Doubts over Huang ban and foreign influence
On February 5 it was announced that Huang Xiangmo, former chairman of the property and investment company Yuhu Group, had failed the “character test” of section 501 of the Migration Act. At Minister for Home Affairs Peter Dutton’s discretion, Huang’s application for Australian citizenship had been rejected and his permanent residency revoked. He now finds himself stranded in China, unable to reunite with his family in Australia.
Visa cancellations by the minister – an increasingly common occurrence – are in almost all cases the result of criminal convictions. “[W]e have cancelled the visas of the equivalent of the jail population of South Australia, Tasmania and Northern Territory combined,” Prime Minister Scott Morrison enthused in a tub-thumping speech at the National Press Club on Monday. “We have cancelled the visas of 4150 dangerous criminals.” Morrison and Dutton have always been quick to point out the presence of rapists and sex offenders among them, albeit a very small minority.
The Huang cancellation, though, highlights the much wider discretionary range of this ministerial authority, enlisting it as a new tool in Australia’s response to foreign political interference.
That Huang would be the first big fish to be caught in the foreign interference net was predictable. For some time, he has been the bête noire of journalists on the hunt for nefarious Chinese influence on Australia’s political system. A large donor to both major parties, Huang made headlines in 2017 for his close relationship with then Labor senator Sam Dastyari. Dastyari was standing alongside Huang when he broke with Labor policy on the South China Sea, arguing that Australia should stay out of a dispute that was simply a “matter for China”.
Manoeuvring Dastyari into making that statement was probably the highlight of Huang’s tenure as chairman of the Australian Council for the Promotion of the Peaceful Reunification of China (ACPPRC), which lasted from 2014 to 2017. This organisation’s goal is to shift Australia away from its deliberately ambiguous “acknowledgment” of the People’s Republic of China’s position that Taiwan is a province, to endorsing that position.
Besides the political sphere, Huang also directed his largesse to Australian universities. Some of this philanthropy went to founding the Australia–China Relations Institute at the University of Technology Sydney and to a centre for the study of Chinese culture at Western Sydney University.
Much of the media response to Huang’s exclusion from Australia has been to rehearse the details of his rags-to-riches story in south China, his networking activities in Australia and his complaint to the Global Times that Australia was behaving like a “giant baby” after his permanent residency was revoked. But the process leading to Peter Dutton’s decision deserves more scrutiny than it has so far received.
As the Home Affairs minister’s “character test” is shrouded in secrecy, we may never know the full details of the case made against Huang. According to The Australian Financial Review, the grounds that the Australian Security Intelligence Organisation (ASIO) gave Dutton for the rejection were that Huang was “amenable to conducting acts of foreign interference” and had in the past shown a “willingness” to engage in such actions.
This vague wording raised eyebrows. Someone’s propensity to commit an offence is a questionable criterion to begin with, but in the case of Huang, the laws ASIO likely has in mind were only introduced in 2018, following the series of incidents that brought Huang to the national spotlight. Back when Labor and Liberal politicians were knocking on his door for donations, nothing Huang did was against the law.
To point this out is not to defend Huang’s actions, but to highlight the expanding use of discretionary authority to exclude individuals from the body politic. For decades, only non-citizens convicted of serious offences were vulnerable to this form of modern-day banishment. In 1998, the addition of section 501 to the Migration Act substantially increased the minister’s ability to revoke a visa, introducing a character test that went beyond consideration of criminal activity to take into account someone’s “general conduct”. Huang’s case seems to fall within the pre-emptive scope of section 501, aimed at those deemed to pose a future risk of criminal activity. In 2014 the threshold for the application of this provision was reduced from “significant risk” to simply “risk”.
If this interpretation is correct, then Huang was deemed at risk of breaking laws on the basis of his conduct at a time when those laws did not exist. Information in the public domain shows Huang engaging in activities that may now be registrable within the new Foreign Influence Transparency Scheme. It is uncertain whether any of his activities would fall foul of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, whose provisions have yet to be tested. But instead of allowing Huang the opportunity to comply with new legislation, he has in effect been labelled a likely recidivist without ever having been convicted.
Beijing has given little public indication of interest in the case and its diplomats in Australia have yet to comment. Huang may be an inconvenience from their point of view. But Australia’s Chinese-language media is giving his case prominent airtime, and many Chinese Australians will be watching and weighing the implications for themselves.
The history of exclusionary anti-Chinese racism in Australia inevitably informs the context of this decision, as do features of the contemporary discourse surrounding “Chinese influence”. The blanket denial of permanent residency to Chinese students identified as actively pro-Beijing was one of the recommendations of prominent commentator and academic Clive Hamilton in his book Silent Invasion, published last year.
According to Huang’s recent interviews, ASIO’s case against him centred on his involvement with the ACPPRC, which falls within the purview of the United Front Work Department, a Communist Party body tasked with liaising with non-party organisations, including among overseas Chinese. If involvement in one of these non-party organisations is sufficient to prompt visa-threatening questions of character, then hundreds, maybe thousands of Chinese Australians must now be wondering where Home Affairs intends to draw the line.
What does this decision tell us about the direction of Australia’s campaign against foreign interference? For some, Huang’s ejection from Australia represents a sign of Australia’s determination to crack down on foreign interference. But the heavy-handed treatment of an individual should not be confused with the serious treatment of a policy issue.
The Huang case is symptomatic of a prevailing view of foreign influence as a conspiracy of individuals, as opposed to a systemic feature of the global political economy. Such an approach naturally lends itself to sensationalism: witness how the quest to connect the dots from Trump to Putin in the United States has engendered a level of Russophobia not seen there since the Cold War.
And besides, any strategy that emphasises weeding out “foreign influencers” is unlikely to be ever as comprehensive, or effective, as measures to insulate the political system from being influenced.
We had this debate last year when the new foreign interference legislation criminalised various activities undertaken at the behest of a foreign principal but failed to introduce comprehensive restrictions on political donations. Critics rightly pointed out that these laws would do nothing to prevent the likes of Huang from continuing to buy access to Australian politicians. The solution seemed obvious: set limits on all donations, foreign and domestic alike. But neither major party took this proposal seriously.
Now, having failed to put legislative checks on the ability of local money to corrupt our politicians, the authorities have instead been obliged to bypass the new laws and rely on an extrajudicial determination, thereby calling into question some of the underlying principles of the anti-foreign interference campaign.
“Sunlight” is the first pillar of the government’s counter foreign interference strategy. But very little sunlight will ever shine on a decision to terminate someone’s permanent residency. A decision such as this is not subject to judicial oversight. Nor can bodies such as the parliamentary joint committee on intelligence and security examine the evidence cited against Huang. His only recourse is to the Administrative Appeals Tribunal, a body staffed by political appointees.
The choice Australia faced in 2018 still confronts us: do we wish to combat foreign influence on a selective, case by case and thus inevitably discriminatory basis, or do we adopt consistent measures to strengthen the integrity of Australian policymaking?
Ultimately, the best defence against undue influence from any quarter is an engaged citizenry. If Chinese in Australia wish to push a particular line on Taiwan, or the South China Sea, let them make that case as part of an open and informed debate on the challenges and choices that China presents to us. If our foreign policy really is vulnerable to the machinations of people like Huang, it can only be because so few people actually play a role in determining that policy. Shining a bit more sunlight on our own decision-making processes, including those that led to the ostracism of Huang Xiangmo, would benefit us all
This article was first published in the print edition of The Saturday Paper on Feb 16, 2019 as "Huang, fawned then thwarted". Subscribe here.