Wednesday, 27 June 2018

 RN Drive



Subjects: The federal government's foreign interference legislation is set to pass the Senate with the support of the Opposition.

PATRICIA KARVELAS: The federal government's foreign interference legislation is set to pass the Senate with the support of the Opposition. All 50 recommendations from the Security and Intelligence Committee were accepted including greater accountability provisions for former MPs and Commonwealth officers. The Government had wanted the changes in place in time for the Super-Saturday by-elections, which are at the end of July.

The Attorney General Christian Porter joins me now from our Parliament House Studio. Welcome back to RN Drive.

ATTORNEY-GENERAL: Good to be here, Patricia.

PATRICIA KARVELAS: You told your colleagues Australia has Goldfinger laws for a Skyfall world. Clearly you're a Bond fan but what exactly did you mean by that?

ATTORNEY-GENERAL: Well I mean, the last time these laws were significantly amended was around about 1970 so, as you could imagine, the technology that is now wedded to traditional spying and espionage has changed immeasurably since then. But also, espionage has morphed into a range of other behaviours and conducts, which we would generally call foreign interference or foreign influence. So we were operating in a new, quite dangerous environment with very, very old laws. And some old laws are maintained and updated in this very significant piece of legislation, so: treason, treachery, sabotage, mutiny, but also this legislation brings into play an entire new species of law: foreign interference, and then an influence registry. So we are, for the first time, covering the field with the sorts of modern espionage-related behaviour that we think is a significant threat to the Australian democracy.

PATRICIA KARVELAS: You've said it was important to have these laws in place in time for the super-Saturday byelections. How will these laws ensure the integrity of those five byelections?

CHRISTIAN PORTER: Well I mean one example would be that the first of the two bills, and they're meant to operate in tandem, for the first time has an offence, a criminal offence of foreign interference.  So for the first time ever in Australia, it will be an offence for someone active on behalf of a foreign power to work in a way that is covert and deceptive and hidden to influence a political or government process or a political or democratic right.  So I think perhaps the example that best illustrates for your listeners is the type of behaviour that we saw in the 2016 United States Presidential election.  Robert Mueller produced an indictment, indicting 13 Russian individuals and 3 Russian organisations.  The type of behaviour that was going on there was twitter-bots and troll-farms and Russian agents paying for advertising on facebook; pro and anti-government rallies organised through Russian agents of indluence with Russian money in different cities on the same day.  So these are the types of things that we've seen occur overseas in the democratic context.  And prior to the passing of this legislation we didn't have offences on our books that made them a criminal wrongdoing, and that's very important.

PATRICIA KARVELAS: Is there any evidence that we're seeing this in these byelections.

CHRISTIAN PORTER: Well there's been no specific threat in relation to the byelections that we've been informed of by our intelligence agencies.  But of course it hasn't been an offence prior to the point in time that these laws pass.   But what we do know is that democratic processes are increasingly becoming subject to influence and interference.  We've had the Director-General of ASIO say that we live in an age of unprecedented espionage and foreign interference more serious than the Cold War.  So what we have passed now with bipartisan support and I thank very much the members of the Parliamentary Joint Committee and particularly Anthony Byrne and the Shadow Attorney-General, Mark Dreyfus, and of course the Chair, Andrew Hastie.  So with bipartisan support we've passed a range of laws that covers the field of behaviours.  So for the first time in a very long time, we are actually prepared to investigate, to prosecute and we would hope in due course convict some of the bahviours we know are going on in western democracies around the world.

PATRICIA KARVELAS: If you're just tuning in, my guest is the Attorney-General Christian Porter and our number is 0418 226 576 if you want to text in on this bill or any of the other issues we're discussing tonight.

There will be special conditions for private companies that operate out of authoritarian countries. What are the countries?

ATTORNEY-GENERAL: Well, this bill is not directed at any specific foreign power or foreign principal, but the way in which the foreign influence register works, Patricia, is that someone who is working in Australia - an individual or an organisation - would ask themselves the question: am I engaged in one of the trigger activities; trying to influence government outcomes, lobbying, parliamentary lobbying, political lobbying, or communications activity designed to influence democratic opinions. And if the answer to that question is yes, then the secondary question is: is the person or body doing that in an arrangement or at the request or paid for by a foreign principal. And a foreign principal could be a foreign government, a foreign political organisation, or a company or enterprise that has very close links to a foreign government. Now, those types of enterprises exist in a range of countries around the world - it's not designed specifically within any one particular country in mind.

But what it is designed to do is ensure that if someone in Australia is lobbying and trying to influence democratic outcomes on behalf of a foreign principal - which is fine, it happens all the time; it's just that we want that registrable and knowable and transparent to the Australian public.

