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Foreign Influence Transparency Scheme Bill 2018

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2016 - 2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

FOREIGN INFLUENCE TRANSPARENCY SCHEME BILL 2017

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)



FOREIGN INFLUENCE TRANSPARENCY SCHEME BILL 2017

General Outline

1.                    The Act will establish the Foreign Influence Transparency Scheme (‘the scheme’).  The scheme introduces registration obligations for persons or entities who have arrangements with, or undertake certain activities on behalf of, foreign principals. It is intended to provide transparency for the Australian Government and the Australian public about the forms and sources of foreign influence in Australia.

2.                    While foreign actors are free to promote their interests in Australia’s free and open society, this must be done in a lawful, open and transparent way. 

3.                    Decision-makers in the Australian Government and the public should know what interests are being advanced in respect of a particular decision or process. However, it is difficult to assess the interests of foreign actors when they use intermediaries to advance their interests through activities such as lobbying or communication of information or material. When the relationship between the foreign actor and the intermediary is concealed, the ability to assess the interests being brought to bear on a particular decision or process is limited and ultimately undermines the ability of the decision-maker and the public to evaluate and reach informed decisions on the basis of those representations.

4.                    This Act intends to illuminate the nature and extent of activities undertaken by persons acting on behalf of foreign actors in Australian political and governmental processes. The scheme established by the Act is intended to provide transparency and oversight of the many and varied ways in which foreign actors seek to exercise influence over Australian political and governmental systems and processes, including the views of the Australia public on such matters.

5.                    The scheme does not prohibit the involvement of foreign actors in Australia’s political and governmental processes. Rather, it simply imposes a requirement that, when a person is undertaking activities on behalf of a foreign actor, this is made transparent to the decision-maker and the Australian public, so that they are able to accurately assess the interests being brought to bear.

6.                    The scheme will:

·          require registration by persons undertaking certain activities on behalf of  a foreign principal

·          contain appropriate exemptions for certain activities or classes of persons

·          require registrants to disclose information about the nature of their relationship with the foreign principal and activities undertaken pursuant to that relationship (both at the initial point of registration and on an ongoing basis for the duration of the relationship)

·          place additional disclosure requirements on registrants during elections and other voting periods

·          allow some information to be made publicly available, to serve the transparency purposes of the scheme

·          be accompanied by charges (for cost recovery purposes)

·          be supported by powers which will be vested in the Secretary, including issuing notices to produce information or documents and collecting charges, and

·          be supported by criminal offences for non-compliance.

7.                    The scheme is not intended to restrict, deter, criminalise or punish otherwise lawful activities or associations.

FINANCIAL IMPACT

8.                    The establishment of the scheme will have a financial impact.  The Government has committed to providing $3.2 million over four years for the scheme to be administered.  The scheme will collect charges for making an application for registration and annual renewal of registration under the scheme.  The charges will not be sufficient to provide full cost recovery.   



 

ACRONYMS

Acts Interpretation Act

Acts Interpretation Act 1901

AFP

Australian Federal Police

ASIO

Australian Security Intelligence Organisation

ASIO Act

Australian Security Intelligence Organisation Act 1979

Australian Broadcasting Corporation Act

Australian Broadcasting Corporation Act 1983

Broadcasting Services Act

Broadcasting Services Act 1992

Commonwealth Electoral Act

Commonwealth Electoral Act 1918

Charges Imposition Act

Foreign Influence Transparency Scheme (Charges Imposition) Act 2017

Crimes Act

Crimes Act 1914

Criminal Code

Criminal Code Act 1995

Consular Privileges and Immunities Act

Consular Privileges and Immunities Act 1972

Defence Act

Defence Act 1903

Defence Force Discipline Act

Defence Force Discipline Act 1982

Diplomatic Privileges and Immunities Act

Diplomatic Privileges and Immunities Act 1967

FARA

Foreign Agents Registrations Act 1938 (U.S.C. § 611 et seq - United States Code)

Guide to Framing Commonwealth Offences

Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers

Legislation Act

Legislation Act 2003

MOPS Act

Members of Parliament (Staff) Act 1984

Overseas Missions Act

Overseas Missions (Privileges and Immunities) Act 1995

Privacy Act

Privacy Act 1988

Public Governance Act

Public Governance, Performance and Accountability Act 2013

Public Service Act

Public Service Act 1999

Referendum Act

Referendum (Machinery Provisions) Act 1984

Special Broadcasting Act

Special Broadcasting Service Act 1991

Telecommunications Act

Telecommunications Act 1987



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Foreign Influence Transparency Scheme Bill 2017

9.                    This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

10.                The Foreign Influence Transparency Scheme Bill 2017 (the Bill) will establish a regulatory scheme that identifies the forms and sources of foreign influence exerted in Australia. The scheme will enhance government and public knowledge of the level and extent to which foreign sources may have impact over the conduct of Australia’s elections, government and parliamentary decision-making, and the creation and implementation of laws and policies.

11.                In summary, the scheme will: 

·          require persons undertaking certain activities on behalf of a foreign principal to register

·          contain appropriate exemptions for certain activities or classes of persons, such as diplomatic and consular activities and activities for the purposes of providing humanitarian aid

·          require registrants to disclose information about the nature of their relationship with the foreign principal and activities undertaken pursuant to that relationship (both at the initial point of registration and on an ongoing basis for the duration of the relationship)

·          place additional disclosure requirements on registrants during elections and referendums

·          allow some information to be made publicly available, to serve the transparency purposes of the scheme

·          be accompanied by charges (for cost recovery purposes)

·          be supported by powers, including to monitor compliance, conduct audits and collect charges, and

·          be supported by criminal offences for non-compliance.

12.                The scheme will cover activities which are inherently political in nature, such as lobbying of members of parliament, as well as activities undertaken with the specific purpose of political or governmental influence.

Human rights implications

13.                This Bill engages the following rights:

·          the right to liberty of person and freedom from arbitrary detention in Article 9(1) of the ICCPR

·          the right to be presumed innocent in Article 14(2) of the ICCPR

·          the right to privacy in Article 17 of the ICCPR

·          the right to opinion and freedom of expression in Article 19 of the ICCPR

·          the right to freedom of association in Article 22 of the ICCPR, and

·          the right to take part in public affairs and the right to vote in Article 25 of the ICCPR.

Human rights promoted by the Bill

Right to opinion and freedom of expression, right to freedom of association and right to take part in public affairs and elections

14.                Article 19 of the ICCPR states that everyone has the right to hold opinions without interference and that everyone shall have the right to freedom of expression. Article 22 provides for the right to freedom of association with others. Article 25 of the ICCPR further states that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives, and to vote and to be elected at genuine periodic elections.

15.                The Bill protects and promotes the rights to opinion and freedom of expression, freedom of association and participation in public affairs and elections by encouraging and promoting a political system that is transparent, and where the forms and sources of foreign influence on Australian democratic or political rights are clearly visible. 

16.                Every country is free to promote their interests in Australia’s free and open society, provided these actions are lawful and transparent.  Hidden or concealed foreign influence brought to bear on political or governmental processes can advance the interests of a foreign principal to the detriment of Australia’s national interests.  This is particularly the case where foreign principals use intermediaries to undertake activities on their behalf in Australia, concealing their involvement in the activities undertaken on their behalf.  In circumstances where the ultimate source of the views and interests being put forward is not known, political decision-makers and the public are limited in their ability to evaluate and make informed decisions on the basis of those representations.  Ultimately this has the potential to undermine the integrity and independence of Australia’s political and government institutions.

17.                This Bill will establish a transparency scheme that seeks to bring such influence to light.  The scheme will illuminate, rather than prohibit, foreign influence activities in Australia’s political and governmental processes when conducted transparently on behalf of a foreign principal.  Provided the interests of the foreign principal are clear on the face of the activities undertaken on their behalf, such activities will continue to be a legitimate form of activity, engaging the right to opinion and freedom of expression in Article 19 of the ICCPR and the right to take part in political affairs and the right to vote in Article 25 of the ICCPR.

18.                The scheme will not prohibit persons acting on behalf of foreign principals in undertaking certain activities - rather, it requires that the involvement of the foreign principal be transparent.  Provided a person registers under the scheme, they will still be able to undertake activities on behalf of foreign principals for the purpose of political or governmental influence, engaging the right to freedom of association with others in Article 12 of the ICCPR.  This will have a positive impact on the integrity of Australia’s political and electoral processes, as decision-makers and voters will be aware of the types of influence being brought to bear in such processes. 

19.                On this basis, the Bill will enable the exercise of democratic and political rights and duties without interference and thereby protect and promote the rights contained in Articles 19, 22 and 25 of the ICCPR. 

Human rights limited by the Bill

Legitimate objective of the Bill 

20.                Under international human rights law, any limitation on rights and freedoms must be reasonable, necessary and proportionate for the pursuit of a legitimate objective. For an objective to be legitimate, it must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.

21.                The objective of the Bill is to introduce a transparency scheme to enhance government and public knowledge of the level and extent to which foreign sources may, through intermediaries acting on their behalf, influence the conduct of Australia’s elections, government and parliamentary decision-making, and the creation and implementation of laws and policies.

22.                Foreign influence can have serious implications for political sovereignty and national policy as it may result in the prioritisation of foreign interests over domestic interests. For example, where a foreign principal engages an intermediary to represent their interests within Australia, the relationship between the intermediary and the foreign principal, and thereby the foreign interest, can remain hidden. This undermines the ability of decision-makers in government, as well as the public, to fully understand and evaluate the actions of that intermediary, and to make informed decisions.

23.                During elections, referendums and plebiscites in particular, foreign influence can undermine the legitimacy or perceived legitimacy of government and its processes, enable the perception of corruption, and obfuscate information that might impact the voting decisions of the public. Consequently, it is important that activities that could impact Australia’s government and political systems and processes, which are undertaken on behalf of foreign principals, are distinguished from activities undertaken by domestic principals to influence such processes. 

24.                There is currently no formal mechanism requiring instances of foreign influence to be made known to government and the public. While some forms of foreign influence are captured through lobbying registers, these registers primarily target very narrow conduct, being lobbying of government representatives and politicians. Furthermore, these registers are not supported by binding legislative or regulatory frameworks and enforcement mechanisms. Similarly, Ministerial codes of conduct that variously regulate the post- employment activities of Ministers, are not supported by binding legislative or regulatory frameworks. This can impede the ability of these schemes to illuminate activities undertaken by former Ministers on behalf of foreign actors.

25.                The scheme will achieve its transparency objective by publicly identifying the forms and sources of foreign influence exerted over political and governmental processes in Australia. It will do this by way of a publicly available register, containing information about the nature of a person’s relationship with a foreign principal, and the activities undertaken pursuant to that relationship.

26.                To ensure the scheme captures contemporaneous information on foreign influence activities, registrants will be required to update the register annually, in response to a change in material circumstances and during the voting period for a federal election, referendum or other designated vote.

27.                The scheme will also require disclosure statements to be included on information or materials disseminated, distributed or otherwise communicated on behalf of a foreign principal. As a further layer of transparency, the scheme will require an annual report to be tabled in Parliament detailing information on the operation of the scheme.

Right to liberty of person and freedom from arbitrary detention

28.                Article 9(1) of the ICCPR states that everyone has the right to liberty and security of person and that no one shall be subjected to arbitrary arrest or detention. Limitations on the right to liberty are permitted to the extent that they are ‘in accordance with such procedures as are established by law’, provided that the law and the enforcement of it is not arbitrary, and where they are reasonable, necessary and proportionate to achieve a legitimate objective.

29.                The Bill limits the right to liberty of a person and the freedom from arbitrary arrest and detention by imposing penalties of imprisonment ranging from six months to seven years for offences in Part 5 of the Bill. The purpose of introducing these offences is to provide a meaningful and serious deterrent for non-compliance with the scheme, and in turn, provide the scheme with sufficient means to pursue a person who is deliberately undermining the transparency objectives of the scheme. 

30.                The penalties for the new offences are consistent with the established principles of Commonwealth criminal law policy as set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers .  The penalties for the offences contained in the Bill are appropriate and commensurate with the seriousness and culpability of offending. The highest penalties, of seven years imprisonment, reflect conduct where a person is seeking to subvert the transparency objectives of the scheme.  Less serious penalties are imposed for conduct that has an effect on the scheme’s transparency purposes, but where a lesser fault element applies or the outcome of the conduct has a less serious effect.

31.                Responsibility for determining criminal guilt and imposing an appropriate sentence rests with the courts in their exercise of judicial power.  The court will have discretion to implement an appropriate penalty based on all of the circumstances of the case.  In this regard, the application of the penalties is not disproportionate.  The offences in Part 5 of the Bill will be subject to a number of safeguards to ensure their appropriate application. The safeguards also promote the right to liberty and freedom from arbitrary detention, including the availability of defences, bail and parole entitlements, and fair trial rights such as to have matters heard by a competent, independent and impartial tribunal established by law.

Defences

32.                Specific defences will be available for the offences of failure to comply with a notice requiring information or documents and providing false or misleading information or documents.  In addition to specific defences, the general defences under Part 2.3 of the Criminal Code will be available for all offences. These general defences include mistake or ignorance of fact, ignorance of subordinate legislation that was not available, claim of right over property, duress, sudden or extraordinary emergency, self-defence, and lawful authority.

33.                Defences will allow persons at risk of deprivations of liberty to justify their actions and defend the criminal charge against them. If successful, a defence may reduce the offence charged to a lesser offence or provide a complete defence to the charge.

Presumption of innocence

34.                Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. In General Comment No. 32 (CCPR/C/GC/32) the UN Human Rights Committee stated that the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. The presumption of innocence may be limited provided the limitation ‘is reasonable in the circumstances’, and necessary and proportionate to achieve a legitimate objective.

35.                The Bill limits the presumption of innocence by:

·          imposing strict liability offences

·          imposing absolute liability for certain offence elements

·          placing an evidentiary burden on the defendant with respect to defences, and

·          providing for evidentiary certificates which is prima facie evidence of the existence of certain facts.

Strict liability

36.                Strict liability applies to each offence under section 58 of the Bill (failure to fulfil responsibilities under the scheme). These offences will make it an offence for a person to fail to do any of the following when required to:

·          give a notice under Division 2 of Part 3 (reporting to the Secretary)

·          make a disclosure in accordance with the rules made for the purposes of section 38 of the Act (disclosure in communications activity), and

·          keep records of a matter under section 40 (keeping records). 

37.                The effect of applying strict liability to an offence is that no fault element needs to be proven in relation to the offence. This means that the prosecution will be required to prove, for example, that a person was required to make a disclosure in accordance with the scheme and that the person failed to so.

38.                The application of strict liability may limit the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault. Strict liability provisions will not violate the presumption of innocence so long as they are reasonable in the circumstances, and maintain rights of defence.

39.                The application of strict liability is necessary to ensure that a person cannot avoid criminal responsibility because they claim to be unaware of certain obligations required of them under the scheme. In this respect, the application of strict liability is necessary to ensure the integrity of the scheme as the punishment of the offences, without fault, is likely to significantly enhance the effectiveness of the enforcement of the regime by deterring the relevant conduct. There are also legitimate grounds for penalising a person lacking ‘fault’ in these circumstances because, persons will be informed of their obligations under the scheme upon registration and will therefore be aware that possible contraventions will be punishable under the scheme. 

40.                In accordance with the Guide to Framing Commonwealth Offences, the application of strict liability is proportionate because the offences in section 58 do not include penalties of imprisonment, and the fines do not exceed 60 penalty units.

41.                The application of strict liability will also make available the general defence of mistake of fact as set out in section 9.2 of the Criminal Code.  This defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

Absolute liability

42.                Absolute liability applies to an element of the offence of destruction of records in section 61.  For this offence, the element that a registrant is required to keep records under the scheme record is subject to absolute liability.

43.                As with strict liability, the application of absolute liability limits the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault in the defendant.

44.                The application of absolute liability is reasonable and necessary for the element of the offence at section 61 as it applies to a particular physical element of the offence.  Applying absolute liability to a particular physical element of an offence may be justified where requiring proof of the particular element (in this case, the fact that a person is required to keep records under the scheme) would undermine deterrence.  This is consistent with the principles outlined in the Guide to Framing Commonwealth Offences.  

45.                The application of absolute liability to this element is also necessary to ensure that a person cannot avoid criminal responsibility because they were unaware that they were required to keep records under the scheme. Requiring knowledge of this element in these circumstances would undermine the deterrence effect of this offence. There are also legitimate grounds for penalising a person lacking ‘fault’ in these circumstances because the person still engaged in conduct with the intention of defeating an objective of scheme, for example by intentionally damaging or destroying a scheme record. The fact that a person is unaware of the obligation to keep records is irrelevant to their culpability, given the presence of their intention to avoid or defeat the object of the scheme.

46.                Further, the absolute liability measures are proportionate in that they only apply to an element of the offence and not to the offence as a whole. In this respect, the prosecution will still be required to prove, beyond a reasonable doubt, all other elements of the offence including fault elements of intention or recklessness.

Reversal of burden of proof

47.                The Bill creates a number of specific defences to offences in sections 59 (failure to comply with a notice requiring information) and 60 (providing false or misleading information or documents) which reverse the burden of proof by providing that a defendant bears the evidential burden. Consistent with section 13.3 of the Criminal Code, this burden requires the defendant to adduce or point to evidence that suggests a reasonable possibility that a particularly matter exists or does not exist. Reversing the burden of proof limits Article 14(2) in that a defendant's failure to discharge the burden may permit their conviction despite reasonable doubt as to their guilt.

48.                It is reasonable and necessary for the burden of proof to be placed on the defendant where the facts in relation to the defence are peculiarly within the knowledge of the defendant. For example, for a defence at subsection 60(2) a defendant should readily be able to point to evidence that the information given or document provided is not false or misleading in a material particular, as the defendant has the most relevant knowledge of the circumstances and activities to which his or her registration applies. 

49.                Reversal of proof provisions are proportionate because even where the defendant discharges the evidential burden, the prosecution will still be required to disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code. This is in addition to proving other elements of the offence beyond reasonable doubt.

Evidentiary certificates

50.                Section 51 of the Bill provides that a certificate signed by the Minister is prima facie evidence that a specified person is a scheme official or was a scheme official at a specified time. Subsection 51(1) defines a scheme official to be the Secretary, an APS employee in the Department to whom a function or power is delegated under section 67, or whose functions otherwise include functions in relation to the scheme, and any other person who performs functions in relation to the scheme under an arrangement with the Commonwealth.

51.                Evidentiary certificate provisions may limit Article 14(2) to the extent that they create a presumption as to the existence of the factual matter on which a certificate is issued which requires the accused to disprove the matters certified in the certificate. Accordingly, evidentiary certificate provisions reverse the burden of proof.

52.                The evidentiary certificate provided for in the Bill will be used to settle formal matters of fact, being that a specified person is a scheme official or was a scheme official at a specified time, which would otherwise be difficult to prove under the normal rules of evidence. This is because information about whether a person is a scheme official can be said to be peculiarly within the knowledge of the Commonwealth. By precluding a requirement on the prosecution to prove certain factual matters, the Bill will ensure that the accused is tried without delay in accordance with Article 14(3)(c) of the ICCPR. Furthermore, the evidentiary certificate in section 51 will establish prima facie evidence, rather than conclusive evidence and as such may be challenged by the accused during the court proceedings. Importantly, the evidentiary certificate will not establish the weight or veracity of the evidence, which will remain a matter for the court.

53.                On this basis, the limitations on the right to the presumption of innocence are reasonable, necessary and proportionate to achieving the legitimate objective of the scheme.

Right to privacy

54.                Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. The UN Human Rights Committee have interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The right to privacy may be limited where the limitation is lawful and not arbitrary and where it is reasonable, necessary and proportionate to achieve a legitimate objective.

55.                The Bill limits the right to privacy in that it will require the disclosure of information pertaining to the activities and relationships of persons or entities undertaking activities on behalf of a foreign principal.

56.                The limitation is reasonable and necessary as the disclosure of certain information is required to achieve the transparency objective of the scheme.

57.                In General Comment No. 16, the UN Human Rights Committee noted that the protection of privacy is necessarily relative, as all persons live in a society.   However, authorities should only be able to call for information relating to an individual’s private life, where the knowledge of that information is essential to the interests of society. 

58.                Allowing information to be publicly available fulfils the fundamental transparency objective of the scheme and provides the Australian public and decision-makers with access to specific information about the forms and sources of foreign influence being brought to bear in Australian political and governmental systems and processes.  The collection and retention of information relevant to the scheme is carefully regulated and there are a number of provisions in the Bill that limit disclosure of information relevant to the scheme in specific circumstances.  

59.                To the extent that the scheme allows for the public disclosure of certain information, and this requirement limits a person’s right to privacy, this limitation is reasonable, necessary and proportionate to achieve the transparency objective of the scheme. 

Freedom of expression

60.                Article 19(2) of the ICCPR states that everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The right to freedom of expression includes the right not to impart information. Any limitation on the freedom of expression must be reasonable, necessary and proportionate for the pursuit of a legitimate objective and for the respect of the rights or reputations of others or for the protection of national security, public order, or public health or morals.

61.                The Bill engages the right to freedom of expression as it will require persons to impart information under the scheme, and will regulate certain activities undertaken on behalf of a foreign principal, including the seeking, receiving and imparting of information and ideas generally.

62.                Under Part 2 of the Bill, persons or entities engaging in certain activities will be required to publicly disclose, by way of registration, information about their relationship with a foreign principal and the activities undertaken pursuant to that relationship. Part 3 of the Bill will require these persons and entities to provide ongoing information to the scheme, some of which will be made publicly available. The Bill may therefore be interpreted as limiting the freedom of expression by attaching compulsory registration and reporting obligations that involve the seeking, receiving and imparting information.

63.                The obligation to register and provide ongoing reports is intended to support the transparency objectives of the scheme. This information is intended to enable the Australian Government and public to understand and properly judge the activities of persons who act on behalf of foreign principals. In General Comment No. 34 (CCPR/C/GC/34), the UN Human Rights Committee emphasised the importance of the principles of transparency and accountability for the protection and promotion of human rights. By ensuring transparency of the sources and interests behind certain activities, the Bill will promote the rights of individuals to hold opinions as protected by Article 19(1).

64.                The obligation to register and provide ongoing reports will promote a number of other human rights, including the ability to hold opinions and take part in public affairs. It does this by ensuring access to current and accurate information about activities being undertaken to influence political and governmental systems and processes. In this regard, any limitations on the freedom of expression to the extent that they promote these and other human rights are reasonable.

65.                Division 3 of Part 2 of the Bill will allow the Secretary to give a person a notice which requires the recipient of the notice to provide information the person has about whether they are liable to register under the scheme, or which is relevant to the operation of the scheme. If a person does not comply with this notice they may be committing a criminal offence, which attracts a maximum penalty of 6 months imprisonment.

66.                The ability to request, and effectively compel, the provision of information is an important tool in being able to monitor compliance with the scheme. This will ensure that people who are required to register do so, and that people who are registered are complying with the reporting requirements under the scheme.

67.                Accordingly, while the Bill may limit the right to freedom of expression, the limitation is reasonable because it will help ensure compliance with the scheme, and ensure law enforcement authorities have the information needed to investigate non-compliance.

68.                In General Comment No. 34 (CCPR/C/GC/35) the UN Human Rights Committee noted that the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion/a free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other rights under the ICCPR.

69.                The scheme will not impose a ban on the media in relation to the communication of information and ideas about political issues. However, registration may be required if the activities of the press or media are done on behalf of a foreign principal for the purpose of influencing a political or governmental processes. An exemption has explicitly been included for news media where a person undertakes an activity on behalf of a foreign business or foreign individual, and the activity is done for the purposes of reporting news, presenting current affairs or expressing editorial content in news media. This exemption does not extend to state-owned media.

70.                To the extent that the registration and reporting requirements under the scheme limit the right to freedom of expression, they do so in a way that is reasonable, necessary and proportionate to the objective of the scheme, that is to make transparent to government and the public the sources of foreign influence in Australia.

Freedom of association

71.                Article 22 of the ICCPR states that everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

72.                The Bill engages the freedom of association as it regulates certain activities undertaken on behalf of a foreign principal, including activities which may fall within the scope of Article 22. For instance, if a group of persons formed an association and held a protest with a view to influencing a section of the Australian public in relation to a political or governmental process, and do so on behalf of a foreign principal, the association may be required to register under the scheme.

73.                Failing to register under the scheme where a person is liable to do so may result in criminal liability.  Although the scheme will not prevent activities being undertaken on behalf of a foreign principal, the requirement to register and disclose those activities may be interpreted as limiting the freedom of association. 

74.                However, Article 22 allows for permissible limitations on the freedoms where it is to advance a legitimate objective, including the interests of national security and the protection of the rights and freedoms of others. Any limitation on the freedom of association must be reasonable, necessary, and proportionate to the pursuit of one of these legitimate objectives.

75.                In certain circumstances, the scheme will protect Australia’s national security interests.  This will occur by raising awareness amongst decision-makers and the public of foreign influence in political and governmental processes relating to national security that may have otherwise gone undetected and which has the potential to distort decision-making processes concerning our national security. In this regard, the limitation on the freedom of association is reasonable, necessary and proportionate. 

76.                In General Comment No. 34 on Article 19 (CCPR/C/GC/34), the UN Human Rights Committee emphasised the importance of the principles of transparency and accountability for the protection and promotion of human rights. The purpose of the scheme - to enhance transparency around the activities of persons who act on behalf of foreign principals in Australia - is intended to protect the sovereignty of Australian political and governmental processes and make decision-makers accountable for their actions by illuminating the extent of foreign influence which may have been bought to bear on a particular decision.

77.                Accordingly, the limitation on freedom of association is reasonable, necessary and proportionate as it promotes protection of the rights and freedoms of others.

Right to take part in the conduct of public affairs and the right to be elected

78.                Article 25 of the ICCPR states that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives, and to vote and to be elected, without unreasonable restrictions.

79.                In General Comment No. 25 on Article 25 (CCPR/C/21/Rev.1/Add.7))  the UN Human Rights Committee noted that citizens may take part in the conduct of public affairs by exerting influence through public debate and dialogues with their representatives or through their capacity to organize themselves.

80.                Australia is a free and open society, and the Bill does not prevent any person from contributing to public debate in Australia, or to vote in any election.  Rather, the Bill is intended to provide transparency around contributions to and involvement in Australia’s political and governmental processes, if undertaken on behalf of a foreign principal.

81.                The Bill could be interpreted as limiting the right to take part in the conduct of public affairs. This is because it will require a person to register if they undertake certain activities on behalf of a foreign principal, including activities which could be described as ‘influencing through public debate and dialogues.’ In addition to registration requirements, if a person distributes communications materials on behalf of a foreign principal as part of the contribution to public debate, that person may be required to make a disclosure in the material about the foreign principal.

82.                The requirements may be interpreted as being restrictions, but are nonetheless reasonable in all of the circumstances. The objective of the Bill is to enhance transparency for the Australian Government and public, to ensure that foreign principals are not exerting undue influence over political and governmental processes. This is a legitimate objective and requiring a person to register and report on such activities is not an unreasonable restriction in pursuit of this objective.

83.                In General Comment No. 25 (CCPR/C/21/Rev. 1/Add. 7) the UN Human Rights Committee also stressed the importance of voter education to ensure the effective exercise of Article 25 rights by an informed community. The scheme will support voter education by informing the public of foreign influence over political and governmental processes, including in relation to federal elections, referendums and other votes. This will enable the community to make informed judgments and decisions about all of the influences that are brought to bear over a particular vote.

84.                Accordingly, any limitations on the right to take part in the conduct of public affairs and to vote are reasonable, necessary and proportionate to achieve the transparency objective of the scheme. 

Conclusion

85.                The Bill is compatible with human rights because it promotes the protection of a number of human rights including the right to hold an opinion, the right take part in public affairs and elections and the right to vote. To the extent that it may limit human rights, those limitations are reasonable , necessary and proportionate to the legitimate objective of the Bill, that is to enhance government and public knowledge of the level and extent to which foreign sources may influence political or governmental systems and processes in Australia.



NOTES ON CLAUSES

Part 1—Preliminary

Division 1—Preliminary  

Section 1 - Short title

86.                Section 1 provides that when the Bill is enacted, it is to be cited as the Foreign Influence Transparency Scheme Act 2017 .

Section 2 - Commencement

87.                Section 2 provides for the commencement this Bill, as set out in the table.

88.                The table provides that the whole of the Bill will commence on a single day to be fixed by Proclamation.  However, if the provisions in the Act do not commence within the period of 12 months beginning on the day the Act receives Royal Assent, the provisions will commence on the day after the end of that period. 

89.                The purpose of allowing commencement to occur on a day to be fixed by Proclamation is to allow sufficient time to establish administrative and other arrangements that will support the operation of the scheme.  This will include making appropriate rules and regulations on a range of matters, including the manner and content of forms which must be provided by registrants under the scheme, annual reporting requirements and circumstances in which scheme information can be used and shared. 

90.                The Proclamation period is limited to a period of 12 months, beginning on the day the Bill receives Royal Assent.  The 12 month period is a finite period and is intended to ensure that commencement is not delayed beyond what is reasonably necessary to establish arrangements to support the operation of the scheme.

Section 3 - Object

91.                Section 3 provides that the object of the Act is to provide for a scheme for the registration of persons who undertake certain activities on behalf of foreign governments, foreign businesses and other foreign principals, in order to improve the transparency of their activities on behalf of those foreign principals.

Section 4 - Simplified outline of this Act

92.                Section 4 sets out a simplified outline of the Act. The section provides that:

·          persons who undertake activities on behalf of a foreign principal may be liable to register under the scheme in certain circumstances

·          certain information about registrants and their activities will be made publicly available

·          registrants have various responsibilities under the scheme, and

·          various penalties apply for non-compliance with the scheme.

93.                Simplified outlines appear throughout the Act, and are included to assist readers to understand the substantive provisions. The outlines are not intended to be comprehensive. It is intended that readers should rely upon the substantive provisions.

Section 5 - Extension to external Territories  

94.                Section 5 provides that the Act extends to every external Territory.

Section 6 - Extraterritoriality

95.                Section 6 provides that the Act has extraterritorial operation and applies both within and outside Australia.  The effect of this provision is that the Act will apply to persons, or matters occurring, outside Australia and the external Territories.

96.                Extending the geographic reach of the Act is necessary to, at a minimum, cover situations where a person makes an arrangement with a foreign principal outside of Australia, and the arrangement is for the person to undertake registrable activities within Australia pursuant to that arrangement.  

97.                Extending the geographic reach of the Act is also necessary for the purposes of sections 22 and 23 of the Act, which impose registration requirements on former Cabinet Ministers, former Ministers, former members of the Parliament and former senior public officials.  For these categories of registrants, it does not matter where they undertake activities.  They are required to register even if none of their activities are undertaken in Australia. 

Section 7 - Constitutional basis and severability

98.                Section 7 sets out the Constitutional basis and severability of provisions contained in the Act.  The effect of this section is that if a court finds that the Commonwealth’s legislative power does not support the Act, a particular provision or multiple provisions, the Act shall nevertheless be valid to the extent to which it is supported by other legislative powers.

99.                Subsection 7(1) provides that that the Act relies on:

·          the Commonwealth’s legislative powers under paragraph 51(xxix) (external affairs)

·          the Commonwealth’s legislative powers under paragraph 51(xxxix) (matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth), and

·          any implied legislative powers of the Commonwealth.

100.            Subsections 7(2) and (3) are provisions relating to the additional and severable operation of the Act.  Subsections 7(4) - 7(11) set out additional and severable heads of legislative power under the Constitution which support the Act. These subsections provide that the Act has the effect it would have if its operation were expressly confined to:

·          activities undertaken in the course of trade and commerce to which paragraph 51(i) of the Constitution applies (subsection 7(4))

·          activities undertaken using a communications service to which paragraph 51(v) of the Constitution applies (subsection 7(5))

·          activities undertaken by:

o    corporations to which paragraph 51(xx) of the Constitution applies (paragraph 7(6)(a)), or

o    persons undertaking activities on behalf of corporations to which paragraph 51(xx) of the Constitution applies (paragraph 7(6)(b))

·          obtaining information for purposes relating to census and statistics within the meaning of paragraph 51(xi) of the Constitution (subsection 7(7))

·          activities undertaken on behalf of persons who are aliens within the meaning of paragraph 51(xix) of the Constitution (subsection 7(8))

·          activities undertaken beyond the limits of the States and Territories (subsection 7(9))

·          give effect to Australia’s rights and obligations under an agreement with one or more foreign countries (subsection 7(10)), and

·          activities undertaken in a Territory (subsection 7(11)).

Section 8 - Application to Commonwealth, State and Territories

101.            Section 8 provides that nothing in the Act will require the Crown in the right of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory, or a department or instrumentality of these entities, to register under the scheme.

102.            This is intended to make clear that if the practical effect of the Act is that the Commonwealth, a State or a Territory would be required to register under the scheme, registration will not be required.

Section 9 - Concurrent operation of State and Territory laws

103.            Section 9 provides that the Act is not intended to exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with the Act.

104.            An area of possible overlap of the scheme is with lobbying laws and ministerial codes of conduct across State and Territory jurisdictions.  This section seeks to ensure that where a law of a State or Territory imposes obligations on persons, those obligations are not affected by the existence of this Act (to the extent those obligations are capable of operating concurrently with the obligations created by the Act). 

Division 2—Definitions

Section 10 - Definitions

105.            Section 10 sets out definitions for terms used in the Act.   

106.            Approved form will have the meaning given to it by paragraph 66(a). Paragraph 66(a) provides that an approved form is a form that has been approved in writing by the Secretary for the purposes of a provision of the Act.  The Act requires an approved form to be used where a person is complying with an obligation under the scheme, including applications for registration (see section 16), notifying the Secretary of the end of registration (see section 31) and reporting to the Secretary on various matters (see sections 34, 35, 36, 37 and 39).

