Rupert Murdoch and NewsCorp are currently campaigning to have the ABC neutered. Murdoch is a foreigner, as NewsCorp would seem to be. Australians and others are allegedly doing Murdoch’s bidding, with the intention to “influence a political or governmental process”; or “to influence the exercise … of an Australian democratic or political right or duty”.
The campaign is not fully transparent. Accordingly, it satisfies the last requirement to make out the crime of Foreign Interference: that is satisfied if “any part of the conduct is covert or involves deception”; or if the accused “fails to disclose to the target” that the person is “acting on behalf of, or in collaboration with, a foreign principal”. The Foreign Interference law is more a political stunt than a piece of sober legislation. Its language is designed to resonate with shock-jocks rather than with judges. The judges will be surprised to see so many undefined terms and novel expressions in a law which threatens imprisonment for 20 years.
Unusually, the website of Peter Dutton’s Home Affairs Department is more reasonable and sensible on the subject than what is in the statute book. Unfortunately, at least in this case, the law trumps the web. The Home Affairs website says that foreign influence is fine, but Foreign Interference is verboten:
“All governments, including Australia’s, try to influence discussions on issues of importance. When conducted in an open and transparent manner it is foreign influence. These actions contribute positively to public debate and are a welcome part of international engagement.”
That sounds reasonable. But when you turn to the Act, in fact it says something very different. The Act uses the language of “foreign influence” not interference, and prohibits it. The Act prohibits steps taken on behalf of a “foreign principal” to “influence a political or governmental process”; or “to influence the exercise … of an Australian democratic or political right or duty”. Those expressions are not defined, and are novel in Australian law. What will the courts interpret them to mean?
The Act also uses the expression foreign principals. It is not clearly defined but essentially seems to mean any non-Australian person or entity. There is real political cunning behind the drafting: Although the Act doesn’t say so, it follows from use of “principal” that the criminal is an agent – an Agent of Foreign Interference – very sinister sounding, just as “foreigner” is.
The Act also uses the politically loaded expression “collaboration”. No other Australian Acts of Parliament use that word in that way. “Collaboration” is redolent of quislings, fifth columnists, traitors and other scum of the earth.
Clearly this new offence and the scaremongering around it are directed at China. It is part of the Government’s ill-conceived strategy to make China the great bogeyman – just as communism and subversion were for many decades, until Bob Hawke laughed that enduring scare away just before he was elected Prime Minister. His predecessor, Malcolm Fraser warned that, if a Labor government were elected, “people would be better off keeping their money under the bed.” Hawke responded: “But you can’t put your money under the bed … that’s where the commies are.” The communist threat was exorcised.
The truth is that the Foreign Interference law is drafted so broadly that hundreds of thousands of ordinary Australians have broken it since it was passed two years ago, and continue to do so daily by doing such things as signing petitions on Change.org, which is a US entity.
The alleged Foreign Interference crime which has hit the international headlines involves a staffer to a previously little known, backbench, opposition, upper house State MP of Lebanese birth with an unpronounceable name, using his influence to align NSW with the wishes of Xi Jinping. A bit like an ant demolishing the Warragamba Dam. Please let Senator Joe McCarthy know that his seat is still warm.
Meanwhile, the Minister for Defence assures us that leasing the Port of Darwin to China for 99 years is nothing to worry about.
GetUp reports that Rupert Murdoch and NewsCorp are currently campaigning to have the ABC neutered. Murdoch is a foreigner, as NewsCorp would seem to be. Australians and others are allegedly doing Murdoch’s bidding, with the intention to “influence a political or governmental process”; or “to influence the exercise … of an Australian democratic or political right or duty”. The campaign is not fully transparent. Accordingly, it satisfies the last requirement to make out the crime of Foreign Interference: that is satisfied if “any part of the conduct is covert or involves deception”; or if the accused “fails to disclose to the target” that the person is “acting on behalf of, or in collaboration with, a foreign principal”.
I’m sure that ASIO and the AFP will be right onto it.
I wonder how, in the meantime, the AFP is getting on with its investigations against Dyson Heydon.
Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier’s Award (2018) and Law Institute of Victoria’s President’s Award for pro bono work (2005).
Comments
15 responses to “The Foreign Interference law is more a political stunt. But what about Rupert Murdoch’s foreign interference?”
Are the Australian, the Daily Telegraph etc foreign owned and there foreign agents or principles?
Would be of interest to compare with other nations which those which have similar ‘foreign interference laws’?
