MELBOURNE, Australia — Australia, gripped by growing anxiety about China’s influence on its internal affairs, introduced sweeping legislation a few years ago to prevent foreign interference, but until now the laws have never been tested in court.
On Thursday, a judge ruled that the one man who has so far been charged under the new laws will stand trial. The evidence against him is largely circumstantial, and his case raises issues that some experts voiced concern about when the legislation was enacted in 2018.
The man, Di Sanh Duong, 67, was charged in 2020 with preparing for an act of foreign interference, an offense which carries a maximum sentence of 10 years. Australia’s federal police say that earlier that year, Mr. Duong used a donation to cultivate a relationship with Alan Tudge, then a federal minister, so that he could approach Mr. Tudge in the future with the aim of influencing government policy to the advantage of the Chinese government.
The donation of $26,000 ($37,450 AUD), raised by members of the Australian-Chinese community, was to a Melbourne hospital on behalf of a local Chinese association that Mr. Duong led. Mr. Duong invited Mr. Tudge to be present for the handing over of the check, the court heard during a four-day hearing to determine whether the case should go to trial.
In court, Mr. Duong’s lawyer, Neil Clelland, said that the donation was merely a way of combating anti-Chinese racism, which had spiked as a result of the pandemic. Mr. Duong, who was born in Vietnam and came to Australia as a refugee, is of Chinese heritage.
Sarah Kendall, a legal researcher at the University of Queensland who is an expert in the new foreign interference legislation, said that the case “speaks to the breadth of the laws” and highlights how conduct that may be harmless in itself could be considered a crime if police could prove that behind the conduct was the required intent to prepare for foreign interference.
The case, she added, also reflects “the fact that the offense has the capacity to criminalize people on the basis of their connections or associations.”
Mr. Clelland argued that the case should be dismissed because the police lacked evidence that Mr. Duong was being instructed by or was reporting to the Chinese government; that he was planning to influence Mr. Tudge on a particular policy or issue; or that his actions were part of a plan by someone else to influence Mr. Tudge on a particular issue.
“There needs to be evidence, not merely innuendo, supposition and conjecture about what might happen in the future,” he added.
But the judge agreed with the prosecution who said that under the new legislation, the police did not need evidence that Mr. Duong was planning to commit a future act of interference for the case to proceed. Patrick Doyle, the lawyer for the prosecution, argued that it was enough that when Mr. Duong approached Mr. Tudge, he had in mind that a good relationship with the minister might lead to his becoming an advocate for policy issues related to China.
He pointed to an intercepted phone call between Mr. Duong and associates in which Mr. Duong said Mr. Tudge could be a “patron or supporter for us” in the future and speak on issues “for us Chinese.”
This phone call should be viewed in light of several pieces of circumstantial evidence, Mr. Doyle said. He said that the prosecution would show that Mr. Duong was a leader or member of organizations and Chinese community associations overseen by the United Front Work Department, the Communist Party’s arm for dealing with overseas Chinese, which, he said, “seeks to nudge countries and their elites in more compliant directions.” Mr. Doyle also asserted that Mr. Duong had told associates that he met with Chinese government leaders when he traveled to China, and that he had once written to another politician to suggest that the country’s Liberal Party should support China’s Belt and Road project.
Mr. Clelland, the lawyer defending Mr. Duong, said the unusual aspect of the new legislation was that it sought to “criminalize future conduct.” He added that the prosecution was relying on circumstantial evidence to reach conclusions on future matters and that doing so “strains every sinew of the criminal law.”
The nature of the evidence needed to prove intent is one of the questions at the heart of the case, said Ms. Kendall, the researcher. Ultimately, she said, “it comes down to what the jury or judge would believe about the person’s intentions.”
