The Foreign Influence Transparency Scheme Act 2018 (FITS) was meant to expose dangerous foreign influences well-known to our security agencies. In 2018, the federal Attorney-General Christian Porter stated that this new Act would “safeguard the nation’s democracy”. “FITS will provide visibility of the forms and sources of foreign influence in Australia’s governmental and political processes,” he said.
This law was therefore supposed to protect us from foreign undemocratic regimes attempting to influence our citizens. However, when a conservative group held a conference to discuss individual rights and freedoms in conjunction with a group from our greatest ally, the United States, eight senior bureaucrats working at the Attorney-General’s Department decided to use the poorly drafted legislation against the person who co-hosted this conference. Apparently these bureaucrats believe that an international conference about fundamental rights poses a great threat to Australia!
This essay appears in May’s Quadrant.
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Former Prime Minister Tony Abbott became one of the first people targeted under the draconian legislation. He was requested to register as an “agent of foreign influence” under such national security laws, for simply addressing the Conservative Political Action Conference (CPAC) in August last year. Mr Abbott has served the country’s best interests over his entire working career but is now being hounded by faceless bureaucrats in Canberra, and all courtesy of the Morrison government.
Andrew Cooper, the event’s main organiser, was also requested to register as an agent of foreign influence under such legislation. He is the founder of Liberty Works, “an Australian based not-for-profit organisation that advocates for a drastic reduction in government control over people’s economic and personal lives. [They] celebrate liberty where it exists and fight the erosion of liberty when it’s under threat.”
It looks like a desperately needed organisation, and certainly not a threat to our national security but rather to the security of governments with authoritarian inclinations. However, because Liberty Works has co-hosted a CPAC conference with the American Conservative Union (ACU), Mr Cooper was ordered by the Attorney-General’s Department to hand over documents and threatened with imprisonment if he failed to do so.
CPAC is hosted by the ACU and it can be described as a Centre-Right annual conference attended by conservative and libertarian activists and elected officials from across the United States and beyond. It has been a significant annual event since 1974, when the first CPAC was held with Ronald Reagan as the inaugural keynote speaker.
Australia’s first CPAC was held in August 2019, with guest speakers including Tony Abbott, Brexit campaign leader Nigel Farage, former Breitbart editor-in-chief Raheem Kassam, Liberal Senator Amanda Stoker, and New South Wales One Nation leader Mark Latham.
Despite these mainstream speakers, Labor’s home affairs spokeswoman, Kristina Keneally, warned of an “alt-right takeover” and “rising white supremacism” in Australia. It was clearly a ridiculous comment, although typical of those left-wing politicians who have no regard for free speech and are intolerant of people holding conservative values.
Bizarrely, official letters were sent to Cooper and Abbott within days of Keneally’s demented comment, making it hard for the Attorney-General’s Department to dissociate itself from such a display of leftist bias. Indeed, Ms Keneally herself has stated that the FITS laws have been properly implemented and precisely as the government had intended.
The letter from the Attorney-General’s Department to Mr Cooper was sent by Sarah Chidgey, the deputy secretary of the Integrity and International Group. It advised him to provide all documents “detailing any understandings or arrangement between Liberty Works and ACU”. “This is government overreach worthy of the Chinese Communist Party in Hong Kong,” Cooper said.
Speaking of the Chinese government, one should be reminded of recent initiatives undertaken by the Premier of Victoria, Daniel Andrews, at the Belt and Road Forum in Beijing in May 2019. Reportedly Andrews, after his attendance at the forum, was touting his state’s memorandum of understanding with the Chinese government as an opportunity for “more trade and more Victorian jobs and an even stronger relationship with China”. Andrews reportedly stated: “Victoria is proud of its longstanding and valued partnership with China and this new Framework Agreement helps take it to the next level. We don’t see China as our good customers, we see them as our good friends.”
A quiet investigation of Labor politicians’ relations with China and various Islamic regimes, state and non-state, is therefore required. Ms Chidgey and her colleagues in the Attorney-General’s Department do not stand for election; they use more undemocratic ways to impose their leftist interpretation of the law.
