Transparency in the dark on foreign interference.

Aug 19, 2021

The Foreign Influence Transparency Scheme Act does nothing to enlighten us on who is exerting undue influence on Australia’s political or election processes

The Foreign Influence Transparency Scheme Act (FITS Act) is intended to minimise the risk of foreigners exerting undisclosed influence upon the integrity of Australia’s political or election processes. As the name implies, transparency is at the core of the scheme.

To achieve this transparency certain persons are required to register any activities they undertake on behalf of a foreign principal. The information they provide is kept in two repositories: one a non-public register maintained by the Secretary of the Attorney General’s Department; and the other a publicly accessible website list.

We don’t know what information is held in the Department’s private repository but it seems unlikely that clandestine Australian agents of Chinese, Russian, or American spies or terrorists have informed the AG’s Secretary of their activities.

On the public website, transparency.ag.gov.au much of the information posted is laughable, well illustrating the ludicrous nature of the whole scheme.

Under the Act, former cabinet ministers have a lifetime obligation to register any activity undertaken ‘on behalf of’ a foreign principal. So far nine have done so.

But one, former Labor foreign minister and Attorney General Gareth Evans, rightly responded to a request to register with a curt letter saying he regarded the communication as a joke, albeit one in very poor taste.

What of the nine others who have registered? What have they told us about their activities on behalf of foreign principals?

Three former prime ministers, Abbott, Turnbull and Rudd, two one-time would-be prime ministers Nelson and Downer and four ordinary ex-cabinet ministers Bolkus, Alston, Hill and Crean have “come out”.

Turnbull revealed that he had given two speeches, both hardly secret at the time of deliver and both are publicly available on the web.

Like Evans, Rudd responded to a request to register with a blunt letter to the department. As a former prime minister Rudd has given interviews with government owned media outlets such as the BBC, Radio NZ and Chinese state-owned media. His letter, posted on the register website, says his lawyer’s advice is that he has nothing to register. “I am not an agent of foreign influence and any such suggestion is forcefully rejected. I engage internationally as an individual, a scholar, a commentator, a former leader and in my roles with non-government and UN-affiliated institutions – never as an agent on behalf of any foreign government.”

Rudd said the Department’s view that discussions of current issues should be registered if they took place with international public broadcasters, such as the BBC or Radio New Zealand defied the Attorney-General’s public statement that this law would be interpreted with “common sense”.

Other former Prime Ministers, Howard, Keating and Gillard have so far not registered but presumably, based on the Department’s non-common-sense administration of the act they will be in deep trouble if they give an interview to the BBC, never mind the Russian RT or the Chinese CCTV.  And they’ll be in even worse trouble if a journalist from one of these agencies happens to ring them and seek their opinion. Might that be a clandestine activity undertaken on behalf of a foreign principal?

On the register, Tony Abbott reveals that he is an unpaid adviser to the UK Board of Trade, advocating free and fair trade, especially trade with the UK and its allies; Alexander Downer says he is assisting the Government of Gibraltar in its free trade agreement negotiations with Australia; former Labor minister Nick Bolkus says he was on the board of directors of Jiujiang Mining Australia, a company with Chinese links; former Liberal Minister Richard Alston says he is Director China Telecom (Australia) Pty Ltd; and former Liberal minister Robert Hill and former Labor Minister Simon Crean are both consultants to the French government-owned Naval Group which won the Australian Government submarine contract.

Brendan Nelson, who in addition to his ministerial role was head of the Australian War Memorial, has revealed that he was an advisory board member of Thales Australia Ltd, whose parent company is listed on the Paris Stock Exchange and part owned by the French Government.

Following Evans’ sharp letter rejecting the department’s request to register  I emailed the department asking a number of questions, including what action they intended to take against him. The department replied that they were “considering Mr Evans’ response.” The spokesperson also said that the department’s correspondence with potential registrants did not indicate that the person was in breach of the Act, or had acted improperly in any way.

One entry on the register which has the potential to add to our knowledge of those exerting undue influence on our political processes is that from Chevron Australia Pty Ltd (CAPL), the operator of West Australian joint venture oil and gas projects.

