The Weight of a Word: ‘Covert’ and the Proportionality of Australia’s Foreign Interference Laws

1 Coercion and Non-Interference

The development of international law on foreign interference has not yielded a concise definition of the activities it encompasses. However, the decision of Military and Paramilitary Activities in and against Nicaragua (‘Nicaragua’) ²⁵ affirms the most widely accepted view that it must contain an element of coercion. ²⁶ Western nations have rejected attempts by non-Western states to secure agreements broadening the definition of foreign interference to include ‘campaigns of vilification’, ‘subversion and defamation’ and ‘hostile propaganda’. ²⁷ The International Court of Justice has stated clearly that the redline for interference is when foreign activities incorporate coercion:

A prohibited intervention must … be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. … Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. ²⁸

Yet, short of coercive behaviour or outright election interference, many questionable activities are yet to be formally regulated. ²⁹ Examples include deceptive or covert activities and contemporary efforts to influence the political affairs of states by other states evidence the efficacy of such techniques. ³⁰ Contemporary examples include China’s generous donation to the ruling party in Sierra Leone, ³¹ and efforts by the United States in 2009 to prevent the president of Afghanistan, Hamid Karzai, from being re-elected. ³² Such methods highlight the high threshold for coercion, prompting governments to revisit their definition of interference. Russia’s use of an information-based strategy against the Unites States in 2016 combined cyber-warfare, the funding of extremist groups, and the promotion of conservative ideologies through expensive social-media campaigns. ³³ Aspects of this campaign, particularly the hacking of government agencies and cyber-attacks, constituted clear contraventions of United States domestic law ³⁴ and probable violations of international law. ³⁵ However, the use of ‘information warfare’ per se, particularly those acts not meeting the threshold of hacking or cyber-warfare, are more difficult to categorise. ³⁶ This is largely because such actions are not considered a ‘use of force’, and thus do not violate art 2(4) of the United Nations Charter. ³⁷

Therefore, where such acts do not violate art 2(4), the principle of non-intervention and the threshold of coercion remain problematic in international law, presenting gaps that some governments argue may be exploited by actors seeking to interfere in the domestic politics of other nations. ³⁸ This has led scholars to look to other areas of international law to determine whether other bright lines exist between influence and interference. ³⁹ Two areas attracting scholarly attention include the law relating to a state’s right to sovereignty and the law relating to self-determination, ⁴⁰ with each attempting to expand interference to incorporate deceptive actions.

2 Deception Within International Law

The principle of state sovereignty is recognised as: ‘in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State’. ⁴¹ Schmitt posits that activities by a state which target ‘inherently governmental functions’ would therefore breach the principle of state sovereignty and he identifies certain information operations as such activities. ⁴² Thus, although overt operations such as propaganda dissemination by state media are tolerable, covert information operations cross the line into interference as they conceal the true sponsor and may therefore distort the opinions and actions of the voting electorate. ⁴³ Suggestions that information operations infringe the right to self-determination, found in art 1 of the International Covenant on Civil and Political Rights (‘ICCPR’) present a different line of argument. ⁴⁴ Ohlin posits that any attempts by actors to influence the opinions of another nation’s citizenry may be seen as violating the right to self-determination, arguing that even overt attempts are illegitimate. ⁴⁵ However, the violation results from the act of concealing one’s identity and disseminating information which appears to originate from within the polity, thus deceiving those with a right to self-determination. ⁴⁶ Therefore, the nexus is between the deceptive act and the right to self-determination of the electorate. Although state sovereignty and self-determination are only emerging as frontiers of an expanded definition of non-interference, they reflect the international community’s concerns regarding the impacts of technology and social media on interference activities. Thus, despite deception not enjoying the same widespread censure as coercion, academic and public discourse suggests it either is, or will soon be, considered interference.

3 Drawing the Line for Non-Interference

Information operations and foreign influence remain a significant grey area in the non-interference debate. Lahmann argues that ‘in the age of globalised digital media and means of communication’ the continued focus on coercion is unhelpful; however, the lack of uniformity of the ‘practice of states’ and their ‘expressions of opinio juris’ is a significant obstacle to change. ⁴⁷ He also points to the fact that states routinely attempt to influence other nations through a range of activities, presenting an impediment to the formation of norms which delineate influence from interference. ⁴⁸ ‘Covert’ operations, traditionally referring to operations which are inherently coercive or deceptive, ⁴⁹ are an example of this, often being pursued in the absence of a legal exemption to the principle of non-intervention. ⁵⁰ However, such operations must be delineated from those which, for legitimate diplomatic reasons, are shrouded in secrecy (or are ‘covert’), and do not violate international law (and are often considered acceptable). ⁵¹ Perina argues that there are a range of respectable reasons as to why a state chooses to act covertly, which are independent of the ‘legality of the underlying act’. ⁵² Put simply, conduct is not unlawful if it is otherwise lawful conduct carried out covertly, and covert conduct should be judged by the same legal standards as overt conduct. ⁵³ Thus, by the law of non-interference, it appears that covert conduct becomes objectionable when it involves coercion or deception. ⁵⁴ A benign concealed act, however, has not yet found contempt. ⁵⁵ Further, the desire for states to continue their own influence operations while being seen as promoting rights such as self-determination and state sovereignty make it difficult to draw complete conclusions on the legality of covert influence operations in international law. ⁵⁶ This underscores a significant obstacle to Australia’s CFI strategy: if we afford foreign diplomats the luxury of deliberating in secret, ⁵⁷ should we prohibit our citizenry from doing so? This question cannot be explained by international law; the covert element’s justification requires framing through an alternate model.

