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Foreign Influence Transparency Scheme Bill 2018

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2016 - 2017 - 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

FOREIGN INFLUENCE TRANPSARENCY SCHEME BILL 2017

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)



 

AMENDMENTS TO THE FOREIGN INFLUENCE TRANSPARENCY SCHEME BILL 2017

(Government)

GENERAL OUTLINE

1.                    The Foreign Influence Transparency Scheme Bill 2017 (‘the Bill’) was introduced into the House of Representatives on 7 December 2017 and referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry. The PJCIS tabled its report on the Bill on 25 June 2018 and recommended that, following implementation of the recommendations in its report, the Bill be passed. The Government has accepted the recommendations made by the PJCIS and is moving a number of amendments to the Bill to implement them. A table of the recommendations and the amendments that implement the recommendations is at Attachment A .

2.                    The purpose of these amendments to the Bill is to narrow the scope of the scheme by: 

·          limiting the definition of ‘foreign principal’ only to foreign governments, foreign political organisations and other persons who are closely related to foreign governments and foreign political organisations

·          amending key definitions including ‘on behalf of’ and ‘activity for the purpose of political or governmental influence’

·          clarifying that the scheme does not abrogate parliamentary privilege or legal professional privilege, and exclude sitting Members of Parliament and current statutory officer holders from the scheme

·          introducing new exemptions for industry representative bodies, individuals making personal representations, registered charities, artistic purposes, certain registered organisations and certain professions as well as expanding other exemptions

·          extending the period within which former Cabinet Ministers bear additional obligations from three years to a lifetime obligation

·          extending the scheme to specifically cover former Ambassadors and High Commissioners

·          increasing the period within which former Ministers, members of Parliament and senior public officials bear additional obligations from 18 months to fifteen years

·          introducing a transparency notice scheme, allowing the Secretary to issue a notice that a particular entity or individual is related to a foreign government

·          introducing additional obligations on the Secretary administering the scheme relating to publication of scheme information and annual reporting requirements

·          providing a role for the PJCIS is scrutinising rules made by the Minister relating to the sharing of scheme information   

·          introducing new, tiered criminal offences and reduce the applicable penalties as well as the application  of strict and absolute liability, and

·          requiring a review of the operation, effectiveness and implementation of the scheme created by the Bill to be undertaken by the PJCIS within three years of the Act commencing.

ACRONYMS

Acts Interpretation Act

Acts Interpretation Act 1901

AAT

Administrative Appeals Tribunal

Administrative Appeals Tribunal Act

Administrative Appeals Tribunal Act 1975

ACNC

Australian Charities and Not-for-profits Commission

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

Fair Work (Registered Organisations) Act

Fair Work (Registered Organisations) Act 2009

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

ICCPR

International Covenant on Civil and Political Rights

Legislation Act

Legislation Act 2003

MOPS Act

Members of Parliament (Staff) Act 1984

PJCIS

Parliamentary Joint Committee on Intelligence and Security

Parliamentary Privileges Act

Parliamentary Privileges Act 1987

PJCIS report

Advisory Report on the Foreign Influence Transparency Scheme Bill 2017, Parliamentary Joint Committee on Intelligence and Security, June 2018

Public Governance Act

Public Governance, Performance and Accountability Act 2013

Public Service Act

Public Service Act 1999

Telecommunications Act

Telecommunications Act 1987

FINANCIAL IMPACT

3.                    The amendments to the Bill remove the charging regime but this will not have an affect on the financial impact of the Bill.  The Government has committed to providing $3.2 million over four years for the scheme to be administered. 



4.        

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

5.                    The amendments to the Bill are 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

6.                    The proposed amendments to the Foreign Influence Transparency Scheme Bill 2017 (the Bill) implement the recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) report on the Bill.

