Chapter 3The risk of foreign interference
Introduction
3.1Australia faces grave challenges from espionage and foreign interference. Malign foreign actors have previously interfered in Australian electoral events. More broadly, research by the Australian Strategic Policy Institute (ASPI) in 2020 identified 41 elections and seven referendums between January 2010 and October 2020 where cyber-enabled foreign interference was reported, encompassing both cyber operations targeting the electoral system and online information operations. ASPI’s data showed that Russia was the most prolific state actor engaging in online interference, followed by China whose cyber-enabled foreign interference activities had significantly increased over this period, in addition to Iran and North Korea which have also attempted to influence foreign elections in recent years.
3.2In the context of the referendum, therefore, it is pertinent to ask: why might a foreign actor wish to interfere in a domestic referendum into an Aboriginal and Torres Strait Islander Voice to Parliament, and how might foreign interference activities take place?
3.3It is not necessarily the case that a foreign actor would interfere in this referendum because they have a particular interest in either the ‘Yes’ or ‘No’ result prevailing. Rather, it is more likely that a malign foreign actor would seek to profit by exacerbating existing tensions within Australian society as a means of undermining social cohesion and national unity, and of harming Australia’s democratic institutions and processes in the eyes of the public.
3.4In recent years, foreign actors have ‘taken advantage of the digitisation of election systems, election administration and election campaigns to interfere in foreign elections and referendums’. Therefore, there is a clear risk that this referendum could be used as another vehicle to subvert Australia’s democracy.
3.5To that end, this chapter begins by considering the nature and the risk of foreign interference in electoral events such as the upcoming referendum. The chapter then looks at existing measures to combat foreign interference. The chapter then examines whether the government has instigated any additional protective measures for the upcoming referendum.
Foreign interference in Australia’s electoral events
3.6The Electoral Integrity Assurance Agency (EIAT) is a cross-departmental taskforce comprised of the following federal agencies:
Australian Electoral Commission (co-chair);
Department of Finance (co-chair);
Department of the Prime Minister and Cabinet;
Department of Infrastructure, Transport, Regional Development, Communications and the Arts;
Department of Home Affairs;
Attorney-General’s Department;
Australian Federal Police;
Australian Signals Directorate; and the
Office of National Intelligence.
3.7The EIAT describes foreign interference as:
…activities carried out by, or on behalf of, a foreign actor, and is coercive, corrupting, deceptive or clandestine, and contrary to Australia’s sovereignty, values and national interests.
3.8Mr Tom Sear, a researcher at the University of New South Wales, submitted that the referendum is a ‘high value target for a hostile state interference campaign’. The aim of such a campaign would be to reduce the quality of debate, ‘muddy the waters’, and sow confusion not only about the debate but about the broader value of democracy itself.
3.9In this context, it is useful to draw a distinction between ‘misinformation’ and ‘disinformation’. The EIAT uses the following definitions of misinformation and disinformation, to which the committee refers:
misinformation is false information that is spread due to ignorance, or by error or mistake, without the intent to deceive; and
disinformation is knowingly false information designed to deliberately mislead and influence public opinion or obscure the truth for malicious or deceptive purposes.
3.10The Department of Foreign Affairs and Trade warns that social media has become a haven for disinformation and misinformation:
The increasing ubiquity of cyberspace and social media platforms as a source of information and for personal engagement on a wide range of social and community issues has made them a key venue for the dissemination and amplification of disinformation and misinformation.
3.11Similarly, the Department of Home Affairs (Home Affairs) identified social media as a primary mechanism by which foreign actors may choose to spread disinformation:
Social media platforms provide unique opportunities for foreign actors to amplify information operations at low cost and with anonymity. Social media is a channel for foreign actors to obtain: personal information, spread disinformation, undermine democratic processes and institutions, silence dissent, and limit free speech.
