Conspiracism

'Conspiracy theory, anti-globalism, and the Freedom Convoy: The Great Reset and conspiracist delegitimation' byr Corey Robinson and Scott D. Watson in (2025) Review of International Studies comments

In this article, we analyse how anti-globalist conspiracy theories were mobilised online to delegitimise national authorities and policies designed to curb the Covid-19 pandemic in Canada. These conspiracy theories attacked the political authority underpinning public health measures and targeted purportedly ‘liberal’ policies and ‘globalist’ actors. Our case study examines the Freedom Convoy, a series of protests against Covid-19 vaccine mandates that began in Canada but inspired global demonstrations. The Freedom Convoy fostered and relied upon anti-globalist conspiracy theories, including the ‘Great Reset’ and ‘Great Replacement’, both of which posit a global conspiracy to erode national sovereignty and impose a ‘liberal’ international order. We investigate far-right social media commentary from 4chan’s Politically Incorrect imageboard /pol/, Infowars, and Rebel News, showing how conspiratorial claims were marshalled in alt-tech spaces. These narratives were used to delegitimise public health measures to combat Covid-19 and the Liberal Trudeau government by linking them to various ‘globalist’ forces. In exploring three mechanisms of delegitimation – externalisation, personification, and Othering – we argue that far-right movements like the Freedom Convoy, motivated by anti-globalist conspiracism, mobilise the international realm by leveraging the legitimacy gap of international organisations and agendas to undermine the political authority of actors at the national level. 

 

The Freedom Convoy (FC) began in January 2022 as a series of protests, blockades, and online campaigns opposing Covid-19 vaccine mandates for commercial truckers crossing the Canada–US border. The protests quickly evolved into a broader movement, both within Canada and internationally, against ‘globalism’ and various issues associated with liberal global governance. These issues ranged from vaccine mandates to intentional depopulation and world government. The FC, which united a loose coalition of far-right groups alongside vaccine sceptics, organised via social media and travelled across Canada to gather in Ottawa and at key border points. The movement mobilised far-right anti-globalist conspiracy theories to articulate its opposition to a range of measures associated with the World Economic Forum (WEF) and the ‘Great Reset’. 

 

Using semi-trailer trucks, protestors established an encampment and demanded the repeal of public health measures and the dissolution of the Trudeau government. Sustained by the deafening chorus of honking from 400 to 500 semi-trailer trucks and supported by approximately $24 million CAD in online donations – 56 per cent of which came from the United States – the protests grew to an estimated 10,000 people in Ottawa’s downtown core, paralysing city services for over three weeks. The Ottawa protest sparked demonstrations at provincial capitals and blockades at numerous Canada–US border crossings. It obstructed at least 19 ports of entry, resulting in $3.9 billion CAD in lost trade activity. At the Coutts Port of Entry, along the Alberta border, police uncovered a cache of guns, ammunition, a pipe bomb, and body armour. Four protestors, some with alleged ties to Diagolon – a far-right accelerationist group – were charged with conspiracy to murder RCMP officers. 

 

Driven by anti-globalist conspiracies and extremist rhetoric, the FC and the Canadian government’s invocation of the Emergencies Act to end the protest garnered significant international attention, leading to smaller but notable copycat demonstrations worldwide. Countries such as Austria, Bolivia, Israel, France, the Netherlands, Belgium, the United States, Australia, and New Zealand saw groups rally against what they perceived as the authoritarianism of public health orders, framing the situation as a populist battle for ‘freedom’ against alleged government overreach and a ‘globalist’ agenda. In Wellington and Helsinki, vehicles blocked roads around Parliament, while Paris and Brussels took steps to prohibit anti-vaccine protests inspired by the FC. French police arrested dozens of individuals and intercepted vehicles heading to Brussels. In the United States, former president Donald Trump criticised Prime Minister Trudeau as a ‘far-left lunatic’ who ‘destroyed Canada with insane COVID mandates’. Senator Ted Cruz visited the ‘People’s Convoy’ in Washington, DC, to show his support, while Florida Governor Ron DeSantis vowed to investigate GoFundMe after the crowdfunding platform suspended fundraising for the protestors. Pierre Poilievre, leader of the Conservative Party and the official opposition in Canada, enthusiastically supported the FC as a popular campaign against Trudeau and the ‘gatekeeping elite’.  In his campaign to become the next prime minister, Poilievre continues to engage with many of the groups that participated in the Convoy and to weaponise conspiracy theories that found a discursive vehicle in the protests, such as the Great Reset. 

 

Focusing on the conspiracy theories surrounding the FC that circulated online, this article explores the question: how does anti-globalist conspiracism function in the delegitimation of political authority? Contextualising these transnational protests within broader scholarly debates about the global far right and populist internationalism, this article examines how far-right populists and movements have increasingly mobilised conspiracy theories to undermine national governments and ‘elites’ associated with ‘globalist’ institutions and agendas. 

 

Our analysis illustrates that the anti-globalist conspiracism surrounding the FC functioned discursively to delegitimise the political authority of the Canadian government (and public health measures like vaccine mandates) by associating them with international institutions and ‘globalist’ agendas held responsible for the pandemic response. As we show in the following sections, conspiracist delegitimation employs three primary mechanisms: externalisation, personification, and Othering. 

 

First, externalisation involves projecting problems of national politics onto the international level and attributing their causes to foreign actors, institutions, and agendas, to the exclusion of internal/domestic processes, policies, and complex, multilevel governance structures. This process redirects concerns about domestic issues onto representative figures of the global elite, delegitimising national actors (such as Prime Minister Justin Trudeau), international institutions (like the WEF), and agendas (such as the Great Reset). Of course, this is not unique to anti-globalism; identifying foreign, international actors as the driving force in history is a fundamental feature of conspiracy theories. External figures such as Klaus Schwab, George Soros, and Bill Gates were prominent in the Convoy discourse, as was the general term ‘globalists’. Externalisation functioned discursively by linking public health measures and post-Covid recovery policies to international organisations such as the WEF, the World Health Organization (WHO), and the United Nations (UN). At the same time, externalisation obscured key factors that shaped the response, such as the division of federal and provincial powers, and the rejection of legitimate democratic processes and actors, which were discredited through their association with the legitimacy deficit of international institutions. Externalisation thus served to delegitimise democratic norms and procedures by mobilising the international and the legitimacy deficit of international institutions and agendas. 

 

Second, personification entails reducing various processes and structures to the actions of single individuals or groups – what Popper referred to as ‘psychologism’ in his early critique of conspiracism – a phenomenon also captured by terms such as ‘hyperagency’. Personification assumes that individuals hold near-total control over outcomes and that outcomes are always intended. Consequently, it attributes both unintentional effects and negative outcomes of impersonal and abstract structures to the intentional conspiratorial design of powerful individuals or groups, such as Schwab, Soros, or Gates. Domestically, Trudeau personified the Covid public health measures associated with ‘globalism’, while externally, Klaus Schwab of the WEF was considered responsible for the ‘Great Reset’. The focus on Trudeau, along with his association with Schwab, obscured the mistakes and unintended outcomes that contributed to the pandemic and simplified complex global processes into a narrative of intentional design by individuals. These processes, and the complex governance of public health, border controls, international trade, and supply chains in Canada, were reduced to the intentions of specific elites. By focusing on Trudeau and associating him with Schwab and the WEF’s Great Reset, anti-globalist conspiracism offered a simplistic diagnosis of the pandemic that challenged the legitimacy of the Canadian government and public health measures by discursively linking the prime minister to elitist, illegitimate, and undemocratic forces of ‘globalism’. 

