Agents of foreign influence: with China it’s a blurry line between corporate and state interests


File 20190226 26162 bsb4uy.jpg?ixlib=rb 1.1
Australia’s Foreign Influence Transparency Scheme Act obliges individuals to register if they act on behalf of “foreign principals”.
Shutterstock

John Garrick, Charles Darwin University

Former federal trade minister Andrew Robb says he has quit his A$880,000-a-year consultancy job with Chinese-owned Landbridge Group because it didn’t have anything for him do.

Former Victorian premier John Brumby says he has quit as a director of Chinese tech giant Huawei in Australia because he has too much else to do.

Former federal foreign minister and ex-NSW premier Bob Carr has quit his job as director of the Australia-China Relations Institute, an organisation bankrolled by a Chinese billionaire with a history of using donations to cosy up to politicians.

It might be just a coincidence that these decisions have come just days before new foreign influence transparency laws come into effect on March 1.

The new laws are supposed to make visible the “nature, level and extent of foreign influence on Australia’s government and political process”. There is more than enough evidence that greater transparency is needed. But the extent to which the new rules will achieve this is questionable.

Money talks

Federal parliament passed the Foreign Influence Transparency Scheme Act (FITS) in December. The Act obliges individuals to register if they act on behalf of “foreign principals” – be they governments, government-related entities, political organisations or government-related individuals.

Failing to apply for (or renew) registration, providing false and misleading information or destroying records may lead to a prison term of up to six years for individuals and fines of A$88,200 for companies.

Registrable activities include:

  • parliamentary and political lobbying on behalf of a foreign principal
  • communications activities for the purpose of political or government influence
  • employment or activities of former cabinet ministers.

An example of the latter is Andrew Robb.

In February 2016 Robb resigned as federal trade minister and announced he would not recontest his seat. He left parliament in July. Three months later he had his new job, getting paid way more than the prime minister as a consultant to the Landbridge Group.




Read more:
View from The Hill: Would Landbridge be on or off the government’s register of foreign interests?


It is always instructive to note the first jobs taken by politicians after they leave parliament. Those appointments generally reflect relationships already well-groomed.

Landbridge is a privately owned Chinese company, but like many Chinese companies has strong ties to the ruling Chinese Communist Party. Its substantial interests in petrochemicals and ports includes a 99-year lease over the Darwin port, which is considered of strategic importance in China’s diplomatic dance with the United States.

Qualitative differences

China isn’t the only foreign power interested in having influence in Australia, of course. Historical ties have meant that Britain once dictated Australia’s foreign policy. Since World War II the United States has had almost as much power.

Now China, Australia’s largest trading partner, taking about 30% of our exports, looms large. But the power exercised by the Chinese regime is qualitatively different.

For all its economic liberalisation since the death of Mao Zedong in 1976, China remains a one party state, with repression worsening under Xi Jinping. On freedom of the the press, for example, China ranks 176 out of 180 countries.

Commercial, military and political influences are wrapped up together. Lines between state and private enterprises are blurred. When Chinese business interests curry favour with foreign politicians and officials, there’s a high chance that statecraft is also being advanced. “Soft power” is used extensively.

Agent of influence

This is what made the tawdry scandal involving former NSW senator Sam Dastyari so alarming.

Though a humble senator, Dastyari was a key Labor Party fundraiser and powerbroker. He later admitted that vanity and arrogance made him susceptible to the charm offensive of Huang Xiangmo – the billionaire who courted Bob Carr to head up the Australia-China Relations Institute.

Dastyari accepted financial gifts from Huang’s company, including a A$44,000 payment to settle a legal dispute, along with payments from other donors connected to the Chinese Communist Party.




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Such payments made it obvious why he defied his own party’s policy and defended China’s militant stance in the South China Sea. He was subsequently labelled a Chinese “agent of influence”.

These revelations resulted in Dastyari resigning from parliament in 2017. Earlier this month it was revealed the federal government had rejected Huang’s bid to become an Australian citizen and stripped him of his permanent residency visa.




Read more:
Why do we keep turning a blind eye to Chinese political interference?


On the basis of these examples highlighted above, there’s a strong case for making influence peddling open and transparent.

Whether the new laws can achieve that is another matter. They may curtail flagrant scenarios where those leaving public office sell their wares to the highest bidder. But to work effectively, the laws and their enforcers will need to constantly adapt and evolve as agents look for creative ways to wield influence from the shadows.The Conversation

John Garrick, Senior Lecturer, Business Law, Charles Darwin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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What to Do with Foreign ISIS Fighters?


Australia should brace for a volatile year in foreign policy in 2019


Susan Harris Rimmer, Griffith University

By the end of 2019 we should be able to assess how Australia is travelling with the grand plan laid out in the 2017 Foreign Policy White Paper. In this, an election year, I examine the status of our most important international relationships.

My verdict: decidedly shaky.

A difficult 2018

Even before the August leadership spill, 2018 was a difficult year for Australia’s foreign policy.

New prime minister Scott Morrison visited Jakarta within days of his appointment, but did not attend the Pacific Island Forum on Nauru. He also cancelled long-planned visits to Malaysia and Vietnam. He then jeopardised the Indonesian relationship with a rushed announcement about moving Australia’s embassy in Israel to Jerusalem.

Australia was increasingly criticised in various multilateral fora for its detention practices on Nauru and Manus Island, as well as its climate policies and defence of the coal industry. Morrison then had a shaky summit season.




Read more:
With Bishop gone, Morrison and Payne face significant challenges on foreign policy


Relationship with China, Middle East

China put us in the “deep freeze” for most of the year, putting off visits between ministers, deferring a trip by the Department of Foreign Affairs and Trade secretary, and delaying a range of educational exchanges.