107.            Approved manner will have the meaning given to it by paragraph 66(b). Paragraph 66(b) provides that a manner for lodging a form under the Act is an approved manner if the manner has been approved in writing by the Secretary for the purposes of the Act.  The Act requires various applications and notices to be given in an ‘approved manner,’ including applications for registration (see section 16), notifying the Secretary of end of registration (see section 31), and reporting to the Secretary on various matters (see sections 34, 35, 36, 37 and 39).

108.            Arrangement is defined to include a contract, agreement, understanding or other arrangement of any kind, whether written or unwritten.  It is intended that a formal contractual arrangement or a written agreement are sufficient, but not necessary, to establish that an arrangement is in place.  The arrangement need not be established within Australia.

109.            Australian police force means the Australian Federal Police, or a police force or police service of a State or Territory.  This definition is intended to cover all police forces and services across all Australian jurisdictions.

110.            Becomes liable to register will have the meaning given to it by subsection 18(1). Subsection 18(1) provides that a person becomes liable to register under the scheme if they undertake a registrable activity on behalf of a foreign principal, or they enter into a registrable arrangement with a foreign principal (even if they do not yet engage in any registrable activities).

111.            Benefit is defined to include any advantage, and is not limited to property.  This is a non-exhaustive definition, and is intended to cover financial and non-financial benefits.  It is intended to include such things as preferential treatment and quid pro quo arrangements.  The definition of benefit could cover, for example, a person agreeing to publicly support a particular policy if the other person were to arrange a meeting with a third party.

112.            Broadcaster is defined to mean:

·          the Australian Broadcasting Corporation referred to in section 5 of the Australian Broadcasting Corporation Act 1983

·          the Special Broadcasting Service Corporation referred to in section 5 of the Special Broadcasting Service Act 1991

·          the holder of a licence allocated by the Australian Communications and Media Authority under the Broadcasting Services Act 1992 , or

·          a person making a broadcast under the authority of a class licence determined by the Australian Communications and Media Authority under the Broadcasting Services Act.  

113.            By-election is defined to mean the same as in Part XVB of the Commonwealth Electoral Act 1918 .  Section 202AA of the Commonwealth Electoral Act provides that a by-election means an election of a member of the House of Representatives that is not part of a general election.   

114.            Candidate is defined to have the meaning as in the Commonwealth Electoral Act.  

115.            The definition of candidate also states that a person who is, at a time, taken to be a candidate in an election within the meaning of the Commonwealth Electoral Act, is taken to be a candidate at that point in time for the purposes of this Act.  The Commonwealth Electoral Act may extend the time for which a person is regarded to be a candidate beyond polling day in some circumstances.  The second part of the definition of ‘candidate’ in this Act is intended to align with that extended time.

116.            Ceases to be liable to register will have the meaning given to it by section 19. Section 19 provides that a person ceases to be liable to register in relation to a particular foreign principal if they give a notice to the Secretary under section 31 (notice of end of liability to register), and on the day specified in the notice, there is no registrable arrangement in existence with the foreign principal.   

117.            Commonwealth public official will have the same meaning as in the Criminal Code Act 1995 . The Dictionary to the Criminal Code defines a Commonwealth public official to means:

·          the Governor-General

·          a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution

·          a Minister

·          a Parliamentary Secretary

·          a member of either House of the Parliament

·          an individual who holds an appointment under section 67 of the Constitution

·          the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory

·          a Commonwealth judicial officer

·          an APS employee

·          an individual employed by the Commonwealth otherwise than under the  Public Service Act 1999

·          a member of the Australian Defence Force

·          a member or special member of the Australian Federal Police

·          an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

o    the  Corporations (Aboriginal and Torres Strait Islander) Act 2006

o    the  Australian Capital Territory (Self-Government) Act 1988

o    the  Corporations Act 2001

o    the  Norfolk Island Act 1979 , or

o    the  Northern Territory (Self-Government) Act 1978

·          an officer or employee of a Commonwealth authority

·          an individual who is a contracted service provider for a Commonwealth contract

·          an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract

·          an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:

o    the  Corporations (Aboriginal and Torres Strait Islander) Act 2006

o    the  Australian Capital Territory (Self-Government) Act 1988

o    the  Corporations Act 2001

o    the  Norfolk Island Act 1979

o    the  Northern Territory (Self-Government) Act 1978, or

o    a provision specified in the regulations

·          an individual who exercises powers, or performs functions, conferred on the person under a law in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned), or

·          the Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.

118.            Communications activity will have the meaning given to it by subsection 13(1). Subsection 13(1) provides that a person undertakes communications activity if the person communicates or distributes information or material.  Subsection 13(2) clarifies that a reference to information or materials includes information or materials in any form, including oral, visual, graphic, written, electronic, digital and pictorial forms.  The term has been defined broadly and is intended to capture the various ways in which information or materials can be communicated, including as technologies and practices change over time.  This definition would include communicating information or material via newspapers, magazines, editorials, social media, fixed landlines, mobile telephones, books, and publications. The abovementioned examples are not intended to limit the operation or scope of this definition.

119.            Controlled is defined so that a person is controlled by another person (the controller ) in a number of circumstances.  In the case of a company, a person is controlled by the controller if one of the following applies:

·          the controller holds more than 50% of the issued share capital of the company

·          the controller holds more than 50% of the voting power in the company

·          the controller is in a position to appoint more than 50% of the company’s board of directors

·          the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the controller, or

·          the controller is in a position to exercise control over the company.

120.            In the case of any other body or association, a person is controlled by the controller if either of the following applies:

·          the members of the executive committee (however described) of the person are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the controller, or

·          the controller is in a position to exercise control over the body or association.

121.            The definition of controlled is used in the definition of foreign public enterprise in section 10 which refers to a company or other person (other than an individual) being controlled by a foreign government.

122.            Deal is defined consistently with the definition of the term in Part 5.6 of the Criminal Code (see sections 90.1 and section 121.1).  A person will deal with information or an article if the person does any of the following in relation to the information or article:

·          receives or obtains it

·          collects it

·          possesses it

·          makes a record of it

·          copies it

·          alters it

·          conceals it

·          communicates it

·          publishes it, or

·          makes it available.

123.            Designated vote is defined to mean a referendum, or a vote, survey or other process for the expression of opinions, which has been prescribed by the rules for the purposes of this paragraph.   Referendum is defined in section 10 to have the same meaning as in the Referendum (Machinery of Provisions) Act 1984

124.            The reference to a vote in the definition of designated vote is intended to include a federal election or by-election.  The reference to a survey or other process for the expression of opinion is intended to capture activities such as the Australian Marriage Law Postal Survey which was conducted in 2017.  The ability to prescribe votes, surveys or other processes by rules provides sufficient flexibility for additional processes to be prescribed to accommodate any future means of obtaining views from the public.

125.            The definition of donor activity provides that a person undertakes donor activity if the person disburses money or things of value, and neither the person disbursing, nor a recipient of the disbursement is required to disclose it under Division, 4, 5 or 5A of Part XX of the Commonwealth Electoral Act.  The term ‘things of value’ is not defined and is to be given its ordinary meaning, to include things other than money.  

126.            Electoral donations threshold is defined to mean $13,500.  This is consistent with the disclosure threshold used in Part XXX of the Commonwealth Electoral Act.

127.            Federal election is defined to mean a House of Representatives election or a Senate election within the meaning of the Commonwealth Electoral Act.  

·          Section 4 of the Commonwealth Electoral Act defines House of Representatives election to mean an election of a member of the House of Representatives.  This definition covers by-elections.

·          Section 4 of the Commonwealth Electoral Act defines Senate election to mean an election of Senators for a State or Territory. Whether a Senate election occurs on the same day as a general election of members of the House of Representatives is immaterial to the definition of Senate election.

128.            Foreign business is defined to mean a person (other than an individual) that is constituted or organised under the law of a foreign country or of part of a foreign country, or has its principal place of business in a foreign country or part of a foreign country.  Paragraph (b) of the definition clarifies that a foreign business cannot be foreign government, a foreign public enterprise, or a foreign political organisation.  The definition of foreign business is relevant for the definition of foreign principal in section 10.  The rationale for excluding foreign governments, foreign public enterprises and foreign political organisations from the definition of foreign business is that these types of entities and organisations are separately listed in the definition of foreign principal , and are separately defined in section 10.

129.            Foreign country is defined to mean any country other than Australia or an external Territory, whether or not the foreign country is an independent sovereign State.  

130.            Foreign government is defined to mean:

·          the government of a foreign country or of part of a foreign country

·          an authority of the government of a foreign country

·          an authority of the government of part of a foreign country, or

·          a foreign local government body or foreign regional government body.  

131.            This definition is intended to cover all levels of government within a foreign country.   The reference to an ‘authority’ of the government is intended to cover departments, agencies or other entities that act in the name of a foreign government.  For example, the Home Office of the United Kingdom would be an authority of the government of a foreign country.

132.            Foreign political organisation is defined to include a foreign political party.  This definition covers political parties that are formally recognised or registered in a foreign country or part of a foreign country.  However, the definition is not intended to be limited to registered political parties.  If an organisation operates as a political organisation in a foreign country or part of a foreign country, or if a foreign country does not have a system of registration for political parties, the organisation would be captured under this definition.   

133.            Foreign principal is defined to mean:

·          a foreign government

·          a foreign public enterprise

·          a foreign political organisation

·          a foreign business, or

·          an individual who is neither an Australian citizen nor a permanent Australian resident.  

134.            The terms foreign government , foreign public enterprise , foreign political organisation and foreign business are separately defined in section 10.

135.            Foreign public enterprise is defined to mean a company or any other person (other than an individual) controlled by the government of a foreign country or of part of a foreign country.  This definition is intended to capture state-owned enterprises controlled by foreign countries.  The definition of controlled in section 10 determines when a company or other person is controlled by the government of a foreign country or of part of a foreign country.

136.            General political lobbying is defined to mean lobbying any one or more of the following:

·          a Commonwealth public official

·          a Department, agency or authority of the Commonwealth

·          a registered political party, or

·          a candidate in a federal election

other than lobbying that is parliamentary lobbying .

137.            Lobby is defined in section 10 to include communicating in any way with a person or a group of persons for the purpose of influencing any process, decision or outcome, or otherwise representing the interests of a person in any process.  

138.            General political lobbying therefore includes:

·          communicating with a Commonwealth public official, a Department, agency or authority of the Commonwealth, a registered political party or a candidate in a federal election for the purpose of influencing a process, decision or outcome, or

·          representing the interests of another person in a process involving a Commonwealth public official, a Department, agency or authority of the Commonwealth, a registered political party or a candidate in a federal election.

139.            The definition of general political lobbying specifically provides that it only covers lobbying to the extent that the lobbying does not fall within the definition of parliamentary lobbying , which is defined in section 10 and is limited to lobbying of members of Parliament or staff employed under the Members of Parliament (Staff) Act 1984 .  

140.            Influence is defined to include affect in any way.  The definition of influence is relevant to the definition of activity for the purpose of political or government influence in section 12 of the Act.  The definition of influence is intended to cover direct and indirect influence, and is not limited to the sole or dominant influence over a process, decision or outcome.  In addition to changing processes, decisions and outcomes, influence is also intended to include attempts to maintain the status quo.

141.            Liable to register is defined to have the meaning given by section 18. Section 18 provides that a person becomes liable to register under the scheme in relation to a foreign principal if the person undertakes an activity on behalf of a foreign principal that is a registrable activity, or enters into a registrable arrangement with a foreign principal.  Subsection 18(2) clarifies that a person continues to be liable to register under the scheme until they cease to be liable under section 19.  A person can only cease to be liable under section 19 if they no longer undertake registrable activities on behalf of a foreign principal, or if no registrable arrangement is in existence.  A person will be liable to register under the scheme if there is a registrable arrangement in place with a foreign principal, even if no registrable activities are actually undertaken.

142.            Lobby is defined to include:

·          communicating in any way with a person or group of persons for the purpose of influencing a process, decision or outcome, or

·          otherwise representing the interests of a person in any process.  

143.            The definition of lobby is non-exhaustive and the term is intended to capture all circumstances in which a person represents the interests of another person, whether in formal or informal processes or proceedings.

144.            On behalf of a foreign principal is defined to have the meaning given to it by section 11.  Section 11 provides that an activity is undertaken on behalf of a foreign principal if the person undertakes the activity:

·          under an arrangement with the foreign principal

·          in the service of the foreign principal

·          on the order or at the request of the foreign principal

·          under the control or direction of the foreign principal

·          with funding or supervision by the foreign principal, or

·          in collaboration with the foreign principal.

145.            A person is considered to undertake an activity on behalf of a foreign principal if both the person and the foreign principal knew or expected the person would or might undertake the activity.  This definition is not intended to cover circumstances where a person undertakes an activity with no knowledge, awareness or direction from the foreign principal or where the relationship between the person’s activities and the foreign principal’s interests is merely coincidental.

146.            Parliamentary lobbying is defined to mean lobbying a member of the Parliament or a person employed under the Members of Parliament (Staff) Act 1984 .  Consistent with the definition of lobby in section 10, parliamentary lobbying will include:

·          communicating in any way with a member of the Parliament or a person employed under the MOPS Act (or a group of such persons) for the purpose of influencing a process, decision or outcome, or

·          otherwise representing the interests of a person in any process involving a member of the Parliament or a person employed under the MOPS Act (or a group of such persons). 

147.            Periodical will have the meaning given to it by subsection 13(5).  Subsection 13(5) provides that a periodical means an issue, however described, of a newspaper, magazine, journal, newsletter or other similar publication, whether published in print or electronic form, published regularly or irregularly, or published for sale or distributed without charge. This definition is relevant to provisions which exempt a publisher of a periodical from registering under the scheme if they only publish information or materials in a periodical, but where another person was responsible for devising or otherwise preparing the actual content on behalf of the foreign principal to be communicated or distributed in the periodical.

148.            Person means an individual, a body corporate, a body politic, a partnership, an association (whether or not incorporated), an organisation (whether or not incorporated), any combination of individuals who together constitute a body, or any body of a kind prescribed by the rules.  Under this definition, a person need not be a resident in Australia, be formed or created in Australia, be carrying on a business within Australia, or be constituted under a law of Australia.  

149.            Political or governmental influence will have the meaning given to it by section 12.  Section 12 sets out a broad definition of political or governmental influence, which is intended to capture all of the persons, entities, structures or processes that are part of Australia’s political and governmental architecture.  The definition includes influencing any aspect of a federal election or vote, a federal government decision, a proceeding of either House of the Parliament, a registered political party, an independent member of Parliament, or an independent candidate in a federal election. The definition is relevant to a number of provisions of this Act, particularly the requirement at section 21 that certain activities undertaken on behalf of a foreign principal must be done for the purpose of political or governmental influence in order to be captured by the scheme.  

150.            Purpose will have a meaning affected by section 14.   Purpose will have its ordinary meaning, which includes the reason for which something is done or to have something as a person’s intention or objective.  Section 14 affects this ordinary meaning by providing that the purpose of an activity may be determined by having regard to the intention or belief of the person undertaking the activity, the intention of any foreign principal on whose behalf the activity is undertaken, or all of the circumstances in which the activity is undertaken.  

151.            Recent Cabinet Minister is defined to mean, at a particular time, a person who was a Minister and member of the Cabinet at any time in the three years before that time, but who is not at the particular time a Minister, member of the Parliament, or holder of a senior Commonwealth position.  This definition is relevant for the purposes of section 22 of the Act, which requires a recent Cabinet Minister to register under the scheme if he or she is employed by, or acts in any capacity for, a foreign principal at any time in the period of three years following their role as a Cabinet Minister.  

152.            Consistent with the Acts Interpretation Act 1901 , a ‘Minister’ means one of the Ministers of State for the Commonwealth, and ‘Parliament’ means the Parliament of the Commonwealth.     

153.            Recent holder of a senior Commonwealth position means a person who, at a particular time, held a senior Commonwealth position at any time in the previous 18 months before the particular time, and who is not at the point in time a Minister, member of the Parliament or holder of a senior Commonwealth position.   Senior Commonwealth position is defined in section 10 and is limited to agency head and deputy agency head (or equivalent) positions in the Commonwealth.

154.            The definition of recent holder of a senior Commonwealth position is relevant for the purposes of section 23 of the Act, which requires recent holders of a senior Commonwealth position to register under the scheme if they are employed by, or act in any capacity for, a foreign principal at any time in the period of 18 months following holding a senior Commonwealth position.  A recent holder of a senior Commonwealth position will be required to register under the scheme where, in undertaking the activity, he or she contributes skills, experience, knowledge or contacts gained through their senior Commonwealth position.

155.            Recent Minister or member of Parliament is defined to mean a person who, at a particular time, was a Minister or a member of the Parliament at any time in the three years before the particular time, and who is not at the particular time a Minister, member of the Parliament or holder of a senior Commonwealth position.  Consistent with the Acts Interpretation Act, a ‘Minister’ means one of the Ministers of State for the Commonwealth, and ‘Parliament’ means the Parliament of the Commonwealth.     

156.            This definition is relevant for the purposes of section 23 of the Act, which requires a recent Minister or member of Parliament to register under the scheme if he or she is employed by, or acts in any capacity for, a foreign principal at any time in the period of 18 months following being a Minister or member of Parliament.  A recent Minister or member of Parliament will be required to register under the scheme where, in undertaking the activity, he or she contributes skills, experience, knowledge or contacts gained in their former capacity as a Minister or member of Parliament.

157.            Referendum is defined to have the same meaning as in the Referendum (Machinery Provisions) Act.   Referendum is defined in section 3 of that Act to mean the submission to the electors of a proposed law for the alteration of the Constitution.  

158.            Registered is defined to have the meaning given to it by section 17.  Section 17 provides that a person is registered under the scheme in relation to a foreign principal from the day that an application for registration is given to the Secretary in accordance with the requirements of section 17, until registration ends under section 32. Registration ends under section 32 when a person fails to renew their registration, notifies the Secretary that their registration has ended (or will end), or in circumstances prescribed by the rules.

159.            Registered political party is defined to have the same meaning as in the Commonwealth Electoral Act.  Under the Commonwealth Electoral Act, an eligible political party (that is, a Parliamentary party which is a political party at least one member of which is a member of the Parliament of the Commonwealth, or a political party that has at least 500 unique members who are also Commonwealth electors, and which is established on the basis of a written constitution, however described, setting out the aims of the party) may become a registered political party.  A party can only be a ‘political party’ for the purposes of the Commonwealth Electoral Act if the object or activity, or one of the objects or activities, of the organisation is the promotion of the election of a candidate or candidates endorsed by it to the Senate or the House of Representatives (see section 4 of that Act).  By virtue of these definitions under the Commonwealth Electoral Act, a registered political party is limited in the Act to registered political parties in relation to the Parliament of the Commonwealth, and not in relation to State and Territory parliaments (however described). Therefore, a party that only seeks to promote candidates in State or Territory elections would not be captured by the Act. However, State branches of political parties that endorse candidates in federal elections are captured by both the Commonwealth Electoral Act and this Act. This is appropriate and necessary given the influential role State branches play within the governance of political parties in federal elections.

160.            Registrable activity in relation to a foreign principal is defined to have the meaning provided by sections 20, 21, 22 and 23.  These sections set out the circumstances in which an activity is considered to be a registrable activity.  Whether an activity is a registrable activity is determined by the identity of the foreign principal, the nature of the activities, the identity of the person undertaking the activities, and the purpose for which the activities are undertaken.

161.            Registrable arrangement means an arrangement between a person and a foreign principal for the person to undertake an activity that, if undertaken by the person, would be registrable in relation to the foreign principal.  Sections 20, 21, 22 and 23 set out the circumstances in which an activity is considered to be a registrable activity. Whether an activity will be registrable in relation to a foreign principal will depend the identity of the foreign principal, the nature of the activities, the identity of the person undertaking the activities, and the purpose for which the activities are undertaken.

162.            Registrant is defined to mean a person who is registered under the scheme.

163.            Renewal period is defined to have the meaning given to it by subsection 39(3).  Subsection 39(3) provides that the renewal period for a year is the annual anniversary of the day on which the person registered in relation to the foreign principal, plus one month.  

164.            Rules is defined to mean rules made under section 71 of the Act.  Section 71 provides that the Minister may make rules prescribing matters required or permitted by the Act to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.  Any rules made under section 71 are legislative instruments under the Legislation Act 2003 .  

165.            Scheme is defined to mean the Act, the rules prescribed under section 71, the Foreign Influence Transparency Scheme (Charges Imposition) Act 2017 and the regulations made under that Act.

166.            Scheme information is defined to have the meaning given to it by section 50.  Section 50 provides that information is scheme information if it was obtained by a scheme official (as defined in section 10) in the course of performing functions or exercising powers under the scheme.  Such information continues to be scheme information if is communicated consistent with the authorisations under Division 4 of Part 4 of the Act.  

167.            Scheme official is defined to have the meaning given to it by subsection 51(1).  Subsection 51(1) defines a scheme official to be the Secretary, an APS employee in the Department to whom a function or power of the scheme is delegated under section 69 or whose functions otherwise include functions in relation to the scheme, or any other person who performs functions in relation to the scheme under an arrangement with the Commonwealth.  This definition is broadly framed and is intended to extend to secondees (whether or not they are APS employees), contractors and sub-contractors.

168.            Secretary is defined to mean the Secretary of the Department.  This will be the Secretary of the Department that has responsibility for the administration of the scheme.  

169.            Senior Commonwealth position is defined to mean:

·          an agency head, within the meaning of the Public Service Act

·          a deputy agency head (however described), or

·          an office established by or under a law of the Commonwealth that is equivalent to that of an agency head or deputy agency head. 

170.            Agency head is defined in the Public Service Act to mean the Secretary of a Department, the Head of an Executive Agency, or the Head of a Statutory Agency.  This definition covers Secretaries of Commonwealth departments and heads of statutory agencies.  It will also cover senior military positions, including the Chief of the Australian Defence Force and the Vice Chiefs of the Australian Defence Force.  

171.            Voting period is defined to mean:

·          for a federal election—the period:

o    beginning on the day of the issue of the writ for the election under the Commonwealth Electoral Act, and

o    ending at the time determined in accordance with the Commonwealth Electoral Act to be the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election

·          for a referendum—the period:

o    beginning on the day of the issue of the writ for the referendum under the Referendum Act, and

o    ending at the time determined in accordance with the Referendum Act to be the latest time on the voting day for the referendum at which an elector in Australia could enter a polling booth for the purpose of voting at the referendum

·          for a vote, survey or process prescribed by the rules for the purposes of paragraph (b) of the definition of designated vote —the period prescribed by the rules.

172.            This definition covers the time when influence is most readily exerted over a federal election, referendum or designated vote. The periods end once the time for voting ends as, after this time, the result cannot be influenced.

Section 11 - Undertaking activity on behalf of a foreign principal

173.            Section 11 defines on behalf of for the purposes of the scheme.  Section 11 provides that a person undertakes an activity on behalf of a foreign principal if the person undertakes the activity:

·          under an arrangement with the foreign principal

·          in the service of the foreign principal

·          on the order or at the request of the foreign principal

·          under the control or direction of the foreign principal

·          with funding or supervision by the foreign principal, or

·          in collaboration with the foreign principal.

174.            Foreign principal is defined in section 10.

175.            Paragraph 11(1)(a) provides that a person is undertaking an activity on behalf of a foreign principal if the person undertakes the activity under an arrangement with the foreign principal.  Arrangement is broadly defined in section 10 to include a contract, agreement, understanding or other arrangement of any kind, whether writt en or unwritten. 

176.            Paragraph 11(1)(b) provides that a person is undertaking an activity on behalf of a foreign principal if the person undertakes the activity in the service of the foreign principal.  The term ‘in the service of’ is not defined and is intended to cover situations where the person’s activities fall short of being ordered, directed or requested by the foreign principal, but are still helping or meeting the needs of the foreign principal.  There will still need to be a connection between the actions of the person and the foreign principal.  It will not be sufficient for the person to unilaterally decide that they are undertaking particular activities ‘in the service of’ a foreign principal.  The foreign principal must be, in some way, seeking or overseeing the activities.

177.            Paragraph 11(1)(c) provides that a person is undertaking an activity on behalf of a foreign principal if the person undertakes the activity on the order or at the request of the foreign principal.  This covers the situation where the person and the foreign principal do not have a formal or informal ‘arrangement’, but the foreign principal orders or requests a person to undertake particular activities. These terms are not defined and are intended to take their ordinary meanings.

·          Orders is intended to cover commands or instructions. 

·          Requests is intended to include a person asking, whether formally or informally, for someone to do something.

178.            Paragraph 11(1)(d) provides that a person is undertaking an activity on behalf of a foreign principal if the person undertakes the activity under the control or direction of the foreign principal.  These terms are not defined and are intended to take their ordinary meanings.

·          Under the control is intended to cover a person supervising the person’s activity or operating as an authority for the person’s activity.

·          Under the direction is intended to cover the management or guidance of the person’s activities by the foreign principal.

179.            Paragraph 11(1)(e) provides that a person is undertaking an activity on behalf of a foreign principal if the person undertakes the activity with funding or supervision by the foreign principal.  These terms are not defined and are intended to take their ordinary meanings.

·          Funding is intended to cover the provision of money or other resources that are used by the person to undertake the activity, or support the activity.

·          Supervision is intended to cover situations where the foreign principal observes and directs the execution of the activities.

180.            Paragraph 11(1)(f) provides that a person is undertaking an activity on behalf of a foreign principal if the person undertakes the activity in collaboration with the foreign principal.  The term is not defined and is intended to take its ordinary meaning, such as the person and the foreign principals working together to undertake the activity.

181.            For all of the matters listed in subsection 11(1), the foreign principal must have an awareness of, and some role in facilitating, the activities.  A person would not be considered to be undertaking an activity ‘on behalf of’ a foreign principal where the foreign principal has no knowledge or awareness of the nature of the activities in question, and it is purely coincidental that the person’s actions may in some way benefit, or align with the interests of, the foreign principal.

182.            An activity may still be undertaken on behalf of a foreign principal where the funding, supervision, direction, control or other oversight from the foreign principal is not the only impetus for the person undertaking the activity.  For example, a person may receive money from both a foreign principal and a domestic actor to engage in parliamentary lobbying activities for the purpose of political or governmental influence.  The fact that the person receives funding from a domestic actor does not negate the fact that the person is acting on behalf of the foreign principal when they engage in parliamentary lobbying activities. 

183.            Subsection 11(3) clarifies that, without limiting the matters listed in subsection 11(1), a person undertakes an activity on behalf of a foreign principal if both the person and the foreign principal knew or expected that:

·          the person would or might undertake the activity, and

·           that the person would or might do so in circumstances where the activity amounts to a registrable activity within the meaning of sections 20, 21, 22 and 23 of the Act.

184.            Paragraph 11(3)(b) clarifies that the person and the foreign principal need not have thought about the existence of the scheme. If both the person and foreign principal knew or expected the activities would or might occur, this would be sufficient for the activities to be on behalf of the foreign principal.

Section 12 - Activity for the purpose of political or governmental influence

185.            Subsection 12(1) provides that a person undertakes an activity for the purpose of political or governmental influence if a purpose of the activity being undertaken is to influence, directly or indirectly, any aspect of one or more of the following:

·          a process in relation to a federal election or a designated vote

·          a process in relation to federal government decision

·          proceedings of a House of the Parliament

·          a process in relation to a registered political party

·          a process in relation to a member of Parliament who is not a member of a registered political party, or

·          a process in relation to a candidate in a federal election who is not endorsed by a registered political party.

186.            The definition in section 12 is relevant to a number of provisions in the Act, particularly the requirement at section 21 that the activities be done for the purpose of political or governmental influence.  For example, engaging in certain lobbying activities, communications activities or donor activities will only require registration under the scheme if they are done for the purpose of political or governmental influence . Any influence over these processes could have significant implications for Australia public policy, and it is critical that there is transparency around foreign influence over these processes.

187.            Paragraph 12(1)(a) provides that a person undertakes an activity for the purpose of political or governmental influence  if a purpose of the activity is to influence any aspect of a process in relation to federal election or a designated vote.

188.            Consistent with the definitions in section 10:

·          a federal election means an election of a member of the House of Representatives and an election of Senators for a State or Territory.

·          a designated vote means a referendum, or a vote, survey or other process for the expression of opinion, which has been prescribed by the rules for the purposes of this paragraph.

189.            Paragraph 12(1)(b) provides that a person undertakes an activity for the purpose of political or governmental influence  if a purpose of the activity is to influence any aspect of a process in relation to a federal government decision.  Subsection 12(3) provides a number of examples of federal government decisions for the purposes of paragraph 12(1)(b).  The examples are decisions made by:

·          the Executive Council

·          the Cabinet or a committee of the Cabinet

·          a Minister or Ministers

·          a Commonwealth entity (within the meaning of the Public Governance Act) or a subsidiary of a Commonwealth entity (within the meaning of that Act)

·          a Commonwealth company (within the meaning of the Public Governance Act), or

·          an individual in the course of performing his or her functions in relation to a person or body mentioned in an above paragraph.

190.            An example of an activity for the purpose of influencing a federal government decision is lobbying a Minister to make a particular decision under an Act administered by that Minister.

191.            Subsection 12(4) provides that, for the purposes of paragraph 12(1)(d) and subsection 12(3), a reference to a decision includes a decision of any kind, including regarding administrative, legislative and policy matters, whether or not the decision is a final or formal decision.

192.            Paragraph 12(1)(c) provides that a person undertakes an activity for the purpose of political or governmental influence  if a purpose of the activity is to influence any aspect of proceedings of a House of the Parliament.  For example, this would include influencing a member of the Parliament in relation to a formal vote, such as on a Bill or on a procedural matter.

193.            Paragraph 12(1)(d) provides that a person undertakes an activity for the purpose of political or governmental influence  if a purpose of the activity is to influence any aspect of a process in relation to a registered political party.  Subsection 12(5) provides a number of examples of processes in relation to a registered political party for the purposes of paragraph 12(1)(d).  The examples of processes in relation to a registered political party are:

·          processes relating to the party’s:

o    constitution

o    platform

o    policy on any matter of public concern

o    administrative or financial affairs

o    membership, or

o    relationship with a foreign government, a foreign public enterprise or a foreign political organisation or bodies controlled by such foreign principals

·          the conduct of the party’s campaign in relation to a federal election or a designated vote

·          the selection and endorsement of the party’s candidates in relation to a federal election

·          the allocation of the party’s preferences in relation to a federal election

·          the selection (however done) of:

o    officers of the party’s executive, or

o    delegates to party conferences

·          the election of a person to be the leader of the party in the Parliament of the Commonwealth, or

·          the selection (however done) of persons to be:

o    Ministers, or

o    shadow Ministers or party spokespersons (however described) in relation to the Commonwealth.

194.            An example of an activity for the purpose of influencing a process in relation to a registered political party is writing to all members of a political party advocating that they vote for a particular candidate in the selection of officers of the party’s executive. 

195.            Paragraph 12(1)(e) provides that a person undertakes an activity for the purpose of political or governmental influence  if a purpose of the activity is to influence any aspect of a process in relation to a member of the Parliament who is not a member of a registered political party. Paragraph 12(1)(f) provides that a person undertakes an activity for the purpose of political or governmental influence if a purpose of the activity is to influence any aspect of a process in relation to a candidate in a federal election who is not endorsed by a registered political party.

196.            Paragraph 12(1)(e) and (f) ensure that activities to influence independent members of the Parliament and independent candidates are covered in the same way as members or candidates of registered political parties.

197.            Subsection 12(6) provides a number of examples of processes in relation to independent members of Parliament and candidates for the purposes of paragraphs 12(1)(e) and (f).  The examples of processes in relation to independent members of Parliament and candidates in a federal election are processes that relate to:

·          the person’s platform

·          the person’s policy on any matter of public concern

·          the person’s administration or financial affairs in his or her capacity as a member of the Parliament or candidate in a federal election

·          the person’s relationship with a foreign government, a foreign public enterprise or a foreign political organisation or bodies controlled by such foreign principals

·          the person’s conduct of his or her campaign, or

·          the person’s allocation of preferences in relation to a federal election.

198.            An example of an activity for the purpose of influencing a process in relation to an independent candidate is lobbying the candidate to allocate their preferences to a registered political party in an upcoming federal election.

199.            Subsection 12(1) confirms that the purpose of political or governmental influence only needs to be a purpose for why an activity is undertaken, whether or not there are other purposes.  The purpose of political or governmental influence need not be the sole, or even the dominant, purpose of an activity undertaken on behalf of a foreign principal.  In addition, the influence over the above-mentioned processes can be direct or indirect. An example of indirect influence over a candidate’s policy is where Person A encourages the public to write to the candidate to change their policy position on a particular issue. The candidate himself or herself is not directly influenced by Person A, but is persuaded to change his or her policy position by the letters from the public. Person A has indirectly influenced the candidate’s policy through the actions of the wider public. 

200.            Subsection 12(2) clarifies that an activity is taken to be for the purpose of political or governmental influence if a purpose of the activity is to influence an aspect of a process or proceedings mentioned under subsection 12(1) by influencing the public or a section of the public, in relation to the process or proceeding.  As above, the purpose of influencing the public or a section of the public in relation to a process or proceeding mentioned at subsection 12(1) need not be the sole or dominant purpose for which an activity is undertaken, and there may be other purposes. The role of the public is essential for Australia’s robust representative democracy. The Australian Government consists of elected representatives whose role it is to represent their constituents. Reflecting the strength of Australia’s democratic system of government, Australia has a robust and politically engaged civil-society.

201.            These characteristics of Australia’s democracy and system of government mean that the Australian public is empowered to exert a real impact on Australia’s governmental and political processes. Actions undertaken to influence the public’s opinions and actions about Australia’s governmental and political processes have the potential to have real and tangible consequences on those governmental and political processes. It is essential that activities aimed at influencing the public fall within the scope of the scheme.

202.            The examples in subsections 12(3), (5) and (6) of the Act are not exhaustive lists of all federal government decisions, processes in relation to a registered political party and processes in relation to members of Parliament and candidates in a federal election.  Section 15AD of the Acts Interpretation Act provides that, if an Act includes an example of the operation of the provision, the example is not exhaustive, and may extend the operation of a provision.  As such, the examples listed in subsections 12(3), (5) and (6) are not intended to limit the possible matters that may be considered to be processes which may be subject to political or governmental influence under subsection 12(1).

