Spy law changes an option but sweeping exemptions ruled out

Christian Porter says he is open to amending secrecy and espionage laws but has ruled out ‘sweeping, blanket exemptions’.

Attorney-General Christian Porter at his Commonwealth Parliamentary Offices in Sydney. Picture: John Feder.

Attorney-General Christian Porter says he is open to amending the government’s new secrecy and espionage laws but has ruled out “sweeping, blanket exemptions for a variety of professions”, ­including journalists, academics and lawyers.

Media companies, including News Corp Australia, which publishes The Australian, have warned that journalists and editorial support staff could face criminal prosecution under the new laws, if they are sent sensitive government information.

The warning came as the nation’s peak intelligence agency says foreign interference and espionage in Australia is at a higher level now than during the Cold War, and the country may have been slow to grasp the threat.

Mr Porter yesterday played down concerns about the laws, telling The Australian that it was “not the intent” of the government to criminalise normal ­journalism, and he did not accept it was a “likely outcome” of the legislation.

He was also unapologetic about the government’s efforts to more than double the potential penalties for breaches of secrecy laws from a maximum of seven years to up to 20 years for aggravated offences.

“That is simply about having the proper and modern disincentives in place for people to deal with information in a way that’s ­contrary to our national interests,” Mr Porter said.

He said the bill was “basically updating” existing secrecy laws, “which all journalists are familiar with and have operated under for many years”.

Media Entertainment and Arts Alliance chief executive Paul Murphy said the bill, which is currently the subject of a joint parliamentary inquiry, went much further than existing secrecy laws, creating a new offence of handling classified information that did not exist at present.

“This bill is very broadly ­drafted, it’s poorly drafted and it really needs to be rethought,” Mr Murphy said.

If it had already been passed, journalists at the ABC could have faced criminal prosecution this week for publishing classified information contained in hundreds of cabinet documents discovered in two ex-government filing cabinets sold at a second-hand furniture shop, he said.

The documents’ “top secret” classification could have been used as an aggravating factor to ­inflict a harsher punishment.

Georgia-Kate Schubert, head of government affairs at News Corp Australia, echoed those ­concerns.

“The bill goes far beyond the ­secrecy measures currently in place ... We urge the committee to consider very carefully the position held by the vast majority of media organisations in this country to provide an appropriate ­defence for public-interest journalism and news reporting,” Ms Schubert said.

The Attorney-General, who was sworn in on December 20, said he was “cautious of overreach” and “of course” open to amending the government’s foreign interference and espionage laws to ­address the concerns of ­universities, charity organisations and lawyers.

“My focus is going to be where those concerns are not of a philosophical nature but are more ­directed at ways in which the drafting could conceivably be ­improved,” Mr Porter said.

On the timing of the government’s new proposed register for foreign agents, Mr Porter said it would depend on when the legislation was passed, but it was “a ­priority for this year”.

Opposition legal affairs spokesman Mark Dreyfus said Labor would have a “serious look” at whether amendments were needed to address the “very justifiable concerns” raised by media organisations, religious groups, charities and universities, and the “very broad way” in which the secrecy laws had been drafted.

Legal academic Tom Fitzgerald, of Notre Dame University, said he was worried that the new laws could expose Catholics, Jews and Anglicans to prosecution if they lobbied for changes to ­government policies at the ­request of religious leaders while failing to register as foreign agents.

The scheme provides an exemption for religion, but Mr Fitzgerald said this was extremely narrow and would lead to arguments in court about whether the lobbying in question was “solely” related to the doctrines or beliefs of the religion.

In order to avoid liability, those who lobbied on behalf of their religion would also need to satisfy a court that their conduct was “in good faith” — which would ­require a judicial assessment of a religious argument.

Actions that would require individuals to register as foreign agents “could be as little as a priest saying to a congregation ‘go and talk to your local MP’,” Mr Fitzgerald said.

In order to invoke the exception, a court would need to examine the doctrines and tenets of a particular religion, he said.

“The potential for abuse of this law is absolutely extraordinary,” Mr Fitzgerald said.