Australian foreign interference laws.Rupert Murdoch and Duong Di Sanh

Murdoch is an American, but he has a major impact on our elections, and works insidiously, for example, to sabotage efforts to get Australian Governments to act effectively against climate change. His empire also works surreptitiously at undermining that most important Australian democratic institution, the ABC. We all know that nothing will be done about Murdoch – the laws of Australia are not enforced without fear or favour.

Credit – Wikipedia

Last week, ABC ‘Just In’ reported that 65-year-old Melbourne man, Mr Duong Di Sanh, also known as Sunny Duong, has become the first person charged under Australian foreign interference laws.

The report, by two respected ABC journalists, said that Mr Duong was charged with preparing to commit foreign interference. It gave some background information about Mr Duong: he is a prominent member of Victoria’s South-East Asian Chinese community, including being the deputy chairperson of the Museum of Chinese Australian History in Melbourne, and the President of the Oceania Federation of Chinese Organisations from Vietnam, Cambodia and Laos Inc.

There seems nothing objectionable in the above paragraphs, assuming that they are factually correct.

The foreign interference offence is drafted imprecise and apparently very broad. It could criminalise tens of thousands of ordinary, honest Australians. The offence is likely to cover many of the activities of Rupert Murdoch and Newscorp. Having a very serious crime on the statute books which is committed by dozens of people every day but which is only enforced highly selectively is a grave breach of the Rule of Law, because it gives to the executive government the power unaccountably to criminalise the actions of a few but to ignore those of the many.

The core of the foreign interference offence is that the accused “engages in conduct … on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal” with the intention to “influence a political or governmental process”; or “to influence the exercise … of an Australian democratic or political right or duty”; and “any part of the conduct is covert or involves deception”; or if the accused “fails to disclose to the target” that the person is “acting on behalf of, or in collaboration with, a foreign principal”.

According to the ABC report, however, Mr Duong has not been charged with foreign interference. He has been charged with preparing to commit foreign interference – preparing to commit this broad, imprecise crime.

So that is one more remove away from actually engaging in foreign interference, and increases the breadth and imprecision even further. Under the Commonwealth Criminal Code, a person commits the offence of preparing to commit foreign interference if the person engages in conduct “with the intention of preparing for, or planning, an offence of foreign interference.” Further, the preparation crime is committed whether or not the person engages in the conduct in preparation for, or planning, “a specific offence” – presumably as distinct from in preparation to commit some as yet undetermined foreign interference; preparing perhaps for when the chance presents, or when for when requested by the foreign principal.

I wrote above that there seems nothing objectionable about the bare bones of the ABC story. However, the story did descend from the high ground. It said that Mr Duong appeared next to Acting Immigration and Multicultural Affairs Minister Alan Tudge at a press conference in June, when he handed over a cheque for more than $37,000 to the Royal Melbourne Hospital to help with coronavirus research and preparation. The report clarified that there is no suggestion Mr Tudge has any involvement with Mr Duong beyond that meeting!

The ABC report said the charges followed a year-long investigation by the Counter Foreign Interference Taskforce, led by domestic spy agency ASIO and the AFP.

It said that “Mr Duong has been linked with the China Council for the Promotion of Peaceful National Reunification — which is affiliated with the Chinese Government’s overseas influence arm, the United Front Work Department.” “Linked with”? Linked how and by whom? What does “linked with” mean in that context? My Dad used to bring home books and magazines borrowed from the US Information Service in Sydney. I enjoyed reading Dr Seuss and Boys Life magazine. Does that mean that my Dad “was linked with a US Government overseas influence arm”? This is McCarthyist nonsense, probably being peddled by ASIO, and has no place in an ABC news report.

AFP Deputy Commissioner, Ian McCartney is quoted in the ABC story: “Foreign interference is contrary to Australia’s national interest, it goes to the heart of our democracy. It is corrupting and deceptive, and goes beyond routine diplomatic influence practiced by governments.”

McCartney said that “the CFI Taskforce has taken preventative action to disrupt this individual at an early stage”. That is to say, according to McCartney, Mr Duong (“this individual”) is guilty of preparing to engage in foreign interference, and unless the AFP and ASIO had intervened, he would have engaged in foreign interference, imperilling and corrupting out democracy.

Many of the hundreds of thousands of people who, like me, signed the petition for there to be a Royal Commission into the Murdoch empire probably consider that that empire is contrary to Australia’s national interest, and is actually corrupting our democracy.

Murdoch is an American, but he has a major impact on our elections, and works insidiously, for example, to sabotage efforts to get Australian Governments to act effectively against climate change. His empire also works surreptitiously at undermining that most important Australian democratic institution, the ABC. We all know that nothing will be done about Murdoch – the laws of Australia are not enforced without fear or favour.

Fasten your seat belts. We are in for a rough ride with the Department of Home Affairs and its agencies driving the ship of state. But please ABC, maintain your standards. Don’t join the Daily Telegraph and Herald Sun in the way that you report our sad decline.

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Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

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