Section 13 - Communications activity

203.            Subsection 13(1) provides that a person undertakes communications activity if the person communicates or distributes information or material.  The terms communicates and distributes are to be given their ordinary meaning, and are intended to cover all circumstances in which information or materials are disseminated, published, disbursed, shared or made available in any way.  For example, information is communicated or distributed for the purposes of this section if done so via a newspaper, a magazine, an editorial, a book, a periodical, on social media, or on another online platform.  

204.            The definition of communications activity is relevant for a number of provisions in the Act, and is a category of registrable activity under section 21.  

205.            Subsection 13(2) clarifies that a reference to information or materials in subsection 13(1) includes information or materials in any form, including oral, visual, graphic, written, electronic, digital and pictorial forms.  This inclusive definition is intended to provide clarity about the broad range of forms that can constitute ‘information or materials’ for the purposes of the definition of communications activity .

206.            Subsection 13(3) provides that, despite subsection 13(1), a broadcaster or carriage service provider does not undertake communications activity only because:

·          the broadcaster broadcasts the information or materials, or

·          the carriage service provider supplies the listed carriage service (within the meaning of section 16 of the Telecommunications Act 1997 ) used to communicate the information or materials.  

207.            Broadcaster is defined in section 10 to mean:

·          the Australian Broadcasting Corporation referred to in section 5 of the Australian Broadcasting Corporation Act 1983

·          the Special Broadcasting Service Corporation referred to in section 5 of the Special Broadcasting Service Act 1991

·          the holder of a licence allocated by the Australian Communications and Media Authority under the Broadcasting Services Act 1992 , or

·          a person making a broadcast under the authority of a class licence determined by the Australian Communications and Media Authority under the Broadcasting Services Act. 

208.            Subsection 13(3) states that a carriage service provider has the same meaning as section 87 of the Telecommunications Act.  Section 87 provides a basic definition which provides that if a person supplies, or proposes to supply, a listed carriage service to the public using:

·          a network unit owned by one or more carriers, or

·          a network unit in relation to which a nominated carrier declaration is in force

the person is a  carriage service provider .

209.            Subsection 13(3) is intended to make clear that broadcasters and carriage service providers do not undertake communications activity merely because information is communicated or distributed via their services.  The scheme’s obligations are always placed on the person who has the arrangement with, or undertakes activities on behalf of, the foreign principal to engage in communications activities for the purpose of political or governmental influence.  

210.            A broadcaster or carriage service provider would be required to register under the scheme if, in addition to broadcasting or communicating the information or materials, the broadcaster or carriage service provider itself had an arrangement with a foreign principal to undertake communications activities for the purpose of political or governmental influence.  In these circumstances, the broadcaster or carriage service provider would not be able to rely on the limitation at subsection 14(3) to otherwise avoid liability under the scheme.

211.            Subsection 13(4) provides that, despite subsection 13(1), the publisher of a periodical does not undertake communications activity only because they publish the information or materials.   Periodical is defined in section 10 and subsection 13(5) to mean an issue, however described, of a newspaper, magazine, journal, newsletter or other similar publication, whether published regularly or irregularly, or published for sale or distributed without charge.  The term ‘publish’ is not defined, and is intended to be given its ordinary meaning, including preparing and issuing something either for public sale or to make it generally known.

212.            This limitation is intended to ensure that print media organisations do not undertake communications activity merely because the publisher publishes the information or materials.  The scheme’s obligations are always placed on the person who has the arrangement with, or undertakes activities on behalf of, the foreign principal to engage in communications activities for the purpose of political or governmental influence. 

213.            An example of the intended operation of subsection 13(4) is as follows.  Person A in Australia has an arrangement with Country X to engage in communications activities on its behalf.  Person A pays a news outlet to insert an advertisement in a newspaper urging members of the Parliament to vote against proposed changes to the Australian Government’s policy relating to Antarctica.  By merely publishing the advertisement, the publisher of the newspaper would not be engaging in communications activity under the Act.  Rather, the person who has produced the advertisement on behalf of the foreign principal would be engaging in communications activity and subject to the obligations imposed by this Act.  The obligation is on Person A to ensure that he or she complies with the requirements of the Act in relation to communications activity (including section 38, which establishes requirements for disclosure in communications activity).

Section 14 - Purpose of activity

214.            This section provides that the purpose of an activity may be determined by having regard to:

·          the intention or belief of the person undertaking the activity

·          the intention of any foreign principal on whose behalf the activity is undertaken, or

·          all of the circumstances in which the activity is undertaken.

215.            Any or all of the above factors may be considered in determining the purpose of an activity.  As such, where the intention of a foreign principal or the person cannot be ascertained, this will not prevent a determination of the purpose of an activity having regard to the surrounding circumstances.

216.            The Note in section 14 clarifies that the purpose of an activity is relevant to determining whether an activity is a registrable activity, and for the purposes of exemptions in Division 4 of Part 2 of the Act.  For example, if a person undertakes general political lobbying on behalf of a foreign principal, that activity must be undertaken for the purpose of political or governmental influence in order to be considered a registrable activity under section 21.

Part 2—Registration under the scheme

Division 1—Simplified outline of this Part

Section 15 - Simplified outline of this Part

217.            This section provides a simplified outline of Part 2, which sets out when a person is liable to register under the scheme, whether a particular activity is registrable, exemptions for the requirement to register and when registration is taken to have ended.

218.            Simplified outlines are included to assist readers to understand the substantive provisions and are not intended to be comprehensive.  It is intended that readers should rely on the substantive provisions.

Division 2—Requirement to register

Section 16 - Requirement to register

219.            Subsection 16(1) provides that a person who:

·          becomes liable to register under the scheme in relation to a foreign principal, and

·          is not already registered under the scheme in relation to that foreign principal

must apply to the Secretary for registration in relation to that foreign principal no later than 14 days after becoming liable.

220.            The reference to becoming liable to register in relation to a foreign principal has deliberately been used in section 16 and is defined in section 10 and subsection 18(1).  A person becomes liable to register under the scheme if the person undertakes a registrable activity in relation to the foreign principal, or they enter into a registrable arrangement with a foreign principal (even if they do not yet engage in any registrable activities).   

221.            The use of the term becoming differentiates the requirement in section 16 from circumstances where a person continues to be liable to register in relation to the same foreign principal, and who would then need to renew their registration annually as per the requirements in section 39 of the Act.  This is intended to operate so that a person does not ‘become liable’ every year for the same foreign principal.  Rather, a person becomes liable at a particular point in time, and then continues to be liable until their registration ends.

222.            However, there are circumstances where a person could become liable to register in relation to the same foreign principal, but at different points in time.  For example, a person might become liable in relation to a foreign principal on 1 July 2020 and register accordingly.  That registration may end on 20 September 2020 in accordance with section 32 if the person gives a notice under section 31 that they are no longer liable to register under the scheme.  On 1 January 2021, the same person may become liable again in relation to the foreign principal, and so would need to complete a new application for registration.

223.            Consistent with subsection 16(1), a person must apply for registration within 14 days of becoming liable in relation to that foreign principal.  Section 36 of the Acts Interpretation Act will apply in relation to how this 14 day period is calculated.

224.            The effect of subsection 16(1) is that separate applications for registration are required in relation to each separate foreign principal on behalf of whom a person acts.  For example, if a person undertakes registrable activities on behalf of foreign principal X on 1 January 2020, that person must apply for registration in relation to foreign principal X by 15 January 2020.  However, if that same person also undertakes registrable activities on behalf of foreign principal Y on 10 January 2020, they must complete a separate application for registration in relation to foreign principal Y by 25 January 2020.

225.            The Note to subsection 16(1) states that it is an offence not to register if a person is liable to register.  The relevant offences are set out in Part 5 of the Act.

226.            Subsection 16(2) provides that the application for registration must be:

·          in writing

·          in an approved form (if any)

·          given in an approved manner (if any), and

·          be accompanied by information or documents required by the Secretary.  

227.            Approved form and approved manner are defined in section 10 and section 66 of the Act.  These definitions enable the Secretary to approve a form or a manner in writing for the purposes of the Act.   

228.            The Note to subsection 16(2) clarifies that charges may be imposed in relation to applications for registration.  Charges are dealt with in section 63.

Section 17 - When a person is registered under the scheme

229.            Subsection 17(1) provides that a person is registered under the scheme in relation to a foreign principal from the day an application for registration is given to the Secretary in accordance with the requirements of section 17, until registration ends under section 32.

230.            The application for registration under section 17 must comply with the requirements set out at subsection 17(2) relating to the form and manner of the application.  If a person fails to submit the application for registration in a form or manner approved by the Secretary under section 17, that person will not be considered to be registered under the scheme.

231.            When a person is registered under the scheme is distinct from when a person becomes liable to register under the scheme.  Sections 18 and 19 separately deal with when a person becomes liable to register and ceases to be liable to register. 

232.            An example of the differences between when a person is liable, versus when a person is registered, is as follows.  A person undertakes registrable activities on behalf of a foreign principal on 1 March.  That person becomes liable to register on 1 March, and is required to apply to the Secretary for registration under section 17 by 15 March.  If that person does not apply for registration until 20 April, the person will be registered under the scheme from 20 April, but became liable to register on 1 March.  This is relevant for the enforcement options available under Part 5 of the Act.

233.            Subsection 17(2) ensures that a late application is still sufficient for a person to be considered to be registered for the purpose of the scheme. This subsection has been included because section 16 provides that a person must make an application for registration no later than 14 days after becoming liable. If the 14-day period has passed, subsection 17(2) ensures that a person is not prevented from applying for registration despite the fact that they have not technically complied with the timing requirements set out at section 16.

Section 18 Persons who are liable to register

234.            Section 18 establishes the circumstances in which a person is liable to register.

235.            Subsection 18(1) provides that a person becomes liable to register under the scheme in relation to a foreign principal if the person:

·          undertakes an activity on behalf of a foreign principal that is a registrable activity in relation to the foreign principal, or

·          enters into a registrable arrangement with a foreign principal.

236.            A foreign principal is defined in section 10 to mean a foreign government, a foreign public enterprise, a foreign political organisation, a foreign business or an individual who is neither an Australian citizen nor a permanent Australian resident.

237.            There are two ways in which a person can be liable to register, either by undertaking a registrable activity or entering a registrable arrangement.

238.            An activity is a registrable activity in relation to a particular foreign principal if it falls within Division 3 of Part 2.  The application of Division 3 of Part 2 is described in detail below. 

239.            Registrable arrangement is defined at section 10 to mean an arrangement between a person and a foreign principal for the person to undertake an activity that, if undertaken by the person, would be registrable in relation to the foreign principal.  A registrable arrangement does not require the person to have actually engaged in any activities on behalf of a foreign principal-the existence of the arrangement suffices for the purposes of the definition at section 10.

240.            A person becomes liable to register under paragraph 18(1)(a) on the particular date that the person engages in a registrable activity.  The person would become liable to register under the scheme as soon as the activity is engaged in, even if there was no registrable arrangement with the foreign principal prior to engaging in that activity.

241.            A person becomes liable to register under paragraph 18(1)(b) on the particular date that the person enters into the registrable arrangement.  The person would become liable to register under the scheme from this date even if, for example, the person does not actually engage in the registrable activities for a further two months.

242.            Subsection 18(2) provides that a person who has become liable to register in relation to a foreign principal in accordance with subsection 18(1) will remain liable to register under the scheme in relation to that particular foreign principal until they cease to be liable to register under section 19.

243.            As described at section 16, when a person is liable to register under the scheme is not the same as when a person is registered under the scheme. A person’s liability to register under the scheme will continue in circumstances where they are no longer registered under the scheme, but continue to engage in registrable activities on behalf of a foreign principal within the meaning of the Act.

244.            Paragraph 18(3)(a) clarifies that for the purposes of paragraph 18(1)(a), a person becomes liable to register even if the person only undertakes an activity once.  For example, a person undertakes general political lobbying on behalf of a foreign public enterprise on 20 February.  The lobbying activity in is relation to a major Australian Government policy due to be announced on 21 February and will be a one-off activity.  That person becomes liable to register on 20 February. 

245.            Paragraph 18(3)(b) clarifies that for the purposes of paragraph 18(1)(b), a person becomes liable to register even if they do not undertake any activities under a registrable arrangement.  For example, a person in Australia may enter into a contract with the government of Country B to engage in general political lobbying once a specified circumstance occurs.  The person becomes liable to register from the date of the contract, irrespective of whether the specified circumstance occurs or the general political lobbying activities are actually subsequently undertaken.

Section 19 - Ceasing to be liable to register

246.            Section 19 deals with the circumstances in which a person ceases to be liable to register under the scheme.

247.            Subsection 19(1) provides that a person ceases to be liable to register under the scheme in relation to a foreign principal if:

·          the person has given notice to the Secretary under section 31, specifying the day as the day the person’s registration in relation to the foreign principal is to cease in accordance with subsection 31(3); and

·          on the day, no registrable arrangement exists between the person and the foreign principal.

248.            Section 31 enables a person who is already registered under the scheme in relation to a foreign principal to notify the Secretary in writing (in a prescribed form and manner) that the person has ceased to undertake registrable activities on behalf of a foreign principal, and no registrable arrangement is in existence.  The effect of giving this notice, if done in compliance with the requirements set out at section 31, is that the person will no longer be registered under the scheme in relation to that foreign principal.

249.            Paragraph 19(1)(b) has been included to clarify that a person will continue to be liable in relation to a foreign principal if a registrable arrangement continues to be in existence on the day specified in the section 31 notice.  This is intended to address a situation where a person avoids liability to register by giving the Secretary notice of end of liability to register, where they actually continue to be liable because a registrable arrangement is still in place. 

250.            For example, Person A is registered under the scheme in relation to a foreign principal because they engage in donor activity on behalf of the government of Country Z.  Person A gives notice under section 31 that registration will cease on 15 October.  If, on 15 October, Person A continues to engage in donor activity, or other registrable activities on behalf of Country Z, they will not cease to be liable to register.  In fact, if Person A gives notice and ends registration under section 31 but continues to engage in registrable activities, Person A would be committing an offence under section 57 of the Act.  In order for Person A to cease to be liable in accordance with the requirements of section 19, Person A would need to give another notice to the Secretary under section 31 at the time as Person A ceases to engage in registrable activities.

251.            Subsection 19(2) provides that if a person is liable to register in relation to a foreign principal only because they were a recent Cabinet Minister, a recent Minister or member of Parliament, or a recent holder of a senior Commonwealth position, they will cease to be liable to register in relation to the foreign principal as soon as they cease to be that kind of person. An example is as follows:

Person A was a Cabinet Minister in the Australian Government on 20 November 2020.  On 21 November 2020 Person A resigned from Parliament and is no longer a Cabinet Minister, Minister, member of Parliament or a holder of a senior Commonwealth position.  On 25 November 2020, Person A is employed by an agency of the government of Country Y.  On 25 November 2020, Person A would be liable to register under the scheme in accordance with section 22 of the Act. 

If Person A continues to be employed by the agency on 22 November 2023, Person A would no longer be liable to register in relation to this foreign principal under section 22.  This is because three years has passed since the time when Person A was a Cabinet Minister, and this means they are no longer a ‘recent former Cabinet Minister’ as defined at section 10. 

Division 3—Registrable activities

252.            Division 3 of Part 2 outlines the different kinds of registrable activities which form the basis upon which a person will be liable to register under the scheme.  In accordance with section 18, a person will be liable to register if they undertake an activity on behalf of a foreign principal that is a registrable activity in relation to that foreign principal, or if they enter into a registrable arrangement with a foreign principal (that is, an arrangement to do an activity which is a registrable activity in relation to that foreign principal).

253.            Whether an activity is a registrable activity is determined by the identity of the foreign principal, the nature of the activities, the identity of the person undertaking the activities, and the purpose for which the activities are undertaken.  

254.            The scheme has intentionally been crafted so that a broader range of activities are considered to be registrable activities if undertaken on behalf of a foreign principal that is a foreign government, with fewer activities being considered to be registrable activities if undertaken on behalf of a foreign principal that is a foreign business or individual.  The rationale is that foreign principals who are foreign governments, or have links to foreign governments, are potentially in a position to exercise greater influence over Australian political and governmental processes.  There is a public interest in knowing about activities which are undertaken on behalf of such entities in these circumstances.  However, foreign businesses and individuals also engage others to undertake activities on their behalf, which may also be intended to impact Australian political and governmental processes.  It is important that the full breadth of possible influence over such processes is captured under the scheme. 

255.            The different registrable activities are as follows:

·          parliamentary lobbying on behalf of a foreign government (section 20)

·          activities in Australia for the purpose of political or governmental influence, namely other forms of parliamentary lobbying, general political lobbying, communications activity, and donor activity (section 21)

·          registrable activities of recent Cabinet Ministers (section 22), and

·          registrable activities of recent Ministers, members of Parliament or other holders of senior Commonwealth positions (section 23).

256.            In all circumstances, an activity will only be a registrable activity if a person undertakes the activity, or has an arrangement to undertake the activity, on behalf of a foreign principal.  If the foreign principal engages in the activity himself, herself or itself, registration will not be required under the scheme.  The rationale is that such activities are transparent on their face, as the recipient of the information is aware that the foreign principal is the one advancing the position, interests or information.

Section 20 - Registrable activities: parliamentary lobbying on behalf of foreign government

257.            Section 20 provides that parliamentary lobbying on behalf of a foreign government is a registrable activity, unless the person is exempt under Division 4 of Part 2 of the Act in relation to the activity.

258.            Parliamentary lobbying is defined at section 10 to mean lobbying a member of Parliament or a person employed under sections 13 or 20 of the MOPS Act.   Lobby is also defined at section 10 to include communicating in any way with other persons for the purpose of influencing a process, decision or outcome, or otherwise representing the interests of a person in any process.  

259.            Parliamentary lobbying need not be done for any particular purpose in order to be a registrable activity under section 20.  However, the activity must be done within Australia and is limited to activities undertaken on behalf of a foreign government as the foreign principal.

260.            The policy rationale for this category of registrable activity is that lobbying a member of Parliament or their staffer is an activity which is inherently political in nature.  Any influence over such persons may have significant implications for Australian public policy, and it is in the public interest to know when this is occurring on behalf of foreign government.

261.            Parliamentary lobbying undertaken on behalf of a foreign government, where the link with the foreign government is hidden or obscured, has the potential to unduly influence Australian political or governmental systems and processes, undermining our political sovereignty.  In such circumstances, members of Parliament or persons employed under the MOPS Act who are being lobbied may be hampered in their ability to assess the interests which are being represented by the person, and may lead to decisions that unwittingly benefit foreign equities at the expense of Australia interests.  It is both expected and appropriate for a foreign government to pursue their interests transparently, through diplomatic or direct government-to-government channels.  When this does not occur, the person acting on behalf of the foreign government will be required to register under section 20.  

262.            If activities fall within section 20 and are registrable, then a person is required to register under the scheme under Division 2 of Part 2 of the Act.

263.            Examples of scenarios to which section 20 would apply are as follows:

Example 1: An Australian lobbying firm enters into a contract with the government of Country X.  The firm is contracted to lobby the Minister for Communications to discuss advertising restrictions in Australia.  This would be a registrable activity under section 20 as the activity of the lobbying firm falls with definition of parliamentary lobbying - that is, the firm is communicating with a member of Parliament on behalf of a foreign government.  The contract between the lobbying firm and Country X constitutes an arrangement for the purposes of paragraph 11(1)(a) and the lobbying firm’s activities are therefore undertaken on behalf of the foreign government.

Example 2: The government of Country Y pays an Australian citizen $500 to write to the Minister for Agriculture protesting the classification of pesticides produced in Country Y by the Australian Pesticides and Veterinary Medicines Authority.  This would be a registrable activity under section 20 as the activity engaged in by the person falls within the definition of parliamentary lobbying - that is, the person is communicating with a member of Parliament on behalf of a foreign government.  The payment from Country Y to the Australian citizen is funding from the foreign government under paragraph 11(1)(e) and the Australian citizen’s activities are therefore undertaken on behalf of the foreign government.

264.            Division 4 of Part 2 establishes a number of exemptions for activities undertaken on behalf of foreign governments in certain circumstances.  A person will be exempt from the application of section 20 if:

·          the activity is solely, or solely for the purposes of, the provision of humanitarian aid or humanitarian assistance (section 24)

·          the activity is solely, or solely for the purposes of, the provision of legal advice or legal representation (section 25)

·          the person is entitled to diplomatic, consular or other privileges or immunities in relation to the activity (section 26)

·          the activity is solely, or solely for the purposes of, acting in good faith in accordance with a particular religion (section 27), or

·          the activity is prescribed by rules made for the purposes of the Act (section 30).   

Section 21 - Registrable activities: activities in Australia for the purpose of political or governmental influence

265.             Subsection 21(1) provides that an activity is a registrable activity in relation to a foreign principal if:

·          the activity is undertaken in Australia

·          the activity is for the purpose of political or governmental influence

·          the foreign principal is the kind of foreign principal specified in the column in the table, and

·          the person is not exempt under Division 4 of Part 2 in relation to the activity.  

266.            Activities that are regulated by section 21 are parliamentary lobbying (other than for a foreign government, which is covered by section 20), general political lobbying, communications activity and donor activity undertaken for the purpose of political or government influence.

Item 1 - Parliamentary lobbying

267.            Item 1 of the table deals with parliamentary lobbying undertaken in Australia on behalf of a foreign principal other than a foreign government (which is dealt with at section 20).

268.            Undertaking parliamentary lobbying on behalf of a foreign political organisation, foreign public enterprise, foreign business or individual is a registrable activity in relation to that foreign principal under item 1 if the parliamentary lobbying:

·          is undertaken within Australia, and

·          is for the purpose of political or governmental influence.

269.            Parliamentary lobbying is defined at section 10 to mean lobbying a member of the Parliament or a person employed under sections 13 or 20 of the MOPS Act.  Lobby is also defined at section 10 to include communicating in any way with other persons for the purpose of influencing a process, decision or outcome, or otherwise representing the interests of a person in any process.  

270.            For parliamentary lobbying to be registrable under item 1 of the table at subsection 21(1), the foreign principal must be:

·          a foreign public enterprise

·          a foreign political organisation

·          a foreign business, or

·          an individual who is neither an Australian citizen nor an Australian permanent resident.

271.            Item 1 of the table is limited to these types of foreign principals so that there is no overlap between sections 20 and 21 in relation to parliamentary lobbying.  If a person undertakes parliamentary lobbying in Australia for a foreign government, that activity will be registrable under section 20 regardless of the purpose of the lobbying.  Section 21 is different because the parliamentary lobbying will only be registrable if it is done for the purpose of political or governmental influence. 

272.            Section 12 provides that an activity is undertaken for the purpose of political or governmental influence if a purpose of the activity being undertaken is to influence, whether directly or indirectly, any aspect of one or more of the following:

·          a process in relation to a federal election or a designated vote

·          a process in relation to a federal government decision

·          proceedings of a House of the Parliament

·          a process in relation to a registered political party

·          a process in relation to a member of Parliament who is not a member of a registered political party, or

·          a process in relation to a candidate in a federal election who is not endorsed by a registered political party.

273.            This additional purpose applies to parliamentary lobbying on behalf of the foreign principals covered by item 1 of the table to reflect that it is not always inherently political for such foreign principals to, for example, make representations to a member of parliament.  This item appropriately ensures transparency for parliamentary lobbying where it is for the purpose of political or governmental influence.

274.            An example of parliamentary lobbying under item 1 of the table is as follows:

A foreign business enters into a contract with an Australian lobbying firm.  Under the contract, the Australian lobbying firm is engaged to represent the interests of the foreign business in relation to Australia’s re-negotiation of a free trade agreement.  The foreign business wants proposed exclusion clauses to not be included in the free trade agreement.

The Australian lobbying firm meets with a senior adviser to the Minister for Trade in accordance with the instructions of the foreign business.

This would be a registrable activity under item 1 of the table in subsection 21(1) as the activity engaged in by the lobbying firm falls within the definition of parliamentary lobbying - that is, the firm is communicating with a person employed under the MOPS Act for the purpose of influencing a process, decision or outcome, and that activity is undertaken on behalf of a foreign business.  The contract between the lobbying firm and the foreign business constitutes an arrangement for the purposes of paragraph 11(1)(a) the lobbying firm’s activities are therefore undertaken on behalf of the foreign business.

275.            If activities fall within item 1 of the table in subsection 21(1) and are registrable, then a person is required to register under the scheme under Division 2 of Part 2 of the Act.

Item 2- General political lobbying

276.            Item 2 of the table deals with general political lobbying undertaken in Australia on behalf of any kind of foreign principal.  

277.            Undertaking general political lobbying on behalf of a foreign government, foreign political organisation, foreign public enterprise, foreign business or individual is a registrable activity in relation to that foreign principal under item 2 if the general political lobbying:

·          is undertaken within Australia, and

·          is for the purpose of political or governmental influence.

278.            General political lobbying is defined at section 10 to mean lobbying any one or more of the following:

·          a Commonwealth public official

·          a Department, agency or authority of the Commonwealth

·          a registered political party, or

·          a candidate in a federal election

that is not parliamentary lobbying.

279.            Lobby is also defined at section 10 to include communicating in any way with other persons for the purpose of influencing a process, decision or outcome, or otherwise representing the interests of a person in any process.    

280.            General political lobbying will only be a registrable activity under item 2 of the table if the activity is undertaken for the purpose of political or governmental influence .  Section  12 provides that an activity is undertaken for such a purpose if it is undertaken to influence, whether directly or indirectly, any aspect of one or more of the following:

·          a process in relation to a federal election or a designated vote

·          a process in relation to a federal government decision

·          proceedings of a House of the Parliament

·          a process in relation to a registered political party

·          a process in relation to a member of Parliament who is not a member of a registered political party, or

·          a process in relation to a candidate in a federal election who is not endorsed by a registered political party.

281.            The policy rationale for including item 2 of the table as a registrable activity is that Commonwealth public officials, Commonwealth departments, agencies or authorities, registered political parties, independent members of Parliament and candidates in federal elections have significant influence in political and governmental processes and decision-making.  Influence exerted by foreign principals through persons acting on their behalf over such persons has the potential to distort decisions on public policy which could, ultimately, undermine Australia’s political sovereignty.  

282.            An example of general political lobbying under item 2 of the table is as follows:

A foreign individual pays an Australian citizen $750 to make a written submission to a review of Australia’s intercountry adoption programs being undertaken by the Attorney-General’s Department.  The foreign individual tells the Australian citizen Australia should open an intercountry adoption program with Country Z, with which Australia does not currently have such a program.

This would be a registrable activity under item 2 of the table in subsection 21(1) as the activity engaged in by the Australian citizen falls within the definition of general political lobbying - that is, the Australian citizen is communicating with a Commonwealth Department for the purpose of influencing a process, decision or outcome, and that activity is undertaken on behalf of a foreign individual.  The payment from the foreign individual to the Australian citizen is funding from the foreign individual under paragraph 11(1)(e)  and the Australian citizen’s activities are therefore undertaken on behalf of the foreign individual.

283.            The registrable activities covered by item 2 of the table have been carefully calibrated to ensure that activities that do not affect Australia’s political or governmental system are not covered. 

284.            If activities fall within item 2 of the table in section 21 and are registrable, then a person is required to register under the scheme under Division 2 of Part 2 of the Act.

Item 3 - Communications activity

285.            Item 3 of the table deals with communications activity undertaken in Australia on behalf of any kind of foreign principal as defined in section 10.

286.            Undertaking communications activity on behalf of a foreign government, foreign political organisation, foreign public enterprise, foreign business or individual is a registrable activity in relation to that foreign principal under item 3 if the communications activity:

·          is undertaken within Australia, and

·          is for the purpose of political or governmental influence.

287.            Communications activity is defined at section 13, which provides that a person undertakes communications activity if the person communicates or distributes information or material.  

288.            Communications activity will only be a registrable activity under item 3 of the table if it is undertaken for the purpose of political or governmental influence .  Section 12 provides that an activity is undertaken for such a purpose if it is undertaken to influence, whether directly or indirectly, any aspect of one or more of the following:

·          a process in relation to a federal election or a designated vote

·          a process in relation to a federal government decision

·          proceedings of a House of the Parliament

·          a process in relation to a registered political party

·          a process in relation to a member of Parliament who is not a member of a registered political party, or

·          a process in relation to a candidate in a federal election who is not endorsed by a registered political party.

289.            The policy rationale for including item 3 of the table as a registrable activity is that communications activities can be very powerful in affecting the views and opinions of persons involved in Australia’s political and governmental processes.  Communications activities can also target the public which, consistent with subsection 12(2), can be a form of political or governmental influence.  It is essential that there is transparency where such communications activities are undertaken on behalf of a foreign principal.  This allows the person or public to assess the interests which are being represented by the person undertaking the communications activity.

290.            An example of communications activity under item 3 of the table is as follows:

A prominent Australian is paid $10,000 by the government of Country Y to write an article protesting the impending passage of federal laws tightening restrictions on foreign investment.  The article, which encourages people to write to their members of Parliament urging them to vote against the laws, is to be published in an Australian newspaper.

This would be a registrable activity under item 3 of the table in subsection 21(1) as the activity engaged in by the Australian businessman falls within the definition of communications activity - that is, the Australian is communicating or distributing information or materials for the purpose of indirectly influencing a process, decision or outcome, and that activity is undertaken on behalf of a foreign government.  The payment from the foreign government to the Australian is funding from the foreign government under paragraph 11(1)(e) and the Australian’s activities are therefore undertaken on behalf of the foreign government.

291.            If activities fall within item 3 of the table in subsection 21(1) and are registrable, then a person is required to register under the scheme under Division 2 of Part 2 of the Act.

Item 4- Donor activity

292.            Item 4 of the table deals with donor activity undertaken in Australia on behalf of a foreign government, foreign public enterprise or foreign political organisation as defined in section 10.

293.            Undertaking donor activity on behalf of a foreign government, foreign public enterprise or foreign political organisation is a registrable activity in relation to that foreign principal under item 4 of the table if the donor activity:

·          is undertaken within Australia, and

·          is done for the purpose of political or governmental influence.

294.            The definition of donor activity at section 10 provides that a person undertakes donor activity if the person disburses money or things of value, and neither the person disbursing, nor a recipient of the disbursement is required to disclose it under Division, 4, 5 or 5A of Part XX of the Commonwealth Electoral Act.  The registration requirement for item 4 of the table is intended to complement, and not overlap with, the electoral funding and financial disclosure requirements under the Commonwealth Electoral Act.

295.            Donor activity will only be a registrable activity under item 4 of the table if it is undertaken for the purpose of political or governmental influence .  Section 12 provides that an activity is undertaken for such a purpose if it is undertaken to influence, whether directly or indirectly, any aspect of one or more of the following:

·          a process in relation to a federal election or a designated vote

·          a process in relation to a federal government decision

·          proceedings of a House of the Parliament

·          a process in relation to a registered political party

·          processes in relation to a member of Parliament who is not a member of a registered political party, or

·          a process in relation to a candidate in a federal election who is not endorsed by a registered political party.  

296.            Donor activity will only be a registrable activity under item 4 of the table if it is undertaken on behalf of a foreign government, a foreign public enterprise or a foreign political organisation.  Foreign businesses and individuals have intentionally been excluded from being foreign principals for the purposes of item 4 because there are a range of situations in which transparency is not required for donor activities by foreign businesses and individuals, even if it is for the purpose of political or governmental influence. 

297.            An example of donor activity under item 4 of the table is as follows:

A foreign political organisation has an arrangement with an Australian citizen.  There is likely to be a federal election in Australia in the next 12 months (although the voting period has not yet commenced), and the foreign political organisation has expressed a view that it would like a particular party to be elected.

The Australian citizen makes a number of donations on behalf of the foreign political organisation - one of the donations is to a student union at an Australian university, to run on-campus campaigning to influence student votes consistent with the preference of the foreign political organisation.  The student union does not fall within the reporting requirements in Part XX of the Commonwealth Electoral Act.

This would be a registrable activity under item 4 of the table in subsection 21(1) as the activity engaged in by the Australian citizen falls within the definition of donor activity - that is, the Australian citizens is disbursing money for the purpose of indirectly influencing a section of the public in relation to a federal election.   As neither the Australian citizen disbursing the money nor the student union receiving the disbursement is required to disclose it under the Commonwealth Electoral Act, it would be a registrable activity under item 4. The arrangement between the Australian citizen and the foreign political organisation constitutes an arrangement for the purposes of paragraph 11(1)(a) and the Australian citizen’s activities are therefore undertaken on behalf of the foreign political organisation.

298.            The registrable activities covered by item 4 of the table have been carefully calibrated to ensure that activities that do not affect Australia’s political or governmental system are not covered.  There are many circumstances in which a foreign principal could engage a person to undertake donor activity in Australia beyond the purpose of political or governmental influence.  Such circumstances would, for example, include a foreign government making donations to local businesses to promote outreach and cross-cultural awareness programs amongst employees. 

299.            If activities fall within item 4 of the table in section 21 and are registrable, then a person is required to register under the scheme under Division 2 of Part 2 of the Act.

Subsection 21(2)

300.            Subsection 21(2) provides that a single activity undertaken by a person may be covered by more than one item of the table in subsection 21(1).  In these circumstances, the scheme applies in relation to the activity as covered by each item.  An example of this is as follows:

An Australian lobbying firm is engaged by a foreign public enterprise to make representations to the Australian Government Department of Treasury to ease foreign investment restrictions.  If the lobbying firm meets with Treasury Department officials to communicate the views of the foreign public enterprise on foreign investment, this would be a registrable activity under item 2 of the table at subsection 21(1), as the activity engaged in by the Australian lobbying firm falls within the definition of general political lobbying.   

If in that same meeting the lobbying firm provides hard-copy materials that reiterate the views of the foreign public enterprise that were expressed verbally at the meeting, this would be a registrable activity under item 3 of the table at subsection 21(1), as the activity engaged in by the Australian lobbying firm falls within the definition of communications activity.  