1 The Preventative State and Foreign Interference

The preventative state model ultimately argues that intervention by the state, and the resulting restriction of a person’s liberties, occurs before a point in time which is ‘traditionally accepted by the criminal justice system’. ⁶⁹ The implications of this, including the normalising of ‘extraordinary’ measures, blurring of the boundaries between the national and the international and the consequences to civil liberties, ⁷⁰ have clear parallels with Australia’s foreign interference legislation, not least the offence of ‘preparing for a foreign interference offence’. ⁷¹ The legislature’s reliance on ASIO’s intelligence assessments, which are unavailable to the public, is notable and demonstrates that broad legislation which seeks to counter an indeterminate threat has survived scrutiny by both the legislature and the judiciary. ⁷² Thus, the preventative state model, coupled with the development of customary international law, assists in analysing the development of national security legislation in Australia. This provides insight into the willingness of the Australian legislature to enact rights-limiting legislation for international threats which may materialise domestically and threaten ‘national security’. Further, it provides insight into the introduction of the covert element, which may be seen as a tool to illuminate coercive and deceptive behaviour by outlawing behaviours which are not internationally proscribed. Finally, the model provides a useful reference point when analysing whether the covert element is an exceptional or proportionate response to interference.

1 Notable Legislative Definition – Foreign Principal

The term ‘foreign principal’ is central to the foreign interference provisions, and covers foreign government principals, foreign political organisations, public international organisations, terrorist organisations, organisations owned (or directed or controlled) by a foreign principal, and organisations owned (or directed or controlled) by two or more foreign principals. ⁹⁵ A foreign government principal includes the government or an authority of the government of a foreign country, foreign local or regional government body. This includes entities or organisations which these governments, authorities or bodies own (or direct or control). ⁹⁶ Certain companies, bodies and associations falling within the definition of foreign public enterprise also fall within the definition. ⁹⁷ Foreign principal within the FITS Act is defined more broadly so as to ‘bring transparency to foreign influence in Australia’s political and governmental processes’. ⁹⁸ The intended breadth of the definition was explained by the Attorney-General’s Department (AGD), which stated that it would be inappropriate to ‘extend espionage offences to conduct undertaken on behalf of a foreign business or foreign individual. These offences are limited to conduct undertaken on behalf of foreign countries and a limited range of non-state actors’. ⁹⁹

Although foreign businesses and foreign individuals are not considered foreign principals, several organisations made submissions to the PJCIS stating that the definition should be further narrowed. ¹⁰⁰ ‘Foreign political organisation’, for example, may capture independent international organisations which derive their funding from abroad but remain unaligned to any single state. ¹⁰¹ However, the PJCIS retained public international organisations within the definition ¹⁰² so as not to create exploitable gaps within the legislation. ¹⁰³

2 General Offences

The general offences apply where a person engages in conduct ¹⁰⁴ on behalf of or in collaboration with a foreign principal (or directed, funded or supervised by a foreign principal), ¹⁰⁵ and the person intends that, ¹⁰⁶ or is reckless as to whether, ¹⁰⁷ their conduct will:

• Influence a political or governmental process of the Commonwealth or a State or Territory, ¹⁰⁸ or

any part of the conduct: ¹¹²

• Is covert or deceptive, ¹¹³ or

The EFI Act’s revised explanatory memorandum (‘EFI REM’) provides an example of conduct in breach of the intentional general offence which involves an Australian-based intermediary who receives payment to support the intelligence activities of a foreign principal by obtaining privileged information from Commonwealth government departments. ¹¹⁶ The intermediary forms relationships with people within these departments without full disclosure regarding the nature of the intermediary’s employment or their sponsor. The intermediary also conceals their communication with the foreign principal through encrypted messaging. ¹¹⁷ For a ‘reckless’ breach, the example in the EFI REM involves an Australian citizen who undertakes activities under the direction of a foreign intelligence agency to suppress protests against the foreign nation’s interest. ¹¹⁸ The Australian citizen, aware that voting is a fundamental democratic process, disseminates anonymous text messages and social media posts to protest organisers threatening serious harm if they continue organising.