7.                    The amendments will:  

·          limit the definition of ‘foreign principal’ only to foreign governments, foreign political organisations and other persons who are closely related to foreign governments and foreign political organisations

·          narrow key definitions including ‘on behalf of’ and ‘activity for the purpose of political or governmental influence’

·          clarify that the scheme does not abrogate parliamentary privilege or legal professional privilege, and exclude sitting Members of Parliament and current statutory officer holders from the scheme

·          introduce new exemptions for industry representative bodies, individuals making personal representations, registered charities, artistic purposes, certain registered organisations and certain professions, as well as expanding other exemptions

·          extend the period within which former Cabinet Ministers bear additional obligations from three years to a lifetime obligation

·          increase the period within which former Ministers, members of Parliament and senior public officials bear additional obligations from 18 months to fifteen years, and extend this requirement to also specifically cover former Ambassadors and High Commissioners

·          introduce a transparency notice scheme, allowing the Secretary to issue a notice that a particular entity or individual is related to a foreign government

·          introduce additional obligations on the Secretary administering the scheme relating to publication of scheme information and annual reporting requirements

·          provide a role for the PJCIS is scrutinising rules made by the Minister relating to the sharing of scheme information   

·          introduce new, tiered criminal offences, reduce the applicable penalties and remove the application  of strict and absolute liability, and

·          require a review of the operation, effectiveness and implementation of the scheme created by the Bill to be undertaken by the PJCIS within three years of the Act commencing.

Human rights implications

8.                    The amendments are consistent with Australia’s human rights obligations and engage the following human rights, which were identified in the Statement of Compatibility in the Explanatory Memorandum to the Bill, as introduced and read for a second time in the House of Representatives on 7 December 2017:

·          the right to liberty of person and freedom from arbitrary detention in Article 9(1) of the International Covenant on Civil and Political Rights (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.

9.                    The amendments to introduce a transparency notice scheme in the Bill will also engage the right to equality before the courts and tribunals in Article 14 of the ICCPR. 

10.                The way in which the proposed Government amendments to the Bill impact upon the human rights is outlined below.

Human rights impacted by the Government amendments

Right to liberty of person and freedom from arbitrary detention

11.               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.

12.               The Bill engages the right to liberty of person by lowering the penalties of imprisonment applicable for the offences in Part 5 of the Bill.  The maximum penalty will be lowered in the amendments from seven years imprisonment to five years imprisonment for the most serious offence of intentional omission to apply or renew and registrable arrangement undertaken. The remainder of the penalties in Part 5 of the Bill have been lowered accordingly, to introduce a tiered approach to criminal conduct depending on the level of culpability of the person and whether any registrable activities have been undertaken.    

Presumption of innocence

13.               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 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.

14.               The Bill currently limits the presumption of innocence by providing for evidentiary certificates in section 51 and applying strict and absolute liability to the offences proposed at section 58 (relating to failure to fulfil responsibilities under the scheme) and to elements of the offence at section 61 (relating to destruction of records) of the Bill.   The proposed amendments will remove the evidentiary certificates provision in section 51 and the application of strict and absolute liability in sections 58 and 61.     

Right to privacy

15.               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 or reputations.  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

16.               The Bill currently limits the right to privacy in that it will require disclosure of information pertaining to the activities and relationships of persons or entities undertaking activities on behalf of a foreign principal.  This limitation is considered to be reasonable and necessary as the disclosure of certain information is required to achieve the transparency objective of the scheme.

17.               The amendments will reduce this limitation by:

·          limiting the definition of foreign principal to foreign governments, foreign political organisations, foreign government related entity and foreign government related individual.  This will, in turn, limit the number of persons who may be required to register under the scheme and ultimately disclose information regarding their activities

·          narrowing the definitions of ‘undertaking activity on behalf of a foreign principal’ at section 11, ‘for the purpose of political or governmental influence’ at section 12, and ‘purpose of activity’ at section 14 to import a closer link between the foreign principal and the person undertaking activities on their behalf.  This will, in turn, limit the number of persons who may be required to register under the scheme, and ultimately disclose information regarding their activities

·          inserting a provision which clarifies that the Act does not abrogate parliamentary privilege or legal professional privilege, meaning that information which attracts this privilege does not need to be provided to the Secretary administering the scheme, and limiting the Secretary’s powers to gain access to information of this character under section 45 and 46 of the Bill

·          providing additional exemptions for industry representative bodies, individuals  making personal representations, registered charities, artistic purposes, certain registered organisations, certain professions and current members of Parliament and statutory officer holders, as well as expanding the exemptions available in Division 4 of Part 2.  This will, in turn, limit the number of persons who may be required to register under the scheme and ultimately disclose information regarding their activities

·          inserting a provision that restricts the Secretary’s ability to make certain information publicly available under proposed section 43.  The amendments will provide that the Secretary must not make information publicly available if he or she is satisfied that it is commercially sensitive, affects national security or is of a kind prescribed by the rules.