Should the Australian lobbying firm apply to register under the scheme, it would need to provide information about the registrable activities undertaken in relation to both items 2 and 3.

Section 22 - Registrable activities: recent Cabinet Ministers

301.            Section 22 provides that an activity is a registrable activity in relation to a foreign principal if:

·          the person who undertakes the activity is a recent Cabinet Minister  

·          the foreign principal is a foreign government, foreign political organisation, foreign public enterprise or a foreign business (but not an individual)

·          the activity is not otherwise a registrable activity under another provision in Division 3 of Part 2, and

·          the person is not exempt under Division 4 of Part 2 in relation to the activity.

302.            Recent Cabinet Minster is defined at section 10 to mean, at a particular time, a person who was a Minister and member of the Cabinet at any time in the three years before that time, but who is not at the particular time a Minister, member of the Parliament or a holder of a senior Commonwealth position. The three year period is commensurate with seniority of the previous position held by recent Cabinet Ministers within the political system and the potential influence they have over political and governmental processes.    

303.            Unlike sections 20 and 21, section 22 does not specify the kinds of activities that a recent Cabinet Minister needs to undertake in order for the person to be required to register.  The rationale for including recent Cabinet Ministers is that, by virtue of holding such a senior position within the Australian Government, these persons bring significant influence to bear in any activities undertaken on behalf of a foreign principal.  Given recent Cabinet Ministers have occupied a significant position of influence, are likely to have a range of influential contacts with decision making authority in the political process and have had access to classified and sensitive information concerning current and recent Australian Government priorities, it is in the public interest to know when such persons have an arrangement with a foreign principal. 

304.            Section 22 does not prohibit recent Cabinet Ministers from engaging in activities on behalf of a foreign principal.  They may be employed by, or act in any capacity for, a foreign principal.  It is simply necessary for them to register to ensure there is transparency in relation to their connection to the foreign principal.

305.            Examples of the application of section 22 are as follows:

Example 1: A person was a member of the Cabinet in the Australian Parliament on 1 June 2019.   The person retired from the Australian Parliament on 2 June 2019 and is no longer a Minister, member of the Parliament or holder of a senior Commonwealth position. 

The person takes up employment with a foreign university on 20 June 2020.  This would be a registrable activity under section 22, as the university is a foreign business within the definition of foreign principal and the person has entered in an arrangement with the foreign principal within three years of being a Cabinet Minister.

Example 2: A person was a member of the Cabinet in the Australian Parliament on 15 April 2025.  A federal election was held on 20 April 2025, and the person was not re-elected.  The person is no longer a Minister, member of the Parliament or holder of a senior Commonwealth position.

On10 December 2026, the person is contracted by a foreign public enterprise as an advisor.  This would be a registrable activity under section 22, as a foreign public enterprise is a foreign principal and the person has entered into an arrangement with the foreign principal within three years of being a Cabinet Minister.    

306.            Section 22 is intended to be mutually exclusively to the registration obligations at sections 20, 21 and 23.  As such, if the activity that the recent Cabinet Minister undertakes is a registrable activity under one of those sections, section 22 will not apply.  An example of this is as follows:

Person A is a former Cabinet Minister in the Australian Parliament who retired on 10 October 2021.  Person A enters into a contract on 1 January 2022 with a foreign public enterprise, to lobby members of Parliament in relation to telecommunications contracts. 

Person A’s activities for the foreign public enterprise fall within item 1 of the table in section 21, being parliamentary lobbying activities undertaken in Australia on behalf of a foreign public enterprise. 

As such, the person would be required to register under section 21 in relation to these activities, and not by virtue of the fact that the person is a recent Cabinet Minister for the purposes of section 22.

307.            If activities fall within section 22 and are registrable, then a person is required to register under the scheme under Division 2 of Part 2 of the Act.

Section 23 - Registrable activities: recent Ministers or MPs or other holders of senior Commonwealth positions

308.            Section 23 provides that an activity is a registrable activity in relation to a foreign principal if:

·          the person who undertakes the activity is a recent Minister, member of Parliament, or recent holder of a senior Commonwealth position

·          the foreign principal is a foreign government, foreign political organisation, foreign public enterprise or a foreign business (but not an individual)

·          in undertaking the activity, the person contributes experience, knowledge, skills or contacts gained in the person’s former capacity as a Minister, member of the Parliament or holder of a senior Commonwealth position

·          the activity is not otherwise a registrable activity under another provision in Division 3 of Part 2, and

·          the person is not exempt under Division 4 of Part 2 in relation to the activity.

309.            Recent Minster or member of Parliament is defined at section 10 to mean a person who, at a point in time, was a Minister or a member of the Parliament at any time in the previous 3 years, and who is not at the point in time a Minister, member of the Parliament or holder of a senior Commonwealth position. 

310.            Recent holder of a senior Commonwealth position is defined at section 10 to mean a person who, at a point in time, held a senior Commonwealth position at any time in the 18 months before the time, and is not at the time a Minister, member of the Parliament or a holder of a senior Commonwealth position.   Senior Commonwealth position is also defined in section 10 and covers positions at the agency head and deputy agency head levels.

311.            Section 23 does not specify the kinds of activities that a recent Minister, member of the Parliament or holder of a senior Commonwealth position needs to undertake in order to be captured by this provision.  Any activity done by a recent Minister or member of Parliament or other recent holders of senior Commonwealth positions on behalf of a foreign principal is registrable if, in undertaking the activity the person contributes experience, knowledge, skills or other contacts gained in the person’s former capacity. 

312.            The terms experience, knowledge, skills and contacts are not defined in the Act.  The terms are intended to be construed broadly for the purposes of the scheme.  

313.            The rationale for including recent Ministers, members of the Parliament and holders of senior Commonwealth positions in section 23 is that, by virtue of holding a position in the Australian Parliament or a senior position in the Australian Government bureaucracy, these persons bring significant influence to bear in any activities undertaken on behalf of a foreign principal.  It is appropriate and in the public interest to require transparency of such individuals where the person is contributing skills, knowledge, contacts and experience gained through their previous public role. 

314.            An example of the application of section 23 is as follows:

Example 1: Person B resigns from a position as Secretary of the Commonwealth department with responsibility for infrastructure.  Within six months of resigning, Person B accepts a position on the board of a foreign business, a global construction firm that regularly bids for contracts with the Australian Government.  

Person B’s role does not involve any activities otherwise registrable under sections 20 and 21 of the scheme.  However, this would be a registrable activity under section 23, as a foreign business is a foreign principal and Person B has entered into an arrangement with the foreign principal within 18 months of holding a senior Commonwealth position.  

315.            Section 23 is intended to be mutually exclusive to sections 20, 21 and 22.  As such, if the activity that the recent Minister, member of the Parliament or holder of a senior Commonwealth position undertakes is a registrable activity under one of those sections, section 23 will not apply.  An example of this is as follows:

Person A is a former member of Parliament who was the Minister responsible for telecommunications. Person A resigned from the Australian Parliament on 1 July 2020.  On 1 January 2022, Person A enters into a contract with a foreign public enterprise, agreeing to lobby the Australian Government in relation to telecommunications contracts.

For the purposes of the Act, the person would fall within the definition of ‘recent Minister or member of Parliament’, having been a Minister within the three year period leading up to the person entering into the contract with the foreign principal on 1 January 2022, and is no longer a Minister, member of the Parliament or holder of a senior Commonwealth position. 

While this person falls within the definition of ‘former Minister or member of Parliament’, the activities which they are contracted to engage in on behalf of the foreign public enterprise are already captured by section 21, being parliamentary lobbying activities undertaken in Australia on behalf of a foreign principal.  As such, the person would be required to register in relation to these activities, and not by virtue of the fact that the person is a recent Minister or member of Parliament for the purposes of section 22.

316.            If activities fall within section 23 and are registrable, then a person is required to register under the scheme under Division 2 of Part 2 of the Act.

Division 4—Exemptions

317.            Division 4 sets out a range of exemptions.  If any of these exemptions applies, a person will not be required to register under the scheme, even if their activities fall within one of the categories set out at Division 3 of Part 2.

Section 24 - Exemption: humanitarian aid or assistance

318.            Section 24 specifies that a person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if the activity is, or relates solely to, the provision of humanitarian aid or humanitarian assistance.  

319.            The exemption in section 24 recognises that the provision of humanitarian aid or assistance is a shared and collective endeavour of the international community and that activities advanced solely for this purpose do not impact upon Australia’s national interests.

320.            The term person is defined at section 10 to mean any of the following:

  • an individual
  • a body corporate
  • a body politic
  • a partnership
  • an association (whether or not incorporated)
  • an organisation (whether or not incorporated)
  • any combination of individuals who together constitute a body, or
  • an entity or group prescribed by the rules

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law or not constituted under a law at all.

321.            The term ‘activity’ refers to registrable activities as described in Division 3 of Part 2 of the Act.

322.            The term ‘solely’ is not defined and will be given its ordinary meaning.  This term is intended to convey that the activities covered by the exemption at section 24 must be able to be completely and wholly considered as being done for the purpose of humanitarian aid or humanitarian assistance.

323.            The term ‘provision of’ is not defined and is intended to take its ordinary meaning.  The term is intended to be construed broadly, to capture both direct forms of humanitarian aid and assistance, including through donating funds and delivering in country humanitarian assistance such as medical services, as well as activities beyond the act of directly giving or providing humanitarian aid or assistance, such as activities relating to processes and procedures which support the provision of humanitarian aid or assistance. 

324.            The terms ‘humanitarian aid’ and ‘humanitarian assistance’ are not defined and will assume their ordinary meanings.  The terms are intended to include material and logistical assistance provided during man-made and natural disasters and crises, and during times of conflict or civil unrest.  The terms are intended to be construed broadly, to apply to all aspects of humanitarian aid and assistance where the purpose is to save lives, alleviate suffering and maintain human dignity.  This could include, for example, the provision of funds, food, water, sanitation, shelter, medical or logistical support during humanitarian crises.  The terms ‘in relation to’ is intended to include activities related to humanitarian aid, such as attending meetings, making representations, and developing and producing communication materials where those activities are undertaken solely in relation to the provision of humanitarian aid and humanitarian assistance.

325.            Examples of scenarios in which the section 24 exemption for ‘humanitarian aid or assistance’ may be enlivened are as follows:

Example 1: The government of Country X funds an Australian incorporated non-government organisation (NGO) to develop and produce communications material encouraging the Australian Government to commit more money to a particular overseas humanitarian crisis.  Without the exemption in section 24, the NGO would be required to register under the scheme, as it would be undertaking a registrable activity under section 21 on behalf of a foreign principal for the purpose of political or governmental influence.  However, because the materials are developed and produced solely in relation to humanitarian aid or assistance, the NGO would fall within the exemption at section 24 and would not be required to register under the scheme.  

Example 2: A recent Cabinet Minister enters into a contract of employment with an international non-government organisation (NGO) which has a mandate solely focussed on providing humanitarian aid and assistance.  Without the exemption in section 24, the recent Cabinet Minister would be required to register under the scheme, as he or she would be acting on behalf of a foreign principal under section 22.  However, because the employment is solely for the purpose of humanitarian aid and assistance, the recent Cabinet Minister would fall within the exemption at section 24 and would not be required to register under the scheme.

Section 25 - Exemption: legal advice or representation

326.            Section 25 specifies that a person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if the activity is undertaken solely by way of, or solely for the purposes of, providing legal advice or legal representation in judicial, criminal or civil law enforcement inquiries, investigations or proceedings. 

327.            This exemption is intended to recognise the proper role of the legal profession in providing legal advice to foreign principals.

328.            The exemption does not apply to all activities that could be undertaken by a legal practitioner on behalf of a foreign principal. It is only intended to exempt those activities that relate to judicial, criminal or civil law enforcement inquiries, investigations or proceedings.  Therefore, if a foreign principal engaged a legal practitioner to undertake activities such as parliamentary lobbying or communications activities for the purpose of political or governmental influence, and those activities were not protected by legal professional privilege, then that legal practitioner would be required to register with the scheme.

329.            The terms ‘solely by way of’ and ‘solely for the purposes of’ are not defined and will be given their ordinary meanings.  These terms are intended to convey that activities covered by the exemption at section 25 must be able to be completely and wholly considered as legal advice or legal representation in judicial, criminal or civil law enforcement inquiries, investigations or proceedings. 

330.            For example, a legal practitioner might act on behalf of a foreign principal by providing both legal advice for civil proceedings, and on a separate and unrelated matter, providing a parliamentary lobbying service. In this example, the legal practitioner would not be required to disclose details relating to the arrangement to provide legal advice but would be required to register under the scheme in relation to the provision of the parliamentary lobbying services.

331.            The terms ‘legal advice’ and ‘legal representation’ are not defined and will assume their ordinary meanings.  Legal advice could include professional advice provided by a legal practitioner whether in oral or written form.  Legal representation could include representation before courts, tribunals or other adjudicating authorities, as well as other forms of representations made as part of a lawyer-client relationship regarding a judicial, criminal or civil law enforcement inquiry, investigation or proceeding.

332.            The term ‘judicial, criminal or civil law enforcement inquiries, investigations or proceedings’ is not defined and is intended to take its ordinary meaning.  Examples of judicial, criminal or civil law enforcement inquiries, investigations or proceedings could include:

·          inquiries and investigations by Royal Commissions, Parliamentary committees, coroners, and corruption and crime missions

·          civil mediations and arbitrations

·          proceedings in civil and criminal courts, including tribunals, and

·          investigations by intelligence and law enforcement bodies and agencies.

333.            Examples of scenarios in which the section 25 exemption for ‘legal advice or representation’ may be enlivened are as follows:

Example 1 : A legal practitioner is engaged by a foreign political organisation to represent it in a civil defamation proceeding against a candidate in an Australian federal election.  The defamation case relates to an election commitment made by the candidate to stop the foreign political organisation from operating in that candidate’s electorate on the basis of unfounded allegations.  The legal practitioner is instructed by the foreign political organisation to write to the candidate seeking to convince them to engage in mediation to settle the matter.

In this example, the legal practitioner would, without the exemption in section 25, be required to register under section 21 because the activities are seeking to influence a decision by the candidate about whether to engage in mediation.  However, because the legal practitioner is providing legal representation to the foreign political organisation in civil proceedings the section 25 exemption would apply and the legal practitioner would not be required to register under the scheme. 

Example 2: A legal practitioner is engaged by a foreign individual to represent that individual in a Royal Commission concerning the conduct of the individual.  Consistent with instructions provided by the foreign individual, the legal practitioner makes representations to members of the Australian Parliament about the role of the Royal Commission and its remit to conduct the inquiry. 

In this example, the legal practitioner would, without the exemption in section 25, be required to register under the scheme in accordance with section 21 concerning ‘activities in Australia for the purpose of political or governmental influence.’ However, as the legal practitioner is making representations to members of Parliament in the course of providing legal advice and representing the foreign individual in the Royal Commission, the section 25 exemption would apply and the legal practitioner would not be required to register under the scheme.

Section 26 - Exemption: diplomatic or consular or similar activities

Exemption relating to diplomatic and consular privileges and immunities 

334.            Subsection 26(1) provides that a person is exempt in relation to an activity the person undertakes on behalf of a foreign government if the person is entitled to certain privileges and immunities and that activity is undertaken within the scope of the functions that give rise to the person’s privileges and immunities.

335.            This exemption is intended to apply where consular officials, diplomatic officials or staff members are performing any of the official functions, responsibilities or duties of their role.  Engagement by these officials with members of Parliament and the broader Australian Government is a core component of their roles as consular or diplomatic officials.  Such activities commonly involve representing the views of the foreign government and seeking to influence the Australian Government’s position on various matters.

336.            Such engagement is also transparent in that there is no uncertainty about the fact that consular or diplomatic officers represent the interests of a foreign government.

337.            Paragraph 26(1)(a) specifies that the exemption for diplomatic and consular or similar activities is limited to a person acting on behalf of a foreign government.   Foreign government is defined in section 10 to mean:

·          the government of a foreign country or part of a foreign country

·          an authority of the government of a foreign country

·          an authority of the government of part of a foreign country, or

·          a foreign local government body or foreign regional government body.

338.            The terms ‘privileges’ and ‘immunities’ are limited to those that a person is entitled to under the Consular Privileges and Immunities Act 1972 , the Diplomatic Privileges and Immunities Act 1967 and the Overseas Missions (Privileges and Immunities) Act 1995 .  

339.            The terms ‘privileges’ and ‘immunities’ are not defined in this Act. The terms are to be interpreted consistently with the meanings given in the Vienna Convention on Consular Relations (1963).

340.            The exemption at subsection 26(1) will only apply if the person is undertaking the activity within the scope of the functions that entitle the person to the relevant privileges and immunities.  For example, if an embassy official is acting outside the scope of their diplomatic role in undertaking certain activities then the exemption will not apply.

341.            An example of a scenario where the section 26 exemption for ‘diplomatic and consular activities’ may apply is as follows:

Person B is employed by a foreign government and works in that government’s embassy in Australia as a Political Counsellor.  As part of his or her role, Person B regularly meets with Australian Government officials and with members of Parliament to advocate on policy issues of relevance to the foreign government.  These meetings are undertaken in accordance with their official duties that give rise to privileges and immunities under the Consular Privileges and Immunities Act and the Diplomatic Immunities Act.  In this example, because the person engaged in parliamentary lobbying on behalf of a foreign government in accordance with the scope of their functions and their entitlement to privileges and immunities, the section 26 exemption would apply and the person would not be required to register under the scheme. 

Exemption for persons acting for the UN within the scope of their functions

342.            Subsection 26(2) provides that a person is exempt in relation to an activity the person undertakes on behalf of a foreign government if the person is a UN or associated person within the meaning of Division 71 of the Criminal Code, and undertaking the activity is within the scope of the functions that the person undertakes in the person’s capacity as such a person.

343.            The term ‘activity’ refers to registrable activities as described in Division 3 of Part 2 of the Act. 

344.            Paragraph 26(2)(b) refers to a person who is a UN or associated person within the meaning of Division 71 of the Criminal Code.

345.            Section 71.23 of the Criminal Code defines UN or associated person to mean a person who is a member of any UN personnel or associated personnel.

346.            UN personnel is defined in section 71.23 of the Criminal Code to mean:

·          persons engaged or deployed by the Secretary-General of the United Nations as members of the military, police or civilian components of a UN operation, or

·          any other officials or experts on mission of the United Nations, its specialised agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a UN operation is being conducted.

347.            Associated personnel is defined in section 71.23 of the Criminal Code to mean:

·          persons assigned by a government, or an intergovernmental organisation, with the agreement of the competent organ of the United Nations

·          persons engaged by the Secretary-General of the United Nations, a specialised agency or the International Atomic Energy Agency, or

·          persons deployed by a humanitarian non-governmental organisation or agency under an agreement with the Secretary-General of the United Nations, a specialised agency or the International Atomic Energy Agency;

to carry out activities in support of the fulfilment of the mandate of a UN operation.

348.            This exemption is intended to apply where a UN or associated person is performing any of the official functions, responsibilities or duties of their role and could be considered to be acting on behalf of a foreign government which has provided funding to the UN.  Engagement by UN and associated persons with members of the Parliament and the broader Australian Government is a core component of their role.  In their official capacity, UN and associated persons neither represent nor advance the interests of particular foreign principals, but are instead concerned with the international community. 

349.            Little transparency would be gained under the scheme in requiring UN and associated persons to register when they are clearly acting within their official functions, responsibilities or duties.   

350.            An example of a scenario where the subsection 26(2) exemption relating to persons acting for the UN is as follows:

The Secretary-General of the United Nations directs Person A (a United Nations employee) to undertake a tour of Australia to meet with a range of Ministers, government departments and civil society organisations regarding Australia’s approach to employment of migrant workers. At the conclusion of the tour, the Secretary-General directs Person A to write a report for publication, urging the Australian Government to make changes to its migrant worker policies. 

Without the exemption at section 26, Person A would be required to register in relation to their arrangement with the Secretary-General to undertake registrable activities as outlined at section 21.  However, because Person A is an employee of the United Nations and is undertaking activities within the scope of their employment functions, the section 26 exemption would be enlivened and Person A would not be required to register under the scheme.

Section 27 - Exemption: religion

351.            Section 27 provides that a person is exempt in relation to an activity the person undertakes on behalf of a foreign government if that activity is undertaken solely by way of, or solely for the purposes of, acting in good faith in accordance with the doctrines, tenets, beliefs or teachings of the particular religion of the foreign government. 

352.            This exemption seeks to avoid the activities of the churches affiliated with foreign government, such as the Catholic Church, being registrable under the scheme.  This exemption is intended to exclude the activities of religious bodies which have such a clear and transparent relationship with a foreign government that registration under the scheme would not achieve additional transparency.

353.            Paragraph 27(1)(a) specifies that the exemption for religious activities in section 27 is limited to a person acting on behalf of a foreign principal if the foreign principal is a foreign government.   Foreign government is defined in section 10 to mean:

·          the government of a foreign country or part of a foreign country

·          an authority of the government of a foreign country

·          an authority of the government of part of a foreign country, or

·          a foreign local government body or foreign regional government body. 

354.            Religious activities that are undertaken on behalf of a foreign principal that is not a foreign government will not be exempt under section 27.  The purpose of the exemption is to cover situations where the foreign government is so closely affiliated with a particular religion that representing the teachings of the church is akin to representing the views of the government.

355.            The terms ‘solely by way of’ and ‘solely for the purposes of’ are not defined and will be given their ordinary meanings. These terms are intended to convey that activities covered by the exemption at section 27 must be able to be completely and wholly considered as being undertaken in good faith in accordance with the doctrines, tenets, beliefs or teachings of the particular religion of the foreign government.

356.            Similarly, the term ‘acting in good faith’ is not defined and will assume its ordinary meaning, that is, to refer to circumstances where a person acts with honesty and with sincere intention.   

357.            Examples of scenarios where the section 27 exemption for religion would be enlivened are as follows:

Example 1: A Catholic priest speaks to his congregation about a pending vote in the Australian Parliament about voluntary euthanasia.  The priest asks the congregation to make contact with their local member of Parliament to seek to influence that MP’s vote.  The priest’s position is consistent with the Catholic Church’s position on voluntary euthanasia, as determined by Vatican City.  The priest’s speech is made in good faith in accordance with the beliefs and teachings of the Catholic Church.  

In this example, the Catholic priest would be engaging in a registrable activity under section 21.  However, the section 27 exemption would apply and the priest would not be required to register under the scheme. 

358.            Subsection 27(2) provides that the exemption does not apply in relation to registrable activities under section 22 concerning the activities of recent Cabinet Ministers, or section 23 concerning the activities of recent Ministers, members of the Parliament or other holders of senior Commonwealth positions.  Therefore, a person who falls within the scope of sections 22 or 23 will still need to register even if the foreign principal is a foreign government and the activities are solely connected with the doctrines, tenets, beliefs or teachings of the particular religion of the foreign government. 

359.            This is appropriate because such persons are distinguished from other individuals or entities because of the influence they have by virtue of their previous roles. There is merit in the Australian public and government decision makers knowing when and in what circumstances such persons are acting on behalf of a foreign government, even when solely for the purposes of acting in good faith in accordance with the doctrines, tenets, beliefs or teachings of the particular religion of the foreign government.

Section 28 - Exemption: news media

360.            Section 28 provides that a person is exempt in relation to an activity that a person undertakes on behalf of a foreign business or foreign individual where that activity is undertaken solely for the purposes of reporting news, presenting current affairs or expressing editorial content in news media.

361.            This exemption is intended to ensure privately owned news and press services operating within Australia will not be required to register under the scheme for undertaking activities at the direction of their foreign owner or director.  

362.            For example, without this exemption, the scheme would require a local newspaper to register if its parent company (a foreign business) directed that the local paper’s editorial on the day of an election should urge voters to support a particular party.  Requiring such entities to register would unjustifiably expand the scope of the scheme and would be unlikely to add to its transparency objectives.  

363.            The exemption at section 27 only applies if the foreign principal is a foreign business or an individual who is neither an Australian citizen nor permanent resident of Australia.  Therefore, if a news service is acting on behalf of a foreign government, foreign public enterprise or foreign political organisation then they will not be able to claim this exemption.  This ensures that attempts to influence Australia’s political and governmental processes on behalf of a foreign government, including through a state-owned media organisation, will remain registrable.

364.            The terms ‘solely’ and ‘solely for the purposes of’ are not defined and are intended to take their ordinary meanings.  These terms are intended to convey that activities covered by the exemption at section 28 must be undertaken completely for the purposes of reporting news, presenting current affairs or expressing editorial content in news media.

365.            Similarly, the terms ‘reporting news’, ‘presenting current affairs’, ‘expressing editorial content’ and ‘news media’ are not defined.  These terms are intended to take their ordinary meanings.

  • The terms ‘reporting news’ and ‘presenting current affairs’ could include the presentation of information about current events through print, online, television or radio mediums. This term is intended to refer to news that is investigated, selected and presented by media professionals including journalists, editors and producers and is intended to apply to traditional news sources such as print and online newspapers, television news and radio. The terms ‘reporting news’ and ‘presenting current affairs’ are not intended to capture the presentation of information about current events by members of the general public, such as through social media.
  • The term ‘expressing editorial content’ is intended to include attitudes and opinions expressed in news media including print, online, television and radio media.  This term is intended to refer to editorial content that is selected and presented by media professionals including journalists, editors and producers and is intended to apply to traditional news sources such as print and online newspapers, television news and radio.
  • The term ‘news media’ is intended to include all sources and modes of presentation of news and information, including television, newspapers, magazines, online newspapers and other online platforms.

366.            An example of a scenario in which the section 28 exemption for news media would be enlivened is as follows:

NewsFlash!, a daily newspaper which operates and publishes in Australia, is owned by Person X, who is not an Australian citizen or permanent resident.  Person X supports Political Party Y in Australia.  In the lead-up to Australia’s federal election, Person X directs NewsFlash! to print daily editorials in support of Political Party Y.  

Without the exemption at section 28, NewsFlash! would be required to register under section 21 concerning ‘activities in Australia for the purpose of political or governmental influence.’  However, because NewFlash! is undertaking activities on behalf of a foreign individual solely for the purpose of expressing editorial content in news media, the section 28 exemption would apply and NewsFlash! would not be required to register under the scheme.

367.            Subsection 28(2) provides that the exemption does not apply in relation to registrable activities under section 22 concerning the activities of recent Cabinet Ministers, or section 23 concerning the activities of recent Ministers, members of the Parliament or other holders of senior Commonwealth positions.  Therefore, a person who falls within the scope of sections 22 or 23 will still need to register even if the foreign principal is a foreign business or a foreign individual and the activity is solely for the purpose or reporting news, presenting current affairs or expressing editorial content in news media.

368.            This is appropriate because such persons are distinguished from other individuals or entities because of the influence they have by virtue of their previous roles. There is merit in the Australian public and government decision makers knowing when and in what circumstances people holding these kinds of roles are acting on behalf of a foreign business or foreign individual, even when solely for the purposes of reporting news, presenting current affairs or expressing editorial content in news media on behalf of a foreign business or foreign individual.

Section 29 - Exemption: commercial or business pursuits

Commercial negotiations

369.            Subsection 29(1) provides that a person is exempt in relation to an activity the person undertakes on behalf of a foreign business or individual where that activity is undertaken solely, or solely for the purposes of, the pursuit of bona fide business or commercial interests in relation to preparing to negotiate, negotiating or concluding a contract for the provision of goods or services.  The exemption does not apply if the activity in any way relates to national security, defence or public infrastructure.

370.            This exemption recognises that there are a number of intermediaries in Australia that represent the interests of foreign businesses or individuals in commercial pursuits which have little impact on Australian governmental and political processes.  For example, Ministers should be able to meet with lobbyists representing a foreign business or individual to discuss the sale of goods or services - provided these activities do not relate to national security, defence or public infrastructure - without invoking registration requirements under the scheme.  To require persons acting on behalf of the foreign business or individual in such circumstances would impose additional regulatory requirements on such persons under the scheme which are disproportionate and unjustified.

371.            Paragraph 29(1)(a) specifies that the exemption for commercial negotiations is limited to a person acting on behalf of a foreign principal if the foreign principal is a foreign business or a foreign individual.  These are foreign principals most likely to engage with members of the Parliament on commercial and business matters. 

372.            Commercial or business activities that a person undertakes on behalf of a foreign government, foreign political organisation or a foreign public enterprise  will not fall within this exemption.

373.            The terms ‘solely’ and ‘solely for the purposes of’ are not defined and will be given their ordinary meanings.  These terms are intended to convey that activities covered by the exemption at section 29 must be able to be completely and wholly considered as being undertaken to advance bone fide business or commercial interests relating to the entirety of a contract negotiation process for the provisions of goods or services. 

374.            The term ‘bona fide business or commercial interests’ is also not defined and is intended to assume its ordinary meaning, to include genuine and real business and commercial interests relating to trade, commerce, buying, selling, dealing and marketing.

375.            The terms ‘negotiate, negotiating, or concluding’ is intended to include all activities undertaken in relation to a contract for the provision of goods and services.  For example, the term would include preliminary meetings in the lead-up to negotiating a contract, activities undertaken during the negotiation period and activities undertaken to conclude the contract which may relate to a final evaluation of the goods and services provided or the final exchange of funds under the contract.

376.            The term ‘provision of goods or services’ could include the giving of, providing of, supply, delivery, equipping and distribution of things, articles, stock, resources, amenities, solutions and systems.

377.            Paragraph 29(1)(c) provides that this exemption does not apply when the activity relates to national security, defence or public infrastructure.  Given the significance of commercial activities relating in these matters, it is appropriate that any foreign involvement in these areas is transparent.  There is a public interest in knowing when foreign businesses or individuals are involved in contract negotiations relating to national security, defence or public infrastructure, and as such persons acting on behalf of such foreign principals should not be able to take advantage of the exemption in subsection 28(1).

378.            The terms ‘national security’ and ‘defence’ are not defined in this Act and are intended to take their ordinary meanings.  The term ‘national security’ could include matters relating to the protection of Australia and its people from threats and harm, including in relation to espionage, foreign interference, terrorism and political violence.  It may also include matters relation to the protection of the integrity of Australia’s borders and information relating to the activities of security intelligence and law enforcement agencies.   The term ‘defence’ is intended to include matters relating to the protecting, safeguarding or shielding of Australia, its interests and its people through the use of military measures or resources. 

379.            Subparagraph 29(1)(c)(iii) specifies that the term ‘public infrastructure’ will take its meaning from Division 82 of the Criminal Code, which provides that the term means any of the following:

·          any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth

·          defence premises within the meaning of Part VIA of the Defence Act 1903

·          service property, and service land, within the meaning of the Defence Force Discipline Act 1982

·          any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act , or

·          any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

o    provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

o    is located in Australia, and

o    belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

380.            The policy rationale for excluding the matters listed in paragraph 29(1)(c) from the operation of this exemption is that there is a public interest in transparency about foreign businesses and individuals engaging in registrable activities in relation to business or commercial negotiations relating to national security, defence or public infrastructure.

381.            An example of a scenario in which the subsection 29(1) exemption for commercial or business pursuits would apply is as follows:

Person A is engaged by foreign business X which specialises in software for large organisations.  Person A meets with members of the Parliament to negotiate and finalise contracts for the Australian Government’s purchase of software technology owned by the foreign business. The technology does not relate to national security, defence or public infrastructure. 

Without the exemption at subsection 29(1), Person A would be required to register under section 21 concerning parliamentary lobbying activities undertaken on behalf of a foreign principal for the purpose of political or governmental influence.  However, because Person A is undertaking those activities on behalf of the foreign business solely for the purpose of a commercial interest in relation to concluding a contract for the provision of goods and services, the subsection 29(1) exemption would apply and Person A would not be required to register under the scheme. 

Person employed by or operating under name of foreign principal

382.            Subsection 29(2) provides that a person is exempt in relation to any activity the person undertakes on behalf of a foreign public enterprise or foreign business where the activity is a commercial or business pursuit undertaken under the name of the foreign principal, or where an individual undertakes that activity in the course of his or her employment by the foreign public enterprise or foreign business. 

383.            This exemption is intended to ensure that Australian branches of foreign-owned global corporations are not captured under the scheme if the Australian branch is operating under the same or similar trading name as the foreign principal.  For example, an Australian branch of a foreign corporation should not be required to register under the scheme when the Australian branch undertakes relevant activities at the direction of the foreign corporation, as long as they are operating under the same name.  

384.            The activities of Australian subsidiaries operating under the same or similar business name as its foreign parent company are considered to be sufficiently transparent so that registration is not required.  To require such persons to register would impose disproportionate and unjustifiable regulatory requirements under the scheme.

385.            Paragraph 29(2)(a) specifies that the exemption for persons operating under the name of a foreign principal is limited to circumstances in which the foreign principal is a foreign public enterprise or a foreign business. These terms are defined in section 10 of the Act. 

386.            Activities that a person undertakes on behalf of a foreign government, foreign political organisation or an individual and that are commercial or business pursuits undertaken under the name of the foreign principal will not fall within the exemption in subsection 29(2). 

387.            Paragraph 29(2)(b) provides that this exemption applies if the activity is a commercial or business pursuit undertaken under the name of the foreign principal.  The term ‘commercial or business pursuit’ is not defined and is intended to take its ordinary meaning to include activities relating to trade, commerce, buying, selling, dealing and marketing. 

388.            It is intended that slight variations between the name of the person undertaking the activities and the foreign principal be permitted if it is abundantly clear that the person and foreign principal relate to the same foreign public enterprise or foreign business. 

389.            This exemption is also intended to apply where an individual is directly employed by a foreign business and the activities undertaken by that individual can be clearly attributed to and linked with the foreign business or foreign public enterprise.

390.            For example, if an individual is employed by a foreign corporation and undertakes an activity in the course of his or her employment that would otherwise be registrable under the scheme, this would not invoke registration requirements under the scheme.  The activities of Australian employee undertaken in the course of his or her employment are considered to be sufficiently transparent. 

391.            To require such individuals to register would impose disproportionate and unjustifiable regulatory requirements and is unlikely to add to the transparency objective of the scheme.

