Editor’s note: The following are remarks of Prof Richard Cullen at the Hong Kong National Security Law Legal Forum hosted by the Department of Justice, on Monday, July 5, 2021.
In an ideal world, there would be no need for National Security Laws. We live in a wonderful world – but it is far from ideal. We received a stunning reminder of this certainty in Hong Kong in 2019. The insurrection, which grew out of a series of major protest marches, had established traction by early June in that year and it grimly continued for many subsequent months.
In the normal, real world, National Security Laws have been applied in various forms for centuries. The Treason Act, for example, codified the Common Law offence of treason in England in 1351 during the reign of the Plantagenet King, Edward III.
National Security Laws have grown significantly more detailed and complex over time. Context matters. After the 911 attacks in 2001 in America, there was a major lift in National Security legislating around the world – led by the US (though, until last year, there was no such lift in Hong Kong).
Consequently, the scope of the matters to be discussed today is wide. Accordingly, I plan to use my time to summarize key aspects of the Australian National Security Framework, to discuss, briefly, the National Security Framework in Singapore, and to consider two relevant case studies illustrating the impact of these National Security regimes.
Key aspects of Australian National Security Framework
The “Five Eyes” Security Alliance – history and significance
The Five Eyes security alliance was originally Two Eyes – the UK and the US. Their code-breakers had established a most useful working relationship during World War 2, in accordance with the Atlantic Charter agreed in 1941, shortly before the US entered the war. In March 1946, a secret treaty was agreed between the UK and US, in effect creating the “Two Eyes” which linked the work of the US National Security Agency (NSA) and the UK Government Communications Headquarters (GCHQ).
Canada joined this arrangement in 1948. Australian and New Zealand joined in 1956. Certain other countries ceased formal involvement and the Five Eyes alliance, as we know it today, was confirmed, consisting of the five leading English speaking allies from World War 2. The Five Eyes alliance has served an important role for its members in providing an enhanced, joint security framework.
In 2013, leaked documents provided by Edward Snowden (who once worked for the NSA) revealed that alliance members did not just spy in foreign parts but spied on one another’s citizens and then shared collected information with each other. This provided a way around domestic National Security Law restrictions which applied to spying on citizens. The alliance also help orchestrate, through security service collaboration, covert political intervention in foreign countries, which included the overthrow of governments in Iran in 1953 and Chile in 1973.
The extensive Australian legal framework
The Australian Government Website provides a summary of both the primary National Security Laws which apply and the varied National Security Agencies, which operate under those laws. These are Federal Laws, some of which are laws of general application, which contain important National Security provisions. There are additional relevant laws which apply at the State level. This Federal summary just lists the most prominent, established National Security Laws – it is not comprehensive.
Briefly the most significant Federal Acts are Defence Act 1903, Crimes Act 1914, Charter of the United Nations Act 1945, Australian Security Intelligence Organization (ASIO) Act 1979, Telecommunications (Interception and Access) Act 1979, Crimes (Hostages) Act 1989, Crimes (Aviation) Act 1991, Crimes (Ships and Fixed Platforms) Act 1992, Criminal Code Act 1995, Aviation Transport Security Act 2004, National Security Information (Criminal and Civil Proceedings) Act 2004, Surveillance Devices Act 2004 and National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Foreign Interference Act).
The Security Agencies operating in Australia include specialized agencies and other institutions which incorporate security protection responsibilities. The key security agencies are the Australian Security Intelligence Organization (ASIO) – with primary domestic security responsibilities, the Australian Security Intelligence Service (ASIS) – with primary offshore security responsibilities, the Australian Federal Police, the Australian Border Force, the Australian Criminal Intelligence Commission and the Australian Transaction Reports and Analysis Centre (AUSTRAC).
Significant enhancement in terms of funding and power is on the way arising out of a recent major review of the National Security System (see below). Australia has at least 13 major National Security Laws (including sweeping revisions and updates in the Foreign Interference Act passed in 2018) and six key agencies involved in applying these laws. Remember, too, that these are Federal laws and institutions. They are backed up by certain security-related State laws and institutions.
The laws listed above cover the widest range of security concerns, including: Treason, Treachery, Sabotage; Piracy; Espionage, Terrorism, Terrorist Financing; Hostage Taking; Interference with Ships or Aviation; Foreign Interference in Domestic Politics in Australia; and Foreign Incursions into Australia.
