 'directed'?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:12): Obviously, it's the ordinary meaning of the words—'supervised' versus 'directed'. 'Directed' would be 'taking instructions from'; 'supervised by' would obviously be akin to 'coordinated by' and 'reporting back to'. But, going back to the point you made at the beginning of this particular question, you talked about a WhatsApp message to the foreign minister. There is no prospect that that WhatsApp message would constitute acting in a covert or deceptive way to engage (d) and the other parts of the offence. There is nothing covert about sending a WhatsApp message, just because it's encrypted, when you are lobbying the foreign minister. You are not pretending to be someone you're not, which is the purpose of the offence. The fact that it is encrypted does not make it covert in those circumstances and wouldn't engage the offence under 92.2.

Senator LEYONHJELM (New South Wales) (11:13): I note there's no definition of 'covert' in the bill and I don't recall whether there's any discussion of it in the EM either. I wonder whether a court would have the same view of 'covert' as you've just explained and whether perhaps a court would even look at this debate, read what you have said and take that into account in the event of a prosecution.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:14): Obviously, Senator, courts interpret words all the time, as you're aware, and courts are very adept at interpreting those words, based on both common usage and usage in specialised circumstances. I'm advised that this term exists in other legislation as well.

Senator LEYONHJELM (New South Wales) (11:14): I will move on with yet another example, although my focus is still on 92.2. I invite you to consider the situation where a Catholic priest is campaigning to oppose legislation allowing for assisted suicide. That Catholic priest is acting in collaboration with the Vatican. You could argue that that Catholic priest is being directed by or supervised by a foreign principal, being the Vatican. He may, in fact, be literally directed or supervised by the Vatican, so the priest may indeed be acting at the behest of somebody acting on behalf of the Vatican. They may, indeed, be seeking to influence—or they are seeking to influence—a political event; namely, the outcome of a vote in the parliament, and they may well be engaging in covert activity directed at that outcome. They may well be having quiet meetings, telling fairy stories and not necessarily engaging in open political dialogue—whatever it takes, as a book once famously said—to achieve the defeat of this legislation. Wouldn't that Catholic priest be in breach of this section?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:16): The short answer is no. There is nothing in what you've described which would point to the priest in those circumstances acting deceptively or in a covert fashion. The provision we're referring to, obviously, deals with circumstances where things are deliberately remaining deceptive or hidden in a way that would cause confusion. The fact that the Catholic priest is talking to his church about an issue that he is concerned about and then making representations or campaigning in whatever way does not engage that definition in terms of being covert or deceptive.

Senator LEYONHJELM (New South Wales) (11:17): I don't want to simply disagree with you. What I'd like from you, please, is to explain to me why it wouldn't engage? What elements would the priest not satisfy in terms of how I've read that circumstance out to you?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:17): Senator, it goes to the nature of the offence, and that is in relation to being covert and deceptive in seeking to influence the decision-maker.

Let's go back, again, to your example with the foreign minister—we could use other examples. If the situation is that the Catholic priest—in this circumstance; it could be a foreign minister or any other minister—was making the advocacy but in some way was being deceptive or hiding who they were and who they represented, then that is a different circumstance. What you are suggesting is that, simply because someone has meetings or private discussions which are not public, that would somehow engage that definition of being covert. What we're talking about here is that the offence is very clearly aimed at penalising deceptive and covert conduct in terms of that communication and that attempt to influence. It would clearly be designed to deceive or to hide the truth in terms of the nature of the representations, but most particularly to hide those who are making them and on whose behalf they do it.

Again, going back to your clearest example, the fact that it is communicated on a private messaging app or, indeed, behind closed doors, does not in any way make it covert or deceptive, because it's very clear the individual who is making the representations.

Senator STORER (South Australia) (11:19): I rise regarding these two pieces of legislation: the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 and the Foreign Influence Transparency Scheme Bill 2017. I note that I will support the amendments proposed by the Greens and the crossbench. Unless the Senate is provided with further review of the legislation, I will be voting against these bills. I'm not opposed to checks on foreign influence on our politics or to steps to address espionage in the digital era, but the Senate deserves the time the major parties gave themselves to determine whether these measures are genuinely in the public and national interests. The threat of foreign interference is real and we must take it seriously, but we must be careful to balance the need to defend ourselves with the need to protect our fundamental freedoms, beliefs and civil liberties. Overreach is a real risk when considering these matters. For these reasons, I am disappointed that both the government and the opposition have voted together not to give the Senate more time to consider these bills and reviews.

There were 280 amendments to these bills put forward by the government in only the last days, and most of the 126 amendments proposed to the Foreign Influence Transparency Scheme Bill flow from the report of the Parliamentary Joint Committee on Intelligence and Security which was released only on Monday. Furthermore, the committee itself is a closed shop, only open to government and opposition representatives, not Independents like myself. I think it would have been entirely reasonable for these bills to have been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and to have also been considered separately, as was requested yesterday and today. So I cannot in good conscience vote for the bills and amendments that I have not had time to fully understand, particularly when there are freedom of speech and civil liberties issues at stake.

As constitutional law expert George Williams has noted, this law would undermine freedom of speech and freedom of the press—key rights in any functioning and healthy democracy. The definitions in these bills of critical concepts, notably and especially 'national security', are too broad and too uncertain, and so too are the secrecy offences. They go too far in criminalising the receiving and possessing of information, not just disclosure. It's a chilling warning for whistleblowers seeking to shine a light on malpractice and corruption. As drafted, the legislation could still ensnare journalists who are doing nothing more than what is regarded as entirely legitimate scrutiny throughout the life of the Commonwealth. Equally, not-for-profit organisations could still find themselves ensnared and punished merely for doing the work they have engaged in for decades in the public interest. So we should not, and certainly not without far greater scrutiny by this House of review, undertake such wholesale changes to our security and espionage laws which could further erode freedom of the press, criminalise dissent and undermine democratic safeguards.

Senator PATRICK (South Australia) (11:23): I have a question that sort of relates to what Senator Leyonhjelm was talking about, in terms of some scenarios. I apologise if this is dealt with in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill. The two are very closely related, and I'll take your advice on that. I present a scenario that seeks to draw out an understanding of where the boundary exists between parliamentary privilege and the operation of the act. I'm aware that nothing in the bill seeks to affect privilege, but let me provide you with a scenario. Let's say that a foreign entity talks to a member of a political party in this place and says to them, 'Could you help me convince your party at its annual conference to take a position on a piece of legislation?' and perhaps offers some money for that to occur. Is that considered by the government to be something where the politician would be subject to the provisions in this bill? I note that there are recommendations to deal with how privilege might be managed, and that may be a matter for the House, but the question is: where is the line drawn?

That's not a direct influence into this place but a direct influence to a party who may then vote in a particular way on the basis of a representation that took place at a party conference.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:25): I might have to clarify: part of this, I think, would probably be better dealt with in the discussion of the other bill, because this, as opposed to the other bill, which talks about politicians specifically, has criminal offences in relation to certain conduct and so doesn't specifically engage parliamentary privilege in that way. It's difficult for me to answer all of what you've described, because, if I heard you correctly, you're talking about a situation where someone was actually offered money to try to get a specific outcome at a party conference. Obviously there are the corruption and bribery elements of that, and other offences no doubt would deal with that, and I'm not going to give a comment on that. In terms of foreign interference, it would go to some of the elements we've been drawing out in terms of whether all of the elements in relation to acting on behalf of a foreign principal et cetera were engaged. If you wanted to drill down a little bit on that, as Senator Leyonhjelm has, I'll do my best to answer those questions, but I think we're perhaps dealing with two slightly separate concepts.

Senator PATRICK (South Australia) (11:26): Maybe if we take the money part out of it: a foreign entity seeks to influence a member—if you simply want to take these on notice for the next bill, I'm happy for that to occur. If someone were to come and talk to me very privately and they were from a foreign government, as happens from time to time—we have ambassadors visit us and so forth—and they were to, in some way, seek to influence my vote in this parliament, I presume that would be covered by privilege in the context that people have a right to discuss their views with a politician? I'm really going to the situation where it's perhaps one step removed, where they're seeking to influence a party outside of the parliament who will bring that influenced position into the parliament.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:27): I think we are dealing primarily with the next bill, so I'm happy to come back to that. If I heard you correctly, you're now talking about someone who's maybe outside of the parliament, so it might be an official within a political party—I should go back. There is nothing which affects parliamentary privilege in one way or another in this legislation; I'll be clear on that. I'm not going to give advice on how parliamentary privilege would apply; that's a matter for another day and for others to answer. This bill does not affect parliamentary privilege in one way or another, so it would stand on its merits.

In terms of the specific example you're speaking about, where a foreign principal is perhaps trying to influence a party official, the elements as set out in the legislation would all need to apply—that is, the party official probably would be engaging in conduct on behalf of or in collaboration with the foreign principal; the conduct is directed, funded or supervised et cetera; the person intends that the conduct will influence the political processes of the Commonwealth or a state or territory; and any part of the conduct is covert or deceptive. You have to have all of those elements for this legislation and these provisions that we've been discussing to be potentially engaged.