PATRICIA KARVELAS: And there are a number of former government ministers, including former trade minister Andrew Robb and former foreign minister Bob Carr, who would in theory have to list on the foreign interest register. How will that process work?

ATTORNEY-GENERAL: So that,on the foreign influence register, whether or not you're involved in government or parliamentary lobbying, you may have to register if you are a former government minister or a former senior diplomat, for instance, and you're employed by a foreign principal to provide ongoing advice. Now, that would mean that you would need to register during the period in time in which you're providing that advice to the foreign principal. So, each individual who finds themselves potentially in that situation is going to have to do some due diligence, obviously ask themselves the obvious question - are they providing advice to a company or enterprise or organisation, and if so, is that company or enterprise or organisation meeting the definition in the bill of a foreign principal?

And again, there's nothing wrong with doing that, I mean, that happens with great regularity. It's just that we want that relationship and linkage to be knowable and known to the Australian people. So, this is very much about maintaining the transparency of relationships.

And the point being this: that if you're a former diplomat or a former minister and you're writing an opinion editorial in a newspaper and you are criticising the government or trying to have a particular government decision reversed or made, and you're doing that because you are in a commercial arrangement or you're being paid or you're being directed by a foreign principal, that's fine, but it's just that people need to know that so they can judge in context the validity of the opinion you're expressing in your attempt to influence an outcome.

PATRICIA KARVELAS: You say may have to register - if they don't register, what happens?

ATTORNEY-GENERAL: Well, I say may because they need to make a self-assessment as to whether or not they've engaged in-…

PATRICIA KARVELAS: … And if they've self-assessed: nup, I'm not, I'm fine. But, you know, you think they're not fine, what happens?

ATTORNEY-GENERAL: Well, there are penalties. There are penalties. So, if someone intentionally fails to register there are penalties, and if someone is reckless, so wilfully blind to the fact that they should have registered, then there are also penalties with respect to that failure. And the foreign influence register has what we call a transparency notice system. So, if the secretary of my department - Attorney-General's Department - determines that an organisation should be declared a foreign principal, then they can issue a transparency notice to that effect, and that would mean that people in Australia who are engaged by or employed by that foreign principal to be involved in lobbying and matters of that nature, then they would need to register.

PATRICIA KARVELAS: Huawei Australia chairman, John Lord, is a former Rear Admiral in the Australian Navy. Will he have to register?

ATTORNEY-GENERAL: Well, that would depend on whether or not the company that he works for meets the definition of a foreign principal in the Act.


ATTORNEY-GENERAL: Well, that's not a matter for me. I'm not an expert in that particular company's corporate structure.

PATRICIA KARVELAS: So, who's going to determine that? Because, you know, a lot of people would say, well, they would meet that definition. I know many people in your own coalition would argue that.

ATTORNEY-GENERAL: Well, some might say that and others might not, so the individual in question would have to do precisely as I indicated earlier - they ask themselves the question: am I engaged in parliamentary or political lobbying or the attempts to effect a government outcome or an outcome in the Australian democracy? And if the answer to that question is yes, then: am I doing that as an employee or at the request or direction or being paid for by a foreign principal. So, is the company a foreign principal?

I would have thought that a reasonable amount of due diligence for people who are being paid to work inside the Australian democracy is reasonable. I'd imagine the first thing that they would do is ask the company itself whether the company considered that it met the criteria set out in the Act, which are fairly clear. That should be an answer that can be provided to the employee in Australia.

PATRICIA KARVELAS: You're the Minister. Would you say Huawei would meet that definition?

ATTORNEY-GENERAL: Well, it's not my role at this point to make that judgment.

PATRICIA KARVELAS: When will we be able- when will we find out?

ATTORNEY-GENERAL: Well, you know, as this comes into law - so it'll pass through the House of Representatives today and it'll go through the Senate, we believe again with bipartisan support. The register itself will take some time to establish, but the first point of this register is that it is about self-assessment. Now, if individuals assess themselves as being involved in lobbying and political opinion forming and they then subsequently assess that they're doing that on behalf of a principal that meets our definition of a foreign principal, they have to register.

If the secretary of my department considers that they are in error with respect to their judgment about whether or not the company they're working for meets the definition of foreign principal, we have a reserve ability to declare that organisation a foreign principal. But that is a decision that could be overturned in the AAT after full argument, so we would only do that if we were certain that we could demonstrate that the company or organisation or enterprise meets the definition of foreign principal, and that is a question that the secretary of my department would ask and he would do his own due diligence.

