As the government pushes ahead with its foreign influence bill, concerns have been raised about plans for ‘transparency notices’, permitting public naming of non-compliant individuals or corporations without explanation. By Karen Middleton.
Foreign influence bill pushed ahead
For the second time in six months, charities, churches, universities and widely respected lawyers have told the federal government its redrafted foreign influence laws are too broad and risk impeding the legitimate work and damaging the reputations of innocent organisations and people.
Legal questions have also been raised about their impact on the work of parliamentarians – who may have to investigate community groups’ ties and disclose details of contact with anyone foreign-linked or risk official sanction – and about where parliamentary privilege starts and ends.
The powerful parliamentary joint standing committee on intelligence and security held urgent hearings on Monday to scrutinise the changes after Attorney-General Christian Porter sent it 98 amendments and the public was given less than four days to respond.
The government asked the multi-party committee, which has a legislated watchdog role on security laws, to respond promptly so parliament could vote before rising for the winter break next Thursday.
Porter’s reasoning for the bill is that when decision-makers are lobbied, they and the Australian people need to know whose interests are being advanced.
He has said he wants to protect the five federal byelections, scheduled for July 28, from any threat of foreign influence. Departmental officials appearing before the committee were unable to say what, if any, threat existed.
A spokesman for Porter told The Saturday Paper he was not referring to a specific threat, just that the so-called Super Saturday of byelections was the next electoral event and it would be better to have the protections in place, if possible.
After strong and extensive criticism of the original draft bill, the amendments restrict some of the proposed new rules and extend others. They narrow the definition of a “foreign principal”, what it means to act on their “behalf”, and what constitutes “activity for the purpose of political or government influence”.
The amendments also introduce new exemptions, including for business groups.
The scheme would require Australians to register any activities designed to exert influence – ultimately on the public – conducted on behalf of or under “an arrangement” with a foreign government or government-related entity.
Breaches would attract penalties of between six months’ and seven years’ jail.
The proposed laws now incorporate a new “transparency notice” scheme not included when they were unveiled in December. This would enable the government to effectively name and blacklist anyone not registered who it believes should be.
The transparency notices, to be issued by the secretary of the Attorney-General’s Department, would not afford their subjects procedural fairness. In other words, anyone named in a transparency notice would not know the basis for it or have the opportunity to explain or contest it until afterwards, when they could seek review before the Administrative Appeals Tribunal.
Appearing before the committee on Monday night, departmental officials rejected suggestions the transparency notices would necessarily cause reputational damage.
But under Labor questioning, assistant secretary Tara Inverarity conceded a possible negative perception.
“We accept that a person could perceive that it is not ideal for them to be named in such a notice,” Inverarity said.
She and first assistant secretary Anna Harmer said the department had not assessed possible commercial impacts.
“We accept that a company may perceive it to be reputationally damaging,” Harmer said. “… We have publicly stated that foreign influence is not criminal, nor should any adverse inferences be drawn from it – and, indeed, it is expected. It should simply be transparent.”
The new legislation contains specific measures to protect the government from defamation actions.
“We still perceive that merits review is the best opportunity to allow a person to satisfy the condition that they are affected by the decision and then have the ability to have it overturned if that is their desired outcome,” Inverarity said.
The scheme provides exemptions for those working for foreign-owned businesses, provided they are not closely linked to a foreign government or foreign political organisation – something major media organisations had demanded.
Porter’s spokesman told The Saturday Paper that journalists’ activities, including meeting with foreign government representatives or accepting sponsored hospitality or travel, would not be subject to registration requirements because payment is not direct and journalists are not acting on their hosts’ instructions.
Religious activities are exempt but there is still confusion over what that means. In an explanatory letter to the committee, Porter said the exemption “was intended to exclude the Catholic Church” from the scheme.
But the Australian Catholic Bishops Conference said the amendments still did not offer “certainty or clarity” and risked discouraging “legitimate public policy comment by religious groups”.
The bishops said Australian Catholic agencies were not linked to a foreign government because they “do not relate to Vatican City State … but to the Holy See, which is part of the universal Catholic Church”.