Senator PATRICK (South Australia) (11:29): Just to be clear, I'm not necessarily referring to a party official but a politician who is a member of a party. A party official may not normally attract privilege in all circumstances. Perhaps I get approached by a foreign entity who talks to me and convinces me of a particular position. I go and talk to my colleague, Senator Griff, and manage to influence him to vote in a particular way, so it's not direct in some sense—it's me then influencing my colleague. My colleague is completely unaware I've spoken to the foreign entity. I am just trying to simply see where the line is drawn between privilege and activities that might take place outside the parliament in a party context, not in a parliamentary context.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:30): The first thing I would say is that there is nothing in what you've described which would appear to engage any elements of the offences within this. Simply lobbying someone and that person then taking a position is not what we're talking about here. There are a number of those elements that I have set out and there's nothing covert in that particular lobbying. There is no doubt that governments seek to influence things right around the world. We know that. Australia does that on behalf of our national interest in other countries. We are having legislation that would make certain acts unlawful where it is done in a covert way that is designed to undermine our national interest in one form or another. So simply lobbying on a policy proposal or an issue to a politician would not engage these particular offences.

Senator PATRICK (South Australia) (11:31): Does that include even the circumstances where the person who might approach me is funded by a foreign entity? I'm just, in essence, going back to the broad objectives of the act, and this is why perhaps it fits within the second bill. Where it's clear, in that instance, that we've got someone who's operating in the context of a foreign entity or is associated with a foreign entity seeking to influence the outcomes of the political process, it's not openly declared. So, from the objectives of the act, I just wonder, again, how it all fits.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:32): Sorry, Senator Patrick. It's not clear to me who you're suggesting could potentially be committing the offence. Are you able to maybe define that for me?

Senator PATRICK (South Australia) (11:32): Yes. In this instance, it might simply be me being aware that it's a foreign entity that is trying to influence me. I'm very aware of that but perhaps when I pass it to my colleagues in the party they're not aware of that. So, in some sense, it's the politician who would normally be carved out through privilege, but this is an area where, I think, there's some uncertainty.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:33): Yes. Again, where a member of parliament forms a judgement and that judgement may be informed by people from foreign entities who have made representations to them, there is nothing covert or deceptive and nothing that would engage the legislation in a senator or member of parliament making a judgement that they're going to pursue a particular policy outcome.

Senator PATRICK (South Australia) (11:33): That's an instance where I directly then come into the chamber and vote in a particular way. The difference here is that I've been influenced and now I, as a politician, seek to influence someone in the party room or seek to get a vote within the party to adopt a particular position, and the party is not aware of that.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:34): It's pretty clear in those circumstances that you're not acting on behalf of a foreign entity, a foreign principal; you are acting as a member of parliament. And obviously members of parliament take representations from all sorts of areas.

Senator McKIM (Tasmania) (11:34): Minister, I wanted to ask a question that is of some concern to the Australian Greens. Say there's a group of people in Australia working with a group of foreign people who are affected by a decision made or not made by the Australian government, or by a failure of Australia's regulatory processes, with the intent of achieving justice for the people who are affected by that failure of regulatory process or decision the Australian government has made or not made. Would the group of people in Australia be caught by the provisions of this legislation?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:36): A couple of things: I think it's a very broad question, so I'll try and address it in terms of the specifics of the legislation, and maybe you'll want to follow up on this. It is very broad. You're talking about a group of people who happen to be from another country. Proposed section 90.2 defines 'foreign principal', so each of the following is a foreign principal: a foreign government principal; a foreign political organisation; a public international organisation—within the meaning of division 70; a terrorist organisation; an entity or organisation owned, directed or controlled by a foreign principal; and an entity or organisation owned, directed or controlled by two or more foreign principals. That's what we're talking about; we're not talking about just any group of individuals who happen to come from a foreign country. But you might want to ask for more specifics.

Senator McKIM (Tasmania) (11:36): Yes; thanks, Minister. I appreciate your response. Could you respond to the question, please, on the basis that the foreign people would qualify under one of those definitions?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:37): What part of the definition are we talking about? Are we talking about a foreign government principal?

Senator McKIM (Tasmania) (11:37): Minister, I'll just state the question again with a bit of extra information, which I think will address the point you were just making. In the case of a group of people in Australia working with a foreign organisation that had two or more foreign people as the directors of that organisation—which I understand would be caught under that definition—if that organisation was affected by a decision the Australian government had made or not made or by a failure of Australia's regulatory processes and the group of Australians were working with that foreign organisation with the intent of achieving justice for that organisation or the people that that organisation represents who are affected by the regulatory failure in Australia or the decision that the Australian government had made or not made, would the Australian people working with that foreign organisation be caught by the provisions of this bill?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:38): I think there might be a slight misunderstanding, if I heard your question correctly, in terms of 'What is a foreign principal?' You talked about 'two foreign nationals', I think, who were directors. I won't read the whole definition again, but I think you might be talking about proposed section 90.2(e). If that's the case, I think you've misunderstood that paragraph. That paragraph says:

(e) an entity or organisation owned, directed or controlled by 2 or more foreign principals …

And 'foreign principal' is then defined separately in the proposed legislation. I think it's pretty clear, based on the scenario you're talking about, that it wouldn't fit within that definition. But if you were talking about an entity that did fit within one of those definitions then the discussion we've had in terms of all of the elements of the offence would then potentially have to be applied if this piece of legislation were to be engaged.

Senator McKIM (Tasmania) (11:39): Thanks, Minister. As I understand the last bit of your response to all of those matters that I've put to you: if the definition of foreign principal were met by this foreign group, then, in the context of everything else I've put to you, my understanding of what you've just advised the Senate is that the Australians who were working with that foreign group would be caught by the provisions of this legislation.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:40): No, I'm sorry, that's not what I said. What I said was that the circumstances you've described don't fit under 90.2, the definition of 'foreign principal'. You're talking about another hypothetical scenario where, perhaps, a foreign government principal was the foreign organisation which was working with the Australian group. I'm not saying that the legislation would apply, I'm saying that if they were dealing with that foreign principal in order for the legislation to apply, then there's a number of offence elements—as set out, for instance, in 92.2, the offence of international foreign interference—which would all have to be engaged in order for someone to be committing an offence, potentially, under the legislation.

Simply talking to a foreign principal or simply advocating on issues that they happen to share their view on would not, in and of itself, go anywhere near engaging those offence elements. What I was trying to say to you was that the circumstance that you've defined there doesn't even reach the first hurdle of the definition of foreign principal. If they do fit under the definition of foreign principal, then there are extensive elements to a potential offence that would all have to be satisfied—in terms of the action being covert and the like in order to influence processes et cetera—in order for there to be an offence, potentially, under this legislation.

Senator McKIM (Tasmania) (11:42): Thanks, Minister. I'll go back and have a listen to what you've said in the period of time that we will be in shortly where we're not debating this legislation. If necessary, I'll come back, but I do appreciate your attempts to respond to my concerns.

I just wanted to go back to the chilling effect that this legislation will have on freedom of political expression in Australia. I'm sure you'd agree that the High Court has found repeatedly that there is an implied freedom of political communication in Australia. Accepting that it's impossible for anybody to predict entirely accurately how the High Court's going to find in any circumstances—which, of course, makes a mockery of the Prime Minister's assertion on the floor of the House in regard to section 44 issues when he said 'and the High Court will so find'—do you agree that it's at least arguable that this legislation is in breach of the Constitution because it unreasonably curtails the implied freedom of political communication in Australia?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (11:43): There are a number of elements to that question, including a sort of political statement about the Prime Minister which I won't engage with you on. You've asked me a number of questions. Firstly: is there an implied freedom of political communication? When I studied law many years ago at the ANU, we did study a number of cases which went to those matters. I wouldn't claim to be an expert on those matters but, of course, the High Court has in a number of cases found an implied freedom of political communication.

The subsequent part of your question relates to whether it is arguable. I accept that some people have made the argument, but it is an argument that the government does not accept. It is a situation which the government has considered very carefully, taking extensive advice. There will always be some who disagree. Some of those experts who have been quoted in the past are no doubt eminent experts and I'm not questioning their qualifications, but they've also been on the public record predicting what the High Court might do and, in many cases, they've been wrong.

An honourable senator interjecting—

Senator SESELJA: Well, they've made an argument. You're saying, 'Is it arguable?' I'm saying there are some people who've made the argument. The government has taken extensive advice. The government does not agree with that argument—we reject it. And we absolutely believe it complies with all elements of the Constitution.

Progress reported.

Senator BUSHBY (Tasmania—Chief Government Whip in the Senate) (11:45): I present the 7th report of 2018 of the Selection of Bills Committee, and I seek leave to have the report incorporated in Hansard.

Leave granted.

The report read as follows—

SELECTION OF BILLS COMMITTEE

Report no. 7 of 2018

1. The committee met in private session on Wednesday, 27 June 2018 at 7.20 pm. As resolved at the previous meeting, three members of the New South Wales Legislative Council Selection of Bills Committee attended the meeting to observe proceedings.

2. The committee recommends that—

(a) contingent upon introduction in the House of Representatives, the provisions of the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 3 September 2018 (see appendix 1 for a statement of reasons for referral);

(b) the Defence Amendment (Sovereign Naval Shipbuilding) Bill 2018 be referred immediately to the Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 15 October 2018 (see appendix 2 for a statement of reasons for referral);

(c) contingent upon introduction in the House of Representatives, the provisions of the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 13 August 2018 (see appendix 3 for a statement of reasons for referral);

(d) contingent upon introduction in the House of Representatives, the provisions of the Modern Slavery Bill 2018 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 24 August 2018 (see appendix 4 for a statement of reasons for referral);

(e) the provisions of the Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Bill 2018, and Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment Bill 2018 be referred immediately to the Economics Legislation Committee for inquiry and report by 13 August 2018 (see appendix 5 for a statement of reasons for referral); and

(f) the provisions of the Unexplained Wealth Legislation Amendment Bill 2018 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 6 August 2018 (see appendix 6 for a statement of reasons for referral).

