How do Australia’s Foreign Interference Laws Compare to Draconian States?
Thursday, 29th March 2018 at 8:55 am
The suite of controversial foreign interference laws proposed by the Australian government have been described by their critics as draconian, but how does the Australian legislation compare to what is being implemented in other countries?
“Australia must not slide down the path of Hungary, Russia, Egypt and India in its attempts to stifle civil society.”
“The spirit and zeitgeist [of the bill] is exactly stacking up with those countries.”
“This is a regressive step for Australia’s democracy.”
Since they were first proposed, the government’s suite of foreign interference laws – which were introduced with the aim of cracking down on foreign influence in Australia – have come under attack from civil society organisations across the political spectrum.
On Wednesday the Hands Off Our Charities alliance presented political representatives with an open letter calling for the abandonment of the laws, amid claims they will “tie charities up in red tape and stifle their voice”.
Australia is currently among a third of countries internationally that do not ban foreign donations to political parties. The US, UK and Canada all ban such donations.
However very few democracies ban foreign donations to charitable NGOs. The countries that do, include China, India, Israel, Hungary and Russia.
Under the latest legislation proposed by the Australian government, charities in Australia would no longer be allowed to use foreign donations to engage in any activities considered “political campaigning”.
According to Special Minister of State Mathias Cormann, exempting charities from the bill would render the ban on foreign donations “entirely ineffective”.
“Our bill explicitly allows charities to seek and receive foreign donations to fund their charitable and other non-political activities but applies the same prohibition on foreign donations in relation to political campaign expenditure to them which applies to all other political actors,” Cormann told Pro Bono News in February.
Under the proposed legislation, charities must keep foreign donations separate from other revenue to ensure they cannot fund political advocacy.
The Electoral Funding and Disclosure Reform Bill, which relies on a greatly broadened definition of political expenditure, requires all groups that have spent $100,000 or more on political activities in the previous four years to register as a “political campaigner”.
This has prompted fears among the charity sector that it will not be able to use international philanthropy to pay for advocacy work and will face an increased burden of red tape.
The proposed laws have been directly compared to legislation that has been implemented in more draconian states.
When addressing the joint standing committee on electoral matters regarding the Election Funding and Disclosure Reform Bill, Tim Costello, chief advocate of World Vision Australia, compared it to attempts to stifle dissent in Russia and India.
“The spirit and zeitgeist [of the bill] is exactly stacking up with those countries,” Costello said.
“It’s clearly, in my view, [part] of the zeitgeist of a silencing and gagging of civil society. Hearing inconvenient views and characterising those views [as] political campaigning.”
More recently, Amnesty International Australia national director, Claire Mallinson, cautioned that “Australia must not slide down the path of Hungary, Russia, Egypt and India in its attempts to stifle civil society”.
According to Emeritus Professor Myles McGregor-Lowndes, from the Australian Centre for Philanthropy and Nonprofit Studies, Australia’s law resemble those of more draconian states in subject matter but not in terms of the extent.
He said how closely Australia comes to those draconian states hinges on the administration of the laws.
“We are certainly taking a leaf out of some of the legal mechanisms in other states, we’re not as far yet, but the interesting [thing] is the actual application of these laws,” McGregor-Lowndes told Pro Bono News.
“There are more ways to skin a cat than having a law against it, particularly with administrative discretions and funding special audits.
“The special audits in Canada really put a chill on the sector and stopped ordinary charities from conducting their advocacy, and were regarded as quite legitimate arguments for activities in order to complete a highly disruptive and expensive audit by the tax office.”
He said the Australian government was changing the balance of not for profits and advocacy.
“Under the Howard/Costello regime there was a concerted attack on advocacy of charities through government contracts which prohibited them from certain advocacy activities,” McGregor-Lowndes said.
“Then we had the bill passed by the Labor government which made it unlawful for Commonwealth government grant contacts to impinge upon the advocacy activities of not for profits, and I think we can say that since the conservative government has come to power, they have been driven by an agenda to change the balance of not for profits and advocacy in Australia.”
He pointed to a global trend of tightening not for profit advocacy.
“What we can see is that right around the world, governments are tightening the activities and benefits and advocacy of not-for-profit organisations, that is clearly demonstrated and documented,” McGregor-Lowndes said.
According to the International Center for Not-for-Profit Law (ICNL), “a common tactic” used by governments around the world who are “constraining civil society and dissent” has been to “enact legislation targeting civil society groups that receive international funding”.
In a briefing paper published in November 2017, the ICNL said in many cases the US Foreign Agent Registration Act (FARA) has been used to justify such legislation.
“While FARA has traditionally been narrowly enforced in the United States and it has critical differences with legislation in other countries, FARA’s broad language has made it easy for foreign governments to draw parallels between their legislation and US law,” it said.
