Back to Asia Pacific Regional Forum publications

Robert Wyld
Johnson Winter & Slattery, Sydney
robert.wyld@jws.com.au

 

Introduction

Over the last few years politics across the globe has become increasingly nationalistic, patriotic and partisan. Any issue of importance seems to be tinged with the catch cry of national security, sovereignty, freedom and democracy. Yet despite these views, governments (and multinational companies) across the globe have sought to meddle or interfere in or try to influence the politics of other countries and to gather data about what people do, how they shop, their likes and dislikes, and perhaps what they think and how they might vote in elections (think, Cambridge Analytica).

Australia does not appear to be immune to these influences. The Australian Government is in a tricky situation that it has managed to ignore for many years: choice. Does it side completely with the current United States administration or does it side with its single biggest trading partner, China? Because, there is no mistake about it, the US wants Australia to be in its team against China and China decries that choice and criticises Australia for wanting more trade yet adopting an aggressive attitude towards it.

This is all against a backdrop of what appears to be an increasingly popular distrust of the political process and disengagement with politics and governments. Many governments are popularly seen as being selfish and run for the few not the many. They are sometimes seen as supporting, even engaging in, deceptive and potentially illegal conduct when it suits them, which they then try to cover up and/or ignore.^[1] Some in government seem to regard their own power, enrichment and support of their friends as more important than serving those who voted them into office. Life is complicated and no government comes to this discussion with the high moral ground or with its virtue untarnished.

So how has Australia responded to the slogan of ‘no foreign interference’, trying to placate two dominating and some might say, domineering, nations?

Foreign Interference Transparency Scheme

In 2018, the Commonwealth Parliament passed the Foreign Influence Transparency Scheme Act 2019 (Cth) (the 'Scheme Act'). It created a registration process for entities that purport to undertake activities in Australia on behalf of a foreign principal, particularly for the purposes of seeking to influence political or government activity. The Scheme Act requires individuals and/or entities who seek to act for and on behalf of a foreign principal to register their identity and to ensure that their conduct on behalf of the foreign principal is disclosed and transparent.

There are a number of exceptions to the registration process and in particular, members of the parliament of the Commonwealth and a State or Territory or a person holding an office under a law of the Commonwealth or a State or Territory are exempt from the registration process.^[2]

Espionage and foreign interference laws

In late 2018, the Commonwealth Parliament passed the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) ('National Security Act'). The National Security Act had the effect of introducing a range of amendments to the Criminal Code Act 1995 (Cth) ('Criminal Code') and related legislation to create a range of criminal offences to cover foreign interference. The principal agencies with responsibility for these offences are the Australian Federal Police (AFP) and the Australian Security & Intelligence Organisation (ASIO) as investigators and the Commonwealth Director of Public Prosecutions (CDPP) as the independent statutory prosecutor for Commonwealth offences.

The National Security Act introduced a range of reforms to Australia’s criminal law:^[3]

• strengthening existing espionage offences;
• introducing new foreign interference offences targeting covert, deceptive or threatening actions by foreign actors who intend to influence Australia’s democratic or government processes or to harm Australia;
• introducing reforms to secrecy offences, ensuring they appropriately criminalise leaks of harmful information while also protecting freedom of speech;
• introducing new sabotage offences that effectively protect critical infrastructure in the modern environment;
• reforming offences against government, including treason, to better protect Australia’s defence and democracy;
• introducing a new theft of trade secrets offence to protect Australia from economic espionage by foreign government principals;
• introducing a new aggravated offence for providing false and misleading information in the context of security clearance processes; and
• ensuring law enforcement agencies have access to telecoms interception powers to investigate these offences.

The purpose of the new foreign interference laws was outlined in the following terms:

‘These offences complement the espionage offences by criminalising a range of other harmful conduct undertaken by foreign principals who seek to interfere with Australia’s political, governmental or democratic processes, to support their own intelligence activities or to otherwise prejudice Australia’s national security. The offences will apply where a person’s conduct is covert or deceptive, involves threats or menaces or does not disclose the fact that conduct is undertaken on behalf of a foreign principal.’^[4]

These provisions effectively create the following offences directed towards foreign interference, being the offence of:^[5]

• intentional foreign interference;

• foreign interference involving a targeted person;

• reckless foreign interference; and

• preparing for a foreign interference offence.

There are limited defences for the foreign interference offences where a person engaged in the conduct:^[6]

(a) in accordance with a law of the Commonwealth;^[7]

(b) in accordance with an arrangement or agreement to which the Commonwealth is a party; or

(c) in the person’s capacity as a public official.

Each of the offences are based on deceptive conduct, whether intentional or reckless, which has the effect of seeking to hide the true reasons for a person’s conduct on behalf of a foreign principal.