But these bureaucrats should not take all the blame. How can such a law possibly allow this kind of draconian overreach? According to Janet Albrechtsen, writing in The Australian last November, this mess started with a Coalition government that concocted, drafted and enacted laws “riddled with uncertainty about who must register, who is a foreign government, the meaning of an ‘arrangement’, and the intended scope of the nexus between a foreign principle and the person acting on their behalf are too vague, and hence potentially far-reaching”.
When a law can so arbitrarily be used to target even a former prime minister for daring to speak at a conservative conference that includes foreigners, it is not so hard to imagine that this is a bad law that can be easily used by overzealous bureaucrats in pursuit of everyone who dares to engage in such political conversations. This is obviously a violation of our constitutionally implied freedom of political communication. According to Anne Twomey, an author and constitutional law professor at Sydney Law School, the enforcement of such legislation “could force thousands of people, including authors, academics and publishers, to register as agents of other countries”.
This is lawfare of the worst kind, and the process is the punishment. But it is not the bureaucrats responsible for the application of laws, but rather the elected government that introduced and passed them, which bears the primary responsibility for the problem. The federal government needs to admit its shortcomings. Such a “conservative” government should assume that poorly drafted laws could be easily weaponised by hostile civil servants, who are simply using the tools the government of the day has made available to them against their preferred political targets. As Albrechtsen points out:
the upshot is that a Liberal-led government enacted laws that can be used to deliver patently illiberal outcomes. It has invited the likes of Kristina Keneally to say, with all the seriousness of a clown, that these laws are working just fine. Even worse, if that is possible, precedents such as these ensure that Labor will have a field day eroding freedoms when it is next in government.
An internal document from the Attorney-General’s Department, obtained by the Institute of Public Affairs, reveals that Labor’s legal affairs spokesman, Mark Dreyfus, “specifically raised the upcoming Conservative Political Action Conference (CPAC) to be held in Sydney on 9-11 August 2019, as an example of an event that may trigger registration obligations under the scheme and asked what the department planned to do about it”.
Following Dreyfus’s intervention, the Attorney-General’s Department wrote to Mr Cooper, requiring him to register. He became the first person under the scheme to be ordered to hand over documents and threatened with imprisonment if he failed to do so.
Mr Cooper is certainly not mistaken to consider that “Mr Dreyfus has deliberately and methodically sought to use the state to censor the free speech of his political opponents. It is a cowardly act.” Indeed, the shadow attorney-general is a serial offender when it comes to referring his political enemies for investigation. He knows full well the reason this legislation was endorsed by Parliament following the revelations of Chinese influence in the Dastyari affair and yet chose to use it to attack his political opponents. His mindset is hardly one that we should expect of the alternative attorney-general.
It appears therefore that Labor and left-wing bureaucrats are colluding and using the legislation as an instrument of political persecution against conservatives and libertarians. However, the Morrison government was the enabler of these illiberal actions by the bureaucrats working at the Attorney-General’s Department. These laws enacted by the Morrison government are “fit for purpose” only in a totalitarian regime, not a liberal democracy. They would not be surprising under a leftist party of illiberal inclinations such as Labor, but it is a great disappointment to see a “Liberal” government implement draconian laws that potentially interfere with everyone and everything.
This episode shows also that the Coalition government has lost control over its bureaucracy, which is supposed to serve them and implement their policies. These unelected bureaucrats seem to have effective control over government policy, like the Stasi of East Germany or the KGB in the Soviet Union.
As Abbott said when he received his letter on August 8: “It’s oppressive, it’s coercive. I thought the commissars had gone when the bloody Soviet Union went out of business.” And Cooper has also rightfully stated that this government overreach makes him feel very much as if “the Stasi is holding me in 1950s East Berlin and I am being threatened with jail because I cannot provide them with information that I do not have”.
One problem is that the legislation was enacted to deter influence from Communist China but without naming the country. The law has never been applied against Chinese influence and there has actually been a dramatic rise in Chinese propaganda emanating from “Confucius Centres” at Australian schools and universities.