In 2012, Russia adopted a far-reaching “foreign agent” law which it claimed was designed to achieve the same purposes as FARA.
“The law’s implementation though has had devastating results for civil society,” the ICNL said.
In a September 2017 report, Human Rights Watch said the Kremlin had sought to “stigmatize criticism or alternative views of government policy as disloyal, foreign-sponsored, or even traitorous”.
“An enduring, central feature has been the 2012 law requiring independent groups to register as ‘foreign agents’ if they receive any foreign funding and engage in broadly defined ‘political activity’,” Human Rights Watch said.
“In Russia, the term ‘foreign agent’ can be interpreted by the public only as ‘spy’ or ‘traitor.’
“To date, Russia’s Justice Ministry has designated 158 groups as ‘foreign agents’, courts have levied staggering fines on many groups for failing to comply with the law, and about 30 groups have shut down rather than wear the ‘foreign agent’ label.”
In a recent opinion piece for Pro Bono News addressing the Foreign Influence Transparency Scheme Bill (FITS), Community Council of Australia CEO David Crosbie said Australians could take “little comfort in knowing that we are not the first to copy the US FARA legislation”.
“Russia, Ukraine, Kyrgyzstan, Israel, and now Hungary have all passed foreign agents bills, all citing the US example and some adopting direct translations of FARA,” Crosbie said.
He told Pro Bono News the way FARA has been applied differed around the world.
“In countries like Russia they’ve kind of kept the principle of FARA and narrowed the target to civil society,” he said.
“Hungary is definitely using it as a way to limit or constrain civil society. So it’s different. But all of them will say ‘what we’re doing is running a Foreign Agents Registration Act type legislation in our country’.
“So it’s been used as a reference point, a basis, in some cases a literal translation and then the way it’s applied has varied around the world.
“But in all situations that I’m aware of, it’s got significant issues for the charities and not-for-profit sector.”
He said in Australia FARA was used “as a sort of starting point”.
“In Australia what we’ve done is to take FARA and from the Attorney General’s Department perspective, try and improve on it,” Crosbie said.
“Unfortunately what our government has done, in some instances, is broaden out the definition so it captures even more people than the FARA does.”
Crosbie said he expected the proposed FITS bill to be redrafted.
“I think the bill as drafted would be totally unacceptable to the charity sector. It would be totally unacceptable to the academic sector. It would be totally unacceptable to parts of the business sector,” he said.
“So I don’t think the bill as it is presently drafted stands any chance of gathering support.
“And we now know that the parliamentary committee on intelligence and security which was due to report on Friday is now not reporting until late April. And we know that legislation might not be drafted until after the Budget sittings and so we don’t expect to be looking at a re-drafted FITS Bill until probably June at the earliest.
“And then we expect that the government will allow a period of consultation, because I don’t think they intended it to do what it is currently doing.”
Crosbie said the current draft of the bill encompassed “everyone who is not an Australian citizen, every kind of agreement and any activity of advocacy, even if it’s not direct”.
He anticipated “hundreds, probably thousands” of charities would be caught up.
“Almost any charity with any kind of relationship with anyone who is not an Australian citizen is potentially a foreign agent because under the bill, a foreign principal can be anyone, an individual or organisation, who is not an Australian citizen or Australian permanent resident,” he said.
“To be acting on their behalf, all you’d have to have done is have a telephone conversation agreeing to share information, to have received a donation from them, or to have any kind of agreement of any kind that involves you agreeing to do something. So then you’re acting on behalf of them even if it’s just part of what you’re doing.
“And the third point to make is you are considered to be a foreign agent if you’ve got a relationship with someone internationally, or someone who is not an Australian citizen, and you’ve agreed to in some way seek to improve or change Australian government policies.”
Crosbie used the example of “the good Greek son” who is contacted by his grandmother and agrees to ring up about a cousin’s student visa application.
“You’re advocating a political process or a government decision-making process on behalf of a foreign principal. So you are therefore a foreign agent,” he said.
“You would therefore have to go to the Foreign Agents Registration which has a fee of over US $300, and then you’d have to provide details of your communication and open up yourself to the attorney general so that they could check your finances and a range of other compliance activities. So it would be quite onerous.”
He said he thought the bill was badly drafted, rather than intentionally targeting charities.
“I’m not sure what the intention was in the first place but I do know in our discussions with advisors this wasn’t their intention. So I’d say it’s been very badly drafted,” he said.
Similarly, Professor Anne Twomey, a professor of constitutional law from the University of Sydney, told a public hearing in Canberra in February the proposed foreign donations bill was “extraordinarily badly drafted” and did not “achieve its purpose”.
She said there was “a reasonable likelihood that in its present form it would be struck down as constitutionally invalid.”
In an article in The Conversation, she wrote: “If the purpose of this bill is to prevent foreign donations from influencing elections, it manifestly does not achieve that outcome. Foreign citizens can still donate as much as they like to Australian political parties by donating through a company they have incorporated in Australia.