The Chinese embassy issued a safety warning to international students, a large market for international education. This was in response to then Prime Minister Malcolm Turnbull’s vow to crack down on foreign interference in Australian affairs, as well as our position on the South China Sea.

In August, the federal government banned Chinese-owned tech giant Huawei from taking part in the roll-out of 5G mobile infrastructure over national security concerns.

This was the one relationship that may have benefited in the short term from the change in prime minister.

Despite these set-backs, the need to be principled and steady, and to build a long-term relationship with China, remains a challenge.

The year ended badly. With the West Jerusalem embassy announcement in December, Morrison proved a new diplomatic adage: that you can, in fact, please no one, all of the time.




Read more:
Morrison’s decision to recognise West Jerusalem the latest bad move in a mess of his own making


In the Pacific

Some issues are slow-burn. Most Australians still do not realise the deep implications for domestic policy raised by the Trans-Pacific Partnership deal that came into effect on December 30, 2018. These implications range from changes to labour market testing, intellectual property issues and the Investor-State Dispute Settlement (ISDS) provisions that allow private corporations to bypass national courts and seek compensation from extraterritorial tribunals if they believe a change in the law or policy has harmed their investments.

But one bright spot was the so-called Pacific pivot, which Morrison announced in November, and now has to be realised.

While the white paper laid out a stepping up in engagement, long overdue, with the Pacific, it was China’s increasing influence in the region that led to a sense of urgency and scale to the Pacific pivot announcement.

The announcement includes A$2 billion of new funding for infrastructure, a billion dollars to entice Australian businesses back into the region, adding five new diplomatic missions, enhancing labour mobility opportunities and creating an “office of the Pacific” with whole-of-government oversight. Australia, Japan, New Zealand and the US promised to connect electricity to 70% of PNG’s population by 2030.

These goals must be realised in a spirit of true partnership. Australian researcher Tess Newton Cain points out that Australia often misses the right tone of respect and partnership in its announcements to the region. And without climate leadership, will the Pacific trust us?

Leadership churn

No white paper can protect Australia from the damage to our international reputation over our constant turn-over of prime ministers. Based on current polls, another one is likely in May after a federal election.

The Lowy Institute’s Michael Fullilove says that worse than being a laughing stock, now Australia can be ignored while the region moves on.

The image of German Chancellor Angela Merkel barely concealing her boredom at meeting her fifth Australian leader in five years at the G20 Summit spoke volumes.

Opposition leader Bill Shorten is not known for his foreign policy vision, but Penny Wong is a respected foreign policy thinker, and an interesting symbol for the region on diversity, multiculturalism and the rule of law.

Will she take the foreign minister role in cabinet if the ALP is elected, assuming she may have some choice? For Australia’s sake, she should; we desperate need steady interlocutors. Richard Marles is also a respected figure in the Pacific.

A Shorten government should also display bipartisanship and give Marise Payne and Julie Bishop roles as special envoys or ambassadors to shore up some degree of continuity. Former PMs Kevin Rudd, Julia Gillard and Malcolm Turnbull could all be given roles to play.

Big meetings ahead

Thailand will host ASEAN (Association of Southeast Asian Nations) and the East Asia Summit (EAS) in 2019. The 10-member association has been criticised for allowing Thailand’s military government to become chair.

APEC (Asia-Pacific Economic Cooperation) will be hosted by Chile in 2019, showing the reach of APEC across the Pacific. APEC was not able to produce a leaders’ declaration at the PNG summit and it was the scene of extraordinary tension this year. Chile will be hoping for a return to business as usual.

Japan will also host an early G20 Summit in Osaka in June, part of an enormous diplomatic year for them. In 2019, Japan is hosting the Rugby World Cup and preparing for the Tokyo Olympics in 2020. Then in April, Emperor Akihito, will abdicate, making way for his successor Crown Prince Naruhito.

Threats on horizon

The Council for Foreign Relations, an independent US think-tank, nominated its highest risks for 2019, which I have modified for Australia:

  • A highly disruptive cyber-attack on critical infrastructure and networks

  • Renewed tensions on the Korean peninsula following a collapse of denuclearisation negotiations

  • Armed conflict between Iran and the US or one of its allies

  • Armed conflict over disputed maritime areas in the South China Sea between China and one or more Southeast Asian countries (Brunei, Malaysia, Philippines, Taiwan, and Vietnam)

  • A mass casualty terrorist attack by either foreign or home-grown terrorist(s)

  • Continued violent re-imposition of government control in Syria

  • Deepening economic crisis and political instability in Venezuela leading to violent civil unrest and more refugees leaving

  • Worsening of the humanitarian crisis in Yemen, exacerbated by ongoing foreign intervention in the civil war

  • Increased violence and instability in Afghanistan resulting from the Taliban insurgency and potential government collapse.

International elections

The Indian general election is expected in April or May 2019, a test for Prime Minister Narendra Modi.

Other major elections in 2019 are due in Afghanistan, Canada, South Africa, Indonesia, Thailand and The Philippines.

Key partnerships

Alas, the UK remains focused on Brexit.

And all international diplomats are bracing themselves for the next phase of Trump’s foreign policy.

The US foreign policy think-tanks argue that with the Democrats in control of the House of Representatives, the Trump White House will be more active in foreign policy as it struggles to pursue a productive domestic agenda. This could lead Australia into some kind of rollercoaster if we are not willing to disengage from some US requests for our assistance.

In 2019, the US Ambassador to Australia will finally arrive after more than two years’ delay. Republican Washington lawyer Arthur Culvahouse might well spice things up during his posting.

