If you can make any sense out of the conviction and sentencing of Alexander Csergo in the context of Australia’s national security, you’re doing very well.
After a prosecution featuring a US espionage “expert”, Csergo was convicted in March of the offence of “reckless foreign interference”, and sentenced in September to three-and-a-half years in prison. As he had already spent a year in jail — much of it in solitary — he is eligible for parole on October 24, despite the maximum sentence being 15 years.
Csergo, who’d spent more than a decade in China, was in lockdown in Shanghai in 2022 when approached on LinkedIn by two people whom, the prosecution maintained but the trial judge didn’t accept, he should have immediately known were Chinese government operatives. Insisting they were from a Chinese think tank, they engaged him to prepare material on Australia. Csergo agreed, on the basis that he would not provide material affecting Australia’s national security interests.
Like many consultants, Csergo’s product wasn’t exactly top-notch. He cobbled together publicly available material and falsely claimed to have interviewed Kevin Rudd. His employers, “Ken” and “Evelyn”, then tasked him with a more national security-oriented “shopping list” of material to obtain when he returned to Australia, but Csergo did nothing with the list.
Despite the obvious problem that Csergo provided no information of any note and ignored an effort to turn him into a more active collector of information back in Australia, the government was able to successfully prosecute him because of the extraordinarily vague wording of s. 92.3 of the Criminal Code, which established the new “reckless foreign interference” offence in the Turnbull government’s package of reforms around foreign interference. That offence merely requires “conduct”, some sort of link with a “foreign principal”, which includes not merely foreign officials but foreign political party representatives, and being “reckless” as to whether the “conduct” influences “a political or governmental process of the Commonwealth or a State or Territory; or influence[s] the exercise (whether or not in Australia) of an Australian democratic or political right or duty.”
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That section is so broadly worded that all manner of conduct is potentially caught. A member of parliament talking to a diplomat from the United States or Israel is, surely, engaging with a foreign principal and being reckless as to whether they then influence politics. Any company with interests affecting Australia’s notoriously vaguely defined “economic security” that liaises with an official of a Chinese government is potentially caught. And because “foreign principal” includes foreign political organisations, surely News Corp is captured? Politicians appearing on News Corp outlets and then seeking to influence Australian politics is an open-and-shut case of reckless foreign interference.
But the Csergo prosecution illustrates another tension. If the goal is to crack down on any conduct that assists a foreign state to interfere in Australia — clearly the US and Israel are de facto exempt despite being the most egregious interferers in the Australian polity, and infinitely more successful than the Chinese — where do we draw the line? The Australian and Chinese economies are deeply linked despite our having very different strategic interests, and the two can’t always be kept separate.
We pour hundreds of billions in raw materials into China, and it exports increasingly high-tech manufacturers to us and the rest of the world — and develops an increasingly massive military. How much Australian iron ore finds its way into the steel hulls of China’s rapidly growing fleet of warships that the media obsesses about whenever they sail south of the equator? If we’re concerned about the capacity of China to interfere with or intimidate Australia via the People’s Liberation Army Navy, perhaps we should stop providing iron ore for it? The wording of section 92.3 is vague enough to capture any conduct by a company that interacts with a representative of the Chinese government. Ironically, the very law designed to thwart Chinese interference has a remarkably authoritarian vagueness that allows the government to target anyone it likes.
Perhaps higher courts will have something to say about this vagueness; Csergo is appealing his conviction to the NSW Court of Criminal Appeal while he awaits release. Bernard Collaery’s firm has returned to the case, and Collaery believes the case raises issues likely to be considered worthy of High Court review.
One curious feature of the case remains: why Chinese intelligence officers thought it worthwhile to recruit a fairly anonymous consultant and pay him generously for what would have been clearly poor-quality “intelligence” that the Chinese themselves could have easily assembled from an hour’s googling. It’s not impossible that Csergo was set up as a test case for the Chinese to watch Australian institutions — ASIO, the AFP, prosecutors, the courts — respond, while creating the impression for Australian intelligence officers, and the journalists they feed with information, that our counter-intelligence systems are in good working order. Even absent of such a careful plot, the main beneficiary of the entire trial is the Chinese government, which would have noted every detail of Csergo’s investigation and prosecution and what details of security agency tradecraft emerged from it.
Australia’s good at that sort of thing: telling ourselves we’re safeguarding the country and the region against Chinese aggression and interference while we help the Chinese expand and extend their power. Look no further than AUKUS, which promises, maybe, some submarines for Australia in the 2040s, while China churns out nuclear-powered submarines three times as quickly as the United States. They don’t need to pay any consultants to know how poorly we compare in naval terms. Perhaps 92.3 could be applied to the designers of AUKUS?