Australian laws criminal penalties of up to 20 years in gaol on anybody who “engages in foreign interference.” But the way the law is written makes it very difficult to determine precisely what activities the prohibition extends to.
As always, the Hon Gareth Evans’ recent letter about the foreign interference registration requirements was a good read. (“Gareth Evans versus the Surveillance State: application of the Foreign Influence Transparency Scheme” by John Menadue, Pearls & Irritations, 23 July 2021). The federal Attorney-General’s Department appears, without prompting, to have written to Mr Evans suggesting that he had registration obligations under the Foreign Influence Transparency Scheme Act 2018 (Cth) “relating to speaking roles you have undertaken at certain overseas events, and roles you have undertaken for international bodies.”
Gareth Evans versus the Surveillance State: application of the Foreign Influence Transparency Scheme
Mr Evans responded that he regarded the communication as a joke, albeit one in very poor taste. He acknowledged that he had indeed been associated with scores of international organizations in speaking, writing and occasional small advisory roles. He listed some of those bodies and referred to a listing of others on his website. He added that “every international organization with which I have been even marginally associated has been devoted, as I have been throughout my many decades of public life, to making our region or the wider world safer and saner, through improving the quality of peace and security decision making and/or advancing human rights and humanitarian goals.”
But there are further important aspects to the issues raised in the correspondence.
The laws imposing registration requirements for transparency about foreign interference are in additional to laws which make it seriously criminal to engage in “foreign interference”. Being registered under the Transparency Act does not protect a person from being prosecuted for the crime of foreign interference.
The atrocious foreign interference law – It doesn’t add up
The criminal laws imposing the offence of foreign interference are now contained in the Commonwealth’s Criminal Code, Division 92. Those laws impose criminal penalties of up to 20 in gaol on anybody who “engages in foreign interference” – whether or not the person is registered.
In that article I set out some of the major drafting inadequacies in that legislation. Those drafting problems make it very difficult to determine precisely what activities the prohibition extends to. Potentially the prohibition and its 20 year gaol term are very wide. As a Rule of Law issue, this is an extremely unsatisfactory state of affairs.
The correspondence with Mr Evans included the following from the Attorney-General’s Department: “Under the [Transparency] Act, former Cabinet Ministers have a lifetime obligation to register any activity undertaken ‘on behalf of’ a foreign principal. … The Act imposes broader registration requirements on former Cabinet Ministers due to the position of trust they hold on behalf of the Australian public, and the significant influence former Cabinet Ministers are able to bring to bear.”
The second sentence in the above quotation from the Attorney-General’s Department seems to be a gloss added by the writer, rather than being the words of the legislative draftsperson or the Parliament.
As with the criminal prohibition on engaging in foreign interference, the breadth of the scope of what is meant by undertaking an activity ‘on behalf of’ a foreign principal in the Transparency Act is quite unclear. The Attorney-General’s Department’s letter to Mr Evans refers to “speaking roles you have undertaken at certain overseas events”.
Presumably the Department considers that for Mr Evans to speak at an international conference” in favour of wider world safer and saner, through improving the quality of peace and security decision making and/or advancing human rights and humanitarian goals” is likely to involve illegal activity ‘on behalf of’ a foreign principal.
That is an immensely worrying milestone on Australia’s descent to a dystopian hell in a hand basket.
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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