JOAN STAPLES. Foreign interference bills threaten civil society freedoms.15/06/2018
The government’s urgent pursuit of foreign interference bills prior to the July by-elections aims to wedge Labor for short term electoral gain. However as Labor agrees to support the bills, yet more of our political freedoms are being destroyed at great loss to our democracy.
The government is urgently pursuing the passage of two foreign interference bills. Attorney-General Christian Porter has set out why the government thinks passage of the bills is urgent, saying, ‘We are now staring down five by-elections which will be very critical to Australia’s democratic complexion’. Labor is on notice that the by-elections, and possibly an early federal election as soon as August, will be fought by the government on whether Labor is weak on national security. There is a danger Labor is capitulating to the pressure in order not to fight elections on this issue.
In relation to the first Bill, the Espionage and Foreign Interference Bill, Labor has agreed to a Report from the Intelligence and Security Committee, thus making its finding unanimous. The bill is expected to be introduced as early as Tuesday next week (19 June). Amendments have been introduced that go some way to protect journalists, but ‘national security’ is defined as including economic and political relations, and civil society has huge reservations about how that affects their work.
For example, the Diplomacy Training Program set up by Jose Ramos Horta trains human rights defenders throughout the Asia-Pacific and Australia on how individuals and NGOs can use protocols of the main human rights conventions to draw attention to restriction of basic democratic freedoms. As a former Director of the Program, I know first-hand how valuable this can be in raising the profile of national issues. Yet Australians using the protocols of human rights conventions to which Australia is a signatory could be subject to imprisonment for life for using one of these protocols.
Probably the most significant usage of these protocols has been in pursuit of the decriminalisation of homosexuality in Tasmania when Nicholas Toonan took a case to the UN Human Rights Committee. In 1994, the Committee found that sexual orientation was included in antidiscrimination provisions in the International Covenant on Civil and Political Rights and Australia was therefore in breach of the Covenant. It took another three years before the archaic Tasmanian laws were repealed, but taking the case to the Human Rights Committee demonstrated just how out of step Tasmanian laws were with international norms. Given that Toonan sought to work through the UN with sympathetic foreign governments to shame the Tasmanian government into changing its laws, under the Espionage and Foreign Interference Bill he could have been vulnerable to charges of foreign interference and faced up to 25 years or life imprisonment.
Charities such as WWF Australia and the Australian Conservation Foundation are often asked by international bodies to provide independent analysis and scientific assessment of the Australian government’s environmental performance. Yet briefing the International Union for the Conservation of Nature on failure to address threats to endangered species or giving evidence to the OECD on shortfalls in Australia’s environmental record could result in espionage charges and imprisonment.
Amnesty International fears that the bill will effectively muzzle human rights advocates who gather information on breaches of human rights conditions and then discuss this with representatives of foreign governments and with the UN. They fear espionage charges under the bill’s provisions.
In a further example, if an NGO blocked access to an MP’s office during a protest on the recent revelations about the behaviour of the SAS in Afghanistan, the charge could be sabotage in relation to national security.
The second bill, the Foreign Influence Transparency Scheme Bill, has been given unprecedented treatment. It also went to the Intelligence and Security Committee headed by Andrew Hastie. Although submissions had closed and the committee was expected to report, instead the Attorney-General last week announced further substantial amendments and reopened the inquiry for just over one week.
Despite these amendments, civil society will still have many circumstances in which they are required to register as an agent of a foreign principal or government. Charities engaged in aid and development work, conservation and human rights all interact at varying levels with foreign governments. All seek to debate and influence Australian government policy to better deliver on their charitable objectives – a fundamental basis of our democratic practice and inherent in the role of civil society.
Requiring charities to register as acting on behalf of a foreign government where there are only tenuous links between them is nonsensical, no matter what the provisos. For civil society, there is a regulatory burden, criminal penalties for not-compliance and the potential for serious damage to their international reputations, and all for no public policy value.
As I write, Labor has not announced its position on the bill, but it is showing signs of debate fatigue and the government’s pressure to bring on the bills has been relentless. Civil society has been given an impossible task to obtain quality legal and constitutional advice on its legal complexities, assess its importance in relation to all civil society organisations and put together an appropriate response in the short timeframe. They have not had time to develop responses to pressure Labor and the government, much less to inform their constituents. There is a real danger Labor may agree to the bill in its current form out of debate fatigue and a desire to not face elections on the issue of ‘national security’. The bill is expected to be brought on as soon as the second sitting week beginning on 26 June.
Reports suggest that Mark Dreyfus for Labor has argued conscientiously within the Intelligence and Security Committee for amendments, but the bills are complex and their reach is vast. Such legislation requires careful consideration, due debate and opportunities for many parties to consider how it might affect them. The government’s speed in having the content of the bills finalised is not only unseemly, unprecedented and provocative, but risks Australia’s commitment to international human rights law, the loss of important democratic freedoms and long prison terms for civil society members.
(These two bills are part of a package of three bills introduced by the government to address the issue of foreign influence. A third bill, Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill, on which I reported earlier, is not currently being given the urgency of these two bills following criticism by the IPA, conservative Murdoch Press columnists and Australia’s main civil society organisations.)
Dr Joan Staples was the ACF National Liaison Officer during the Hawke Government and is currently an honorary Principal Research Fellow in the School of Global, Urban and Social Studies at RMIT University. Her research area is the democratic role of civil society.