Australia’s privacy and transparency watchdog was given less than 24 hours to review the government’s proposed secrecy laws while they were being drafted, The New Daily can exclusively reveal.
The Attorney-General’s Department provided the Office of the Australian Information Commissioner (OAIC) with a draft of the legislation – which introduces heavy jail terms for handling sensitive government information – several weeks before its announcement to gather feedback and recommendations.
But emails obtained under freedom of information laws reveal the OAIC was given a deadline of just one day to assess the contentious Espionage and Foreign Interference Bill.
The legislation was unveiled by Prime Minister Malcolm Turnbull in December as part of a crackdown on government leaks and against a backdrop of rising anxiety about Chinese interference in Australian politics. But press freedom advocates have warned that the legislation could criminalise legitimate public interest journalism.
In an email sent on November 14, OAIC assistant branch director Stephanie Otorepec told colleagues that the bill had been sent “for comment by tomorrow morning” but the “tight timeframe” meant a response might not be possible.
Ms Otorepec continued that the watchdog had the option of responding that it hadn’t had the “opportunity to review in the given timeframe” but wished to be “kept in the loop”.
In response, OAIC staff flagged a number of concerns about how the proposed law could affect the watchdog’s role of ensuring compliance with freedom of information and privacy laws.
“The definition of ‘confidential informational’ appears to be very broad and would potentially cover information considered as part of an IC [Information Commissioner] review application,” Emma Liddle, acting director of FOI dispute resolution, wrote in one email.
Suggesting it was unclear whether the legislation could leave them exposed to criminal liability, Ms Liddle wrote that “we will need to be consulted further, and in more detail” about the legislation.
In another email, Assistant Commissioner Andrew Solomon noted that staff could only review several specific provisions of the bill and didn’t know if “there are any other issues of a privacy or FOI nature”.
In the OAIC’s ultimate submission, delivered three hours after the 11am deadline on November 15, Ms Otorepec highlighted concerns that the “very broad” language of the law could potentially impact the watchdog’s work.
In an earlier email sent to colleagues, also after the deadline, Ms Otorepec said the Attorney-General’s Department had indicated it could still “send on” additional comments to the drafters of the bill.
The OAIC inadvertently tipped off The New Daily to the fleeting consultation last month but declined to confirm the timeframe when approached for comment at the time.
Shadow Attorney-General Mark Dreyfus told The New Daily the government was arrogant for failing to properly consult with stakeholders about the law.
“This revelation helps explain why these laws are so poorly drafted, flawed and have caused such widespread concern across the Australian community,” Mr Dreyfus said.
“No government that consulted with affected groups and legal and national security experts could possibly have drafted laws so out of touch with community expectation, whether inadvertently or not, and with so many adverse impacts were they allowed to proceed into law.
“The Turnbull government has some very serious questions to answer about their inadequate consultation with the Information Commissioner. How many other relevant agencies did the government fail to consult with?”
However, Attorney-General Christian Porter, who replaced George Brandis in December and has suggested an openness to revisions, rejected any suggestion the legislation had been rushed.
“The bill was introduced in early December and is now subject to a Parliamentary Joint Committee on Intelligence and Security inquiry until a late March reporting date, to which the OAIC has made a public submission, that won’t be debated until the budget session,” Mr Porter said, adding that amendments proposed at the committee stage were usually accepted by the government.
A spokesperson for the Attorney-General’s department said consultation “often occurs in very tight timeframes, depending on when bills are to be introduced to Parliament, and that process of consultation continues”.