Guilty Your Honour – of fighting for democracy and transparency

by | Sep 16, 2020 | Government

Under the foreign interference legislation, Ian Cunliffe, a lawyer with 50 years’ experience, faces many decades in jail for daring to influence public policy with his campaigning. His fate now rests in the hands of Attorney General Christian Porter.

My criminal career is finally taking off as I enter my eighth decade. I have until now had a spotless record, which was pretty important given my legal career for the past 50 years.

But just this year alone I have committed numerous offences under the foreign interference legislation. Furthermore, each offence carries a maximum of 20 years in prison.

I must confess my crimes are pretty sordid.

  • I have signed dozens of Change.org online petitions;
  • I have failed to disclose to the targets of those petitions that I am acting in collaboration with a foreign principal;
  • I have been critical in an article published in the Guardian Australia of the secret prosecutions of Witness K and Bernard Collaery; and
  • I have come up with the idea of an open letter “Project K”, hopefully to be funded by Gofundme, on the subject of those secret prosecutions.

To commit the crime of foreign interference, three boxes have to be ticked: The accused has to:

  1. engage in conduct on behalf of, or in collaboration with, a foreign principal;
  2. engage in that conduct with the intention to influence a political or governmental process or to influence the exercise of an Australian democratic or political right or duty; and
  3. any part of the conduct has to be covert or involve deception, or to involve the accused failing to disclose to the target that they are acting on behalf of, or in collaboration with, a foreign principal.

So to my first offence. Change.org is a US company, a “foreign principal” so signing the company’s online petitions ticks the first box.

Change.org encourages people to start online petitions and facilitates those petitions. Popular topics of Change.org petitions are economic and criminal justicehuman rightseducationenvironmental protectionanimals rightshealth, and sustainable food , which all come under Point 2. Petitions circulating in Australia have called for Victorian Premier Daniel Andrews to resign, for the Victorian Parliament to be dissolved, to allow beauty salons to reopen in Victoria, for people to be released from immigration detention and for certain items to be provided on the pharmaceutical benefits scheme. These petitions all tick the second box.

The third box is ticked because I have failed to disclose to the targets of the petitions I signed that I am acting in collaboration with a foreign principal – Change.org.

As to my article, Guardian Australia is foreign owned – a foreign principal. My article attacked the secret prosecutions of K and Collaery. It also suffered the third strike because I didn’t tell readers I was publishing my article in collaboration with a dreaded foreigner.

My idea of “Project K” to be funded by Gofundme would also raise concern because Gofundme is another US corporation. My cause is plainly political.

How can I ensure that my conduct in promoting the Open K open letter doesn’t tick the third box – that no part of my conduct is covert or involves deception, or a failure to disclose? For starters I’ll probably need to buy a double-page spread – one for the letter, and one for a comprehensive list of all the people who have contributed to the funding. Will I have to reject donors who want to be anonymous? I’ll have to be absolutely transparent with everyone as the project develops – I can’t tell my boss or my wife that I am playing golf if I’m actually working on Project K.

I am hopeful that I and the hundreds of thousands who have signed Change.org petitions and those who contribute to Project K won’t be prosecuted – prosecutions can only happen if Christian Porter gives his consent.

I would have more faith if Porter didn’t have such a poor track record of being vindictive when it comes to using his powers in the way an Attorney-General should – judiciously and even quasi judicially, without fear or favour, transparently and demonstrably in the public interest.

But his track record is appalling – he has stacked the Administrative Appeals Tribunal with political mates, he has relentlessly pursued Witness K and Bernard Collaery for revealing the shameful bugging of the Timor-Leste cabinet in 2004, he has failed to pursue the true criminals responsible for that disgraceful episode – mostly his current and former political mates, and he has rammed through Parliament bad laws that seriously undermine the rule of law in Australia.

Attorney General Christian Porter breaches law over three years, claims it was a mistake

ABOUT THE AUTHOR

Ian Cunliffe

Ian Cunliffe

Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

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