Australians Voice Free Speech Concerns over Laws to Prevent Chinese Political Meddling

Labor senator Sam Dastyari told the Chinese media in September 2016 that Australia shouldn’t interfere with China’s activities in the South China Sea, contradicting his own party’s policy. Photograph: Dean Lewins/AAP
Dean Lewins/AAP

Australia rolled out a sweeping package of laws designed to counteract espionage and foreign political influence in December, but criticism of the laws prompted a parliamentary review beginning on Tuesday.

In essence, the critics fear Australia has gone too far and jeopardized free speech rights, as well as creating legal pitfalls for international institutions, including media organizations and the Catholic Church.

Australia’s concerns about foreign influence, particularly from China, were crystallized by the fall of legislator Sam Dastyari, who was accused of parroting Beijing’s geopolitical positions after accepting a large amount of money from a Chinese businessman. He also reportedly warned the businessman in question that his communications were being monitored by Australian intelligence.

When Australian Prime Minister Malcolm Turnbull introduced the new laws, he dryly speculated that they might help the leader of the opposition “manage any issues inside his party,” a sarcastic reference to the Dastyari affair.

Until now, Australia has been unusually relaxed about foreign support for domestic politicians. Intelligence agencies occasionally warned about accepting money from suspected agents of foreign influence, but the practice remained legal.

Australia’s new laws were modeled on American laws against foreign campaign donations and influence operations. The Chinese government angrily insisted it has “no intention to interfere in Australia’s internal affairs or exert influence on its political process.”

A good number of Australians apparently remain comfortable with the notion of outside influence on their elections, as the South China Morning Post reports the Law Council of Australia insisting “most foreign influence on local politics was benign,” so the new laws are not necessary.

Members of the Australian financial industry said the laws were “cast too widely and beyond the policy intention of the government.” The Australian Catholic Bishops Conference agreed, saying the bill was “drafted with extraordinary breadth.” The Catholic concern is that communication with the Vatican could get them labeled as foreign agents and subject to new restrictions.

“Terms in the bill such as ‘foreign principal’, ‘lobby’, ‘communications activity’ or ‘donor activity’ are very broad, general and unqualified, which means there is great potential to catch innocent and unintended persons and behaviour, and are of doubtful utility and effectiveness,” the Catholic bishops warned.

“It seems that every Catholic involved in advocacy may need to register and report,” ventured Bishop Robert McGuckin of Queensland on Tuesday. “Given Catholics make up more than the 20% of the population of Australia … we think that’s a lot of registrations.”

Media organizations voiced similar concerns, as in the case of NewsCorp Australia, whose parent company is American. The Australian Human Rights Law Center worried that charities and nonprofits could find it excessively “complex, cumbersome, and costly” to comply with the new regulations.

David Crosbie, CEO of the Community Council for Australia, said it was unfair to exempt for-profit business concerns from some of the new regulations but not charities. He warned that the standards for complying with the regulations could be highly subjective, confusing, and expensive for charities to keep up with.

“I should also note that the community is very concerned about the amount of money charities spend on administration. And that all governments make claims to being committed to reducing red tape. There is no way this new legislation will not impose significant new administrative costs on any charity that raises funding from anyone overseas,” Crosbie said.

The American Chamber of Commerce in Australia raised what the Sydney Morning Herald described as “unexpected” objections to the bill last week, saying it could prevent the organization from communicating with Australian officials or inviting them to events.

The SMH also quoted academics who worried about the end of foreign funding for university projects and innovative international collaborations, including funding for Australian research projects by the U.S. Department of Defense. One of those projects involves technology that could help quadriplegics walk.

The chairman of Australia’s Intelligence and Security Committee, Andrew Hastie, responded to these concerns by assuring those who are “seeking to build Australia and not undermine it as an Australian citizen” that they have nothing to worry about. That probably will not allay their concerns much, since it is a highly subjective standard. The question of who gets to decide what constitutes building Australia versus undermining it would become paramount.

Hastie added that he was not convinced further safeguards in the law are needed, but it would be possible to install them if a compelling argument is made for their importance.

Australia’s chief intelligence agency, the ASIO, told parliament on Wednesday that the new national security laws are necessary due to a “pervasive” threat of foreign actors seeking to influence Australia on an “unprecedented scale.”

In fact, ASIO Deputy Director General Peter Vickery said the situation today is more perilous than it was during the Cold War.

“During the Cold War our adversaries were fairly readily identifiable,” Vickery explained. “In the current climate, we’re facing a raft of different countries that are seeking to conduct espionage and foreign interference. It’s much more blurred. There’s much more state actors out there than there was at that time.”

Testimony was provided to the parliamentary committee by author and academic Clive Hamilton, who discussed how pressure from agents of Chinese influence blocked the publication of his book on Chinese influence.

“It was the sense that there were people in Australia with deep pockets who are willing, at the behest of or encouraged by agencies of the Communist party in Beijing, to take legal action to punish major news organisations for writing things that were said to be defamatory,” Hamilton said of the effort against his book.

It is an intriguing debate to watch from the United States because the Australian laws took some inspiration from ours, imposing regulations on things like foreign funding for political campaigns that we take for granted. The new transparency requirements imposed by the bill are not much out of line with what most other countries already require, assuming they don’t outright forbid the sort of activity Australia wants to register. Good luck getting officials in Beijing to sign off on foreign operations to influence Chinese politics.

On the other hand, the compliance costs for these regulations are not trivial, and the risk of incurring even greater penalties for failure to comply is real. It is an interesting object lesson in how the burdens placed upon free speech can smother it, and how even the most seemingly sensible regulations come with real costs. American politicians have a habit of dismissing the cost of bureaucracy. The debate over Australia’s foreign influence laws highlights the fact that every regulatory burden tips the scales.

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