3.12The Australian Security Intelligence Organisation (ASIO) has warned of the unprecedented threat of foreign interference to Australia’s interests. On 21February 2023, Mr Mike Burgess, Director-General of ASIO, delivered ASIO’s annual threat assessment for 2023. In it, the Director-General stated that:
Australia is facing an unprecedented challenge from espionage and foreign interference and I’m not convinced we, as a nation, fully appreciate the damage it inflicts on Australia’s security, democracy, sovereignty, economy and social fabric.
Multiple nations are using espionage and foreign interference to advance their interests and undermine Australia’s.
They are using espionage to covertly understand Australia’s politics and decision-making, our alliances and partnerships, and our economic and policy priorities.
3.13The government has publicly stated that it is abreast of the risk that foreign interference poses to Australia. In an address to the National Security College at the Australian National University on 14 February 2023, the Minister for Home Affairs, the Hon. Clare O’Neil MP outlined how malign actors might seek to interfere and what impact that might have on Australia:
We see it too, on social media, where foreign governments covertly try to sow division around political issues that are felt deeply within the Australian community. They are trying to deliberately deteriorate our social fabric and cause conflict and painful rifts between neighbours who have lived peacefully together for many years…
Foreign interference is not hypothetical. It is not merely something that lies in our future. It is happening today, and we need to do more to tackle it, today.
3.14As well as seeking to manipulate community discourse and understanding of social issues, malign actors may also seek to undermine trust in public institutions. The Australian Electoral Commission (AEC) submitted that:
The spread of disinformation is an increasing problem for electoral administrators globally. Malign actors constantly attempt to warp the broad electoral information ecosystem as a means of misleading voters and undermining democratic processes (thereby weakening community confidence in electoral outcomes).
3.15Instances of attempted foreign interference in Australian electoral events have occurred. The lead up to the 2019 Federal Election is one such example. The ASPI reported in 2019:
On 18 February 2019, Australian Prime Minister Scott Morrison confirmed that a hacker group had targeted the Liberal, Labor and National parties and accessed the servers at Parliament House. The Prime Minister has noted that the breach, which occurred on 8 February 2019, was the work of a ‘sophisticated state actor’. While the Australian Government hasn’t specified which state was suspected of carrying out the operation, many commentators publicly identified China as the most likely.
3.16Other democratic nations have experienced similar attacks. In March 2023, the media reported that leaked intelligence reports from the Canadian Security Intelligence Service advised that disinformation campaigns made undisclosed donations to support preferred candidates in Canada’s 2021 federal election. Alleged objectives attributed to these actors were not just a specific outcome in that election but division and disunity and the undermining of national cohesion.
Current preventative arrangements
3.17Several pieces of legislation and supporting arrangements, put in place by successive governments, provide Australia’s electoral processes with protections against foreign interference. Some exist alongside electoral legislation, such as the financial disclosure arrangements contained in the Electoral Act, described in chapter 2.
3.18However, as noted in the Interim Report of the Senate Select Committee on Foreign Interference through Social Media, ‘while several pieces of legislation apply to social media and the online environment more generally…none specifically address the problem of foreign interference through social media’. The social harm that may arise from the spread of misinformation via social-media is considered in chapter 4.
3.19The committee received limited evidence on two measures that may help protect the integrity of the referendum process, namely the Foreign Influence Transparency Scheme (FIT Scheme), and the Electoral Integrity Assurance Taskforce. These are covered below.
Foreign Influence Transparency Scheme
3.20The Foreign Influence Transparency Scheme is administered by the Attorney-General’s Department (AGD). The AGD described it as a ‘key transparency measure to provide visibility of the nature, level and extent of foreign influence in Australia’s political and governmental processes’.[15]
3.21Under the FIT scheme, individuals and entities are required to register certain activities ‘for the purpose of influencing a political or governmental process or decision on behalf of a foreign principal’.
3.22A ‘foreign principal’ includes a foreign government, a foreign political organisation, a foreign government related entity and a foreign government related individual. Registerable activities include parliamentary lobbying, general political lobbying, communications activities and financial disbursement activities.
