Foreign Interference and the Incremental Chilling of Free Speech

Published date01 March 2024
DOIhttp://doi.org/10.1177/0067205X241235983
AuthorSarah Sorial,Shireen Morris,Peter Greste
Date01 March 2024
Subject MatterArticles
Article
Federal Law Review
2024, Vol. 52(1) 103127
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0067205X241235983
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Foreign Interference and the
Incremental Chilling of Free Speech
Sarah Sorial*, Shireen Morris** and
Peter Greste***
Abstract
Foreign interference is a growing threat to all liberal democracies, including Australia. To respond
to this growing threat, the Department of Home Affairs has developed a complex Counter-Foreign
Interference Strategy(CFIS). At the heart of the strategy lies a suite of interlocking and overlapping
legislation, including the Foreign Inf‌luence Transparency Scheme Act 2018 (FITS Act), the National
Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 and the Electoral Leg-
islation Amendment (Electoral Funding and Disclosure Reform) Act 2018 (Electoral Funding Act). The aim
of this paper is to explain and clarify the legislation and the free speech burdens it imposes, and
determine whether the laws are suitably targeted at foreign interference without unduly limiting
legitimate communication activity. We argue that the current criminal law regime is ineffective in
addressing the problem because foreign interference is a complex and pervasive phenomenon
taking many different forms from espionage on university campuses to anonymous and targeted
social media campaigns. The legislative scheme is not properly tailored to tackle foreign interference
as it actually occurs.
Accepted 4 July 2023
I Introduction
Foreign interference is a growing threat to all liberal democracies, including Australia. The term
refers to coercive, corrupt, deceptive or clandestine activities by or on behalf of a foreign actor,
intended to undermine Australias national security, democratic processes and sovereignty.
1
In
contrast, foreign inf‌luence is def‌ined as routine diplomacy and open and transparent discussions
which are part and parcel of engagement with international partners.
2
* Professor, Macquarie University School of Law.
** Associate Professor, Macquarie University School of Law.
*** Professor, Department of Media, Communications, Creative Arts, Language, and Literature, Macquarie University.
1. Countering Foreign InterferenceDepartment of Home Affairs (Web Page) .homeaffairs.gov.au/about-us/
our-portfolios/national-security/countering-foreign-interference>.
2. Ibid.
Foreign interference is a multifarious phenomenon. There are multiple vectors for foreign inter-
ferenceincluding cyber-attacks, socialmedia, traditionalmedia and electoralcampaign funding.As the
Department of Home Affairs noted in its sub mission to the 2021 Select Committee on Foreign In-
terference through Social Media, foreign interference risks often take the form of cultivating and
manipulating people to inf‌luence their decision-making, including through personal, political, business
and diplomatic relations; limiting freedom of expression and shaping the media and communications
landscape to spread misinformation; dominating foreign language media or undermining public
discourse about issues of national signif‌icance; and singlin g out sections of the community through
pressure and manipulation to sow discord, silence dissent or damage social cohesion.
3
Foreign in-
terference in Australia has involved foreign actors, including foreign intelligence services, trying to
interfere with Australian decision makers at all levels of government and across a range of sectors,
including democratic institutions, education and research organisations, media and communications
companies, culturally and linguistically diverse communities, and critical infrastructure.
4
To respond to this growing threat, the Department of Home Affairs developed a complex
Counter-Foreign Interference Strategy(CFIS). The strategy engages with vulnerable sectors
(such as tertiary institutions); seeks to deter perpetrators; defends against foreign interference
through a coordinated government response; and enforces CFIS laws by investigating and pros-
ecuting breaches.
5
At the heart of the strategy lies a suite of interlocking and overlapping legislation,
including the Foreign Inf‌luence Transparency Scheme Act 2018 (Cth) (FITS Act), the National
Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) (Espionage
and Foreign Interference Act) and the Electoral Legislation Amendment (Electoral Funding and
Disclosure Reform) Act 2018 (Cth) (Electoral Funding Act).
6
In 2020, the Commonwealth
Parliament passed a further piece of legislation, the Australias Foreign Relations (State and
Territory Arrangements) Act 2020 (Cth) (ForeignRelations Act),
7
designed to protect and manage
Australias foreign relations more broadly, including arrangements entered into by Australian
universities. Those laws are scaffolded by various governance and risk frameworks, and guidelines
for Australian universities. In 2019, a University Foreign Interference Taskforce (UFIT) was also
established.
8
The complicated legislative response has been criticised for being badly targeted,
poorly designed and imposing unjustif‌ied burdens on free speech especially for groups such as
academics, non-government organisations (NGOs) and journalists.
This article is the result of an interdisciplinary collaboration between legal scholars and a
journalist with prolif‌ic expertise and experience in media. Our aim is to explain and clarify the
legislation and the free speech burdens it potentially imposes, to determine whether the laws are
suitably targeted at preventing and deterring foreign interference without unduly limiting legitimate
communication activity. Freedom of speech is a central pillar of democratic societies. It is how we
hold our governments to account, communicate about and decide on complex policy issues, make
informed voting decisions, disseminate knowledge and realise our autonomy as individuals. Foreign
3. Select Committee on Foreign Interference through Social Media, Parliament of Australia, First Interim Report, (December
2021) 23.
4. Ibid.
5. Ibid.
6. Other parts of this package include the Security Legislation Amendment (Critical Infrastructure) Bill 2020 (Cth) and the
Defence Trade Controls Act 2012 (Cth). While these are all relevant to countering foreign interference, we will only
examine the legislation that potentially impacts on speech.
7. Australias Foreign Relations (State and Territory Arrangements) Act 2020 (Cth).
8. University Foreign Interference TaskforceDepartment of Education (WebPage)
counter-foreign-interference-australian-university-sector/university-foreign-interference-taskforce>.
104 Federal Law Review 52(1)

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