“But if the purpose of the bill is to deter charities and other third parties (regardless of whether they have received a single cent of foreign money) from spending money on the public expression of views that might entail criticism of government policies, then it would very effectively achieve that outcome.”
Crosbie said he thought people were less tolerant of criticism.
“They take more of almost like a partisan view of people’s commentaries,” he said.
“It’s not about ‘all charities are on the left and therefore we should be trying to silence them’. I think that’s a very simplistic view of the world.
“In practice I think what seems to be happening is there is less tolerance of voices in civil society that are critical not just of government but of opposition and of other parties.”
Crosbie differentiated between “small p political” and “Political”.
“When I was growing up we learned pretty quickly that most things have a small p political implication, what subjects you study at school, who gets time in the curriculum and what happens if you get a better mark versus a worse mark, and in many ways it’s the small p political issues that affect us in our daily lives,” he said.
“And so once you start saying that those small p political issues or just issues that in some ways benefit some people or may not benefit others are something that you’re not allowed to discuss or not allowed to advocate around, I think you are effectively clamping down on civil society because it’s exactly those small p issues that make a huge difference in people’s lives.”
Douglas Rutzen, the president and CEO of the ICNL, told Pro Bono News the use of “convenient phrases” such as “political activities” but which are “an umbrella term for different sets of activities depending on who’s using the expression”, was a great challenge.
“In some countries they might say that political activity is related to electioneering or participating in campaigns or putting up candidates for office and others might interpret it to be a much broader term covering a whole range of advocacy activities and that’s where I think the challenge arises,” Rutzen said.
He said he preferred a stricter definition of political activities.
“From my side, the best practice is to look at political activities in terms of campaigning, electioneering, activities that are party political specifically,” he said.
“So it’s supporting or opposing a specific candidate, these kinds of things.
“I would not consider things like general advocacy activities on issues of nonpartisan research and analysis, get out to vote campaigns, where you’re not actually trying to get people to vote one way or another but you’re trying to get more people enfranchised and able to vote… I would exclude those sorts of things.”
But he said there were examples around the world of power holders, who at any time they feel challenged by an NGO or a charity, consider that to be “political”.
“Because they hold political office they don’t want to be challenged, so suddenly it’s political,” he said.
“It could be over anything, it could be clean water in certain jurisdictions where drinking water is contaminated and people are calling for clean water. There was a situation recently in terms of medicine for people, [where those] who had transplant operations made demands of the authority… depending on the jurisdiction they may consider that to be political. But of course it’s not.”
Rutzen said the proposed Australian legislation seemed to be consistent with a global trend of defunding not-for-profit advocacy.
“Around the world, we’ve seen a trend of defunding – rather than defending – advocacy by the charitable sector,” Rutzen said.
“The Australian bill is consistent with this trend.”
He said the provisions of the Australian bill were different than other countries such as Russia, making it hard to make a specific comparison.
“What is interesting about Russia is it’s largely a disclosure statute where what you can do is you can receive international funding and you can use international funding to engage in what they call political activities, which include influencing government officials and broad sections of the public. But then you have to register as a foreign agent. So it’s not actually a ban,” Rutzen said.
“If Australia bans the use of international funding for certain kinds of activities one could make a reasonable claim that in terms of that requirement it goes beyond what we see in Russia. Now some will say with the Russian government it is worse, but that provision would actually be broader than what we’ve seen in Russia.
““So it’s just hard because when we take one provision that’s much different than in Russia, the easy response is ‘but Russia’s just worse’. And overall it is, but that doesn’t excuse the bad acts we do.”
He said it was hard to say a practice was “worse than Russia”.
“We often find that when we say ‘hey by the way US, you’re doing something very similar to Russia’, it has almost no resonance because people say ‘well the conditions might be the same but we apply it differently’, and that may be true in terms of the actual impact of the legislation and who they selectively target,” he said.
“What I would say is [what is happening in Australia] is consistent with this current of constraints that we’ve seen elsewhere in the world.
“I think that the overall point is that we are seeing a number of countries, including those that I think we would traditionally not aspire to follow, that have tried to restrict international funding of advocacy activities. And that’s not a good practice for democracy.”
Rutzen said he was concerned the Australian bill could be used by other countries to justify their restrictions on charities and civil society.
“Democracies will always take solace in numbers and they’ll say ‘well we’re just doing it like…’,” he said.
“I remember the Russians one time saying we’re just copying Israel and it was the one time in the history of Russia as far as I could tell where they held up Israel as a paradigm.So they cherry pick their examples.
“But at the end of the day what we’re seeing is this negative trend of governments with authoritarian tendencies. Instead of defending civil society they’re defunding civil society. They want to strip them of resources.
“They use the argument around foreign funding as a good way to capture the public’s imagination and support.”