Procedural matters dealt with include: No Bail or Stricter Bail requirements for those charged with Terrorism offences; together with Enhanced Control, Surveillance; and Search and Information Gathering Powers.
The Criminal Code Act of 1995 also has extra-territorial scope, making it an offence to cause serious harm to an Australian outside of Australia, recklessly or intentionally.
Evelyn Douek, a rising Australian legal academic recently argued that under the new Foreign Interference Act passed in 2018, “it is illegal for a person to knowingly engage in covert conduct or deception on behalf of a [very widely defined] foreign principal with the intention of influencing an Australian political process, exercise of a vote or prejudicing national security.” The maximum penalty is 20 years imprisonment if the conduct is intentional and 15 years if arises from reckless conduct. Other provisions criminalize influencing a target in relation to any political process. Douek says that the reach of these provisions may be vast.
The Recent Major Review of the National Security System
The Comprehensive Review of the Legal Framework of the National Intelligence Community (the “Richardson Review”) was conducted by a former Head of ASIO, Dennis Richardson. The review notes that since the 911 attacks over 120 Acts had been introduced to the Federal Parliament concerning the national intelligence community resulting in one of the most complex National Security regimes in the world.
The Richardson Review runs to over 1,300 pages and contains 204 recommendations. Richardson believes that it will cost an additional A$100 million (US$75.7 million) to complete his advised overhaul of National Security Laws (this is on top of the revisions introduced in 2018 in the new Foreign Interference Act). Just conducting the review itself cost A$18 million.
National Security Role of the States
Under the Australian Constitution – and its operating Federal System – the six States and the two Territories are responsible for creating and applying their own general Criminal Law. There is no general Federal Criminal Law as there is, for example, within the Canadian Federal System. Accordingly, much behaviour which may amount to a criminal breach of Federal National Security Laws, may also place a person in serious breach of a State or Territory, Criminal Law regime. State and Territory Police Forces also may often act as a first-responder to a National Security breach.
Each of the States and Territories maintains their own specialized coordination bodies to combat National Security threats within their respective jurisdictions. They oversee local level: counter-terrorism surveillance and operations; infrastructure recovery services; controlled supply of dangerous goods; bio-hazard protection-planning; and emergency health and welfare services, for example.
The States and Territories are instructed to coordinate and cooperate with any national response to a National Security threat.
The New Zealand view
New Zealand maintains its own National Security regime, of course, though it is less elaborate than that applying Australia.
Canberra, encouraged by Washington, appears increasingly attracted by the potential benefits of using the Five Eyes alliance to apply a level of synchronized geopolitical pressure. That is, Canberra and Washington have perceived how the Five Eyes security-protection platform could be developed to launch some level of recurrent, coordinated Five Eyes political response on certain contentious issues, above all.
New Zealand differs from Australia on this issue. The New Zealand Prime Minister and Foreign Minister say they value the membership of Five Eyes as a security alliance. But New Zealand disagrees about using this security alliance to apply political pressure by issuing joint geopolitical claims. They argue, cogently, that any group political pressuring should be done outside of this alliance, which is expressly concerned with security protection.
Energetically unsympathetic reporting directed at this New Zealand response by outlets such as the Voice of America, CNN and the Australian version of the program “Sixty Minutes”, strongly suggest that significant push-back against this stance is being applied to New Zealand by Canberra and Washington.
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Key aspects of National Security Framework in Singapore
Singapore, repeatedly and understandably, has been cited as one prime, alternative destination for those currently considering relocation from Hong Kong. Kishore Mahbubani says that a key test of societal accomplishment, especially in East Asia, pivots on taking the measure of economic success and reviewing how widely shared it is within a given society. Mahbubani argues lucidly, using this yardstick, that Singapore has created the world’s most successful society.
Although one can debate that “world’s most successful” award, it is clear that Singapore’s accomplishments are remarkably positive. What, though, lies at the core of what makes Singapore such an attractive re-location destination?
Above all, Singapore offers enduring stability and an exceptional level of personal security for residents, businesses and visitors, across the public domain – combined with an ethos of hard working, widely shared prosperity. Singapore has assiduously maintained a core freedom from fear principle within its rule of law regime. This is the precept which was so gravely damaged in Hong Kong in 2019.