392.            The term ‘individual is not defined for the purposes of subsection 29(2) and is intended to take its ordinary meaning, being a single human being as distinguished from a group. 

393.            Paragraph 29(2)(b)provides that this exemption applies if the individual acts in his or her capacity as an employee of a foreign principal.  The term ‘capacity’ is not defined and is intended to take its ordinary meaning.  The term seeks to clarify that activities undertaken by the employee that are not part of that employee’s role, duties, or performance expectations, or are not directed by that foreign business or foreign public enterprise, do not fall within the exemption is subsection 29(2). 

394.            The term ‘employee’ is also not defined and is intended to take its ordinary meaning, to include all employment arrangements whereby a person is considered an employee of a foreign business and identifies themselves as such. The term is not intended to include employees of third parties that are contracted by a foreign business. 

395.            If an employee was to undertake activities that fall outside of their responsibilities or duties as an employee, and they have not been directed by the foreign business or foreign public enterprise to undertake the activity, they would not be able to rely on the exemption for registration in subsection 29(2).

396.            An example of a scenario in which the subsection 29(3) exemption for commercial or business pursuits would apply is as follows:

An individual is employed by Company A (a foreign business) and, in addition to performing other duties, undertakes parliamentary lobbying activities on behalf of Company A by appearing before a Parliamentary committee.  In the course of undertaking parliamentary lobbying activities, the individual represents themselves as an employee of Company A.  The individual would not be required to register under the scheme because of the exemption in subsection 29(2). 

Section 30 - Exemption: prescribed circumstances

397.            Section 30 provides that a person is exempt in relation to an activity the person undertakes on behalf of a foreign principal in the circumstances prescribed by the rules for the purposes of this section.

398.            Section 30 provides flexibility in the operation of the scheme, by allowing for rules to be made under section 71 specifying additional exemptions to registration.  This ensures the scheme can adapt and be responsive to new scenarios in which an exemption may be justified.

Division 5—End of registration

Section 31 - Notice of end of liability to register

399.            Subsection 31(1) provides that a registrant may give notice to the Secretary in order to end their registration.

400.            Under paragraph 31(1)(a), a person must be satisfied that the person has ceased to undertake activities on behalf of the foreign principal that are registrable in relation to the foreign principal.  Under paragraph 31(1)(b), the person must also be satisfied that there is no registrable arrangement in existence between the person and the foreign principal.

401.            Consistent with section 32, a notice under section 31 has the effect of ending the person’s registration under the scheme.  This is reflected in Note 1 to subsection 31(1).

402.            If a person gives a notice under subsection 31(1) while a registrable arrangement is in fact still in existence with the foreign principal specified in the notice, the person continues to be liable to register under subsection 19(1) despite the giving of the notice.  As described at sections 17 and 18, when a person is liable to register under the scheme is not the same as when a person is registered under the scheme.  As such, a person’s liability to register under the scheme will continue in circumstances where they have given notice under subsection 31(1) and their registration has ended, but they continue to have a registrable arrangement with the foreign principal.

403.            By giving a notice when the person still has the registrable arrangement with a foreign principal, the person may commit an offence under section 57 of this Act or under section 137.1 of the Criminal Code. 

·          Section 57 provides offences for giving a notice under this section, when the person knows that a registrable arrangement continues to exist.  The maximum penalty for these offences differ depending on whether a registrable activity occurs after the notice has been given: if an activity does occur, the maximum penalty is seven years imprisonment, whereas if an activity does not occur then the maximum penalty is 12 months imprisonment. 

·          Section 137.1 of the Criminal Code provides that a person commits an offence if the person gives false or misleading information to another person which is a Commonwealth entity.  The maximum penalty for this offence is 12 months imprisonment.  

404.            Note 2 to subsection 31(1) clarifies that these are the implications of giving a notice under subsection 31(1) while a registrable arrangement is still in place.

405.            Subsection 31(2) provides that the notice to the Secretary under this section must be:

·          in writing

·          in an approved form (if any)

·          given in an approved manner, and

·          be accompanied by any information or documents required to be provided by the Secretary.

406.            Approved form and approved manner are defined at section 66 to mean the form and manner that has been approved in writing by the Secretary for the purposes of the Act.

407.            Subsection 31(3) provides that the notice to the Secretary must specify a day on which registration in relation to the foreign principal should cease.  

408.            Paragraph 31(3)(a) provides that the day must not be earlier than the day that the notice is given to the Secretary.  This is intended to clarify that notice of end of registration cannot be given retrospectively.

409.            Paragraph 31(3)(b) provides that if the notice is given during the annual renewal period, it must not be later than the last day of the renewal period. Section 39 requires a person to renew their registration in relation to a foreign principal on an annual basis, in accordance with the requirements of that paragraph.  The period for renewing registration, known as the ‘renewal period,’ is set out at subsection 39(3). In most circumstances, annual renewal will be required within one year and one month of an application for registration under section 16. This paragraph clarifies that, by the end of the renewal period each year, a person must either renew or end their registration under the scheme in relation to a foreign principal.  If the person has not done either of these things, and they are still liable to register, they may be committing an offence under the Act.

410.            An example of the effect of subsection 31(3)(b) is as follows:

A person registers under the scheme in relation to a foreign principal on 21 January 2024.  The last day of the renewal period for the person is 20 February each year thereafter.

If the person gives a notice under subsection 31(1), the date specified in that notice must be before 20 February.  If the notice specifies a date after 20 February, the person must first renew their registration in accordance with section 39 before being able to end their registration by giving the required notice under subsection 31(1).

Section 32 - End of registration

411.            Section 32 sets out the circumstances in which a person’s registration under the scheme ends in relation to a foreign principal.  A person’s registration in relation to a foreign principal will end on the earliest of:

·          the day specified in the notice provided to the Secretary under section 31

·          if the person is required to renew the registration under section 39 and does not do so - the first day after the end of the renewal period for the registration, or

·          in circumstances prescribed by the rules - the day prescribed in the rules. 

412.            Paragraph 32(a) provides that, if a person provides a notice to the Secretary under section 31 which specifies a date for the end of the person’s registration, the person’s registration will cease on that day.

413.            Paragraph 32(b) provides that, if a person is required to renew their registration under section 39 and does not do so, then their registration ends on the first day after the renewal period for the registration.

414.            As described at sections 17 and 18 , when a person is registered under the scheme is not the same as when a person is liable to register under the scheme.  As such, a person’s liability to register under the scheme will continue in circumstances where their registration has ended in accordance with section 32, if they continue to be liable to register.

415.            Paragraph 32(c) provides flexibility for the rules to prescribe circumstances in which a person’s registration under the scheme can end.  If the rules prescribe such matters, paragraph 32(c) provides that a person’s registration will end on the day prescribed by the rules.

Part 3—Responsibilities of registrants under the scheme

Division 1—Simplified outline of this Part

Section 33 - Simplified outline of this Part

416.            Section 33 provides a simplified outline of Part 3, which sets out the responsibilities of persons who are registered under the scheme.  Such responsibilities include reporting material changes in circumstances and donor activities undertaken; updating registration details when a voting period begins; making disclosures in communication activities; annual renewal of registration; and keeping proper records.  

417.            While simplified outlines are included to assist readers to understand the substantive provisions, the outlines are not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Division 2—Reporting to the Secretary

418.            Division 2 of Part 3 outlines the reporting obligations of registrants under this scheme. The reporting obligations are intended to give effect to the transparency objectives of the scheme by ensuring that current and accurate information is provided by registrants. The reporting obligations seek to balance the regulatory burden on registrants against the transparency objectives of the scheme. 

Section 34 - Reporting material changes in circumstances

419.            Subsection 34(1) provides that a person who is registered under the scheme must give the Secretary a notice correcting an inaccuracy of misleading impression if the person becomes aware that information provided to the Secretary for the purposes of registration:

·          is, or will become, inaccurate or misleading in a material particular, or

·          omits, or will omit, any matter or thing without which the information is or will be misleading.

420.            It is an offence under subsection 58(1) for a registrant not to give this notice to the Secretary.  It is also an offence under section 137.1 of the Criminal Code for a person to give false or misleading information in compliance with a law of the Commonwealth.  The Note to subsection 34(1) clarifies that these offences apply.

421.            Subsection 34(2) provides that the person must provide the notice to the Secretary within 14 days after the day that the person becomes aware of the matter.  This is intended to facilitate timely correction of information which may otherwise mislead the Secretary or the broader public about the activities undertaken by the person on behalf of a foreign principal or a registrable arrangement between the person and the foreign principal.

422.            Subsection 34(3) provides that the notice given under subsection 34(1) must be:

·          in writing

·          in an approved form (if any)

·          given in an approved manner (if any), and

·          be accompanied by any information or documents required by the Secretary.  

423.            Approved form and approved manner are defined at section 66 to mean the form and manner that has been approved in writing by the Secretary for the purposes of the Act.

424.            Subsection 34(4) sets out examples of circumstances in which a person must give a notice to the Secretary to under this section.  

425.            Paragraph 34(4)(a) clarifies that a person would be required to report a material change in circumstances where a person starts to undertake a different kind of registrable activity on behalf of the same foreign principal for whom they are already registered under the scheme.  For example, a registrant who is registered as undertaking general political lobbying activities on behalf of a foreign principal would need to report a material change in circumstances under subsection 34(1) if that registrant begins to undertake communications activity on behalf of the foreign principal

426.            Paragraph 34(4)(b) clarifies that a person would be required to report a material change in circumstances where a person adds another kind of registrable activity to a registrable arrangement with a foreign principal for whom they are already registered under the scheme.  For example, a registrant who has an arrangement with a foreign principal to undertake parliamentary lobbying activities would need to report a material change in circumstances under subsection 34(1) if the arrangement is amended so that the registrant will also undertake communications activities in Australia for the purpose of political or governmental influence on behalf of the foreign principal. 

427.            Paragraph 34(4)(c) clarifies that a person would be required to report a material change in circumstances where a person ceases to be exempt under Division 4 of Part 2 in relation to an activity the person undertakes on behalf of the foreign principal. For example, a person who previously claimed an exemption under Division 4 of Part 2 in relation to an activity undertaken on behalf of a foreign principal relating to humanitarian aid or assistance, would be required to report a material change in circumstances under subsection 34(1) if the person is no longer entitled to that exemption in relation to their registrable activities on behalf of a foreign principal.  

428.            Paragraph 34(4)(d) clarifies that a person would be required to report a material change in circumstances where consideration starts to be paid, or there is a change to consideration payable, to the registrant in relation to any registrable activities undertaken on behalf of a foreign principal. For example, a person would be required to report a material change in circumstances under subsection 34(1) if the payment for a registrant undertaking parliamentary lobbying activities on behalf of a foreign principal was doubled but the work remained the same.

429.            The circumstances listed in subsection 34(4) of the Act are not an exhaustive list of all of the circumstances in which a person could be required to report to the Secretary under section 34.  Section 15AD of the Acts Interpretation Act provides that, if an Act includes an example of the operation of the provision, the example is not exhaustive, and may extend the operation of a provision.  As such, the circumstances listed in subsection 34(4) are not intended to limit the possible matters that may amount to a material change in circumstances under the Act.

430.            Subsection 34(5) provides that the requirement to report material changes in circumstances does not apply if the information is included in a notice given in accordance with section 36 (reporting on registration review when voting period begins) or section 37 (reporting registrable activity during voting periods).  Subsection 34(5) applies even if the notice under section 34 should have been given before the notice under sections 36 or 37.

431.            Sections 36 and 37 impose additional reporting obligations during voting periods.  The purpose of subsection 34(5) is to allow reports provided under those sections that disclose something amounting to a material change in circumstances to be sufficient notification of a change for the purposes of section 34.  This ensures that a registrant does not need to report such a matter twice.  The provision of this information, even if it is provided after the notice should have been given under section 34, meets the transparency objectives of the scheme.

2.                    The Note to subsection 34(5) clarifies that a defendant bears an evidential burden in relation to the matters in the subsection.  This is relevant for the offence at subsection 58(1) (failing to fulfil reporting responsibility), allowing a person to show that they have fulfilled the reporting obligation at section 34 by reporting under sections 36 or 37.  Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). 

432.            It is appropriate for a defendant to bear an evidential burden for these matters as they will be best placed to know whether information has been reported under section 36 or 37 that would satisfy the requirements of section 34..

433.            The responsibility to report material changes in circumstances under section 34 relates to each separate registration a person may have in relation to each separate foreign principal with whom they have an arrangement or on whose behalf they undertake activities. 

434.            Something may be inaccurate or misleading in a material particular in one circumstance, but not another.  For example, something may be a significant change in consideration paid under a contract for one registrant operating as a small business, but not a significant change under another contract for a registrant operating as a multi-national business.  

435.            The requirement to report material changes in circumstances under section 34 seeks to balance the competing considerations of requiring registrants to provide current information under the scheme without imposing significant burdens on a registrant to comply with its provisions.  An alternative approach to requiring registrants to report material changes in circumstances would be to require all registrants to renew their registration on a more regular basis.  Reporting material changes in circumstances as per the requirements in section 34 is intended to impose a lesser burden upon all registrants, while still ensuring current and accurate information is provided in a timely manner, especially in the period between annual renewals of registration.  

Section 35 - Reporting donor activity in Australia for the purpose of political or governmental influence (other than in voting period)

436.            Subsection 35(1) provides that a registrant must report to the Secretary if he or she engages in registrable donor activity on behalf of a foreign principal and the total amount of money or things of value disbursed reaches the electoral donations threshold or a multiple of that threshold.

437.            Subsection 35(1) requires a person to give the Secretary a notice specifying the total value reached if:

·          a person is registered under the scheme in relation to a foreign principal

·          the person undertakes donor activity on behalf of the foreign principal

·          the donor activity is registrable in relation to the foreign principal within the meaning of section 21 (activity in Australia for the purpose of political or governmental influence), and

·          the total value of the money or things of value disbursed in the course of the donor activity:

o    reaches the electoral donations threshold, or

o    reaches a multiple of that threshold.

438.            Donor activity is defined in section 10 to provide that a person undertakes donor activity if the person disburses money or things of value, and neither the person disbursing, nor a recipient of the disbursement is required to disclose it under Division 4, 5 or 5A of Part XX of the Commonwealth Electoral Act. 

439.            Electoral donations threshold is defined in section 10 to mean $13,500.

440.            Paragraph 35(1)(d) is intended to be a cumulative threshold over multiple transactions, rather than a threshold per transaction.  Registrants will be required to report every time that the electoral donations threshold is reached, or a multiple of that threshold, in relation to a particular foreign principal. 

441.            It is an offence under subsection 58(1) for a registrant not to give this notice to the Secretary.  It is also an offence under section 137.1 of the Criminal Code for a person to give false or misleading information in compliance with a law of the Commonwealth.  The Note to subsection 35(1) clarifies that these offences apply.

442.            Subsection 35(2) provides that the notice must be given to the Secretary before the end of the period of 14 days after the day the total value of the money or things of value disbursed reaches the electoral donations threshold, or a multiple thereof.  This is intended to facilitate the timely provision of information about donor activity to ensure transparency about donor activity undertaken on behalf of a foreign principal is up to date in the period between annual renewals.

443.            Subsection 35(3) provides that the notice given under subsection 35(1) must be:

·          in writing

·          in an approved form (if any)

·          given in an approved manner (if any), and

·          be accompanied by any information or documents required by the Secretary. 

444.            Approved form and approved manner are defined at section 66 to mean the form and manner that has been approved in writing by the Secretary for the purposes of the Act.

445.            Subsection 35(4) provides that this section does not apply if the electoral donations threshold, or a multiple of that threshold, is reached on a day in a voting period for a federal election or a designated vote.  The effect of subsection 35(4) and section 37 is that different reporting obligations are imposed on registrants in respect of donor activities depending upon when the donor activity is undertaken.  If the donor activity occurs on a day in a voting period for a federal election or a designated vote, section 37 requires the registrant to report more regularly than at any other time.  As such, if the electoral donations threshold or a multiple of that threshold is reached during this time, it must be reported to the Secretary within seven days under subsection 37(4).

446.            The Note to subsection 35(4) clarifies that section 37 applies in these circumstances.

Section 36 - Reporting on registration review when voting period begins

447.            Section 36 requires a registrant to review their registration under the scheme, confirm the accuracy of the information provided under that registration, and provide updated information if needed, when a voting period begins.  This is necessary because voting periods are periods of heightened political activity, when activities intended to influence political and governmental processes are particularly required to be transparent so that members of the Australian community can make informed decisions about their vote.

448.            Subsection 36(1) provides that, if a voting period begins for a federal election (other than a by-election) or for a designated vote, a person who is registered under the scheme in relation to a foreign principal must:

·          review the information provided by the person to the Secretary in relation to the registration, and

·          give the Secretary a notice in relation to the information:

o    confirming that the registration is up to date, or

o    if the registration is not up to date, updating any information.

449.            A voting period is defined in section 10 to mean any of the following:

·          for a federal election—the period:

o    beginning the day of the issue of the writ for the election under the Commonwealth Electoral Act, and

o    ending at the time determined in accordance with the Commonwealth Electoral Act to be the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election

·          for a referendum—the period:

o    beginning on the day of the issue of the writ for the referendum under the Referendum Act, and

o    ending at the time determined in accordance with the Referendum Act to be the latest time on the voting day for the referendum at which an elector in Australia could enter a polling booth for the purpose of voting at the referendum

·          for a vote, survey or process prescribed by the rules for the purposes of paragraph (b) of the definition of designated vote —the period prescribed by the rules.

450.            A federal election means a House of Representatives election or a Senate election within the meaning of the Commonwealth Electoral Act.  A designated vote means a referendum, and a vote, survey, or other process for the expression of opinion, of the kind prescribed by the rules for the purposes of the definition.

451.            Section 36 does not apply if the voting period is in relation to a by-election as defined in the Act.

452.            It is an offence under subsection 58(1) for a registrant not to give this notice to the Secretary.  It is also an offence under section 137.1 of the Criminal Code for a person to give false or misleading information in compliance with a law of the Commonwealth.  The Note to subsection 36(1) clarifies that these offences apply.

453.            Subsection 36(2) provides that the notice must be given to the Secretary before the end of the period of 14 days after the voting period begins.  This is intended to facilitate the timely provision of scheme information relating to registrants and registrable activities, and seeks to ensure the activities of those acting on behalf of foreign principals in the period prior to the commencement of a voting period is transparent and accessible to the public.

454.            Subsection 36(3) provides that the notice given under subsection 36(1) must be:

·          in writing

·          in an approved form (if any)

·          given in an approved manner (if any), and

·          be accompanied by any information or documents required by the Secretary. 

455.            Approved form and approved manner are defined at section 66 to mean the form and manner that has been approved in writing by the Secretary for the purposes of the Act.

456.            Subsection 36(4) provides that subsection 36(1) does not apply if the person applied for registration or renewed their registration within the 14 days before the voting period began.  This subsection excludes persons who have registered or renewed their registration within the preceding 14 days from being required to do so again when a voting period commences, as the information provided by those registrants is sufficiently accurate and current.  Requiring a registrant to provide further information within 14 days of updating their details or activities undertaken would be unlikely to result in a transparency gain and could be considered an unnecessary impost on registrants.  To the extent that the scheme information previously provided is incorrect or needs to be updated, reporting requirements under section 34 relating to material changes would continue to apply and provide the necessary transparency during the voting period.

Section 37 - Reporting registrable activity during voting periods

457.            Section 37 requires a registrant to notify the Secretary when certain registrable activities are undertaken on behalf of a foreign principal during a voting period for a federal election or a designated vote.  This is necessary because voting periods are periods of heightened political activity, when activities intended to influence political and governmental processes are particularly required to be transparent so that members of the Australian community can make informed decisions about their vote.

458.            Subsection 37(1) requires a person to give the Secretary a notice in relation to an activity if:

·          a person is registered under the scheme in relation to a foreign principal

·          the person undertakes an activity on behalf of the foreign principal at any time in the voting period for a federal election (other than a by-election) or for a designated vote

·          subsections 37(2) or (3) applies in relation to the activity, and

·          the activity relates to the federal election or the designated vote.

459.            A voting period is defined in section 10 to mean any of the following:

·          for a federal election—the period:

o    beginning the day of the issue of the writ for the election under the Commonwealth Electoral Act, and

o    ending at the time determined in accordance with the Commonwealth Electoral Act to be the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election

·          for a referendum—the period:

o    beginning on the day of the issue of the writ for the referendum under the Referendum Act, and

o    ending at the time determined in accordance with the Referendum Act to be the latest time on the voting day for the referendum at which an elector in Australia could enter a polling booth for the purpose of voting at the referendum

·          for a vote, survey or process prescribed by the rules for the purposes of paragraph (b) of the definition of designated vote —the period prescribed by the rules.

460.            A federal election means a House of Representatives election or a Senate election within the meaning of the Commonwealth Electoral Act.  A designated vote means a referendum, and a vote, survey, or other process for the expression of opinion, of the kind prescribed by the rules for the purposes of the definition.

461.            The registrable activities to which section 37 applies are set out at subsections 37(2) and (3).  The effect of these subsections is that additional reporting obligations apply in relation to a person who undertakes activities on behalf of a foreign principal, within the meaning of section 21, at any time in the voting period for a federal election (other than a by-election) or for a designated vote and which relate to the particular federal election or designated vote.

462.            Subsection 37(2) applies in relation to the activity if it is registrable in relation to the foreign principal within the meaning of:

·          section 20 (parliamentary lobbying on behalf of a foreign government), or

·          section 21 (activities in Australia for the purpose of political or governmental influence) other than donor activity (which is separately dealt with under subsection 37(3)).  

463.            Subsection 37(3) applies in relation to donor activity if:

·          the donor activity is registrable in relation to the foreign principal within the meaning of section 21 (activities in Australia for the purpose of political or governmental influence), and

·          the total value of the money or things of value disbursed on behalf of a foreign principal reaches the electoral donations threshold  or a multiple of that threshold.  

464.            Donor activity is defined in section 10 to provide that a person undertakes donor activity if the person disburses money or things of value, and neither the person disbursing, nor a recipient of the disbursement is required to disclose it under Division 4, 5 or 5A of Part XX of the Commonwealth Electoral Act. 

465.            Electoral donations threshold is defined in section 10 to mean $13,500.

466.            It is an offence under subsection 58(1) for a registrant not to give this notice to the Secretary.  It is also an offence under section 137.1 of the Criminal Code for a person to give false or misleading information in compliance with a law of the Commonwealth.  The Note to subsection 36(1) clarifies that these offences apply.

467.            Subsection 37(4) provides that the notice must be given to the Secretary before the end of the period of seven days after:

·          if subsection 37(2) applies in relation to the activity - the day the person undertakes the activity, or

·          if subsection 37(3) applies in relation to the activity - the day the threshold or multiple is reached.

468.            If an activity takes place over a number of days in the voting period, the intention is for the seven day period to commence on the day when the activities commence.  This subsection seeks to ensure that registrable activities undertaken by those acting on behalf of foreign principals in a voting period are transparent and accessible to the public, and they are able to take this into account when assessing policy statements made by parties and candidates.

469.            Subsection 37(5) provides that the notice given under subsection 37(1) must be:

·          in writing

·          in an approved form (if any)

·          given in an approved manner (if any), and

·          be accompanied by any information or documents required by the Secretary. 

470.            Approved form and approved manner are defined at section 66 to mean the form and manner that has been approved in writing by the Secretary for the purposes of the Act.

Division 3—Other responsibilities

Section 38 - Disclosure in communications activity

471.            Section 38 requires a person who is registered in relation to communications activities on behalf of a foreign principal to make a disclosure about the foreign principal in accordance with the rules.

472.            This requirement is intended to provide transparency about the forms and sources of foreign influence in communications products, to assist the Australian Government and the public to assess communications products, their provenance and their content.

473.            Subsection 38(1) requires a person to make a disclosure about the foreign principal (in accordance with the rules) if:

·          a person is registered under the scheme in relation to a foreign principal

·          the person undertakes communications activity on behalf of the foreign principal, and

·          the communications activity is registrable in relation to the foreign principal within the meaning of section 21 (activity in Australia for the purpose of political or governmental influence).

474.            Examples of how the section 38 disclosure requirements may apply are as follows:

Example 1: The Australian Government has commenced discussions with the government of Country Y about a project that will increase economic ties between the two countries.  The Australian Government has not yet reached a final decision about whether it will join the project.  Country Y engages an Australian public relations firm to produce a television advertisement promoting the benefits of the project being led by Country Y.  In this example, the Australian public relations firm would be required to register under section 21, as it is undertaking a communications activity on behalf of a foreign principal in Australia for the purpose of political or governmental influence.  The television advertisement produced by the public relations firm would need to make a disclosure about the foreign principal in accordance with rules made under paragraph 38.

Example 2: Person A is a prominent spokesperson in the Australian technology sector.  Person A enters into an agreement with foreign business X, a global software company which is seeking to influence Australian Government policy on cloud storage of data.  Foreign business X asks Person A to write a book that promotes its views on such policies.  In this example, there is a public interest in knowing that the book has been written and published in accordance with an agreement with foreign business X to advocate for the company’s views.

475.            The Note in subsection 38(1) clarifies that it is an offence under subsection 58(2) for a registrant not to make the disclosure in communications activities required in this paragraph. 

476.            Subsection 38(2) provides that the rules for the scheme, that may be made under section 71, may prescribe:

·          instances of communications activity

·          when and how disclosures are to be made in relation to instances of communications activity

·          the content, form and manner of disclosures, and

·          circumstances in which a person is exempt from making a disclosure in relation to communications activity.

477.            For example, rules made for the purposes of section 38 may require that any written communications materials that are registrable under the scheme contain a written disclosure in a certain size font that identifies the foreign principal and the arrangement under which the communications materials were developed. 

478.            The exemption for ‘news media’ at section 28 may apply in particular circumstances to exempt a person from the requirement to register under the scheme and therefore make a disclosure in communications activities under section 38.  The exemption at section 28 provides that a person is exempt in relation to an activity that a person undertakes on behalf of a foreign business or foreign individual where that activity is undertaken solely for the purposes of reporting news, presenting current affairs or expressing editorial content in news media.

Section 39 - Annual renewal of registration

479.            Section 39 provides that by the end of the renewal period for a person’s registration in relation to a foreign principal, a person must either:

·          renew their registration if they remain liable to register in relation to the foreign principal, or

·          give the Secretary a notice under section 31 if they are no longer liable to register.

480.            The terms ‘liable to register’ and ‘no longer liable to register’ are given their meaning in section 18 and 19 respectively.    Under section 18 a person is ‘liable to register’ from the date that they become liable to register, until they date that they cease to be liable to register. A person will become liable to register from the time that they undertake a registrable activity on behalf of a foreign principal, or enter in to a registrable arrangement with a foreign principal. Under section 19 a person will cease to be liable to register if they give the Secretary a notice under section 31specifying a day on which registration is to end, and on that day, no registrable arrangement exists between the person and the foreign principal.

481.            If a person continues to undertake activities on behalf of a foreign principal, or has a registrable arrangement with a foreign principal, at the time of renewal of registration, then a person must renew their registration under section 39. 

482.            Note 1 to subsection 39(1) clarifies that it is an offence under section 57 for a registrant not to renew their registration if they are liable to do so. 

483.            Note 2 in subsection 39(2) states that charges may be imposed in relation to renewals.  Section 63 provides that a person is liable to pay a charge if they apply to renew their registration under this paragraph, in accordance with the Foreign Influence Transparency Scheme (Charges Imposition) Act 2017 .

484.            Subsection 39(2) provides that the notice given under subsection 39(1) must be:

·          in writing

·          in an approved form (if any)

·          given in an approved manner (if any), and

·          be accompanied by any information or documents required by the Secretary. 

485.            Approved form and approved manner are defined at section 66 to mean the form and manner that has been approved in writing by the Secretary for the purposes of the Act.

486.            Subsection 39(3) sets out the renewal period for a person’s registration in relation to a foreign principal.  Under subsection 39(3), the renewal period is:

·          the month beginning on either:

o    the anniversary of the day the person applied (or most recently applied) under section 16 for registration in relation to the foreign principal, or

o    if another day is specified under paragraph 39(4)(a), that other day, or

·          if an extended period is specified under paragraph 39(4)(b), that extended period.

487.            Subparagraph 39(3)(a)(i) defines the term renewal period as the month beginning 12 months after a person has applied for registration under section 16.  For example, a person who registers on 12 November 2018 would have until 11 December 2019 to renew their registration.  

488.            The renewal period is calculated from the date of initial registration, and not the date of renewal.  An example of this is as follows:

Person A registers under the scheme on 2 January 2019. 

As at 2 January 2020, Person A continues to undertake activities on behalf of a foreign principal in accordance with the requirements set out in Division 3 of Part 2 of the Act.  Person A has until 1 February 2020 to renew their registration, and does so on 10 January 2020. 

As at 2 January 2021, Person A continues to undertake activities on behalf of the foreign principal.  Person A has until 1 February 2021 to renew their registration, but fails to do so until 5 June 2021.

As at 21 January 2022, Person A continues to undertake activities on behalf of the foreign principal.  Despite renewing their registration in June 2021, Person A has until 1 February 2022 to renew their registration.     

489.            Subsection 34(4) provides that, on request, the Secretary may, in writing,

·          if satisfied it is appropriate to align renewal periods for registrations of a person registered in relation to more than one foreign principal - specify a day for the registration for the purposes of subparagraph 39(3)(a)(ii), or

·          if satisfied that exceptional circumstances exist - specify an extended period for the registration, for a specified year, for the purposes of paragraph 39(3)(b).

490.            This provides flexibility for the Secretary to amend renewal periods in limited circumstances.  The Secretary may only do so upon request from a registrant in writing.  An example of this is as follows:

Example 1: Person A registers under the scheme in relation to activities undertaken on behalf of foreign principal X on 2 January 2019.  Person A makes further registrations on 5 June 2019 in relation to activities undertaken on behalf of foreign principal Y and on 30 August 2019 in relation to activities undertaken on behalf of foreign principal Z. 

If the renewal period was calculated in accordance with subparagraph 39(3)(1)(i), Person A would be required to renew their registrations by 1 February 2019 in relation to foreign principal X, by 4 July 2019 in relation to foreign principal Y and by 29 September 2019 in relation to foreign principal Z.  

On application from Person A, the Secretary may determine that the renewal period for all registrations shall be considered to be 2 June 2019.  Therefore, Person A must renew their registrations in relation to all foreign principals on those behalf they are undertaking activities by 1 July each year.

Example 2:   Person A registers under the scheme on 3 March 2023 and has a renewal day of 2 April 2024.  Person A is seriously ill and applies to the Secretary in writing to extend the renewal period.  If satisfied that exceptional circumstances exist, the Secretary could decide that Person A’s renewal period be extended until 3 October 2024.  However, Person A’s renewal in 2025 would continue to be due on 2 April 2025.   

491.            Subsection 39(5) provides that an instrument made by the Secretary under subsection 39(4) is not a legislative instrument.  This provision is intended to clarify that the instruments made are not legislative in nature, as they are specific to the circumstances of the individual registrant and their annual renewal and as such do not fall within the meaning of a legislative instrument under the Legislation Act. 

Section 40 - Keeping records

492.              Subsection 40(1) requires persons who are registered under the scheme in relation to a foreign principal to maintain appropriate records.  Requiring registrants to maintain records supports the transparency objectives of the scheme by ensuring that current and accurate information is maintained in relation to arrangements or activities undertaken on behalf of foreign principals. 

493.            Subsection 40(1) requires a person who is registered under the scheme in relation to a foreign principal to keep records of the matters listed in subsection 40(2):

·          while registered under the scheme in relation to the foreign principal, and

·          until the end of five years after the registration ends.

494.            The requirement to maintain records for a period of five years following the end of registration is intended to ensure that any investigations or prosecutions under the scheme are not undermined.  Activities undertaken on behalf of a foreign principal within the last five years may also continue to have implications for decision-making and public policy in Australia. It is important that such records are not destroyed, and there is an ability for the Secretary or law enforcement to be able to request or obtain access to this information.  

495.            Subsection 40(2) sets out an exhaustive list of the matters in relation to which records must be kept. These are:

·          any registrable activities that a person undertakes on behalf of a foreign principal

·          any benefits provided to the registrant by the foreign principal

·          information or material forming part of any communications activity that is registrable in relation to the foreign principal

·          any registrable arrangement between the person and the foreign principal, and

·          any other information or material communicated or distributed in Australia on behalf of the foreign principal.

496.            Certain conduct in relation to records is an offence under subsection 58(3) and section 61.  The Note to subsection 40(1) clarifies that these offences apply.

497.            Paragraph 40(2)(a) requires the person to keep records of the registrable activities undertaken on behalf of the foreign principal.  Registrable activities will be those activities that the person undertakes on behalf of the foreign principal that fall within:

·          section 20 (lobbying on behalf of foreign government)

·          section 21 (activities in Australia for the purpose of political or governmental influence)

·          section 22 (recent Cabinet Ministers), and

·          section 23 (recent Ministers, members of Parliament and other holders of senior Commonwealth positions.

498.            Paragraph 40(2)(b) requires the person to keep records of the benefits provided to the person by the foreign principal.  Consistent with the definition in section 10, benefit includes any advantage and is not limited to property.

499.            Paragraph 40(2)(c) requires the person to keep records of information or material forming part of any communications activity that is registrable in relation to the foreign principal.  Consistent with section 13, a person undertakes communications activity if the person communicates or distributes information or material.  Such activities may be registrable under section 21 (activities in Australia for the purpose of political or governmental influence).

500.            Paragraph 40(2)(d) requires the person to keep records of any registrable arrangement between the person and the foreign principal.  Consistent with the definition in section 10, a registrable arrangement means an arrangement between a person and a foreign principal for the person to undertake an activity that, if undertaken by the person, would be registrable in relation to the foreign principal.

501.            Paragraph 40(2)(e) requires the person to keep records of other information or material communicated or distributed in Australia on behalf of the foreign principal.  This requirement (as well as the requirement in paragraph 40(2)(c)) ensures that copies of any information or materials distributed on behalf of a foreign principal are kept.  This will support the monitoring of compliance with the scheme, including the requirement at section 38 of the Act to make disclosures in communications activity.