These mostly consist of authoritarian regimes or illiberal democracies which dog whistle all things foreign and then use against their own compatriots or nationals with whom they disagree with, or need to shut down; protects the underlying narratives and attitudes for those in power, like Russia, Turkey, Hungary , Philipines, PRC etc.
https://probonoaustralia.com.au/news/2018/03/australias-foreign-interference-laws-compare-draconian-states/
When those elites in power e.g. the LNP, IPA, NewsCorp etc. bleat about rights, liberties and freedoms, it’s not about the same rights for society, but to have their own way.
Surely the News Corp / Murdoch campaign against Victorian Premier Dan Andrews also counts as foreign interference to influence a political or governmental process?
If Google were smart, they’d support the Greens move for the ABC to get a split of the advertising revenue that’s to be diverted to News Corp and a couple of other media organisations Morrison had to include as cover for his latest legislative brain fart. If Murdoch has to choose between his values and his interests, his value of hating the ABC will outweigh his greed / interest in cutting in the ABC on the pie. Which may kill the legislation if the Senate sees it for the farce the legislation is.
Further to Felix class action comment, is it possible that a new government could use this legislation to close down &/or force the restructure and breakup of media groups as part of general cleanup of the Australian media sector? A braver opposition could mount a strong and resonant argument that the entirely predictable behaviour of our post-deregulation duopoly and the defunding of the national broadcaster carries multiple risks for Australia; national security, anti-competitive, coercive behaviour, threats to civil liberties and foreign entities acting against the democratic will of Australian society being just some.
Foreign interference or foreign influence on behalf of a “foreign principal” breaches the Act. According to this article, one gets the impression that “foreign priniipals” can be split into two categories “hostile” foreign principals or “benevolent” foreign principals where combination of foreign interference or influence with a hostile principals breaches the Act whereas the benevolent (friendly country) does not. In simple language, hostile means bogeyman countries and benevolent means allies or friends. It would be easier if the Act would simply name the country so there is no anomalies or bias involved. Immigrants from bogeyman countries would certainly feel weary (or wary) or fearful, and wondered about free speech and democractic rights in Australia, a beacon that attracted them to settle here in the first place. The fear among Immigrants from bogeyman countries is real as in the old country and to survive this fear, they use the old ways – say nothing!
I have somewhere read and believe that Australia should treat other countries not as friends or enemies but each as subjects of negotiation where each country is expressing its own interest.
It seems that many insecure or afraid think we should regard the Americans as friends but its obvious that they are not benevolent (even within their own country).
Given that News Corporation manifestly ARE endeavoring to influence government policy – screamingly so with editorial and opinion pieces in White Right Daily (marketed deceptively as ‘The Australian’) and the Daily Tantrum in Sydney and The Hun in Melbourne – then I cannot see how Murdoch is not flagrantly and uncountably repeatedly in breach of this legislation.
When someone organises a class action against Murdoch under this law, could you please publicise it here so we can all chip in every penny we can muster to finally bring this international criminal to at least some modest justice.
I’ll chip in.
It is about time the Morrison government and Coalition governments before them stopped propping up the Newscorpse media, which is essentially bankrupt. If it wasn’t for government handouts, it would have gone broke years ago.
https://www.theguardian.com/media/2014/feb/17/rupert-murdoch-receives-882m-tax-rebate
The rent seeking Newscorpse has been kept afloat by successive Coalition governments because Newscorpse always says nice things about them and abuses and vilifies Labor (witness the latest “Dictator Dan” pile on), to the extent that it has become the advertising arm of the Liberal and National parties in Australia.
The Morrison government should start funding the Australian Broadcasting Commission properly so that it can properly fulfil its responsibilities under the 1983 Australian Broadcasting Corporation Act and the 2103 Performance and Accountability Act (the PGPA Act) that requires it to be subject to public governance.
Instead, the Morrison government will continue to starve the ABC of funds until it becomes unable to fulfill its regulatory requirements under the Act, thus giving Morrison an excuse to kill the ABC off, and that will be the end of apolitical public broadcasting in Australia, and allow Murdoch free reign to spread their poison.
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The most dangerous secret agent of foreign influence is ASIO. It is the agent of monopolists in the USA who are bent on decimating Australia’s trade because most of it is with a country which they cannot govern.
yes, agreed !
ASPI seems to be an intermediary paid to emphasize and reinforce messages of the foreign monopolists and agencies
Successive government failed curtailing the cancerous reach of Murdoch media in fact, the current government adds by awarding it corporate welfare.
Agreed, Kevin07 piked out on the opportunity to rein in the mainstream commercial media when he had the chance.
A significant failure on that government’s part.
It is not as if he was rewarded by failing to take the opportunity.