 

Finally, Othering draws on racist, civilisational, and gendered discourses to identify those allegedly engaging in or facilitating conspiratorial behaviour intended to alter social norms and practices against the values and interests of the national community. Certain groups are consistently Othered in anti-globalist conspiracism, including Jews, homosexuals, and communists, either explicitly or through the use of coded language like ‘globalists’. As we explore in subsequent sections, the FC online narratives focused their discursive energy on these ‘Others’, with communists (Trudeau and Castro), women and homosexuals (globohomo), and Jews (George Soros) all featured in the discourse about the FC. 

 

Through an analysis of the anti-globalist conspiracy theories that discursively fuelled the FC, this article makes a twofold contribution to International Relations (IR). First, it adds to the emerging body of research situated at the intersection of IR, the global far right, and conspiracy theories by extending the study of anti-globalist conspiracism beyond the realms of populist foreign policy and far-right ideology to focus on alt-tech spaces, which are becoming increasingly influential in these movements. Second, this article advances the study of populist internationalism by highlighting the role of anti-globalist conspiracism in the FC’s resistance to the perceived forces of globalism, and by analysing the mechanisms of delegitimation directed towards national authorities, who were cast as front organisations for global elites. 

 

Before analysing the process of conspiracist delegitimation in the alt-tech space, the following section reviews the multidisciplinary literature on conspiracy theory. While existing scholarship identifies individual and cultural responses to globalisation, it has not sufficiently addressed the national and international political dynamics at the root of anti-globalist conspiracism. Subsequently, we examine the emerging scholarship on conspiracy theory in IR. We then turn quickly to the literature on the global far right, which has drawn attention to the internationalisation of the far right but has largely neglected anti-globalist conspiracism. Finally, before the empirical analysis, we outline our methodological approach.

Neoliberal Theorisation

'The revolution will not be theorized: Neoliberal thought and the problem of transition' by Thomas Biebricher in (2023) Constellations comments 

Neoliberalism is a notoriously contested term, and even among those who principally subscribe to it, which is mostly its critics, fierce debates persist over its nature, how to study it properly—and whether it is still the appropriate conceptual armament to understand the contemporary world and an arguably emerging “post-neoliberalism” (Davies & Gane, 2021). Not only is it controversial how neoliberalism should be defined—a governing rationality in the spirit of Foucault's governmentality lectures (Foucault, 2008), a portfolio of certain policies, or a strategy of transnational capital to restore and safeguard profit rates (Harvey, 2005)—but also on what level to study it, either that of “actually existing neoliberalism” (Brenner & Theodore, 2002; Cahill, 2014), a set of theories and arguments, or both. 

My starting point and focus for most of this paper is neoliberal thought as it is represented by the writings of Friedrich Hayek, Milton Friedman, the German ordoliberals, and, importantly, James Buchanan. My aim is to develop a critical account of neoliberal thought that will abstain from explicitly normative criticisms and rather opt for a more indirect but effective and somewhat novel critique that holds neoliberalism to its own standards and shows how it fails to meet them or is pushed into adopting highly questionable positions in the attempt to do so. The argument proceeds as follows: As already suggested, the meaning of neoliberalism is heavily contested, so I will provide the basis of my argument by laying out a brief account of neoliberalism, which relies on a theoretical-historical reconstruction of its context of emergence around the middle of the 20th century. What I conclude from this reconstruction is that we are well-advised not to narrow down neoliberalism too much and not to downplay its internal heterogeneities. Therefore, rather than trying to isolate a number of doctrines or positions as quintessentially neoliberal or even considering them to be the “essence” of neoliberalism, I argue that what unites neoliberal discourse is not a set of positive convictions—although there is some significant overlap in certain areas—but rather a shared problematic that pertains to the preconditions of functioning markets. 

Within that overall problematic, democracy is one of the most pressing problems according to neoliberal thinkers, because virtually all of them agree that it complicates the task of setting up and securing the workings of functioning markets significantly. Still, this basic agreement notwithstanding, neoliberal accounts of democracy display a considerable range of specific diagnoses as to the nature and source of its dysfunctionalities or even pathologies. Accordingly, the second step of the argument is a survey of some selected lines of critique of democracy as they are formulated by leading neoliberals. Among other things, this survey helps us appreciate the heterogeneities of neoliberal thought, but, more importantly for my purposes, it also gives us a sense of the deep reservations neoliberals have with regard to democracy and the trenchant nature of their critique. 

As the specific critiques of democracy vary among neoliberals, so do the suggested remedies and reforms put forward. Accordingly, in the next step, several selected reform proposals are scrutinized that range from the vague call for a “strong state” to Hayek's “model constitution” and the much more specific argument for the introduction of a constitutional balanced-budget amendment, which is a signature demand of Buchanan. What this survey shows us, among other things, is the radical nature of the neoliberal reform proposals, which is important to my overall argument. 

Despite the highly controversial implications of all of these reform proposals, I will deliberately forego engaging them directly based on normative arguments. Instead, my critique focuses on the missing analytical link between neoliberal diagnostics and respective remedies. In order to show this, the fourth and final part of the argument shifts attention to the politics of neoliberal transformation, that is, whether and how this kind of politics is theorized in neoliberal accounts. Again, there is a certain degree of variance between Hayek, Eucken and Buchanan, but the common denominator here is the inability to theorize such a politics without violating the respective assumptions underlying the critical diagnostics or moving beyond the confines of liberal democracy as a condition of implementing such reforms. Thus, the key thesis I wish to defend in the following contends that neoliberal thought lacks any plausible solution to the so-called problem of transition—if they care to reflect on it at all. 

These findings lead to several different interpretations with more or less far-reaching implications that are discussed in the concluding section.

Truthiness

With the US George Santos controversy in mind the 2018 Congressional Research Service Expulsion of Members of Congress: Legal Authority and Historical Practice report states

 The U.S. Constitution expressly grants each house of Congress the power to discipline its own Members for misconduct, including through expulsion, stating that: [e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. 

Expulsion is the process by which a house of Congress may remove one of its Members after the Member has been duly elected and seated. The Supreme Court has considered expulsion to be distinct from exclusion, the process by which the House and Senate refuse to seat Members-elect. In so concluding, the Supreme Court has held that exclusion cannot be used as a disciplinary tool, and Congress, accordingly, cannot undertake disciplinary measures on Members until after those Members have taken the oath of office. 

The constitutional limits on the power of expulsion are informed by the Expulsion Clause’s text, historical background, judicial precedent, and historical practice. Presently, the only explicit standards for expulsion are the requirement for approval of two-thirds majority of the body imposing the punishment and the requirement that the individual subject to the expulsion has been formally seated as a Member of that body. The history of the Expulsion Clause suggests that the expulsion power is broad and confers to each house of Congress significant discretion as to the proper grounds for which a Member may be expelled. Accordingly, courts generally have declined to adjudicate the standards by which expulsions might be considered in the House or Senate. To date, 20 Members of Congress have been expelled: 5 in the House and 15 in the Senate. A large majority of those expulsions were predicated on Members’ behavior deemed to be disloyal to the United States at the outset of the Civil War. Nonetheless, the two most recent expulsions followed Members’ convictions on public corruption charges. One significant area of debate is whether a Member can be expelled for behavior arising prior to his or her election. The historical practice in each house of Congress is limited and mixed as to whether such expulsions are appropriate. The extent to which these historical practices could be said to bind Congress as precedent is unclear, as is Congress’s authority to discipline Members for conduct that occurred prior to their election or reelection to office. These debates are centered on two general concerns that may be in tension with each other: maintaining the ability of each house of Congress to preserve the integrity of the institution and overriding the will and right of constitutents to choose their representatives. 

This report discusses the nature of the power of Congress to remove a Member, including the historical background of the Clause, the implications of the limited judicial interpretations of the Clause’s meaning, and other potential constitutional limitations in the exercise of the expulsion power. The report then analyzes the potential grounds upon which a Member might be expelled, including an overview of past cases resulting in expulsion and a discussion of the potential exercise of the expulsion power for conduct occurring prior to the Member’s election or reelection to Congress.

