Jun 27, 2018

Has new Australian foreign agent law been safely neutered?

Tony kevin

Australian Parliament building, Canberra

The Australian parliament is about to pass a complex package of national security laws aimed at strengthening Australia’s protections against espionage, sabotage, (covert) foreign interference and (overt) harmful foreign influence on Australian political life. The real target is China, but Russia makes a convenient public scapegoat drawing on current US/UK precedents. The draft laws which now appear to have bipartisan support are significantly improved from the first government drafts released for public comment in December 2017. Nevertheless they take Australia in an illiberal direction.

The legislation is a defensive McCarthyist response by Australia’s security and mainstream media elites to the erosion of United States power and will to protect Australia. These groups cannot bear the thought that as Chinese and Russian global power grows, Australia must now radically review its great power and Asia-Pacific region relationships. Instead, Australia’s elites seek to intimidate Australia’s richly diverse plural society into docile obedience to the national security dogma of the day, whatever the cost to Australians’ traditional rights to free speech and free association with anybody they wish, wherever they wish.
The draft legislation presented to Parliament by the Turnbull government was fearfully Orwellian . It attracted a storm of critical complaint to the respected bipartisan Parliamentary Joint Committee on Intelligence and Security (PJCIS), tasked to review the bill – as to its opacity, sweeping coverage, and huge discretionary powers to Ministers. Over the next six months came a flood of critical submissions and oral testimonies expressing grave concerns about how the draft laws would impact on diverse individuals and groups in society: universities and independent researchers, finance, mainstream and online media, legal profession, charities and aid groups, particular diaspora communities like the 1.2 million strong Chinese Australian communities , political and social activist organisations like Get Up, religious organisations, and human rights organisations.
This quiet rebellion, under-reported by Australian mainstream media, was a significant exercise in citizen democracy. It led finally to significant drafting improvements to legislation which initially seemed obsessively determined to ‘capture everything’ in its nets of activities that were either illegal or, even if legal, had to be reported on pain of severe fines or jail terms. Crucial definitions like ‘foreign principal’ and the range of lawful activities that would require registration as agents of foreign influence have been greatly tightened up.
These controversial laws are now set fair to be passed soon, after indications of Coalition and Labor parties’ agreement to support their latest improved versions.
To illustrate issues at stake, here is a revealing exchange in the final PJCIS public session on 18 June last week between Senator Eric Abetz, a senior member of the Liberal Government’s dominant hard right faction, and two witnesses from respected charities, Oxfam and Pew Charitable Trusts, which regularly deal with foreign governments and agencies close to foreign governments: (18 June 2018, PJCIS draft Hansard, page 29)
The witnesses pleaded for better definition of what conduct would require organisations like theirs to register as agents of foreign influence, or face severe penalties ? Their comments apply well beyond their own specific areas. They were asking what was meant by the phrase used in the legislation of ‘arrangements’ entered into by Australian organisations with foreign principals? Mr O’Leary spoke of ‘a sense of uncertainty’ around this phrase. Abetz replied that the requirement to register would only apply ‘if an arrangement had been entered into’. There followed this extraordinary exchange:

MS BALL: Our concern is that, as it is drafted at the moment, there is not sufficient clarity that would allow us to rely on the fact that only arrangements where we were doing the bidding of a foreign principal were in fact caught. Given the severity of the penalties and the importance of our reputation in terms of our ability to pursue our mission, we wouldn’t be able to take that risk. So what we’re suggesting is that the bill be clarified so that it is certain that we are talking about circumstances where in Australia we’re doing the bidding of a foreign principal, as opposed to operating in partnership with them, learning from them, working together with them and then drawing on that when we come back and do advocacy in Australia.
MR O’LEARY: Or even just informing them of what we would be doing in Australia in the course of a normal set of discussions.
ABETZ: The drafting of legislation does not take into account every conceivable exemption. It just talks about the evil that is sought to be overcome. You don’t have every exemption under the sun as to what is dangerous driving, for example. You can be prosecuted for dangerous driving, but we won’t consider this, this and this to be dangerous driving. You could get a list as long as you like.

Abetz concluded:

I think you guys are completely in the clear unless you were starting to do the bidding of a foreign agent or a foreign government

In other words: ‘Trust us, we are the government’. In a nutshell, this exchange symbolises what many groups in Australian society fear about this package of McCarthyist laws. Especially when it was admitted that resource constraints meant that the state would only pursue persons suspected of being agents of influence of the most important target countries, like China and Russia. Agents of US, UK or Israeli influence, could rest easy.
It still looks a bit like Henry VII’s Star Chamber – guilty till proved innocent.
Some remain deeply worried: former Greens Senator Scott Ludlum trenchantly criticised the bills’ erosion of civil liberties and freedom to dissent.
Get Up received legal advice that the Espionage and Foreign Interference Bill may breach the constitution’s implied freedom of political communication, and criminalise peaceful protest.
Concerns were expressed in PJCIS testimony that political protest actions causing temporary symbolic damage e.g. to detention centre premises, shale oil fracking sites, coal export railway lines or port facilities, may be heavily penalised by vengeful Ministers under the sabotage to national infrastructure provisions of these bills.
There are worries about new provisions that the Attorney-General may register as agents of foreign influence people who decline to so register but whom he thinks should have done so.
The Chinese Australian communities, whose demographic diversity makes it worryingly vulnerable to intimidation by nativist propaganda under these bills, will try to make the best of a bad situation.
There will undoubtedly be important test cases to come, which will test the scope of the amended laws. In this litigation, the searching interrogation over the past six months of the laws by Opposition members of the PJCIS will certainly be a resource for defendants’ lawyers.
Estimates of number of people likely to register as agents of foreign influence has steadily shrunk from thousands to hundreds down now to low tens.
The draft laws are not yet silk purses by a long shot. But they are better than they were in January.
I have declared that I will not register as an agent of foreign influence, because I am confident that in maintaining my past practice of writing and speaking freely on foreign policy issues of interest to me as an Australian citizen, and maintaining free associations with foreign persons of my choice including Russian and Chinese citizens, and travelling freely to countries of my choice including Russia or China, I will not be making myself liable to such registration.
This is because I am confident that I have not acted, and will not act, in ways that might raise questions about whether I am acting by arrangement with, in association with, on behalf of, or at the behest of, any foreign principal , as these terms are defined in the legislation and accompanying explanatory memoranda.
This may seem obvious now, but it was by no means obvious at the beginning of the public examination and review process in January. Then, this draft legislation truly was a sow’s ear. Now, we do not quite know what it will turn out to be.