Foreign interference and the incremental chilling of free speech

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 Legislation 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.