The Foreign Interference law is more a political stunt. But what about Rupert Murdoch’s foreign interference?

Rupert Murdoch and NewsCorp are currently campaigning to have the ABC neutered.  Murdoch is a foreigner, as NewsCorp would seem to be.  Australians and others are allegedly doing Murdoch’s bidding, with the intention to “influence a political or governmental process”; or “to influence the exercise … of an Australian democratic or political right or duty”.

Credit – Unsplash

The campaign is not fully transparent.  Accordingly, it satisfies the last requirement to make out the crime of Foreign Interference: that is satisfied if “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”. The Foreign Interference law is more a political stunt than a piece of sober legislation. Its language is designed to resonate with shock-jocks rather than with judges.  The judges will be surprised to see so many undefined terms and novel expressions in a law which threatens imprisonment for 20 years.

Unusually, the website of Peter Dutton’s Home Affairs Department is more reasonable and sensible on the subject than what is in the statute book.  Unfortunately, at least in this case, the law trumps the web.  The Home Affairs website says that foreign influence is fine, but Foreign Interference is verboten:

“All governments, including Australia’s, try to influence discussions on issues of importance.  When conducted in an open and transparent manner it is foreign influence.  These actions contribute positively to public debate and are a welcome part of international engagement.”

That sounds reasonable.  But when you turn to the Act, in fact it says something very different.  The Act uses the language of “foreign influence” not interference, and prohibits it.  The Act prohibits steps taken on behalf of a “foreign principal” to “influence a political or governmental process”; or “to influence the exercise … of an Australian democratic or political right or duty”.  Those expressions are not defined, and are novel in Australian law.  What will the courts interpret them to mean?

The Act also uses the expression foreign principals.  It is not clearly defined but essentially seems to mean any non-Australian person or entity. There is real political cunning behind the drafting:  Although the Act doesn’t say so, it follows from use of “principal” that the criminal is an agent – an Agent of Foreign Interference – very sinister sounding, just as “foreigner” is.

The Act also uses the politically loaded expression “collaboration”.  No other Australian Acts of Parliament use that word in that way.  “Collaboration” is redolent of quislings, fifth columnists, traitors and other scum of the earth.

Clearly this new offence and the scaremongering around it are directed at China.  It is part of the Government’s ill-conceived strategy to make China the great bogeyman – just as communism and subversion were for many decades, until Bob Hawke laughed that enduring scare away just before he was elected Prime Minister.  His predecessor, Malcolm Fraser warned that, if a Labor government were elected, “people would be better off keeping their money under the bed.”  Hawke responded: “But you can’t put your money under the bed … that’s where the commies are.”  The communist threat was exorcised.

The truth is that the Foreign Interference law is drafted so broadly that hundreds of thousands of ordinary Australians have broken it since it was passed two years ago, and continue to do so daily by doing such things as signing petitions on Change.org, which is a US entity.

The alleged Foreign Interference crime which has hit the international headlines involves a staffer to a previously little known, backbench, opposition, upper house State MP of Lebanese birth with an unpronounceable name, using his influence to align NSW with the wishes of Xi Jinping.  A bit like an ant demolishing the Warragamba Dam.  Please let Senator Joe McCarthy know that his seat is still warm.

Meanwhile, the Minister for Defence assures us that leasing the Port of Darwin to China for 99 years is nothing to worry about.

GetUp reports that Rupert Murdoch and NewsCorp are currently campaigning to have the ABC neutered.  Murdoch is a foreigner, as NewsCorp would seem to be.  Australians and others are allegedly doing Murdoch’s bidding, with the intention to “influence a political or governmental process”; or “to influence the exercise … of an Australian democratic or political right or duty”.  The campaign is not fully transparent.  Accordingly, it satisfies the last requirement to make out the crime of Foreign Interference: that is satisfied if “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”.

I’m sure that ASIO and the AFP will be right onto it.

I wonder how, in the meantime, the AFP is getting on with its investigations against Dyson Heydon.

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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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