There May Be 1300 Reasons This Law Does Not Work

Written by:
29 November 2019
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Originally Appeared In

There are potentially 1300 smoking guns pointing to evidence that the Attorney­-General’s Department has been using the power of the commonwealth to target conservatives­ in Australia.

It is not acceptable for bureaucrats to be running a covert political operation out of the Attorney-General’s Department to silence Australians because of their polit­ical beliefs, but they are able to under the Foreign Influence Transparency Scheme legislation.

On October 2, public servants in the Attorney-General’s Depart­ment issued a notice that Andrew Cooper, founder and president of libertarian advocacy organisation LibertyWorks, provide all documents “detailing any understanding or arrangement” between LibertyWorks and the American Conservative Union.

Cooper was given 14 days to respon­d to the demands, after which criminal penalties could apply. Despite facing possibly six months’ jail, he refused to co-operat­e.

Last August, Liberty­Works and the ACU co-hosted the Conservati­ve Political Action Conference in Sydney. It featured speakers from Australia and overseas. CPAC is a mainstream right-of-centre conference that in the past few years has branched out to international locations such as Japan and Australia.

One CPAC speaker was former prime minister Tony Abbott, who controversially was invited to register as an agent of foreign influe­nce under the Foreign Influence Transparency Scheme for addressing it.

Abbott rejected the request and labelled it absurd.

Attorney-General Christian Porter has admitted that there has been a “lack of common sense to date” in the scheme’s application.

Following the subsequent scandal, the Institute of Public Affair­s lodged a Freedom of Inform­ation request asking for documents and correspondence between senior executive service-level public servants in the Integrity and International Group between March and November that mentions Cooper, Abbott, CPAC or the ACU.

This is a straightforward reques­t. It potentially could clear the public servants of any wrongdoing or expose if there was anything more untoward. If there was nothing seriously amiss, you would imagine the bureaucrats would be forthcoming, keen to clear up the incident.

The Attorney-General’s Department responded to the IPA this week with what is known as a “practical refusal notice”.

The Integrity and International Group in the Attorney-­General’s Department that oversees the Foreign Influence Transparency Scheme employs only eight staff, yet says a preliminary search has identified more than 1300 documents relevant to the request.

More than 1300 documents and correspondence relating to Abbott, Cooper, CPAC and the ACU captured from eight full-time public servants across a seven-month period hardly seem the actions of one rogue employee, which is how the government has portrayed the targeting of Cooper.

Rather, it possibly suggests a co-ordinated surveillance operation being run by unelected and unaccountable bureaucrats under the Attorney-General’s nose.

The department needs to ­release these documents. Innocent Australians have a right to know if they are being monitored by the state.

In giving the notice of practical refusal, the department states that the work of processing the request would substantially and unreas­on­ably divert the resources of the department from its other operations due to its scope. Yet this same department gave Cooper just a fortnight to comply with onerous demands of supplying potentially thousands of documents relating to the CPAC conference.

Given the extent of Chinese influenc­e reported in the media this week, it is unacceptable that Australian public servants in the Attorney-General’s Department have devoted such a significant amount of time and resources to targeting Australians because of their political beliefs.

It seems the Foreign Influence Transparency Scheme legislation may not be being applied impartially or in good faith. Porter has suggested that the staff overseeing the scheme will be moved, which is hardly adequate. They also have shrugged off suggestions that they need foreign-speaking officials overseeing the scheme.

As reported in The Weekend Australian, Porter was angry to learn of the notice being issued to Cooper. But the bluntness of the legislation and its worrying powers were foreseeable.

The IPA’s Legal Rights Audit 2018 warned that the Foreign Influence­ Transparency Scheme Act 2018 was found to remove procedura­l fairness, the right to silenc­e and the privilege against self-incrimination.

The scheme should be repealed or recast so that vaguely worded legislation cannot be abused. And there should be answers as to why commonwealth public servants were potentially misusing their power. The state targeting people due to political affiliation or belief is a feature of authoritarian regime­s, not a liberal democracy.

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