‘Vague’ foreign influence laws in focus as Australian businessman accused of taking money from spies

The Sydney businessman Alexander Csergo, who allegedly received cash in envelopes from suspected Chinese spies, is "at the grey end" of Australia's "intrusive" foreign influence laws, his barrister, Bernard Collaery, says.

Csergo, 55, was arrested in Bondi a week ago and charged with one count of reckless foreign interference. The businessman had been living and working in Shanghai, but returned to Australia recently.

"It is alleged that on a number of occasions the man met with two individuals, known to him as 'Ken' and 'Evelyn', who offered the man money to obtain information about Australian defence, economic and national security arrangements, plus matters relating to other countries," the Australian federal police said in a statement.

The police alleged Csergo received payment for the reports, and that "Ken" and "Evelyn" were collecting information for a foreign intelligence service.

Csergo was denied bail, a decision Collaery will appeal.

The federal government was involved in an expensive and long-running court case prosecuting Collaery and his former client, Witness K, for their alleged role in exposing a 2004 mission to bug the Timor-Leste government offices, until the attorney general, Mark Dreyfus, dropped the prosecution last year.

Collaery, who has remained a fierce critic of Australia's legal system, is now calling on Dreyfus not to consent to the prosecution of Csergo.

Collaery argues Csergo compiled the information from public sources, a common practice criminalised by what he calls a "vague" law.

When new foreign interference laws were introduced in 2018, they were described as sweeping, and the biggest overhaul in years. They were also described as being "overly broad", potentially catching innocent people in their wide net.

"So [the law] allows a government to cherrypick between information it approves of and information it doesn't," Collaery says.

"Every day of the year, Australian academics abroad provide articles and commentary on matters that they know foreign countries are interested in.

"I would think the attorney general would be concerned when he knows the full facts. This provision requires the attorney general's consent to prosecute. I earnestly hope that the attorney general will make no decision on this prosecution until the bail appeal is heard."

The commonwealth prosecutor, Conor McCraith, told the court last week that Csergo "clearly has links to the Chinese state and two people he clearly thinks work for the [Ministry of State Security]".

Australian authorities allege the topics of Csergo's reports included defence, economic and national security arrangements such as on the Aukus and Quad alliances, lithium mining, and "iron ore risk".

McCraith said Csergo also came back to Australia with a "shopping list" of information to collect, and alleged that he invited "Ken" to visit him. It is alleged thousands of messages and multiple reports were exchanged, and the magistrate Michael Barko said any layperson "would be highly suspicious about the conduct of the defendant" if they read the alleged facts, the ABC reported.

This is only the second time someone has been charged under the new suite of foreign interference laws.

The national security legislation amendment (espionage and foreign interference bill) amended the criminal code act to introduce a range of new offences and amend existing ones. The then Coalition government introduced it alongside the foreign influence transparency scheme bill.

At the time, the Law Council of Australia said the legislation was inconsistent with its principle that "offence provisions should not be so broadly drafted that they inadvertently capture a wide range of benign conduct".

A scrutiny committee raised concerns that the definitions were "overly broad". Its report gave the example that a person could be guilty of espionage if they "deal" with information and that results in the information being "made available to a foreign principal". It warned a journalist who published classified information would have committed an offence regardless of any public interest.

Australian Lawyers for Human Rights specifically warned that section 92.3, the charge of reckless foreign interference, had "excessive scope".

"The combined effect of the type of provisions referred to in the preceding paragraphs [92.2, 92.3 and 92.4] is not only counterproductive but highly dangerous in terms of a proper approach to the rule of law," it submitted.

"[They] could have the unintended effect that the bill could severely penalise bona fide and benign behaviour which causes minimal or no harm."

Human Rights Watch, in its submission to the committee inquiry into the legislation, said "reckless" should be removed as a level of culpability, and that the definition of "national security" should not include political, military or economic relations with another country.

According to the attorney general's department, a person is "reckless" if they take unjustifiable risks.

Csergo's arrest will "once again draw attention to Australia's drift into authoritarian governance", Collaery says.

"Australians are unaware of the vast inroads made into our civil liberties by the most authoritarian western democracy currently in the world: Australia.

"Democratic Australians are just asleep at the wheel."

Collaery separately took aim at the AFP for including a reference to "espionage" when it announced Csergo's arrest.

"The media release issued by the AFP referring to espionage is scandalous and prejudicial because he is not charged with espionage," he said.

"He's at the grey end of these intrusive foreign influence laws."

The attorney general declined to comment on Csergo or on the criticisms of the legal framework "as this matter is before the courts".

Csergo will face court again on 14 June.