Intentional foreign interference

The offence of intentional foreign interference requires a number of elements to be established,^[8] each of which must also satisfy the physical and fault tests under the Criminal Code.^[9]

In summary, a person commits an offence if:

(a) the person engages in conduct; and any of the following exist:

(i) the conduct is engaged in ‘on behalf of or in collaboration with a foreign principal or a person acting on behalf of a foreign principal’; or

(ii) the conduct is ‘directed, funded or supervised by the foreign principal or person acting on behalf of a foreign principal’; and

(b) the person intends that the conduct will:

(i) influence a political or governmental process of the Commonwealth or a State or Territory;

(ii) influence the exercise (whether or not in Australia) of ‘an Australian democratic or political right or duty’;^[10]

(iii) support intelligence activities of a foreign principal; or

(iv) prejudice Australia’s national security;^[11] and

(c) any part of the conduct:

(i) is covert or involves deception; or

(ii) involves the person making a threat to cause serious harm whether to the person to whom the threat is made or any other person; or

(iii) involves the person making a demand with menaces.^[12]

The concepts of a ‘foreign principal’^[13] and ‘foreign government principal’^[14] are given a broad definition.

Reckless foreign interference

The offence of reckless foreign interference has the same elements as the intentional foreign interference offence, but the relevant person does not ‘intend’ the conduct; rather, the person is reckless as to whether the conduct will in fact result in the same consequences.^[15] This is more of an objective test in contrast to intent that must be proved in the intentional foreign interference offence.

Interference involving targeted person

The offence of interference involving targeted person is the same as the intentional foreign interference offence, that is, that the person ‘intends that the conduct will influence another person (the target)’ in relation to:^[16]

(a) a political or governmental process of the Commonwealth or a State or Territory; or

(b) in the target’s exercise (whether or not in Australia) of any Australian democratic or political right or duty; and

(c) the person conceals from, or fails to disclose to, the target, the role or activity of the underlying foreign principal.

Preparing for a foreign interference offence

The offence of preparing for a foreign interference offence occurs where a person engages in conduct and does so with the intention of preparing for or planning conduct which constitutes the intentional foreign interference offence or the reckless foreign interference offence.^[17]

Foreign interference in practice

Two areas of activity have come under close scrutiny as susceptible to foreign interference. The first is the political process in Australia. The second is in higher education.

In mid-June 2020, in a blaze of publicity, the AFP (with ASIO) executed a search warrant on the offices of a New South Wales State Labor politician and members of staff employed in his office, one of whom was John Zhang.^[18] The AFP and ASIO have said very little about what triggered the raids or of the conduct alleged to motivate the raid. As yet, no charges have been laid by the AFP. In response, the NSW Labor party suspended the politician, who has a colourful past in making statements supportive of China. Mr Zhang has taken another course. He has filed proceedings in the High Court of Australia (Australia’s highest court) seeking declarations quashing the search warrant and the destruction or return of all items seized. He is also seeking declarations that the warrant did not comply with the Australian law permitting its issue and the conduct of the authorities breached the Australian Constitution.^[19] This investigation appears to be ongoing and is likely to take time.

On 25 August 2020, The Australian published a lead article on the activities of a Chinese organisation known as the Thousand Talents Plan which purports to sign up academics from Australia (and other countries)^[20] in a secretive manner, not disclosed to Australian universities, in an attempt, as the article alleged, to ‘assign intellectual property to Chinese universities’ and for academics to be potentially drawn into working for the secretive Chinese State (not that other states are not, from time to time, secretive, but perhaps there are degrees of state secrecy that are acceptable to protect democratic values). The Thousand Talents Plan is designed to encourage students and others to be drawn into the programme. In return, funding of many millions of dollars is made available to universities and to academics. The article then goes on to criticise academics from engaging with China, universities for lax standards in not knowing what their academics were doing and of generally regarding such behaviour as a threat to democracy and freedoms, with the ‘likelihood’ of the academic work being ‘taken by China’ for its own nefarious purposes. A full page spread was published naming academics with photographs, almost as a public gallery of shame, and details of what they are alleged to have done.

On 27 August 2020, the Prime Minister announced to the Australian Parliament that the Foreign Relations (State and Territory Arrangements) Bill 2020 will be introduced. This legislative initiative occurred due to disquiet among government members and certain sections of the media that state governments and other bodies were entering into arrangements and/or contracts with foreign governments or foreign government entities in circumstances where the Australian Government was not consulted, was unaware of such arrangements or otherwise regarded them as contrary to Australia’s security and national interest. This is inconsistent with the notion of ‘one national interest’.