Transparency notices

18.               The amendments will limit the right to privacy by including a transparency notice scheme in proposed Division 3 of Part 1 of the Bill. 

19.               This Division allows for the Secretary to issue a provisional transparency notice stating that a particular person is a foreign government related entity or a foreign government related individual.  There will be a period within which the Secretary can consider submissions from the person named in the notice before it comes into force as a final transparency notice.  The effect of a transparency notice is to make it clear to a potential registrant that a particular person or entity is a foreign government related entity or a foreign government related individual and therefore a foreign principal for the purposes of the scheme. Amendments to proposed section 43 of the Bill will require a transparency notice to be made publicly available by the Secretary.   

20.               Proposed section 14J will provide a protection against actions for defamation which may arise as a result of the transparency notice regime.  This means that no action for defamation will lie against the Commonwealth, a Minister, the Secretary, the Department or another Agency or an officer of a Department or another Agency because the Secretary or an officer takes actions in relation to a transparency notice.  Proposed section 14J may therefore be interpreted as limiting the right to privacy by naming a person as being related to a foreign government.  The person may perceive this as damaging to his or her reputation and limiting the means by which a person named in a transparency notice can protect themselves from such damage.The limitation imposed by section 14J is reasonable and necessary to achieve the Bill’s legitimate objective, which 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. 

21.               The transparency notice scheme is critical to achieving this objective - it allows the Secretary to investigate and declare that a company or individual is related to a foreign government or foreign political organisation in cases where there is uncertainty, or where a person has sought to conceal the nature of their relationship with a foreign government.  Such a notice may only be issued where the Secretary is satisfied that the person falls within the definition, and will only occur where the matter has been properly investigated.

22.               The requirement that a provisional transparency notice be issued before a final transparency notice and the person named in the notice have time to make submissions before the provisional transparency notice becomes final, reduces any perceived limitation on the right to privacy.  Proposed section 14C requires that, if the Secretary issues a provisional transparency notice in relation to a person, the Secretary must also take reasonable steps to invite that person to make submissions on the provisional transparency notice within 14 days of the Secretary making the invitation. The purpose of these requirements is to allow the person to make submissions to the Secretary about whether or not the person does meet the criteria of a foreign government related entity or a foreign government related individual. The Secretary will have the ability to vary or revoke a transparency notice under section 14E.

23.               Proposed section 14H also provides that a person who is the subject of the notice will also have the right to merits review under the Administrative Appeals Tribunal Act 1975 in respect of a number of decisions relating to the issue, variation and revocation of provisional transparency notices and final transparency notices.  The effect of this section is that person who is affected by a notice will be able to appeal to the Administrative Appeals Tribunal for independent merits review of administrative decisions made by the Secretary under the Act.  In so doing, section 14H provides another mechanism by which a person can address a perceived limitation on their right to privacy by being named in a transparency notice.  Judicial review of the Secretary’s decisions will also be available under the Administrative Decisions Review Act 1997 .       

24.               To the extent that the transparency notice scheme limits the right to privacy, it does so in a way that is reasonable, necessary and proportionate to the legitimate objective of the scheme to make transparent to government and the public the sources of foreign influence in Australia. 

Right to equality before courts and tribunals

25.               Article 14 of the ICCPR states that all persons shall be equal before the courts and tribunals.  In General Comment No. 32 (CCPR/C/GC/32) the Human Rights Committee stated that the right to equality before the courts and tribunals is a key element of human rights protection and serves as a procedural means to safeguard the rule of law. The Committee noted that access to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice.  It also noted that this right will also mean that the same procedural rights are to be provided to all parties unless distinctions based on law can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.

