Alexander Csergo, accused of ‘reckless foreign interference’, is being held in a top-security jail cell in Australia. His case is a ‘show trial’, his lawyer says, which reflects ‘an absolute hypocrisy in our approach to doing business with China’.
by Su-Lin Tan
The Australian businessman arrested in Sydney last month on the criminal charge of “reckless foreign interference” has not been let out of his prison cell, according to his lawyer Bernard Collaery.
Few people have been able to speak to Alexander Csergo, a marketing executive whom Collaery said was being held as a high-security risk prisoner at Parklea Correctional Centre in Sydney’s northwest, and had not been afforded his “universal rights”.
Csergo had been working in China for 12 years but returned home from Shanghai in early March and was arrested at his home in Bondi.
Police alleged that Csergo had provided reports on Australian defence and economic matters to individuals supposedly linked to Chinese foreign intelligence services for a fee, but Collaery said during a bail hearing that Csergo had gathered his work largely from open sources.
Collaery, who was not able to visit the businessman in jail, described the case as the start of a “show trial” by Canberra that would serve as a warning to other would-be transgressors against Australia.
“If you read the China-Australia Free Trade Agreement (ChAFTA) … providing public-source compilations and market research opinion on subjects such as EV [electric vehicle] car sales, ore reserves, [and] Aukus within the extended definition of ‘national security’, was not a declared ‘no-go’ area,” he said.
“There is an absolute hypocrisy in our approach to doing business with China, when ‘national security’ data on, for example, iron ore reserves, is freely given in negotiations assisted by Australian authorities.
“Either we charge thousands of persons from Australia or within reach of Australia with trading with the enemy or we cease ‘show trials’ of persons who work innocently in China.”
ChAFTA, an agreement signed between Beijing and Canberra in 2015, exploded trade between the two countries, making China Australia’s biggest trading partner.
While economic relations prospered, however, political relations between the two countries began to sour around 2018, when the government of Malcolm Turnbull banned Chinese telecoms firm Huawei from Australia’s 5G network just as the US-China rivalry was ramping up via a trade war.
It was around this time that Canberra decided to introduce new foreign interference laws, amid a domestic media frenzy about alleged Chinese foreign interference, such as when Australian politicians accepted donations from Chinese businessmen.
There has, however, been little public evidence to show how interference occurred, and while security agencies have warned about increased threats to Australia, they do not tell the public what they are.
While it was never formally acknowledged at the time, Turnbull said in a parliamentary inquiry this year that the laws had been aimed at China.
These interference laws now criminalise anyone – not just Australian citizens – who sells Australia’s interests to foreign states, be that through undermining its national security or damaging its reputation and relationships, for example.
But those who are transparent about their work with foreign groups on a public register will escape scrutiny.
Csergo’s arrest, however, has worrying implications, as anyone doing legitimate work for foreign states or companies – including public servants and journalists working overseas – could be targeted, said Greg Barns, an Australian lawyer who has worked on terrorism cases.
“It is a broad offence which could capture innocent conduct, because it criminalises private actions by Australians acting on behalf of foreign clients in, for example, information gathering for lobbying purposes,” said Barns, the National Criminal Justice Spokesman for the Australian Lawyers Alliance.
“A person who is commissioned by a Chinese company to scope the market for their product in Australia might be caught by this law.”
The Csergo case captures this scenario.
As a market research expert who mined data to determine business trends, Csergo provided reports to all kinds of clients – some of them foreign investors interested in expanding into China – including in the EV market, Collaery said.
“How can we be led to this? The Csergo case will be a test of our liberties and the rule of law”: Bernard Collaery, lawyer for Alexander Csergo
To his alleged intelligence-linked clients, known as “Ken” and “Evelyn”, according to police, Csergo provided open-source information on Aukus and Australian industrial sectors such as lithium, Collaery said.
And Csergo, like most businesspeople, would have taken a benign approach with his clients, he said.
“You don’t look at things in a ‘James Bond’ sense,” Collaery said.
The clincher for Csergo was when he told the police he was aware Chinese companies were linked to the Communist Party even though it was a common fact, Collaery said.
“Our client is charged with recklessly supporting the intelligence activities of a foreign principal [foreign government], because he acknowledged that all roads lead to the state,” Collaery said.
The meaning of “reckless” in the context of Csergo’s charge points to allegations that he “turned a blind eye” to the fact that the two clients could be from foreign intelligence agencies, according to lawyer and consultant Robert Wyld at the legal firm Johnson Winter Slattery.
“It means that you know or ought to know sufficient red flags which would put you on notice. Reckless is really when you don’t turn your mind to it,” he said.
“And when you don’t turn your mind to meeting strange people who introduce themselves by their first names in a dark area and who offer you money, even for open-source commercial information, it could be reckless for certain of the Australian foreign interference offences,” Wyld added.
“The real test would be whether he was recklessly indifferent whether his conduct was assisting foreign intelligence.”
Similar to the US, Australia is one of the few liberal democracies to criminalise acts of foreign interference, he said.
But only a trial could determine what the charge really meant, Wyld said, and as of yet, no Australian courts have considered and ruled on the offences.
Should the case go to trial, the Australian government might also seek to run it secretly as it had previously in cases involving Witness J and Witness K, who exposed Australia’s bugging of the offices in East Timor.
“There could be any layer of secrecy provisions that makes it as opaque as something that comes out of the Chinese legal system,” Wyld said.
In general, it was concerning that laws could allow “powerful arms of the state” to determine how people behave or think, he noted, adding that transparency was key but cases when people “acted coercively or with deception” were problematic.
“It is dangerous for governments, and agencies with secretive powers of arrest supported by the state criminal process … to determine the political narrative of a country.”
Few countries come to this discussion “with the high moral ground or clean hands”, Wyld added.
Csergo has been denied bail and is still awaiting a date when an appeal can be heard.
His lawyer Collaery expressed worry about how authoritarian Australia might have become.
“How can we be led to this?” he said. “The Csergo case will be a test of our liberties and the rule of law.”
(Su-Lin Tan is a qualified accountant and worked in investment banking and funds management both in London and Sydney before becoming a journalist. You can read more of her articles on her website.)
This article was first published by South China Morning Post.
The cover photo by ALARABIYA NEWS.
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