The Australian parliament is about to make a huge mistake with the imminent passage of so-called foreign interference laws. These laws will have four bad effects.
First, they will revive anti-Chinese suspicion — indeed, racism — of a kind initially institutionalised in the nation’s Constitution in 1901 (section 25 originally was directed to Chinese being excluded by states from voting), which did not dissipate until the abandonment of the White Australia policy under prime ministers Harold Holt and, finally, Gough Whitlam.
These laws return us to a “reds under the bed” paranoia that will make it perilous, if not impossible, for any Australian of Chinese descent to hold political office without vulnerability to the slur of being a Manchurian candidate.
Second, the laws will allow the government of the day to use its access to information from the nation’s intelligence services to plant accusations or innuendo that discredit Australian citizens, whether Chinese-Australian or not, and whether businesspeople or politicians, on the basis that they may be engaged in some form of foreign interference. We are seeing this already with people alleged to have been “targeted” and “cultivated” by Chinese government operatives, even without their knowledge. Media outlets report intelligence leaks with only vague allegations from undisclosed sources, with no explanation as to how the media was provided the information by government. The laws will enable nefarious political use of security and intelligence apparatus: governments misusing the privileges and responsibilities of office to discredit their opponents, directly or by association.
Third, it will impose an incalculable cost on transacting business internationally, particularly with China but also throughout the world. The regulatory regimes that will govern the behaviour of businesspeople and organisations will come at a huge cost, and the potential for controversy and reputational damage under the new ill-conceived regulation will deter and constrain enterprise. The exceptions will become the rule. These laws will create illegal activity where before them the activity would have been perfectly legal business intercourse in a global economy.
Fourth, the laws will cast a pall over the country as a paranoid, xenophobic nation at the bottom of East Asia, wanting to have our cake and eat it too. We want trade with the soon-to-be largest economy in the world but we also want to revive and give official vent to an irrational Sinophobia whenever it suits our domestic politics.
On June 27, The Sydney Morning Herald published an article titled “This sitting MP has been cultivated by Chinese intelligence”, concerning Ernest Wong, a Labor member of the NSW upper house. The article claims: “It is understood Australian agencies have evidence of direct dealings between suspected Chinese government intelligence agents and Mr Wong.” Understood from whom? It goes on: “Well-placed sources say Mr Wong was likely targeted because he is able to open doors to more influential Labor Party politicians.” Would these well-placed sources be government sources by any chance?
Astoundingly the article clarifies: “However, there is no suggestion that Mr Wong has ever acted inappropriately or wittingly passed any information on.” It adds: “There is also no suggestion that Mr Wong … ever knew he was being cultivated or targeted by Beijing’s agents, although sources aware of sensitive information gathered by national security agencies said he appeared to be the target of a long-term operation.”
So why is this even a story? Simply on the basis that he has been “cultivated” without his knowledge, the impugned Wong — who the Herald informs us is a “former karaoke singer and local councillor” — ends up getting the cold shoulder from the Labor Party and being disendorsed.
There are more than 1.2 million Chinese-Australians, 500,000 born in mainland China. By numbers alone they should rightly hold up to 10 federal parliamentary seats and dozens of state seats. But which Chinese-Australian is going to put their hand up for elected office now that the kind of allegation made against Wong can result in controversy, making them too hot to handle?
We are entering the territory of Salem, Massachusetts, of Arthur Miller’s The Crucible, with Attorney-General Christian Porter as Judge Danforth. Indeed this will be the new McCarthyism, with Liberal backbencher Andrew Hastie as senator Joe. Anyone doing yum cha with Chinese down the wrong end of Sydney’s Sussex Street soon will come under suspicion.
The case for the Turnbull government’s laws is completely confected. Porter, other ministers and Hastie have made lurid claims. The threats are unclear and undefined, yet Labor presumably can’t afford to be seen resisting national security measures, no matter how spurious they may be, so it has unfortunately capitulated.
These laws will have detrimental consequences for Australian civil liberties. And the government’s scheme won’t even achieve its ostensible aims.