26.               The amendments will engage the right to equality before courts and tribunal by limiting the application of the requirements of procedural fairness in relation to the issue, varying or revocation of transparency notices under proposed Division 3 of Part 1 of the Bill. 

27.               Section 14G provides that the Secretary is not required to observe any requirements of procedural fairness in exercising a power or performing a function regarding a transparency notice, other than those set out in section 14C.  The effect of this subsection is to insert a clear legislative intention in the Act which will exclude the rules of procedural fairness that may otherwise be available to a person in these circumstances.  As a consequence, the Act may be perceived as limiting the right to equality before the courts and tribunals by removing a person’s right to have a reasonable opportunity to know the case against them and the reasons for a decision, thereby placing them at a disadvantage in terms of their procedural rights.

28.               However, while the Bill may limit the right to equality before courts and tribunals, the limitation is reasonable and necessary to upholding the legitimate objective of the Bill and to provide certainty to potential registrants who may be unsure about whether they will be required to register under the scheme.  There is no detriment to a person being named in a transparency notice, as no rights or obligations are created for that person to observe.  Furthermore, it is important that the Secretary have the ability to issue a notice urgently if required.

29.               The amendments do provide for some forms of procedural fairness in respect of the Secretary’s decision to issue a provisional transparency notice.  For example, proposed section 14C requires the Secretary to take reasonable steps to give a person named in a provisional transparency notice an invitation to provide submissions about the provisional transparency notice.  If the person makes submissions, the Secretary is required to consider whether the provisional transparency notice is required to be revoked, and notify the person of the decision and the person’s right to have the decision reviewed.  The purpose of these requirements is to allow the person to have sufficient information to make submissions to the Secretary about whether or not the person does meet the criteria of a foreign government related entity or a foreign government related individual.

30.                Proposed section 14H also provides that a person who is the subject of the notice will also have the right to merits review under the Administrative Appeals Tribunal Act 1975 in respect of a number of decisions relating to the issue, variation and revocation of provisional transparency notices and final transparency notices.  The effect of this section is that person who is the subject of a notice will be able to appeal to the Administrative Appeals Tribunal for independent merits review of administrative decisions made by the Secretary under the Act.  In so doing, section 14H promotes a person’s right to equality before courts and tribunals by providing a clear mechanism by which a person can seek merits review of the Secretary’s decision to issue, vary or revoke a provisional or final transparency notice (as the case may be).

31.               To the extent that the transparency notice scheme limits the right to equality before courts and tribunals by limiting the application of procedural fairness in Division 3 of Part 1 of the Bill, it does so in a way that is reasonable, necessary and proportionate to the legitimate objective of the scheme, that is to make transparent to government and the public the sources of foreign influence in Australia. 

Conclusion

The amendments are compatible with human rights as they reduce the limitations imposed by the Act on a number of human rights including the right to liberty, the right to be presumed innocent and the right to privacy.  To the extent that the amendments may limit human rights, those limitations are reasonable, necessary and proportionate to the legitimate objective of the Bill, which is to enhance the knowledge of the Australian public and Australian decision-makers of the level and extent to which foreign sources may be influencing political or government systems and processes in Australia. 

NOTES ON AMENDMENTS

Amendment 1: Clause 3, page 2 (line 16)

32.                This amendment will remove the words ‘foreign businesses’ from the description of the object of the Act in proposed section 3.

33.                Section 3 currently provides that the object of the Act is to provide a scheme for 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.

34.                The changes to the definition of foreign principal at Amendment 16 exclude foreign businesses.  This change makes it unnecessary to refer to foreign businesses when outlining the object of the Act in section 3.

Amendment 2: Clause 4, page 2 (line 23) to page 3 (line 2)

35.                This amendment will remove the words ‘whether the person has recently held a senior Commonwealth position (including as a member of Parliament’ from the simplified outline of the Act in proposed section 4 and replace it with the words ‘the person’s former status’.

36.                Section 4 currently sets out a simplified outline of the Act and 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.