Electoral Integrity Assurance Taskforce
3.23As a cross-departmental taskforce, the EIAT provides a mechanism for sharing information between relevant agencies on potential threats to electoral integrity such as disinformation campaigns, foreign interference, and cyber intrusions. When required, the EIAT is also supported by intelligence agencies.
3.24Mr Scott Dilley, First Assistant Secretary, Governance Division, Department of Finance, described the EIAT as the ‘primary mechanism by which [the departments] coordinate and share information, including with the intelligence agencies’.
Foreign interference in the referendum
3.25With respect to the risk of foreign interference in the referendum, the following sections consider:
the extent of the advice sought by the executive government on the risk of foreign interference;
the Government’s own understanding of the risk;
the adequacy of the federal response; and
the government’s interaction with social media platforms.
Extent of advice sought by the government
3.26The Special Minister of State, Senator the Hon. Don Farrell, is the minister responsible for the successful delivery of the referendum. Prior to the start of this inquiry, Minister Farrell was questioned on the government’s awareness of, and preparation for, foreign interference in the referendum.
3.27On 22 March 2023, during Senate proceedings, Senator James Paterson asked Minister Farrell if the government had received any advice about the risk of foreign interference in the upcoming referendum.
3.28Minister Farrell responded: ‘I'm not aware of any specific advice that we have received in relation to foreign interference in the referendum. But, as always, I'm sure the AEC will monitor these issues.’
3.29When pressed, Minister Farrell further stated:
I'm very confident, Senator Paterson, that the AEC are dealing with any issues that might relate to foreign interference in exactly the same way they deal with them at general elections—that is, very competently. If there were any issues that I needed to be made aware of, I'm sure the AEC would have done that. As I said, I was in conversation with the commissioner only yesterday afternoon. He certainly didn't raise with me any issues in relation to foreign interference.
3.30Senator Paterson pointed out that the Attorney-General, the Hon. Mark Dreyfus MP, had publicly mentioned the risk of foreign interference in the referendum. Senator Paterson asked Minister Farrell to clarify his answer and provide information on whether he or any government minister had met with any social media tech platforms about the risk of foreign interference in the referendum. Minister Farrell endeavoured to come back to Senator Paterson with an answer later that day.
3.31Minister Farrell subsequently tabled a statement which read, in part:
I understand at the National Press Club, the Attorney-General last year expressed concern about overseas funding of campaigning in the upcoming referendum, and that he was referring to foreign donations.
I also understand that he did not refer to 'advice'.
3.32The tabled document did not answer whether the government had met with the social media tech platforms.
3.33Senator Paterson asked again whether the government had sought advice about the risk of foreign interference in the referendum. After an exchange, Minister Farrell responded, ‘I can talk for myself, and the answer to that is no’.
3.34On the way the government intends to address instances of foreign interference in the referendum, Minister Farrell said:
We're going to apply the foreign interference regulations that apply to a general election. We think that is the appropriate course of action to deal with any potential sources of foreign influence. If we find that there is foreign interference, we will ensure that it's dealt with in the same way that it would be dealt with in respect of a general election.
3.35Following this exchange with Minister Farrell, Senator Paterson submitted two written questions on notice through the Senate to the Attorney-General and the Minister for Home Affairs, asking if either minister’s department or agencies had identified any foreign interference risks in the proposed referendum; whether the ministers had sought advice from their departments or agencies on the risk of foreign interference in the proposed referendum; whether the departments or agencies in the ministers’ portfolios had offered to provide advice to government on the foreign interference risks; whether the departments or agencies had been directed by their ministers to monitor foreign interference and undertake planning to prevent foreign interference; and whether the ministers or their departments or agencies had consulted with technology and social media platforms on the risk of foreign interference in the proposed referendum.
3.36The answers by both the Attorney-General and the Minister for Home Affairs unfortunately confirmed that the government is adopting a passive, business-as-usual approach to the foreign interference risks in this referendum.
3.37In their answers, the Ministers pointed to the work being conducted by the EIAT which, while important, is reflecting a regrettable level of complacency as the government is not being proactive in identifying and mitigating foreign interference risks in the referendum.