Why has the Department not sent a Section 45(2) notice to Australian universities that have such centres to explain why their institution is being influenced by a foreign entity, namely the Chinese Communist government? According to Michael Rubin, a resident scholar at the American Enterprise Institute and a frequent visitor to Australia:
Beijing launders donations through a network of Confucius Institutes to about a dozen Australian universities … These Chinese studies institutes may teach language but they have become centres for Chinese government intelligence and control, including monitoring and censorship of those who stray off the academic paths with which Beijing is comfortable.
The situation becomes all the more bizarre when Australian universities also have centres which are financially sponsored by Islamic regimes of the Middle East. For instance, the ANU’s “Centre for Arab and Islamic Studies” receives money donated by the United Arab Emirates, Qatar, Turkey and Iran directly or indirectly. As for the sort of “academic work” this particular centre provides, a whitewash of the terrorist group Hamas and its genocidal charter has been a standard practice there.
Just six years ago, the ANU centre for Islamic Studies proudly hosted a 9/11 conspiracy theorist who dismissed concerns about Ayatollah Khomeini’s summary executions, repression of women and general human rights abuses as “happily false”. Apparently, the university even changed the name of that centre from “Middle East and Central Asian Studies” to “Arab and Islamic Studies” after a large Emirati donation, thus accepting foreign money and influence that undermines standards of academic integrity, autonomy and freedom.
In a June 2018 article in The Australian, the Australian Jewish Association president, Dr David Adler, argued that the ANU’s acceptance of foreign funding for a Centre for Arab and Islamic Studies is inconsistent with its reasoning for abandoning plans for a course in Western civilisation. His views “echoed the sentiments of various politicians who have accused the university of double standards following the revelation that its Centre for Arab and Islamic Studies had accepted millions of dollars in donations from the United Arab Emirates and the Iranian and Turkish governments”. Dr Adler stated:
We have seen Islamic countries invest in university education around the world very substantially and we know that ANU has a program of Arabic and Islamic studies and received millions in funding from Arab and Islamic countries. There is a fundamental question that needs to be answered here: why can ANU resolve their issues of academic autonomy in some areas of study but not when it comes to Western civilisation?
Apparently, the faceless bureaucrats in the Attorney-General’s Department see no problem with Australian universities receiving foreign money and influence from communist and Islamic regimes. By targeting only conservatives and libertarians, these bureaucrats have shown their leftist bias and have used a bad law for their own political interest. However, the Attorney-General, like most of the other Coalition ministers, appear to have no control over his own department. Has the Attorney-General punished the bureaucrats responsible for such an appalling overreach?
It seems Porter has stated that the staff overseeing the scheme will be moved, which is totally inadequate. Public servants act on their minister’s authorisation, so there is no excuse for Porter not to act more firmly. However, he seems unable or unwilling to confront them and get them under control. The exercise of public discretion is conditional on the application of reasonableness and common sense. In a democracy, public servants cannot act arbitrarily, picking and choosing their own targets. The Attorney-General is the Crown official responsible for overseeing these processes, and he should know it. If Porter lacks the courage to stand up to public servants who act arbitrarily, he should step down or be forced to resign.
Giving unelected public servants so much autonomy is a recipe for disaster. Besides, nearly every legislation has a provision allowing for ministerial intervention when processes go off the rails. If this Act does not contain a section allowing for ministerial intervention, then it is poorly drafted and an open invitation to arbitrariness.
The Institute of Public Affairs has lodged a Freedom of Information request, asking for documents and correspondence between senior executive-level public servants between March and November that mention Cooper, Abbott, CPAC and ACU. More than 1300 documents relating to these names were captured from eight full-time public servants in a seven-month period, which “suggests a co-ordinated surveillance operation being run by unelected and unaccountable bureaucrats under the Attorney-General’s nose”.
