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Melbourne businessman, 68-year-old Di Sanh (‘Sunny’) Duong, has become the first person found guilty of preparing or planning an act of foreign interference over trying to influence former federal minister Alan Tudge to advance support for the Chinese Communist Party (‘CCP’).

Duong was charged following his involvement in a $37,450 donation made to Royal Melbourne Hospital in June 2020. He presented a novelty cheque and stood next to Tudge at the media event, as president of the Oceania Federation of Chinese Organisations.

Commonwealth prosecutor Patrick Doyle SC argued that the donation was not a genuine gesture, instead submitting that Duong had regular contact with CCP intelligence operatives and was seeking to improperly influence Tudge.

In evidence, it was revealed that Duong had advised his associates that he was building a relationship with Tudge whom he regarded as the ‘future prime minister’ who would be a “supporter/patron for us”.

He was also recorded telling an associate: “when I do things it never gets reported in the newspaper, but Beijing will know what I’m doing.”

The prosecution noted how Duong would have been an ‘ideal target’ to work as an agent for the CCP’s United Front Work Department due to being a former Victorian Liberal party candidate and Chinese community leader.

Tudge was not accused of any wrongdoing and gave evidence at trial that his office had organised a media event where a novelty cheque was handed over at the hospital in June 2020.

Duong faced a month-long jury trial in Melbourne’s County Court. He pled not guilty to the charge and denied all allegations about foreign interference.

His defence counsel, Peter Chadwick KC, argued that the donation was a goodwill gesture by which Duong sought to assist the hospital and frontline workers at a time in which crucial medical equipment supplies were low.

He also sought to combat anti-China sentiment during the COVID period.

“It’s against this backdrop that Mr Duong and other ethnic Chinese members of our community decided that they wanted to do something to change these unfair perceptions.” said Chadwick.

However, the jury ultimately found Duong guilty after more than a week of deliberations.

The finding centred on what Patrick Doyle SC characterised as a “subtle form of interference” – noting how it was “about influence”.

Due to the sensitive nature of the intelligence matters involved, much of the trial was held behind closed doors with witnesses with protected identities giving evidence.

The matter was adjourned for a pre-sentence hearing in February. Duong remains on bail until this date.

 

Espionage and Foreign Interference Offences in Australia: Covert Foreign Interference in Domestic Politics Laws in Australia

The federal laws which criminalise covert foreign interference in domestic politics were introduced in 2018 via the National Security Legislation Amendment (Espionage and Foreign Interference) Bill.

The National Security Legislation Amendment (Espionage and Foreign Interference) Bill amended the Criminal Code Act 1995(Cth) to introduce offences related to treason, espionage, foreign interference, and interfering with political rights and duties, among others.

Division 92 of the Criminal Code Act 1995 (Cth) addresses foreign interference.

Section 92.2 contains the offence of ‘intentional foreign interference’, which a person will commit if they engage in conduct, which is done on behalf of, or in collaboration with, a foreign principal or directed, funded, or supervised by a foreign principal, including a person acting on their behalf.

In order for the offence to be committed, the person will intend for the conduct to:

  • influence a political or governmental process of the Commonwealth or a State or Territory,
  • influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty,
  • support intelligence activities of a foreign principal, or
  • prejudice Australia’s national security.

It is also a requirement for the conduct to be covert or involve deception or involve the person making a threat to cause serious harm or making a demand with menaces.

The maximum penalty applicable is 20 years imprisonment.

Section 92.3 criminalises the same conduct, however, applies to circumstances in which the defendant is instead ‘reckless’ as to whether the conduct will influence, support, or prejudice the aforementioned factors. The maximum penalty applicable is instead 15 years imprisonment.

The offence of preparing for a foreign interference offence is contained under section 92.4.

It will be committed where the person engages in conduct with the intention of preparing for, or planning, an offence against sections 92.2 or 92.3.

The maximum penalty applicable is 10 years imprisonment.

It is immaterial whether an offence under sections 92.2 or 92.3 is actually committed, or whether or not the person engages in the conduct in preparation for, or planning, more than one offence.

It is a defence to the charge if the conduct was done in accordance with: a law of the Commonwealth, an arrangement or agreement to which the Commonwealth is party, or in a person’s capacity as a public official.

AUTHOR Criminal Defence Lawyers Australia

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