Part 4—Obtaining and handling scheme information

Division 1—Simplified outline of this Part

Section 41 - Simplified Outline of this Part

502.            This section provides a simplified outline of Part 4, which sets out provisions for how scheme information is obtained and handled.  This includes provisions in relation to keeping a register of information that is obtained under the scheme; providing the Secretary with the power to obtain information from any person believed to have information relevant to the scheme; making certain scheme information publicly available; and protecting and handling information.

503.            Simplified outlines are included to assist readers to understand the substantive provisions.  However, the outlines are not intended to be comprehensive and it is intended that the readers should rely on the substantive provisions. 

Division 2—Register of scheme information

Section 42 - Secretary must keep a register

504.            This section requires the Secretary to keep a register of information in relation to the scheme.  The register is intended to hold information collected under the scheme in relation to a person’s registration, as well as any information or documents that the scheme has obtained by way of a formal request for information by the Secretary to a person under sections 45 and 46, information that is prescribed by the rules for the purposes of paragraph 43(1)(c) and any other information or documents that the Secretary considers appropriate.

505.            Subsection 42(1) formally requires the Secretary to keep a register of information in relation to the scheme.

506.            Subsection 42(2) specifies the types of information and documents that must be included on the register for each person who is registered in relation to a foreign principal.  These are:

·          the name of the person and the foreign principal

·          the application for registration and any accompanying information or documents

·          any notices given by the person in accordance with Division 2 of Part 3 of the Act as well as any accompanying information on documents

·          any renewal of the registration that the person has made, as well as any accompanying information or documents

·          a record of any other communications between the person and the Secretary

·          any information prescribed by the rules for the purposes of paragraph 43(1)(c) (prescribing circumstances in which the Secretary must make information publicly available) in relation to registrants and is not mentioned anywhere else in subsection 42(2), and

·          any other information that the Secretary considers appropriate.

507.            The types of information and documents specified in subsection 42(2) are intended to capture the information and documentation essential to achieving the transparency objectives of the scheme and to ensure it is an accurate and comprehensive record.

508.            Paragraphs 42(2)(a) and (b) are self-explanatory and require the name of the person, the name of the foreign principal, the application for registration and any accompanying information or documents to be included on the register.

509.            Paragraph 42(2)(c) will ensure that any reporting the person has made to the scheme under Division 2 of Part 3 of the Act will be included on the register.  Division 2 of Part 3 specifies a number of reporting obligations on the registrant, including:

·          reporting any material change in circumstances (section 34)

·          reporting any donor activity in Australia that is done for the purpose of political or governmental  influence (other than in a voting period) (section 35)

·          reporting on registration details when a voting period begins (section 36), and

·          reporting any registrable activity that is undertaken during voting periods (section 37).

510.            Paragraph 42(2)(d) covers any information that is provided when a person renews registration with the scheme.  Section 39 requires a registrant to renew their registration annually if they continue to undertake registrable activities on behalf of, or have a registrable arrangement with, a foreign principal.  This information, and any documentation attached to the renewal required under section 39, would be included on the register. 

511.            Paragraph 42(2)(e) covers any record of other communications between the person and the Secretary.  This may include, for example, any correspondence or communication the person has had with the Secretary relating to their registration under the scheme, or email correspondence between a registrant and a scheme official about their registration.  This information would be included on the register.  

512.            Paragraph 42(2)(f) covers any information prescribed by the rules for the purpose of paragraph 43(1)(c) in relation to registrants and not mentioned by any other paragraph in this subsection.  Paragraph 43(1)(c) provides that rules can be made for the purposes of the Act prescribing information that must be made publicly available in relation to each person registered in relation to a foreign principal.  This paragraph provides flexibility for the register to include matters that were not envisaged at the time the scheme was developed. 

513.            Paragraph 42(2)(g) covers any other information or documents the Secretary considers appropriate to be included in the register.  It is intended that this paragraph will apply to information or documents that relate to a person’s registration that is not otherwise covered in subsection 42(2), but which the Secretary considers relevant to the scheme and appropriate to include in the register.

514.            Paragraph 42(3)(a) provides that the Secretary must also include on the register any notices given by the Secretary to a person other than a registrant under section 45 (notice requiring information to satisfy Secretary whether person is liable to register under the scheme) or section 46 (notice requiring information relevant to scheme) and any responses received.  This paragraph ensures that the register comprehensively covers circumstances in which a person other than a registrant has been requested to provide further information to the Secretary.  In relation to requests made under sections 45 and 46, both the Secretary’s request and the person’s response is required to be included on the register. 

515.            Paragraph 42(3)(b) requires any information that is prescribed by the rules for the purposes of paragraph 43(1)(c), other than in relation to registrants and which is not otherwise mentioned in any requirement in subsection 42(3) to be included on the register.  Paragraph 43(1)(c) provides that rules can be made for the purposes of the Act prescribing information that must be made publicly available in relation to each person registered in relation to a foreign principal.  For example, if the rules made under this paragraph prescribe that details of all payments made by a foreign principal to a registrant must be made publicly available, then this information must also be included on the register.

516.            Paragraph 42(3)(c) requires any other information or documents that the Secretary considers appropriate to be included on the register.  It is intended that this paragraph will apply to information or documents the do not relate to a person who is registered under the scheme but are relevant to the scheme’s management and administration to be kept on the register if the Secretary considers it appropriate.  An example of such information is as follows:

Person A person emails the Secretary to provide information about Person B, who Person A suspects is undertaking registrable activities on behalf of foreign principal X.  If, upon investigation, scheme officials conclude that Person B may be required to register under the scheme, and Person B does so and information is made available on the register relating to Person B’s application, the Secretary may consider it appropriate to also include the email from Person A on the register, subject to privacy considerations.

Section 43 - Certain information to be made publicly available

517.            Subsection 43(1) provides that the Secretary must make certain information publicly available in relation to each person registered in relation to a foreign principal.  This information must be made available on a website and will include:

·          the name of the person and the foreign principal

·          a description of the kind of registrable activities the person undertakes on behalf of the foreign principal, and

·          any other information prescribed by the rules for the purposes of this paragraph.

518.            To achieve the transparency objective of the scheme, it is essential that information be made publicly available.  This ensures members of the Australian Parliament, decision-makers in political and governmental processes and the Australian public have visibility of the forms and sources of foreign influence in Australia.  Access to such information will better position both the government and the public to understand and assess the actions of those registered under the scheme.

519.            Paragraphs 43(1)(a) and (b) require that the name of the registrant and the name of the foreign principal on those behalf they are undertaking activities in Australia to be publicly available, as well as a description of the registrable activities that person undertakes on behalf of the foreign principal.  This will enable a person to identify whether a particular individual is undertaking activities on behalf of a foreign principal.  For example, a Minister may access the website to determine if Person B, a lobbyist requesting a meeting to discuss an imminent policy decision required of the Minister, to determine if Person B is acting on behalf of a foreign principal in undertaking the lobbying activities.    

520.            Paragraph 43(1)(c) specifies that any other information must be made publicly available if prescribed by the rules.  Section 71 of the Act allows the Minister to make rules prescribing certain matters required or permitted by the Act to be prescribed in rules.  As an example, rules could be made for the purposes of paragraph 43(1)(c) requiring that information collected under the scheme relating to the dates on which a person acting on behalf of a foreign government engaged in parliamentary lobbying under section 20 is made publicly available on the website.

521.            Subsection 43(2) allows the Secretary to exclude particular information that otherwise would be required to be made publicly available under subsection 43(1).  To do so, the Secretary must be satisfied that the information is either commercially sensitive, affects national security, or is of a kind prescribed by rules made for the purposes of this subsection.  This subsection recognises that some of the information collected by the scheme may not be appropriate to make public or publication would have a detrimental impact, despite falling within subsection 43(1).

522.            The term ‘commercially sensitive information’ is not defined and will be given its ordinary meaning.  It is intended to cover information such as details that are contained in commercial contracts, where if that detail was revealed it would cause detriment to the parties, or would expose sensitive information relating to a company’s operations, expenditure or employees. 

523.            The term ‘national security’ is not defined and could include matters relating to the protection of Australia and its people from threats and harm, including in relation to espionage, foreign interference, terrorism and political violence.  It may also include matters relation to the defence and protection of the integrity of Australia’s borders as well as information relating to the activities of security intelligence and law enforcement agencies.   

524.            Paragraph 43(2)(c) provides that that the Secretary may decide not to make publicly available any other information prescribed by the rules for the purposes of this subsection.  Section 71 of the Act allows the Minister to make rules prescribing certain matters required or permitted by the Act to be prescribed in rules. 

525.            The Note to paragraph 43(2) clarifies that a registrant who considers information is commercially sensitive information can specify this when giving the information.

526.            Subsection 43(3) allows the rules to prescribe circumstances in which the Secretary is to remove publicly available information from the website.  Section 71 of the Act allows the Minister to make rules prescribing certain matters required or permitted by the Act to be prescribed in rules. 

Section 44 - Secretary may correct or update information in the register

527.            Section 44 enables the Secretary to correct or update information in the register. 

528.            For example, a person’s registration must include the name of the foreign principal for whom the person is undertaking registrable activities.  If there is a mistake recording or uploading this information on the scheme’s register, the Secretary is able to ensure that this mistake is corrected under section 44. 

Division 3—Secretary’s powers to obtain information and documents

529.            Division 3 of Part 4 outlines the Secretary’s powers to obtain information and documents under the scheme.  While there are a number of obligations under the scheme for registrants in relation to providing information, there will sometimes be circumstances where the Secretary will require information from a person to make a decision about whether or not a person should register under the scheme or other information relevant to the operation of the scheme. The sections in this Division are intended to empower the Secretary to request such information as is necessary to further the transparency objective of the scheme and ensure its proper administration and functioning.   

Section 45 - Notice requiring information to satisfy Secretary whether person is liable to register under the scheme

530.            Section 45 enables the Secretary to obtain information to satisfy the Secretary as to whether a person is liable to register under the scheme.

531.            Subsection 45(1) provides that the section applies if:

·          the Secretary reasonably suspects that a person might be liable to register under the scheme in relation to a foreign principal, and

·          the person is not registered under the scheme in relation to that foreign principal. 

532.            The term ‘reasonably suspects’ is not defined.  A reasonable suspicion falls short of knowledge or belief and is a subjective state of mind.  For the suspicion to be reasonable, it will have to have a rational basis.  For example, an anonymous tip off from a member of the public that a person is undertaking activities on behalf of a foreign principal, absent any additional corroborating information, may not meet the threshold of reasonable suspicion  under section 45.  However, if the person has travelled to a particular country, media reports indicate that the person is lobbying the Australian Government and that the person’s positions strongly align with stated policies of the relevant country then this may found a reasonable suspicion for the purpose of section 45.

533.            Subsection 45(2) specifies that the Secretary may, by notice in writing given to the person, require the person, within a period and in the manner and form specified in the notice:

·          give the Secretary any information that may satisfy the Secretary as to whether the person is liable to register in relation to the foreign principal

·          produce to the Secretary any documents that may satisfy the Secretary as to whether the person is liable to register in relation to the foreign principal, or

·          to make copies of any such documents and produce those copies to the Secretary.

534.            It is an offence under section 59 not to comply with a notice given under subsection 45(2).  The Note to subsection 45(2) clarifies that this offence applies.

535.            The term liable to register is defined in section 18.

536.            Subsection 45(3) provides that the period of time specified in the notice must be a period of at least 14 days after the notice is given.  This seeks to afford the person who has received the notice a reasonable amount of time in which to obtain the information or documents and provide them to the Secretary. 

537.            Subsection 45(4) allows the Secretary to, on request by the person to whom a notice is issued under section 45, extend the period by written notice given to the person This seeks to ensure flexibility in the operation of section 45 and is intended to apply to circumstances in which the person issued with the notice faces significant or exceptional difficulties in providing the information of documents requested within the 14 day period, or has good reasons for not being able to comply within this time period.

538.            Subsection 45(5) provides that before the Secretary issues a notice under subsection 45(2), he or she must have regard to the costs that would be likely be incurred by the person in taking steps to comply with the requirements of the notice.  This seeks to ensure that regard is given to the likely financial effect on the person of issuing a notice under subsection 45(2).  If the financial effect is likely to be significantly detrimental to the person, the notice could be scoped accordingly to minimise the burden on the person.  For example, if the Secretary is requesting all documents a person has in relation the foreign principal, which is likely to be a significant number, the Secretary may limit the types of documents requesting under the notice, so that the person does not expend significant amounts of money obtaining and copying the documents when they are not readily available.  

539.            Subsection 45(6) provides that subsection 45(5) does not limit the matters to which the Secretary may have regard to for the purposes of issuing a notice under section 45.  This ensures that the Secretary is not limited in the scope or type of information or documents that can be requested from a person.

540.            Subsection 45(7) provides that a notice given under section 45 must set out the effect of section 60 of this Act and sections 137.1 and 137.2 of the Criminal Code, which all establish offences relating to providing false and misleading information or documents.  This seeks to ensure that the person to whom the notice is issued is aware that they may be subject to a criminal offence if they provide any information or document in response to the notice which is false or misleading.   

541.            An example of the application of section 45 is as follows:

Person A is undertaking activities on behalf of Country X relating to an upcoming federal election which has not yet been called.  Person A is producing pamphlets that advocate for the views of Country X on a major election issue and has met with candidates to lobby on behalf of Country X.  Person A receives instructions from Country X in relation to these activities via email and text messages, and receives weekly payments to support these activities.  Person A has not registered under the scheme. 

If the Secretary reasonably suspects that Person A is liable to register in relation to the activities undertaken on behalf of Country X, the Secretary may issue a notice to Person A seeking information and documents relating to Person A’s activities undertaken on behalf of Country X. 

Section 46 - Notice requiring information relevant to scheme

542.            Section 46 provides that the Secretary may to issue a notice to a person requiring that person provide information or a document to the Secretary that is relevant to the operation of the scheme.  For the purposes of this section it does not matter whether the person is a registrant of the scheme or not, the Secretary may issue a notice to anyone, regardless of their status.   

543.            Section 46 has been included to enable the Secretary to obtain all relevant information and documents from any person in relation to the operation of the scheme.  This is appropriate, as there will be circumstances where person who is neither registered nor liable to register under the scheme has information or a document relevant to its operation.  The provision may also apply where the Secretary has requested information or a document from a person under section 45 and this has not yet been provided. 

544.            Subsection 46(1) provides that section 46 applies if the Secretary reasonably believes that the person has information or documents that are relevant to the operation of the scheme.  The term ‘reasonably believes’ is not defined but is a higher standard that the ‘reasonable suspicion’ that the Secretary must hold under subsection 45(1). The Secretary must believe that the person holds information or documents and this belief must be reasonable and have a rational basis.  It is appropriate for this higher standard to apply here because section 46 allows the Secretary to request information from any person, regardless of whether they have any connection to the foreign principal or a registrant. 

545.            Subsection 46(2) allows the Secretary to, by written notice, require that a person, within a period and in the manner and form specified in the notice:

·          give the Secretary any information relevant to the operation of the scheme

·          produce to the Secretary any documents relevant to the operation of the scheme, or

·          make copies of any such documents and produce those copies to the Secretary.

546.            It is an offence under section 59 not to comply with a notice given under subsection 46(2).  The Note to subsection 46(2) clarifies that this offence applies.

547.            Subsection 46(3) provides that the period of time specified in the notice must be a period of at least 14 days after the notice is given.  This seeks to afford the person who has received the notice a reasonable amount of time in which to obtain the information or documents and provide them to the Secretary. 

548.            Subsection 46(4) provides that the Secretary may, on request by the person to whom a notice is issued under section 46, extend the period by written notice given to the person. This seeks to ensure flexibility in the operation of section 46 and is intended to apply to circumstances in which the person issued with the notice faces significant or exceptional difficulties in providing the information of documents requested within the 14 day period, or has good reasons for not being able to meet this time period.

549.            Subsection 46(5) provides that before giving a notice under subsection 46(2), the Secretary must have regard to the costs that would likely be incurred by the person in taking steps to comply with the requirements of the notice.  This seeks to ensure that regard is given to the likely financial effect on the person of issuing a notice under section 46(2).  If the financial effect is likely to be significantly detrimental to the person, the notice could be scoped accordingly to minimise the burden on the person.  For example, if the Secretary is requesting all documents a person relevant to the operation of the scheme, which is likely to be a significant number, the Secretary may limit the types of documents requesting under the notice, so that the person does not expend significant amounts of money obtaining and copying the documents when they are not readily available.  

550.            Subsection 46(6) provides that subsection 46(5) does not limit the matters to which the Secretary may regard for the purposes of issuing a notice under section 46.  This ensures that the Secretary is not limited in the scope or type of information or documents that can be requested from a person.

551.            Subsection 46(7) provides that a notice given under section 46 must set out the effect of section 60 of this Act and sections 137.1 and 137.2 of the Criminal Code, which all establish offences relating to providing false and misleading information or documents.  This seeks to ensure that the person to whom the notice is issued is aware that they may be prosecuted for a criminal offence if they provide any information or document in response to the notice which is false or misleading.   

552.            An example of the application of section 46 is as follows:

Person A is registered under the scheme as she undertakes political lobbying activities on behalf of Country X.  The Secretary has issued a notice under section 46 to Person A, who is reasonably suspected of receiving significantly more funds from Country X to undertake activities beyond those previously declared.  Person A has not responded to the notice under section 46 within the specified timeframe. 

Person A has twenty accounts with a banking institution. Under section 46, the Secretary could also give a notice to the banking institution requesting details of Person A’s financial transactions in relation to Country X.  Given the number of accounts and the large volume of transactions which Person A has with the banking institution, it would be open to the institution to write to the Secretary requesting an extension of the period in which it is required to provide the information or documents to the Secretary.   

Section 47 - Self-incrimination

553.            Subsection 47(1) provides that a person is not excused from giving information or producing a document or a copy of a document under sections 45 or 46 on the ground that the information or the production of the document or copy might tend to incriminate the person or expose the person to a penalty.

554.            Subsection 47(2) provides that, in the case of an individual, any documents or copies provided, given, produced or obtained as a result of giving or producing information under sections 45 or 46 is not admissible in evidence against the individual in most criminal and civil proceedings.   

555.            The common law privilege against self-incrimination protects a natural person from complying with a requirement to disclose information or a document under a notice to produce or attend, unless the privilege is expressly or impliedly overridden.  This privilege is enshrined in common law in Australia, and provides that a person cannot be required to give information that would tend to incriminate him or herself.  However, the privilege against self-incrimination does not apply universally - there are three main circumstances in which it will not apply:

·          where it is alleged that a person has provided false or misleading information

·          where a person voluntarily provides information or documents, and

·          to bodies corporate.

556.            The privilege may also be overridden by legislation where there is clear justification for doing so.  However, where this is the case, it is usual to include legislative provisions which provide some degree of protection for the rights of individuals.  This is consistent with Commonwealth criminal law principles, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers

557.            Subsection 47(1) overrides the individual’s common law privilege against self-incrimination.  This is an appropriate measure, as a fundamental objective of the scheme is to provide transparency for the Australian Government, decision-makers and the public about the forms and sources of foreign influence in Australia, particularly in relation to activities undertaken for the purpose of influencing political and governmental systems and processes.  The scheme seeks to achieve this by collecting information on persons undertaking activities on behalf of foreign principals in Australia and making it available to government and the public, so that they are better able to understand and assess the actions of those registered under the scheme, the foreign principals whose interests they are representing and the types of influence being bought to bear on political and governmental processes. If such information cannot be obtained under the scheme, its effectiveness as a transparency mechanism will be severely compromised.

558.            As such, overriding the privilege against self-incrimination in subsection 47(1) is appropriate and supports the scheme’s objective of transparency.

559.            Subsection 47(2) establishes a use immunity and a derivative use immunity in relation to the person giving the information or producing a document or copy of a document under sections 45 and 46.  Use and derivative use immunity clauses establish protections within legislation where a person’s privilege against self-incrimination has been removed, as is the case here by virtue of subsection 47(1) by restricting the future uses of information provided.   

560.            A use immunity clause restricts any self-incriminating information or documents provided by a person from being used in subsequent proceedings against him or her.  However, the information or documents can be used to investigate unlawful conduct by that person and third parties. 

561.            A derivative use immunity clause restricts any self-incriminating information or documents provided by a person from being used to investigate unlawful conduct by him or her.  However the information or documents can be used to investigate third parties.

562.            Subsection 47(2) provides that information given or the document or copy produced, the giving or producing those items  and any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy, will not be admissible in evidence against the individual in criminal and civil proceedings, except for:

·          proceedings for an offence against section 60 of this Act, or

·          proceedings for an office against sections 137.1 or 137.2 of the Criminal Code - which establish offences relating to false and misleading information or documents - in relation to this Division.

563.            Section 60 establishes an offence for providing false or misleading information or a document to the Secretary under sections 45 and 46.  Section 137.1 of the Criminal Code provides that a person commits an offence if the person gives false or misleading information to another person which is a Commonwealth entity.  Section 137.2 of the Criminal Code provides that a person commits an offence if the person gives a false or misleading document to another in compliance or purported compliance with a law of the Commonwealth. 

564.            An example of how section 47 would apply is as follows:

Person A is directed to provide the Secretary copies of records relating to financial transactions between Person A and the foreign principal on whose behalf Person A undertakes activities.  The information provided also reveals evidence that Person A has been receiving payment from a third party for an unrelated activity which is illegal.  The effect of subsection 47(2) is that the information relating to this illegal activity cannot be used as evidence in criminal proceedings against Person A.

Section 48 - Copies of documents

565.            Section 48 provides that the Secretary may inspect a document or copy produced in compliance with a notice under sections 45 or 46, and is able to make a copy of or retain such a document. 

566.            Section 48 supports the effective and proper administration of the scheme, in circumstances where a person undertakes the technical act of producing a document to the scheme, in compliance with a notice issued by the Secretary. 

567.            Subsection 48(1) allows the Secretary to inspect and retain a document or copy, and make copies of documents that have been provided in compliance with a notice under sections 45 or 46. 

568.            The term inspect is not defined and will assume its ordinary meaning, which is to look carefully over or at, or to view or examine formally or officially.  It is intended to capture a circumstance where a document or copy of a document is provided to the scheme - the contents of the document or copy should be carefully and formally examined by the Secretary or a scheme official.

569.            The term copy is not defined and will assume its ordinary meaning, which is a reproduction or direct imitation of an original.  A true reproduction of an original document, such as a print out of an email or a photocopy of a paper document, would be a copy for the purposes of this section.

570.            The term produce is not defined and is ordinarily taken to mean to give, to bring forward or to bring into view.  It is intended to capture the act of giving or bringing forward a particular document in compliance with the Secretary’s notice.

571.            Subsection 49(2) provides that the Secretary may retain possession of a copy of a document produced in compliance with a notice given under sections 45 or 46. The term ‘retain possession’ is not defined and will assume its ordinary meaning, which is to keep or maintain ownership of something.

Section 49 - Retention of documents

572.            Subsection 49(1) provides that the Secretary may take, and retain for as long as is necessary, possession of a document produced in compliance with a notice under sections 45 or 46.  This enables the Secretary to keep any documents provided under sections 45 or 46 for as long as is necessary For example, the Secretary could consider it necessary to keep a document produced in response to a notice under section 45 about whether a person is liable to register while an investigation of whether the person is liable to register is conducted.  Subsection 49(1) ensures that the Secretary has access to and can rely on an original document, rather than one that may have been altered or is incomplete.

573.            Subsection 49(2) provides that the person who is otherwise entitled to possession of the document is entitled to be supplied with a copy certified by the Secretary to be a true copy.  This must be done as soon as practicable.  A certified copy of a document is a copy of the primary or original document that has on it an endorsement or certification that it is a true copy of the primary document.  This subsection is intended to ensure that a person who has provided a document in compliance a notice under sections 45 or 46 will not be disadvantaged in any way by having provided it to the Secretary, if that person needs to subsequently use the document.  An example of this is where a person provides a financial document to the Secretary in compliance with a notice under section 46.  This person subsequently needs the document to support an application for a loan - the person is entitled to be supplied with a certified copy of the financial document as soon as possible, if the Secretary has decided it necessary to retain the document. 

574.            Subsection 49(3) provides that a certified copy:

·          may be used by the Secretary, if the Secretary returns possession of the original document to the person otherwise entitled to possession of it, and

·          in any case - must be received in all courts and tribunals as evidence as if it were the original.

575.            Paragraph 49(3)(a) allows the Secretary to make a certified true copy of a document that is provided, if the Secretary returns the original document to the person who provided it. The Secretary may decide to do this if the person has an immediate or ongoing requirement to use the original document.  An example of this is where a person provide his or her passport to the Secretary in compliance with a notice under section 45.  This person subsequently needs to use the passport for overseas travel - the Secretary may make a certified copy of the person’s passport and return the original passport to the person.  

576.            Paragraph 49(3)(b) provides that, a certified copy must be received in all courts and tribunals as if it were the original.  An example of this is where a person provides original documents detailing his or her financial position to the Secretary in compliance with a notice issued under section 45. The person is provided with certified copies of the documents as the Secretary decides to retain possession of the originals.  That person subsequently files for bankruptcy, and is required to tender the original documents provided to the Secretary in court.  In this instance, the court is required to accept the certified copies as evidence in the bankruptcy proceedings. 

577.            Subsection 49(4) provides that until a certified copy is supplied to the person entitled to possess the document, the Secretary must permit that person, or a person authorised by the person, to inspect and make copies of the document.  Access to inspect and copy the document is required under subsection 49(1) at such times and places that are considered appropriate by the Secretary. 

Division 4—Disclosure and use of scheme information

578.            Division 4 of Part 4 outlines the circumstances in which scheme information may be used or disclosed.  The provisions in this Division provide a mechanism for protecting scheme information by specifying the purposes for which that information may be disclosed, and to which types of organisations and/or bodies.

Section 50 - Scheme information

579.            This section defines what information will be categorised as scheme information.

580.            Information becomes scheme information in two ways: 

·          under paragraph 50(a), information is scheme information if it is obtained by a scheme official in the course of performing functions or exercising powers under the scheme. 

·          under paragraph 50(b), information is scheme information if it was information to which subsection 50(a) applied and was obtained by a person by way of a disclosure authorised under Division 4. 

581.            Under subsection 51(1), the following people are scheme officials :

·          the Secretary

·          an APS employee in the Department to whom a function or power is delegated under section 67 or whose functions otherwise include functions in relation to the scheme, or

·          any other person who performs functions in relation to the scheme under an agreement with the Commonwealth.

582.            Paragraph 50(a) ensures that information obtained by a scheme official in the course of performing functions or exercising powers under the scheme is protected and can only be used or disclosed for particular, limited purposes.  This will include information that a person voluntarily provides to a scheme official as well as information obtained through the exercise of powers related to the scheme.

583.            Subsection 50(b) ensures that information obtained by a scheme official in the course of performing functions or exercising powers under the scheme that is obtained by another person by way of a disclosure authorised under Division 4 is also protected as scheme information . For example, where a person obtains information in the course of performing functions or exercising powers under the scheme (fulfilling the definition of scheme information in subsection 50(a)) and discloses that information to Person A in accordance with the authorised disclosure provisions in Division 4, Person A is now in receipt of scheme information and subject to the protections that attach to scheme information. 

Section 51 - Scheme officials

584.            Section 51 defines scheme officials.  A scheme official will be any one of the following:

·          the Secretary

·          an APS employee in the Department:

o    to whom a function or power of the scheme is delegated to under section 67, or

o    whose functions will otherwise include functions in relation to the scheme

·          any other person who performs functions in relation to the scheme under an arrangement with the Commonwealth.

585.            Section 10 defines Secretary as the Secretary of the Department.

586.            APS employee means a person who is engaged as an employee of the Australian Public Service in the Department with responsibility for the administration of the scheme under the Public Service Act 1999 .  Paragraph 51(1)(b) will apply to an APS employee who has been properly delegated a particular power or function under the scheme or where that APS employee’s functions would otherwise include functions in relation to the scheme. 

587.            Paragraph 51(1)(c) will cover any other person who performs functions in relation to the scheme under an arrangement with the Commonwealth.  This provision is intended to cover other categories of people who may undertake functions in relation to the scheme and would otherwise be a scheme official but for the fact they are not APS employees.  Paragraph 51(1)(c) would capture, for example, a person who performs functions under the scheme under a contract with the Department administering the scheme. 

588.            Subsection 51(2) provides that the Minister may sign a certificate stating that a specified person is, or was at a specified time, a scheme official (within the meaning of subsection 51(1)).

589.            Subsection 51(3) provides that, for the purposes of proceedings for an offence against this Act or Part 7.4 of the Criminal Code in relation to this Act (false or misleading statements), a certificate signed by the Minister under this section is prima facie evidence of the matters certified in it for the use of evidentiary certificates stating that a specified person is, or was at a specified time, a scheme official.  An evidentiary certificate under this subsection may be issued by the Minister responsible for administering the scheme. 

590.            Part 5.3 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides that evidentiary certificates should generally only be used to settle formal or technical matters of fact that would be difficult to prove by adducing admissible evidence.

591.            Whether or not a person is, or was at a specified time, a scheme official is a technical matter of fact.  The use of an evidentiary certificate is an efficient means to establish the fact that a person is, or was, a scheme official.  The evidentiary certificate is only prima facie evidence of the fact that the person was a scheme official at a particular time. The use of a prima facie evidentiary certificate will allow a defendant to adduce evidence to the contrary, that the person was not a scheme official, was not a scheme official at the particular time. Therefore, the use of a prima facie evidentiary certificate will not prevent a defendant from contesting the question of whether the person in question was a scheme official

592.            Under subsection 51(3), an evidentiary certificate can be used in proceedings for prosecuting an offence against this Act or Part 7.4 of the Criminal Code in relation to this Act (false or misleading statements) can only be used as prima facie evidence and not conclusive evidence of the matters certified in it.  

Section 52 - Authorisation—purposes of scheme

593.            This section provides an authorisation for a scheme official to disclose or use scheme information where the disclosure or use is for the purposes of performing functions or exercising powers under the scheme, or occurs otherwise in the course of performing the scheme official’s functions in relation to the scheme

594.            This provision is intended to ensure that scheme information can be disclosed or used for the effective running and administration of the scheme, and that a scheme official cannot be prosecuted for an offence merely for undertaking their official duties.

Section 53 - Authorisation—other purposes

595.            This section provides an authorisation for the Secretary to disclose scheme information for a range of specified purposes and to a person specified for that purpose in the table in that paragraph.  Authorisation under this paragraph is limited to the Secretary, providing a further protection for scheme information in that only the Secretary or a scheme official who has been delegated specific responsibility for disclosing information under this section is actually able to disclose the information.  This delegation power is found under section 67.  

596.            Item one of the table provides an authorisation for the Secretary to disclose scheme information for the purpose of an enforcement related activity of an enforcement body within the meaning of the Privacy Act 1988

597.            Section 6 of the Privacy Act defines enforcement body to mean the following:

·          the AFP

·          the Integrity Commissioner

·          the ACC

·          the Immigration Department

·          the Australian Prudential Regulation Authority

·          the Australian Securities and Investments Commission

·          the Office of the Director of Public Prosecutions, or a similar body established under a law of a State or Territory

·          another agency, to the extent that it is responsible for administering, or performing a function under, a law that imposes a penalty or sanction or a prescribed law

·          another agency, to the extent that it is responsible for administering a law relating to the protection of the public revenue

·          a police force or service of a State or a Territory

·          the New South Wales Crime Commission

·          the Independent Commission Against Corruption of New South Wales

·          the Law Enforcement Conduct Commission of New South Wales

·          the Independent Broad-based Anti-corruption Commission of Victoria

·          the Crime and Corruption Commission of Queensland

·          the Corruption and Crime Commission of Western Australia

·          the Independent Commissioner Against Corruption of South Australia

·          another prescribed authority or body that is established under a law of a State or Territory to conduct criminal investigations or inquiries

·          a State or Territory authority, to the extent that it is responsible for administering, or performing a function under, a law that imposes a penalty or sanction or a prescribed law, or

·          a State or Territory authority, to the extent that it is responsible for administering a law relating to the protection of the public revenue .

598.            An enforcement related activity is also defined in section 6 of the Privacy Act to mean:

·          the prevention, detection, investigation, prosecution or punishment of criminal offences, or breaches of a law imposing a penalty or sanction

·          the conduct of surveillance activities, intelligence gathering activities or monitoring activities

·          the conduct of protective or custodial activities

·          the enforcement of laws relating to the confiscation of the proceeds of crime

·          the protection of public revenue

·          the prevention, detection, investigation and remedying of misconduct of a serious nature, or other conduct prescribed by the regulations, or

·          the preparation for, or conduct of, proceedings before any court or tribunal, or the implementation of court/tribunal orders.

599.            This authorisation in item one enables enforcement agencies to use scheme information for investigations and prosecutions.

600.            Item two of the table provides an authorisation for the Secretary to disclose scheme information for the purpose of protecting public revenue.  The information may only be disclosed to a Department, agency or authority of the Commonwealth, a State or a Territory, or an Australian police force if one of those entities has functions in relation to the protection of public revenue.

601.            The term ‘public revenue’ is not defined and will be given its ordinary meaning.  It is intended that this term will cover the income of government that is raised through all sources. 

602.            This authorisation in item two enables those agencies who undertake duties relating to the protection of public revenue to use scheme information in their investigations and prosecutions.  The scope of item two has been kept narrow and will only apply where the disclosure is specifically for the protection of public revenue.  It is intended that where scheme information is requested for this purpose, the requesting agency will be required to justify how this information relates to the protection of public revenue.

603.            Item three of the table provides an authorisation for the Secretary to disclose scheme information for the purpose of the protection of security within the meaning of the Australian Security Intelligence Organisation Act 1979 .  The information may only be disclosed to a Department, agency or authority of the Commonwealth, a State or a Territory, or an Australian police force if one of those entities has functions in relation to the protection of security.