37.                Amendment 28 will remove the definition of senior Commonwealth position from the Bill.  Amendment 9 will insert a new definition of designated position holder .

38.                This amendment is made as a consequence of this change in terminology.  

Amendment 3: Clause 6, page 3 (lines 18 and 19)

39.                This amendment will omit section 6 of the Act.  Section 6 provides that the Act has extraterritorial operation and applies both within and outside Australia.

40.                This amendment is appropriate given the extension of geographical jurisdiction for the offences which could be committed outside Australia, to be located in section 61A, inserted by Amendment 119.

Amendment 4: Page 5 (after line 21), at the end of Division 1

41.                This amendment inserts new section 9A which clarifies that the scheme does not abrogate parliamentary privilege or legal professional privilege. 

42.                Subsection 9A(1) provides that the Act does not affect the law relating to the powers, privileges and immunities of any of the following:

·          each House of the Parliament

·          the members of each House of the Parliament, and

·          the committees of each House of the Parliament and joint committees of both Houses of the Parliament.

43.                This section relates to the special legal rights and immunities that apply to each House of the Parliament, its members and its committees. These rights and immunities derive from section 49 of the Australian Constitution and are codified in the Parliamentary Privileges Act 1987 .  The function of parliamentary privilege is to allow for the proper operation of the Parliament and to protect the ability of legislative Houses, their members and committees to exercise their authority and perform their duties. 

44.                Subsection 9A(2) provides that the Act does not affect the law relating to legal professional privilege. 

45.                Legal professional privilege protects confidential communications between a lawyer and a client from disclosure where those communications are for the dominant purpose of seeking or providing legal advice, or for use in existing or anticipated legal proceedings. Legal professional privilege facilitates the administration of justice by promoting open communications between a lawyer and their client, enabling the lawyer to give proper advice and representation.

46.                Subsection 9A(3) limits the application of the Secretary’s information-gathering powers under proposed sections 45 and 46 of the Act with respect to information or documents that are protected by parliamentary privilege or legal professional privilege. 

47.                Section 45 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably suspects that the 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 the foreign principal.  Section 46 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably believes that the person has information that is relevant to the operation of the scheme.

48.                Paragraph 9A(3)(a) provides that the Secretary’s powers under sections 45 and 46 do not extend to requiring a person to give information, or produce documents or copies of documents, if:

·          the information or documents are protected by a privilege or immunity mentioned in subsections 9A(1) (parliamentary privilege) or (2) (legal professional privilege) - subparagraph 9A(3)(a)(i), or  

·          complying with the requirement would involve a breach of a privilege or immunity mentioned in subsections 9A(1) (parliamentary privilege) or (2) (legal professional privilege) - subparagraph 9A(3)(a)(ii).

49.                Paragraph 9A(3)(b) provides that where paragraph 9A(3)(a) applies, a person is not required to comply with any notice or request issued by the Secretary under sections 45 or 46 to that effect.  This paragraph clarifies that the person is not required to comply with the notice issued by the Secretary only to the extent that it may require the provision of privileged information or involve a breach of privilege. The person must comply with the notice to the extent that it does not have this effect.

50.                The fact that an express statement has been included about the privileges of the Commonwealth Parliament should not be read as an intention to override any state or territory privileges or immunities, even though section 9A does not mention them.  Amendment 56 inserts a specific exemption for state and territory members of Parliament.  There is no intention to abrogate any other privileges, rights or immunities, wherever they may arise.

51.                This amendment implements Recommendation 28 of the PJCIS report.

Amendment 5: Clause 10, page 6 (before line 4), before the definition of approved form

52.                This amendment inserts a new definition of applicable disallowance period into section 10 of the Bill.  This definition provides that applicable disallowance period has the meaning given in subsection 53(5). 

53.                Subsection 53(5), to be inserted by Amendment 95 defines applicable disallowance period for a House of the Parliament to mean the period of 15 sitting days of that House after the rules, or a copy of the rules, was laid before that House in accordance with section 38 of the Legislation Act 2003 .

54.                This definition is needed for new subsection 53(3) (also inserted by Amendment 95) which provides for the PJCIS to review rules made for the purposes of authorising the Secretary to communicate scheme information.