Malcolm Turnbull says the laws are intended to stop foreign interference in Australia and prevent foreign donations from influencing Australian politics. Prompted by the Sam Dastyari controversy, the Prime Minister has warned of “disturbing reports about Chinese influence”, while also insisting the laws are not directed at any particular country.
“Senator Dastyari sold Australia out,” Turnbull declared last December and argued this new legislative scheme was the solution to “protect our way of life” and “strengthen our democracy”.
The initiative even goes against Liberal Party values. On a strict Liberal view, the law should not inhibit the free market in political ideas and influence: domestic and international sources should compete unreservedly in the marketplace of ideas.
Ideas are all about influence. You can’t be open to new ideas yet be afraid of influence, domestic or international. Innovation and progress require open exchange. The attempted regulation of cross-border political influence does not fit in an era of globalisation, when restraints on finance, trade and communications have already evaporated.
In a free world, nations and players within nations will influence each other. How could human rights and other freedom causes across the world (not least in respect of East Timor and West Papua within our own region) be advanced without porous borders and transnational influence?
Democracy will always trump totalitarianism in democratic countries such as ours. Only totalitarian regimes need fear unfettered borders because influence runs only one way: from democracies to repressive regimes.
Improper influence running the other way is best countered by the tried and true mechanisms of democracy: exposure, questioning, debate and criticism.
The political process and robust journalistic scrutiny were sufficient to see Dastyari’s behaviour politically sanctioned. That Australia needs greater legal regulation is not shown. Indeed, the Dastyari case tells us existing democratic processes work and there is no justification for their curtailment.
If there is a case for stronger transparency and increased regulation of foreign donations and interference, the proposed laws do not provide the solution.
Foreign donors still will be able to make donations through permanent residents or foreign-owned companies incorporated in Australia.
According to constitutional law expert Anne Twomey — whose submission on the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 forensically deciphers the incomprehensible bill and methodically exposes how ineffective it is in achieving its aims — the only way to limit foreign donations is to impose a cap on all donations, as was implemented in NSW.
Yet the government chose not to take this option, presumably because it wants to cap some donations and not others.
The Attorney-General has conceded journalists should be exempt from the new laws, but what about others? What is the difference between journalists and other citizens and organisations in a democracy?
This is reckless lawmaking for purely electoral gain. The government is pursuing the kind of unprincipled politics that confects problems and legislates pretend solutions.
University of NSW dean of law George Williams recently explained in this newspaper how bipartisanship works in the promulgation of security laws that diminish Australian liberties. Labor can’t be seen to be an impediment to national security.
But in reflexively assuming laws can solve every problem, too often parliaments create or compound problems with the disease of new layers of regulation.
Governments incite fears and conjure peril where none exists, and where they do exist the proposed solutions won’t actually work. National security is the favourite method of creating fear and garnering electoral support for governments.
Espionage and treason are already crimes. Bribery and corruption are already proscribed. Electoral laws can be sensibly fixed to regulate all donations, including foreign donations.
But the essential principle is this: no person, whether elected politician or not, should have to disclose whatever conversation, meeting, conference, dialogue, telephone call or correspondence they have had with any other individual or government, domestically or abroad. This is a liberal freedom, subject only to the obligations of public officials and the executive government to observe freedom of information and laws relating to confidentiality and official secrets.
Where are conservatives and the Institute of Public Affairs in relation to the principles that are at stake here? They support the trashing of these liberties because they think the security threats are real or they stay silent.
The real problem being solved is not foreign influence and national security: it is electoral. The whole thing is a reprise of “reds under the beds” Get Smart intrigue, tangling ourselves in regulations to counter omnipresent and ephemeral threats.
The charade is not without costs. The entanglements caused by these unnecessary laws will stay on the statute books and plague our future long after their political use expires.
The greatest threat to Australia’s democratic freedom does not come from foreign sources. It comes from within.
Franklin D. Roosevelt said at a time of real crisis that the “only thing we have to fear is fear itself”. That governments in times of peace and prosperity incite fear where none is justified tells us how low our politics have sunk.