The Saturday Paper asked the attorney-general’s office whether the following hypothetical scenarios would qualify as religious activities:
Catholic organisations lobbying on social issues such as same-sex marriage, euthanasia and abortion.
The Australian National Imams Council, which includes some imams delegated from other countries, lobbying on similar social issues or on the impact on the Muslim community of security measures or other policies.
Jewish organisations lobbying to have Australia’s embassy in Israel relocated to Jerusalem.
Porter’s spokesman said even if those religious groups were found to be acting for foreign entities, provided they were “acting in good faith” all of those activities would be exempt from registration because they were “consistent with the religion’s doctrines, tenets beliefs or teachings”.
Charities and the university sector have queried why business peak bodies are exempt from registering their activities but those in the charitable, welfare and tertiary sectors are not.
The status of the union movement’s peak body, the Australian Council of Trade Unions, is unclear.
The charities argue the administrative burden of lodging detailed activity reports would be equally onerous for all.
The head of the charities’ peak body, the Community Council for Australia, David Crosbie, wants the government to include a clear statement that “charities engaged in their charitable purpose in Australia should not have to register”. Crosbie said the definition of a “foreign principal” was still too broad and that being registered as a foreign agent could impede legitimate charities’ work.
The amendments also affect the post-retirement work of former ministers and public servants, lengthening dramatically the period during which they would have to register any work for a foreign government-linked entity.
Originally, former cabinet ministers were to remain on the register for three years and outer-ministry members and others for 18 months. That has increased to 10 and seven years respectively.
The second group now also includes former diplomats.
Barrister and former independent security legislation monitor Bret Walker, SC, told the committee the scheme could still be legally problematic in relation to current parliamentarians’ work.
Walker said parliament should establish its own separate foreign influence register for members and senators as it had done on citizenship and financial interests.
This was because it was still not clear how the scheme would deal with MPs’ activities that aren’t covered directly by parliamentary privilege.
Parliament’s rules say obstructing an MP from performing his or her duty is an offence attracting a contempt charge.
Walker said without a separate register under parliament’s auspices the scheme could create “the very unseemly prospect” of public servants “purporting to hold to account members and senators for their arrangements with people with respect to their parliamentary office”.
In her submission, Sydney University constitutional law professor Anne Twomey said that while the amendments would “significantly bolster the constitutional validity of the proposed law” they did not clarify what constituted an “arrangement” with a foreign principal.
Twomey said it was also still unclear whether the new definition of a “foreign principal” included foreign universities.
Universities Australia feared some collaborative research could still be unfairly captured – and hindered – by the scheme.
The Law Council was concerned that some definitions were inconsistent with those in other Commonwealth legislation and raised queries about both immunity and legal professional privilege.
It also criticised the lack of procedural fairness surrounding transparency notices.
In a 28-page response, the departmental officials addressed the groups’ collective concerns but did not believe further changes were needed.
But during the hearing, Liberal MP Julian Leeser pointed out that, as drafted, the amendments suggested anyone employed to further a foreign government-related entity’s business interests could be exempted from registration even if acting in secret – undermining the transparency objective.
The officials acknowledged that that might need amending.
The parliamentary committee was expected to publish its report on the amendments by this weekend. The government aims to make any more necessary changes in time to present the foreign influence bill – and a companion bill on espionage and foreign interference – to parliament early next week.
On Wednesday this week, the committee’s deputy chair, Labor MP Anthony Byrne, told parliament it was crucial the committee was able to thoroughly scrutinise such important legislation and reach a bipartisan conclusion.
He also launched a broadside at foreign governments questioning Australia’s right to legislate. While he did not name any country, his words were taken as being aimed at China.
Earlier in the week, China’s ambassador to Australia, Cheng Jingye, criticised Australia’s handling of the issues, using a speech at an Australia China Business Council seminar to accuse it of a “Cold War” mentality. He said the two countries needed more interaction “with less bias and bigotry”.
Byrne said he “would urge those who are advocating against laws that protect our democracy to be very, very careful”.
“You are not acting in this country’s interests.”
Few would disagree Australia’s interests must be protected. But there remains furious argument over how best to do it.
This article was first published in the print edition of The Saturday Paper on Jun 23, 2018 as "Fear of influence".
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