3 Targeted Person Offences

The targeted person offences apply where a person engages in conduct ¹¹⁹ on behalf of or in collaboration with a foreign principal (or directed, funded or supervised by a foreign principal), ¹²⁰ and the person intends that, ¹²¹ or is reckless as to whether, ¹²² their conduct will influence another person (the target):

• In relation to a political or governmental process of the Commonwealth or a State or Territory, ¹²³ or

In demonstrating conduct in breach of the intentional targeted person offence, the EFI REM provides the example of an Australian citizen who is paid by a foreign principal to convince an Australian political party to change its policy to support free trade with the foreign principal’s nation. ¹²⁶ The Australian citizen meets with senior party leaders to discuss the policy and does not disclose the arrangement with the foreign principal. For a ‘reckless’ breach, the EFI REM provides the example of a company director (the director’s nationality is not defined) who is directed and supervised by a foreign principal, who uses the company as a front to conduct activities. The company director builds connections with members of the federal government to convince them to vote to impose trade sanctions on a rival nation of the foreign principal. The director does so under the guise of presenting his company’s views and does not disclose his relationship to the foreign principal which he intentionally conceals, thus keeping his target unaware of the true sponsor.

4 Preparation Offence

The preparation offence will apply where a person engages in conduct with the intention of preparing for, or planning, an offence that appears in sub-div B. ¹²⁷ The terms ‘preparing’ and ‘planning’ are not defined within the EFI Act; however, the EFI REM states that ‘preparing’ could include ‘acts to conceive, formulate, make ready, arrange and assemble an idea, plan, thing or person’ for foreign interference. ¹²⁸ It states that ‘planning’ could include acts to ‘organise, arrange, design, draft or setup an idea, plan, thing or person for foreign interference’. ¹²⁹

In demonstrating conduct in breach of the preparation offence, the EFI Act provides the example of an Australian citizen who is tasked by a foreign principal to influence Australian policy on the foreign principal’s nation. ¹³⁰ The Australian citizen then establishes encrypted communications with the foreign principal and receives detailed instructions on setting up meetings with Australian Government ministers and the desired outcomes. ¹³¹

1 Coercive

EFI’s concept of coercion relies on a ‘threat to cause serious harm’ ¹⁴⁴ or the ‘making of a demand with menaces’. ¹⁴⁵ Serious harm is defined within the Criminal Code as harm that ‘endangers, or is likely to endanger, a person’s life’ or ‘is, or is likely to be, significant and longstanding’. ¹⁴⁶ The definition of a threat with menaces is a two part test, depending on whether or not a threat is made against an individual. ¹⁴⁷ In either case, the menace involves ‘a threat (whether general or implied) of conduct that is detrimental or unpleasant to another person’ or is a ‘general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat’. ¹⁴⁸ For a ‘threat against an individual’, it is not a menace unless the ‘threat would be likely to cause the individual to act unwillingly’ and ‘the maker of the threat is aware of the vulnerability to the individual’, or ‘the threat would be likely to cause a person of normal stability and courage to act unwillingly’. ¹⁴⁹ The threat of serious harm appears to provide a higher threshold of coercion than a threat with menaces. Interestingly, the threat of serious harm can be directed at the person or any other person, whereas it appears that the threat with menaces is only captured if directed at the person. ¹⁵⁰

The EFI REM highlights that foreign interference can involve interference with the ‘activities or rights of diaspora or expatriate communities in Australia’. ¹⁵¹ It is unclear whether a threat with menaces to someone other than the targeted person is captured under the provision. One of the examples in the EFI REM involves ‘a threat to ensure the targeted person (or one of their family members) is denied a visa for entry to another country’. ¹⁵² However, it is unclear whether a threat with menaces which is directed at a family member and not the individual is captured. If this is the case, then unless the threat meets the high threshold of serious harm, the provision is drafted such that a threat with menaces would need to be directed at the target, causing that individual to act unwillingly in fear of repercussions to a family member. For a malicious foreign principal, this appears to present an exploitable gap. This aside, the rules on coercion present a clear line between influence and interference.

2 Deceptive

Conduct which involves ‘deception’ is conduct that is designed to ‘cause someone to accept as true or valid what is false or invalid’. ¹⁵³ The idea of deception appears to target foreign principals and their intermediaries, and is described in the EFI REM to include conduct such as ‘telling lies or misleading a person’ or lying about one’s ‘employment with a foreign government’. ¹⁵⁴ The EFI REM seems to expand the definition of deception within the Criminal Code, which includes ‘a deception as to the intentions of the person using the deception or any other person’ and ‘conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do’. ¹⁵⁵ The definition’s breadth may present issues, particularly as when on interpretation, the EFI REM may expand the definition of deception to include ‘telling lies or misleading a person’ or causing ‘someone to accept as true or valid what is false or invalid’. ¹⁵⁶ Interestingly, critics of the EFI Act have been silent on this issue. What of a foreign principal or intermediary communicating a policy to Australians it intends to legitimately influence, but which the government believes to be untrue? This may create a mechanism for the government of the day to obstruct the dissemination of contentious policies on the grounds that it considers them invalid. This aside, the concept of deception conforms to existing legislation and represents the foreign threat (discussed in Part II) which Parliament sought to address through the EFI Act.