According to Evan Mulholland, director of communications at the Institute of Public Affairs, “given the extent of Chinese influence reported in the media … it is unacceptable that Australian public servants in the Attorney-General’s Department have devoted such a significant amount of time and resources to targeting Australians because of their political beliefs”. Evidently if you are a “right-winger” and an advocate for individual rights and freedoms, you are now deemed to be up there with the Islamic State. I am sure none of the imams who hold conferences advocating violence against non-believers have been called to account under this legislation.
Let me be absolutely clear. This terrible legislation can be (and has been) easily used by the government to attack conservative Australians. It is almost unbelievable that a so-called “Liberal” government would viciously attack free speech in this country. But, then again, we’re talking about a government that has not amended or repealed the notorious section 18C of the Racial Discrimination Act.
There is little doubt that the low threshold set in section 18C by the inclusion of the words “offend, insult, humiliate” raises real questions as to whether such provision would be supported by the Constitution. The external affairs power appears to be the head of federal legislative power. However, legislation relying on this head of power must be capable of being reasonably “appropriate and adapted” to treaty obligations, which is definitely not the case. Section 18C goes considerably further than the obligations imposed on Australia to guard against racial hatred under international law.
If this wasn’t enough, section 18C also infringes the implied freedom of communication concerning political and governmental matters. Under the Constitution, our citizens must be able to discuss political matters, including those involving race, colour, ethnicity and nationality. Australians are a sovereign people and such communication is critical to democratic law-making, and to holding both the executive and the legislature branches of government accountable to the Australian people. In Attorney-General (SA) v Corporation of the City of Adelaide (2013), Chief Justice Robert French stated:
Freedom of speech is a long-established common law freedom … linked to the proper functioning of representative democracies and on that basis has informed the application of public interest considerations to claimed restraints upon publication of information.
These bad laws are having a detrimental impact on freedom of speech without having a corresponding positive impact in eliminating racial discrimination. For instance, university students in Queensland, after raising an issue of racial discrimination involving their eviction from a computer lab which was reserved for one particular ethnic group at the expense of all other ethnic groups, were themselves accused of racial discrimination under section 18C.
Clearly, freedom of speech remains under serious threat in Australia, despite several years of Coalition government. The Morrison government should have long ago undergone a comprehensive review of all anti-free-speech legislation, including section 18C. It should propose legislation that eliminates excesses and streamlines processes, while retaining the ability of our security services to do their job.
Furthermore, it is important to remind our Liberal members of parliament that the task of government in solving problems is not to introduce more bad legislation. The Morrison government has the moral duty not only to repeal this terrible piece of legislation, but also all the numerous other bad laws that continue to undermine free speech, including FITS. As Albrechtsen notes, “the evil nature of totalitarianism is not what happens outside the law. It happens when the law, or a veneer of legality, is used, often in the name of national security, to control what good people do, be it sharing ideas or speaking out against tyranny.”
It is time for the Attorney-General and the Prime Minister to come out of their comfort zone. Official apologies must be immediately issued to Mr Cooper and Mr Abbott, and a comprehensive review begun of the Foreign Influence Transparency Scheme Act. Continuing inaction will only indicate that this government is comfortable with the appalling situation and the damage being done to Australia’s democracy. It will haunt the Morrison government.
Above all, the improper understanding of the role of government in a free society is one of the reasons we need more organisations like CPAC, to hold government accountable and give citizens a voice. What we badly need in this country is a government that truly values fundamental rights and freedoms. The government of Scott Morrison is failing us miserably in this regard. It is time for people who truly believe in the basic rights of the individual over the state to stand up against an increasingly oppressive Australian government.
Dr Augusto Zimmermann is Professor and Head of Law at Sheridan College, Perth, and Adjunct Professor of Law at the University of Notre Dame Australia. He presented this paper at the LibertyFest Conference, Rendezvous Hotel, Perth, in March.
* LLB (Hons), LLM cum laude, PhD (Mon.), Professor and Head of Law, Sheridan College (Perth/WA); Adjunct Professor of Law, The University of Notre Dame Australia (Sydney/NSW); President, The Western Australian Legal Theory Association (WALTA); Editor-in-Chief, The Western Australian Jurist; former Law Reform Commissioner, Law Reform Commission of Western Australia (2012-2017). Paper presented at the LibertyFest Conference, Rendezvous Hotel, Perth/WA, March 13-14, 2020.
