By Daisy Ni (PO ’21)
In the post 9/11 world, national security has become one of the biggest concerns that governments grapple with. In Australia, this concern has manifested in the form of two new pieces of legislation currently being debated: the National Security Legislation Amendment and the Foreign Transparency Scheme. In defending state interests, however, legislators can go too far, and these two bills may pose a threat to freedom of expression.
Freedom of expression is recognized to be protected by Australian domestic law through the constitutional implication of freedom of political communication. Australia is also subject to international law, which protects the freedom of expression as a fundamental right as well. Instances that infringe upon this right, as confirmed by the High Court in Lange v. Australian Broadcasting Corporation and in Coleman v. Power, must prove to be “reasonably appropriate and adapted to serve a legitimate end.” Thus, any attempt to protect national security at the expense of freedom of expression should pass the test of proportionality, demanding the law be suitable and necessary in its balance.
The two espionage bills together serve to strengthen existing espionage and secrecy offences as well as the state’s ability to identify and prosecute these crimes. They replace the current Criminal Code of 1995, but the differences between the present precedent and the new provisions proposed reveal an alarming possibility of government overreach. For example, the new bills expand the definitions of “espionage” and “national security,” imposing criminal liability without requiring that the handling of information was intended to cause harm. This marks a departure from the Criminal Code, which necessitated the communication of information to be made with intent either to prejudice Australia’s national security or to advance another country’s security. As a result of these broad and expansive definitions, the bills cover a scope of information, conduct, and people that may exceed the proportionality limit.
For example, some information that would now be criminalized actually conflicts with the Freedom of Information Act, which was passed in 1982 to increase transparency and dialogue between citizens and the government. Although the new bills prohibit the handling of all information which would harm or prejudice relations between Australia and others, information that could reasonably be expected to cause damage to relations is only conditionally exempt from release. Under the current system, only when the conditionally exempt document is contrary to the public interest can access be denied. The new legislation, however, has no such similar test of public interest, and therefore may encroach upon the rights of access already granted to the Australian public. As such, there is a possibility that a person who legally and rightfully requested information under the FOI Act could be open to criminal conviction for the handling of this same information, making the law inconsistent and incoherent.
Additionally, the espionage offences introduced section 122.1 of the National Security Legislation Amendment cover a wide range of conduct, including the “communication of inherently harmful information, dealing with inherently harmful information, the movement of inherently harmful information outside the proper place of custody, or the failure to comply with the direction regarding inherently harmful information.” In particular, the phrase “dealing with” is defined to include if a person “receives, obtains, collects, possess, makes a record of…” information. In effect, this broad definition of what constitutes “dealing with” information, in combination with the lack of specificity regarding “inherently harmful information,” would impose criminal liability upon those who may not had been deliberate perpetrators of espionage. The ambiguity regarding which kinds of transactions of which kinds of information could deter investigative reporting, as activists and reporters will now be forced to guess if their actions fall within these categories of conduct and possibly self-censor.
Human rights groups further argue that the bills do not sufficiently protect disclosure made in the public interest. The National Security Legislation Amendment bill does contain defenses in section 122.5 to protect those communicating information in cases that are “proper or legitimate,” and furthermore cite the Public Interest Disclosure Act of 2013. However, there are severe gaps between those bills leaving a grey area of who the government can convict and who they may protect. For example, although the bills criminalize a range of conduct beyond mere disclosure of information, the defenses extend only to cases with “communication of information” and leave unprotected others who act in the public interest in other ways. Additionally, the PIDA applies only to public officials, while offences created in the bills extend beyond officials to any citizens. As a result, the bill fails to adequately insulate whistleblowers from retaliation, whom society depends on to uncover unethical or dishonest misconduct and to hold the government to a level of accountability.
Australia’s espionage bills could prove damaging to its foreign relations. While the new legislation was based upon an assessment of global threats, one of the main causes to initiate this assessment in the first place was deemed to be Chinese interference in Australian elections. As such, the Foreign Influence Transparency Scheme prohibits foreign contributions to campaigns, and necessitates the registration of all foreign agents. With this legislation, Australia seems to be rejecting Chinese attempts of dominance in the region, evoking harsh condemnations from China. Australia’s bills join the nation with other democracies moving toward more secrecy with information, such as the United States, Japan, and Britain, inviting contemplation about the future of the globe in a world of mistrust. Regardless of the bigger debate surrounding the validity of this direction, however, Australia’s new bills may not prove the most apt approach, posing strong concerns for freedom of expression and general human rights.