Twitter

'#IStandWithDan versus #DictatorDan: the polarised dynamics of Twitter discussions about Victoria’s COVID-19 restrictions' by Timothy Graham, Axel Bruns, Daniel Angus, Edward Hurcombe and Sam Hames  in (2020) Media International Australia comments 

In this article, we examine two interrelated hashtag campaigns that formed in response to the Victorian State Government’s handling of Australia’s most significant COVID-19 second wave of mid-to-late 2020. Through a mixed-methods approach that includes descriptive statistical analysis, qualitative content analysis, network analysis, computational sentiment analysis and social bot detection, we reveal how a small number of hyper-partisan pro- and anti-government campaigners were able to mobilise ad hoc communities on Twitter, and – in the case of the anti-government hashtag campaign – co-opt journalists and politicians through a multi-step flow process to amplify their message. Our comprehensive analysis of Twitter data from these campaigns offers insights into the evolution of political hashtag campaigns, how actors involved in these specific campaigns were able to exploit specific dynamics of Twitter and the broader media and political establishment to progress their hyper-partisan agendas, and the utility of mixed-method approaches in helping render the dynamics of such campaigns visible. 

The authors argue

 As the coronavirus pandemic continues, discussions about appropriate public policy aimed at its management and mitigation have intensified. Even in regions that have seen a comparatively high political and societal consensus about the need for severe lockdowns and other interventions aimed at arresting the spread of the virus, such unity is gradually coming unstuck. Coordinated by the ‘national cabinet’ that included the Prime Minister as well as state and territory premiers and chief ministers, for example, Australian governments were comparatively unanimous in their initial responses to the pandemic, and party-political squabbles between leaders of different ideological hues seemed temporarily suspended at least on these measures; over time, however, as infection dynamics developed differently across the various states and territories, unity disintegrated, and by late-2020, there were open recriminations between state leaders, and between states and the Prime Minister, over the interstate border closures and local lockdown measures introduced in different Australian regions. 

Such acrimony has been most heated in the context of the lockdowns and border closures instituted in Victoria, Australia’s second most populous state, which saw the greatest number of COVID-19 infections and deaths and, in particular, experienced a substantial second wave of infections from mid-June 2020 onwards (Victorian State Government, 2020) that was managed by increasingly severe lockdowns. This second major outbreak generated substantial and controversial debate in the media and within the general population, centring both on the concrete reasons for the new outbreak, and on the appropriate level of lockdown restrictions and the roadmap towards reducing them again as the new outbreak subsided. 

Much of the criticism of these measures focussed on the Victorian Premier, Daniel Andrews of the Australian Labor Party, who had become the public face of the state’s response to the coronavirus pandemic not least through an uninterrupted series of (at the time of writing) more than 100 daily press conferences on his government’s actions. Although enjoying high public approval ratings in Victoria through most of 2020, Andrews was attacked increasingly harshly by his political opponents in state and federal politics; scrutinised critically by state and federal news media; and in mid-October 2020 his electorate office was vandalised by unknown assailants (Sakkal and Towell, 2020). 

Claims of growing public frustration with the Victorian government’s measures, as reported in state and national media, were also exploited by the state opposition, led by parliamentary Opposition Leader Michael O’Brien from the Liberal Party. Its attacks focussed especially on two perceived faults with government policy: on one hand, they highlighted the impact of lockdown restrictions on the Victorian economy, and advocated for a more accelerated re-opening of local businesses in spite of a low level of continuing community transmission of the COVID-19 virus (ABC News, 2020); on the other hand, they pointed to failures in the management of the mandatory hotel quarantine for travellers returning to Victoria, where the use of poorly trained private security guards resulted in quarantine breaches, and the inadequate response to outbreaks in aged-care homes, where the majority of COVID-related deaths occurred. Overall, the opposition blamed the government, in general, and Premier Andrews, in particular, for the infections and deaths that ensued especially in the second wave (Fowler and Ilanbey, 2020). 

The most aggressive opposition spokesperson pursuing this line of attack was the Liberal MP for the electorate of Kew, Tim Smith. In a series of media appearances, particularly on breakfast news programmes, as well as in his social media posts (see, for example, Figure 1), he sought to establish a number of negative epithets for Andrews, including ‘Chairman Dan’ (implying that the Labor Premier was running the state in the style of an oppressive communist regime) and even ‘Dictator Dan’ (Willingham, 2020). Such attacks on Andrews, presented as simple and memorable slogans, were clearly calculated also as attempts to generate broader take-up in public discussions of the government’s measures against the pandemic, not least on social media; indeed, Smith’s own social media posts also sought to promote Twitter hashtags such as #ChairmanDan and #DictatorDan. Subsequent criticism of the Victorian pandemic response, by Smith and others, also gave rise to the Twitter hashtag #DanLiedPeopleDied, as well as resulting in the #IStandWithDan hashtag expressing opposition to such attacks and support for the Premier. ... 

In this article, we examine this take-up of attacks on Andrews within social media debate, as well as the emergence of responses that counter such attacks. We focus here especially on Twitter – a platform that has been shown to be a particularly important space for political discussion in Australia (Bruns and Burgess, 2015; Sauter and Bruns, 2015). 

Such take-up could be regarded prima facie as evidence of a two-step flow (Katz, 1957), from political opinion leaders to the general public, demonstrating the continued relevance of communication theories from the pre-digital era even in a thoroughly mediatised present where social media logics exert increasing influence over public and political debate (Van Dijck and Poell, 2013). Closer investigation, however, reveals a considerably more complex flow of ideas across multiple steps (cf. Ognyanova and Monge, 2013): not only is it possible that MP Smith and others are not themselves the originators of these attacks against Premier Andrews, but merely amplify lines of attack that were developed by party strategists or other groups seeking to undermine Andrews (i.e. that there is a preceding step in the information flow from these groups to Smith and colleagues); but we also find evidence that the broader adoption and dissemination of language targeting Andrews is driven at least in part by coordinated and apparently inauthentic activity that amplifies the visibility of such language before it is adopted by genuine Twitter users. 

This would represent a further step in the information flow, from Smith and other Andrews opponents via such coordinated, artificial amplification to the general Twitter public – from where, in a further step in the flow of information, it is then also picked up by journalists and opinion writers, and transported into additional media reporting. Our study, then, presents the evidence for this multi-step, deliberately manipulated flow of information, and compares it with our observations of the response to these attacks.

Interference

Third Oxford Statement on International Law Protections Against Foreign Electoral Interference through Digital Means articulates 

a short list of consensus protections that apply under existing international law to foreign cyberoperations with adverse consequences on electoral processes, such as balloting, verifying, and providing electorates with procedural information about how to participate in an electoral process and substantive information related to that process. The Statement enumerates a range of duties of states: negative duties – to refrain from conducting cyber operations that have adverse consequences for electoral processes in other states, and not to render assistance to such operations, – as well as positive requirements of due diligence, and duties to protect and ensure the integrity of their own electoral processes from interference by other states.   ... 

Use of digital means to disrupt or undermine elections and to interfere with a population’s right to govern itself strikes at the very core of democracy. This Statement makes clear that international law addresses and forbids such brazen assaults on the rule of law, and states should refer explicitly to such law when speaking about election interference. 

The Statement reads

 We, the undersigned public international lawyers, have watched with growing concern reports of cyber incidents targeting electoral processes around the world, including allegations of foreign state and state-sponsored interference. We also note that the COVID-19 pandemic raises additional challenges to ensuring the integrity of such processes. 