He told the US senate that while China is Australia’s largest trading partner, Australia has also given China “a nation that’s already … aggressive” an “outsized” influence and opportunity to press its agenda.

Depending on the election outcomes, India is looking more like a natural ally for Australia, at least in the shared interest in strengthening ASEAN and the EAS process, and the early conclusion of the Regional Comprehensive Economic Partnership (RCEP) in which both countries are partners.

The way forward for Australia is clearer too, if the government adopts the approach laid out in Peter Varghese’s report An India Economic Strategy to 2035. The former diplomat and public servant envisages the goal by 2035 to be to:

… lift India into its top three export markets, to make it the third largest destination in Asia for Australian outward investment, and to bring it into the inner circle of Australia’s strategic partnerships and with people to people ties as close as any in Asia.

Strategy requires skill and leadership. We will need all three in 2019. We have a volatile year ahead.The Conversation

Susan Harris Rimmer, Australian Research Council Future Fellow, Griffith Law School, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Blocking Chinese gas takeover won’t damage Australia’s foreign investment pipeline



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A single foreign company having sole ownership and control over Australia’s most significant gas transmission business, says Australia’s treasurer, is not in the national interest.
Shutterstock

Simon Segal, Macquarie University

The Morrison government’s decision to block Hong Kong’s largest infrastructure company from buying one of Australia’s key infrastructure companies seems to make a complicated relationship with China even more fraught.

Rejections of foreign takeover bids are extremely rare. This is just the sixth such decision in nearly two decades.

It might be argued the blocking of the A$13 billion bid for gas pipeline operator APA Group by Cheung Kong Infrastructure (CKI) Holdings reflects increasing politicisation of Australia’s process for reviewing foreign investment.

But this is not a political shot across the bows like China’s announced anti-dumping probe into imports of Australian barley. This takeover proposal was always doubtful. News of its knock-back potentially damaging relations with China, or foreign investment more generally, are greatly exaggerated.




Read more:
As tensions ratchet up between China and the US, Australia risks being caught in the crossfire


Always unlikely

APA Group owns 15,000 km of natural gas pipelines and supplies about half the gas used in Australia. It owns or has interests in gas storage facilities, gas-fired power stations, and wind and solar renewable energy generators.


APA Group’s infrastructure assets.
APA

Back in September, after APA accepted the takeover offer from a CKI-led consortium, the investment research company Morningstar judged it unlikely that Australia’s Foreign Investment Review Board would approve the bid.

The board is only an advisory body. The final decision rests with the federal treasurer. Josh Frydenberg signalled his intention to block the deal in early November, giving CKI a few weeks to change its proposal, either by selling assets or finding other investment partners, enough to change his mind.

That did not happen. Frydenberg’s final decision to block the bid was based, he said, on “a single foreign company group having sole ownership and control over Australia’s most significant gas transmission business”.

He emphasised the government remained committed to welcoming foreign investment: “foreign investment helps support jobs and rising living standards.”

It’s not all about CKI

CKI is not state-controlled. It is headed by the son of Hong Kong’s richest man, Li Ka-shing, and has a history of considerable success in investing in Australia.

Nonetheless speculation about the rejection damaging the Australia-China relationship has ensued. In the words of the South China Morning Post: “As the most China-dependent developed economy, Australia potentially has a lot to lose should relations with its biggest trading partner deteriorate further.”




Read more:
Australia and China push the ‘reset’ button on an important relationship


Let’s put this into perspective.

First, there is broad bipartisan agreement that foreign investment is crucial to Australia’s economic prosperity.

Second, as already mentioned, this is just the sixth major public foreign investment proposal blocked since 2000. (All but one, notably, have been by Liberal treasurers.)

Third, all six rejections have been case-specific. Each bid has been considered on its merits.

This case arguably has less to with CKI being Chinese linked than with the size and significance of APA, whose transmission system includes three-quarters of the pipes in NSW and Victoria.

In 2016 CKI’s A$11 billion bid for NSW electricity distributor Ausgrid was also blocked (by then-treasurer Scott Morrison) on national security grounds.

But in 2017 CKI won approval for its A$7.4 billion bid for West Australian-focused electricity and gas distribution giant DUET. And in 2014 CKI’s acquisition of gas distributor Envestra (now Australian Gas Networks) was also cleared.

Shifting emphasis

This is not to deny that politics played a part in Frydenberg’s decision.

The seven-person FIRB board was divided (the exact votes are not known). The Treasurer’s call could have gone either way.

Forces within the Liberal Party that opposed Malcolm Turnbull’s leadership have also been deeply hostile to APA’s sale to CKI. Among the most vociferous was NSW senator Jim Molan, who warned of “hidden dragons” in the deal.

For a minority government lagging in the polls and just months away from an election, such views have assumed inflated importance.

Nonetheless the APA decision was not a surprise. Greater scrutiny is now part and parcel of the Foreign Investment Review Board process. In particular, the emphasis has firmly shifted over the past few years to scrutinising national security and taxation areas.




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The Critical Infrastructure Centre within the Department of Home Affairs, which became fully operational this year, brings together capability from across the federal government to manage national security risks from foreign involvement in Australia’s critical infrastructure. It’s particularly focused on telecommunications, electricity, gas, water and ports.

David Irvine, who has chaired the Foreign Investment Review Board since April 2017, is a former head of the Australian Security Intelligence Organisation.

This shifting emphasis does not equate to a bias against foreign investment per se. There is no evidence investors, including Chinese, are being discouraged or significantly deterred from investing in Australia.

