Is the Foreign Interference Law just about China?

Having on the statute books a very serious crime, committed by dozens of people every day but which is only enforced selectively, is a grave breach of the Rule of Law. It gives the government the power to criminalise the actions of a few and not those of the majority.

When he became Prime Minister, Malcolm Turnbull seemed to promise so much, especially in contrast to the man he replaced.  But the promise proved to be chimeric.  One of the silliest observations heard about Australian public life is Turnbull’s oft-rebroadcast explanation of his removal as Prime Minister – that his colleagues decided to replace him because they expected that Turnbull would win the 2019 federal election.

Not nearly as well known but a fine example of muddled thinking is Turnbull’s second reading speech which inflicted the foreign interference law – and the Department of Home Affairs – on Australia.

Much of the speech is Churchillian in its hyperbole – a landmark of New Cold War rhetoric:  “ASIO … very grave warnings … the magnitude of the threat … galvanised us to take action … clandestine … Russia has been wreaking havoc across the democratic world … authoritarian states have been literally manufacturing public opinion … the democratisation … of disinformation … a threat to the very foundation of our democratic political system … unprecedented … we must act … [t]here is no national security threat outside war time that demands an integrated all-of-government capability like this one … [w]e will not allow foreign states to use our freedoms to erode freedom; our open democracy to subvert democracy; our laws to undermine the rule of law.”

If ever an issue called for clear thinking, foreign interference is it.  The Departments of Home Affairs and of the Attorney-General on their websites try to make some sense of the muddled law that has resulted by saying that it prohibits foreign interference but that it does not prohibit foreign influence.  In his speech, Turnbull’s language, like an FJ with four bald tyres on black ice, slides all over the place.  Sometimes he refers to “foreign influence” as being prohibited; sometimes to foreign interference.  Sometimes he talks about foreign governments (and their agents); sometimes about “foreign principals”.  The substance of the speech truly is a dog’s breakfast.

Turnbull claimed “We are dealing surgically with the risks”, but the meat cleaver was the surgical instrument which the legislative draftsman used. The foreign interference law attracts very long sentences of imprisonment – up to 20 years.  Precision drafting should not have been optional.

One of three “principles” which Turnbull says shaped the law is that “interference is unacceptable from any country whether you might think of it as friend, foe or ally. Nations and their representatives will be judged by their behaviour in Australia, not who they are.”  However, Turnbull mentioned only China, North Korea, Iran and Russia by name, and referred generally to “authoritarian states”.

To identify what Turnbull meant was to be the substance of the foreign interference law it is necessary to put aside the speech’s rhetoric.  The nub was in Turnbull’s third principle:  “we will not tolerate foreign influence activities that are in any way covert, coercive or corrupt. That is the line that separates legitimate influence from unacceptable interference.”  So activities that are in any way covert, coercive or corrupt go through an alchemical transformation from being acceptable foreign influence to being verboten foreign interference.

But what in practice does “covert, coercive or corrupt” mean in this context?  The law itself says simply (and unhelpfully) that conduct is foreign interference if any part of it is covert or involves deception; or involves the agent failing to disclose to the target that they are acting on behalf of, or in collaboration with, a foreign principal.  Potentially that is enormously broad in its coverage.

It seems that, under the law:

  • a company could be a foreign person, even if it has no links to a foreign government
  • an individual could be a foreign person, even if he/she has no links to a foreign government
  • to offend, the covert/deceptive aspect of the agent’s conduct does not need to be more than peripheral.

The law fails to make clear:

  • whether the foreign principal would also be guilty of an offence committed by its agent – on the basis that the principal has aided, abetted, counselled or procured the commission of the offence – presumably they would be
  • the extent to which the principal and the alleged agent need to be cooperating for the relationship to be classified as “collaboration”
  • who is the “target” in the context of the requirement that the agent has failed to disclose to the target that they are acting in collaboration with a foreign principal.

On that last issue, the sin is to engage in conduct with the intention to influence a political or governmental process, or to influence the exercise of an Australian democratic or political right or duty.  Is the target anybody and everybody who might be involved in the political or governmental process in question, or who might exercise the Australian democratic or political right or duty?  One of the most obvious examples is affecting the outcome of an election.  Is that element of the crime made out if the accused person has failed to inform every possible voter that he/she is acting in collaboration with a foreign principal?  Presumably.

What foreign entities and people wield most influence over Australian political and governmental processes? Rupert Murdoch and his family and their corporate interests come first to mind.  They appear to have enormous influence over how Australia deals with climate change, public broadcasting, media laws, unions, and politics generally and much more.  The Murdochs have that influence and use it.  They have more influence over Australian political life than anybody apart perhaps from a few elected officials.

The Murdochs are foreigners, but there is no sign that they are the subject of raids by ASIO and the AFP, as have occurred in the last few months in Sydney around Shaoquett Moselmane and John Zhang.  Was Turnbull fibbing when he said that interference is unacceptable from any country – friend, foe or ally?  Or is it really just about China?  On the basis of all that has happened since Turnbull’s speech nearly three years ago, it’s all about China.

Having on the statute books a very serious crime 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 majority.

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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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