Whereas: 

Two prior Oxford Statements have described the rules and principles of international law governing cyber operations that threaten two areas of pressing global importance, namely the safeguarding of the health care sector and global vaccine research; 

International law protects electoral processes, and efforts to interfere, including by digital means, with a state’s choice of its political leaders or other matters on which it has free choice contravene basic principles of the international order; 

The Charter of the United Nations (UN) establishes sovereign equality and each state’s political independence as bedrock elements of the international system; the UN General Assembly has affirmed that no state “has the right to intervene directly or indirectly, for any reason whatever, in the internal or external affairs of any other state”; and the International Court of Justice has held that every sovereign State has the right “to conduct its affairs without outside interference”; 

Article 25 of the International Covenant on Civil and Political Rights declares that “[e]very citizen shall have the right and the opportunity, without … unreasonable restrictions [t]o take part in the conduct of public affairs, directly or through freely chosen representatives; [t]o vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”; electoral interference can infringe human rights protected under the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the European Convention on Human Rights; 

Other international instruments, such as the Paris Call for Trust and Security in Cyberspace (2018), have called on all stakeholders to “[s]trengthen their capacity to prevent malign interference by foreign actors aimed at undermining electoral processes through malicious cyber activities”; 

All efforts by states and others to prevent such malign interferences should be consistent with international law; 

The International Law Commission’s 2001 Articles on State Responsibility establish that a state is responsible for the conduct of its organs or officials, as well as for conduct carried out by persons or groups acting on the instructions of, or under the direction or control of, the state; 

In line with the UN Guiding Principles on Business and Human Rights, online intermediaries and digital media companies should “conduct due diligence to ensure that their products, policies and practices … do not interfere with human rights”, as recognised in the April 2020 Joint Declaration on Freedom of Expression and Elections in the Digital Age, adopted by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and OAS Special Rapporteur on Freedom of Expression. 

As states and other stakeholders learn more about the ways in which foreign cyber actions can adversely affect domestic electoral processes and how best to address such harms, international law can be further clarified and strengthened by state practice that becomes accepted as customary international law. 

We affirm that all states are bound to act in accordance with the rules and principles identified below. 

Applicability 

1. International law applies to cyber operations by states, including those that have adverse consequences for the electoral processes of other states. 

a. “Electoral processes” refer but are not limited to processes for selecting or electing individuals for public office, referenda, and plebiscites. These include:

i. Balloting: registering, casting, tabulating, or assuring the integrity of a ballot including voter registries, ballot security and integrity protocols, voting machines, and paper ballots; 

ii. Verifying: systems used for reporting, recording, verifying and auditing votes and results of an election; 

iii. Informing: public or private systems that provide an electorate with procedural information about how to participate in an electoral process, as well as substantive information, of whatever origin, related to an electoral process, including information on individuals or groups participating in electoral processes, such as candidates for elective office, political parties, or organizations. 

b. Adverse consequences, in the electoral context, include actions, processes or events that intervene in the conduct of an electoral process or undermine public confidence in the official results or the process itself. These actions include but are not limited to intrusions into digital systems or networks that cast doubt on the integrity of election data, such as votes and voter registers, as well as cyber operations against individuals and entities involved in the election. 

Duty to Refrain 

2. A state must refrain from conducting, authorising or endorsing cyber operations that have adverse consequences for electoral processes in other states. States must refrain from, inter alia

a. Interfering, by digital or other means, with electoral processes with respect to balloting or verifying the results of an election; 

b. Conducting cyber operations that adversely impact the electorate’s ability to participate in electoral processes, to obtain public, accurate and timely information thereon, or that undermine public confidence in the integrity of electoral processes. 

c. Conducting operations that violate the right to privacy, freedom of expression, thought, association, and participation in electoral processes. 

Duty Not to Render Assistance 

3. A state must not render assistance to cyber operations that it knows will likely have adverse consequences for electoral processes in other states. 

Due Diligence 

4 a. When a state is or should be aware of a cyber operation that emanates from its territory or infrastructure under its jurisdiction or control, and which may have adverse consequences for electoral processes abroad, that state must take all feasible measures to prevent, stop and mitigate any harms threatened or generated by the operation. 

b. To discharge this obligation, states may, to the extent feasible, be required to, inter alia, investigate, prosecute or sanction those responsible, take measures to prevent or thwart operations spreading misleading or inaccurate information, and/or assist and cooperate with other states in preventing, ending, or mitigating the adverse consequences of foreign cyber operations affecting electoral processes. 

c. The measures taken to discharge a state’s obligations should be carried out in full compliance with other rules of international law. 

Obligation to Protect Against Foreign Electoral Interference 

5. States have an obligation to protect and ensure the integrity of their own electoral processes against interference by other states. To discharge this obligation, states may be required to put in place electoral security measures, such as legislation and backup systems, as well as to secure the availability of public, timely and accurate information on electoral processes. Any restrictive measures taken by states that interfere with human rights must be in accordance with applicable legal requirements, such as legitimate purpose, legality, necessity, proportionality and non-discrimination. 

6. These rules and principles are without prejudice to other applicable international rules and ongoing processes. 

Capital and Foreign Investment

'Financial History, Historical Analysis, and the New History of Finance Capital' by Barry Eichengreen in (2019) 1(1) Capitalism  20-58 comments

The traditional way of starting an essay on the history of capitalism is by not defining the term. The practice is regrettable, since it elides multiple definitions of which two most obviously stand out. For Karl Marx, the essence of capitalism was the separation of labor from the means of production, the concentration of the latter in the hands of the capitalist class, and the development of a political superstructure to secure property rights. For Milton Friedman, who positioned himself as the Marxist's mid-twentieth-century bete noire, capitalism was synonymous with markets and their association with private property and voluntary exchange. The Marxian portrait lends itself to a characterization of the economic system as unequal, exploitative, and unstable, whether due to a falling rate of profit or, in its twenty-first-century variant, an everincreasing concentration of wealth and power in the hands of the 1 percent. Friedman and his followers, on the other hand, see unregulated market exchange as expressing freedom of choice, as a vehicle of opportunity and self-improvement, and as a mechanism for competing away inefficiencies. 

Both conceptualizations are of ideal types. Both are ahistorical since they treat capitalism as a disembodied system detached from time and place. For Marx, the dynamics of the system arise out of a struggle between classes that occurs independently of the particulars of the setting. For Friedman, the magic of capitalism is its extraordinary facility at aggregating the decisions of self-interested individuals - homos economicus - into a social optimum in any context in which an unregulated market exists. 

This analysis of ideal types, whether undertaken by neoclassical economists or class theorists, appeals to neither the "new economic historians" who reside in economics departments nor to "new historians of capitalism" whose disciplinary home is history. Both are dissatisfied with the disembodied nature of such analyses. Both are concerned to understand how the response of individuals to the economic problems that they confront is shaped by a particular historical setting. Economic historians respond to this dissatisfaction by assembling large data sets that can expose the particularities and historically contingent nature of economic behavior. They use these data points of historical information on, inter alia, individual consumers, investors, and entrepreneurs, together with statistical techniques, to document actual economic behavior, dispensing with the economist's assumption of convenience, utility maximization. They use historical data to contextualize economic behavior and demonstrate how it is shaped by the specific context. 

Historians of capitalism substitute narrative for statistical methods in an effort to make their portrayal of historical action more vivid and context-specific. They invoke global history to demonstrate how national cases are embedded in a larger social and economic setting and a broader set of power relations. They embed their analyses of economic processes in the twenty-first-century historian's framework, emphasizing race, gender, and ethnicity in order to show how the dynamics of the economic order are contingent on its social underpinnings. 

Thus, economic historians and historians of capitalism see economic structure and organization as contingent. Both see it as contextually and historically specific. Both challenge the economist's conception of an ideal, rarified market. Both seek to denaturalize the economic order. In their common emphasis on how economic relations are shaped by historical context, the two schools are natural allies. 