Foremost among the arrangements that the Australian government may review involve a number of agreements between the State of Victoria and China (or Chinese interests) including the Belt and Road Initiative (in which Victoria had agreed to participate), which is not supported by the national government. Other arrangements involve various states and foreign governments in India, Indonesia, Israel, Russia, Singapore, South Korea, the US and numerous other arrangements involving local governments and universities. Again, without stating what everyone knows, these laws are focused towards China and direct and indirect Chinese influence in Australia. The Australian media has breathlessly reported that the Bill, if enacted, will allow the Australian Government to unilaterally terminate existing agreements, contracts, MOUs or the like that it considers them to be contrary to the national interest. How this plays out in reality and whether it will promote more transparency and accountability or an acrimonious constitutional challenge concerning the interplay of Commonwealth and State constitutional powers in a federation,^[21] remains to be seen.

On 27 August 2020, the Prime Minister said this to the Parliament:^[22]

‘That Foreign Relations Bill will protect and promote Australia’s national interest and ensure that Australia has a federal government, a national government that cannot be undermined through the efforts of any nation that would seek to undermine Australia's foreign affairs position by dealing with subnational governments. There is only one sovereignty in Australia, and that is what we share as Australians. At times such as these, as we deal with the many threats that are without – and indeed those that are present within, when it comes to disaster or pandemic or other issues that can undermine our security and add to the challenges that Australians face – it is incredibly important that we don’t retreat into provincialism. It’s important that we focus, very united together as a country, on what makes us strong, and that is when six states came together to form Australia as a federated nation. Alfred Deakin got it right. Australia, he said, is one and indivisible. That’s how we should present to the world when it comes to our foreign relations, and that's how we should conduct ourselves within.’

It seems that in the haste of politicians and the media calling for agreements to be torn up, cancelled or terminated, the rather quaint notion of the rule of law and its dislike of retrospective legislation, gets conveniently forgotten. While the Australian criminal law regards criminalising that which was not criminal far more seriously than the civil common law,^[23] setting precedents like this in law, in the hands of a political, partisan minister (of whatever political hue) to make these decisions, does not instil great confidence for the integrity of the process.

On 28 August 2020, the Australian Minister for Education announced the establishment of a University Foreign Interference Taskforce, which is made up of intelligence agencies, education bureaucrats and university leaders.^[24] The Australian Government has identified overarching principles to underlie new Guidelines^[25] for the university sector which are that:

• security must safeguard academic freedom, values and research collaboration;

• research, collaboration and education activities must be mindful of national interest;

• security is a collective responsibility with individual accountability;

• security should be proportionate to organisational risk; and

• the safety of our university community is paramount.

On 31 August 2020, the Minister for Home Affairs requested that the Australian Parliamentary Joint Committee on Intelligence and Security undertake a review of alleged foreign interference in the education sector. How this will develop, what intelligence agencies will say about foreign interference (and if such views will be made public) and how universities will respond, remains to be seen. It is likely, however, to be an ongoing vexed issue in Australia’s relationship with China. The extent to which legitimate research relationships between Australia and China can survive this process is a challenge for all players.

On 16 October 2020, the Australian Parliament Standing Committee on The Scrutiny of Bills published its views on the Foreign Relations Bill. It raised serious questions as to why a broad, discretionary power should be vested in a Minster free from any meaningful oversight. It was critical of the lack of any recognition of procedural fairness, which was stated to be a fundamental common law right, in how a Minister might exercise powers under the proposed Bill. The Committee requested further detail from the Government. The Australian Government has yet to publish any response to these questions.

The future for foreign interference

Complaints about foreign interference have created deep partisan divides across at least one country, the US. The cries against foreign interference, or whatever that means in a negative or pejorative sense, are getting louder in Australia. This development is deeply concerning. It is hardly healthy in any country for police agents or spies to determine whether a person’s conduct will ‘influence a political or government process’, or the exercise of ‘an Australian democratic or political right or duty’. What do these concepts mean? They are not defined. It is likely that many Australians may have differing views on what these concepts mean and depending on their politics, they might mean very different things. It is dangerous for governments, and agencies with secretive powers of arrest supported by the state criminal process with ten years’ imprisonment awaiting the guilty, to determine the political narrative of a country, whether those who engage in peddling influence are domestic (and secretive) or foreign (and secretive).

What should be at the heart of this discussion is the notion of transparency and accountability, not the criminal law. If individuals or organisations seek to portray and support the position of external nations, let them say so. Vitriol against those who support one nation over another is hardly conducive to the democratic process. Nor is the threat of arrest and a criminal conviction. It will be interesting to see if these laws are applied towards any country apart from China. Supporters will say that they do not need to as those who support whatever Saudi Arabia, the UK or the US stand for, for example, do so proudly and shout their support from the ramparts. It is not only a secretive communist country that we should fear. Many governments, including those Australia professes to be grand friends with, including itself, find transparency and accountability a challenge when their own conduct is called into question. But do we need to criminalise those who should be encouraged to be open about their views and beliefs? It is hoped the focus of these laws will be to promote transparency and accountability rather than unilaterally, and retrospectively, tear up existing agreements because you now do not like them or otherwise impose the weight of the criminal law on those you no longer like, who seek to exert influence in ways you do not approve of.