A pivotal part of the scheme that underpins this effective rule of law regime is Singapore’s national security framework. Around 20 separate laws help safeguard national security, the most important being the Internal Security Act (ISA). According to the International Commission of Jurists, the ISA creates substantial executive powers which permit the President of Singapore, on national security grounds, to prohibit certain publications and to proclaim certain zones as “security areas” (where very wide-ranging regulations may be applied), for example.
The President is also able, under the ISA, to order renewable detention without trial for up to two years, in certain cases. This rules our bail completely, of course. Judicial review of such decisions taken under the ISA is only allowed to ensure procedural compliance. In very serious national security cases the death penalty may apply.
Meanwhile, the media is rather more tightly regulated in Singapore than in Hong Kong. According to the Reuters Institute, the print and broadcast media are largely run by two major corporations which are associated with the governing party. Each of the two also maintains a dominant online presence. Freedom House says that the media in Singapore must take significant care to avoid speech which is “seditious, defamatory or injurious to religious sensitivities.”
In 2019, Singapore introduced a robust anti-fake news law to counter falsehoods (especially online) aimed at “exploiting” the city’s “fault lines”. This was, according to human rights critics, a disaster for freedom of speech.
In a recent report, Transparency International ranked Singapore within the top 2 percent of least corrupt jurisdictions. At about the same time, the US-based, World Justice Report ranked Singapore within the top 11 percent (globally) for rule of law compliance. Reporters without Borders, however, recently placed Singapore in the lowest 16 percent of jurisdictions for press freedom. Comparable figures for the HKSAR were: within the top 8 percent for freedom from corruption; the top 13 percent for rule of law compliance; and the top 40 percent for press freedom.
Malaysia
Two primary laws dealing with National Security – and especially Terrorism – in Malaysia are: The Security Offences (Special Measures) Act 2012 (SOSMA); and The Prevention of Terrorism Act 2015.
The first of these (SOSMA) replaced the Internal Security Act 1960 (ISA-M). The ISA-M (like its namesake in Singapore) dates from the period of British colonial rule.
Human Rights advocates in Malaysia have steadily argued for the repeal of anti-terrorism laws. There is no sign of the Government being persuaded. Strong, specialist counter-arguments stressing how these laws have been crucial in protecting Malaysia’s National Security have also been advanced.
Case studies
Australia
This Australian case study relates to the recent interaction between Australia’s extensive National Security regime and its university sector, including a number of Australia’s leading universities. Context is important in understanding how this matter has unfolded.
It is widely recognized that Canberra’s relationship with Beijing is more strained now than at any time since 1989 – following the clearing of Tiananmen Square in early June of that year. “Peak Sinophobia in Australia?” is the enquiring title of a recent, spirited overview of the current Sino-Australian relationship. The article, written by Scott Burchill from Deakin University in Australia, was published in an online public policy journal, Pearls and Irritations, in April, 2021.
Burchill begins by arguing that “Sinophobia in Australia, promoted over recent years by naïve MPs, opportunistic academics and jejune journalists, has now entered its neo-McCarthyist phase.” The following text in the article confirms the aptness of the title and sets down chapter and verse supporting the opening claim.
A number of past, high-ranking politicians from the center-left of Australian politics, including former Prime Minister, Paul Keating and former Foreign Minister, Gareth Evans, have expressed serious concerns about the inordinate influence the security services in Australia now exert over Canberra’s decision-making. The close linkage between these Australian agencies and consistently hawkish, primary US security bureaus has sharpened these expressed anxieties.
A report in the Sydney Morning Herald in March, 2021, explained how leading Australian universities had “ramped up [their interaction with ASIO] dramatically” over the previous three years due to a perceived escalating level of interference by other foreign governments. ASIO confirmed, in the same report, that it had had 60 engagements with leading Australian Universities in 2020. A number of universities, including UNSW, called for still more involvement of – and help from – the security agencies. New stringent guidelines for offshore interaction now apply.
This is extraordinary. Moreover, it is difficult to find anyone raising concerns in mainstream media outlets about the impact on academic freedom of this embrace, by tertiary institutions, of spy-based advice and influence.
Burchill goes on to note how a number of leading Australian universities feel such a need to badge themselves as wholly patriotic that they are paying handsomely for private risk assessment by a consultancy led by a former journalist who claims to be an expert on the operations of the Communist Party of China. This suggests that these universities consider that their own academic staff cannot be trusted to observe the new guidelines. Burchill continues, “It is not clear whether [this appointment] is designed to pre-empt and hopefully ward off further government erosions of academic independence.”
