The global odyssey slaying our constitution, and probably those of other countries, too.
Australia’s Minister for Foreign Affairs Penny Wong has recently signed a MOU with the United States on Countering Foreign State Information Manipulation and a Joint Communiqué on the Landsat Next satellite program.
This piece of what I would have regarded as boring news prior to 2020, caught my attention, because I had recently read about the external affairs power in our constitution and the extent to which international ‘commitments’ can be construed so that the government can make laws which otherwise would be unconstitutional.
Gabriel Moens AM and Augusto Zimmermann authored this article in the Spectator Australia in April 2024. In it, they speculate on why the federal Communications Minister signed (in February 2024) an MOU with her UK counterpart entitled “Memorandum of Understanding Between the Government of the United Kingdom and the Government of Australia Concerning Online Safety and Security”:
The reason is to trigger or activate the ‘external affairs power’ provision found in section 51(xxix) of the Australian Constitution. As the range of topics regulated under the external affairs power has been endlessly expanded since the 1980s, the scope of this head of power encompasses any relationship with, or between, foreign States, and foreign or international organisations or other entities, regardless of whether they are the subject matter of international treaties or less formal dealings or agreements.
The latest two agreements fall squarely into the same bucket. In layman’s terms, if you think a piece of existing or planned legislation might not actually be constitutional, you can bolster your chances of defending it against a future High Court challenge by claiming that the agreement you signed with another country means that the constitution permits the legislation under the external affairs power.
Of course, if a journalist or other commentator had the courage to probe the government on the degree to which an MOU meant that Australians would be subject to rules and regulations dictated by another country, the response would be “Australia’s sovereignty is in no way compromised by this agreement, any laws must be passed by Australia’s parliament.” This is a glib response, and we’ve seen exactly this kind of dismissal of legitimate concerns about the changes to the WHO International Health Regulations and other instruments like the Pandemic Treaty (which keeps changing its name.)
But there’s a more subtle way in which these agreements or MOU’s do in fact compromise our sovereignty. By putting in place an MOU which can later be claimed as invoking the external affairs power, unconstitutional laws which respond to the MOU can be passed by the parliament and defended in the High Court. Why bother with a referendum to give you the power to make a law that censors speech when you can just sign an MOU with an accomplice in another country? Citizens’ rights to determine collectively, via referendum, the principles under which they consent to be governed, are thrown under the bus by simply signing an MOU.
What does the MOU on Countering Foreign State Information Manipulation actually say? It’s mercifully short, at least. You can read the whole thing here, but some key points stood out to me.
First of all, it doesn’t define the alleged problem that the MOU is allegedly trying to address. Beyond that, neither does it define ‘Foreign.’ One might at first think that ‘foreign’ must mean any country that hasn’t signed the MOU. But I suppose it could be the case that as far as the US is concerned, anyone trying to ‘manipulate’ information pertaining to the US could be caught by the MOU, even if they come from a country who is a signatory to it. The line between domestic and foreign is thus very blurry.
Here are three of the 5 ‘action areas’ the MOU endorses:
- Effectively countering foreign state information manipulation depends upon having the technical means and human capacity to maintain threat awareness.
- Civil society, independent media, and academia can play essential roles in informing, and supporting the goals of, government-led initiatives to counter foreign state information manipulation.
- Multilateral organizations and plurilateral groupings that are leveraging international cooperation to counter and build resilience against foreign state information manipulation are indispensable to alleviating information and capability shortfalls across partner nations.
Point 3 looks as if it is saying we need to have lots of new ways to surveil our domestic or foreign populations to look for evidence they might be a ‘threat.’
Point 4 has a disturbing sense that the government expects civil society, media and academia to be de-facto cheerleaders for whatever measures the government says are necessary. Whatever happened to the idea that civil society might have a robust debate about a given ‘initiative’ and that media might put the blowtorch to new ideas? Long deceased are the academics inclined to challenge the mood of the government of the day. Is there a longer term plan to introduce legislation to make such challenges illegal? If so, this MOU could prove to be a handy document to be able to invoke the external affairs power.
Point 5 enlists multilateral and ‘plurilateral’ (whatever that is) ‘groupings’ (whatever they are) as essential to filling the gaps in what partner nations can do for themselves. Is this outsourcing some authority and power to bodies like the WEF or the UN or the WHO? Sure sounds like it to me.
Other countries have signed the Countering Foreign State Information Manipulation MOU too. A quick search reveals at least Romania, Italy, Poland, Finland, Kosovo, and South Korea have found Antony Blinken’s charms irresistible in this regard.
Australians can be forgiven for having a high level of distrust of government given our experience over the last 4 years. We now have on the horizon the Digital ID legislation which will come into effect on 1 December 2024. A pilot programme is expected to be up and running before the end of 2024. As per the standard playbook, the minister assures the public that using a digital ID will be voluntary. One day in the future, to the extent that in practice, transacting without a digital ID becomes very difficult or impossible, has something unconstitutional happened? I’m not a constitutional lawyer, or even a lawyer at all, so I don’t know. But would an MOU on Online Safety, or Information Manipulation, be enough to mount an argument that says, under the external affairs powers, we have to make digital ID compulsory?
Taken together, the new Digital ID legislation, and the currently shelved-but-still-with-a-pulse Misinformation Bill present a web of tangled opportunities for ever more restrictive rules intruding into the everyday lives of Australian citizens. Once in place, it might prove impossible to disentangle oneself from these strictures. With the MOU’s on Online Safety and Security and Countering Foreign State Information Manipulation providing cover, even a High Court challenge might already be dead in the water.
This article was first published on Richard’s Substack, The view from down here.