But first and foremost, this is a self-assessment regime. And as I say, there's nothing wrong with someone working for an overseas company which has close links to an overseas government or overseas political party and that person being involved in attempts to influence democratic outcomes in Australia - that has happened for many, many years in many, many different contexts and circumstances. It's just that we will now require a self-assessment so that we can transparently see where those relationships and linkages exist.

PATRICIA KARVELAS: An ABC investigation has found that Huawei is the biggest corporate sponsor of overseas travel for Australian politicians, including your colleagues Julie Bishop, Steve Ciobo; Labor politicians too. Given the security concerns about Huawei, is that appropriate?

ATTORNEY-GENERAL: Well, I must say, I mean, I've been on an overseas trip which was funded by the United Arab Emirates government when I was a backbencher, so there's nothing particularly wrong with doing overseas trips, particularly with large trading partner countries, and there's great value that parliamentarians can get from those types of trips.

Many years after that trip I became Attorney-General and have been engaged in signing off a range of criminal justice treaties with the United Arab Emirates, and some of the linkages that I formed on that trip have been very helpful. So, there's nothing wrong with it per se. What is important is that it be disclosed, and we have a very stringent system of parliamentary disclosure to ensure that that trip is known and knowable to the Australian public at large. And what makes it reasonable is the transparency and the ability of you in the media or any member of the public to scrutinise.

Now, if you consider the analogous situation of people working for a foreign company and writing op-eds or doing government lobbying, we're just wanting to impose the same discipline of transparency on those relationships that we as parliamentarians have always had imposed, quite properly, on us and which we abide by.

PATRICIA KARVELAS: Your colleague Andrew Hastie has called for an overhaul of defamation laws to prevent them from being weaponised. You've said you don't think we have the balance right. Is that something you're actively looking at, to reform defamation laws?

ATTORNEY-GENERAL: Well, I think that the balance is imperfect, but it is a very difficult balance and a balance upon which equally rational people might hold different views. Defamation's largely a matter for state laws, and the process that we've engaged in as the Council of Attorney-Generals has seen fit to appoint New South Wales to lead a paper about modern defamation laws, the environment in which they operate. No doubt that paper will provide a series of options, but that is a very complicated process and I don't think, I must say, it will be a very quick one.

It's a very delicate balance between ensuring free speech and freedom of the press, but also allowing individuals a proper opportunity to litigate for damages when they've had their reputation unfairly or untruthfully tarnished.

PATRICIA KARVELAS: The Coalition party room was briefed on the National Energy Guarantee today by Business. Tony Abbott is threatening to cross the floor, still, after the briefing. As a backbencher, obviously he's entitled to do so, but he is the former prime minister who signed Australia up to the Paris Climate Agreement. It's a bad look, isn't it, for the Government?

ATTORNEY-GENERAL: Well, I think the National Energy Guarantee as a policy is a very good look because the most important thing for individual Australians and businesses in the Australian power market is to see their prices decrease, and this is, on reputable estimates, going to decrease power prices, and of course many of the policy activities and actions that we've taken have already started to put downward pressure on power prices.

But even more importantly, it provides what has been missing for a very long period in Australia, which is a certain market structure, which is the necessary precondition for people to invest in baseload generation of power.

PATRICIA KARVELAS: You say that, but your colleagues aren't convinced, are they?

ATTORNEY-GENERAL: Well, I think they overwhelmingly are convinced and certainly what was the purpose of the backbench committee meeting today was that the Minister, Josh Frydenberg, had essentially the largest businesses and employers in Australia helping in that convincing process, not merely to Members of Parliament but to the public at large. But this National Energy Guarantee is pretty….

PATRICIA KARVELAS: Sure. But still, Tony Abbott walked out and said he's prepared to cross the floor.

ATTORNEY-GENERAL: Well, I haven't spoken to Tony about that. I listened to him this morning in our party room - we don't go into party room matters, but what I would say is that this is a very important structural policy; that the Prime Minister and the Minister for Energy have got it right; that you will not get generation and baseload power - whether that's new, cleaner coal or gas or any other generation - unless you have market certainty for the investment conditions. And that's what has been missing in Australia for a long period of time. And the way that you have prices decreasing over time is greater competition, and that requires a certain market environment so that people can invest into it, because establishing baseload generation of power is not a five or a 15 year investment, it's a 25 to 35 year investment. So, you need to know that the conditions that you're investing into you are going to be certain and stable for decades to come.

PATRICIA KARVELAS: Thank you so much for your time.

ATTORNEY-GENERAL: Thank you, Patricia.

PATRICIA KARVELAS: That's the Attorney-General Christian Porter.