Following the controversy over Sam Dastyari and the Chinese donor, the government claimed foreigners were a threat to Australia’s democracy and introduced a bill to require the registration of anyone acting as an agent for a foreign interest. The aim, it said, was to provide the public and government with transparency with respect to the nature, level and extent of foreign influence on Australia's government and political process.
The bill required registrants to disclose information about the nature of their relationship with a foreign principal and activities undertaken pursuant to that relationship, with additional disclosure requirements during elections. It also provided the Departmental Secretary with powers to obtain information and documents, with harsh penalties for non-compliance.
The bill was introduced into the House of Representatives on 7 December 2017. It was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS), which reported on 25 June 2018, recommending significant changes. The following day the bill was debated and passed in the House, incorporating amendments based on the report. It was introduced into the Senate on 27 June, passed on 28 June, and became law on 29 June.
In my five years in the Senate only national security legislation was rushed like that, always with the government arguing that something bad would happen unless it passed quickly. In this case, it suggested foreigners would influence the four by-elections scheduled for 28 July.
Rather than argue the urgency was unjustified or oppose the bill, Labor negotiated changes within the PJCIS and then voted in favour. That left the Greens and me as the only opposition.
Being socialists, the Greens are at the opposite end of the political spectrum from me on most issues. However, on national security bills, we were regularly on the same side. Every national security bill has eroded fundamental rights with no evidence that security is improved.
I spoke and voted against the foreign influence bill, noting that it was vague, unnecessary and dangerous. I pointed out that it included provisions that were not defined, such as ‘supervised’ and ‘covert’. I asked, is a Catholic priest supervised by the Vatican, a foreign power? Would WhatsApp be considered covert, since it is encrypted? Would opposition to Australia's foreign aid to Palestinian territories, which assists Hamas, be captured?
During the committee stage, when the Minister is questioned, it became painfully obvious that no-one had a clue. Nobody had had access to the bill for more than 24 hours; in fact, we’d barely had time to read it, let alone understand its subtleties.
The bill passed, the by-elections came and went without the registration scheme even commencing, and Labor complained that some of the PJCIS recommendations had been ignored, so further amendments were made in April 2019.
There are now 194 entries in the “Transparency Register”, the bulk of them trivial to the point of absurdity. Not surprisingly, no foreign influence of concern has been identified. If the Russians or Chinese are secretly exerting influence, it’s not likely they would register anyway.
However, the bureaucrat in charge of the scheme has written to Andrew Cooper, organiser of this year’s CPAC (Conservative Political Action Conference) in Melbourne (and also President of the Liberal Democrats) along with former PM Tony Abbott, who was a speaker at the conference, demanding they either register or provide documents to prove they are not liable to do so, with the threat of prosecution if they fail to comply.
There is so much that is wrong about this. In effect, Abbott and Cooper have been told they must prove their innocence. Even if the law says they must register, which is doubtful, there is no public interest in requiring them to do so. Threats of prosecution and prison are senseless; the law was designed to expose improper foreign influence, not a conference involving guest speakers from other countries. And why has a conservative conference been targeted when it was Chinese influence that prompted the legislation?
If this makes it to court, any sensible judge will throw it out. But that won’t change the fact that bureaucrats have been given the discretion to chip away at our freedom using powers granted by ill-considered laws rushed through parliament.
There will always be bureaucrats with no respect for freedom, which is why it is particularly important that parliament limits their scope to do harm.
David Leyonhjelm is a former senator for the Liberal Democrats