The Weight of a Word: ‘Covert’ and the Proportionality of Australia’s Foreign Interference Laws
| Author | Tony Ross |
| DOI | http://doi.org/10.1177/0067205X221107409 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | ARTICLES |
Article
Federal Law Review
2022, Vol. 50(4) 581–610
© The Author(s) 2022
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DOI: 10.1177/0067205X221107409
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The Weight of a Word: ‘Covert’and
the Proportionality of Australia’s
Foreign Interference Laws
Tony Ross*
Abstract
The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth)
introduced the first offences for acts of foreign interference in Australian history. Inter alia, the laws
target activities sponsored by a foreign principal which seek to influence Australia’s dem ocratic
processes using coercive, deceptive and covert conduct. The Act’s offences address coercive and
deceptive conduct by foreign actors, which align with those behaviours which find contempt in
international law. However, it is the Act’s targeting of ‘covert’conduct which has drawn the widest
criticism, and which was the subject of a High Court challenge in Zhang v Commissioner of Police
interference offences, there remain serious questions regarding the proportionality of the offences
within the legislation which target covert behaviour which is not coercive or deceptive. Such benign
covert behaviour is not condemned in international law, and its prohibition in Australia presents as
an attempt by the government to remediate exploitable gaps in international law by controlling the
interactions of its own citizenry with foreign actors. When the available alternatives to such
measures are considered, this regulation appears excessive. Thus, a future challenge to Australia’s
foreign interference laws may focus on the burden which the foreign interference offence’s‘covert’
element places on the constitutionally entrenched implied freedom of political communication.
Received 24 July 2021
I Introduction
The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018
(Cth) (‘EFI Act’) introduced the first offences for acts of foreign interference in Australian history.
During the EFI Bill’s speech (‘EFI Second Reading Speech’), then Prime Minister Turnbull stated
*JD (ANU). I am thankful to Associate Professor Moeen Cheema for his supervision, and to Associate Professor Amelia
Simpson for her invaluable feedback. I also thank the journal’s referees for their feedback which guided me so effectively.
All views are my own. The author may be contacted at tony.ross@alumni.anu.edu.au.
we will criminalise covert,deceptive and threatening actions by persons acting on behalf of, or in
collaboration with, a foreign principal aiming to influence Australia’s political processes or prejudice our
national security.
1
The legislation’s necessity was emphasised by citing a spate of recent global examples of foreign
interference, including Russia’s meddling in the 2016 United States Presidential election and media
reports of Chinese Communist Party (‘CCP’) interference in Australia. However, evidence of the
‘nature and magnitude of the threat’, which provided the catalyst for the legislation, resided in a
report by the Australian Security and Intelligence Organisation (‘ASIO’), the findings of which were
‘necessarily classified’.
2
Since the introduction of the legislation, the Government’s efforts to
investigate and prosecute foreign interference have been for the most part kept secret, and the
public’s awareness of specific instances of foreign interference has chiefly been derived through
court proceedings and investigative journalism.
3
The first public use of the foreign interference provisions occurred in June 2020 when the
Australian Federal Police (‘AFP’) executed search warrants against John Shi Sheng Zhang, a staffer
in the NSW Labor Party, as part of an AFP foreign interference investigation.
4
Mr Zhang com-
menced proceedings in the original jurisdiction of the High Court under s 75(v) of the Australian
Constitution seeking writs of certiorari to quash two search warrants and declarations of invalidity
for two foreign interference offences within the Criminal Code Act 1995 (Cth) (‘Criminal Code’).
5
In Zhang v Commissioner of Police (‘Zhang’),
6
Mr Zhang challenged the validity on the grounds
that each provision impermissibly burdened the implied freedom of political communication (IFPC )
under the Constitution. On 12 May 2021, the High Court upheld the search warrants and found it
unnecessary to rule on the validity of the provisions.
7
This paper aims to explore the factors shaping
the development of the EFI Act to determine how a new challenge to the foreign interference laws
may proceed. After embarking on this process, I will argue that whereas foreign interference
offences which target deceptive and coercive conduct are proportionate responses to the threat of
foreign interference, the ‘covert element’
8
could be challenged as it unnecessarily burdens the IFPC.
Part II analyses the concept of foreign interference within international law and explains how pre-
emptive counter-terrorism laws enacted domestically have challenged longstanding conceptions of
coercive interference. Part II also draws conclusions regarding the alignment of the EFI Act with the
law of non-interference, demonstrating strong parallels with coercive and deceptive conduct, but not
conduct which is merely covert. Part III will outline Australia’s counter-foreign interference (‘CFI’)
strategy, with a focus on the Turnbull Government’s legislative approach. Part IV will discuss
several key challenges to the foreign interference offences, highlighting critics’focus on the right to
freedom of expression and the IFPC. Part V will analyse the perceived consequences of foreign
interference to Australia’s democratic institutions and citizens, emphasising the legislation’s
1. Commonwealth, Parliamentary Debates, House of Representatives, 7 December 2017, 13148 (Malcolm Turnbull) (‘EFI
Second Reading Speech’) (emphasis added).
2. Ibid 13145.
3. See, eg, Amy Greenbank, ‘Spies in our Suburbs’,ABC News (online), 25 August 2019 <https://www.abc.net.au/news/2019-
08-25/spies-in-our-suburbs-alleged-spy-web-silencing-rwandan-refugees/11317704?nw=0>(‘Spies in Our Suburbs’).
4. Mike Head, ‘Australian Parliamentary Staffer Initiates Legal Challenge To “Foreign Interference”Laws’,WorldSocialist
Website (online), 14 May 2021 <https://www.wsws.org/en/articles/2020/08/10/laws-a10.html>.
5. Criminal Code Act 1995 (Cth) ss 92.3(1)–(2) (‘Criminal Code’).
6. 95 ALJR 432 (‘Zhang’).
7. Ibid 439 [28].
8. Refers to the construction of ‘covert’, as found in Criminal Code (n 5) ss 92.2(1)(d)(i), 92.3(1)(d)(i).
582 Federal Law Review 50(4)
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