CKI itself demonstrates, by returning to Australia despite previous rejections, that foreign investors will not give up so long as the next deal stacks up. There is already speculation CKI has moved on, and now has its eyes on Spark Infrastructure, an ASX-listed owner of energy asset.The Conversation

Simon Segal, PhD research candidate, Business, Macquarie University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Government needs to slow down on changes to spying and foreign interference laws


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Attorney-General Christian Porter wants the legislation passed before the “Super Saturday” byelections on July 28.
AAP/Lukas Coch

Tony Walker, La Trobe University

What’s the rush? If you believe Federal Attorney-General Christian Porter, unless two pieces of security legislation are in place in the remaining two weeks of parliament before the winter recess, the country will be in peril.

This was the line Porter was taking yesterday on the release of the Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill.

His argument is nonsense. Labor should also be taken to task for being party to a hasty process that appears on the face of it to be expedient. Labor’s persistent concern is to avoid being wedged on security issues.

Under the proposed legislation, bodies such as Amnesty International that have been critical of Australian government policies may be vulnerable.

Porter wants two separate tranches of legislation – the Espionage and Foreign Interference Bill and a Foreign Influence Transparency Scheme Bill – to be passed before the Super Saturday byelections on July 28.




Read more:
Grattan on Friday: Government and Labor unite to erect the barriers against foreign interference


Porter’s argument appears to be that unless the legislation passes in the concluding two weeks of the midyear session of parliament, those byelections will be conducted in a perilous atmosphere. He said:

There’s an unprecedented level of foreign intelligence activity in Australia and that means more foreign agents and more foreign power using more tradecraft and more technologies to engage in espionage and foreign interference and the attempted foreign influence of our democratic processes.

And that increase in volume is detectable even in the period of time that this piece of legislation has been under consideration by the committee.

No reasonable person would argue against the need for beefed-up legislation to deal with challenges to democratic processes such as those witnessed during the recent US election.

Russian cyber interference in the US political process is hardly in question, nor attempts by Russian agents of influence to suborn the system. The question is to what degree?

What is proposed in Australian legislation foreshadowed by Prime Minister Malcolm Turnbull late last year is a new and far-reaching suite of laws aimed at limiting foreign interference.

An initial version of the bill was poorly drafted. It represented an unreasonable threat to individual liberties and freedom of expression.

It was particularly antagonistic to journalists operating in the security space. Long jail terms for publication of unauthorised security material were incorporated.

The insertion of a public interest amendment has somewhat alleviated that risk.

Fairfax Media’s publication overnight of leaked documents dealing with alleged war crimes by members of the Special Air Service might have fallen foul of such provisions, and may still do so.

Media coverage of the draft amendments to the Espionage and Foreign Interference Bill has been relatively favourable. However, this might have less to do with the merits of the legislation than with relief the bill is less threatening to legitimate inquiry than an earlier draft.

In all, parliament’s Joint Committee on Intelligence and Security made 60 recommended amendments to the Espionage and Foreign Interference Bill.

Most of these recommendations are cosmetic, except those relating to journalistic inquiry. They include the need for security certifications to be validated before proceedings could be initiated for an espionage or secrecy offence, and a review of the legislation by the National Security Legislation Monitor after three years.

Urging quick action on the Espionage and Foreign Interference Bill, Porter argued that a second bill, the Foreign Influence Transparency Scheme Bill, was required to complement the main piece of legislation.

This refers to legislation that sought to proscribe involvement in Australian political processes not just by foreign governments and their agents, but by entities like GetUp, which has drawn part of its funding from foreign sources.

The scope of this proposed legislation – which is yet to be agreed by the JCOIS – has now been limited to foreign governments, foreign-related entities, foreign political organisation and foreign government-directed individuals.

Foreign companies would be excluded from this provision unless it could be demonstrated they were closely connected to a foreign government or political organisation.

In such cases, government-dominated companies, even those associated with friendly nations, would be required to register under the proposed law.

In efforts to guard against interference by individuals or companies who might be connected with a foreign government, the Attorney-General’s Department would be empowered to issue “transparency notices” to identify such individuals or companies.




Read more:
New foreign interference laws will compound risks to whistleblowers and journalists


An appeals process against these findings would be available through the Administrative Appeals Tribunal. Porter said:

It’s vital that our national security legislation and framework reflects the modern challenges that we face … that framework remains dangerously incomplete while these two remaining and critical bills remain unlegislated.

As interested parties digest the provisions of the proposed amendments, it’s likely more objections will be raised, such as those by Claire O’Rourke, one of Amnesty’s Australian representatives.

O’Rourke told The Guardian that under the Foreign Influence Transparency Scheme Bill charities like Amnesty that hold the Australian government to account on its human rights record could face criminal charges. She said:

This is clear government overreach and a cynical exercise by both sides of politics to shield themselves from the scrutiny of Australian society, including charities.

The ConversationThe upshot of all this? Quite simply, more time is needed to review proposed amendments.

Tony Walker, Adjunct Professor, School of Communications, La Trobe University

This article was originally published on The Conversation. Read the original article.

Turnbull government shrinks Foreign Influence Transparency Scheme register


Michelle Grattan, University of Canberra

Attorney-General Christian Porter has put forward compromise amendments to the government’s proposed register of foreign agents that will limit its reach.

The changes are designed to meet criticisms from charities, universities and others, and to get a quick agreement with Labor on the legislation.

The bill for the register is still being considered by the parliamentary joint committee on intelligence and security, which on Thursday released a bipartisan report agreeing on 60 amendments to the legislation to counter the threat of foreign interference.

Porter wants to get both bills passed by the end of this month. “Most critically this would allow for Australia’s new legal framework designed to address espionage, interference and foreign influence in Australia’s democratic processes to be passed before the conduct of five key Australian byelections and be fully operational before the next scheduled general election,” he said.