3 Covert

The term ‘covert’ is not defined within the EFI Act, however it is intended to capture conduct which is ‘hidden or secret’, ‘lacking transparency’ ¹⁵⁷ or ‘undisclosed’. ¹⁵⁸ The Macquarie Dictionary defines covert as ‘concealed; secret; disguised’. ¹⁵⁹ In Zhang, the Attorney General of the Commonwealth offered a narrower reading of the word covert, stating that it involves ‘some element of nefarious concealment or secrecy’. ¹⁶⁰ However, the Attorney General also stated that simply engaging in communication using an ‘encrypted social media platform can answer the description in some circumstances’ but was not prepared to define those circumstances. ¹⁶¹ The EFI REM states that ‘covert’ involves concealment, such as ‘deliberately moving onto encrypted communication platforms when dealing with the foreign principal, meeting in a concealed location … or leaving communications in a concealed location for collection by the foreign principal’. ¹⁶²

Although this indicates that covert behaviour includes ‘taking steps’ to conceal communication, it is unclear as to how the use of encrypted technologies and applications more generally is captured. Governments openly admit that the difficulty in accessing encrypted devices which are being increasingly used for personal privacy is causing difficulty in the areas of intelligence and law enforcement. ¹⁶³ Some have expressed concern that using standard messaging applications or platforms which encrypt communications, or taking basic privacy protection measures will be captured under this offence. ¹⁶⁴ Others theorise that using an encrypted phone to communicate with a foreign principal may be ‘grounds for imprisonment’. ¹⁶⁵ These concerns were substantiated in Zhang, whereby the AFP were satisfied Mr Zhang acted covertly simply by communicating ‘over a private Social Media Chat Group’. ¹⁶⁶

The EFI REM also points to other potentially ‘covert’ activities such as recording a private conversation or copying documents without the targeted person’s knowledge, for the purpose of handing it over to a foreign principal. As this conduct may affect someone who is passing information (and not an intermediary nor a foreign principal), this ambiguity presents a potentially significant rub-point. If ‘covert’ conduct is not well defined, it may present exploitable loopholes and undermine the legislation’s efforts to harden its stance on espionage. More significantly, and discussed in Part V, it may present an obvious obstacle to political communication with foreign principals which is concealed for non-nefarious reasons. Ultimately, conduct which is ‘covert’, such as the concealing of one’s identity and the encryption of messages is becoming normalised by a society which is becoming more privacy aware. ¹⁶⁷ Apart from describing other malign conduct, it is difficult to justify how ‘covert’ assists in delineating interference from influence. Its inclusion alongside coercion and deception has made a relatively bright line far more difficult to discern.

1 Freedom of Expression

The freedom of expression is protected by art 19(2) of the ICCPR. ¹⁶⁹ Although Australia is a signatory to the ICCPR few of its articles have been adopted, and its ratification has no direct legal effect on domestic law. ¹⁷⁰ However, bills which are introduced to Parliament must be accompanied by a human rights compatibility statement (including the ICCPR), ¹⁷¹ with parliamentary committees such as the Parliamentary Joint Committee on Human Rights (PJCHR) analysing bills for compliance (although legislation is sometime passed before the PJCHR is able to produce a report). ¹⁷² Thus, although the EFI Act is not mandated to conform to the ICCPR, abrogation of its articles requires some explanation. The freedom of expression is subject to certain restrictions under art 19(3), which include ensuring the ‘respect of the rights or reputations of others’ and for ‘the protection of national security or of public order, or of public health or morals’. ¹⁷³ This aside, some submissions suggested that although the provisions of EFI Act are intended to protect Australia’s diaspora communities, they may operate to limit their freedom of expression. ¹⁷⁴ As submitted by law firm Nyman Gibson Miralis, if a person were to disseminate propaganda or political information relating to a territorial dispute of their former country, which is sourced from their former country’s embassy in Australia through concealed communications, they may be committing an offence. ¹⁷⁵ Considering 29.7% of Australia’s population were born overseas, ¹⁷⁶ this is a significant observation.

A similar concern was raised by the PJCHR, which stated that civil society organisations who frequently engage with public international organisations may be exposed to the provisions. ¹⁷⁷ The PJCHR noted that public international organisations would fall within the definition of ‘foreign principal’, and collaboration between a civil society organisation and such an entity to lobby government may be an offence, if the relationship is not disclosed. ¹⁷⁸ The PJCHR also noted the lack of defences and safeguards to protect such a scenario and to protect the freedom of expression. ¹⁷⁹ One counterargument is that such conduct could easily be legitimised through registration as required by the FITS Act; however, to place registration requirements on such conduct has raised concerns regarding the potential ‘chilling effect’ on free expression. ¹⁸⁰ Requirements under the FITS Act differ from those under the EFI Act, in that FITS Act requires a person to register details about themselves, where the person undertakes communications activity on behalf of the foreign principal for the purpose of political or governmental influence. ¹⁸¹ Registration requirements are burdensome and may disincentivise groups from collaborating or deter them from expressing views which were formed during such a collaboration. ¹⁸² It was on this basis that the validity of the FITS Act was unsuccessfully challenged in LibertyWorks (this is discussed in Part VI). ¹⁸³

One phenomenon which the EFI Act may amplify is what Mansted labels ‘self-censorship’. ¹⁸⁴ She cites a 2018 study which analysed political coverage of China in the lead up to the 19^th CCP Congress and found that no news channels on the social media and news platform ‘WeChat’ published an article on Chinese politics. It also found ‘negligible’ political coverage of China on the Chinese-language news providers on WeChat news channels. ¹⁸⁵ Mansted suggests that while this could be an indication of legitimate disinterest in Chinese news, it may also indicate self-censorship — particularly given that WeChat monitors user conversations outside China and flags ‘politically sensitive’ content. ¹⁸⁶ Evidence provided by Australians of Chinese background to the Senate Foreign Affairs, Defence and Trade References Committee also gives substance to Mansted’s suggestion. ¹⁸⁷ For the covert element, there is the potential that the ambiguous legality of concealed communication coupled with external pressures on diaspora communities may stifle free expression.