 Janet Albrechtsen, ‘Shades of Stasiland in Attorney-General’s Office’, The Australian, November 2, 2019, at https://www.theaustralian.com.au/inquirer/shades-of-stasiland-in-attorneygenerals-office/news-story/d744396439cba6ca1862fac02eedef3b
 Janet Albrechtsen, ‘Would Sir Humphrey Appleby Approve? No, Minister’, The Australian, November 6, 2019, at https://www.theaustralian.com.au/commentary/would-sir-humphrey-appleby-approve-no-minister/news-story/e04476f7108024ac1863d8e52588ce3b
 Ben Packham, ‘MPs Alarmed by Foreign Agent Call on Abbott’, The Australian, November 4, 2019, at https://www.theaustralian.com.au/nation/politics/mps-alarmed-by-foreign-agent-call-on-abbott/news-story/a17f78850c890018e329838d9b9db44f
 Janet Albrechtsen and Joe Kelly, ‘Tony Abbot Declares: I’m not an Agent of Foreign Influence’, The Australian, November 2, 2019, at https://www.theaustralian.com.au/nation/politics/tony-abbott-declares-im-not-an-agent-of-foreign-influence/news-story/da7994187fc74acd6797c3d5918b77a0
 Albrechtsen, above n.1.
 Albrechtsen and Kelly, above n.5.
 Albrechtsen, above n.2.
 Joe Kelly, ‘How Labor’s Top Lawyer Mark Dreyfus Steered Bureaucrats Against ex-PM Tony Abbott’, The Australian, January 31, 2020, at https://www.theaustralian.com.au/nation/politics/how-labors-top-lawyer-mark-dreyfus-steered-bureaucrats-against-expm-tony-abbott/news-story/fdc9cea0e0db084adaeabd2a29119830
 Albrechtsen, above n.1.
 Michael Rubin, ‘Islamic Centre Mocks ANU Claim To Academic Independence’, The Australian, June 14, 2018, at https://www.theaustralian.com.au/opinion/islamic-centre-mocks-anu-claim-to-academic-authority/news-story/648bea3cd6ce0849615d5cf015c3c7da
 Rubin, above n.3.
 Rebecca Urban, ‘ANU Has Been Islamised, Claims Jewish Lobby Group’, The Australian, June 12, 2018, at https://www.theaustralian.com.au/higher-education/anu-has-been-islamised-claims-jewish-lobby-group/news-story/e880a9050ab005df6fd1191bff10dd61
 Evan Mulholland, ‘There May Be 1300 Reasons This Law Does Not Work’, The Australian, November 29, 2019, at https://ipa.org.au/ipa-today/there-may-be-1300-reasons-this-law-does-not-work
 For a detailed constitutional analysis of Section 18C, see: Joshua Forrester, Lorraine Finlay, and A. Zimmermann, No Offence Intended: Why 18c is Wrong (Brisbane/Qld: Connor Court, 2016). This book considers whether Section 18C of the Racial Discrimination Act is constitutionally valid. It considers both the external affairs power and the implied freedom of political communication in detail, concluding that s18C in its current form would be vulnerable to a constitutional challenge. Our book concludes by putting forward a proposal for reforming s18C in a way that would be consistent with the Australian Constitution.
 Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54, 86 (Barwick CJ); Commonwealth v Tasmania (1983) 158 CLR 1, 138 (Mason J), 259–60 (Deane J); Richardson v Forestry Commission (1988) 164 CLR 261, 289 (Mason CJ and Brennan J).
 Unions NSW  HCA 58 - (French CJ, Hayne, Crennan, Kiefel and Bell JJ); ACTV  HCA 45; (1992) 177 CLR 106, 138 (Mason CJ).
 Attorney-General (SA) v Corporation of the City of Adelaide  HCA 3, 43.
 Albrechtsen, above n.1.