3. The committee recommends that the following bills not be referred to committees:

Customs Tariff Amendment (Incorporation of Proposals) Bill 2018

Export Control Amendment (Equine Live Export for Slaughter Prohibition) Bill 2018

Office of National Intelligence Bill 2018

Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018

Telecommunications Legislation Amendment Bill 2018.

4. The committee deferred consideration of the following bills to its next meeting:

Commonwealth Inscribed Stock Amendment (Restoring the Debt Ceiling) Bill 2018

Freedom of Speech Legislation Amendment (Censorship) Bill 2018

Freedom of Speech Legislation Amendment (Insult and Offend) Bill 2018

Freedom of Speech Legislation Amendment (Security) Bill 2018

Legislation Amendment (Sunsetting Review and Other Measures) Bill 2018

Therapeutic Goods Amendment (2018 Measures No. 1) Bill 2018

Treasury Laws Amendment (Financial Sector Regulation) Bill 2018.

5. Agenda item 3 (Committee membership) deferred until the next meeting.

(David Bushby)

Chair

28 June 2018

Appendix 1

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Defence Amendment (Call Out of the Australian Defence Force) Bill 2018

Reasons for referral/principal issues for consideration:

To further investigate potential impacts and unintended consequences of the Bill.

Possible submissions or evidence from:

Department of Defence

Attorney-General's Department

Chief of Defence Force ASIO

Australian Federal Police

Committee to which bill is to be referred:

Senate Legal and Constitutional Affairs Legislation Committee

Possible hearing date(s):

To be determined by the committee

Possible reporting date:

3 September 2018

Appendix 2

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Defence Amendment (Sovereign Naval Shipbuilding) Bill 2018

Reasons for referral/principal issues for consideration:

Examine the national security and economic benefits that flow from enhancing Australia's sovereign naval shipbuilding capability.

Possible submissions or evidence from:

ASC

Austal

Henderson Alliance

Defence Teaming Centre

Australian Industry Defence Network

Australian Manufacturing Workers' Union

Damen Shipyards Group

BAE Systems Australia

Saab Australia

Fincantieri

Luerssen

Navantia Australia

Australian Maritime Shipbuilding and Export Group

Submarine Institute of Australia

Civmec

Naval Group

Thales Australia

J & H Williams

Department of Defence

South Australian Government

West Australian Government

Professor John Spoehr

Committee to which bill is to be referred:

Foreign Affairs, Defence and Trade Legislation Committee

Possible hearing date(s): TBC

Appendix 3

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018

Reasons for referral/principal issues for consideration:

To ensure Bill is fit for purpose, and to allow stakeholders a chance to provide advice on any problems to be fixed or improvements that could be made.

Possible submissions or evidence from:

Law Council of Australia Womens Legal Services

Committee to which bill is to be referred:

Senate Legal and Constitutional Affairs Legislation Committee

Possible hearing date(s):

To be determined by the committee

Possible reporting date:

13 August 20187

Appendix 4

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Modern Slavery Bill 2018

Reasons for referral/principal issues for consideration:

This proposed legislation is the first of its kind in Australia

Need to consider expert views on impacts and possible improvements

Possible submissions or evidence from:

Attorney-General's Department

Commonwealth Department of Public Prosecutions

Australian Federal Police

Law Council of Australia

Transparency International

Uniting Church of Australia

International Bar Association

Walk Free Foundation

Australian Council of Trade Unions

Anti-Slavery Australia

ACRATH

Business Council of Australia

Stakeholders who provided submissions to the Parliamentary Joint Committee on Law Enforcement's Human Trafficking Inquiry and the Joint Standing Committee on Foreign Affairs, Defence and Trade's Inquiry into Establishing a Modern Slavery Act.

Committee to which bill is to be referred:

Senate Legal and Constitutional Affairs Legislation Committee

Possible hearing date(s):

To be determined by the Committee

Possible reporting date:

24 August 2018

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Modern Slavery Bill 2018

Reasons for referral/principal issues for consideration:

To fully consider relevant matters of policy concern, such as appropriate thresholds, penalties, compliance mechanisms, resourcing levels, and the need for independent oversight. To allow stakeholders an opportunity to contribute to this consideration.

Possible submissions or evidence from:

Stop the Traffik; Uniting Church in Australia; Salvation Army; Human Rights Law Centre;

Committee to which bill is to be referred:

Legal and Constitutional Affairs — Legislation

Possible hearing date(s):

Tuesday 11 September 2018

Possible reporting date:

Friday 21 September 2018

Appendix 5

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Bill 2018

Reasons for referral/principal issues for consideration:

The bill makes significant amendments to various areas of intellectual property Possible submissions or evidence from:

Oil and gas industry

Climate and Environment organisations

Department of Environment

Committee to which bill is to be referred:

Senate Economics Legislation Committee

Possible Hearing date(s):

Possible Reporting date:

Appendix 6

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Unexplained Wealth Legislation Amendment Bill 2018

Reasons for referral/principal issues for consideration:

This bill would affect State and Territory governments. It is important that we give them an opportunity to provide their views and raise concerns about the proposed national scheme.

This bill would also affect law enforcement across Australia. Our law enforcement agencies should have an opportunity to comment on the proposed national scheme.

Finally, this bill would affect people's rights and liberties. It would be appropriate to provide legal organisations and advocates an opportunity to raise any concerns about the protections contained in the bill.

Possible submissions or evidence from:

Commonwealth Department of Public Prosecutions

Australian Federal Police

State and Territory law enforcement

Australian Criminal Intelligence Commission

Home Affairs Department

State and Territory governments

Law Council of Australia

Legal Aid organisations

State and Territory bar councils

Law Institute of Victoria

Committee to which bill is to be referred:

Senate Legal and Constitutional Affairs Legislation Committee

Possible hearing date(s):

To be determined by the Committee

Possible reporting date:

10 August 2018

Senator BUSHBY: I thank the Senate and move:

That the report be adopted.

Question agreed to.

Senator BUSHBY (Tasmania—Chief Government Whip in the Senate) (11:55): by leave—I move:

That the Parliamentary Joint Committee on Intelligence and Security be authorised to hold a private hearing during the sitting of the Senate today, from 4 pm.

Question agreed to.

Senator CHISHOLM (Queensland) (11:57): At the request of Senator Farrell, I move:

That there be laid on the table by the Minister for Defence Senator Payne), by no later than 3.30 pm on 28 June 2018, the schedule of special purpose flights for the period from 1 July to 31 December 2017.

Senator CHISHOLM: I seek leave to make a short statement.

The PRESIDENT: Leave is granted for one minute.

Senator CHISHOLM: The opposition is moving this motion today to ensure compliance with the guidelines for the use of special purpose aircraft published by the Department of Finance. Under paragraph 25 of these guidelines, the Minister for Defence is responsible for tabling the schedule of special purpose flights:

…in June (for the six months ending the previous 31 December) and December (for the six months ending the previous 30 June).

Regrettably, under this government, the schedule has routinely been tabled late. For example, the flight schedules for 1 January 2016 to 30 June 2016, which were to be tabled by the end of December, were not tabled until 8 August 2017—over eight months late. Six other schedules, out of nine, have been tabled late by the government.

The convention is that schedules are tabled in the last sitting day of June and December. Today is the last scheduled sitting day in June. I note the opposition has only taken this step after inquiring of the minister's office and giving the minister advanced notice of this motion, which, regrettably, has not resulted in the schedule being produced.

Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (11:58): I seek leave to make a short statement.

The PRESIDENT: Leave is granted for one minute.

Senator McGRATH: The government opposes this motion. As per longstanding convention, the schedule is tabled twice yearly by the government once data collection and verification activities have occurred. The schedule or special purpose flights for the period 1 July to 31 December 2017 will be tabled in accordance with standard processes.

Question agreed to.

Senator PATRICK (South Australia) (12:00): I move:

That the Senate—

(a) notes that:

   (i) on 20 June 2018, the Senate agreed to an order for production of documents directed at the Minister representing the Minister for Defence Industry (Senator Payne) for the following from the Final Cost Estimate Template that DCNS submitted in response to the Future Submarine Competitive Evaluation Process:

(A) the summary sheet total 'Australian Build Price', and

(B) the total sustainment cost from year one to year 40 including labour, material and other costs,

   (ii) the Minister has not tabled the information and has advanced a claim of public interest immunity on the basis that the material is commercially confidential,

   (iii) it is a long accepted view that total values are not commercial in confidence, noting the following:

(A) total costs that do not detail the scope of supply and/or services offered do not reveal any commercially sensitive information,

(B) AUSTENDER publishes total costs of all contracts,

(C) on 3 April 2018, the Department of Defence publicly released the total offer price in Luerssen's Offshore Patrol Vessel tender responses,

(D) the numbers sought in the order are for prices for a pre-concept design to meet purported unique requirements of the Royal Australian Navy's submarine force, not a real submarine design,

(E) the Department of Defence recognises the pre-concept design numbers in the tender response bear little resemblance to the likely cost of the submarines and their sustainment, which will be finalised in 2022 following the conclusion of a critical design project review,

(F) the prices being requested are not subject to any tender or ongoing negotiations,

(G) the future submarine CEP tender documents provided to DCNS stated that the Contractor acknowledges that as a Commonwealth agency, the Commonwealth is subject to legislative and administrative accountability and transparency requirements of the Commonwealth, including disclosures to Ministers and other Government representatives, Parliament and its committees, and

(H) total cost information is information to which the Senate must have access to ensure it can properly perform its oversight functions; and

(b) does not accept the public interest immunity claim made by the Minister representing the Minister for Defence Industry in relation to the order for production of documents numbered 862, and requires the Minister to table documents in full compliance with order for the production of documents numbered 862 by the conclusion of business on 28 June 2018.

Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (12:00): I seek leave to make a short statement.

The PRESIDENT: Leave is granted for one minute.

Senator McGRATH: The government maintains its public interest immunity claim, as set out in the letter of the Minister for Defence, on behalf of the Minister for Defence Industry, to the President of the Senate dated 26 June 2018.

Senator PATRICK (South Australia) (12:00): I seek leave to make a short statement.

The PRESIDENT: Leave is granted for one minute.

Senator PATRICK: The public interest immunity claimed by the minister in this instance is extremely shallow, suggesting that a total number offered on a submarine preconcept design that will never see the light of day is in some way commercially in confidence. In fact, the Department of Defence recently released the total number offered for the offshore patrol vessel contract. There is no reason why this number shouldn't be provided to the Senate. The Senate needs these sorts of numbers to do its job properly.

Question agreed to.

Senator BURSTON (New South Wales) (12:04): I move:

That there be laid on the table by the Minister representing the Minister for Agriculture and Water Resources (Senator Canavan), by no later than 10 am on 20 July 2018, all documents and correspondence:

(a) relating to the Department of Agriculture and Water Resources 2016-2017 assessment of NSW compliance with the National Partnership Agreement on Implementing Water Reform in the Murray-Darling;

(b) from the Murray-Darling Basin Authority to the NSW Government or the Department of Agriculture and Water Resources relating to the 2016-2017 assessment of NSW compliance with the National Partnership Agreement on Implementing Water Reform in the Murray-Darling; and

(c) from the Commonwealth Environmental Water Holder to the NSW Government or the Department of Agriculture and Water Resources relating to the 2016-2017 assessment of NSW compliance with the National Partnership Agreement on Implementing Water Reform in the Murray-Darling.

Question agreed to.

Senator DUNIAM (Tasmania) (12:16): I move:

That the following matter be referred to the Environment and Communications References Committee for inquiry and report by 17 September 2018:

The extent to which gaming micro-transactions for chance-based items, sometimes referred to as 'loot boxes', may be harmful, with particular reference to:

(a) whether the purchase of chance-based items, combined with the ability to monetise these items on third-party platforms, constitutes a form of gambling; and

(b) the adequacy of the current consumer protection and regulatory framework for in-game micro transactions for chance-based items, including international comparisons, age requirements and disclosure of odds.

Senator CHISHOLM (Queensland) (12:16): I seek leave to make a short statement.

The PRESIDENT: Leave is granted for one minute.

Senator CHISHOLM: Labor supports this motion. Labor acknowledges there is some community debate and concern that the 'loot box' feature can normalise spending behaviour in a gaming context and potentially act as a precursor to problem gambling behaviour. Labor notes the research into the impacts on young people of gambling-like elements in games and simulated gambling in its early stages. A recent study suggests that, for some children, playing social casino games leads to an increase in gambling activity while for other children it can reduce their interest in real gambling. Finally, Labor acknowledges that this is an area that may benefit from clarification around potential harms, regulatory definitions and responsibilities in the current consumer protection and regulatory framework.

Question agreed to.

Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (12:36): by leave—I move:

That Senator Steele-John replace Senator Rice on the Environment and Communications References Committee for the committee’s inquiry into gaming micro-transactions, and Senator Rice be appointed as a participating member.

Question agreed to.

Senator O'NEILL (New South Wales) (12:38): I rise to put some brief remarks on the record for Labor with regard to the Farm Household Support Amendment Bill 2018. On 20 June 2018 the government introduced the Farm Household Support Amendment Bill. This will amend the Farm Household Support Act 2014, known as the FHS Act, to extend the Farm Household Allowance program from three cumulative years to four cumulative years for each recipient. Extension of the Farm Household Allowance program, the FHA program, for four years provides time-limited support to farmers and farmers' partners facing hardship. Currently, the maximum period a person can participate in the FHA program is three cumulative years, or 1,095 days. The bill will extend the maximum period a person can participate in the FHA program to four years, or 1,460 days. Labor is supporting the bill.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:39): I thank the opposition and other senators for their contribution and commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Sterle ) (12:39): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:39): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator O'NEILL (New South Wales) (12:40): I rise to indicate that Labor supports this bill, the Treasury Laws Amendment (Medicare Levy and Medicare Levy Surcharge) Bill 2018. The bill amends the Medicare Levy Act 1986 and A New Tax System (Medicare Levy Surcharge—Fringe Benefits) Act 1999 to implement the following changes: an increase of the Medicare levy low-income thresholds for individuals and families, along with the dependant children-student component of the families threshold, in line with movements in the CPI; the Medicare levy low-income thresholds for individuals and families eligible for the seniors and pensioners tax offset, along with the dependant child-student component of the family threshold in line with movements in the CPI; and the Medicare levy surcharge low-income threshold in line with movements of the CPI.

This measure applies to the 2017-18 income year and later income years. The measure was announced in the 2018-19 budget. This follows the practice of doing so annually, as per the Tax and Superannuation Laws Amendment (Medicare Levy and Medicare Levy Surcharge) Act 2017, passed last year. This is a regular process. It ensures that the most vulnerable Australians are not disadvantaged while maintaining their access to Medicare, our world-class universal health system.

I just want to make a few brief points. The cost of seeing both GPs and specialists has hit a new record under Malcolm Turnbull, and the Medicare data reveals this. Australians are now paying more than ever before for their health, up to nearly $47 out of their own pockets to see a GP. This is almost a $4 increase since Malcolm Turnbull's pre-election promise that no-one would pay more to see a GP. Out-of-pocket fees to see specialists have soared even higher, up to almost $88, an increase of more than $12 since the election. In some jurisdictions, the average out-of-pocket cost of seeing a specialist has now soared to well over $90. I note people in the chamber today, Australians here to hear the debate, would be living that experience of an increase in out-of-pocket costs on the watch of this government that continues to spruik its Medicare credentials.

The fact that the Minister for Health is out in the media trying to trumpet a statistic of GP bulk-billing rates shows just how out of touch he is. The Australian people are too smart to fall for his spin. They know that the cost of going to the doctor has risen; it's just a fact of life that's been inflicted on us by this government. That's why, sadly, so many Australians are delaying going to the doctor—delaying taking themselves and delaying taking their children. Elderly people are delaying taking the good advice of doctors to keep them well because this government has put it out of reach for too many.

Official Australian Bureau of Statistics figures show that one million Australians delay or avoid seeing their GP each year due to cost—one million! And another 1.7 million Australians are skipping specialist appointments. Yet the Liberals make the laughable claim that Medicare has never been stronger and that their commitment is rock solid. Well, if this is a rock solid commitment that is better than ever, we can't afford this government any longer! In fact, Mr Turnbull is so out of touch, he is yet to lift any part of his damaging Medicare rebate freeze.

Rebates for GPs, specialists and allied health services all remain fully frozen, and the freeze won't be fully lifted until 2020. As a result of this freeze Mr Turnbull is cutting $2.2 billion out of Medicare over the next four years on top of the savings that he's already banked. These are costs that are transferring to the hip pockets of hardworking, ordinary Australians. Whether it's making Medicare more expensive, cutting public hospitals or putting health insurance profits before patients, Mr Turnbull can never be trusted on health. Labor created Medicare, and only Labor will ensure that Australians can access the health care that they deserve.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:45): Contrary to much that has been said about Medicare in the preceding contribution, it's worth acknowledging that bulk-billing rates have never been higher than they are at the moment. I commend the bill to the House.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Sterle ) (12:45): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:46): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator O'NEILL (New South Wales) (12:46): I rise to speak on the Australian Research Council Amendment Bill 2018. Labor supports the passage of these technical but necessary amendments to raise the caps on spending of the discovery and linkage programs of the Australian Research Council. These funding schemes are vital to the Australian research and innovation system and form a key part of this nation's fundamental, or basic, research and applied research effort. These funding schemes are underpinned by the fundamental principles of excellence, institutional autonomy and academic freedom.

Every year, this country invests hundreds of millions of dollars into the national research enterprise through the ARC. We make this investment because it's this parliament's obligation to give our researchers the best kit the country can afford. We make this investment because we value what researchers do. In exchange for that investment, we ask Australian researchers to help us meet the expectations of the Australian people. We cannot expect the investments made by the ARC in the humanities and the sciences to pass unnoticed by the anti-science club, be it on the extreme right or the extreme left of the political spectrum. We cannot afford to give way to irrational populism and ignorance. This nation, Australia, needs the very best humanities, arts, social sciences and STEM research that it can muster. It needs the Australian Research Council and the values the council and academy embody, the best guardians of Australian civilisation that this nation has.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:48): I thank Senator O'Neill for her contribution and commend the bill to the House.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Sterle ) (12:48): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:48): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator O'NEILL (New South Wales) (12:49): I indicate that Labor will support the Corporations (Fees) Amendment (ASIC Fees) Bill 2018 and the related bills. These bills represent the second stage of the ASIC industry funding model. On 1 July 2017 the first stage of the ASIC industry funding model commenced with the introduction of industry levies to recover the costs of ASIC's regulatory activities. ASIC apportions this cost between industry sectors and subsectors according to the amount of regulatory activity they generate.