604.            Section 4 of the ASIO Act defines security as follows:

·          the protection of, and of the people of, the Commonwealth and the several States and Territories from:

o    espionage

o    sabotage

o    politically motivated violence

o    promotion of communal violence

o    attacks on Australia’s defence system, or

o    acts of foreign interference

whether directed from, or committed within, Australia or not

·          the protection of Australia’s territorial and border integrity from serious threats, and

·          the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (b).

605.            The authorisation in item three enables the agencies who undertake duties relating to the protection of security to use scheme information to contribute to, or enhance their operational capability.  In some circumstances, scheme information may assist these agencies with their ongoing or complex investigations.  For example, ASIO may be investigating a suspected act of foreign interference, where Country X has paid Person A to lobby the Australian Government on its climate change policy.  ASIO can make a request to the Secretary under section 53, requesting information collected under the scheme about Person A, whether they have registered under the scheme and details about his or her registration. 

606.            The scope of item three has been kept narrow and will only apply where the disclosure is specifically for the protection of security.  It is intended that where scheme information is requested for this purpose, the requesting agency will have to be specific about the information it is requesting and justify how this information relates to the protection of security as defined in the ASIO Act.

607.            Item four of the table provides an authorisation for the Secretary to disclose scheme information to a person prescribed by the rules and for a purpose prescribed by the rules.   Section 71 of the Act allows the Minister to make rules prescribing certain matters by way of legislative instrument.  Rules may only relate to matters that are required or permitted by the Act, or matters necessary or convenient to be prescribed for carrying out or giving effect to the Act. 

608.            It is possible that there may be additional purposes for which or persons to whom scheme information may need to be disclosed once the scheme is established, beyond those purposes already prescribed in section 53.  In these circumstances, the Minister may prescribe these additional purposes and/or persons in rules made under section 71.  It is intended that any additional purposes and/or persons prescribed in rules would be kept narrow and that any request for scheme information under item five would need to justify how the information relates to the purpose as prescribed in the rules.

Section 54 - Authorisation—secondary disclosure and use

609.            Section 54 provides that a person is authorised to communicate or otherwise deal with scheme information if:

·          the person obtains the information in his or her capacity as a person, or as an employee or official of a person, to whom information is communicated under this Division, and

·          the person communicates or otherwise deals with the information for the purposes for which the information was obtained by the person to whom it was disclosed.

610.            This provision is intended to ensure that a person who obtains scheme information by way of an authorised communication, is able to make a secondary disclosure or use the scheme information without breaching the protection of information provision in section 53.

611.            For this authorisation to apply the person must have obtained the scheme information by way of an authorised disclosure - that is, that the person must have received the information in an official capacity and the person must only disclose or use that information for the purpose for which the information was obtained.  For example, Person A is employed by the New South Wales Police Force and has been provided scheme information by the Secretary for the purposes of undertaking a law enforcement activity.  Person A then discloses that information to colleagues for the purpose of the law enforcement activity being undertaken by that agency.  The secondary disclosure made by Person A to Person B is authorised under section 54 as Person A has received the information for a law enforcement purpose and then communicated it to Person B for the same purpose.

Section 55 - Authorisation—information publicly available

612.            Section 55 provides that a person is authorised to communicate or otherwise deal with scheme information if the information has already been communicated or made available to the public with the authority of the Commonwealth, including under sections 43 or 69 of the Act.

613.            Section 43 outlines certain information that the Secretary must make available to the public in relation to each person registered under the scheme.  Section 69 provides that the Secretary must prepare an annual report to give to the Minister containing information on the operation of the scheme in relation to the financial year.

614.            By virtue of sections 43 and 69, certain scheme information has already been made public.  If a person discloses or uses such scheme information, it will not be an offence under section 55. 

Part 5—Enforcement

Section 56 - Simplified outline of this Part

615.            Section 56 sets out a simplified outline of this Part.  The section provides that it is a criminal offence for a person who is liable to register not to be registered under the scheme.  Section 56 also notes that criminal offences apply for: 

·          undertaking registrable activities while not being registered

·          failing to fulfil other responsibilities under the scheme, and

·          providing false or misleading information or destroying records in connection with the scheme.

616.            Simplified outlines are included to assist readers to understand the substantive provisions.  However, the outlines are not intended to be comprehensive and it is intended that the readers should rely on the substantive provisions. 

Section 57 - Failure to apply for or maintain registration

617.            Section 57 establishes a number of offences for failure to apply for or maintain registration.

Intentional omission to apply or renew and registrable activity undertaken

618.            Subsection 57(1) will make it an offence for a person to omit to apply for registration or renew their registration, with the knowledge that they are required to do so, and the person undertakes a registrable activity on behalf of a foreign principal.  

619.            The offence will be punishable by a maximum penalty of seven years imprisonment.

620.            An example of this offence is as follows.  Person A is engaged by a foreign government to lobby members of Parliament on Australian Government policy on foreign direct investment.  The Australian Government has publicly dismissed the foreign government’s views as uninformed and Person A wants to hide the connection to the foreign government so as to have a fresh opportunity to convince the Australian Government of the foreign government’s position.  Person A knows that they are required to register with the scheme on entering into an arrangement with the foreign government and prior to undertaking activities on behalf of the foreign government.  Despite knowing their registration obligations, Person A intentionally decides not to register with the scheme and undertakes the lobbying activities on behalf of the foreign government.

621.            To establish this offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          the person is:

o    required to apply for registration in relation to a foreign principal by the end of a period and the person knows this, or

o    required to renew their registration in relation to the foreign principal by the end of a period and the person knows this

·          the person intentionally omits to apply for registration or renew his or her registration

·          the person intentionally undertakes an activity on behalf of the foreign principal, and

·          the activity is registrable in relation to the foreign principal and the person is reckless as to this element.

622.            Paragraph 57(1)(a) specifies that a fault element of knowledge will apply.  Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or which will exist in the ordinary course of events.

623.            Intention is the fault element for paragraphs 57(1)(b) and (c).  Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

624.            Recklessness is the fault element for paragraph 57(1)(d).  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

625.            For paragraph 57(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant was required to:

·          apply to register under the scheme in relation to the foreign principal by the end of a period, or

·          renew his or her registration in relation to the foreign principal by the end of a period.   

626.            The prosecution will also have to prove that the person knew about the requirement applying to them in relation to registration or renewal of registration.

627.            The term person is defined at section 10 to mean any of the following:

·          an individual

·          a body corporate

·          a body politic

·          a partnership

·          an association (whether or not incorporated)

·          an organisation (whether or not incorporated)

·          any combination of individuals who together constitute a body

·          an entity or group prescribed by the rules

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law or not constituted under a law at all.

628.            The term  foreign principal is defined in section 10 to mean:

·          a foreign government

·          a foreign public enterprise

·          a foreign political organisation

·          a foreign business, or

·          an individual who is neither an Australian citizen nor a permanent Australian resident.

629.            The term scheme is also defined in section 10 to mean this Act, the rules prescribed under section 71, the Charges Imposition Act and the regulations made under that Act.  

630.            The terms apply for registration and end of a period are not defined and are intended to take their ordinary meanings.

·          Apply for registration is intended to include completing and submitting the required documentation in compliance with the scheme.

·          End of a period is intended to mean at the conclusion of a set amount of time during which a person is required to register or renew their registration.  For example, section 16 specifies that a person who becomes liable to register under the scheme, must apply for registration with 14 days. For section 16, the term ‘end of a period’ would refer to the conclusion of the 14 day period that a person has to apply to register with the scheme.

631.            For paragraph 57(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally omitted to apply for registration under the scheme or to renew the person’s registration.  

632.            For paragraph 57(1)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally undertook an activity on behalf of the foreign principal after the end of the period.   The term activity is not defined and is intended to refer to a thing that a person does or has done and could include an undertaking, pursuit, occupation, project or task.  It is intended to include both a single activity and plural ‘activities.’ 

633.            Section 12 provides that a person undertakes an activity on behalf of a foreign principal if person undertakes the activity:

·          under an arrangement with the foreign principal

·          in the service of the foreign principal

·          on the order or at the request of the foreign principal

·          under the control or direction (whether direct or indirect) of the foreign principal

·          with funding or supervision by the foreign principal, or

·          in collaboration with the foreign principal.

634.            For paragraph 57(1)(d) of the offence, the prosecution will have to prove beyond a reasonable doubt that the activity referred to in paragraph 57(1)(c) is registrable in relation to the foreign principal.  An activity is a registrable activity if it falls within Division 3 of Part 2 of the Act.  

635.            Recklessness is the fault element for this element of the offence.  Therefore, the person will have to have been aware of a substantial risk that the activity is registrable in relation to the foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

636.            The penalty for this offence is seven years imprisonment.  This is appropriate given the significant consequences that can flow from hidden foreign influence on Australia’s political and governmental processes and the high level of culpability of the offender.  The penalty is consistent with comparable offences that relate to conduct that negatively affects Australia’s political and governmental processes, including the offence at section 951 of the United States Code (agents of foreign governments) which attracts a maximum penalty of 10 years imprisonment.  The penalty recognises the serious implications that unchecked and unknown forms and sources of foreign influence can have on Australia’s democratic system of government.

Section 31 notice given knowing arrangement still exists and undertaking registrable activity

637.            Subsection 57(2) will make it an offence for a person to give the Secretary a notice under section 31 indicating they are no longer liable to register under the scheme, knowing that there is a registrable arrangement in existence between the person and a foreign principal, and the person undertakes a registrable activity on behalf of the foreign principal.

638.            The offence will be punishable by a maximum penalty of seven years imprisonment.

639.            An example of this offence is as follows.  Person B has registered under the scheme in relation to an arrangement with a foreign political organisation to lobby a range of stakeholders for the purpose of influencing government policy.  Person B’s registration is due to be renewed in seven days but the registrable arrangement is due to continue for the next two years.  Person B has been publicly criticised for acting on behalf of the foreign political organisation, which is publicly known due to the registration under the scheme.  Person B wants to be able to continue to undertake lobbying for the foreign political organisation without it being publicly known.  Person B submits a notice to the Secretary under section 31 that Person B has ceased to undertake activities on behalf of the foreign political organisation and  specifying that the registrable arrangement will cease in four days, before registration renewal is required.  Despite knowing their registration renewal obligations, Person B intentionally continues to engage in lobbying activity on behalf of the foreign political organisation.

640.            To establish this offence, prosecution will need to prove, beyond a reasonable doubt, that:

·          the person intentionally gave a notice under section 31 in relation to end of liability to register in relation to a foreign principal

·          at the time the person issued the notice a registrable arrangement exists between the person and the foreign principal and the person is reckless as to this

·          a registrable arrangement will still be in existence on the day specified in the notice under section 31 as the day the person’s registration is to cease and the person knows this 

·          the person intentionally undertakes an activity on behalf of the foreign principal, and

·          the activity is registrable in relation to the foreign principal and the person is reckless as to this element.

641.            Intention is the fault element for paragraphs 57(1)(a) and (d).  Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

642.            Recklessness is the fault element for paragraphs 57(2)(b) and (e).  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

643.            Paragraph57(2)(c) specifies that a fault element of knowledge will apply.  Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or which exist in the ordinary course of events.

644.            For paragraph 57(2)(a) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant gave the Secretary a notice under section 31 for the person’s registration under the scheme in relation to the foreign principal.  The prosecution will also have to prove that the person intended to issue the notice in relation to the end of registration.   

645.            The term person is defined at section 10 to mean any of the following:

·          an individual

·          a body corporate

·          a body politic

·          a partnership

·          an association (whether or not incorporated)

·          an organisation (whether or not incorporated)

·          any combination of individuals who together constitute a body

·          an entity or group prescribed by the rules

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law or not constituted under a law at all.

646.            The term Secretary is defined at section 10 to mean the Secretary of the Department.  This will be the Secretary of the Department that has responsibility for administering the scheme. 

647.            Section 31 provides that a registrant may give a notice to the Secretary that they have ceased to undertake activities on behalf of a foreign principal that are registrable in relation to the foreign principal, and that there is no registrable arrangement in existence between the person and that foreign principal.  The person must be satisfied of these matters before giving this notice to the Secretary.

648.            The term scheme is defined in section 10 to mean this Act, the rules prescribed under section 71, the Charges Imposition Act and the regulations made under that Act.    

649.            The term foreign principal is defined in section 10 to mean:

·          a foreign government

·          a foreign public enterprise

·          a foreign political organisation

·          a foreign business, or

·          an individual who is neither an Australian citizen nor a permanent Australian resident.

650.            A registrable arrangement is defined in section 10 to mean an arrangement between a person and a foreign principal for the person to undertake an activity that, if undertaken by the person, would be registrable in relation to the foreign principal.  Sections 20, 21, 22 and 23 set out the circumstances in which an activity is considered to be a registrable activity.

651.            For paragraph 57(2)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that, at the time the person gave the notice, a registrable arrangement existed between the person and the foreign principal.  Recklessness is the fault element for this offence.  Therefore, the person will need to have been aware of a substantial risk that the registrable arrangement existed and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.  

652.            For paragraph 57(2)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that, on the day specified in the notice given by the person as the day the person’s registration in relation to the foreign principal ceases, a registrable arrangement was still in existence.  The prosecution will also have to prove that the person knew that registrable arrangement being in place on that day specified in the notice.  

653.            For paragraph 57(2)(d) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally undertook an activity on behalf of the foreign principal after the day specified in the notice as the day the person’s registration is to cease.  The term activity is not defined and is intended to refer to a thing that a person does or has done and could include an undertaking, pursuit, occupation, project or task.  It is intended to include both a single activity and plural ‘activities.’ 

654.            Section 12 provides that a person undertakes an activity on behalf of a foreign principal if person undertakes the activity:

·          under an arrangement with the foreign principal

·          in the service of the foreign principal

·          on the order or at the request of the foreign principal

·          under the control or direction (whether direct or indirect) of the foreign principal

·          with funding or supervision by the foreign principal, or

·          in collaboration with the foreign principal.

655.            For paragraph 57(2)(e) of the offence, the prosecution will have to prove beyond a reasonable doubt that the activity referred to in paragraph 57(2)(d) is registrable in relation to the foreign principal.  An activity is a registrable activity if it falls within Division 3 of Part 2 of the Act. 

656.            Recklessness is the fault element for this element of the offence.  Therefore, the person will have to have been aware of a substantial risk that the activity is registrable in relation to the foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

657.            The penalty for this offence is seven years imprisonment.  This is appropriate given the significant consequences that can flow from hidden foreign influence on Australia’s political and governmental processes and the high level of culpability of the offender.  The penalty is consistent with comparable offences that relate to conduct that negatively affects Australia’s political and governmental processes, including the offence at section 951 of the United States Code (agents of foreign governments), which attracts a maximum penalty of 10 years imprisonment.  The penalty recognises the serious implications that unchecked and unknown forms and sources of foreign influence can have on Australia’s democratic system of government.

Reckless omission to apply or renew and registrable activity undertaken

658.            Subsection 57(3) will make it an offence for a person to omit to apply for registration or renew their registration, with the knowledge that they are required to do so, and the person undertakes a registrable activity on behalf of a foreign principal. 

659.            The offence will be punishable by a maximum penalty of five years imprisonment.

660.            An example of this offence is as follows.  On 20 January 2020, Person D enters into a registrable arrangement with a foreign public enterprise to lobby members of the Parliament on a Bill that is soon to be voted on.  Person D registers under the scheme on 5 February 2020 and undertakes activities on behalf of the foreign public enterprise.  Person D knows that they are required to renew their registration sometime towards the start of 2021 and that they will continue to undertake activities on behalf of the foreign public enterprise.  However, Person D does not check the date for registration renewal and fails to renew his or her registration by 4 March 2021 as is required under the scheme.  In the period after Person’s D registration has lapsed, Person D continues to lobby members of the Parliament on behalf of the foreign public enterprise.     

661.            To establish this offence, prosecution will need to prove, beyond a reasonable doubt, that:

·          the person is:

o    required to apply for registration under the scheme in relation to a foreign principal by the end of a period and the person knows this, or

o    required to renew their registration in relation to a foreign principal by the end of a period and the persons knows this

·          the person is reckless as to whether the person has omitted to apply for registration or renew his or her registration

·          the person intentionally undertakes an activity on behalf of the foreign principal

·          the activity is registrable in relation to the foreign principal and the person is reckless as to this element.

662.            Paragraph 57(3)(a) specifies that a fault element of knowledge will apply.  Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or that it will exist in the ordinary course of events.

663.            Recklessness is the fault for paragraphs 57(3)(b) and  (d).  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

664.            Intention is the fault element for paragraph 57(3)(c).  Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.   

665.            For paragraph 57(3)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant was required to:

·          apply to register under the scheme in relation to the foreign principal by the end of a period, or

·          renew the person’s registration in relation to the foreign principal by the end of a period.

666.            The prosecution will also have to prove that the person knew about the requirement applying to them in relation to registration or renewal of registration.

667.            The term person is defined at section 10 to mean any of the following:

·          an individual

·          a body corporate

·          a body politic

·          a partnership

·          an association (whether or not incorporated)

·          an organisation (whether or not incorporated)

·          any combination of individuals who together constitute a body

·          an entity or group prescribed by the rules

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law or not constituted under a law at all.

668.            The term foreign principal is defined in section 10 to mean:

·          a foreign government

·          a foreign public enterprise

·          a foreign political organisation

·          a foreign business, or

·          an individual who is neither an Australian citizen nor a permanent Australian resident.

669.            The term scheme is defined at section 10 to mean this Act, the rules, the Charges Imposition Act and the regulations made under that Act.

670.            The terms apply for registration and end of a period are not defined and are intended to take their ordinary meanings.

·          Apply for registration is intended to include completing and submitting the required documentation in compliance with the scheme.

·          End of a period is intended to mean at the conclusion of a set amount of time during which a person is required to register or renew their registration.  For example, section 17 specifies that a person who becomes liable to register under the scheme, must apply for registration with 14 days. For section 17, the term ‘end of a period’ would refer to the conclusion of the 14 day period that a person has to apply to register with the scheme.

671.            For paragraph 57(3)(b), the prosecution will have to prove beyond a reasonable doubt that the defendant was reckless as to whether he or she had:

·          applied for registration under the scheme in relation to the foreign principal by the end of a period, or

·          renewed registration in relation to the foreign principal by the end of a period.

672.            As recklessness is the fault element for this element, the person will have to be aware of a substantial risk that he or she has not applied for registration by the end of a period or renewed registration by the end of a period and, having regard to the circumstances known to him or her, it is unjustifiable to take this risk.

673.            For paragraph 57(3)(c), the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally undertook an activity on behalf of the foreign principal after the end of the period.  The term activity is not defined and is intended to refer to a thing that a person does or has done and could include an undertaking, pursuit, occupation, project or task.  It is intended to include both a single activity and plural ‘activities.’ 

674.            Section 12 provides that a person undertakes an activity on behalf of a foreign principal if person undertakes the activity:

·          under an arrangement with the foreign principal; or

·          in the service of the foreign principal; or

·          on the order or at the request of the foreign principal; or

·          under the control or direction (whether direct or indirect) of the foreign principal; or

·          with funding or supervision by the foreign principal; or

·          in collaboration with the foreign principal.

675.            For paragraph 57(3)(d) of the offence, the prosecution will have to prove beyond a reasonable doubt that the activity referred to in paragraph 57(3)(c) is registrable in relation to the foreign principal.  An activity is a registrable activity if it falls within Division 3 of Part 2 of the Act.  

676.            Recklessness is the fault element for this element of the offence.  Therefore, the person will have to have been aware of a substantial risk that the activity is registrable in relation to the foreign principal and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

677.            The penalty for this offence is five years imprisonment.  The penalty recognises the serious implications that unchecked and unknown forms and sources of foreign influence can have on Australia’s democratic system of government.  The penalty appropriately reflects the lower level of culpability required to establish this offence when compared to subsections 57(1) and (2). 

Intentional or reckless omission to apply or renew whether or not registrable activity undertaken

678.            Subsection 57(4) will make it an offence for a person to intentionally omit to, or be reckless as to whether he or she has omitted to, apply for registration or renew their registration.

679.            This offence will be punishable by a maximum penalty of 12 months imprisonment.

680.            An example of this offence is as follows.  Person D enters into an arrangement with Country X to make representations to members of the Parliament on behalf of Country X.  Upon entering into the arrangement, Person D knows that about the requirement to register with the scheme but does not want to pay the charges associated with registration.  Person D intentionally omits to register within the allowable registration period, specified at Division 2 of Part 2.  Person D has not undertaken any activities on behalf of the Country X.

681.            To establish this offence,  the prosecution will need to prove, beyond a reasonable doubt, that:

·          the person is:

o    required to apply for registration in relation to a foreign principal by the end of a period and the person knows this, or

o    required to renew his or her registration in relation to the foreign principal by the end of a period and the person knows this

·          either:

o    the person intentionally omits to apply for registration or renew their registration, or

o    the person is reckless to whether he or she has omitted to apply for registration or renew their registration.

682.            Paragraph 57(4)(a) specifies that the fault element of knowledge will apply.  Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or which will exist in the ordinary course of events.

683.            Paragraph 57(4)(b) specifies that both intention and recklessness can be the fault element.  Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

684.            Recklessness is the fault element for paragraph 57(4)(b) when the person is reckless as to whether they have omitted to apply for registration or renew their registration.  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

685.            For paragraph 57(4)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant was required to:

·          apply to register under the scheme in relation to the foreign principal by the end of a period, or

·          renew their registration in relation to the foreign principal by the end of a period.  

686.            The prosecution will also have to prove that the person knew about the requirement applying to them in relation to registration or renewal of registration.

687.            The term person is defined at section 10 to mean any of the following:

·          an individual

·          a body corporate

·          a body politic

·          a partnership

·          an association (whether or not incorporated)

·          an organisation (whether or not incorporated)

·          any combination of individuals who together constitute a body

·          an entity or group prescribed by the rules;

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law or not constituted under a law at all.

688.            The term foreign principal is defined in section 10 to mean:

·          a foreign government

·          a foreign public enterprise

·          a foreign political organisation

·          a foreign business

·          an individual who is neither an Australian citizen nor a permanent Australian resident.

689.            The term scheme is also defined in section 10 to mean this Act, the rules prescribed under section 71, the Charges Imposition Act and the regulations made under that Act.  

690.            The terms apply for registration and end of a period are not defined and are intended to take their ordinary meanings.

·          Apply for registration is intended to include completing and submitting the required documentation in compliance with the scheme.

·          End of a period is intended to mean at the conclusion of a set amount of time during which a person is required to register or renew their registration.  For example, section 17 specifies that a person who becomes liable to register under the scheme, must apply for registration with 14 days. For section 17, the term ‘end of a period’ would refer to the conclusion of the 14 day period that a person has to apply to register with the scheme.

691.            For paragraph 57(41)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant either:

·          intentionally omitted to apply for registration under the scheme or to renew the person’s registration, or

·          was reckless as to whether he or she omitted to apply for registration under the scheme or to renew the person’s registration  

692.            If recklessness is the applicable fault element, the person will have to be aware of a substantial risk that he or she has omitted to apply for registration or to renew his or her registration and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

693.            The penalty for this offence is 12 months imprisonment.  This is a significantly lower penalty than other offences in the Act, reflecting the person has not yet undertaken activities on behalf of the foreign principal. As such, the potential for the foreign influence to affect political or governmental processes is relatively low.  However, it is important to criminalise this type of behaviour, as it undermines the transparency objective of the scheme and also provide an incentive to register or renew registrations under the scheme.

Section 31 notice given knowing arrangement still exists whether or not registrable activity undertaken

694.            Subsection 57(5) will make it an offence for a person to give the Secretary a notice under section 31 indicating they are no longer liable to register under the scheme, with the knowledge that there is a registrable arrangement in existence between the person and a foreign principal.

695.            The offence will be punishable by a maximum penalty of 12 months imprisonment.

696.            An example of this offence is as follows.  Person E, a registrant under the scheme, notifies the Secretary in accordance with section 31 that their arrangement to provide parliamentary lobbying services to Country X has ceased.  Person E submits the notice, knowing that the cessation date included in the notice is incorrect and that the correct cessation date is actually one month later. Person E does not undertake registrable activities on behalf of Country X after the incorrect cessation date listed in the notice. 

697.            To establish this offence, prosecution will need to prove beyond a reasonable doubt, that:

·          the person intentionally gave the Secretary a notice under section 31 for the person’s registration under the scheme in relation to a foreign principal

·          at the time the person issued the notice a registrable arrangement exists between the person and the foreign principal and the person is reckless as to this

·          a registrable arrangement will still be in existence on the day specified in the notice as the day the person’s registration is to end and the person knows this 

698.            Intention is the fault element for paragraph 57(5)(a).  Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

699.            Recklessness is the fault element for paragraph 57(5)(b).  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

700.            Paragraph57(5)(c) specifies that a fault element of knowledge will apply.  Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or which exist in the ordinary course of events.

701.            For paragraph 57(5)(a) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the defendant intentionally gave a notice to the Secretary under section 31 for the person’s registration under the scheme in relation to the foreign principal. 

702.            The term person is defined at section 10 to mean any of the following:

·          an individual

·          a body corporate

·          a body politic

·          a partnership

·          an association (whether or not incorporated)

·          an organisation (whether or not incorporated)

·          any combination of individuals who together constitute a body

·          an entity or group prescribed by the rules

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law [or not constituted under a law at all].

703.            The term Secretary is defined at section 10 to mean the Secretary of the Department.  This will be the Secretary of the Department that administers the scheme. 

704.            Section 31 provides that a registrant may give a notice to the Secretary that he or she has ceased to undertake activities on behalf of a foreign principal that are registrable in relation to the foreign principal, and that there is no registrable arrangement in existence between the person and that foreign principal.  The person must be satisfied of these matters before giving this notice to the Secretary.

705.            The term scheme is defined in section 10 to mean this Act, the rules prescribed under section 71, the Charges Imposition Act and the regulations made under that Act.    

706.            The term foreign principal is defined in section 10 to mean:

·          a foreign government

·          a foreign public enterprise

·          a foreign political organisation

·          a foreign business

·          an individual who is neither an Australian citizen nor a permanent Australian resident.

707.            A registrable arrangement is defined in section 10 to mean an arrangement between a person and a foreign principal for the person to undertake an activity that, if undertaken by the person, would be registrable in relation to the foreign principal.  Sections 20, 21, 22 and 23 set out the circumstances in which an activity is considered to be a registrable activity.

708.            For paragraph 57(5)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that, at the time the person gave the notice to the Secretary, a registrable arrangement existed between the person and the foreign principal.  Recklessness is the fault element for this element.  Therefore, the person will have to be aware of a substantial risk that the registrable arrangement existed and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.  

709.            For paragraph 57(5)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that, on the day specified in the notice given by the person as the day the person’s registration in relation to the foreign principal ceases, a registrable arrangement was still in existence.  The prosecution will also have to prove that the person knew that the registrable arrangement was still in existence on that day.  

710.            The maximum penalty for this offence is 12 months imprisonment.  This is a significantly lower penalty than the offences in subsections 57(1), (2) and (3), reflecting the fact that the person is no longer undertaking activities on behalf of the foreign principal.  As such, the potential for the foreign influence to affect political or governmental processes is relatively low.  However, it is important to criminalise this type of behaviour, as issuing a notice under section 31 when a registrable arrangement remains in place undermines the transparency objective of the scheme. 

Section 58 - Failure to fulfil responsibilities under the scheme

711.            Section 58 establishes a number of strict liability offences for failure to fulfil responsibilities under the scheme.

Failure to fulfil reporting responsibility

712.            Subsection 58(1) will make it an offence for a person to fail give a notice under Division 2 of Part 3 (reporting to the Secretary) and the person fails to do so in accordance with that requirement.  

713.            The offence is punishable by a maximum penalty of 60 penalty units.

714.            An example of this offence is as follows.  Person A is registered under the scheme as undertaking parliamentary lobbying activities on behalf Country X.  Person A is required, under section 32 of the Act, to notify the Secretary of any material changes in circumstances in relation to his or her registration.  Person A is subsequently engaged by Country X to develop and distribute communications materials designed to influence the Australian Government’s immigration policy, in addition to the parliamentary lobbying activities.  Person A does not update their registration to report this change in circumstances.

715.            To establish this offence, the prosecution is required to prove, beyond a reasonable doubt, that:

·          the person is required to give a notice under a provision of Division 2 of Part 3 (reporting to the Secretary), and

·          the person fails give the notice in accordance with the provision.

716.            Subsection 58(1) is a strict liability offence.  Strict liability is set out in section 6.1 of the Criminal Code.  Applying strict liability to this offence means that no fault element needs to be proved and the defence of mistake of fact is available.

717.            Applying strict liability to this offence is appropriate to ensure the integrity of the scheme.  A person who registers under the scheme should be aware that registration carries with it a range of reporting obligations. Having a strict liability offence encourages compliance with the scheme and the provision of current information to the scheme on the forms of sources of foreign influence in Australian political and government processes.   

718.            Application of strict liability strikes a balance with principles of procedural fairness by affording a defendant the defence of ‘mistake of fact.’ The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

719.            For paragraph 58(1)(a), the prosecution is required to prove beyond a reasonable doubt that the defendant is required to give a notice under a provision of Division 2 of Part 3 (reporting to the Secretary).

720.            The term person is defined at section 10 to mean any of the following:

·          an individual

·          a body corporate

·          a body politic

·          a partnership

·          an association (whether or not incorporated)

·          an organisation (whether or not incorporated)

·          any combination of individuals who together constitute a body

·          an entity or group prescribed by the rules

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law [or not constituted under a law at all].

721.            Notices that can be given under Division 3 of Part 3 include:

·          reporting material changes in circumstances (section 34) 

·          reporting donor activity in Australia for the purpose of political or governmental influence (other than  in voting period) (section 35)

·          reporting on registration review when voting period begins (section 36), and

·          reporting registrable activity during voting periods (section 37).

722.            For paragraph 58(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the person failed to give the notice in accordance with the provision.

723.            The terms fails and in accordance with are not defined and are intended to take their ordinary meanings:

·          fails is intended to include circumstances where a person forgets to or neglects to do something

·          in accordance with is intended to refer to all the requirements of a provision under Division 3 of Part 3 of the Act.  For example, a person who submits a notice but does not do so within the timeframe specified in the provision will not have given the notice in accordance with the provision. 

724.            The defendant bears an evidential burden in relation to defence of mistake of fact. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). 

725.            This defence would be available if, for example, a defendant had specifically turned his or her mind to whether or not he or she was required to give a notice under a provision of Division 2 of Part 3 and had mistakenly but reasonably concluded that they did not have to give a notice.

726.            The penalty for this offence is 60 penalty units.  This is appropriate to ensure the transparency objective of the scheme is met and to encourage timely reporting under Division 3 of Part 2 of the Act.  The penalty is consistent with the Guide to Framing Commonwealth Offences, which provides that the maximum penalty for strict liability offences should not exceed 60 penalty units for an individual.

Failure to fulfil responsibility to disclose in communications activity

727.            Subsection 58(2) will make it an offence for a person to fail to make a disclosure in accordance with rules made for the purposes of section 38 (disclosure in communications activity) and the person fails to do so in accordance with the rules. 

728.            The offence is punishable by a maximum penalty of 60 penalty units.

729.            An example of this offence is as follows.  Person B is a media company has a contract with Country X to undertake communications activities on behalf of Country X in Australia.  Person B is registered under the scheme.  Person B broadcasts a television advertisement criticising the Australia Government’s approach to climate change.  Person B fails to make a disclosure about the foreign principal in accordance with rules made for the purposes of section 38.

730.            To establish this offence, the prosecution is required to prove, beyond a reasonable doubt, that:

·          the person is required to make a disclosure in accordance with rules made for the purposes of section 38 (disclosure in communications activity), and

·          the person fails to make a disclosure in accordance with those rules.

731.            Subsection 58(2) is a strict liability offence.  Strict liability is set out in section 6.1 of the Criminal Code.  Applying strict liability to this offence means that no fault element needs to be proved and the defence of mistake of fact is available.

732.            Applying strict liability to this offence is appropriate to ensure the integrity of the scheme.  A person who is registered under the scheme and is undertaking communications activities on behalf of a foreign principal should be aware that registration carries with it a range of reporting obligations, including disclosure under section 38.  Having a strict liability offence encourages compliance with the scheme and disclosure of a foreign principal’s involvement in communications activities designed to influence Australian political and government processes. 

733.            Application of strict liability strikes a balance with principles of procedural fairness by affording a defendant the defence of ‘mistake of fact.’ The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

734.            For paragraph 58(2)(a), the prosecution is required to prove beyond a reasonable doubt that the defendant is required to make a disclosure in accordance with the rules under section 38 (disclosure in communications activity).  

735.            The term person is defined at section 10 to mean any of the following:

·          an individual

·          a body corporate

·          a body politic

·          a partnership

·          an association (whether or not incorporated)

·          an organisation (whether or not incorporated)

·          any combination of individuals who together constitute a body

·          an entity or group prescribed by the rules

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law [or not constituted under a law at all].

736.            Subsection 38(2) of the Act specifies that rules may prescribe:

·          instances of communications activity

·          when and how disclosures are to be made in relation to instances of communications activity

·          the content, form and manner of disclosure, and

·          circumstances in which a person is exempt from making a disclosure in relation to instances of communications activity.

737.            Section 71 of the Act allows the Minister to make rules prescribing certain matters by way of legislative instrument.  Rules may only relate to matters that are required or permitted by the Act, or matters necessary or convenient to be prescribed for carrying out or giving effect to the Act. 

738.            For paragraph 58(2)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant failed to make the disclosure in accordance with the rules.

739.            The terms fails and in accordance with are not defined and are intended to take their ordinary meanings:

·          fails is intended to include circumstances where a person forgets to, or neglects to, do something

·          in accordance with is intended to refer to all the requirements of the rules made for the purposes of section 38.  For example, a person who submits a notice but does not do so within the timeframe specified in the provision will not have given the notice in accordance with the provision. 

740.            The defendant bears an evidential burden in relation to defence of mistake of fact. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). 

741.            This defence would be available if, for example, a defendant had specifically turned his or her mind to whether or not he or she was required to make a disclosure about the foreign principal in accordance with section 38 and had mistakenly but reasonably concluded that they did not have to give a notice.