2 Implied Freedom of Political Communication

Some commentators have expressed concern that the foreign interference provisions may infringe the IFPC, a narrow subset of the freedom of expression which is recognised by the High Court as being protected by the Constitution. ¹⁸⁸ The current test was outlined in McCloy v New South Wales ¹⁸⁹ (‘McCloy’) and requires that any law that infringes or burdens the free communication about political matters of government must be ‘reasonably appropriate and adapted to serve a legitimate purpose’, less it be struck down or read down. ¹⁹⁰ The McCloy test consists of three main questions: does the law burden political communication? Is the law compatible with the Australian Constitution? And, is the law ‘suitable’, ‘necessary’ and ‘adequate in its balance’? ¹⁹¹ Ryan argues that ‘a number of the provisions in EFI Act raise questions about their compatibility with the implied freedom, particularly in the latter stages of analysis’. ¹⁹² This is explored in Part VI.

1 Control of the Media

The media is accepted as fundamental to the freedom of expression and is widely accepted as a tenet of the modern liberal democracy. ²⁰⁶ Media ownership in Australia is a continuous source of debate, ²⁰⁷ and Australian case law has affirmed the linkage between the media and the IFPC. ²⁰⁸ Concerns regarding the media were expressed both in terms of its vulnerability to coercion, and its usefulness as a tool of deception.

2 Disruption of the Electoral Process

The vulnerability of the electoral process has been highlighted as a target for countries who wish to interfere with political outcomes. ²¹⁹ Although the focus is traditionally on aspects of the process such as ballot-counting and acts of interference such as hacking, commentators have expressed concern regarding the sponsorship of local candidates by foreign governments. ²²⁰ During the by-election for the federal seat of Bennelong, concerns arose over messages which were circulated through the Chinese-Australian community which encouraged voting against the incumbent government. This was labelled an alleged instance of foreign interference, ²²¹ and raises important questions about political campaigning and the line between influence and interference, particularly where the beneficiary of the influencing activities is not aware a foreign principal is secretly campaigning on their behalf. Such a scenario identifies a potentially exploitable gap within EFI Act, raising difficult questions regarding culpability in the absence of a determinable link to a foreign principal, particularly during instances whereby the candidate was oblivious to the covert activities being conducted. However, it appears that the gap which is identified relates to covert actions which aim to deceive the target audience.

Such a vulnerability is not unique to Australia and (as explored in Part II) state-sponsored, covert interference operations are of international concern. It may be argued that messages, including those on radio and television, which are circulated to promote a political candidate are examples of influence. However, it is more difficult to categorise messages which are sent privately, and whether such messages are considered interference would likely rest on whether the sponsor of such messages is made known to the audience. ²²² This may extend to other messages which are less public, including door-knocking and cold-calling, raising more questions regarding the IFPC.

The above examples are effective in expressing the complex intersection between the doctrine of non-interference and domestic law, but nevertheless highlight the prominence of coercive and deceptive conduct. They accentuate the difficulties which government faces when grappling with the fact that covert acts may nevertheless be lawful, and ‘soft power’ is a legitimate form of diplomacy. ²²³

1 Silence of Dissent Through Coercion

In 2018, The Guardian reported that Cambodian-Australians were the subject of intimidation and coercion within communities, down to the individual level. ²²⁵ The Cambodian Prime Minister, Hun Sen, was reported to have threatened to ‘beat up’ Cambodian-Australians if they attended protests during his visit to the ASEAN-Australia Special Summit. ²²⁶ Unless Hun Sen was threatening to impart violence himself, one credible explanation may be that such rhetoric was used to express his stance towards perceived dissidents, thus publicly directing his agents to intimidate Cambodian-Australians. In 2019, the ABC published a report on alleged interference in Queensland, targeting Rwandan-Australians. ²²⁷ Queensland Police corroborated the allegations, confirming they had been investigated. The ABC also claimed that ‘spying for the Rwandan Government allows people the ability to travel back to the country freely to visit relatives, and assurances financial assets won’t be seized’. The report illustrates the possibility that foreign sponsors, through Australian-based intermediaries, are currently coercing Australian citizens to withhold their views about the Rwandan government. ²²⁸

Other forms of coercion have been documented. A survey in 2019 by van der Kley included interviews with 30 people who ‘claimed to be victims of [CCP] intimidation’ with just three reporting the events to authorities. ²²⁹ Van der Kley also documented instances of individuals being threatened with action against the financial assets of their families in China. ²³⁰ Such reports reinforce the effect that acts of intimidation can have on Australia’s expat and immigrant communities. Further, they represent a malign behaviour which the CFI strategy sought to address, and which the law of non-interference expressly rejects, as affirmed in Nicaragua.

