1938, Foreign Agents and Government Paranoia

Charities serving our communities are about to be hamstrung by paranoia and legislation that misses its mark. ‘Surely a clever outward looking Australia can do better than copying ineffective US legislation from the 30s and 60s?’ writes CCA CEO David Crosbie in Pro Bono News.

1938, Foreign Agents and Government Paranoia, Pro Bono News, 27 March 2018

Australia is being overrun by foreign agents. Our democracy is under threat because so many people and organisations (including many charities) across Australia are representing the interests of foreign principals. And we don’t even know who these foreign agents are (sometimes they don’t either)! No wonder our government is so concerned!

Here are just some of the examples we know are currently sneaking below the government’s radar:

The good Greek boy enquiring about his cousin’s student visa application on behalf of his grandmother in Greece – clearly a foreign agent acting on behalf of a foreign principal.

The Aboriginal ranger funded by an international trust to come to Canberra and explain the value of his work to any politician who will listen – clearly a foreign agent acting on behalf of a foreign principal.

The church-based charity advocating for improved access to housing for their local Pacific Islander community after receiving donations from Pacific Islanders, some of whom who are not permanent Australian residents – clearly a foreign agent acting on behalf of a foreign principal.

An animal welfare charity advocating against using animals to test cosmetics by drawing on the scientific research of an overseas collaborator to help make their case – clearly a foreign agent acting on behalf of a foreign principal.

The employee of an international alcohol producer who spends most of their time lobbying, making political donations, hosting events and providing economic modelling supporting their case for lower alcohol taxes in Australia – clearly not a foreign agent acting on behalf of a foreign principal (the Australian government has no fears about any international business involved in political lobbying).

An Australian charity peak body that has discussions with their Canadian counterpart and agrees to share information so they can each work to ensure charities are not subject to increasing restrictions on their advocacy – clearly a foreign agent acting on behalf of a foreign principal.

Yes – I confess – CCA has been a covert agent secretly advocating to advance charities in Australia!

Of course, when the government is faced with such widespread undermining of democracy, it is time to legislate, and what better place to turn for model legislation than the US in 1938 and 1966.

1938 was an important year in the history of the United States. Franklin D Roosevelt was facing difficult internal issues as the US struggled out of depression, and difficult external issues with Hitler delivering his Nuremberg address attacking the Czech leadership while preparing for war.

The US was on edge – Orson Welles’s adaptation of The War of the Worlds was broadcast on radio, causing panic in some communities. You Must Have Been A Beautiful Baby was a big hit for Bing Crosby.

Some important legislation was passed into US law in 1938 including the first ever minimum wage, and an act that now threatens the voice of any outward looking charity in Australia, the Foreign Agents Registration Act (FARA).

During the World War II period, the FARA was used to successfully prosecute 23 criminal cases – mostly involving propaganda. In 1966 (a really great year) the US FARA was substantially amended to its current form focused on limiting attempts to influence government decision making by individuals and groups with international connections. Since these amendments 52 years ago there has not been one successful criminal prosecution. Three attempted prosecutions all failed. Administration actions have been more successful, but at its core, FARA is about voluntary compliance – that is – the good guys comply.

The Australian Attorney-General’s Department (AGs) had discussions with US officials about how we in Australia could adapt and adopt FARA to flush out the covert influence of foreign agents in Australia. The outcome of these discussions was the Foreign Influence Transparency Scheme Bill (FITS) which is now being considered by our parliament. AGs make no secret of the fact that the FITS Bill is based on FARA.

The FITS Bill uses similar wording and definitions as the US FARA. These definitions are so broad and all encompassing that they capture almost any relationship with anyone who is not an Australian resident or citizen – defining these relationships as “agreements to act on behalf of”. It also very broadly defines the notion of seeking to influence so that it covers any act of advocacy seeking to influence a government decision including seeking to influence public opinion on a matter of government policy. FITs establishes a register of Foreign Agents requiring all foreign agents to make statements about the nature of their activities, including their communications, and open their books to the Attorney-General’s Department. All foreign agents will be charged a fee to go on the register and failure to register could result in large fines or jail time, even if the organisation or individual didn’t know they were a foreign agent, or that they were meant to register.

Australians can take little comfort in knowing that we are not the first to copy the US FARA legislation. Russia, Ukraine, Kyrgyzstan, Israel, and now Hungary have all passed foreign agents bills, all citing the US example and some adopting direct translations of FARA. In most of these countries, the foreign agents’ legislation is used to restrict the voice of civil society, with a heavy emphasis on identifying and restricting any charity receiving overseas funding.

Nick Robinson at the International Centre for Not-for-profit Law is one of many calling on the US to amend their current FARA: “As an immediate step, Congress should consider amending the act to make clear that it covers only true principal-agent relationships. The act should also only target the agents of foreign governments or political parties. Finally, the Department of Justice should adopt an enforcement strategy that explicitly addresses concerns about it being used to undermine civil society at home or used as justification for anti-democratic “foreign agent” laws abroad.”

There may be a need to better identify foreign agents in Australia, but onerous registration schemes targeting charities pursuing their charitable purpose is, at best, legislative overreach.

The Australia I want to live in is not a small minded paranoid little country, seeking to close off our relationships with the rest of the world for fear of foreign influence. Surely, we want our charities to learn from international experience, to collaborate, to develop more international partnerships. We should be promoting international relations, not seeking to restrict them, just as we should be promoting the voice of charities in our public discourse on national policies.

The FITS Bill is clearly not fit for purpose. Those seeking to create a register of foreign agents need to go back to the drafting table and start again with a focus on what the problem is. This is one of those definitional legal issues that should not be about activities, but purpose. Targeting everyday Australians and charities that are simply going about their business of building stronger communities is a waste of everyone’s time, effort and resources.

Surely a clever outward looking Australia can do much better than copying ineffective US legislation from the 30s and 60s? It is time to drop the FITS Bill and start again!

Read in Pro Bono News