Despite a COVID-driven dip to 1.6 million, Australia remains a country with high numbers of long-term migrants without the rights that come with permanent residence or citizenship. In many areas of public policy we are struggling, often unsuccessfully in my opinion, to deal with the social and political implications of this population, of which international students are the second largest category after New Zealanders.

A recent article in The Conversation by election law expert Graeme Orr drew my attention to a further example of unjustifiable, and in his view potentially unconstitutional, treatment of temporary migrants. For some years now the government has been preoccupied with ‘foreign’ (ie Chinese) influence. One response has been stripping temporary migrants of political rights.

Three years ago I wrote a post criticising restrictions on temporary migrants being able to make political donations. Legislation passed this week takes these restrictions much further, covering other kinds of political expenditure and activity.

I should note that nothing MPs said when discussing this law indicated that they thought temporary migrants such as international students were a political problem, or that they even realised that it applied to them. A ‘foreign campaigner’ is defined negatively, as someone who is not a citizen, permanent resident, or New Zealander. But to know those categories would require cross-referencing two separate provisions of the existing Commonwealth Electoral Act, when the reality is that MPs haven’t read the bill they are debating, much less the legislation that bill amends.

We get policy on temporary migrants wrong as much because we are just not thinking it through as because we consider them and then make a bad decision.

Significant new restrictions on supporting or opposing a political party or candidate

Under the old rules temporary migrants were banned from donating to political parties and to NGOs for a range of political purposes. But they could still spend their own money directly in a political campaign. Under the new rules, a temporary migrant will not be able to outlay more than $999 a year on ‘electoral expenditure’.

Under the Commonwealth Electoral Act electoral expenditure is expenditure incurred for the ‘dominant purpose’ of creating or communicating ‘electoral matter’, which in turn has the dominant purpose of influencing the way electors vote in a federal election.

If this just meant promoting or opposing a political party, MP or candidate in a federal election – with the legislation creating a rebuttable assumption that everything doing this is ‘electoral matter’ – this would be a serious constraint, but one with clear rules about what was and was not covered.

Unclear new restrictions on issue campaigns

The legislation, however, introduces ambiguity. It refers to ‘express or implicit’ comment, so simply not mentioning one of the protected political categories would not be a watertight defence. Many issue campaigns at least implicitly, and often explicitly, oppose government policy without directly saying ‘as a consequence, you should vote party X out of office’ or ‘you should vote in party Y that supports our goals’.

The dominant purpose test recognises that debating issues and swaying votes, while often overlapping activities, are not identical. A note in the legislation says that ‘communications whose dominant purpose is to educate their audience on a public policy issue, or to raise awareness of, or encourage debate on, a public policy issue, are not for the dominant purpose of influencing the way electors vote in an election (as there can be only one dominant purpose for any given communication).’

But this reads too much like a re-statement of exemptions for news media and for ‘dominant’ academic or educative purposes. The practical effect of an issue campaign may be to raise awareness and encourage debate, but a dominant purpose test is about motives, not consequences. Many issues campaigns have specific policy goals; raising awareness and encouraging debate may be necessary steps toward those goals but are not the campaign’s dominant purpose.

Restrictions on ‘authorising’ electoral matter

Electoral matter typically needs an ‘authorised by’ notice. The new legislation prohibits temporary migrants from authorising electoral matter, effectively taking the political activity ban well below the expenditure cap, as it includes cheaply produced leaflets and posters.

Lack of clarity

An implicit assumption in much campaign finance law is that politics is something carried out by large organisations that can afford professional staff to advise on complex regulation. The Commonwealth Electoral Act now runs to 700 pages. But a liberal democracy should have few restraints on political activity, and the restraints that do exist should be clear and simple. Complex rules create a chilling effect, because people don’t know what they can and can’t do, and lead to needless controversies and punishments for technical breaches of the law.

In trying to strike balances between competing objectives the electoral expenditure laws create large grey areas.

It’s not unusual for laws to take motives or intentions into account, but doing so makes the fact situation more difficult to determine. Directly advocating for or against a party or candidate creates a clear factual situation that can be determined from publicly available evidence (private communications are excluded). A ‘dominant purpose’ test could need information not on the public record, to do with the decision making that led to the electoral matter, or on the public record but not directly related to the electoral matter in question, such as other activities of the ‘foreign campaigner’.

The legislation provides for heuristics such as how close in time electoral matter is to an election, but this confuses as well as offering a potential legal escape, by making the same electoral matter legal at one time and illegal at another.

Legitimate stakes

The new legislation states that its aim is, to ‘the extent possible, that only Australians and those with a genuine, legitimate stake in the outcomes of the Australian political process are able to influence those outcomes’.

‘To the extent possible’ is a heavy qualifier; a nation in which almost every political idea is a variant on a foreign idea and which has open internet connections to the rest of the world has little hope of political autarky.

We are left with a selective and arbitrary targeting of particular people and activities. Temporary migrants can have their views reported in the media (there’s an exemption for that) but other less influential activities are banned. It has an insiders/outsiders feel to it; people with connections to journalists or academics or politicians or Australian NGOs, or the skills to frame political communications within the law, can have their views made public, while self-help activism by those without these connections and skills is banned.

Temporary migrants have a ‘legitimate stake’ in Australian politics. The Australian government allows them to live here, taxes them, and lets many stay permanently and eventually become citizens. At the moment, it is encouraging temporary migrants to come here to look after our elderly, staff our pubs and cafes, and perform many other roles. Temporary migrants should be able to organise to express their views about how public policy affects their lives in ways that suit them, without fear of their political speech or activism being caught by complex campaign finance rules.

While I understand concerns about China, trying to legislate against foreign influence via public-directed speech and activism can never be fair or effective. ‘Foreign’ is too weak a proxy for ‘bad’; the distinctions between ‘foreigners’ and ‘Australians’ are too blurred. The liberal democratic system is not to suppress ideas or people but to use scrutiny, debate and regular elections to decide which issues are acted on and how.

Despite recent rhetorical claims no parliamentary party has any interest in pro-CCP policies. Association with the CCP is a political career killer. Reducing political freedoms for temporary migrants undermines our liberal democracy rather than protecting it from the malign intentions of the CCP.