The Weight of a Word: ‘Covert’ and the Proportionality of Australia’s Foreign Interference Laws

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 democratic 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 [2021] HCA 16. Despite the High Court not being required to determine the validity of the foreign 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.