2 Covert Targeting

There is also evidence to suggest that Australians have been targeted in a more covert manner. In 2017, ASIO warned that ‘[e]thnic and religious communities in Australia were also the subject of covert influence operations designed to diminish their criticism of foreign governments’. ²³¹

It is uncertain whether the activities identified by ASIO (likely due to the classified nature of the reports) relate to other media reports; however, what seems to differ is the use of the term ‘covert influence’. The EFI REM suggests that the threat of covert behaviour is more significant to the ‘Australian community at large’. ²³² However, it is difficult to characterise the damage resulting from benign covert influence on the individual. Unlike coercion, there is no ‘harm’ element to such activities. Under both the general and targeted persons provisions, influence that ‘is covert or involves deception’ constitutes interference — there need not be coercion. Without coercion, the threat to the individual is that influence without knowledge of the sponsor, or conduct which is deceptive, may cause an individual to ‘accept as true or valid what is false or invalid’. ²³³ Although this indicates the broader threat which covert influence poses to the community, it does not provide any clarity as to how this may be applied in the targeted persons provisions, which would presumably apply to those attempting to covertly target Australian citizens. Thus, although hypothetical and real-world scenarios allow the harm of deceptive and coercive influence to be assessed, it appears there is little evidence of harm to Australia’s democratic institutions or citizens as a result of benign, covert conduct.

1 Does the Covert Element Burden Political Communication?

The covert element may be seen to burden political communication in two ways. First, the element restricts the means of communication, notably concealed communications. Nyman Gibson Miralis hypothesised an example of this where a person disseminates political information sourced from their former country’s embassy in Australia through concealed communications. ²⁵⁴ Further, due to the breadth of the foreign interference provisions, the covert element may deter certain methods of communication. In the High Court case of Brown v Tasmania (‘Brown’), ²⁵⁵ the joint judgement of Kiefel CJ, Bell and Keane JJ noted that the result of the Protesters Act would be that ‘some lawful protests will be prevented or discontinued and protestors will be deterred from further protesting’. ²⁵⁶ Ryan argues that the breadth of the EFI Act ‘risk[s] capturing more conduct than is necessary … [thus] deterring an even wider range of conduct’. ²⁵⁷ In many instances, forms of communication where one’s identity may be concealed provide a mechanism for those who fear reprisal. They allow political ideas to be communicated freely and safely and enable those who feel silenced to engage in discourse which may eventually result in the dissemination of ideas in the public arena. As summarised by Justice Dawson, taking this method away may deprive some individuals of ‘an opportunity to gain an appreciation of the available alternatives’. ²⁵⁸ Second, the provision targets the content of communication. Like the laws struck down in ACTV, ²⁵⁹ which targeted both mode (broadcasting) and content (public affairs and political discourse), ²⁶⁰ it can be argued that the covert element targets content. This is because ss 92.2 and 92.3 of the Criminal Code prohibit covert communication which may influence a political or governmental process ²⁶¹ or which may influence the exercise of a democratic or political duty. ²⁶² Therefore, concealed political discourse with foreign principals is targeted, and the covert element would likely amount to a burden on political communication.

2 Is the Covert Element Compatible with the Australian Constitution?

The process of ‘compatibility testing’ seeks to determine whether ‘the purpose of the law and the means adopted to achieve that purpose [are] legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative government’. ²⁶³ This test is considered as ‘a rule derived from the Constitution itself’, ²⁶⁴ and the outcome of determining the purpose of the legislation (which may be stated or constructed), ²⁶⁵ ‘may be the most important factor in justifying the effect that the measure has on the freedom’. ²⁶⁶ The dominant purpose of the EFI Act is conveyed within the EFI REM, which states that the ‘legitimate objective of the Bill … is primarily to ensure the protection of Australia’s national security’. ²⁶⁷ Aforementioned examples, from both international law and the PJCIS Report, demonstrate that this link is easily drawn for coercive and deceptive conduct. The lack of evidence suggesting the harm of non-malign covert conduct makes it difficult to definitively link the covert element and this purpose. However, the legislation and extrinsic materials support a constructed, ancillary purpose of the legislation, which the covert element also supports. The EFI REM makes clear that ‘covert’ refers to ‘concealed’ or ‘hidden’ conduct. ²⁶⁸ Much of the EFI Act supports activities which counter the ‘complex networks of people, technological sophistication and avoidance of paper and traceable communications’. ²⁶⁹ This includes supporting intrusive activities under the Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIA Act’). ²⁷⁰ Furthermore, the requirement to register certain arrangements with a foreign principal under the FITS Act suggests that the ancillary purpose of the legislation is to prevent people from concealing political interactions with foreign principals from the government, for the purpose of protecting Australia’s security. ²⁷¹ Prima facie, it is difficult to find incompatibility between the dominant purpose and representative government, and thus the legislative objective would likely be considered legitimate. However, greater scrutiny of the covert element’s substantive operation occurs during proportionality testing. ²⁷²

