Australia’s Hong Kong travel advisory disregards its own national security legislation

Apr 2, 2024
Famous view of Hong Kong - Hong Kong skyscrapers skyline cityscape view from Victoria Peak on sunset. Hong Kong, China

On March 19, the Hong Kong legislature passed the Safeguarding National Security Ordinance and reached a historic milestone in the implementation of “one country, two systems”. Legislation to implement Article 23, which requires Hong Kong to legislate on its own to prohibit seven national security offences, has been outstanding since 1997, and the inadequacy of the city’s defence mechanism has been a drag on its development.

Now that the legislation has been successfully implemented, Hong Kong can march forward to create a more secure and prosperous future for its people. Running to over 300 pages and 181 clauses, most of the offences included in the legislation — such as treason, insurrection, incitement to mutiny and acts with seditious intention, and acts related to State secrets and espionage — are found in many common law jurisdictions.

Many of these offences have long been on Hong Kong’s statute books. They are found in the national security legislation of most, if not all, Commonwealth countries.

“Sabotage” and “external interference endangering national security” are two new offences included in the Safeguarding National Security Ordinance, but they are not new to many common law jurisdictions. Many countries have singled out the offence of sabotage to punish acts aimed at destroying or causing severe damage to critical infrastructural facilities. Such acts have far more serious consequences and should be differentiated from simpler acts of criminal damage.

The United Kingdom’s National Security Act 2023, enacted last July, defined sabotage as acts which are committed knowingly, and with foreign power involvement, to damage an asset which is “prejudicial to the safety or interests of the United Kingdom”. The UK legislation provides that a person who commits such an offence is liable on indictment to life imprisonment or a fine or both. Hong Kong’s new legislation has a similar provision.

Another new feature of Hong Kong’s legislation is the offence of “external interference endangering national security”. Nor is this offence new to common law jurisdictions. Wary of external threats by subtler means than invasion or attacks by armed forces, the United States in 1938 enacted the Foreign Agents Registration Act, which requires any person engaging in political activities on behalf of a foreign government, a foreign political party, or a “foreign principal” to register with the Department of Justice and file detailed disclosure reports.

In 2018, Australia enacted the Foreign Influence Transparency Scheme Act to introduce a registration program for people undertaking activity “for the purpose of political or governmental influence” on behalf of a “foreign principal”.

Under Singapore’s Foreign Interference (Countermeasures) Act of 2021, the competent authority may designate an entity or individual engaged in activities with political ends as “politically significant” and require such designated entities or people to report political donations, foreign affiliations or “disgorge” any property received from a “foreign principal”. The Singaporean government has recently started to designate influential individuals from Hong Kong as “politically significant persons”.

Hong Kong’s new legislation has no such registration or designation requirements. It is more limited than regimes introduced in other jurisdictions in that it only criminalises “external interference endangering national security” if all elements clearly defined in the law are present — such that the activity involves collusion or collaboration with an external force and employs improper means, such as threats of violence or causing financial loss, to achieve an “interference effect”.

The narrower ambit and tightly defined definitions in Hong Kong’s new legislation, which are modelled on similar provisions in other common law jurisdictions, have not prevented the Five Eyes countries — Australia, Canada, New Zealand, the UK and the US — from describing Hong Kong’s new law as “sweeping”, “vaguely defined” or suggesting that it will “further damage the rights and freedoms enjoyed in the city”. Such accusations completely ignore the much harsher and more vague definitions in their own laws; in some instances, broadening “interference” to include “influence”, and defining “influence” as “includes affect in any way”.

On the eve of the commencement of Hong Kong’s national security law, Australia issued a travel advisory urging its citizens to exercise “a high degree of caution” from March 23, as Hong Kong had enacted “strict laws that can be interpreted broadly”, and that “travellers could break the law without intending to [and] may be at increased risk of detention”.

This advisory completely ignores the strict requirement under Hong Kong’s law that mens rea — that is, criminal intent — must be evident before a prosecution can be laid.

No Australian has been subjected to detention or indictment under the National Security Law for Hong Kong since its commencement on June 30, 2020, and the travel advisory is utterly ridiculous. It is totally divorced from reality and likely to be the result of lobbying by Kevin Yam Kin-fung, a Hong Kong-born Australian lawyer who had urged the Australian authorities to “update and upgrade its travel warnings in respect of Hong Kong, so that Australians are aware of risks to their personal liberties”, in an article he wrote and published in the Australian Financial Review on March 18.

Yam’s fear-mongering piece is replete with inaccuracies. Contrary to his allegation, Hong Kong’s national security law clearly exempts residents in a foreign country — and required by the law of that country to serve in an armed service — from the offence of “illegal (military) drilling”. Australian business executives are unlikely to have access to “State secrets” as tightly defined in Hong Kong’s law, much more so than the way “protected information” is defined under British Law. Genuine State secrets are closely guarded and there has not been a single prosecution of theft of official secrets in Hong Kong in the past 100 years.

Shameless absconders in the US and other places have continued to pull out all the stops to smear Hong Kong, and its legitimate law whose intent is to defend the security of the country and the safety of the people, as well as its business prospects. The absconders have portrayed themselves as a pitiful spectacle of desperate fugitives from justice. Their antics drew little support and their efforts are doomed to fail.

 

Republished from China Daily Asia, March 27, 2024

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