Under cover of an increasingly shouty debate over business taxes, the Coalition and Labor have done a deal to ram through the government’s draft foreign influence and espionage laws, dumping hundreds of new amendments on the Senate last night in what the Greens say is an irrational, unnecessary, “unholy rush”. The laws are intended to counter covert interference in the body politic by foreign states, and the government describes them as the “most significant counterintelligence reforms since the 1970s”. But the laws could criminalise non-violent protest and public interest journalism, and last night almost the entire Senate crossbench voted – unusually – in support of a Greens motion to refer them to a fuller, open parliamentary inquiry. As Liberal Democrat senator David Lleyonhjelm said during last night’s debate: “Anything that creates new [criminal] offences has to be taken exceptionally seriously.”

Earlier this month, Attorney-General Christian Porter insisted that it was critical that the two bills – the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, and the Foreign Influence Transparency Scheme Bill 2017 – were passed before the five Super Saturday by-elections on July 28. As other commentators have noted, this is nonsense.

Last night the Senate crossbench, from Centre Alliance to One Nation, from Tim Storer to Derryn Hinch to Cory Bernardi (but not Brian Burston!), supported a motion by Greens senator Nick McKim to refer the bills and their 280 amendments to the Legal Affairs and Constitutional Committee for scrutiny. The government and Opposition rejected the motion, arguing the bills have been examined by the Parliamentary Joint Committee on Intelligence and Security.

But as Lleyonhjelm said last night: “That committee does not allow other participating members – there is nobody from the Greens and nobody from the crossbench involved in it. Yes, we can read all the submissions – at least, the ones that are published; they’re not all published – but we don’t hear the evidence of the security agencies and we don’t really know how it’s all going to end up.”

It is the closed shop nature of the JCIS, McKim says, that has united the crossbench. Today the government tabled a statement of its reasons for rushing, and McKim says “they’re basically saying ‘it’s urgent because we say it’s urgent.’” Given that the attorney-general’s department has already admitted it would take months to give effect to the laws, they can make no difference to the Super Saturday results, so McKim says there is “no rational argument” for the haste.

McKim said the 280 amendments were dumped on the Senate yesterday afternoon and there had been no opportunity for them to be properly tested or scrutinised by the parliament, media or civil society. “It’s a disgrace and an abuse of Senate process,” he says. Accusing the government of a “massive overreach”, McKim says the espionage laws in particular will have a “chilling effect” on democratic participation, including peaceful and non-violent protest and public interest journalism.

As I have highlighted previously, the bills still have an extremely broad catch-all definition of “national security”, which covers anything that impacts the political, military or economic relations between Australia and another country. Anyone blockading a road to protest a live sheep export shipment, for example, or reporting on a breach of human rights at an offshore immigration detention centre or by Australian armed forces, could face up to 15 years’ jail.

McKim will move a number of amendments when the bills get to the committee stage, most likely tomorrow, including to insert a three-year sunset clause into both bills, but he does not hold out much hope, “because the Liberals and Labor have stitched up a deal”.

Alice Drury, legal director for GetUp!, says the amendments have gone some way to protecting activists and journalists from prosecution under the secrecy offences, where there is a public interest defence, but not under the sabotage and espionage offences, where there isn’t. “The only safeguard is the attorney-general’s veto power,” she says. “We have serious concerns this bill is unconstitutional. We’re looking into a challenge.”

Asked why Labor had supported such draconian bills, Drury replies: “They don’t want to rock the boat on national security.”

since this morning

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