That's the positive take, anyway. The negative take is that economic historians, concentrated in economics departments, have been corrupted by that discipline's obsession with statistical technique, causing them to focus on ever-narrower questions to which such technique can be neatly applied to the exclusion of aspects of economic behavior that are not easily measured and quantified. They narrow their audience to that small subset of historical scholars with advanced training in mathematics. Historians of capitalism, lacking that training, disregard their colleagues' statistical analyses and, all too often, the findings of a half-century of scholarship in economic history. Lacking a statistical mindset, they use evidence selectively, in a manner consistent with their grand narrative. In this view, the two sides are engaged in a dialogue of the deaf, where no communication, much less synthesis, takes place. 

Evidently, then, questions about the state of the field serve as something of a Rorschach test. Being optimistic by temperament, I will make the positive case in this essay-that dialogue and maybe even synthesis are possible. Even if dialogue and synthesis are not yet evident, the preconditions for their existence are present. Among economic historians resident in economics departments, an appreciation of the importance of large processes, of the global reach of markets and capitalism, and of the ever-present question of race never went away. Despite their reliance on statistics, economists concerned with historical issues never in fact abandoned the use of narrative.  Contrary to the belief that "the half has never been told," new economic historians never lost sight of the importance of slavery for American economic development nor of the importance of giving voice to the enslaved. Economic historians no longer feel obliged to dismiss traditional historical findings, the revolutionary fervor of the 1960s and 70s generation having given way to an awareness that iconoclasm is not everything. Nor must they defend themselves against unsympathetic colleagues, economists having been reminded of the limitations of their abstract theories and of the existence of historical precedents by the global financial crisis and therefore having grown increasingly sympathetic to the historical enterprise. 

Another basis for dialogue is that-notwithstanding the emphasis in history curricula on race, gender, ethnicity, and psychology-the old staples of business history, labor history, and financial history never actually went away. That said, the rebirth of the history of capitalism in history departments allows the history of material processes to share the stage with "literary-inflected analyses of identity formation and collective memory." Initiatives like the Cornell University boot camp for historians of capitalism seeking to acquire facility in quantitative methods and economic theory enable more scholars in history departments to access and utilize research by economic historians. 

Having emphasized the importance of time, place, and context, I will elaborate these arguments by drawing on a specific historical literature, that on the development of financial markets in the United States. This is an appropriate case for several reasons, aside from the fact that it utilizes my expertise. There is the association of capitalism with finance capitalism in the Marxist-Leninist canon and, equally, the tendency for neoclassical economists to take finance as epitomizing the efficiency of market outcomes.  There is the disproportionate attention that early practitioners of the new economic history paid to tests of financial market efficiency, but also the prominence that historians of capitalism accord to financial markets and relations. And there is the impetus that the financial crisis of 2007-2008 and its echoes of crises past gave to both the history of capitalism and economic history.

The Productivity Commission's research paper on Foreign Investment states

Over the past two centuries, foreign funding has supported Australia’s economic development by permitting more capital investment than domestic savings would have otherwise allowed 

Foreign investment brings ‘spillover’ impacts too, both positive (access to new technologies, better management practices, increased competition) and negative (potentially less competition, social and environmental costs). 

Foreign investment also stirs strong community reservations, although Australians are generally supportive of globalisation and free trade. To balance the economic benefits of foreign investment against the risks, and to maintain community confidence that foreign investment is in the national interest, Australia regulates foreign investment through a range of mechanisms. 

Since 1974, foreign acquisitions with a value above certain thresholds are screened and require a decision of the Treasurer that they are not contrary to the ‘national interest’. Recent changes have lowered these thresholds to zero for sensitive national security businesses. Australia has a broadly open policy towards foreign investment, but is more restrictive than many other advanced economies, by some measures To the extent that foreign investment proposals are blocked or discouraged, this results in lower Australian household incomes — Commission modelling estimates that these economic costs would be material, though not large. 

Foreign investment policy has become more prominent over recent years. Greater attention is being given to the difficulty of taxing multinationals and the national security risks associated with sensitive sectors or critical infrastructure assets — as, for the first time, one of our largest sources of investment is not a democracy or a military ally. 

Policy change in response has been piecemeal. Monetary thresholds for screening vary by source country, sector and type of investor, while the use of approval conditions is increasing. 

The role of the Foreign Investment Review Board has become more akin to a regulator than a gatekeeper, yet its powers and institutional arrangements have changed little. 

Overall, the design and vesting of responsibility with the Treasurer for administering the ‘national interest’ test works well. It gives flexibility to quickly adapt to new concerns, weighing up not just the costs, but also the benefits from foreign investment. The ‘negative’ nature of the test (deciding whether proposals are contrary to the national interest) also limits the risk of rejecting projects that are in the national interest. These features should be retained. 

Other aspects of the foreign investment policy framework could be improved. 

The national interest test lacks clarity around how it is interpreted from case to case. Tighter policy guidance and excluding risks from the test that can be mitigated through national regulations (such as competition) would lower compliance costs and lift investor certainty. Attaching conditions to foreign investment approvals provides only a limited means to mitigate risks. National laws and regulations, together with purpose-built and adequately-resourced regulators (such as the Australian Competition and Consumer Commission, or the Critical Infrastructure Centre), where available, should be preferred. 

Publication of reasons for decisions to block proposals, greater certainty around timelines, and aligning applications fees with the actual cost of administering the screening regime would increase transparency, enhance predictability and lower the costs of the screening regime.

Political Privacy

'Privacy's 'Three Mile Island' and the Need to Protect Political Privacy in Private Law Contexts' by Raymond H. Brescia in (2020) 48 Florida State University Law Review comments 

 When it was revealed that Cambridge Analytica obtained the personal and private information of eighty-seven million Facebook users to aid the U.S. presidential campaign of Donald J. Trump, it was described as privacy’s “Three Mile Island”: an event, like the famed nuclear accident from which the term comes, that would shake and shape an industry and its approach to digital privacy and the underlying political information such privacy protects. In the intervening three years, with another presidential election looming in the United States, and despite these revelations, little has changed in terms of protecting the type of private information essential to the functioning of democracies. But what the Cambridge Analytica scandal also made clear is that threats to private information revealed and embedded in our digital activities threaten democracy. What is more, these threats risk undermining individual identity and autonomy and the ability of individuals to pursue individual and collective self-determination. An individual’s political identity—who she associated with, what she says, what she thinks, the questions and ideas she explores, for whom she votes—is all caught up in notions of political privacy. While current public-law protections are fairly robust when it comes to protecting political privacy, even as some fear that current responses to the pandemic may require a degree of intrusion upon privacy by government, the threats to privacy that have emerged in the digital age preceded the current public health crisis and emanate mostly from private actors, where protections for political privacy are quite weak. Nevertheless, democracy requires a high degree of protection for individual identity and political privacy, regardless of the source of the threat, especially when the lines between private action and public effects are blurred, as in the Cambridge Analytica scandal. Given the importance of the integrity of identity to democracy, and the fact that many of the threats to political privacy emanate from private actors, as this Article shows, enhanced protections for this political privacy are also necessary in the private law context. Calls for greater protection of digital privacy often result in recommendations that a single institution—the market, political bodies, or the courts—should take a greater role in policing online privacy. Yet these institutions are often interdependent when it comes to protecting digital privacy, and, by extension, political privacy. Efforts promoted through one institution can often have positive—and negative—spillover effects on the functioning of other institutions: they can at times strengthen the protections of such privacy in other institutional settings, or undermine the ability of those other institutions to function effectively to protect political privacy. So which institution or set of institutions is best suited to protect such political privacy? This question calls for the application of the method known as comparative institutional analysis, which assesses the relative strengths and weaknesses of different institutions in achieving desired policy goals. At the same time, as this discussion will reveal, even comparative institutional analysis, if it does not take into account the extent to which different institutional settings can have spillover effects on the ability of other institutions to achieve particular policy goals, fails to offer sufficient tools for the assessment of the best institution or institutions to achieve such goals. Indeed, as this Article attempts to show, at least when it comes to protecting political privacy in private-law contexts, any effective institutional response to the threats to political privacy will likely require not just an appreciation for the ways in which different institutional settings are interdependent when it comes to achieving that goal, but also that any such effort will require an integrated and comprehensive approach that spans different institutional settings. In the end, this Article is an attempt to use the tools of comparative institutional analysis to assess the relative abilities of different institutions to protect political privacy, including an assessment of the litigation that has arisen in the wake of the Cambridge Analytica scandal, to determine the role of different institutions in protecting political privacy in private law—as opposed to public law—settings. Through a review of this and other litigation to protect digital privacy, which, more and more, affects political privacy, I will show not just how different institutional settings can strengthen the functioning of other settings, but also how they can undermine such settings. Thus, given the fact that institutions that protect political privacy can often work at cross-purposes in policing political privacy, this Article argues for the need for comprehensive, integrated, and cooperative action across institutions to ensure the proper protection of this type of privacy.