Read more:
Grattan on Friday: Government and Labor unite to erect the barriers against foreign interference


There have been widespread concerns that the scope of the transparency scheme is too wide, and notably the breadth of the definitions in it, including that of “foreign principal”.

Arguments have been put by lawyers, the media, the arts, charities, not-for-profit organisations and the academic sector that these definitions will adversely affect them.

Porter said that the government had now given the committee a range of amendments “that address the most substantive stakeholder issues”.

The bill currently provides that people be required to register if undertaking certain activities on behalf of a foreign government, public enterprise, political organisation, business or individual.

The change would limit the “foreign principals” to foreign governments, foreign government-related entities, foreign political organisations and foreign government-related individuals.

“This ensures that only organisations or individuals ultimately working at the direction of a foreign government or political party are required to register,” Porter said.

The amendment would thus exclude “the vast majority of private international companies”, except where “they are closely related to a foreign government or political organisation”.

To stop some companies or individuals with opaque links to a foreign government falling through the cracks, the secretary of the Attorney-General’s department would have a power to issue notices stating a person or organisation was considered a foreign government-related entity or individual.

“This would allow the government to investigate and declare where it considers companies or individuals are hiding their connections to foreign governments,” Porter said.

Another change would mean broadcasters, carriage service providers and publishers would not have to register “where they are undertaking their ordinary business”.

The definition of “activity for the purpose of political or government influence” would also be changed “so that a substantial purpose of the activity has to be political influence, rather than just ‘a’ purpose of it”.

The ConversationPorter said that responding to the university sector and charities, the definition of “undertaking activity on behalf of a foreign principal” would be amended “so a person isn’t deemed to be undertaking an activity merely because they are supervised by, receive funding from or collaborate with a foreign principal”.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Grattan on Friday: Government and Labor unite to erect the barriers against foreign interference


Michelle Grattan, University of Canberra

The government couldn’t have had a more appropriate week for the release of the report from the parliamentary joint committee on intelligence and security which has examined its legislation to counter foreign interference.

Bipartisan agreement in the report, tabled Thursday, on the 60 recommendations, covering minor and more substantive amendments, has paved the way for the bill – that has infuriated Chinese authorities – to clear parliament within weeks.

A couple of current instances have highlighted how China engages in unsubtle pressure.

Qantas confirmed it would bow to China over how the carrier refers to Taiwan in its advertising and on its website. This followed a demand to three dozen airlines that they make clear that Taiwan, Hong Kong and Macau are part of China.

The government was understanding of Qantas’s position, accepting it had little choice.

On a very different front, former foreign minister Bob Carr, an outspoken friend of China, who heads the Australia China Relations Institute at the University of Technology Sydney, was unable to get visas for journalists (including from Fairfax and News Corp) to go on one of the sponsored visits to China he hosts. Carr says “the assumption is that [this] is part of the freeze China is applying to bilateral visits” – a freeze that has hit ministers.

Then there is the much-publicised controversy about Facebook sharing user-data with, among many companies, several Chinese ones including Huawei, a telecommunications-equipment giant that the Australian government has not permitted to tender for National Broadband Network contracts.

We’re well past the optimistic days when we believed it could be all upside in our relationship with China, which has over the years delivered an economic bonanza for Australia.

Trade Minister Steve Ciobo tries to shrug off problems as minor irritants, but presumably that’s just his job. Others in the government have become more forthright.

It’s notable that of recent prime ministers Kevin Rudd and Malcolm Turnbull, both very knowledgable about China, have been the most openly tough-minded towards it. Before becoming PM, each was regarded as China-friendly.

Of the various causes of current tensions in the relationship, the legislation against foreign interference is on the top shelf (together with Australia’s stand on the South China Sea).

The purpose of the legislation, unveiled late last year, is to “comprehensively reform key offences dealing with threats to national security, particularly those posed by foreign principals”.

Among its provisions, it “introduces new foreign interference offences targeting covert, deceptive or threatening actions by foreign actors who intend to influence Australia’s democratic or government processes or to harm Australia”.

At its core, what this legislation does is to criminalise foreign interference that is one step below espionage. ASIO has always been able to investigate such interference, but it hasn’t actually been a criminal offence.

While the government goes out of its way to say the legislation is not aimed at any individual country, everyone knows China is in its sights. As is Russia, after the experience in the United States and elsewhere.

Duncan Lewis, head of ASIO, emphasised the foreign threat in evidence to Senate estimates last month, describing the current scale of foreign intelligence activity against Australian interests as “unprecedented”.

“Foreign actors covertly attempt to influence and shape the views of members of the Australian public, the Australian media, officials in the Australian government and members of the diaspora communities here in Australia,” he told the hearing.

“Foreign states maintain an enduring interest in a range of strategically important commercial, political, economic, defence, security, foreign policy and diaspora issues,” he said.

Critics of the legislation seized on sloppy drafting as well raising substantive issues. The Law Council of Australia warned that “many of the offence provisions are broadly drafted to capture a range of benign conduct that may not necessarily amount to harm or prejudice Australia’s interests”.

Some with concerns were within officialdom. The Commonwealth Ombudsman pointed out that “the current drafting of the amendments appears to produce several unintended consequences for my office,” and the Inspector-General of Intelligence and Security had some worries.

The media feared being caught by too wide a net.

Where possible, Opposition leader Bill Shorten tries to stick like glue to the government on national security issues, for reasons of politics as well as substance. Given this, and the usual bipartisan functioning of the intelligence and security committee, it is not surprising that agreement has been reached on a refined version of the bill.