3 Is the Covert Element Suitable?

Suitability is established when there is a ‘rational’ connection between the ‘provision in question and the statute’s legitimate purpose’. ²⁷³ Neither the EFI Act or EFI REM outline the direct connection between covert conduct and the legislation’s legitimate purpose. However, the EFI REM does address the rational connection between the TIA Act measures and the objective of the legislation:

The covert and hidden nature of the conduct targeted by the offences can make them more difficult to detect and investigate through other means … Approved interception of and access to telecommunications information would complement the range of other investigative options available to agencies in investigating these offences. ²⁷⁴

This lends support to the argument that the covert element is not in fact a physical element by itself, but rather a way to describe a means of undertaking deceptive or coercive conduct. Coercion and deception could be overt, such as by threatening protestors or publishing deceptive media; or covert, such as sending anonymous threatening messages or posting information on social media and concealing the sponsor. In this sense, and as characterised in international law, covert conduct may be considered a subset of deceptive or coercive conduct. The covert provision targets concealed or hidden conduct, which the legislature argues is more difficult to detect. ²⁷⁵ At first glance, it is difficult to draw a strong rational connection between conduct which is concealed but not coercive or deceptive, and a tangible risk to the legitimate objectives of the legislation. In fact, it may be argued that targeting covert conduct simply provides government a means to understand more about its citizens’ activities. Thus, while the plurality in LibertyWorks had little difficulty finding suitability of the FITS Act based on a rational connection to preventing deception, ²⁷⁶ a connection to conduct which is simply covert is less clear. However, a connection will be found if the provision can be seen to contribute to the legislation’s objective in some way. ²⁷⁷ Thus, a rational connection probably exists between the covert element and the detection of foreign interference offences (albeit not as directly as deceptive or coercive conduct) which arguably contributes to protecting Australia’s security.

4 Is the Covert Element Necessary?

The test of necessity requires the court to determine whether ‘obvious and compelling’ ²⁷⁸ alternative measures exist which impose less of a restriction on the IFPC, while just as effectively achieving the legislation’s legitimate purpose. ²⁷⁹ An alternative means which is equally as effective but more restrictive on the freedom cannot be said to be necessary. ²⁸⁰ The qualification of ‘obvious and compelling’ reflects a requirement for the court to not substitute parliament’s judgement with its own value judgement, which would exceed its constitutional competence. ²⁸¹ As assessed against the legislation’s dominant purpose (protecting Australia’s security), the most compelling alternatives to the covert element are the other physical elements (deception and coercion) within the foreign interference provisions. As discussed throughout this paper, deception and coercion capture most scenarios discussed within the PJCIS Report and the EFI REM. On the other hand, there is little evidence to suggest that the covert element addresses the stated purpose of the Act; yet, it places blanket restrictions on non-malign communications with foreign principals which individuals would prefer to keep confidential. Regarding the provision’s ancillary purpose (preventing concealed communications), two alternatives to the covert element exist. The first and most compelling alternative is the enlivening of powers under the TIA Act to assist in the investigation of foreign interference offences. ²⁸² These powers allow government agencies to detect covert behaviours using techniques which are controlled by existing legislation and judicial review. ²⁸³ They impose a lesser burden on the IFPC by instead infringing on the right to privacy of individuals suspected of criminal activity under conditions imposed by legislation and the court. ²⁸⁴ Thus, rather than outlawing all concealed political communications with a foreign principal, a judge is required to decide whether an infringement to the right to privacy is warranted in the circumstances (for ASIO investigations, the Attorney-General makes this decision). ²⁸⁵ This presents a more effective alternative as investigative resources will focus on malign concealed communications. The second alternative is the set of penalty provisions under the FITS Act, designed to promote transparency and create requirements for registrable arrangements pertaining to relationships with foreign principals. ²⁸⁶ The FITS Act imposes positive duties on individuals and entities to disclose various types of conduct (including ‘communications activities’) ²⁸⁷ taken on behalf of a foreign principal. The scheme is comprehensive and provides individuals and entities with an array of resources, outlining disclosure obligations and the associated penalties. ²⁸⁸ On the other hand, the covert element proscribes all ‘hidden’ or ‘concealed’ conduct with a foreign principal which may, for example, influence a political or governmental process. As emphasised by Mason CJ in ACTV, the existence of an alternative means of communication is not always an answer. ²⁸⁹ In circumstances where the ‘restriction significantly compromises the ability of those affected to communicate their message’, such as members of the community who fear retribution, a non-concealed means of communication may be unsuitable. Therefore, the necessity of the covert element comes into question when one realises the alternatives to achieving transparency for the purpose of protecting Australia’s security and interests. These alternatives, rather than placing a blanket ban on ‘covert’ communication, provide law enforcement and intelligence agencies with the powers required to uncover malicious, covert communication. This allows individuals without malign intent, who prefer to protect their identity and communicate privately, to continue to communicate freely and without fear of criminal prosecution. Thus, the covert element may be an ‘overreach of means over ends’, resulting in s 92.2 and 92.3 operating ‘more widely than [their] purpose requires’. ²⁹⁰