Lobbying

'Lobbying Expenditures and Campaign Contributions by the Pharmaceutical and Health Product Industry in the United States, 1999-2018' by Olivier J. Wouters in (2020) 180(5) JAMA Internal Medicine 1–10 asks 'How much money did the pharmaceutical and health product industry spend on lobbying and campaign contributions in the US from 1999 to 2018?', analysing 

publicly available data on campaign contributions and lobbying in the US from 1999 to 2018 to find that the pharmaceutical and health product industry spent $4.7 billion, an average of $233 million per year, on lobbying the US federal government; $414 million on contributions to presidential and congressional electoral candidates, national party committees, and outside spending groups; and $877 million on contributions to state candidates and committees. Contributions were targeted at senior legislators in Congress involved in drafting health care laws and state committees that opposed or supported key referenda on drug pricing and regulation. 

Wouters comments 

An understanding of the large sums of money the pharmaceutical and health product industry spends on lobbying and campaign contributions can inform discussions about how to temper the influence of industry on US health policy. ... 

From 1999 to 2018, the pharmaceutical and health product industry recorded $4.7 billion—an average of $233 million per year—in lobbying expenditures at the federal level, more than any other industry. Of the spending, the trade group Pharmaceutical Research and Manufacturers of America accounted for $422 million (9.0%), and the other 19 top companies and organizations in this industry accounted for $2.2 billion (46.8%). 

The industry spent $414 million on contributions to candidates in presidential and congressional elections, national party committees, and outside spending groups. Of this amount, $22 million went to presidential candidates and $214 million went to congressional candidates. Of the 20 senators and 20 representatives who received the most contributions, 39 belonged to committees with jurisdiction over health-related legislative matters, 24 of them in senior positions. The industry contributed $877 million to state candidates and committees, of which $399 million (45.5%) went to recipients in California and $287 million (32.7%) went to recipients in 9 other states. 

In years in which key state referenda on reforms in drug pricing and regulation were being voted on, there were large spikes in contributions to groups that opposed or supported the reforms.

Elections, Speech and Interference

The Crime and Corruption Amendment Bill 2020 (Qld), introduced today*, seeks to establish an offence regarding allegations of corrupt conduct against a councillor or candidate during a local government election period. The intention is to amend the Crime and Corruption Act 2001 (Qld) to implement recommendations by the Crime and Corruption Commission (CCC) relating to the publicising of allegations and complaints. 

The Commission's 2016 Publicising allegations of corrupt conduct: Is it in the Public Interest? report  recommended that the government consider making it an offence for any person to publicise: a) allegations of corrupt conduct against a councillor or candidate during a local government election period; or b) the fact that a complaint (whether or not it involves corrupt conduct) has been, will be or may be made to the CCC against a councillor or candidate during a local government election period without first notifying the CCC and allowing the CCC at least three months to  determine whether the allegations have merit. 

The Electoral Act 1992 (Qld) s 185 currently provides (1) A person must not, during the election period for an election, print, publish, distribute or broadcast anything that is intended or likely to mislead an elector in relation to the way of voting at the election and (2) A person must not for the purpose of affecting the election of a candidate, knowingly publish a false statement of fact regarding the personal character or conduct of the candidate.

 The CCC commented

Publicising untested allegations involving public sector organisations and officials can also unfairly damage the public’s trust in their institutions of government. The institution of local government, and by extension democratic government, is being damaged by the high number of baseless allegations

The Commission indicated that

a large number of allegations received by the CCC in the lead up to local government elections are baseless and merely designed to effect electoral damage on political opponents, with  confidence in [the CCC] undermined when it is required to deal with allegations that, on their face, appear to have reputational damage as their goal and attempt to leverage the involvement of the CCC to achieve this

The CCC also stated that given its prioritisation of the assessment of politically sensitive matters in the public interest, it is also of concern that significant assessment resources are directed to baseless matters and diverted from other potentially more important matters.  Further the tendency for allegations of corruption engaged in by councillors to be publicised in the media means that corrupt individuals get advance warning that they are being scrutinised by the CCC and can destroy or fabricate evidence. It noted the impacts of digital and new media, arguing that the risk of damaging an individual’s reputation arising from the publication of a baseless allegation was ‘amplified in contemporary society where mass communication methods mean that allegations are instantaneously and widely transmitted, and stay on the public  record in perpetuity’. 

The Bill will accordingly amend the CC Act to make it an offence to publish: 

• a corrupt conduct allegation about a candidate for a State election during the election period for the election; and 
•  a corrupt conduct allegation about a candidate for a local government election during the election period for the election. 

The offences will carry a maximum penalty of 50 penalty units or six months imprisonment. The amendments in the Bill also provide for a related statutory injunction power. 

The Explanatory Statement notes that the Bill includes a definition of corrupt conduct allegation which addresses both complaints and allegations of corrupt conduct consistent with the CCC’s 2016 report. Corrupt conduct is defined in section 15 of the CC Act.  The definition of ‘publish’ under the Bill is intended to target publication that has the potential to deliver information to a mass audience. The definition covers newspaper, radio or television or other electronic or printed forms of mass media. 

The Statement comments that it is not intended the offence would prevent people from accessing legal advice or discussing their views in ordinary social 

 The definition of ‘candidate’ under the Bill is intended to include those people who nominate to be a candidate under relevant electoral legislation, incumbent Members of the Legislative Assembly and councillors and those people who otherwise announce or publicly indicate an intention to be a candidate.  Where a person has made or notified a complaint to the CCC or notified the CCC of the intention to publish an allegation, and three months have passed, the offences do not apply. This reflects the recommendation in the CCC’s 2016 report that it should be an offence for any person to publicise an allegation or the fact of a complaint without first notifying the CCC and allowing the CCC at least three months to determine whether the allegations have merit. 

The Statement comments

Since the High Court decision in Lange v Australian Broadcasting Commission [1997] 189 CLR 520 there has been the implied right to communication about government or political matters in the Commonwealth Constitution. However, the implied freedom is not absolute. It is noted that freedom of speech issues were considered in the CCC’s 2016 report.

The 2016 report 

notes that the key arguments put forward by those in favour of publicising allegations of corrupt conduct (including most media groups) were that:

• • the public has a democratic ‘right to know’; 

• open discourse informs opinions and supports democratic participation; 

• it provides a ‘check and balance’ on the CCC’s performance; 

• it provides greater scrutiny of the process of investigating allegations (seen as particularly important in the context of the practice of devolving complaints to agencies complained about to investigate themselves); 

• it will bring others forward to report their concerns (e.g. media attention that led to the Fitzgerald Commission of Inquiry); and 

• it is reasonable that elected officials and candidates should be subjected to greater accountability and scrutiny than ordinary individuals.