3.38Both ministers confirmed that they had not consulted with social media platforms—with the sole exception of one meeting that took place on 31 March 2023 with Deputy Secretary Andrew Kefford PSM, National Counter Foreign Interference Coordinator at the Department of Home Affairs with Tencent (owner of WeChat), just one day after Senator Paterson’s question on notice was submitted—but even that meeting was limited to a discussion of the role of the EIAT and its support to the upcoming referendum.
3.39From the above exchange, and the responses to Senator Paterson’s questions on notice, it is clear that the government is regrettably complacent about the likelihood of foreign interference in the referendum.
Government understanding and assessment of the risk
3.40Given the exchange between Senator Paterson and Minister Farrell on 22 March 2023, the committee sought to clarify whether a risk assessment had been undertaken by the government in relation to the referendum.
3.41In evidence at the public hearing on 4 May 2023, government departments were asked to provide their assessment of the likelihood of, or the risk of, foreign interference in relation to the referendum.
3.42Mr Anthony Coles, First Assistant Secretary, and Deputy Coordinator, Counter Foreign Interference Coordination Centre, Department of Home Affairs, told the committee that such an assessment was ‘a matter for intelligence agencies’, but that the EIAT had received security advice from ASIO.
3.43The committee was unable to ask ASIO directly as it declined both the committee’s invitation to provide a submission to the inquiry, and to give evidence at a public hearing. Other departmental representatives did not provide an answer.
3.44In an answer to Senator Paterson’s question on notice about the Department of Home Affairs’ assessment on the likelihood of foreign interference in the upcoming referendum, the Department declined to be forthright with the committee by only stating:
ASIO is always considering the foreign interference threat to Australia’s political systems and process in line with its legislated role and this of course extends to the proposed referendum.
If ASIO identifies foreign interference targeting the proposed referendum, it would work quickly with its partners to address the threat. In accordance with long standing practice that is necessary to protect its methods and capabilities, ASIO does not talk about operational matters publicly.
Adequacy of the federal response
3.45AGD submitted that it would be supporting the referendum through its administration of the FIT Scheme. It pointed to its conduct during the 2022 federal election, stating:
As it did during the 2022 federal election, the department will consider any allegations that arise to determine whether any registrable activities are being undertaken, and work with government counterparts to assess whether any obligations under the Scheme apply to the material to ensure the integrity of the referendum.
3.46The committee heard that the EIAT was the other established framework in place to address risks to the integrity of electoral processes. Mr Dilley from the Department of Finance described the operation of the EIAT:
It is an information sharing and advisory body ultimately to the Electoral Commissioner, and so it can consider issues and the crossover and the boundaries of those issues, but then it would fall to individual entities, whether that was an intelligence agency or a law enforcement or perhaps a civil response or a communications response, a regulatory response. The appropriate response would fall to the relevant agency or agencies to pursue under their relevant powers and legislation.
3.47Mr Coles from Home Affairs added that structures in place under the EIAT allow the government to identify issues that may affect the integrity of the election, including foreign interference.
3.48In addition, the committee heard that an ‘associated subgroup’, the Electoral Integrity Intelligence Forum (EIIF), co-chaired by Home Affairs and the Office of National Intelligence, would be in operation during the referendum. Mr Coles said of the EIIF:
The purpose is to bring that intelligence capability to bear in an appropriate way to support the Electoral Commissioner through the structure of the EIAT on matters that may go to the integrity of an electoral process.
It would use intel capability to do the detection piece, and then anything that was identified within that group would be passed to the EIAT for consideration and assessment.
3.49The committee sought to clarify whether any specific measures had been put in place by the government in addition to those normally in operation or implemented for the purpose of a general election. None of the departments gave evidence to suggest that they had been instructed to enact any procedures above and beyond their normal operations.
3.50Mr Dilley stated that the Department of Finance’s engagement had concerned the amendments of the Referendum (Machinery Provisions) Act 1984:
Some of the changes [to the Act], you would be familiar with, were to prevent foreign persons and entities from authorising referendum material, to restrict gifts and donations from foreign donors, and to prevent expenditure and fundraising by foreign persons and entities.