5 Is the Covert Element Adequate in its Balance?

The McCloy test’s final step is to determine whether the law is ‘adequate in its balance’. ²⁹¹ This requires a judgement as to the balance between the law’s purpose and the significance of its restriction on the IFPC, ²⁹² within the constitutional limits of the judiciary. ²⁹³ As the law is likely to burden both the mode and content of political communication, it is likely to fall on the end of the spectrum requiring ‘close scrutiny’ and a ‘compelling justification’. ²⁹⁴ The High Court has made clear that this step does not confer power on the court to apply the implied freedom as ‘an individual right’. ²⁹⁵ Courts will instead apply the implied freedom as a negative right, limiting legislative power when the freedom is infringed. ²⁹⁶ It is most likely that this final step requires a balancing between the government’s desire to access all political communications with foreign principals (for reasons of national security) and the deterring effect that the covert element will have on individuals who wish to privately communicate non-malign political ideas with foreign principals. This raises two notable parallels with Brown: the suitability of vague legislation and deterrence as a restriction on the IFPC. To the first point, the ban on covertly communicating with a foreign principal regarding political matters presents a myriad of difficult questions. Part IV explored several examples of concealing communications. ²⁹⁷ What about communicating through letters or whispers, or simply holding a conversation in a private (but not ‘concealed’) place? The use of the words ‘undisclosed’ and ‘concealed’ in the EFI REM appear to indicate an attempt to deter all behaviour which is not transparent, or at least detectable by government agencies. Yet, law enforcement and intelligence agencies, through the TIA Act and ASIO Act are already empowered to detect malign, covert encounters if required. Thus, even arguments in favour of pre-emptive legislation under the preventative state model are incompatible as measures to detect an indeterminate threat already exist. Therefore, the balancing between the purpose of the Act and the extent of the restriction is questionable and arguably counterintuitive. Government may have created a situation where certain classes of people are trapped: ²⁹⁸ pressed on one side by the censorship and coercion of state actors and the other, by the covert element. Thus, rather than providing a release valve for those being oppressed by interference as the legislation intends, the covert provision may inadvertently stifle political discourse. ²⁹⁹

1 Vulnerabilities in the Covert Element’s Proportionality

There is little evidence to suggest that the covert element is proportionate to the objectives of the EFI Act. Two major obstacles to its proportionality are clear. First, the availability of alternatives to address covert behaviour, namely, the deception and coercion physical elements and the TIA Act, which impose a lesser burden on the implied freedom. Second — the imbalance between the objective of the EFI Act and the extent of the restrictions it imposes. Furthermore, the ‘overreach of means over ends’ has the potential to deter non-malign actors with valid reasons to conceal their communications from engaging in political discourse, without further achieving the Act’s stated objectives. Thus, even if the legislation’s vague objectives were given considerable weight by the judiciary, it is unclear how the covert provision could be balanced against the restrictions it imposes. This presents a compelling target for a future challenge to the validity of the covert element.

2 Towards Legislative Proportionality

Balance in the legislation may be achieved through severance of the word ‘covert’ from s 92.2(1)(d)(i) and s 92.3(1)(d)(i) under s 15A of the Acts Interpretation Act 1901 (Cth). Alternatively, the word ‘covert’ could be read down to simply mean a subset of coercive or deceptive behaviour, in accordance with the principle of construction in Residual Assco Group Ltd v Spalvins. ³⁰⁰ The High Court in Zhang discussed this possibility, however applying the principals of Knight v Victoria, ³⁰¹ did not draw itself into consideration of ‘whether a legislative provision would have an invalid operation in circumstances which have not arisen’. ³⁰² Although either amendment would prevent the pursuit of non-malign covert behaviour, severing the covert element would likely increase the public’s discernability between influence and interference, and assist in mitigating vulnerable citizens from self-censoring.

3 Promoting (Not Deterring) Transparency

Several authors have advocated for policy measures which shed more light on CFI activities and educate the public on the risks of foreign interference. ³⁰³ Mansted and van der Kley each suggest that an independent statutory body should be established to absorb the public awareness functions from the Department of Home Affairs (leaving it to conduct intelligence and law enforcement). This body would be responsible for implementing ‘active transparency’ measures, including producing annual reports on foreign interference and disseminating ‘relatable case studies’ to provide the public with a baseline with which to contextualise individual acts of foreign interference. ³⁰⁴ Tyler and Dusting suggest that information campaigns like these, which focus on examples of ‘improper behaviour rather that cautioning against forming any international connection’ will assist the public in delineating influence from interference. ³⁰⁵ Such policy recommendations underscore the government’s error in regulating foreign state’s behaviour (which sits outside the law of non-interference) by imposing sanctions on Australian citizens. There is also error in attempting to protect Australia’s democratic institutions through secrecy and silence. A response which aims to reconcile the tension between secrecy and transparency by giving citizens the confidence to speak freely and report the coercive or deceptive communications they receive without fear of reprisal or self-incrimination warrants further investigation. The government should lead by example when implementing its ‘central pillar of sunlight’, ³⁰⁶ while recognising that citizens choosing to communicate covertly is better than citizens choosing to not communicate at all.