Many of the changes, as Attorney-General Christian Porter noted, are to definitions and drafting – which doesn’t make them unimportant.

These include clarifying that “prejudice to national security” has to involve an element of harm, not just embarrassment. There’ll be clarification of “espionage”, “sabotage”, “political violence” and “foreign interference”.

Changes will reduce the maximum penalties for the new secrecy offences, and require the attorney-general’s consent for a prosecution under them.

An amendment will ensure the staff of the Inspector-General of Intelligence and Security are properly protected.

The changes will give greater protection to the media, expanding the public interest defence for journalists, and making it clear that editors, legal advisers and administrative staff will all be covered by the journalism defence.

Before a journalist can be prosecuted over reporting classified documents, the head of the relevant agency will have to certify that they were properly classified, and the attorney-general must consent to the legal action.

The government, accepting some criticisms of the legislation, itself put forward certain amendments.

The committee – which is still examining an accompanying bill to set up a register of those working on behalf of foreign governments and other interests – said that after three years there should be a review of the operation of key parts of the foreign influence legislation.

The agreed changes haven’t satisfied critics such as the Law Council and Amnesty International. But the political deal is now in place.

Meanwhile Porter explicitly cast an eye to coming elections. “Activity which is designed to interfere or influence our democratic processes is at its most acute when democratic processes are taking place and that means five by-elections in late July and then the full general election”.

The ConversationThe government, saying it wants the legislation passed before the parliament rises at the end of June for the winter recess, is preparing for more angry reaction from Beijing.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Competing foreign interests trump Syrian aspirations for political change


File 20180510 5968 kmmr9f.jpg?ixlib=rb 1.1
International powers with conflicting interests have helped the Bashar al-Asad government to consolidate its power.
from http://www.shutterstock.com, CC BY-SA

Hanlie Booysen, Victoria University of Wellington

The United States’ withdrawal from the Iran nuclear deal exacerbated the violence in Syria. But to understand how Syria became the theatre for proxy wars, we have to return to the Arab uprisings.

Syria is the outlier in the Arab uprisings, as again demonstrated by last month’s air strikes.




Read more:
US airstrikes in Syria nothing more than theater


In 2011, public protests forced long-standing dictators Zine El Abidine Ben Ali and Hosni Mubarak from power in Tunisia and Egypt, respectively. Scholars questioned the notion that authoritarianism is a permanent feature of Arab politics. Not anymore. At least in Syria there is no doubt that the Bashar al-Asad government is consolidating its power.

I explore what makes Syria different from Tunisia and Egypt and why Syrian aspirations for political change have not eventuated.

People want political reforms

It is worth going back to March 2011. School boys, influenced by the uprisings in Tunisia and Egypt, wrote “al-sha‘b yurid isqat al-nidham” or “the people want the fall of the regime” on a wall in the southern Syrian city of Dar‘a. The authorities responded by detaining and torturing the boys, which sparked public protests, first in Dar‘a and then in neighbouring towns and villages.

Initially, Syrians were not calling for the fall of the regime. At a conference in April 2011, even the banned Syrian Muslim Brotherhood (SMB) preferred political reforms to outright revolution. A member of the executive recalled in an interview in 2015:

We as Syrians were calling for reform and calling for Bashar [al-Asad] to lead that reform.

This was not a new position for the SMB. From its formation in 1946, it participated in Syria’s early parliamentary democracy. The Brotherhood secured three seats in parliament in 1947, three in 1949 and ten in 1961. But the SMB’s parliamentary experience came to an abrupt end with the Ba‘th party’s military coup on March 8, 1963.

Excluded from parliamentary politics, and in the context of an Islamic insurgency turned uprising, the SMB adopted armed jihad in 1979. Membership of the Brotherhood was made a capital offence in 1980, and after the violent standoff between the Syrian government and Islamists in the city of Hama in 1982, the SMB was all but eradicated from Syria.

In exile, the SMB maintained its commitment to parliamentary democracy, and renewed its early commitment to non-violent political change. Its 2004 political platform emphasises democratic principles. It paved the way for the 2005 Damascus Declaration, a joined project between the SMB and the secularist opposition, to unseat the Bashar al-Asad government.

Bashar al-Asad survived both his international isolation in 2005, and the Damascus Declaration, only to face the Syrian uprising six years later. From exile, the SMB again confirmed its commitment to parliamentary politics in 2012, with an added emphasis on “equal citizenship”.

From uprising to civil war

By 2012 violence had become the new normal in Syria. The al-Asad government’s use of force and its pardon of radical Islamists caused the metamorphosis of the Syrian uprising, first into an insurgency, and then a civil war. Opposition groups across the political spectrum, with few exceptions, were supporting an armed struggle in 2012. In March, the SMB’s shura (consultative council) also endorsed armed jihad and pledged moral and material support to the secularist Free Syrian Army. Later, the SMB also provided financial support to armed groups that shared its moderate or “centrist” stance.

The militarisation of the Syrian uprising served the al-Asad regime’s survival. However, scholars argue that it takes “extensive resources” to create and maintain armed groups, which is where Russia, the United States and its Western allies, as well as Iran, Saudi Arabia, Qatar and Turkey entered the picture, and in turn serve to maintain the multiple wars in Syria.

The United States and its allies initially provided some support to certain rebel groups, but Washington’s priority since September 2014 has been to defeat the Islamic State group.

Russia’s primary interest in Syria is to prevent regime change, as it occurred in Libya in 2011. Apart from using its veto in the UN Security Council, in September 2015 Russia started using its military air power, which enabled the Bashar al-Asad government to reclaim territory that it lost to the rebels earlier in 2015.