3.51Mr Parker Reeve, Transparency and Administrative Law Branch, Integrity Frameworks Division, at AGD, said:
the department is a member of the EIAT and is actively engaged in supporting the integrity of the referendum through that process. The department has not otherwise received a direct request from the Attorney-General outside of those established channels.
3.52Other departments also deferred to the EIAT as the primary mechanism by which the threat of foreign interference was being addressed. Mr Simon Gordon, Acting Group Manager, Empowerment and Recognition, National Indigenous Australians Agency, told the committee:
We have not had specific requests or exchange of advice with our minister. I think the broader position there is that the other agencies with responsibility and those baseline settings that you referred to, such as the EIAT, were the appropriate mechanisms for considering this.
Government interaction with social media platforms
3.53Given social media is a key mechanism through which foreign interference occurs, the committee sought to clarify and assesses the effectiveness of current departmental arrangements and cooperation activities occurring with social media platforms.
3.54The committee heard that relevant members of the EIAT had met with representatives from major tech platforms. An answer to a question on notice showed that between 3 February and 31 March 2023, ten meetings between the EIAT and major tech platforms had occurred, including Meta, Google, Snapchat, Tik Tok, Twitter, Microsoft, Tencent and Reddit.
3.55According to Mr Matthew Haigh, Assistant Commissioner, Electoral Integrity and Communications Branch, Australian Electoral Commission, the purpose of the meetings was to build on existing relationships with the tech platforms and inform them of the differences between a referendum and a general election.
3.56Other federal departments did not indicate any direct engagement with the social media platforms. Mr Dilley, for example, said that the Department of Finance did not meet directly with any tech platforms.
3.57Meta (the parent company of Facebook, Instagram and WhatsApp) appeared before the committee on 10 May 2023. In his evidence, Mr Josh Machin, Head of Policy, outlined that in preparation for the referendum, Meta had met with the EIAT and had close engagement with the intelligence and law enforcement agencies.
3.58In relation to any processes Meta would be undertaking specific to the referendum, Mr Machin said that Meta understood that the government intended to ‘mirror processes’ that were in place during the 2022 election:
Primarily, it's about having discussions about the pathways for agencies to send us any material on our services that they're concerned about during the election campaign. As you'll appreciate, the AEC, for example, will send us material that they're concerned might breach the Commonwealth Electoral Act. So we have fairly well established processes in place, and we appreciate the close and constructive working relationship with the AEC that mirrors what we've had for the last federal election.
3.59Asked what specific measures Meta were taking to identify and mitigate instances of foreign interference, Mr Machin explained that, amongst other things, Meta:
have strict verification requirements relating to paid advertisements in line with the authorisation requirements under the Referendum Act;
fund research in this space as well so people can track trends in foreign interference and improve our preparedness to address it;
support an extensive team that detects ‘coordinated inauthentic behaviour’ networks (for example, detecting four such networks during the 2019 federal election); and
produce quarter transparency reports.
External views
3.60Mr Sear argued that a coordinated, cohesive response is required to address Australia’s ‘imminent vulnerability’. He submitted that Australia has benefited from analogue processes ‘such as paper voting’, but that Australia’s current ‘operational focus, resourcing and legislative powers remain insufficient’ to address modern risks. To that end, Mr Sear recommended resourcing the intelligence and security agencies sufficiently to enable them to ‘commence an operational effort to detect and advise upon any hostile state influence campaign regarding the referenda in the Australian online sphere’.
3.61Mr Daniel Wild, Executive Director of the Institute of Public Affairs took a firm view, submitting that the government has ‘failed’ to implement any protection against foreign actors who seek to use social media platforms to influence the public debate on the referendum.
3.62While not inclined to pass an assessment on how well the government is currently engaging with the risk of foreign interference, Ms Alice Dawkins, Executive Director of Reset.Tech Australia, did encourage the government to ‘act proactively’.