Angela Lehman, is Head of Research at the Lygon Group, a specialist international education organization based in Melbourne. Her comparative experience helps provide at least one direct measure of some of the impact of the much enhanced interaction between Australia’s security agencies and its universities.
She explains in an article also published in the online public policy journal, Pearls and Irritations, in June, 2021, that she lived and researched in China for 10 years and held a position as an Assistant Professor at Xiamen University for several years. Now back in Australia, she argues, in this article, that, “Navigating the surveillance mechanisms and culture at a Chinese University is far simpler than navigating the ideological surveillance currently underway in Australia.” Adding that, “Here in our freedom-loving, free-speaking liberal democracy I find myself more aware that I am self-censoring what I can and I can’t say about China than any experience of surveillance I had while in that country.”
Lehman also comments that Chinese students in China, no less than students in Australia but within their own shared experience, thought about “the bigger picture” and “wanted to understand their place in the world”.
Burchill, meanwhile, acutely notes that, “Not all foreign interference concerns the [Australian] Government. Much higher levels of intellectual collaboration exist between Australia, and the United States, the United Kingdom and Israel, to cite only three examples. All three almost certainly conduct more espionage [in Australia], but ASIO remains relaxed and comfortable about their interference in Australian domestic affairs.”
Very recently, an article in The Guardian, by Jeff Sparrow, revealed the extent of extended close engagement, in the 1970s, between certain US diplomats in Canberra and Bob Hawke, a then primary leader of the Australian labour movement and later a Prime Minister of Australia. This involvement – and that of other leading Australian Labor Party figures – is made clear in (what where) secret US embassy cables. Sparrow notes how the new Foreign Interference Act from 2018 would, “on paper at least, criminalize the kind of meddling in which the Americans have gleefully engaged for decades.”
Singapore
We saw earlier how the President of Singapore (advised by the Government) is able, under the ISA, to order renewable detention without trial for up to two years, in certain circumstances. This is not a power that is frequently exercised. Neither, however, is it a dormant power.
A Singaporean citizen, Dickson Yeo, was detained in the US in 2020 for acting as an illegal agent of a foreign power – a charge to which pled guilty. After serving a 14 month sentence in America he was deported to Singapore in December, 2020. On his return he was arrested by the Singapore Internal Security Department (ISD). He was subsequently detained for two years under the ISA in January, 2021. The ISD said he had worked as a paid agent of a foreign state in Singapore. The ISD explained that their investigations were ongoing and Yeo’s extended detention under the ISA was necessary to discover the full extent of his improper activities.
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Conclusion
Based on the broad review above of The Australian and Singaporean National Security regimes, combined with two indicative case studies, I would now like to offer some closing observations.
First Observation: all jurisdictions have a right and a responsibility to protect their National Security.
Second Observation: Road Traffic Laws were uncommonly simple 50 years ago. Today they are far more extensive, detailed and complex. Legislating to protect National Security exhibits a similar pattern.
There is a tension, in both cases, between protecting the public interest and protecting individual interests. This tension is particularly acute with National Security Laws as the punishments for breach can be remarkably severe.
Third Observation: Singapore has established what is by any measure, a forceful and effective National Security regime, which is widely accepted within Singapore. It plainly helps underpin stability and prosperity. Many in Hong Kong stress how, today, Singapore looks to be an attractive relocation destination in view of the application of the new National Security Law in the HKSAR. This is intriguing, given the long-term, clear, very tight and successful National Security controls employed in Singapore, which are significantly more stringent than those now operating in Hong Kong, since June 30, 2020, under the new National Security Law.
Fourth Observation: Comprehensive National Security controls are being significantly enhanced – at significant dollar-cost – within Australia driven above all by a forceful narrative, especially evident since 2018, stressing the Sino-threat to Australia’s National Security. The impact of these controls is growing, not least within the Tertiary Education sector.
Finally: This review suggests, I believe, certain principles which can be used to guide how a National Security regime should be employed. Where rigorous powers are conferred on government under any National Security Law, those powers should be applied firmly – when required – but not impulsively. Also, they should be applied dispassionately without fear or favor. Those powers should be applied without being colored by any current, disproportionate political fervor and they should be consistently used in a circumspect manner.
Richard Cullen is a visiting professor in the Faculty of Law, the University of Hong Kong.
The views do not necessarily reflect those of China Daily.