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Devil in the detail of national security legislation

By Peter Jennings

The government is introducing a lot of complex legislation to the parliament, none of which we have seen yet and we have only very high level descriptions of what the new laws are designed to accomplish.

This is necessary legislation but the practical effect of these laws will be determined by how the bills are designed and how they’ll be implemented.

Measures covered by the National Security Legislation Amendment Bill will create a range of offences dealing with espionage, sabotage and treason. The point here is that there has been no successful prosecution against individuals accused of such offences for decades.

The bill is trying to criminalise certain covert and deceptive activities of foreign actors that may not amount to full-on espionage but are still designed to undermine our democratic system.

This is important and necessary given the judgment of our intelligence agencies that we are at high risk. Clearly some very fine lines must be developed to establish what is legitimate lobbying activity, for example on the part of international companies just wanting to do business in Australia, and illegitimate activities on the part of individuals or foreign companies covertly trying to change government policy.

An example of that would be attempts to get political parties to shift their positions on the South China Sea: to say, for example, that China’s internationally illegal land reclamation does not concern Australia, when such activities run against our direct strategic interests.

Most people will accept that there’s a distinction between legitimate international business and attempts to covertly influence and shape policy.

It will be important to see the detail of, for example, the government’s new registration scheme, which is going to require individuals to register if they are engaging in certain activities on behalf of foreign entities.

The government has said this could include former members of parliament and senior public officials who will need to disclose when they are acting in any capacity for a foreign entity.

Another piece of legislation the government is introducing is the Electoral Legislation Amendment Bill, which will ban foreign donations from non-citizens and foreign entities to political parties, trade unions and advocacy groups such as GetUp!.

This is something I’ve been calling for over several years. Australia is almost alone among developed democracies in having a political system that’s been open to campaign donations from foreign entities. The government is closing an important loophole.

This is also going to have to be very carefully implemented. How, for example, will the legislation prevent a foreign entity creating an Australian shell company that then donates to a political party?

Again, this all comes down to how it will work in terms of practical implementation.

Peter Jennings is executive director of the Australian Strategic Policy Institute and a former deputy secretary for strategy in the Department of Defence.

Originally published by: The Australian on 07 Dec 2017