Regional interests and the Syrian conflict

Iran’s focus is on countering United States and Israeli hegemony in the region, while the interests of Saudi Arabia, Turkey and Qatar initially coincided with those of the political opposition in exile, including the SMB. However, national objectives, primarily Ankara’s campaign against the Kurdistan Worker’s Party, currently drive the Turkish military campaign in the north of Syria.

Saudi Arabia’s primary interest is to contain Iran’s influence in the region, including in Syria, as well as to prevent an “uprising” at home. Qatar’s ability to influence developments in the region, and in Syria in particular, has been curtailed by the military coup against the Muslim Brotherhood in Egypt, and the Saudi-led isolation of Qatar.




Read more:
Qatar and the art of ‘brotherly’ diplomacy


The numerous and competing foreign interests in Syria have shown the UN Security Council to be an utter failure. In an unusual show of unity, the UNSC accepted the Russian plan in 2013 to destroy Syria’s chemical weapons stockpile. It inadvertently strengthened Bashar al-Asad’s legitimacy.

The ConversationThe United States-led airstrikes this April against chemical weapons storage and production facilities attest to the UNSC’s inability to safeguard a rules-based international order. They also, again, served Bashar al-Asad’s political survival. As long as regime survival serves the interests of the main foreign actors involved in the Syrian conflict, authoritarianism will trump the Syrian opposition’s aspirations for political change.

Hanlie Booysen, PhD Candidate and Tutor in Religious Studies, Victoria University of Wellington

This article was originally published on The Conversation. Read the original article.

Federal government’s foreign donations bill is flawed and needs to be redrafted



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The only effective way of destroying the undue influence of large foreign donations is by placing a cap on all donations.
AAP/Lukas Coch

Anne Twomey, University of Sydney

Preventing foreign influence over Australian elections is important. It is also important that legislation designed to achieve this is effective and does not impose collateral damage or leave itself open to constitutional challenge.

How well does the Turnbull government’s foreign donations bill stack up? Does it achieve its aim of preventing foreign donations from affecting Australian elections?

Not at all. It permits foreign citizens to make as many political donations in as large amounts as they wish, if it is done by a permanent resident or a foreign-owned company that is incorporated in Australia.

To be fair, there are constitutional reasons for this. It is unlikely that a ban on donations from permanent residents or companies incorporated in Australia would survive a constitutional challenge. But it also means any foreign government seeking to influence Australian elections can still easily do so.

The only effective way of destroying the undue influence of large foreign donations is by placing a cap on all donations, as occurs in New South Wales. But the federal government has chosen not to go down this path.




Read more:
Ban on foreign political donations is both too broad and too narrow, and won’t fix our system


It is ironic, then, that Special Minister of State Mathias Cormann says exempting charities from the bill would render the ban on foreign donations “entirely ineffective”. It is ineffective at preventing foreign influence anyway, so excluding charities could hardly make any difference to achieving that aim.

Meanwhile, Prime Minister Malcolm Turnbull argues that only seven out of 55,500 registered charities reported political expenditure last financial year, and that the bill “has no effect on foreign funding for charities’ non-political activity or charities’ political campaigning where it is funded by Australians”.

This is misleading for two reasons.

First, the bill relies on a greatly broadened definition of political expenditure. It now includes any expenditure on the expression of public views on an issue that is “likely to be before electors in an election”, regardless of when the election is held. This could include anything from expenditure on ads supporting same-sex marriage to books on climate change and websites supporting Indigenous constitutional recognition. Given the wide range of issues that may be before electors in an election, the bill is likely to catch a large number of charities, along with universities, corporations and others.

Second, it does not matter whether a charity actually receives any foreign donations or not. It may only receive donations from Australian sources and still be seriously affected by the bill. This is because onerous reporting obligations attach to bodies deemed to be either a “political campaigner” or “third party campaigner”.

For example, spending as little as A$14,000 on the public expression of views on an issue that is likely to be before electors is sufficient to be categorised as a third party campaigner, regardless of whether or not the person or body receives any foreign donations.

A third party campaigner must lodge annual reports detailing:

  • its political expenditure
  • its senior staff and any membership by them of political parties
  • any grants, contracts or payments from Commonwealth, State or Territory governments
  • a signed statement by its financial controller that it has complied with the rules about receiving gifts, such as charitable donations.

If a third party campaigner has received gifts that allowed it to engage in political expenditure, and the amount of at least one such gift (or cumulative gifts from the same donor) was above A$13,500, then it also has to provide an annual return that sets out the amounts of such donations, the date they were made and the name and address of each donor.

Most burdensome of all is the requirement to identify the source of every gift it receives. This includes very small donations, as it has to be able to identify whether the gifts from any single donor cumulatively exceed A$250. It then has to obtain a statutory declaration from each donor of more than A$250 that they are an “allowable donor”, such as a citizen, a permanent resident or a body incorporated in Australia. The penalty for breaching these requirements is up to 10 years imprisonment for the financial controller of the third party campaigner.

If you were a charity, which only collected donations from within Australia, and you wished to spend money on advocacy about government policies on homelessness, what would you do? Would you send lawyers out to accompany every door-knocker when you collect donations? Would you risk insulting your donors by requiring them to sign a legal document declaring that they are citizens or permanent residents?

Would you spend a considerable portion of the donations you receive on administering a complex reporting system, with the risk of imprisonment if you breach the rules? Or would you decide that the only rational solution is not to spend any money on advocacy about homelessness?




Read more:
Green groups and charities could be collateral damage in government’s foreign donation ban


If the purpose of this bill is to prevent foreign donations from influencing elections, it manifestly does not achieve that outcome. Foreign citizens can still donate as much as they like to Australian political parties by donating through a company they have incorporated in Australia.

