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Thursday 13 Dec 2018 | 10:18 | SYDNEY
Thursday 13 Dec 2018 | 10:18 | SYDNEY

Australia’s new foreign-influence laws: Who is targeted?

Photo: JR Kopa/ Unsplash

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COMMENTS

5 December 2018 17:00

The Foreign Influence Transparency Scheme goes live on 10 December, when people or companies in Australia who are acting on behalf of foreign principals in the political sphere will have to register and detail their activities on a public website. 

If it works as it is supposed to, the new laws will provide a fascinating dataset on the actors and methods of foreign influence in Australia, which until now have had no disclosure obligations and only the ad hoc work of journalists to expose questionable practices. It should also provide clarity on the formal affiliations of prominent voices in the country’s heated foreign interference debate of the past two years.

While the US has been focused on Russian meddling in its 2016 elections, Australia has led the democratic pushback against quiet intrusions from authoritarian states, especially China.

As it happens, a repeat of the scandal that kicked off the foreign interference debate here might not be caught by the new scheme.

The Scheme complements the ban on foreign donations as well as new and extended espionage crimes to create a legal framework designed to force transparency – a key strength in the democratic state toolkit – on foreign interests in Australia by criminalising the whole spectrum of covert influence operations. This comes at a time when intelligence chiefs have warned this activity is occurring at an unprecedented scale.

Concerns about overreach and too-broad definitions saw some significant tightening, and the legislation, modelled partly on the US Foreign Agents Registration Act, passed with bipartisan support mid-year. 

The government has been at pains to point out that political influence activity such as lobbying, disbursing funds, or making a political communication on behalf of a foreign government or related entity or individual will not be a crime, as long as it is registered and conducted openly. 

But for those caught without registering, that’s punishable by up to five years in prison.

Will the scheme really catch any bad actors or just create more compliance obligations for the good guys? As it happens, a repeat of the scandal that kicked off the foreign interference debate here might not be caught by the new scheme. That was the resignation of Senator Sam Dastyari after he accepted donations from Chinese-born billionaire Huang Xiangmo, and went on to spout Chinese Communist Party talking points on the South China Sea. Permanent Australian residents like Mr Huang are not treated as foreign principals under the scheme.

The scheme relies on self-disclosure: legitimate foreign interests are expected to comply as part of the ordinary course of business. But there are some big sticks for reluctant signatories. The Attorney-General’s Department has the power to issue Transparency Notices to those it deems to be a foreign principal and to compel the production of information from those it suspects of acting on their behalf. A dedicated team in the Department will have the support of the intelligence agencies and a national coordinator at deputy secretary level in Home Affairs in identifying cases for investigation.

So, who would have to sign up? Some of the most controversial voices in Australia’s China-focused foreign-interference debate of the past two years are in the frame: former cabinet ministers or ambassadors advocating for foreign governments, Confucius Institutes at our universities, Chinese companies with links to state-owned enterprises (SOEs), and foreign state media organisations.

Local media that transparently republish content from foreign state media and people who independently advocate for the policies of a foreign government are off the hook. Humanitarian workers, charities, and legal representatives are exempt, as are business chambers promoting trade with a foreign country.

Some key examples:

  • Former cabinet ministers will have a lifelong requirement to register any arrangement they enter with a foreign principal. Former ambassadors, senior advisers and high-level bureaucrats must also register arrangements entered into with foreign principals within 15 years of leaving government.
     
  • Confucius Institutes are an arm of the Chinese government’s propaganda apparatus, but once embedded in Australian universities, are they still acting at the behest of the foreign principal? Could the institutes themselves be deemed a foreign-government related entity? Administrators at the 14 Australian universities with Confucius Institutes would have to be asking those questions. The answer may depend on the individual contracts, organisational structure, or administration of the institutes within each university.
     
  • Chinese SOEs: A company can be deemed a foreign-government related entity if the Attorney General’s Department has evidence its directors are accustomed to following the directions of a foreign government. This is where the power to compel the production of relevant documents could unearth fascinating information about linkages between, say, subsidiaries of Chinese SOEs operating in Australia, and the Chinese government. It is unlikely many Chinese SOEs would want to participate in an open court process in Australia.  It may also illuminate aspects of the operations of a company such as Huawei, over which the security services have expressed serious concerns, despite Huawei’s Australian chair vehemently denying the company is linked to the Communist Party.*
     
  • Foreign state media in Australia: The US is pushing for Chinese state media operations Xinhua and China Global Television Network (CGTN) to register as foreign agents following the forced registration of Russia Today, the Russian state-funded network, after the 2016 election. Russia Today lost its reporters’ White House and Congressional press credentials as a result. CGTN, Xinhua, and Russia Today all publish in Australia (although none have federal press gallery credentials) and it is likely Australia would expect them to register.
     
  • Australian publishers or broadcasters who use foreign state media content get an exemption for disseminating clearly marked foreign political content in the ordinary course of business. This will likely be welcome news to SBS, which broadcasts CCTV news direct from China’s state-owned service, and to Fairfax Media which runs paid supplements from state propaganda arms of China and Russia, as it might be an awkward look for a big local media company to be on the foreign influence register. 
     
  • Ethnic community groups may well need to register if they are “astroturfing”-style organisations that are lobbying on behalf of foreign governments. An example is the lobbying of the Australia Council for the Peaceful Reunification of China, linked in numerous reports and studies to the United Front, an important arm of the Chinese government’s propaganda outreach bureaucracy. But a person in Australia who independently organised, say, anti-Tibetan-independence protests without any arrangement with the Chinese government would not have to register. It would be up to the enforcement mechanisms of the Attorney General's Department to distinguish between the two.
     

 


* A previous version of this article referred to Huawei as a subsidiary of a Chinese SOE and has since been updated.

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