The second stage that is now before the parliament deals with fees for services. It's based on the principle that ASIC's costs for specific regulatory activities requested by an entity should be recovered from that entity to the extent that the fee directly represents the efficient costs of providing the regulatory activity or service. Under the scheme in these bills, these fees will be paid by entities for ASIC's demand driven services. Services intended to be captured by these new arrangements include document compliance reviews, licence applications and variations by Australian financial services licensees, Australian credit licensees and applications for registration by managed investment schemes.

In the other place, the Minister for Revenue and Financial Services assured the House that the government has consulted extensively with industry on the design of the ASIC industry funding model. We hope that the government has done its homework and manages the implementation of these changes appropriately. We note this government's poor record when it comes to corporate and financial services regulation.

In conclusion, Labor will support these bills regarding the fees for service elements of the ASIC industry funding model. However, we do so noting our concerns about the record of the government in regard to this sector, particularly when it comes to ensuring strong consumer protections in the banking and financial services sector.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:51): I assure the member opposite that the government has done its homework, and I commend the bills to the Senate.

Question agreed to.

Bills read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Sterle ) (12:51): As no amendments to the bills have been circulated, I shall call the minister to move the third reading unless any senator requires that the bills be considered in Committee of the Whole.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:52): I move:

That these bills be now read a third time.

Question agreed to.

Bills read a third time.

Senator O'NEILL (New South Wales) (12:52): The opposition reluctantly supports this bill which funds a partnership that gives Australian astronomers access to one of the world's most advanced telescopes at the La Silla Paranal Observatory in Chile. This will cost the Commonwealth $26.1 million over the forward estimates from 2017 to 2021 and $119.2 million over the two years from 2017. The Academy of Science's decadal plan for Australian astronomy 2016-25 calls for access to eight-metre telescopes, which are not available in Australia. The plan also calls for support of Australia's domestic capability, including the Australian Astronomical Observatory, an agency within the Department of Innovation, Industry and Research.

This bill transfers management of the AAO's main assets, the Anglo-Australian Telescope near Coonabarabran and the optical instrumentation laboratories at North Ryde, from the departments to two university based consortiums. On paper, this will save $26.1 million over the forward estimates. But that simply shifts the burden of funding the AAO from the Department of Innovation, Industry and Research to the Department of Education and Training. Labor is relieved that the AAO's assets will be funded for the next seven years but we are concerned that their future beyond that date is not assured. Yet again, Australian scientists are finding that, sadly, when one funding cliff disappears it is replaced by another.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:54): I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Sterle ) (12:55): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:55): I move:

That the bill be now read a third time.

Question agreed to.

Bills read a third time.

Senator O'NEILL (New South Wales) (12:55): Labor is the party of Medicare. We invented it and we'll always protect it. That's not to say it's perfect; with a program of this size, there are always going to be problems that need to be managed and improvements that could be made. This government bill implements a 2017 budget measure to improve Medicare Benefits Schedule compliance and debt recovery practices and will result in estimated combined savings over the forward estimates of $103 million. Labor will support this bill. We're always willing to support sensible improvements to Medicare.

What we don't support is this government's overall approach to Medicare. It took two Labor governments more than two decades to shape and embed the Medicare system that we know today. Many Australians today take Medicare for granted. They can't imagine a time when it didn't exist. That is exactly as it should be. Australians should be able to rely on Medicare whenever they need it, without worry, without a second thought. But let's never forget that the conservatives opposed Medicare every step of the way. Labor had to fight to set it up and now we're fighting to protect it.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:57): I put on the record that the coalition government continues to support Medicare. Despite the comments of those opposite, if you say something often enough, it doesn't necessarily make it true. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Sterle ) (12:57): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (12:57): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator O'NEILL (New South Wales) (12:58): I rise to speak on the Commerce (Trade Descriptions) Amendment Bill 2018 on behalf of the opposition. At the outset, I wish to indicate that the opposition will be supporting this bill. The result of the extended applications of the exceptions contained in this bill will be that an effective defence exists to a prosecution under the Commerce (Trade Descriptions) Act in a range of circumstances where the goods have substantially come from or have been made or manufactured in the country they are purported to come from. This is an uncontroversial reform which essentially harmonises the laws relating to consumer protection and trade descriptions. Australians rely on a compact between business and consumers. But, in order for that compact to work, consumers need to have enough money to spend on goods, and businesses need to be honest and act in good faith when they're trading. It's in the light of this compact that I note that this bill does nothing to shield businesses or people who are engaging in false or misleading conduct with respect to the country of origin of the goods they are making available to the public. Labor will always stand with consumers and will always ensure that the businesses and people who wilfully seek to fraudulently or falsely mislead Australian consumers are prosecuted.

I note that this bill ensures coherence and harmonisation across the statute book. This is a laudable objective for our laws, and Labor supports the government's efforts to ensure that there are no unintended inconsistencies in the laws governing consumer protection and trade descriptions. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Marshall ) (13:00): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in the Committee of the Whole.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (13:00): I move:

That the bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CAROL BROWN (Tasmania) (13:00): I rise to address the Social Services Legislation Amendment (Payments for Carers) Bill 2018. This bill will introduce an income test for the carer allowance and the carer allowance (child) health care card from 20 September 2018. The income test will be set at a threshold of $250,000 per annum, affecting approximately 6,900 or one per cent of carer allowance recipients. The minister has indicated that the government will be reinvesting these savings into the Integrated Carer Support Service. After consultation with stakeholders in the sector, including Carers Australia, who support this change, Labor has decided to support this bill. Children and Young People with Disability Australia have also indicated that they do not have an issue with the proposals in this bill, as the means testing of payments and healthcare cards is an established practice.

Carers Australia and other carer service providers have indicated that they have been working with the Department of Social Services to design a more integrated and nationally consistent model of delivering services to carers across Australia. Commitment to provide help to carers before they reach crisis point is vital. We do, however, hold concerns about the Integrated Carer Support Service reform, because not only is the total amount of funds allocated towards these services unclear but the implementation of the first phase has already been delayed from July to October this year, with the second phase to be rolled out by September 2019. It is not clear at this stage how the funding has been calculated nor how it will be allocated across the country. However, it is welcome that current providers have had their contracts extended until November 2019. Moving towards an early intervention model of carer support will help those who can access online and digital services, and it will help alleviate the burden of anticipated shocks. But it is unclear how the government, with its reliance upon online and digital services, will adequately service areas with poor internet connection or telephone services.

Labor continues to hear concerns from the sector that the total funding allocated to the Integrated Carer Support Service will fail to meet the needs of the carer community, especially as the Australian population ages and demand for carers increases. One of the concerns expressed is about the funding allocated to emergency respite, and the government is yet to clarify the funding available for this service. The ICSS must ensure that there is equity of access to services. There are 2.8 million carers across Australia, over one-third of whom provide 40 hours or more of care per week to people with disability, chronic or terminal illness or mental health challenges or who are frail aged. A 2015 Deloittes Access Economics report quantified that carers provide 1.9 billion volunteer hours of support, significantly boosting the health and wellbeing of Australians in need of assistance. Supports and services must meet carers' needs and expectations so that they are able to participate in the community and the workforce and look after their own wellbeing whilst continuing their caring role. Carer respite and a broad range of different carer services to suit Australians from diverse background will be essential for meeting the needs of Australia's growing carer demand. Labor will continue to advocate for appropriate support for carers, knowing the invaluable contribution they make each and every day to Australia.

Labor values the critical role that carers play in our society and understands how demanding it can be, personally, physically and financially. In 2009, it was Labor that increased the carer payment by $30 a week, and in 2014 it was Labor that opposed the Abbott-Turnbull plan to cut the indexation of the carer payment. If the government had succeeded in cutting indexation, the carer payment would have been cut by $80 a week over 10 years. Labor blocked this cut because it is Labor that stands behind the carer community. It is Labor that stands for adequate funding of carer support services. Many carers have not forgotten this cut and remain wary of any changes proposed by this government.

Nonetheless, Labor will be supporting this bill today. We support the introduction of the income testing set at the $250,000 per annum threshold for the carer allowance because it will, ultimately, lead to better services for carers through the introduction of the integrated carer support services. I commend the bill to the Senate.

Senator BARTLETT (Queensland) (13:05): As I'm in the chamber, I'd like to take the opportunity to say a few words around this legislation, the Social Services Legislation Amendment (Payments for Carers) Bill 2018, and the broader topic. This period of the week, as all of us in this chamber know, is informally known as noncontroversial government business. That's an informal term which makes sense to us but which others listening to or reading this might think means that everybody agrees on all of this and there is nothing actually controversial about the topic matter. But, as the previous speaker made clear, there are certainly a lot of issues in this area, as to carers, about which there is concern and on which there is continuing pressure for better action.

Labor have indicated that they are supporting this legislation, so it will go through unamended. The legislation introduces a fixed and non-indexed family income test of $250,000 per annum for carer allowance and carer allowance (child) health care card only claimants, to apply to singles and couples from 20 September this year.

