Brendan Walker-Munro & Sarah Kendall
Last week, a special Senate committee released a report on foreign interference through social media.
It makes for scary reading. In addition to widely publicised criticisms of WeChat and TikTok – social media platforms owned by Chinese companies – the committee found US-based platforms like X (formerly known as Twitter), Meta, LinkedIn and YouTube have been targeted by foreign interference campaigns.
Yet no one has been convicted for foreign interference since Australian law reforms on this were passed in 2018. So, what’s going on?
What did the report find?
The inquiry heard evidence of actual interference in Australia carried out using social media, such as fake Russian accounts used to stalk Ukrainians in Australia, and death threats made against foreign journalists.
Among its 17 recommendations, the report proposes transparency standards for social media companies. This includes requiring companies to have a physical presence in Australia (such as offices). A lack of this presence was one of the main reasons WeChat couldn’t be compelled to give evidence during the inquiry.
The report also recommends companies which don’t comply with the transparency standards should face massive fines or even be banned from operating in Australia.
TikTok and WeChat were also called out by the committee, with pressure building to ban those platforms from critical businesses like banks, airports and electricity providers. This is in addition to bans already in place for government-issued devices, as well as some of the large consultancy firms that work for the government.
The report also highlights the threat posed by generative AI in fuelling disinformation. On top of this, it recommends a full review of our espionage and foreign interference laws.
Our current foreign interference system
Australia already has some of the toughest laws in the world when it comes to criminalising threats to our national security, like espionage, foreign interference, and stealing classified information. These reforms were introduced in 2018 specifically to address the rising threat posed by foreign actors.
But foreign interference hasn’t gone away. In 2021, parliament was handed another report, this time by the Joint Committee for Intelligence and Security, which looked at national security risks in universities. That report found Australian universities are at risk of being infiltrated by foreign agents looking to steal scientific research and technology.
In 2022, the Australian Security Intelligence Organisation (ASIO) revealed its officers had disrupted an actual attempt to interfere with an election in Australia.
A wealthy individual with deep connections to a foreign government had hired an employee to identify electoral candidates who would support the interests of said foreign government. They then plotted to advance the candidates’ political prospects through generous support and favourable articles on foreign language news platforms. But their plans were disrupted by ASIO before they could act.
Despite clear instances of foreign interference occurring in Australia, only two people have been charged under the 2018 laws. The first case alleged that Di Sanh Duong – a prominent member of the Melbourne business community – was in league with Chinese intelligence officers.
The second charge involved Sydney businessman Alexander Csergo, again alleging he provided reports to Chinese intelligence. Both are still awaiting trial.
Why have there been so few cases?
In part, few people have been charged for foreign interference because the evidence needed to prosecute someone might divulge how Australian law enforcement and spy agencies keep their eyes out for this kind of activity.
This is where the laws designed to keep our national security information confidential in court have been strongly criticised.
Prosecutions of this kind also need to be approved by the Attorney-General. It is entirely possible the Attorney-General has declined to prosecute a person because the evidence didn’t stack up. However, that same law doesn’t prevent a person from being charged or held in remand.
Without more details from our security agencies – which aren’t likely to be forthcoming – we may never know how many people have been charged with a foreign interference offence but aren’t subsequently prosecuted because the Attorney-General did not consent to do so.
Another possibility why few people have been prosecuted for foreign interference is that it can be difficult to obtain the evidence needed to prove a particular person committed foreign interference. This is because it is easy to use anonymising technologies when engaging in foreign interference online, so it may not be possible to actually identify who committed the offence.
Even if the person can be identified, if they are located overseas, they would have to be extradited to Australia to face prosecution. This can be a challenging – if not impossible – process.
What needs to be done
Further reforms to Australia’s espionage and foreign interference laws probably aren’t necessary. The laws are already strong enough and, if anything, are too broad as they are. For example, they have the capacity to criminalise the legitimate work of journalists and academics. This can undermine core liberal democratic rights such as press freedom and academic freedom.
Rather than reform espionage and foreign interference laws, the government could focus on making changes to regulate the conduct of social media companies. For example, social media companies could be required to take reasonable steps to prevent foreign interference from occurring via their platforms. Failure to do so could be regulated in a number of ways, such as civil and/or criminal penalties if appropriate.
However, in doing so it is important the government works with social media companies to ensure we get the laws right.
In addition to law reform, government needs to resource law enforcement and intelligence agencies so they can take the actions needed to enforce existing foreign interference laws.
New transparency standards and reformed legislation won’t make a difference if the Australian Federal Police won’t – or can’t – investigate and help prosecute those responsible. If the committee’s recommendations go ahead, putting a banning power in the hands of a minister is only helpful when this power gets used.
We shouldn’t forget the power of users either. Australians could consider whether they should join the 30% of WeChat users who have already ditched the platform over interference and surveillance risks.
Additionally, we all have a role to play in fighting disinformation and social media hatred. Being responsible sharers of content and checking our facts could go just as far in combating disinformation as locking up those responsible.
Senior Research Fellow, The University of Queensland
PhD Candidate in Law, The University of Queensland