Fri Feb 18

Stronger laws on 'foreign' election influence were rushed through this week – limiting speech but ignoring our billionaire problem

Written by: Graeme Orr, Professor of Law, The University of Queensland

In case you missed it, election season is upon us again. Like the elongated summers caused by climate change, campaigning is intensifying and being spread over longer periods every election.

Although polling day is not due until May, this year’s campaign kicked off nine months out with billionaire Clive Palmer’s plunge into spam texts ^[1], and big spending on YouTube ads ^[2] and billboards.

Campaigning may be well under way, but the rules governing the election are still being finessed. Some of this is administrative and technological, such as tweaks ^[3] to ensure COVID-safe voting at polling places.

However, in the past week, a more substantial campaigning bill sailed through parliament. Its title, the Electoral Amendment (Foreign Influences and Offences) Bill 2022 ^[4], is clunky, but suggestive.

The bill creates several new offences, limiting “foreign” persons or entities from fundraising for or directly spending on electioneering – or even authorising electoral matter – to influence a Commonwealth election.

This new law has received minimal attention. Aside from a commentary piece ^[5] by a Liberal MP, there’s been scant reporting or analysis.

Instead, it has been subsumed by concerns ^[6] over foreign interference or disinformation campaigns in the upcoming federal election. These concerns were amplified by revelations ^[7] about alleged Chinese attempts to inject funding into the Australian political system.

The Morrison government has sought to leverage the heightened tensions by claiming ^[8] “Beijing backs Labor”. In response, the head of ASIO warned ^[9] against politicising the issue. Any risk of inappropriate overseas influence in the election affects all sides.

What the new law will do

The new “foreign influences” bill was hurried through the Senate at the end of last week, then passed the House on Wednesday. Unlike almost all electoral reforms, it was not subject to committee, let alone public, scrutiny.

This suggests both major parties are genuinely concerned about beefing up the law or at least sending a strong signal against overseas assistance to Australian parties, candidates or electoral lobby groups that may hope to benefit from it.

The bill builds on existing offences ^[10] against “foreign” donations to parties, MPs or electoral lobby groups in Australia, which were enacted after long debate in 2018. These already cover gifts on behalf of a “foreign” donor to candidates – the alleged scheme ^[11] recently involving Chinese money and potential Labor candidates.

“Foreign” is a slippery concept, and not easy to define. This is a reason why the bill needed more debate – and may be partly unconstitutional.

In our electoral act, the term “foreign” covers overseas governments or corporations, as well as any non-citizen, either in Australia or overseas. These include some refugees and those in Australia on working or business visas (however long-term), but not permanent residents.

Of course, such foreigners cannot vote in our elections. And the 2018 ban on these individuals donating to electoral campaigns was sensible.

Yet, the new law now threatens fines of up to $26,000 for merely authorising election material. This would include small things like pamphlets, or YouTube content that costs any money to produce.

Many of the guest workers we rely on to work on farms or in the hospitality industry face objectively poor conditions and legal rights. Under this new law, they are permitted to contribute to discussion of these issues, but would be prohibited from trying to sway Australians to vote to address them.

On its face, this breaches freedom of political communication. This freedom is not an individual right, it’s a collective ideal. Its rationale is to ensure we, as an electorate and society, can be informed about politics and government.

Limits on this freedom of political communication have to be proportionate or the High Court can strike them down ^[13].

More systemic issues to worry about

For over a century, Australian law accepted foreign influence in our politics. A British lord ^[15] tipped $1 million into Liberal Party coffers before the 2004 election. US agencies have helped fund liberty-oriented expression ^[16].

Some argue that because goods and finance flow easily internationally, and problems like climate change and pandemics know no borders, foreign influence is not only unavoidable but essential. We live in an integrated world, where interests are intermingled.

Some say these laws are xenophobic against China. But we should be concerned about Chinese influence, due to its sheer size, resources, and opaque and unaccountable system of government.

The bigger problem is we have been focusing on the mote of foreign influence, without addressing the beam in our eye – the broader systemic weakness of our political finance regime.

Our national election act, despite years of debate, still lacks expenditure limits and donation limits. The US, UK, New Zealand, Canada and most Australian states have one or both of these limits. Capping campaign spending helps maintain political equality, while capping donations inhibits those who would give big, behind the scenes, to buy political influence.

Nor do we regulate misleading political ads ^[18] at the national level.

Foreign money and disinformation is a worry. But even more so are the much larger sources of both, generated entirely inside the country.

In 2019, for instance, Palmer spent a record-shattering $83 million ^[19] to influence the federal election. Parliament had three years to fix this problem. It didn’t; now we get to relive it.