742.            The penalty for this offence is 60 penalty units.  This is appropriate to ensure the transparency objective of the scheme is met and to encourage disclosure in communications activities.  The penalty is consistent with the Guide to Framing Commonwealth Offences, which provides that the maximum penalty for strict liability offences not exceed 60 penalty units for an individual.

Failure to keep records

743.            Subsection 58(3) will make it an offence for a person to fail to keep records of a matter under section 40 (keeping records) for a period, and the person fails to do so.

744.            The offence will be punishable by a maximum penalty of 60 penalty units.

745.            An example of this offence is as follows.  Person C has a registrable arrangement with a foreign principal to undertake a range of activities, including political lobbying of members of the Parliament and communications activities relating to Australian Government policy on countering violent extremism.  Person C is registered under the scheme in relation to the foreign principal and receives regular payments from the foreign principal to conduct these activities.  However, Person C does not keep records of the amounts and dates of these payments, as required by paragraph 40(2)(b) that provides that a person must keep records of benefits provided by a foreign principal for a period of five years after the registration ends.

746.            To establish this offence, the prosecution is required to prove, beyond a reasonable doubt, that:

·          the person is required to keep records of a matter under section 40 (keeping records) for a period, and

·          the person fails to do so.

747.            Subsection 58(3) is a strict liability offence.  Strict liability is set out in section 6.1 of the Criminal Code.  Applying strict liability to this offence means that no fault element needs to be proved and the defence of mistake of fact is available.

748.            Applying strict liability to this offence is appropriate to ensure the integrity of the scheme.  A person who is registered under the scheme should be aware that registration carries with an obligation to keep records under section 40 relating to the registrable arrangement while the person is registered under the scheme and for a period of 5 years after registration ends.  Having a strict liability offence encourages compliance with the scheme and maintenance of records regarding activities carried out on behalf of a foreign principal that seek to influence Australian political and government processes.  

749.            Application of strict instead of absolute liability strikes a balance with principles of procedural fairness by affording a defendant the defence of ‘mistake of fact.’ The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

·          at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

·          had those facts existed, the conduct would not have constituted an offence.

750.            For paragraph 58(3)(a), the prosecution is required to prove beyond a reasonable doubt that the defendant is required to keep records of a matter under section 40 (keeping records).

751.            The term person is defined at section 10 to mean any of the following:

·          an individual

·          a  body corporate

·          a body politic

·          a partnership

·          an association (whether or not incorporated)

·          an organisation (whether or not incorporated)

·          any combination of individuals who together constitute a body

·          an entity or group prescribed by the rules

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law [or not constituted under a law at all].

752.            Subsection 40(2) of the Act specifies records must be kept by the registrant in respect of the following matters:

·          registrable activities the person undertakes on behalf of the foreign principal

·          benefits provided to the person by the foreign principal

·          information or material forming part of any communications activity that is registrable in relation to the foreign principal

·          any registrable arrangement between the person and the foreign principal, and

·          other information or material communicated or distributed in Australia on behalf of the foreign principal.

753.            For paragraph 58(3)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant failed to keep records.  The term fails is not defined and is intended to take its ordinary meaning, that is, to include circumstances where a person forgets to, or neglects to, do something

754.            The defendant bears an evidential burden in relation to defence of mistake of fact. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). 

755.            This defence would be available if, for example, a defendant had specifically turned his or her mind to whether or not he or she was required to keep records of a matter in relation to a foreign principal in accordance with section 40 and had mistakenly, but reasonably, concluded that they did not have to give a notice.

756.            The penalty for this offence is 60 penalty units.  This is appropriate to ensure the transparency objective of the scheme is met and to encourage registrants to keep records relating to a registrable arrangement with or registered activities undertaken on behalf of a foreign principal.  The penalty is consistent with the Guide to Framing Commonwealth Offences, which provides that the maximum penalty for strict liability offences not exceed 60 penalty units for an individual.

Section 59 - Failure to comply with notice requiring information

757.            Section 59 will make it an offence for a person to fail to comply with a notice given to the person under section 45 or 46 by the end of the period specified in the notice, or by the end of the extended period if the Secretary extends the period specified in the notice, and the defence in subsection 59(2) does not apply. 

758.            The offence will be punishable by a maximum penalty of 6 months imprisonment.

759.            An example of this offence is as follows.  Person A is undertaking registrable activities on behalf of foreign political organisation B but does has not registered under the scheme.  On 1 July 2019, the Secretary issues a notice to Person A under section 45 as the Secretary reasonable suspects that person A might be liable to register under the scheme in relation to the foreign political organisation.  The notice requests Person A provide relevant information and documents by 31 July 2019.  Person A does not respond to the notice.

760.            To establish this offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          the person was given a notice about section 45 or 46, and the person is reckless as to this

·          the person intentionally fails to comply with the notice:

o    by the end of the period specified in the notice, or

o    by the end of any extension period granted by the Secretary to comply with the notice.

761.            The fault element for paragraph 59(1)(a) is recklessness.  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

762.            For paragraph 59(1)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant was given a notice under section 45 or 46.  Recklessness is the fault element for this element.  Therefore, the person will have to have been aware of a substantial risk that he or she was given a notice under section 45 or 46 and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

763.            Intention is the fault element for paragraph 59(1)(b).  Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

764.            The term person is defined at section 10 to mean any of the following:

·          an individual

·          a body corporate

·          a body politic

·          a partnership

·          an association (whether or not incorporated)

·          an organisation (whether or not incorporated)

·          any combination of individuals who together constitute a body

·          an entity or group prescribed by the rules

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law [or not constituted under a law at all].

765.            Section 45 enables the Secretary to obtain information to satisfy the Secretary as to whether a person is liable to register under the scheme.  Section 46 provides that the Secretary may issue a notice to a person requiring the person provide information or a document to the Secretary that is relevant to the operation of the scheme. 

766.            For paragraph 59(1)(b) of the offence, the prosecution is required to prove beyond a reasonable doubt that the defendant failed to comply with the notice by the end of the period specified in the notice or by the end of any extension period granted by the Secretary to comply with the notice.

767.            The terms fails and comply are not defined and are intended to take their ordinary meaning:

·          fails is intended to include circumstances where a person forgets to or neglects to do something

·          comply is intended to  include to observe, obey, adhere to, conform to and follow. The term is intended to refer to all the requirements of a notice issued under section 45 or 46. For example, a person who provides information in accordance with a notice but does not provide all the relevant information will not have given notice in accordance with the provision.

768.            Both sections 45 and 46 provide that notices issued under those sections must specify a period within which the person is required to provide the information or documents to the Secretary.  Subsections 45(3) and 46(3) provide that the period specified in the notice must be a period of at least 14 days after the notice is given.  On request by the person to whom the notice is given, the Secretary may in writing extend the period within which the person must respond to the notice (subsections 45(4) and 46(4)).

769.            The penalty for this offence is six months imprisonment.  This is appropriate and reflects the lower level of culpability in this offence as opposed to other offences in the Act.  However, it is important to criminalise the conduct in section 59 as it would defeat the transparency objectives of the scheme. The penalty encourages compliance with the scheme, and ensures that people who do not provide the scheme with updated information are subject to criminal sanction.

770.            Subsection 59(2) provides offence in subsection 59(1) does not apply where:  

·          the person fails to comply with the notice only because the person does not provide the information or a document within the applicable period, and

·          the person took all reasonable steps to provide the information or document within that period, and

·          the person provides the information or document as soon as practicable after the end of the period.

771.            The Note in subsection 59(2) states that the defendant bears an evidential burden in relation to the matter in this subsection. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonably possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

772.            It is appropriate for a defendant to bear an evidential burden for these matters because the defendant is best placed to provide evidence on what steps, if any, he or she took to provide the information or document within the applicable period specified in the notice and the reasonableness of such actions.

773.            A number of terms in subsection 59(2) are not defined and are intended to take their ordinary meanings:

·          all reasonable steps is intended to mean that a defendant cannot ignore or be careless about whether they have provided information or documents in compliance with a notice issued under section 45 or 46 within the applicable period.  Reasonable steps might include that the person has attempted to procure, obtain, gather, find, or locate the information or documents and attempted to submit the information or documents required under the notice.  The term is intended to include those things that are within a person’s control, and does not include circumstances beyond the control.

·          as soon as practicable is intended to include as soon as feasible, shortly after, and within a reasonable timeframe.

Section 60 - False or misleading information or documents

774.            Section 60 will make it an offence to give information or produce a document to the Secretary in response to a notice given to the person under section 45 or 46 knowing that the information or document is false or misleading, or that the information omits any matter or thing without which it is misleading.   

775.            The offence will be punishable by a maximum penalty of five years imprisonment.

776.            An example of this offence is as follows.  Person X is engaged by Country Y to undertake parliamentary lobbying and communications activities on its behalf.  Person X completes and submits a registration under the scheme but omits information about some of the activities he or she will undertake on behalf of Country Y. The Secretary gives Person X a notice under section 46 of the Act requesting further information and documents about Person X’s relationship with Country Y, including the nature of activities undertaken on behalf of Country Y. Person X receives the notice and responds by providing information about the parliamentary lobbying activities he or she is undertaking on behalf of Country Y, but intentionally omits information about distributing communications materials which has the effect of making such information misleading.

777.            To establish this offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          the person intentionally gave information or produced a document to the Secretary

·          the information was given or the document produced in response to a notice given to the person under section 45 or 46, and the person is reckless as to this

·          the information or document was false or misleading, or did not contain a matter or thing without which it was misleading, and the person knows this. 

778.            Intention is the fault element for paragraph 60(1)(a).  Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in the conduct.

779.            Recklessness is the fault element for paragraph 60(1)(b).  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

780.            Knowledge is the fault element for paragraph 60(1)(c).  Under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or which will exist in the ordinary course of events. 

781.            For paragraph 60(1)(a) the prosecution will have to prove beyond a reasonable doubt that the defendant  intentionally gave information or produced a document to the Secretary.

782.            The term person is defined at section 10 to mean any of the following:

·          an individual

·          a body corporate

·          a body politic

·          a partnership

·          an association (whether or not incorporated)

·          an organisation (whether or not incorporated)

·          any combination of individuals who together constitute a body

·          an entity or group prescribed by the rules

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law or not constituted under a law at all.

783.            The term Secretary is defined at section 10 to mean the Secretary of the Department.  This will be the Secretary of the Department that administers the scheme. 

784.            For paragraph 60(1)(b), the prosecution will have to prove beyond a reasonable doubt that the information was given or the document provided in response to a notice issued to the person under section 45 or 46.  Recklessness is the fault element for this element.  Therefore, the person will have to be aware of a substantial risk that the information was given or the document provided in response to a notice issued to the person under section 45 or 46 and that, having regard to the circumstances known to him or her, it was unjustifiable to take the risk.

785.            Section 45 enables the Secretary to obtain information to satisfy the Secretary as to whether a person is liable to register under the scheme.  Section 46 provides that the Secretary may issue a notice to a person requiring the person provide information or a document to the Secretary that is relevant to the operation of the scheme. 

786.            For paragraph 60(1)(c), the prosecution will have to prove beyond a reasonable doubt that the person gives information or document knowing that the information or document is false or misleading, or the information omits any matter or thing without which the information is misleading. 

787.            For the purposes of paragraph 60(1)(c), false and misleading is intended to include where incorrect information is provided or provided in such a way that the meaning of the information provides the wrong idea or impression. 

788.            The penalty for this offence is five years imprisonment.  This is appropriate given the of the serious implications of the provision of false or misleading information or documents and the fact that the person is deliberately seeking to defeat the transparency objectives of the scheme. It also seeks to ensure that persons who are issued notices under sections 45 and 46 provide accurate information, therefore ensuring the scheme holds information that accurately reflects the scale and scope of foreign influence activities in political and governmental processes in Australia.  The penalty recognises the serious implications that unchecked and unknown forms and sources of foreign influence can have on Australia’s democratic system of government.

789.            Subsections 60(2) to 60(6) set out a number of defences to the offence in subsection 60(1).

790.            Subsection 60(2) provides that the offence in subsection 60(1) does not apply as a result of subparagraph 60(1)(c)(i) if the information given or the document produced is not false or misleading in a material particular.  This defence will ensure that a person is not subject to a criminal offence for a minor error which is not material to the operation of the scheme.  For example, a person may know that a document is misleading because of minor factual or spelling error this is not material to the operation of the scheme.  This defence is consistent with defences for other Commonwealth offences dealing with provision of false or misleading information (for example, subsection 137(3) of the Criminal Code).

791.            The Note to subsection 60(2) states that the defendant bears an evidential burden in relation to the matter in that subsection. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

792.            It is appropriate for a defendant to bear an evidential burden in relation to the matter in subsection 60(2) as the defendant is best placed to provide evidence of how information given or a document provided is not misleading in a material particular. An example of this is where a person provides a document that is incorrectly dated but the date is not critical to the information contained in the document

793.            Subsection 60(3) provides that the offence in subsection 60(1) does not apply as a result of subparagraph 60(1)(c)(ii) if the information given did not omit any matter or thing without which the information is misleading in a material particular. This defence will ensure that a person is not subject to a criminal offence for a minor error which is not material to the operation of the scheme.  For example, a person may know that information omits a matter that makes it misleading but this does not affect is not material to the operation of the scheme.  This defence is consistent with defences for other Commonwealth offences dealing with provision of false or misleading information (for example, subsection 137(3) of the Criminal Code).

794.            The Note to subsection 60(3) states that the defendant bears an evidential burden in relation to the matters in that subsection. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

795.            It is also appropriate for a defendant to bear an evidential burden in relation to the matter in subsection 60(3) as the defendant is best placed to provide evidence of how information does not omit any matter or thing without which the information is misleading in a material particular.  An example of this is where a person intentionally provides a document containing an acronym or short hand name for the foreign political organisation on whose behalf the person is undertaking activities, rather than the full name of the foreign political organisation.  

796.            Subsection 60(4) provides that the offence in subsection 60(1) does not apply if, before the information was given or document produced to the Secretary, the Secretary did not take reasonable steps to inform the person of the existence of an offence against subsection 60(1).  This places an obligation on the Secretary to include information on relevant forms and notices about the existence of the offence.  If the person is not notified of the offence, they will not be liable for prosecution.  This defence is consistent with defences for other Commonwealth offences dealing with provision of false or misleading information (for example subsection 137(5) of the Criminal Code).

797.            Subsection 60(5) provides that, for the purposes of the defence at subsection 60(4), it is sufficient if the following form of words is used: ‘Giving false or misleading information or documents is an offence’.  This provides clarity about the level of detail that is reasonable to discharge the Secretary’s responsibility and is consistent with comparable provisions in offences relating to provision of false and misleading information (for example, subsection 137.1(6)).

798.            The Note to subsection 60(4) states that the defendant bears an evidential burden in relation to the matters in these subsections. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

799.            It is appropriate for a defendant to bear an evidential burden in relation to the matter in subsection 60(4) as the defendant is best placed to provide evidence that they were unaware that it was an offence to provide false or misleading information or documents under the Act prior to giving information or producing documents in response to a notice under section 45 or 46.

800.            Subsection 60(6) provides that the offence at subsection 60(1) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, a competent officer of a body corporate:

·          stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular, and

·          setting out or referring to the material particular in which the document is, to the knowledge of the first mentioned person, false or misleading (subsection 60(6)).  

801.            This defence allows a person to advise the Secretary of an error a document or information.  For example, the Secretary may request a person to provide a copy of a contract that is out of date and misleading in material particulars.  The person can provide that document with an accompanying statement advising that the document is misleading in a specified way.  If the person does so, he or she should not be subject to a criminal offence as he or she has complied with the order to provide the document and also taken reasonable steps to clarify any matters that may be misleading.

802.            An example of the application of this defence is where the Secretary issues a notice requesting a copy of the contract between Person A and foreign business B.  Since entering into the contract, foreign business B has changed its name to foreign business L.  Person A complies with the notice and produces the document in accordance with the notice, but knows the document is false and misleading by referring to foreign business B.  Person A attaches a written statement to the document, stating that the document is false in a material particular (concerning the name of the foreign business) and setting out how the material particular is false as the foreign business has changed its name. 

803.            The Note to subsection 60(6) states that the defendant bears an evidential burden in relation to the matters in that subsection. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

804.            It is appropriate for a defendant to bear an evidential burden in relation to the matter in subsection 60(4) as the defendant is best placed to provide evidence of the statement they provided to the Secretary advising of the fact that, and setting out how, a document is misleading in a material particular.

Section 61 - Destruction etc. of records

805.            Section 61 criminalises a person’s failure to keep records with the intention of avoiding or defeating the object of the scheme, and where the result is that records are damaged or concealed or the registrant being prevented from keeping such records.

806.            The offence will be punishable by a maximum penalty of three years imprisonment.

807.            An example of this offence is as follows.  Person A is a registrant under the scheme in relation to an arrangement the person has with Country X.  Under the registrable arrangement, Person A undertakes parliamentary lobbying activities on behalf of Country X for the purpose of influencing Australian Government policy on energy and gas markets.  Person A makes a records of the conversations held with relevant Ministers, with a view to passing this information to Country X. Person A destroys the records once the information has been provided to Country X,  to conceal that country’s involvement. Person A has intentionally destroyed a scheme record with intention of defeating the transparency objective of the scheme. 

808.            To establish this offence, the prosecution will need to prove, beyond a reasonable doubt, that:

·          a registrant under the scheme and is required to keep records under the scheme

·          the person (whether or not the registrant) intentionally does an act or omits to do an act

·          the person does the act or omits to do the act with the intention of avoiding or defeat the object of the Act or any element of the scheme, and

·          the act or omission of the registrant or person results in any of the following:

o    damage to, or the destruction of, a scheme record

o    the concealment of a scheme record

o    the registrant being prevented from keeping scheme records. 

809.            Absolute liability applies to paragraph 61(1)(a) consistent with subsection 61(2). Absolute liability is set out in section 6.2 of the Criminal Code. 

810.            Intention is the fault element for paragraphs 61(1)(b).   Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

811.            Recklessness is the fault element for paragraph 61(1)(d).  Section 5.4 of the Criminal Code provides that a person is reckless with respect to:

·          a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk, and

·          a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

812.            For paragraph 61(1)(a), that the prosecution is required to prove that, under section 40, a registrant was required to keep records under the scheme (known, for the purposes of section 61 as scheme records ).  Section 40 specifies that a person who is registered under the scheme in relation to a foreign principal must keep records for the duration of their registration and for the five year period after which registration ends.  Records must be kept in relation to:

·          any registrable activities that a person undertakes on behalf of a foreign principal

·          any benefits provided to the registrant by the foreign principal

·          information or material forming part of any communications activity that is registrable in relation to the foreign principal

·          any registrable arrangement between the person and the foreign principal, and

·          any other information or material communicated or distributed in Australia on behalf of the foreign principal.

813.            Absolute liability applies to paragraph 61(1)(a) consistent with subsection 61(2).  The effect of applying absolute liability to an element of the offence is that no fault element needs to be proved and the defence of mistake of fact is unavailable. 

814.            Applying absolute liability to paragraph 61(1)(a) is appropriate to ensure that a person does not avoid criminal liability merely because they claim to be unaware that a registrant is required to keep scheme records under section 40 of the Act.  A registrant’s obligation to keep scheme records is clear on the face of the legislation.

815.            Section 10 provides that the term registrant means a person who is registered under the scheme. 

816.            For paragraph61(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that a person intentionally did an act, or omitted to do an act. The person does not need to be the registrant referred to in paragraph 61(1)(a).

817.            The term person is defined at section 10 to mean any of the following:

·          an individual;

·          a body corporate;

·          a body politic;

·          a partnership;

·          an association (whether or not incorporated);

·          an organisation (whether or not incorporated);

·          any combination of individuals who together constitute a body;

·          an entity or group prescribed by the rules;

whether or not resident in, formed or created in, or carrying on business in, Australia, and whether constituted under an Australian or foreign law or not constituted under a law at all.

818.            Paragraph 61(1)(c) requires the prosecution to prove that the person (referred to in paragraph 61(1)(b)) does the act, or omits to do the act, with the intention of avoiding or defeating the object of the Act or any element of the scheme.  An example of such conduct is where a person intentionally omits to keep a contract of employment with a foreign principal that establish the terms of engagement upon which the person is to undertake activities in Australia on behalf of the foreign principal for the purposes of political or governmental influence.

819.            The term scheme is defined in section 10 to mean this Act, the rules prescribed under section 71, the Charges Imposition Act and the regulations made under that Act.    

820.            The terms avoiding and defeating are not defined and are intended to take their ordinary meaning. For the purposes of section 61, avoiding the object of the Act or any element of the scheme could include circumventing, bypassing or evading the object or element. Defeating the object or an element of the scheme could include overcoming, preventing or foiling the object or element.

821.            The term object of the Act in paragraph 61(1)(c) refers to section 3 of the Act, which provides that the object of the Act is to provide for a scheme for the registration of persons who undertake certain activities on behalf of foreign governments, foreign businesses and other foreign principals, in order to improve the transparency of their activities on behalf of those foreign principals.

822.            The term element of the scheme is intended to include all requirements under the scheme, as defined in section 10.  For example, a registrant who omits to provide a record in relation to a material change in circumstances under section 34 will have failed to comply with an element of the scheme.

823.            For paragraph 61(1)(d) of the offence, the prosecution will have to prove beyond a reasonable doubt that the person’s act or omission (referred to in paragraph 61(1)(c)) resulted in:

·          damage to a scheme record

·          the destruction of a scheme record

·          the concealment of a scheme record, or

·          a registrant being prevented from keeping scheme records.

824.            The terms damage, destruction and concealment are not defined in paragraph 63(1)(d) and are intended to take their ordinary meanings:

·          damage could include conduct that impairs the value, usefulness, or normal functioning of the record, or has some other type of detrimental effect on the record

·          destruction could include acts that cause so much damage that the record no longer exists, or cannot be repaired so that it is in its original state.  The term could include the annihilation, obliteration, elimination or eradication of the record

·          concealment could include hiding, preventing from being known or not producing a record. 

825.            Recklessness is the fault element for this offence.  Therefore, the person will have to have been aware of a substantial risk that the act or omission was likely to result in damage to or destruction of the record, or that the act or omission was likely to cause concealment of the record or prevent a registrant from keeping scheme records, and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk. 

826.            The penalty for this offence is three years imprisonment. This is appropriate given the conduct described in section 61 has the potential to defeat the transparency objective of the scheme and is comparable with other offences in Act that deter conduct which may undermine the integrity of the scheme.  This penalty recognises the importance of maintaining accurate records, which is crucial to the improving transparency of those actors undertaking registrable activities on behalf of foreign principals. However, the lower penalty reflects the fact that section 61 regulates conduct which is less egregious that other types of conduct which would also defeat the transparency objective of the scheme, for example in relation to providing ‘false or misleading information or documents’ under section 60 which carries a maximum penalty of five years imprisonment.  

Part 6—Miscellaneous  

Section 62 - Simplified outline of this Part

827.            This section provides a simplified outline of Part 6, which deals with miscellaneous matters, including charges payable under the scheme, the treatment of persons who are not legal persons, approvals, delegations, rules, reviews and reports relating to the operation of the scheme. 

828.            While simplified outlines are included to assist readers to understand the substantive provisions, the outlines are not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Section 63 - Charges

829.            Subsection 63(1) provides that a person is liable to pay a charge if they make an application for registration under section 16 of the Act, or renew registration under section 39 of the Act.  The charges that are payable are imposed by the Foreign Influence Transparency (Charges Imposition) Act 2017 .  That Act provides legislative authority to impose charges under this Act.

830.            Subsection 63(2) provides that the charges mentioned at subsection 63(1) are payable to the Commonwealth. 

831.            Subsection 63(3) clarifies that the amount of a charge imposed by the Charges Imposition Act is a debt due to the Commonwealth, and may be recovered by the Minister on behalf of the Commonwealth through action in a relevant court.  The recovery of charges through a relevant court will ensure the Commonwealth can recover costs for activities already undertaken in processing applications for registration and renewals of registration.

832.            Subsection 63(4) provides that, where an application for registration or a renewal of registration is not accompanied by the amount of charge that the applicant or registrant is liable to pay under the Charges Imposition Act, the application or renewal is taken not to have been given to the Secretary.  Despite this, the Minister may make rules under section 71 prescribing the circumstances in which an application or renewal is taken to have been given to the Secretary where it is not accompanied by the amount of the charge that a person or registrant is liable to pay.    

833.            Subsection 63(5) provides that the Secretary may refund a charge, or part of a charge, in circumstances that are prescribed by rules made under section 71.  The rules may prescribe circumstances in which a refund may occur, for example, circumstances in which the Commonwealth has not yet expended effort in processing an application for registration or renewal of registration.  

834.            Subsection 63(6) provides that the rules may prescribe other matters in relation to the payment of charges.

Section 64 - Treatment of partnerships

835.            Subsection 64(1) clarifies that the scheme applies to a partnership as if the partnership were a legal person, but with the changes set out in this section.  This provision has been included to ensure that there is adequate coverage of partnerships that may be acting on behalf of a foreign principal.

836.            Subsection 64(2) provides that an obligation that would otherwise have been imposed on the partnership under the scheme is imposed on each partner instead.  The obligation may be discharged by any of the partners - it need not be all of the partners acting together.  For example, if a partnership is undertaking registrable activities on behalf of a foreign principal, the partnership would need to register under the scheme.  Consistent with the requirements for individuals registered under the scheme, the partnership would be required to maintain records in relation to registration and satisfy the responsibilities of a registrant under Part 3 of the Act.  All of the partners are considered to be under these obligations; however the obligations are met if only one of the partners maintains the records on behalf of the partnership.

837.            Subsection 64(3) provides that an offence against this Act that would have otherwise been committed by the partnership is taken to have been committed by each partner in the partnership at the time the offence was committed, who:

·          did the relevant act or made the relevant omission

·          aided, abetted, counselled or procured the relevant act or omission, or

·          was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

838.            This provision has been included to ensure that partners cannot avoid liability under the scheme simply by virtue of the fact that it is the partnership that is registered under the scheme, rather than the partner as an individual.

839.            Subsection 64(4) provides that a change in the composition of a partnership does not affect the continuity of the partnership for the purposes of the scheme.  As such, if a partnership was registered under the scheme, that registration would not change simply by fact that a new partner is added to the partnership, or the partnership changes in some other way.

Section 65 - Treatment of unincorporated bodies

840.            Section 65 provides that the scheme applies to a person that is not a legal person, other than a partnership, as if the person were a legal person.  However, changes in respect of that kind of person can be prescribed by rules made under section 71.

841.            This provision has been included to provide sufficient flexibility should a circumstance arise where a person is not a ‘legal person’ but should be subject to the operation of the scheme.  It is possible that that kind of person would need special rules in order for the scheme to apply.

Section 66 - Approvals

842.            This section provides that the Secretary may approve forms and the manners for lodging forms for the purposes of the Act.  These approvals must be in writing.

843.            Forms, and the manners for lodging forms, refer to various activities under the scheme, including registration, annual renewal of registration, reporting material changes in circumstances, reporting during elections and other voting periods.  The ability for the Secretary to approve forms and the manners for lodging forms is intended to establish efficient, standardised processes for the administration of the scheme, but also to provide sufficient flexibility should requirements and practices evolve over time.

844.            Approvals made under this section are not legislative instruments. 

Section 67 - Delegations

845.            Subsection 67(1) provides that the Secretary may delegate any or all of his or her functions or powers under the Act.  The delegation must be in writing, and can be made to:

·          an SES or acting SES employee within the Department, or

·          an APS employee who holds, or is acting in, an Executive Level 2 or equivalent position in the Department.

846.            This delegation power is included for administrative convenience, providing flexibility and promptness while maintaining sufficient oversight.  The delegation is restricted to employees with an appropriate level of seniority within the Department.

847.            References to SES employees and APS employees will mean the same thing as they mean in the Public Service Act 1999

848.            It is appropriate for the Secretary to be able to delegate his or her functions or powers to officers within the Department to ensure the scheme can be efficiently administered.  It is not practical, feasible or necessary for the Secretary to personally exercise the powers and functions of the scheme.  This would lead to long delays in processing matters under the scheme.

849.            The delegation power only allows delegation to SES employees or APS officers at the Executive Level 2 level.  This ensures that the powers and functions of the Act are only exercisable by senior officers with experience and judgement in matters of public administration.

850.            The Note in subsection 67(1) states that sections 34AA to 34A of the Acts Interpretation Act contain provisions relating to delegations.  Section 34AA provides that where an Act confers a power to delegate a function, duty or power, then the power of delegation shall not be construed as being limited to delegating the function, duty or power to a specified person.  Rather it should be construed as including a power to delegate the function, duty or power to any person from time to time holding, occupying, or performing the duties of, a specified office or position, even if the office or position does not come into existence until after the delegation is given.  As such, the delegation under section 67 could be made to a position number, and SES or Executive Level 2 employees who occupy that position number will have authority to exercise the delegated functions and powers.

851.            Section 34AB of the Acts Interpretation Act provides that:

·          delegations may be made generally or otherwise

·          the powers that may be delegated do not include a power to delegate

·          a function, duty or power that is exercised by a delegate is deemed to have been performed or exercise by the authority, and a delegation does not prevent the performance or exercise of a function, duty or power by the authority.

852.            Section 34A of the Acts Interpretation Act provides that the Secretary would not be prevented from performing the function of exercising the power where a delegation is in place.  The powers and functions can operate concurrently.

853.            Subsection 67(2) provides that the delegate must comply with any written directions of the Secretary when performing delegated functions or exercising delegated powers under the Act.  This ensures that the delegates are to administer the scheme consistent with the Secretary’s views, if expressed in a written direction.

Section 68 - Agreements

854.            Section 68 provides that the Secretary may enter into a written agreement with a person for the person to perform services in relation to the scheme, and make payments to the person in accordance with any such agreement. The Secretary is empowered to do these things on behalf of the Commonwealth.

855.            This provision has been included to provide an express legislative basis for the spending of money in relation to the administration of the scheme.  The power could be used in circumstances where a contractor or sub-contractor is engaged to perform services in relation to the scheme, such as information technology support for the register.

Section 69 - Annual Report

856.            Subsection 69(1) provides that the Secretary must provide a report to the Minister on the operation of the scheme each year.  Reports must be prepared and provided to the Minister as soon as practicable after the end of each financial year, and the content should relate to the operation of the scheme for that financial year.  For example, a report being prepared in July 2020 would relate to the 2019-20 financial year (being 1 July 2019 through to 30 June 2020).

857.            The Note included in subsection 69(1) refers to section 34C of the Acts Interpretation Act, which deals with periodic reports to Ministers.  Subsection 34C(2) provides that where an Act requires a person to furnish a report to the Minister but does not specify a timeframe within the report is to be finalised, the report must be provided within six months after the end of the particular period to which the report relates.  Other provisions deal with requests for extensions for reporting.

858.            Subsection 69(2) provides that the report must include any matters that are prescribed by rules for the purposes of this subsection.  This is intended to provide flexibility in determining what should be contained in the report once operational arrangements to support the administration of the scheme have been established.

859.            Subsection 69(3) provides that, despite subsection 69(2), the annual report must not include information that the Secretary is satisfied is commercially sensitive or affects national security.  The terms ‘commercially sensitive’ and ‘national security’ are not defined in this Act and are to be given their ordinary meaning:

·          ‘commercially sensitive’ is intended to cover information such as details that are contained in commercial contracts, where if that detail was revealed it would cause detriment to the parties, or would expose sensitive information relating to a company’s operations, expenditure or employees

·          ‘national security’ may cover information relating to the protection of Australia and its people from harm from threats such as espionage, foreign interference, politically motivated violence or the promotion of communal violence.  It may also cover information that relates to defence or the protection of the integrity of Australia’s borders or information relating to activities by security and law enforcement agencies.  

860.            The terms are intended to operate flexibly as matters that may relate to national security change over time.   

Section 70 - Review of operation of the scheme

861.            Section 70 provides that the Minister must cause a review of the operation of the scheme to be conducted within five years of the commencement of the section. As provided at section 2, this section will commence upon a single day to be fixed by Proclamation, which must occur within 12 months of the Bill receiving Royal Assent.     

862.            A formal review will provide an opportunity to ensure that, amongst other things, the scheme is operating as intended, is not creating any unintended consequences, and strikes an appropriate balance between transparency and regulatory burden.

863.            The time period is framed flexibly, such that a review could occur at any point in time within the five years, so long as it occurs before the end of the period of five years since commencement.  Consequently, if practical issues are identified early in the life of the scheme, the formal review could be undertaken after 12 months.  This would allow in-depth consideration, including by the Parliament, of the operation of the scheme.  It is intended that legislative and policy amendments could be implemented, if needed or appropriate, following this review.

864.            Subsection 70(3) provides that the person undertaking the review must give the Minister a written report of the review, and subsection 70(4) provides the Minister must then cause a copy of the report to be tabled in each House of the Parliament within 15 sittings days of that House after the report was given to the Minister.

Section 71 - Rules

865.            Subsection 71(1) provides that the Minister may make rules prescribing matters which are:

·          required or permitted by the Act to be prescribed by the rules, or

·         are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

866.            Any rules established under this section are legislative instruments for the purposes of the Legislation Act 2003 .

867.            This is a broad rule-making power and will ensure that there is requisite authority to make such rules as are necessary to ensure the effective operation of the scheme. The subsection is drafted in a manner to provide flexibility in prescribing matters by rules which may not have been foreshadowed at the time of establishment of the scheme.

868.            Subsection 71(2) provides that the rules may not:

·          create an offence or civil penalty

·          provide powers of arrest or detention, or entry, search or seizure

·          impose a tax

·          set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act, or

·          directly amend the text of the Act.

869.            The restrictions in subsection 71(2) mean that any of the above matters must be achieved by way of amendments to the Act.

870.            Subsection 71(3) provides that any rules established under this section have no effect to the extent that they are inconsistent with regulations (being regulations established under the scheme).  Any rules are taken to be consistent with the regulations to the extent that the rules are capable of operating concurrently with the regulations.