But if the purpose of the bill is to deter charities and other third parties (regardless of whether they have received a single cent of foreign money) from spending money on the public expression of views that might entail criticism of government policies, then it would very effectively achieve that outcome.

This disconnect between the bill’s claimed purpose and likely effect may cause problems for the government if the legislation is passed and then challenged before the High Court. The Court has already held that limiting the sources of political donations imposes a burden on the constitutionally implied freedom of political communication.

Such a law will only be valid if it passes a proportionality test. That is, the law must be reasonably appropriate and adapted to achieve its claimed legitimate purpose. If its effects go far beyond that purpose, are unnecessary to achieve that purpose and disproportionately damage political communication, then the law will be held invalid.

The ConversationOn that basis, this bill is highly vulnerable to a constitutional challenge and needs to be redrafted so that it achieves its aim but does not impose unnecessary collateral damage on charities and other bodies.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. Read the original article.

New foreign interference laws will compound risks to whistleblowers and journalists


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Increasingly, the language of ‘national security’ is invoked to protect a government’s broader interests.
AAP/Mick Tsikas

Keiran Hardy, Griffith University

The Turnbull government has announced a crackdown on foreign interference in Australian politics and national security. Proposed laws include a ban on foreign political donations, new criminal offences, and a transparency register for those acting on behalf of foreign governments or organisations.

Prime Minister Malcolm Turnbull carefully emphasised that the proposals are not focused on China’s influence in Australia. But, as the Lowy Institute’s Euan Graham put it, there’s an “800-pound panda” in the room.

The proposed criminal offences will significantly expand the scope of existing laws against espionage and treason. This will make it easier to prosecute spies and other foreign nationals who seek undue influence over Australian business or politics.

However, the new laws pose risks to whistleblowers and journalists. They suggest the concept of “national security” is continually expanding.


Further reading: Ban on foreign political donations is both too broad and too narrow, and won’t fix our system


Espionage

The Criminal Code currently sets out an offence of espionage that is punishable by 25 years’ imprisonment.

The main offence applies where someone communicates or makes available information that concerns Australia’s security or defence. The person must intend to prejudice Australia’s security or defence, or advantage another country’s security or defence. Under the proposed changes, this offence will attract a maximum penalty of life imprisonment.

Where a person recklessly endangers Australia’s security or defence, this will be punishable by the current penalty.

The new espionage offences will apply to possessing or receiving information, in addition to communicating it. They will protect a broader range of information, including unclassified material.

Other new offences, punishable by 15 years’ imprisonment, will target preparation for espionage and the theft of trade secrets.

Foreign interference

Proposed offences for foreign interference will target conduct not ordinarily considered to be espionage or treason.

Currently, the federal offence of treason describes very rare and serious conduct, such as assassinating or capturing the Queen or prime minister.

These new offences will target covert, deceptive or undisclosed conduct that is directed, funded, supervised or undertaken on behalf of a foreign interest. The penalties will range between ten and 20 years’ imprisonment.

To constitute foreign interference, the conduct must be intended to:

  • serve the intelligence purposes of a foreign actor

  • harm Australia’s national security

  • influence the exercise or performance of a democratic or political right, or

  • influence a government or political process.

Other new offences will target the support or funding of foreign intelligence agencies. These will be similar to existing crimes for supporting or funding terrorist organisations.

Are the new offences needed?

The changes will make it easier to prosecute foreign nationals who intentionally interfere with Australia’s business, political or foreign policy interests.

Where such influence cannot strictly be described as impacting on security or defence, successful prosecution under the existing espionage or treason offences is very difficult.

The government’s other justifications are much weaker. The current espionage offences already extend beyond the communication of information to making, obtaining or copying sensitive records. The Crimes Act includes offences that are triggered when an Australian public official discloses official secrets or other information obtained in the course of their employment.

What are the risks?

The proposed offences will target some conduct that should clearly be a serious criminal offence, such as intentionally supporting a foreign intelligence agency.

However, the proposed laws go well beyond such clear cases to target a broad and vague range of conduct affecting Australian interests. This includes possessing unclassified information and any deceptive or undisclosed conduct that influences government processes.

Most importantly, the proposed changes pose risks to whistleblowers and Australian media organisations. These risks were compounded in 2014 by changes to national security legislation in response to the threat of foreign fighters.


Further reading: National security bills compound existing threats to media freedom


A journalist could face serious penalties under the proposed espionage offences for receiving information leaked by a government official or intelligence whistleblower, before they even decide to publish that information.

It seems the information need not even be classified for the penalties to apply, provided making the information available would benefit a foreign country or organisation.

The government needs to ensure that journalists publishing sensitive information in the public interest will not face criminal prosecution for espionage or other federal criminal offences. This should be done by drafting legal protections for journalists who act in a professional capacity in the public interest.

Assurances from Attorney-General George Brandis that journalists will not be prosecuted for doing their job are not enough.

The proposed laws should be viewed not only as a response to increasing Chinese influence in Australia, but also as symptomatic of a post-Snowden crackdown, in which all potentially embarrassing information about government is closely protected.

Similar debates about expanded espionage offences and press freedom have already taken place in the UK. These debates confirm that “national security” is no longer simply about physical threats like terrorism or traditional forms of spying.

The ConversationIncreasingly, the language of national security is invoked to protect a government’s broader interests – political, business and economic.

Keiran Hardy, Lecturer, School of Criminology and Criminal Justice and Member, Griffith Criminology Institute, Griffith University

This article was originally published on The Conversation. Read the original article.