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.

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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


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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.

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



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Australia is among the one-third of countries that allow foreign political donations.
AAP/Mick Tsikas

Yee-Fui Ng, RMIT University

The government has announced a suite of reforms targeting foreign interference and espionage in Australia’s political process. This will include a bill imposing a ban on political donations from foreign bank accounts, non-citizens and foreign entities.

The ban will apply broadly – not just to political parties and parliamentary candidates, but also to trade unions and advocacy groups such as GetUp!.

These proposed reforms follow revelations that Labor senator Sam Dastyari had warned Chinese Communist Party-linked donor Huang Xiangmo that his phone might be tapped by intelligence agencies. Both the Labor and Liberal parties have benefited from donations by Huang to the tune of almost A$3 million since 2012.

But it’s not just foreign donations that can skew the system. If the government is serious about restoring faith in our politics and politicians, there’s much more to be done.


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


Why ban foreign donations?

The rationale for banning foreign donations is to stop the threat of foreign interests undermining Australian democracy. The concern is that foreign people or entities could exercise an unduly large influence on our politicians through generous donations.

Internationally, Australia is among the one-third of countries that allow foreign political donations. This is in contrast to comparable liberal democracies that ban foreign donations, such as the UK, US and Canada. New Zealand caps them at NZ$1,500.


Further reading: FactCheck Q&A: Is Australia one of the few countries worldwide to accept foreign political donations?


Banning foreign donations will certainly reduce the ability of foreign people and entities to influence Australian policy and decision-making. In turn, this will reduce both actual corruption and the perception of corruption in politics. Ultimately, this may improve public confidence in the Australian political system.

But is this ban too broad?

The proposed reforms follow the recommendations of a Senate committee majority that foreign citizens and entities be banned from making donations to political parties, associated entities (such as trade unions and dedicated fundraising bodies), and third parties (such as GetUp! and other campaign groups).

Labor and the Greens supported a ban on foreign political donations to political parties and their associated entities, but rejected extending it to third parties. They argued that banning foreign donations to third parties would restrict the capacity of NGOs to draw attention to their causes, and endanger robust public discourse by civil society.

There may be constitutional issues with such a broad ban on foreign political donations. For instance, banning donations to advocacy groups may be found to stifle the implied freedom of political communication protected by the Australian Constitution.


Further reading: Banning foreign political donations won’t fix all that ails our system


Advocacy groups are one step removed from being able to directly change government policies and decision-making. It may be disproportionate to ban these groups from raising funds to robustly debate controversial policies.

And will this fix the system?

If ruled constitutional, a ban will certainly reduce the impact of overseas interests on domestic policy.

But the proposed ban is both too broad and too narrow. It is too broad because it may stifle legitimate public debate by targeting activist groups. It is too narrow because it does not capture all donations that might corrupt our political system.

Foreign donations are but one element of influence in our political system. The rhetoric on donations to date has focused on the fear of foreigners – the Chinese, in this case – exercising undue influence on Australian politics.

Yet, in 2015-16, foreign donations were a paltry 2.6% of total donations to political parties. In the last seven election periods from 1998-99 to 2016, foreign donations have amounted to between 0.03% and 6.13% of all donations.

Donations from rich Australians, unions or corporations can also influence our politicians to behave in corrupt ways. There have been concerns over donations by big business influencing mining, alcohol or gambling policy. Large donations have been followed by government decision-making that benefited these industries.

Caps on political donations of, say, A$1,000 that apply to all individuals, unions and corporations would better level the playing field. New South Wales already has caps on political donations of A$5,800 per party and A$2,500 for candidates. The state also bans donations from property developers and those in the tobacco, liquor and gambling industries.

Victoria has announced that it will implement a cap on donations by individuals, unions and corporations of $4,000 over a four-year parliamentary term.


Further reading: Victoria gets serious on its political donations rules – now it’s the federal government’s turn


The ConversationThe Australian government has started to take action to reduce the pernicious influence of money on our democracy. But more needs to be done to restore faith in our political system.

Yee-Fui Ng, Lecturer, Graduate School of Business and Law, RMIT University

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

Turnbull government must find a way to rid Australia of foreign donations



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Attorney-General George Brandis (left) and Special Minister of State Scott Ryan need to work together to reform foreign donations laws.
AAP/Dan Peled

Tony Walker, La Trobe University

Let’s start at the beginning on the vexed issue of foreign donations for political parties and candidates in an environment in which globalisation is adding to challenges in combating foreign interference in electoral processes.

Back in 1918, when the Commonwealth Electoral Act was drafted, no distinction was made between donors from Australia or overseas, or (effectively) between donors who were Australian citizens, non-citizens, or organisations.

In the last year of the 1914-18 war not much thought, if any, was given to the possibility that foreign interests would interfere with the Australian electoral process, or would have an interest in doing so.

