Concerns Raised About Proposed Foreign Influence and National Security Legislation

Last year, Timebase reported on the Federal Government's package of legislation, introduced to quell growing concerns within the intelligence community about the influence of overseas agents and political donations. One of the key reforms proposed was legislation requiring lobbyists and former members of Parliament to declare whether they are acting for a foreign country (for more information see  our previous article

Recently, however, several commentators have published concerns that have emerged with respect to how the proposed changes may operate. These concerns are especially with respect to how certain charities, who also undertake political advocacy, may be affected. Additional concerns also question how the changes may affect whistleblowers and journalists who report on leaked information.

Background

The proposed legislation was introduced into the House of Representatives on 7 December 2017, just after the Parliament passed the same sex marriage legislation. The legislation package includes the following Bills:

• Foreign Influence Transparency Scheme Bill 2017;
• National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017;
• Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017; 
• Home Affairs and Integrity Agencies Legislation Amendment Bill 2017; and
• Electoral Funding and Disclosure Reform Bill 2017.

The Key Changes

Some of the key changes proposed by the Bills are:

The legislation package proposes to broaden the legal definition of espionage to make it a crime to possess sensitive information, rather than merely to communicate it. The proposed legislation additionally creates a new offence of unlawful interference in Australia's political system. This offence would include behaviours that would harm the national interest.

In a media release, issued on 5 December 2017, the Prime Minister said the changes represented the "largest overhaul of espionage, counter-intelligence and political donations" in Australia in decades. The Prime Minister also added that the Government could not afford to be "naive about the threat of foreign interference" and stressed that the laws were not focused on the loyalties of multicultural Australia.

Possible Effects on Charities

As reported by The Guardian Australia (Article 1), charities such as the Australian Conservation Foundation and the St Vincent de Paul Society could, under the proposed foreign donation laws, face a much more complex and difficult system that may restrict or prevent the current public advocacy work they undertake. As it stands, the Federal Government’s proposed legislation bans foreign donations so as to prevent foreign interference in Australian politics. This ban would extend to “political campaigners”, potentially including charities who conduct public advocacy.

Another concern raised is that the Electoral Funding and Disclosure Reform Bill 2017, introduced into Parliament in December 2017, would see organisations who spend $100,000 or more on political activities in the previous four years registered as a “political campaigner”. For this purpose, "political expenditure" is broadly defined in the Bill to include the expression of  “. . . any views on an issue that is, or is likely to be, before electors in an election” whether it is during the campaign period or not. As a result, many charities’ public advocacy on issues including homelessness, the age pension, low wages, refugees, and the environment could be deemed to be "political expenditure", which would force them to register under the proposed legislative system.

If they fell under the definition of “political campaigner”, such charities would then be required to keep records to ensure donors of more than $250 are “allowable donors”, that is, Australian citizens or residents who are not foreign entities. These kind of requirements may add enormous costs to the work carried out by such organisations. Donations from non-citizens or non-residents would require the setting up of special accounts to keep revenue separate from other sources and ensure it is not spent on political expenditure. Failure to do this could see fines of more than $50,000 being imposed on a charity.

Effects On Whistleblowers and Journalists

The Guardian (Article 2) also reports that Government whistleblowers and journalists, reporting on leaked information, could face 20 years’ imprisonment under the Federal Government's proposed changes to Australia’s official secrecy laws. Some of the proposed changes, to Australian intelligence offences, increase the maximum penalties for anyone communicating information potentially harmful to the national interest. This would apply where that information is obtained via a Government official, without authorisation.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Charities warn Australia's foreign donation laws will strangle advocacy (11 January 2018). The Guardian. (Article 1).

‘Creeping Stalinism’: secrecy law could imprison whistleblowers and journalists (11 January 2018). The Guardian. (Article 2).

Media Release: Malcolm Turnbull announces biggest overhaul of espionage, intelligence laws in decades (5 December 2018). ABC News.