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Author: Brendan Walker-Munro, Senior Lecturer (Law), Southern Cross University
Original article: https://theconversation.com/albanese-says-our-laws-would-stop-elon-musk-interfering-in-the-australian-election-in-truth-theres-little-to-stop-him-247361
Elon Musk is no stranger to news headlines. His purchase of Twitter and subsequent decision to rebrand the platform as X has seen it called “a true black mirror of the most worrying parts of human nature”. Tesla’s incredibly flawed Cybertruck remains an ongoing source of Internet jokes and memes. It has even been suggested that Musk might buy the US arm of social media giant TikTok, after TikTok lost its appeal to overturn an impending ban in the United States.
Musk has also been a major player in US politics. His unpopular decision to reverse X’s ban on President-elect Donald Trump was just the start. Musk endorsed Trump in the lead-up to the US elections, and spearheaded part of Trump’s re-election campaign. He is now co-lead of the incoming administration’s so-called “department of government efficiency”, which is dedicated to slashing “wasteful” spending.
And Musk hasn’t stopped his interventions at the US border. He has inflamed tensions in the United Kingdom by reviving a decades-old sex scandal and criticising Prime Minister Sir Keir Starmer.
He has also urged German voters to vote for political party Alternative für Deutschland (AfD), despite sections of that party having been classed as “right-wing extremist” by German authorities.
And just last week, the prime ministers of Spain and France criticised Musk for “interfering” in politics in the European Union.
Albanese weighs in on foreign interference
Some political analysts have warned that Musk will turn his attention to Australia, with a federal election due by the end of May 2025. In response, Prime Minister Anthony Albanese cautioned that “we have foreign interference laws in this country and Australian elections are a matter for Australians”.
Albanese certainly seems on strong footing. Australia amended its criminal code to outlaw foreign interference in 2018. The legislation is extremely complex, but it effectively outlaws any act that is performed, directed, funded or supervised on behalf of a “foreign principal” (usually a foreign government or one of its entities) if that act could:
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influence a political or governmental process, or an Australian democratic or political right or duty, such as an election
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support foreign intelligence activities
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prejudice Australia’s national security.
In other words, if Musk does anything that “influences” the outcome of an election – whether it is aimed at our politicians or our voting public – he could be breaking the law.
That’s not all. Musk, his companies, and any employee he directs in that endeavour would need to register with the Australian government, not just as lobbyists but also under the “Foreign Influence Transparency Scheme” (FITS).
“Registrable activities” performed for a foreign principal must be recorded on the FITS public register. This covers everything from parliamentary or general lobbying, through to “communications activities” (publishing or disseminating information for political or governmental influence) or “disbursement activities” (distributing money or things for political or government influence).
The FITS legislation is particularly harsh for non-compliance – a failure to register before engaging in registrable activities is a crime, punishable by fines and up to five years’ imprisonment.
Could Musk actually be prosecuted?
That’s a hard question, but the answer is likely to be no. The problem is the foreign interference provisions were designed to protect Australian democracy from interference by foreign governments – and their spies, secret agents and saboteurs – not massive social media super-corporations, or the world’s richest man.
First, a prosecution would have to prove that Musk or X is working on behalf of, directed, funded or supervised by “foreign principal”. One argument could be that Musk/X is acting on behalf of the US government or Trump, but that’s not an easy thing to prove – Musk could just say he is doing it by himself (which is fairly likely given his propensity for controversial and edgy statements).
Otherwise, prosecutors would need to prove X is a “foreign public enterprise”, which is even more complicated. Briefly, given the US government does not own 50% of X’s shares, voting power, or board of directors, prosecutors would have to prove X is under an “obligation” to act on the US government’s behalf, or “enjoys special legal rights or a special legal status” in the US.
Ironically, if Musk actually does buy the US arm of TikTok, X might become a “foreign public enterprise” because of China’s ownership of TikTok’s parent company, ByteDance.
Second, Musk would have to be extradited from the US to Australia to face a criminal trial. This would require the US government to be satisfied that the offence is recognised under US law, which does not have the same offences for foreign interference as Australia does. Musk’s comments could also be covered by the First Amendment to the US Constitution, which protects free speech.
Extraditions can also take many months or even years to effect. No doubt any extradition would be fought tooth and nail by Musk in court, if his multimillion-dollar battle against the e-Safety Commissioner is anything to go by.
Third, prosecutors would need to prove that Musk “intended” to interfere with an Australian election. At the very least, they would have to show he was “reckless” as to that outcome – that is, he didn’t really care what the outcome could be. That’s certainly possible, but could it be proven in court?
Finally, all it would take is for Trump, as president, to pardon Musk for any US-based crime he might have committed, and there would arguably be no basis for his extradition to Australia.
Unsurprisingly, these provisions were deemed controversial in 2018, and are still being criticised now.
In the seven years since the laws were passed, only three people have ever been charged, with only one conviction secured.
Further, the FITS was reviewed by the Parliamentary Committee on Intelligence and Security late last year. It labelled the scheme an “abject failure”.
So, it seems that unless Australia looks to change its foreign interference laws urgently, it is unlikely there would be much stopping Musk interfering in the Australian election, should he choose to do so.