But now, in an environment in which commercial and political interests leapfrog national boundaries in ways that must have seemed a remote possibility when the 1918 Commonwealth Electoral Act was drafted, it is time to subject the act to a comprehensive revision.

The aim of this exercise should be to exclude foreign donations. Those bans should extend to organisations engaged in the political process as lobby groups for one side or the other.

It would make little sense for bans to be applied to political parties themselves without also extending such bans to unions and business lobbyists.

As much as anything, such a provision would act as a deterrent to those who might seek to utilise foreign funds improperly.

Government ministers tell you it will be difficult to frame legislation that would stop all foreign funding.

What about grey areas, they ask, such as contributions by companies whose main business is in Australia, but whose headquarters is located elsewhere?

The London-headquartered Rio Tinto is one such example.

These are difficult issues and need to be worked through. There is no simple remedy.

Of course, one option would be to make political campaigns fully publicly-funded, thus obviating the need for private fundraising. But that arrangement potentially discriminates against new entrants who may not qualify for such public funding.

The Australian model in which funding is made available on the basis of past performance has merit. But its weakness is that it advantages the major parties disproportionately.

Then there is the whole murky area of funding for organisations like the conservative Institute of Public Affairs, or groups on the left, like GetUp, which supports progressive causes.

Under present circumstances, organisations like the IPA are not obliged to disclose their sources of funding. Since they are involved in the political process, these lobby groups should be required to open their books.

In the United States, funding for similar organisations is transparent, for the very good reason that just as sunlight is the best disinfectant so is transparency in ascertaining what might motivate groups to adopt certain positions.

The IPA, for example, opposed plain packaging for tobacco products on what it insisted were libertarian grounds. It would have been useful, however, to be apprised of whether the tobacco industry contributes funds to that organisation.

Lobby groups should be obliged to place sources of funding on the public register, especially since many of these organisations derive tax benefits from their status as not-for-profit organisations.

The whole question of “money talks” politics has come into focus in the past week or so with revelations in a Fairfax Media/ABC investigation of money being splashed around political parties by Chinese-born billionaires, one of whom is not an Australian citizen.

Clearly, the aim of these contributions has been to influence Australian politicians in a way that would make them more sympathetic to China’s aspirations.

Indeed, in one case, funding that had been promised to Labor was withheld after one of its spokesmen advanced a point of view contrary to China’s interests.

This was a clear example of money being used – or the threat of funds being withheld – for political purposes. It should be regarded as distasteful, and, potentially intimidatory.

If there is a rule of thumb in politics, it is that money does not bring purity, rather the reverse.

Special Minister of State Scott Ryan, who has responsibility for an overhaul of the Commonwealth Electoral Act as it relates to political donations, acknowledges that grey areas exist that will be difficult to legislate.

In framing the required legislation, Ryan might refer to the Political Finance Database of the International Institute for Democracy and Electoral Assistance, an intergovernmental organisation that supports sustainable democracy worldwide.

The IDEA has a formula that would be helpful in establishing exactly what constitutes a “foreign interest”.

It defines such interests as entities that:

contribute directly or indirectly [and who are] governments, corporations, organisations or individuals who are not citizens; that do not reside in the country or have a large share of foreign ownership.

In the case of the latter provision, framing regulations to stop foreign donations would present challenges. Rio Tinto is just one example of companies with large stakes in Australia, but domiciled overseas.

Perhaps the most compelling argument for an Australian ban on political donations is that, apart from New Zealand, Australia is the only English-speaking democracy to permit such donations.

In New Zealand, overseas donations are capped at $NZ1,500.

In Australia no such cap applies.

However, donations to parties and candidates above $13,200 require the name and address of donor to be supplied. This information must be made available at the end of each financial year.

One reform Ryan might consider is to oblige disclosure more quickly. In last year’s federal election, Prime Minister Malcolm Turnbull made a very significant personal financial contribution to the Liberal Party campaign. But under law, this donation did not need to be disclosed in a timely manner.

Turnbull did reveal his contribution – after the election and only under media pressure.

In the case of that contribution it could be argued that wealth in Turnbull’s case enabled him to fund a campaign that gave him an advantage over his opponents.

On the other hand, the conservative side of politics would say that Labor has an inbuilt funding advantage because it can rely on the support of the union movement.

In recent years, several attempts have been made to clean up what is clearly an unsatisfactory state of affairs.

In 2010, the Labor government introduced the Commonwealth Electoral Amendment (Political Donations and Other Measures Bill) that would have banned donations of “foreign property”.

The bill passed the House of Representatives, but was not proceeded with in the Senate and lapsed at the end of the 43rd parliament.

Labor and the Coalition toyed with the introduction of a donation and disclosure reform bill in 2013, but nothing came of these efforts.

In this latest 45th parliament the Greens have restored their own Commonwealth Electoral Amendment Bill that bans donations of foreign property. This version lapsed at the dissolution of the 44th Parliament.