In that context, I want to take the opportunity to note the significant ongoing challenges that so many carers face. People across the political spectrum, in this place and the other place and everywhere around the community, will always make comments about how important and valuable the role of carers is, and how much carers are appreciated—and I'm sure all of those comments are genuine. But we do need to recognise that this legislation and all of the other commentary that people make around this issue occur in the context where there is growing inequality in our community and there are greater and growing pressures on a lower-income earner's ability to manage, in so many ways, whether from increasing energy costs, housing costs or transport costs et cetera.

There are carers in some circumstances—not all—who qualify for assistance through Centrelink for carers payments and healthcare cards and carers allowance, who often do have significant extra costs in relation to the care that they have to provide, as well as, of course, income-earning opportunities forgone, and other opportunities for life enhancement forgone which aren't necessarily measurable in terms of money or income. So they do make a significant sacrifice.

I want to take this opportunity to put on the record that those carers who perform that important role are often in circumstances where it is getting harder and harder. We talk time and time again about wage stagnation, growing insecurity in jobs, higher energy costs, higher housing costs and more instability or insecurity in people's housing, and about all of those other areas where it is getting more and more difficult for those who are not amongst the wealthiest. So it does need to be emphasised that this whole measure occurs within that wider context.

I want to take the opportunity to say something to anybody who is engaged with any aspect of support through Centrelink in the ongoing scandal. And it is a scandal, of not just inadequate but appalling service that people get when they try to get in contact with Centrelink. That is not a reflection on Centrelink staff; it is a reflection on the gross failure of this government, the previous government and the government before that. The problem has got worse and worse, as my colleague Senator Siewert and others in this chamber have said many times over the years. People who want to get in touch with Centrelink and related services for information will perhaps need to clarify how this measure we're passing today will affect them. It is incredibly difficult. We've seen the terrible decision of this government recently to contract out a supposed attempt to solve the disgraceful situation of the massive wait times or the massive call dropout rate that they have when they try to call Centrelink. A supposed solution is to contract out phone-answering roles to a private company—Serco, no less.

People who are on income support and all of the related entitlements that are attached to it have legal rights. They are people who have just as much of a contribution to make to our society. In particular, carers fit into that role. The Greens more broadly believe that we need to be looking towards universalisation of our social and income support services and recognising that we are part of a community where we are all interconnected, rather than continually trying to atomise people into individual groups and households and isolate them from each other, and then try to have them relate and engage with inoperative or poorly operating government services, such as what passes for service through Centrelink call centres today.

Whilst this legislation will pass today—and it is, in the grand scheme of things, perhaps a minor measure—it will affect some individual people. As I said, it all occurs in the context, whether it's carers or so many other people, where the level of support is not what it should be and not what citizens and residents of our community are entitled to. This is also in the context of the rollout of the NDIS. I won't divert too far from the topic of the bill by making a speech about the NDIS more broadly. I know that the government is working on it. I was at the start of an information session earlier today about how that is being rolled out. It's starting to roll out from 1 July in Brisbane—

The ACTING DEPUTY PRESIDENT ( Senator Marshall ): Senator, you did indicate that you wouldn't stray into this area, but you seem to be straying into it.

Senator BARTLETT: The reason I'm mentioning it is that carers are very regularly, obviously, dealing with people who have disabilities and are engaging with the NDIS. This is a measure that affects carers at the same time as they are also having to deal with the changes in the NDIS. I'm simply saying that this is just another aspect of what people are having to deal with. Therefore, I think it's important to put on the record that individual pieces of legislation don't happen in isolation; they happen in the context of a whole suite of policy measures and in an ongoing situation of the very, very poor ability for people to get the information they need when they try to get it through places such as the Centrelink call centres.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (13:13): I commend the bill to the house.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Marshall ) (13:14): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (13:14): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator O'NEILL (New South Wales) (13:14): I rise to speak on the Corporations Amendment (Asia Region Funds Passport) Bill 2018. Labor will support this bill as it puts in place a domestic law framework for the Asia Region Funds Passport. The passport of that name allows for eligible funds to be offered across Australia, Japan, Korea, New Zealand, Thailand and future signatory economies, with limited additional regulatory requirements and a common set of rules.

Labor believes that our financial services sector should be innovative, profitable, responsive and well regulated. It provides important job opportunities to Australians, and it must support consumers and businesses in critical areas such as banking, borrowing, insurance and superannuation. The genesis of the Asia Region Funds Passport was the Johnson report, which was commissioned by the previous Labor government in 2008. The Johnson report, Australia as a financial centre: building on our strengths, recognised the opportunities for growing financial services exports to our region, with benefits for jobs.

In 2010 the previous Labor government announced its support for the concept of an Asia region funds passport. We introduced it as an exploratory policy initiative with the Asia-Pacific Economic Cooperation Finance Ministers' Process. That started the process that culminated in the signing of the memorandum of cooperation for the passport in 2016. Australia, Japan, Korea, New Zealand and Thailand are currently signatories. Under the memorandum of cooperation, further economies may join the passport at a later stage. Labor will support this bill.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (13:16): I commend the bill to the chamber.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Marshall ) (13:16): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (13:17): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator O'NEILL (New South Wales) (13:17): Labor will support this bill. The Corporations (Review Fees) Amendment Bill 2018 would make consequential amendments to the Corporations (Review Fees) Act 2003 which are required due to the eventual operation of the Corporations Amendment (Asia Region Funds Passport) Act 2018 which has just gone through the Senate. The amendments allow regulations to prescribe fees in relation to the review dates for notified foreign passport funds. Labor commends the bill to the Senate.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (13:18): I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Marshall ) (13:18): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (13:18): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator O'NEILL (New South Wales) (13:19): Labor does not oppose the Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 but, for the record, Labor notes that the measures in this bill were negotiated by the government and One Nation in exchange for One Nation's support for the Turnbull government's damaging repeal of the two-out-of-three cross-media control rule last year. Not only is this bill yet another example of the cosy relationship between the Turnbull government and Pauline Hanson's One Nation party but it does precious little to fill the void left by the repeal of the two-out-of-three cross-media control rule. Australia already has one of the most concentrated media markets in the world, and removal of the two-out-of-three rule, under this government, undermines media diversity by permitting an even greater concentration of media voices in this country.

The Howard Liberal government abolished foreign media ownership limits in 2006 in recognition of the need for foreign investment to support media diversity in Australia. The recent CPS acquisition of the Ten Network demonstrated the power of the two-out-of-three rule in fostering competition and diversity just prior to the abolition that was achieved in the deal with this government and the One Nation party. This acquisition showed the utility of foreign ownership as a safeguard on media concentration by improving access to capital and increasing the pool of potential media owners. This bill will provide some further information about foreign ownership of media in Australia, which is already considered to be a sensitive business.

The community broadcasting sector needs all the help it can get, given the Turnbull government has been so inconsistent with the sector on certainty of funding for community radio and certainty of access for spectrum for community television to broadcast over. Community radio services play a very important role in informing local communities and providing community members with the opportunity to have their views heard. Labor, along with the CBAA, supports the intent of the bill to strengthen local community radio broadcasting and understands the need for the proposed changes to strike a balance between providing clarity for the sector and avoiding overly prescriptive or burdensome requirements. Labor notes that the CBAA is concerned about the wording of the bill as it currently stands, and we encourage the government to address the CBAA's concerns to ensure clarity and certainty for the sector.

Senator BARTLETT (Queensland) (13:21): I will endeavour to be brief but I do want to take the opportunity to speak to the community radio aspect of this legislation. I'll put on the record that I have an interest in this issue, in the multiple different meanings of the word 'interest'. I still currently serve as a board member on a community radio station in Brisbane. Radio station 4ZZZ was actually the first community radio station in Queensland back in 1975. While there are many legacies of the Whitlam government that perhaps have greater recognition and resonance nationally, that is one small legacy of the Whitlam government—the establishment and issuing of that very first broadcasting licence—for which many people, to this very day, have great gratitude. It's an organisation I have previously served as chair of the board, so I do have a direct interest and I put that on the record.

The previous speaker noted the concerns of the CBAA about this, and I guess that's something that will just continue to unfold and be a matter of continuing discussions between the government and the CBAA. But in regard to the stated intent, it is worth putting on the record the measure in this bill relating to renewals of community radio broadcasting licences. It is something which, not surprisingly given what I have just said, I have had direct involvement in. It is good to see on the record the important role community radio services play in informing local communities and providing opportunities for community members to have their views heard. In my own experience, people hear of local community artistic, creative and political activities as well.

In my view, given the significant challenges that the commercial media sector faces at present, community radio, community broadcast and community media more broadly are actually going to become more important. As an adjunct to that, I would like to say it is doubly significant, important and relevant to Aboriginal and Torres Strait Islander broadcasting. I had the opportunity to go to another ground-breaking community radio station again recently in Alice Springs, CAAMA Radio. It plays an important role, as did the National Indigenous Radio Service as it used to be called.

I take the opportunity to put it on the record and pay tribute to the late Tiga Bayles and the amazing work that he did, along with so many other people less recognised, in building that Indigenous radio service. It is so important for Aboriginal and Torres Strait Islander people to be able to hear their own stories and their own views, in their own languages in some cases. It is welcome to see an explicit recognition from this government about the crucial role that community radio plays, as it is often just dismissed as a bit of a thing on the side of no great consequence but it is actually central. It might not get the big ratings but it is central for that level and that issue with regard to local voices and local issues.

The stated intent of the component of the legislation that's before us is to encourage community radio broadcasters to provide greater coverage of local issues, and I can most certainly say that is something I very strongly support. Even if it has come about via a deal between the government and One Nation, and some other bad things happen as a consequence, this at least is a good thing—and I'll point to that good thing and acknowledge that good thing.

