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Making Australia’s foreign influence laws work

Posted By on July 22, 2021 @ 06:00

Last week it emerged that the Western Australian government, in an apparent attempt to appease the Chinese Communist Party, had given itself the right to stop people from hiring certain public venues if they identify ‘with countries whose political status is unclear or in dispute’.

How effective are Australia’s legal defences against foreign governments’ exertions of influence in this country?

In 2018, the Turnbull government legislated the Foreign Influence Transparency Scheme Act 2018 (FITS Act). The consequence: those who engage in influence activity (such as lobbying or other political communications) must disclose the details where it’s on behalf of a ‘foreign government related entity’. Particulars appear on a public register.

Two years later, the Morrison government introduced the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Foreign Relations Act). Under that act, agreements of state and local government bodies with foreign governments are publicly registered. The federal government can terminate them if they’re inconsistent with Australian foreign policy.

There appears to be no Western Australian arrangement on the public register that would explain the Perth Theatre Trust’s unusual preoccupation with geopolitics.

Whatever the reasons for that, these two acts constitute the Australian government’s legislative response to foreign influence. The laws are, of course, the product of Canberra’s collective executive and parliamentary processes. Prime ministers Malcolm Turnbull and Scott Morrison were very wise to establish this framework. Under their leadership, Australia set an example that’s now being emulated in the UK.

As Turnbull and Morrison recognised, we need these laws, and we need them to work.

And when it comes to legislation designed to defend our national sovereignty, we should always be prepared to acknowledge any failings frankly, and make the necessary amendments. Now that Australia’s foreign influence laws are in place, there’s an opportunity—and an urgent need—to strengthen them so that they work as intended.

In my new report, published by ASPI today, I argue that Australia’s statutory response to foreign governments’ influence efforts suffers from a serious weakness. Its name is country agnosticism. Under that precept, the laws treat all foreign influence activities, no matter what their country of origin, the same way.

The FITS Act regulates communications on behalf of British and Chinese entities alike. The Foreign Relations Act burdens a local council that enters a sister-city relationship with Honolulu much the same as it burdens a state government that enters a Belt and Road agreement with the Chinese government.

With country agnosticism, we took a wrong turn. It has imposed sweeping, unnecessary regulatory costs. It has caused waste of taxpayer-funded enforcement resources. It has diverted those resources from the issues that really matter. It has brought unnecessary legal complexity. And, as a consequence of all this, it has produced a legal framework that’s sporadically obeyed and half-heartedly enforced.

Yet for all that, nobody believes that these laws are truly country agnostic. Not the Australian media, which routinely describe the laws as ‘aimed at’ China. Nor, presumably, the media’s audience. Nor, certainly, the Chinese Communist Party, which regards itself as the target, explicitly citing the laws as a key grievance. So, if country agnosticism was meant to avoid giving anyone the impression that the laws are China-focused, then it has failed.

Country agnosticism is a shrivelled fig leaf in a diplomats’ parlour game. And the game is expensive. Its costs are paid by the Australians who must adhere to the laws and finance their enforcement. Those taxpayers pay the premiums for country agnosticism, and are rewarded with a $25 billion CCP trade war. Country agnosticism is an insurance policy that doesn’t insure anything.

Perhaps the greatest cost of country agnosticism is that the statutory framework isn’t as effective as it needs to be. Why? In adopting a country-agnostic stance, we wilfully blinded ourselves to the very factor that matters most in evaluating and responding to foreign influence—its source country.

It’s time to remove the blindfold. We should recognise this basic truth: foreign influence regulation must be more stringent in relation to some source countries than others.

Greater stringency is needed where the source is a jurisdiction in which the ruling party’s control permeates the entire society, allowing it to exert power through public and ‘private’ entities alike. Our laws won’t illuminate that kind of authoritarian government’s influence in Australia unless they apply to a broad range of conduct and entities. If they cover only what Australians usually understand as government entities—state-owned enterprises, for instance—then they’ll largely miss their mark. And they’ll do so precisely when it’s most important to hit the target; the influence efforts of authoritarian regimes are the very efforts that are most likely to do fundamental damage to our national sovereignty and security.

Conversely, when we cast the legal net as wide in relation to liberal democracies as we must over their authoritarian counterparts, we wind up regulating a lot of activity that doesn’t have a foreign government as its ultimate puppetmaster.

When it comes to certain countries, in other words, the regulatory and administrative costs of stringent transparency requirements are worth it; in other cases, they aren’t.

Because foreign influence is permitted on the proviso that its governmental source is transparent, everything rides on how effectively that proviso is put into practice. To bring a democratic government’s influence efforts out of the shadows, only minimal regulation is needed, but the same can’t be said of authoritarian jurisdictions where the tentacles of official power extend further. That contrast between foreign political systems is obvious, yet it’s the very thing that country agnosticism insists we ignore.

Accordingly, Australia’s foreign influence laws should be amended to adopt a ‘tiered model’, under which conduct originating in certain ‘designated countries’ would be subject to greater regulation than activity from other sources. The ministers responsible for our foreign influence laws should be empowered to designate the source countries that warrant greater transparency. Designation would be based primarily upon an assessment of the foreign state’s political system—in particular, the degree to which the foreign government controls ostensibly ‘private’ entities and deploys them to advance its national security goals.

Another relevant factor would be the foreign government’s track record of attempting to influence Australians for unwelcome purposes.

Those purposes may or may not include the silencing of Tibetan or Taiwanese voices at Australian taxpayer-owned venues.

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URL to article: https://www.aspistrategist.org.au/making-australias-foreign-influence-laws-work/

[1] given itself the right: https://www.theaustralian.com.au/nation/states-venue-policy-and-china-link-an-artsbreaker-in-western-australia/news-story/2adacf08c27fc06a085871df4ca7faf3

[2] emulated in the UK: https://www.gov.uk/government/consultations/legislation-to-counter-state-threats

[3] my new report: https://www.aspi.org.au/report/losing-our-agnosticism-how-make-australias-foreign-influence-laws-work

[4] routinely: https://www.afr.com/politics/federal/daniel-andrews-hits-back-on-china-deals-20200827-p55pq9

[5] describe: https://www.theaustralian.com.au/nation/foreign-affairs/pacific-pact-to-strengthen-regional-security-and-counter-china-push/news-story/c656bf99bf66eec7372459d562c307e3

[6] the laws: https://theconversation.com/yang-hengjun-case-a-pivotal-moment-in-increasingly-tense-australia-china-relationship-122460

[7] explicitly citing: https://www.smh.com.au/world/asia/if-you-make-china-the-enemy-china-will-be-the-enemy-beijing-s-fresh-threat-to-australia-20201118-p56fqs.html

[8] $25 billion CCP trade war: https://www.lowyinstitute.org/the-interpreter/big-bark-small-bite-china-s-trade-coercion