The key arguments put forward by those against publicising allegations of corrupt conduct (including the Queensland Law Society, Local Government Association of Queensland, local governments, and the Queensland Council for Civil Liberties) were that:

• it risks longstanding reputational damage for individuals, noting digital media can be far more widespread and does not disappear from the public record; 

• it risks reputational damage for agencies and organisations, not just individuals; 

• it undermines investigation processes by alerting the subject of allegations and other parties involved who can then destroy evidence or concoct false versions of events; 

• limits investigative options, particularly covert strategies; 

• encourages baseless allegations to be made for political gain; and • may have a prejudicial effect that erodes the possibility of a fair trial.

...  While no other Australian jurisdiction has a specific offence relating to publicising allegations of corrupt conduct during an election period, section 56 of the South Australian Independent Commissioner Against Corruption Act 2012 (ICAC Act) makes it an offence for a person to publish, without the authority of the Commission or a court hearing proceedings for an offence against the ICAC Act, any information relating to a complaint, report, assessment, investigation or report under the ICAC Act, where the information published might enable certain people associated with the complaint etc (including the subject) to be identified. The concept of ‘publish’ under section 56 includes publication by newspaper, radio or television as well as the ‘internet or other electronic means of creating and sharing content with the public or participating in social networking with the public’.

The Bill is as follows 

Clause 1 provides that, when enacted, the Bill will be cited as the Crime and Corruption Amendment Act 2020 (the Act). 

Clause 2 states that the Act amends the Crime and Corruption Act 2001 (CC Act). 

Clause 3 inserts a new section 216B (Unlawfully publishing corrupt conduct allegations during election periods) after existing section 216A. 

Subsection (1) in new section 216B makes it an offence for a person to publish a corrupt conduct allegation about a candidate for a State election during the election period for the election. 

Subsection (2) in new section 216B makes it an offence for a person to publish a corrupt conduct allegation about a candidate for a local government election during the election period for the election. Each offence carries a maximum penalty of 50 penalty units or 6 months imprisonment. 

Subsection (3) provides that liability under subsections (1) and (2) does not apply if the publication of the corrupt conduct allegation occurs at least three months after: (a) the complaint was made or notified to the commission (for a corrupt conduct allegation identifying a relevant complaint); or (b) the commission was notified of the person’s intention to publish the allegation. 

Subsection (4) provides that subsections (3)(a) and (b) apply whether the notification or complaint was made before or after commencement of the Act. 

Subsection (5) provides that new section 216B does not limit another provision of the CC Act or another law that restricts the publication of a corrupt conduct allegation. 

Subsection (6) provides definitions for the following terms for new section 216B: ‘candidate’; ‘corrupt conduct allegation’; ‘election period’; ‘local government election’; ‘publish’; ‘relevant complaint’; and ‘State election’. 

‘Candidate’, for either a State or local government election, is defined as a person who holds an office to be contested in the election, or a person who has publicly indicated their intention to be a candidate for the election, or a person who has nominated to be a candidate under an Act applying to the election (including for example the Electoral Act 1992). 

‘Corrupt conduct allegation’ is defined as a statement that indicates that a relevant complaint has been, or is proposed to be, made or notified to the commission (paragraphs (a) and (c)), or a statement that identifies the subject matter of a complaint made or notified to the commission (paragraph (b)), or a statement that alleges a person is, may be, or has been involved in corrupt conduct (paragraph (d)). 

The definition of ‘relevant complaint’ means a complaint about a person that involves, or may involve, corrupt conduct of the person. Corrupt conduct is defined under existing section 15 of the CC Act. 

The definition of ‘election period’ refers to the relevant periods under the Electoral Act 1992 and the Local Government Electoral Act 2011. 

The definition of ‘local government election’ refers to the Local Government Electoral Act 2011, 

The definition of ‘publish’ means publicly disclosing a corrupt conduct allegation or causing a corrupt conduct allegation to be publicly disclosed, by using either newspaper, radio or television or other electronic or printed media for communicating to the public or participating in social networking with the public. It is not intended the offence would prevent people from accessing legal advice or discussing their views in ordinary social discourse. 

‘State election’ is defined as an election of a member or members of the Legislative Assembly. 

Clause 4 amends the heading of existing section 344 (Injunctions) to insert, after ‘Injunctions’, the words ‘for contraventions of s 212’ consequential to the amendments in clause 5. 

Clause 5 inserts a new sections 344A to 344C after existing section 344. 

New section 344A (Applications for injunctions for contraventions of s 216B) creates a new statutory right to apply for an injunction. 

Subsection (1) provides for the circumstances in which the statutory right for an injunction under new section 344A will be available. An injunction may be applied for where a person has engaged, is engaging or is proposing to engage in conduct that constitutes or would constitute an offence of unlawfully publishing corrupt conduct allegations during an election period under new section 216B. In order to apply for an injunction the CCC, or candidate, must have reasonable grounds to believe that an injunction would mitigate any adverse effect on the CCC or the candidate to whom the conduct relates. 

Subsection (2) provides that an injunction is available to the CCC or a candidate during the election period to which the conduct for the offence relates. It also provides that the application for the injunction may be made to the District Court. 

Subsection (3) outlines the types of injunctions the District Court may grant, namely an injunction to stop the person from engaging in the conduct that constitutes or would constitute an offence under section 216B, or to require the person to do anything else that the court considers desirable. 

Subsection (4) allows the District Court to grant an interim injunction until the application is finally decided. 

Subsection (5) confirms that the powers to make an injunction under new section 344A do not limit any other powers of the District Court. 

Subsection (6) provides that where the CCC applies for an injunction the court need not require any undertaking from the CCC as to damages or costs. 

New section 344B (Injunctions if s 216B proceeding started) provides a Magistrates Court with the power to grant an injunction in circumstances where offence proceedings under section 216B have started in the Magistrates Court. 

Subsection (1) provides that in order for the section to apply the proceedings for the 216B offence must have started in the election period to which the proceeding relates. 

Subsection (2) allows the magistrate to constitute the court to consider whether an injunction should be made. 

Subsection (3) provides that the magistrate may grant an injunction to stop the person from engaging in the conduct to which the section 216B proceedings relate or to require the person to do anything else which the court considers is desirable. 

Subsection (4) provides that the magistrate may act on the magistrate’s own initiative to grant the injunction or on application by the prosecution. 

Subsection (5) indicates the circumstance in which subsection (6) will apply, namely where a section 344A injunction proceeding has started in the District Court; and the proceeding relates to the same conduct to which the section 216B proceeding relates. 

Subsection (6) provides that the District Court may transfer any existing proceeding in relation to an application for an injunction made under section 344A to the Magistrate Court. 

Subsection (7) provides that if the District Court orders the transfer of injunction proceedings under subsection (6), the registrar of the District Court must send to the clerk of the relevant Magistrates Court a copy of the order and any record of the hearing of the section 344A injunction proceeding. 

Subsection (8) defines the terms ‘section 216B offence proceeding’ and ‘section 344A injunction proceeding’ for the purpose of new section 344B. 

New Section 344C (Hearing and deciding s 344A or 344B injunctions) sets out procedural matters applying to injunctions under new sections 344A or 344B.

* The Government's ducks weren't lined up in a row, as within 24 hours following introduction of the Bill the Attorney-General issued the following media release -

Statement from the Attorney-General 

Published Today at 09:21 AM 

Attorney-General and Minister for Justice The Honourable Yvette D'Ath 

The government respects the recommendations of the CCC. 

However, given the limited time for the parliamentary Legal Affairs Committee to consider the law changes the CCC seeks, the CCC Bill introduced yesterday in State Parliament is withdrawn.