Greater coverage of local issues is something that has clearly been lost, quite drastically in some cases, over the last decade or so. If it were not for the ABC there would be no local coverage in many areas. To have that capacity for extra support for local participation and greater coverage of local issues is really important, and that includes in producing and hosting local production. I think there are some issues around the definitions of 'produced' and 'hosted' et cetera, but this is going to go through unamended, so that's just something that will continue to need to be explored. But at least the stated principle of encouraging that is something that is very much welcomed and certainly supported by the Greens.

The idea and the ideal of ensuring that there is more capacity to provide services and material of local significance is something that, I think, is to be welcomed—and, in the context of community radio, in particular, reinforces why this is a sector often undervalued that really should be given much more support and acknowledgement for the role that it plays. So, inasmuch as this legislation does that, it is something that is certainly welcomed.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (13:27): I thank senators for their contribution to the debate and I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Marshall ) (13:27): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires the bill to be considered in the Committee of the Whole.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (13:28): I move:

That these bills be now read a third time.

Question agreed to.

Bills read a third time.

Senator BARTLETT (Queensland) (13:28): I will just continue with trying to get some clarity from the minister—and I appreciate his contributions to date—about what the meaning of some of the wordings and the concepts in this legislation will be. It's actually something I referred to in my second reading contribution this morning where Mr Hastie specifically signalled out Julian Assange, using the term and concept of 'radical transparency', as opposed to just general transparency. This is relevant for the entire community, but it's particularly relevant for journalists. As we all know, the concept of journalism and citizen journalism is itself a fluid one. Within that concept is one of people wanting to ensure adequate transparency. As I said in my second reading contribution in a more general philosophical sense, the issue of adequate transparency of the activities of intelligence agencies and law enforcement agencies—not just our own, of course, but our allies that we work with very, very closely with—is a key one. It's a contestable one. People will have different views about what is an adequate degree of transparency, but hopefully there is a recognition that there does need to be some degree of transparency. My initial question goes to the idea of where that line is with regard to radical transparency. Given that Mr Hastie specifically referred to Julian Assange, is there actually an explicit focus on the activities of him and his organisation?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (13:31): The answer is no.

Senator BARTLETT (Queensland) (13:31): The answer to my second question is no—thank you for that. The first part of my question was about this concept of 'radical transparency' as opposed to 'general transparency'. It was in the context of an interview between Mr Hastie and a journalist who, not surprisingly, was interested to know where the line is about not just what they can expose directly but whether any organisation, such as WikiLeaks, or Edward Snowden or The Intercept or any of the organisations focused on this release information—where the risks are for the journalists in reporting these things. They haven't been the ones who have put them in the public arena, but, if there's been an act of radical transparency, what risk is there for others in reporting about the content that's been released under the radical transparency?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (13:31): That term you refer to is not something that's in the bill, but the offences in the bill have been very carefully scoped to ensure that they target harmful conduct. I have a couple of important points to make. With the exception of secrecy offences, it's not appropriate to carve out journalists from the application of most of the offences. For example, the espionage offences apply where a person intends to or is reckless as to whether their conduct will prejudice Australia's national security or advantage the national security of a foreign country. There must also be a link to a foreign principal. If a journalist engaged in the relevant conduct and these circumstances existed, it would be appropriate for the espionage offences to apply.

In relation to foreign interference, it's necessary for the prosecution to prove that the person's conduct is covert or deceptive, involves a threat to cause serious harm or involves a demand with menaces. Alternatively, a person must be seeking to exert undisclosed influence over another person. The secrecy offences are, however, an exception. For these offences, a specific defence is available to journalists reporting in the public interest. This defence will apply where a person dealt with or held information in the person's capacity as a person engaged in reporting news, presenting current affairs or expressing editorial content in news media where the person reasonably believed that dealing with or holding the information was in the public interest. The defence covers a range of staff, including legal, editorial and other administrative support staff engaged in news reporting in media organisations. The defence extends to communication holding, removing or otherwise dealing with information to allow journalists and other staff to undertake a range of activities that are necessary in the course of their work. We believe the journalist defence strikes an appropriate balance between deterring the covert and deceptive activities of foreign actors and recognising the critical role of journalists in informing debate that is in the public interest.

Senator BARTLETT (Queensland) (13:34): Thank you for that. With regard to the details that you spoke about, usually when people hear the words you've talked about they think they're about spy activity between various governments and giving away secrets that would be of advantage to other governments to use against us. But one of the aspects of this legislation that many people voice concern about is the fact of how it can flow over into economic interests, and not just government economic interests but also corporate economic interests.

Again, to use the example of exposure of things: we've seen exposure of draft trade treaties. If somebody were to reveal the content of a trade treaty—and we all know from debates in this place how much concern there was about the Trans-Pacific Partnership not being able to be made public—would that trigger the sorts of details that you described just then?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (13:35): It does come back to the earlier discussion, which was in relation to all of those elements. In those circumstances there would have to be an intention, or recklessness—I think in that case it would be intention—in relation to damaging Australia's national interests.

Senator BARTLETT (Queensland) (13:36): I'm certainly not intending to go over words, definitions and specific examples that have been covered previously. I know that there is a series of amendments and there are some questions that others may wish to ask before we get onto the amendments. But, for the sake of having as much confidence as possible, we need to have as much certainty as possible about aspects of things like making something available.

We're talking about people making something available, and it seems to be continually falling back on whether that's done recklessly. Is that simply the core factor that's involved, that people just need to have enough awareness about what they're doing in making information available? That's by whatever means; I don't really want to get into whether it's through particular applications, or through the internet or whatever. But is that the core factor that it really boils down to there—whether people are being reckless in regard to this?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (13:37): The information would have to be of a certain character. They'd have to be reckless as to that, as well as making it available and as well as the issues around damage. Your question appears to suggest that if someone acts recklessly then, potentially, they are somehow going to offend against these provisions. That is not the case.

At the risk of repeating myself: a number of times I have stepped through the fact that there are a number of different elements to an offence and that, depending on the offence, we are talking about either the mental element or the fault element of intention or recklessness applying. But to answer your question very simply and straightforwardly: simply being reckless is not enough; it's certain types of information, it's the use of that information and fault elements right across the board.

Senator RHIANNON (New South Wales) (13:38): Minister, I want to explore the issue of intention, particularly with regard to bringing international attention to, say, any breach of law by the Australian government. I'm trying to understand if that would qualify as an intent to prejudice Australia's national security. To provide you with some examples of what I'm thinking of, I think that many of the senators and many of the parliamentarians in this place come across a range of people engaging in various activities where they have concerns. They try to develop and understand what their concerns are. I'm thinking here of the Great Barrier Reef. It's very much of global interest, and therefore people in other countries and in overseas organisations are engaging—global organisations, organisations in other countries and governments of other nations.

That's one example. Another big one that's ongoing and that we've seen in the past is around the Trans-Pacific Partnership. Again, it becomes a global network of organisations from different countries that are then bringing their concerns to a range of countries just wanting to highlight, by using the global stage and using media and social media, that the Australian government could end up breaching the law if it engaged in certain practices, or refused to engage in certain practices, when it comes to the Trans-Pacific Partnership. Would there be intent there to prejudice Australia's national security? I do feel that we need to understand thoroughly what it means, and how it will play out. If you could elaborate on that, I think it would be very helpful.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (13:40): Certainly, Senator. I think it's very, very clear that the issue you've raised of, for instance, NGOs and others engaging with international counterparts—and I'll give a couple of examples; in fact, I'll even quote the shadow Attorney-General, who said during the second reading debate:

… 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.

The espionage offences in sections 91.1 and 91.2 require proof beyond reasonable doubt that a person either intended to prejudice Australia's national security, or was aware of a substantial risk that his or her conduct would prejudice Australia's national security and that, in all the circumstances known to him or her, it was unjustifiable to take that risk.

Now an NGO seeking to draw human rights concerns to the attention of the UN or international counterparts plainly doesn't intend to prejudice Australia's national security. Similarly, even if there was a substantial risk that drawing such concerns to the attention of the UN or another NGO might prejudice Australia's national security beyond causing mere embarrassment to the Australian government—of course, that's difficult to conceive—then an NGO would plainly have a justification for drawing attention to such concerns.

Senator RHIANNON (New South Wales) (13:41): I think there's still looseness in the language there though, and that does need to be explored—in particular, when you're talking about national security and proof of intention to jeopardise national security. There is a big cloud over 'national security', and I raised that earlier with regard to what the dean of the UNSW Law School, George Williams, has raised.

So you're ruling out the international human rights example, but what about with regard to climate issues? Climate issues take into account the coal industry. Your government could interpret that coal is an essential service and so any criticism or protest or blockade could be seen as proof that it's intended to jeopardise national security. I'm sure you understand the examples that I'm referring to. I do think we need to dig into it a bit deeper considering there is a dispute about 'national security'.

Even accepting your definition, let's look at the climate example. Where people engage in activities of climate action—whether it's knitting nannas who sit outside the gates of a coalmine or people who actually go into the coalmine area to erect a banner—are they in breach? Considering it's the coal industry, and the coal industry means a lot to the government, you may classify it as an essential service; therefore, if anything is deemed to jeopardise it, could those people then be prosecuted? I'd like to go into the issue of what the nature of the prosecution would be, but, firstly, is that a scenario that could be captured by how your bill is structured?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (13:44): With respect, Senator, we are now very much going over ground that's already been covered in a lot of detail. I'll cover it one more time, but I don't intend to go over and over and over the same questions that are just framed in a slightly different way.

