Commentary | 09 February 2018

Democracy harmed by catch-all foreign influence laws

Originally published in Australian Financial Review. 

Originally published in Australian Financial Review. 

In the alphabet soup that is the world of government acronyms – especially with the names of national security agencies – "IGIS" is one most Australians won't recognise but really should pay more attention to.

Otherwise known as the Inspector-General of Intelligence and Security, IGIS ranks as the most powerful agency in Australia's web of intelligence.

Not that IGIS actually does any spying of its own. This small outfit, tucked inside the Prime Minister's portfolio, is the watchdog charged with monitoring the spooks and intelligence analysts who deal with Australia's secrets. The office is led by Margaret Stone, a former federal court judge, with a role similar to a permanent Royal Commission to investigate wrongdoing in the intelligence community.

So when Stone warned the Turnbull government about "ambiguity" in the design of the proposed counter-espionage laws – as she did last month – alarm bells should be ringing.

IGIS is armed with extraordinary powers to examine any issue related to the intelligence agencies, to demand secret documents, enter a secure site and compel evidence under oath. But in evidence to parliament, Stone warned the legislation as presently drafted could seriously impede her ability to do her job.

The concern is inadvertently exposing officials from her office to prosecution, for dealing with top-secret material broadly defined in the new laws as "inherently harmful information". Any whistleblowers who go to IGIS with complaints could also be exposed to criminal charges.

Unusual alliance

IGIS is far from alone. Plenty of voices have been raised in recent weeks about the dangers in the proposed legislation, the loudest from the collected media organisations. An unusual alliance stretching from the ABC to News Corporation is united in worry the laws will make reporting national security matters more difficult.

The fears are real. Maybe the recent bizarre leak of cabinet files to the ABC would never have come to light under new laws, and maybe the reporters could have faced prosecution, simply for handling the documents. But the potential effect on journalism is only part of the story. It may not even be the most troublesome aspect.

The government has also proposed sweeping laws to tackle foreign influence, with China seen as the principal culprit. But the ambiguous wording of the draft legislation threatens a backlash that might derail the bill.

The charity sector, especially, fears the changes will radically alter the definition of "political acts".

Charities have long been free in Australia to pursue issue-based campaigns without onerous and expensive reporting needs. Prolegis Lawyers, a firm that specialises in legal advice to charities, have issued a warning that all this is about to change, with the potential for individuals to face a lengthy stint in jail for missing financial reporting obligations.

The new law would define a "political purpose" far more broadly – a "public expression by any means of views on an issue that is, or is likely to be, before electors in an election". Which captures practically anything.

The impact could be felt by companies and other organisations, too. The intention may have been to target the Chinese Communist Party, but in practice otherwise innocuous bodies such as the German-Australian Chamber of Industry and Commerce could be tied in red tape.

Some problems will be fixed by amendments. The government has already made a concession to media organisations that there will be no crackdown on reporting and will adjust the definition for public servants around "conduct that would cause harm to Australia's interests".

But a fundamental problem remains. In a rush to introduce new laws against foreign interference, the unintended consequence could be harm in Australia's own democratic system.

More explanation

Questions should go further. It would be fanciful to expect passing a law will suddenly put a stop to foreign espionage. All countries operate in the shadows, and laws in other countries didn't stop Australia's eavesdropping on the phone of the Indonesian president or Russia seeking to meddle in the US election.

So what in these laws is required that doesn't already exist in legislation? This is where the government could do more to explain and justify the specific need for change. This is difficult in a charged political environment of claim and counterclaim about China's intentions.

The debate should not be left to private experts to speculate or make the case for change. After the US election, America's intelligence agencies released an unclassified yet still detailed report into how Russia's meddling could be detected. Donald Trump might tweet scorn at the "witch hunt" investigations into Russian collusion with his campaign, but at least the public had the chance to judge the agencies' conclusions for themselves.

What Australians have so far is alarming but ultimately vague warnings from ASIO about "unprecedented" threats, with few details. In a democracy, more explanation should be demanded before freedoms are surrendered.