Petitions

'Petitions, Parliament and Political Culture: Petitioning the House of Commons, 1780–1918' by Richard Huzzey and Henry Miller in (2020) 248(1) Past and Present 123–164 analyses 

nearly one million petitions received by the House of Commons to reveal a culture of petitioning that recast the political culture of modern Britain and Ireland. It argues, first, that petitions provided a much more regular and continuous form of interaction between people and Parliament than elections. Second, petitioning–meaning the practices associated with the drafting, signing and presentation of petitions–enabled a vibrant, performative public politics. Third, petitions and petitioning were relatively open, inclusive forms of political participation since all British subjects enjoyed the formal right to petition. We examine the role of formidable campaigns of mass mobilisation, but also humble appeals of marginalised individuals.   

Our data has significant implications for our understanding of the nationalisation, organisation, and popularisation of politics in this period. We argue that attention to petitions helps us to decentre parliamentary elections as the principal connection between local and national politics. Indeed, petitioners responded to the shifting boundaries between the central and devolved state in deciding to which authorities they would direct petitions. 

Petitioning campaigns pioneered the mass, organised, national movements that would gradually emerge as the hallmark of stronger political parties. This did not undermine petitioning. However, the consequent growth of disciplined parties strengthened executive power, at the expense of parliamentary government, redirected petitions from the Commons. Furthermore, the continuing expansion of petitioning alongside extensions of the franchise suggests that petitions did not function as an ersatz ballot. Rather, petitions and debates between parliamentarians and petitioners over the meaning of growing lists of signatories suggest that petitioning catalysed a range of other forms of participation and hence forged an ever more popular politics.

Sunlight and 'Dirty Money'

The Commonwealth Electoral Amendment (Banning Dirty Donations) Bill 2020 (Cth) - a private members bill from Greens Senator Larissa Waters - is unlikely to get any legislative traction but is of interest in terms of the claim that it 'advances equality in the protection of freedom of expression'.

The Bill proposes amendments to the Commonwealth Electoral Act 1918 (Cth) to prohibit political donations from certain industries, and impose a cap on all other donations.

The purpose of the amendments is to strengthen the integrity and accountability framework underpinning Australia’s electoral system by preventing certain industries that have used, or have a strong public perception of using, political donations to influence policy decisions. Specifically, amendments are proposed to ban donations from:

• property developers; 

• the tobacco industry; 

• the banking industry; 

• liquor and gambling businesses; 

• pharmaceuticals companies; 

• the mining industry; and 

• representative organisations for these industries. 

Waters claims

These amendments will improve the electoral system by strengthening the independence of parliament and increasing public confidence that politicians are guided by the public interest when making decisions, rather than the interests of donors. The amendments seek to remove undue influence by powerful industries on policy and funding decisions and enhance individuals’ capacity to take part in public life without those influences compromising their decision making capacity. 

The Bill also recognises the potentially corrupting influence of large donations, irrespective of their source, and imposes a cumulative limit on donations from any source (individual, organisation or business) of $3,000 per election term. The amendments extend the definition of “gift” to include subscription and membership fees and attendance at fundraising events to close the loophole that has allowed these significant sources of campaign income to remain undisclosed and unaccounted for.

An amended definition of ‘gift’ encompasses:

• a gift of money or property; 
• provision of a service for free or less than market-value; 
• tickets or entry fees for fundraising events; 
• membership fees for political parties, associated entities and political campaigners over $1,000; and 
• interest-free loans. 

The restriction on prohibited entities, such as a 'mineral resources or fossil fuel extraction industry business entity' and 'tobacco industry entity (including both tobacco and inhaled nicotine products such as vaping)' encompasses 'close associates of the entity, including directors, officers or significant shareholders (or their spouses), related corporations, stapled entities, and significant unit holders in a trust company'. The 'prohibited donor' also  extends to industry representative organisations where the majority of the organisation’s members are prohibited donors, thus preventing donations being funnelled through industry bodies to seek to influence policies that would impact on industry members.

The amended Act would make it unlawful for any prohibited donor proxy to make a political donation. It is also unlawful for a person to accept a political donation made by or on behalf of a prohibited donor. To avoid any collusive schemes to circumvent the ban  a prohibited donor or proxy must not solicit another person to make a political donation. Where an unlawful political donation is accepted, an amount equal to the donation can be recovered by the Commonwealth as a debt against the body that received the donation.

Waters states

The industries included as prohibited donors were identified by the Senate Select Committee on the Political Influence of Donations as key industries exhibiting donation patterns that suggest undue influence over policy decisions and project approvals. The inquiry report of the Select Committee sets out various examples and recommends that these industries be banned from making political donations. This Bill implements that recommendation.

Less contentiously, the Bill seeks to cap donations per se, with  a $3,000 cap within a single election term and aggregation of donations. ( Donations to individual members, candidates, endorsed groups or State branches are treated as a donation to the relevant political party. Similarly, a political donation to a candidate or a member of a group will be treated as a donation to the group for the purpose of aggregating donations.)

Capping is intended to prevent

political donations made to, or for the benefit of a political party (including a State or local branch), a member of the Commonwealth parliament, a candidate, associated entity or political campaigner where the cumulative total of the donations exceeds the donation cap in the donation period. This provision recognises that unfettered freedom to donate significantly increases the risk of corruption through undue influence. Restricting the amount donors can contribute minimises the risk that large political donations will be used to exert disproportionate influence on the political process. ...  For the purposes of aggregated caps, the intention of the Act is not to capture all donations made to political campaigners that undertake a range of non-electoral work. For example, a large environmental organisation may engage in a wide range of conservation activities as well as some activities characterised as political campaign activities. Only donations or gifts received for the purpose of electoral expenditure will be counted towards the aggregate donations cap for associated entities and political campaigners. 

Waters comments that 'implementation of these provisions relies to an extent on the introduction of a comprehensive disclosure regime, which the Greens have long proposed and will introduce separate legislation to establish'.

In discussing the Bill the Explanatory Statement argues

A Bill to cap or prohibit political donations will ultimately limit the ability of political parties to engage in activities like electoral advertising and promotion, to express their policy positions to the public. Some argue that this could limit the right of prohibited donors to engage in the political process. However, the right to donate to a political party is not equivalent to the right to freedom of speech or political communication. Prohibited donors retain the right to campaign publicly, to advertise, and to articulate their political views on any issues they wish – they are simply prohibited from donating monies to political parties. 

The sectors identified as prohibited donors have demonstrated a frequent nexus between their operations and public policy, and the strong public perception of impropriety associated with political donations and decision making. The Select Senate Committee on the Political Influence of Donations sets out clear examples of this nexus and the extent to which the proximity of donations from key industries to policy or project determinations that advantage that industry suggest undue influence. Consistent with the majority judgment in McCloy v NSW, any burden on the implied freedom of political communication will be acceptable if it is for a legitimate purpose and a proportionate response to the corruption risks presented by the prohibited donors. The nature of the business activities undertaken by the prohibited industries identified in the Bill make it very likely that they will seek to influence policy outcomes in their collective self-interest. Banning political donations from these industries is a proportionate response to achieve the legitimate aim of more representative democracy.  ... 

The Bill only restricts the ability of prohibited donors to participate in political debate in one way – by restricting their ability to donate to political parties. Individuals will still be able to vote and corporations will still be able to publicly engage in the debate in every way possible, aside from making donations to political parties. The decision in McCloy v NSW supports the view that capping donations seeks to achieve the legitimate end of preventing and reducing corruption and undue influence by preventing the payments of large sums of money through political donations. The majority judgment notes (at [45] – [47]):

[t]he risk to equal participation posed by the uncontrolled use of wealth may warrant legislative action to ensure, or even enhance, the practical enjoyment of popular sovereignty”.