With the circumstances you've just referred to, it would presumably be some form of sabotage offence. I'm trying to figure out where else this might sit. We did deal with this, but I will go over it again. The sabotage offences can be committed only when a person damages public infrastructure and intends to or is reckless as to whether their conduct will prejudice Australia's national security or advantage the national security of a foreign country. 'Public infrastructure' is a defined term set out in section 82.2 of the bill. It doesn't include areas such as mines. Finally, on the other point, which was also covered before in terms of the definition of 'national security', it has been well-defined in a way that hasn't been the case in the past. I went to some detail in rejecting those assertions. With respect, we are very much going over old ground and I don't intend to give the same answer multiple times.

Senator RHIANNON (New South Wales) (13:45): You said that it's sabotage only if it damages infrastructure, but, Minister, we are in the committee stage. It's one of the very fine aspects of our parliaments, where we can actually explore the meaning of legislation. What you mean by 'damage' and what you mean by 'infrastructure' does need to be spelled out now. Is 'damage' actually breaking a machine so it doesn't function or does damage to infrastructure mean that somebody is sitting at the gates and part of that infrastructure can't be accessed? There is a clear responsibility as a minister looking after the legislation in this parliament: the public has a right to understand what this bill means. I think that should always be the case, but, considering the huge controversy that there has been around this issue, this is our opportunity for the government to get on the record what it means so that, when it's enacted—and, now we know that Labor's onboard, that's going to happen—there won't be doubt. At the moment, there is a lot of doubt. Could you actually spell out the answer to that, please?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (13:46): Senator Rhiannon, again, with respect, it is in the bill; it is in the definitions. Asking me questions about things that have been there for six months and are clearly defined is simply going over old ground. But, for your benefit, the definitions have been there for months. It says:

damage to public infrastructure: conduct results in damage to public infrastructure if any of the following paragraphs apply ...

It goes into some detail. You're welcome to read that. It's been on the public record for some time. Each of those terms is defined. I read out to you the definition of 'public infrastructure', which doesn't include mines, but, in terms of damage, it is defined. In terms of 'public infrastructure', it is defined. The legislation sets all of those things out very, very clearly.

Senator RHIANNON (New South Wales) (13:47): An example of where the government can run into big problems when they don't really spell out what the details are has been shown with the Tasmanian antiprotest laws. They were recently shown to be unconstitutional. My colleague Senator Nick McKim, who has carriage of this for the Greens, can obviously, coming from Tasmania, go into a lot more detail. But I certainly followed it closely because (1) I have interest in it, and (2) it was quite extraordinary. I remember that at the time, when it was being brought forward by the government, the government was absolute about it—absolute that this would work and was needed; the laws were effective and ready to go into action. What happened? They were found to be unconstitutional. That's why I'm pursuing this, Minister. This is the time when we have an opportunity to really get into how it all works. In that case, when it was found to be unconstitutional, it was found that it would breach the right of free speech. So let's go back to that one again. What advice have you received that you're not going to go down the same path as the Tasmanian government by bringing forward a law and saying, 'We've got the other major parties onboard. Labor are solidly with us here. This legislation is urgently needed to deal with any issues of national security and possible sabotage'—all the things that you're saying to argue the case that it's as solid as a rock. What advice have you received that it's not unconstitutional and it would stand up to any challenges?

Senator McKIM (Tasmania) (13:49): This is what we expected would happen. When the government has had enough and when the government's not able to answer quite reasonable questions on legislation like this, they simply crack the sads, have a bit of a sook, and sit there and don't answer questions. It's contemptuous of the Senate; it's contemptuous of our democracy. Minister Seselja can sit there and have a sulk for as long as he likes, but there are plenty of Greens to keep this debate going in this place, and we intend to scrutinise this legislation to the greatest of our capacity.

I've just come from a press conference with Bernard Collaery, who's been charged with conspiracy. Bernard Collaery, remember, is the lawyer who represents Witness K, the person who first revealed that the Australian government had bugged the government of Timor-Leste in an attempt to defraud one of our very close neighbours of their rightful revenue flows from the oil and gas fields in the Timor Sea. He's now been charged with conspiracy. And it's hard to escape the conclusion that those charges are politically motivated.

The reason I raise that in this debate is to support the contention that Australia is becoming a police state, a surveillance state and an authoritarian state. We've got social media companies scraping data off our mobile phones without permission and the government is doing nothing about it. We've got the government rolling along on its legislation to deny fundamental rights and liberties in this country that we used to sacrifice Australian lives to defend. In fact, relatives of mine have lost their lives defending those. Minister, if you think I'm going to let my relatives' sacrifice be in vain you've got another thing coming! So please show some respect for this parliament and answer the questions that you're asked.

I want to ask the question about the Tasmanian anti-protest legislation as well, parts of which were recently found to be unconstitutional by the High Court. Bless you, Bob Brown! Bob Brown was a distinguished senator and Leader of the Australian Greens for so long. He was one of the founders of the Australian Greens and, in fact, one of the founders of the global Greens movement that all of us who represent the Greens in this place are so proud to be part of. Bob was arrested at Lapoinya—a logging coop which I myself have visited, I might add. It's in this beautiful little patch of bushland in the north-west of Tassie. It's something that meant so much to the spirit of that local community. Then, of course, the Tasmanian government thought it was only worth something in dollar terms because, of course, they're Liberals. They're Tories, so they only understand value when there's a dollar sign in front of it. They decided they wanted to log it. Bob Brown got arrested there. I've actually lost count of the amount of times Bob's been arrested. I reckon he's pretty close to double figures, if he's not there already, through his activist and parliamentary career. He was arrested under some of the most draconian legislation that I saw in my time in the Tasmanian parliament.

By the way, this one trumps it hands down. If you want an assessment of where this sits—I've been in parliaments for about 16 years and this one's in the top three most draconian and frightening pieces of legislation that I've ever dealt with in my time in parliaments. And I've seen a few corrupt pieces of legislation—like the Tasmanian Pulp Mill Assessment Act, which was based on corrupt relationships between the Tasmanian government and Gunns Limited. And we're not missing Gunns Limited, by the way, down in Tassie. Those of us who care about the place are very happy to see the back of that company and convicted inside trader John Gay, who was their CEO and chair for so long.

But Bob Brown took the laws to the High Court and he won. Parts of those laws were found to be unconstitutional. That makes Senator Rhiannon's line of questioning entirely reasonable—and something that warrants greater engagement from you, Minister. I'm very happy for Senator Rhiannon to keep asking her questions, and I've risen in order to give her the opportunity to continue down that line of questioning. So I'll conclude this contribution and pass back to Senator Rhiannon, if the minister has no comment to make, by saying I'd be extremely interested in the minister answering Senator Rhiannon's question.

Senator RHIANNON (New South Wales) (13:55): I'm keen to hear the minister. I did ask the questions. I don't think I need to repeat them. So, first off, I am keen to hear from the minister.

Senator McKIM (Tasmania) (13:55): So this is how it's going to be, is it, Minister? You're just going to sit there, not answer questions, have a sulk and a bit of a sook—is that how it's going to be?

Senator Seselja: I've already answered the question.

Senator McKIM: All right, Minister. I think that's arguable and contestable. But I want to go back to the definitions that you and I were discussing before Senator Rhiannon began her line of questioning and before other parliamentary procedures intervened and ask about organisations like, for example, Markets for Change, and about other politicians who might prepare in Australia to travel overseas with the express intent of convincing foreign markets not to purchase Australian products. I'll use, again, Tasmania as the context for this question. Say somebody in Australia works with other people in Australia—and there's a potential conspiracy, in my view, under the draconian terms of this legislation—to plan their overseas trip, and that overseas trip is designed with the specific intention of impacting on Australia's economic relationship with another country by convincing markets in that country not to purchase particular Australian products. Say, in the Tasmanian context, these are products from our native forests, which are so criminally still being crashed. Would a person in that situation, Minister, be caught by the provisions of this act and subject to the sabotage provisions?

Senator SESELJA (Australian Capital Territory—Assistant Minister for Science, Jobs and Innovation) (13:57): No, the sabotage offences don't apply. I can take you through the sabotage offences again, but you'd have to provide me with some more information. I'm really just not following the logic here, Senator McKim. You're saying that if someone were to go overseas and advocate certain things they would effectively, potentially, fall foul of the sabotage offences which talk about the destruction of certain types of property? No.

Senator McKIM (Tasmania) (13:58): Well, Minister! You can get up and say no as long as you like. And I'm not sure whether that's based on advice from your office or from the Attorney-General's Department or not. But I will step you through—in the minute or two left to me before two o'clock rolls around and we go into question time—the reasons that I believe that someone who engages in the actions I've just taken you through actually would be caught by the definitions in this act and subject to a potential charge and a potential term of imprisonment of 20 years, firstly the offence of sabotage involving a foreign principal that is reckless as to national security. I'll tell you what, Minister: perhaps, as I've got only 45 seconds left, we can return to this when the legislation comes along. I just want to repeat what I said earlier: your government, with the complicity of the Australian Labor Party—yes, the complicity of the Labor Party—is walking this country ever more rapidly down the road to an authoritarian police state—

The TEMPORARY CHAIR ( Senator Marshall ): Order! It being nearly two o'clock, the committee will report progress.

Progress reported.