In this era of climate change, it’s worth knowing that this US energy company — Australia’s eighth-largest emitter of greenhouse gases, dumping 10.2 million tons into the atmosphere in 2019-20 — is keeping in touch with our leaders.

CAPL operates Western Australia’s Gorgon and Wheatstone LNG projects and Australia’s largest onshore oilfield on Barrow Island. It lobbies a range of parliamentarians and their staff including the Prime Minister and his ministers and the Leader of the Opposition. It’s no surprise to learn what they’re talking about: taxation, climate, environment and energy policy; and petroleum titles.

The Gorgon Project is subject to several federal regulatory regimes and as operator, CAPL “interacts with federal ministers, ministerial staff, Commonwealth entities, Commonwealth companies, and individuals working on their behalf.”  The interactions include policy submissions, regulatory applications, compliance reporting, business meetings, telephone meetings, email exchanges and site visits.

But the register gives us no information of what is actually said and it cannot be claimed that it provides “transparency.” We can only speculate on how influential this major emitter of greenhouse gases is in its dealings with government.

At the heart of the FITS Act is the assumption that Australians and Australian democracy are so weak that they cannot withstand foreign manipulation. The Chinese or Russians can apparently pull us aside, or feed us some guff on social media, or via RT or CCTV and we will soon be sprouting their line. As result we need Acts that require us to tell the government when and where we communicate with foreigners or those associated with foreign governments. Whether such Acts are an infringement on democracy themselves is open to debate.

In a recent case brought by the lobby group LibertyWorks the majority of the High Court decided that the FITS Act did not infringe the freedom of political communication implied by the Constitution.  A majority of the Court found that the Act’s requirement to register communications undertaken on behalf of a foreign principal, burdened the implied freedom but held that the burden was justified.

But there were two notable dissenting opinions. Justice Stephen Gageler said the compulsion to be registered as a precondition to engaging in political communication with the public, or a section of the public on behalf of a foreign principal was in his opinion incompatible with the constitutional freedom of political communication. He drew attention to the two registers, the public one and the one held by the AG’s secretary.

Only some of the information provided was on the public register but, at the discretion of the Secretary, all of the information provided could be shared with any enforcement body for the purpose of any “enforcement related activity.”  Those it could be shared with included the AFP, State or Territory police, ASIO, the Australian Crime Commission, the Immigration Department, APRA, ASIC and various state crime commissions.

Put bluntly, Gageler said the scheme of registration established by the FITS Act was not fit

for purpose. A scheme of registration to improve transparency of political communication that minimally impaired freedom of political communication “would have no place for a secret register at all.”  The information to be required from registrants and the information to be made available to the public would be one and the same.

By subjecting a registrant to the requirement to provide information to be included on a secret register to be available to be shared with Commonwealth, State and Territory agencies and authorities, the scheme of registration established by the FITS Act burdened political communication by a registrant with the public or a section of the public to a substantially greater extent than was necessary to achieve the sole identified legislative object of improving the transparency of that communication. For that reason, the compulsion to be registered under the scheme in order to engage in political communication with the public or a section of the public on behalf of a foreign principal was not compatible with the constitutional freedom of political communication.

Justice Michelle Gordon said the FITS Act was one of three measures enacted by the Federal Parliament as part of a “Counter Foreign Interference Strategy” which was “built upon the four pillars of sunlight, enforcement, deterrence and capability”.

The purpose of the Act  – to minimise the risk of foreign principals exerting undisclosed influence upon the integrity of Australia’s political or election processes – was legitimate. No other or wider purpose was said to be pursued

She said the overreach of the impugned provisions was best illustrated by the fact that the FITS Act created two repositories for the information, one was a “register” kept by the Secretary, which was not made public and the other the publicly accessible website.

“What is not made public cannot “improve the transparency” of activities on behalf of a foreign principal. The gap between the two repositories was not justified and could not be bridged,” she said.

The non-public information which might be provided by the Secretary to law enforcement bodies was a significant deterrent to communications activities.

She maintained that the public website disclosed the fact of the influence, how the influence was effected and by whom and through whom.  But a non-public register did nothing to minimise the risk of undisclosed influence.

“It does the opposite. A non-public register is in darkness, not sunlight.”

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