Now is the time for this whole issue to be re-visited.

The ConversationRyan, in conjunction with Attorney-General George Brandis, needs to come up with a bill that seeks to forestall the possibility of candidates and parties being bought and sold in a monied environment that is infinitely more susceptible to influence peddling by foreign interests than it was a century ago.

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

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

Turnbull talks tough on foreign workers – deer farmers and historians off welcome list


Michelle Grattan, University of Canberra

Whatever the arguments for the changes governing foreign skilled workers announced by Malcolm Turnbull, make no mistake – this is about an embattled government wanting to send a strong political message. The Conversation

One clue was Turnbull’s reference to placing first not just Australian jobs, but “Australian values”. He made mention of “Australian values” both in his Facebook video and his news conference, when announcing the replacement of the 457 visa.

In this context, “Australian values” is itself a value-laden term.

For Turnbull, it was something of a rhetorical juggle, as he acknowledged Australia as an “immigration nation” and noted the many workers “from war-shattered Europe” who helped build the Snowy scheme, while declaring Australian jobs must be filled by Australians wherever possible.

The government has been under pressure over foreign workers from left and right – from Labor (Bill Shorten introduced a private member’s bill to tighten the 457 scheme), as well as from One Nation.

Pauline Hanson was – of course – quick to claim credit for Turnbull’s move.

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A few years ago another federal government on the defensive went to a like place. In 2013, Julia Gillard pledged to “stop foreign workers being put at the front of the queue with Australian workers at the back”.

Labor sources at the time said she was tapping into what they described as the “economic patriotism” embedded in the “battler” view of the world; Labor research had found a strong view among voters that there were available jobs Australians couldn’t get. Attitudes are unlikely to have changed, and the Turnbull government knows it.

For the record, in response to Gillard then-opposition leader Tony Abbott defended the 457 entrants and accused her of “trying to divide Australians”.

It’s unclear precisely how much difference the Turnbull government’s change – cast to sound dramatic but seen by some as mainly a rebadging – will make.

It is scrapping the 457 visa, under which foreign workers are brought in on four-year visas. It will be replaced by a new Temporary Skill Shortage Visa program with two streams. One will provide a two-year visa; the other, a visa for up to four years.

The list of requirements will include applicants having at least two years work experience in their skilled occupation; mandatory criminal history checks; and the capacity for just one on-shore renewal under the short-term stream. The short-term stream won’t provide a path to permanent residency. There will be tightened English language requirements for the medium-term stream.

The government has given no estimate of the expected outcome of the change.

Turnbull said that at present there were about 95,000 457 visa holders. But he could not quantify the likely impact of the new system beyond saying: “Because we are narrowing significantly the number of occupations and we are increasing the qualifications that visa applicants need to have, it is our expectation that all other things being equal you will see a material reduction over time of people working on these temporary visas.”

But “it depends upon all other things being equal … which they are not. It depends on the demands of the economy, emerging skill gaps, changes in the economy.”

It’s worth remembering that 457 visa workers are less than 1% of the workforce.

The present list of 651 eligible occupations has been cut by 216, to 435. Some 268 occupations will be available under the new two-year visa, and only 167 will be eligible for the four-year visa.

The occupations chopped range widely, including jobs as diverse as deer farmer, project builder, betting agency manager, chemical engineer, horse trainer, singer, antique dealer, and bed and breakfast operator.

It’s not clear precisely how judgements were made on some of them, such as commissioned police officer, policy analyst, television presenter, and archivist.

Some of the deletions – such as “historian” and “archaeologist” – are hardly jobs to which an “Australians first” rule should apply. Nor will their exclusion from the list have much impact on the Aussie labour market.

Then again, much of this is definitional. Quite a lot of the deleted occupations could be re-classified to come within the revised lists.

Indeed, Jenny Lambert, from the Australian Chamber of Commerce and Industry, pointed out that the 457s were “rarely if ever” applied to many of the deleted occupations. She suggested that the problem with 457s has been one of public perception rather than the scheme’s operation. “The perception of the program is the biggest issue and we need to reset it,” she told Sky.

The Australian Industry Group’s Innes Willox said that “the 457 visa system was a highly valued program but misunderstandings of its use and exaggerations of its misuse led it to become a lightning rod for anti-migration sentiments”.

Supporting the reforms, Willox said: “The temporary skilled visa program should now be considered as settled without the need for further reviews and disruptive policy change”.

In other words, business’ main preoccupation is that the importation of foreign skilled workers should be taken off the political football field.

That may be wishful thinking. Meanwhile, eyes will be on whether the government puts any squeeze in the budget on the general immigration program, which has been coming under attack from some critics in a housing affordability debate that’s run increasingly out of the government’s control.

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https://www.podbean.com/media/player/ffwdg-69b163?from=yiiadmin

Michelle Grattan, Professorial Fellow, University of Canberra

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