Amendment 6: Clause 10, page 6 (lines 13 to 24)

55.                This amendment removes the definition of broadcaster in section 10 of the Bill.

56.                The definition of broadcaster was used in the definition of communications activity in proposed section 13. Amendment 38 will amend section 13 so that it refers to a disseminator rather than a broadcaster for the purposes of that section.  This amendment means it is unnecessary to retain the definition of broadcaster in section 10.

Amendment 7: Clause 10, page 7 (line 6)

57.                This amendment updates the cross-reference to the definition of communications activity in section 10 of the Bill.

58.                Section 10 currently defines communications activity by reference to ‘subsection 13(1)’.  This amendment is a technical amendment to ensure that the reference to communications activity in proposed section 10 refers to the entirety of the definition of communications activity in section 13, rather than only subsection 13(1). 

Amendment 8: Clause 10, page 7 (lines 7 to 30)

59.                This amendment removes the definition of controlled from section 10 of the Bill. 

60.                The definition of controlled was used in the definition of foreign public enterprise in section 10 which referred to a company or other person (other than an individual) being controlled by a foreign government.  Amendment 15 removes the term foreign public enterprise and Amendment 13 replaces it with the term foreign government related entity , which does not rely on a definition of controlled.

61.                This change makes it unnecessary to retain the definition of controlled in section 10.

Amendment 9:  Clause 10, page 7 (after line 33)

62.                This amendment inserts a new definition of designated position holder in section 10 of the Bill.

63.                A designated position holder will be defined to mean any of the following:

·          a Minister

·          a member of the Parliament

·          a person employed under section 13 or 20 of the Members of Parliament (Staff) Act 1984 who is a member of the staff of a Minister and whose position is at or above the level of Senior Advisor

·          an Agency Head (within the meaning of the Public Service Act 1999 )

·          a deputy agency head (however described)

·          the holder of an office established by or under a law of the Commonwealth and equivalent to that of an Agency Head or deputy agency head, or

·          the holder of an office of the Commonwealth as an Ambassador or High Commissioner, in a country or place outside of Australia.

64.                This definition is relevant for the purposes of proposed section 23 of the Bill, which requires recent designated position holders to register under the scheme if, in undertaking a registrable activity on behalf of a foreign principal, the person contributes experience, knowledge, skills or contacts gained in the person’s former capacity.

65.                This amendment means that some senior staff to Ministers will fall within the definition of designated position holder and may be subject to registration requirements under proposed section 23.  Consistent with paragraph (c) of the definition, a person employed under section 13 or 20 of the MOPS Act must hold a position of ‘Senior Advisor’ or above.  Consistent with current arrangements, this would include positions designated as:

·          Senior Advisor

·          Senior Media Advisor

·          Principal Advisor, and

·          Chief of Staff.

66.                It is intended to capture positions that are of equivalent seniority but bear a local title (such as the National Security Advisor to the Prime Minister).

67.                For the purposes of paragraph (c) of the definition, the reference to Ministers includes Cabinet Ministers, Ministers and Parliamentary Secretaries. 

68.                This amendment also means that persons who have held the position of an Ambassador or High Commissioner may be subject to registration requirements under proposed section 23. The inclusion of former Ambassadors and High Commissioners in the concept of recent designated position holders recognises that such persons play a unique role in Australia’s foreign relations and that, when acting on behalf of a foreign principal upon ceasing their role, such persons have the potential to be uniquely influential.  It is in the public interest to require transparency from such individuals in these circumstances.

69.                This amendment implements Recommendation 15 of the PJCIS report.

Amendment 10:  Clause 10, page 8 (lines 5 to 9)

70.                This amendment removes the term donor activity from section 10 of the Bill and replaces it with a definition of disbursement activity

71.                The definition of disbursement activity provides that a person undertakes disbursement activity if:

·          the person disburses money or things of value; and

·          neither the person 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 1918 .

72.                The term disbursement activity better describes the activity that falls within the definition, given electoral donations are specifically excluded from the definition by paragraph (b).

73.                Changes have not been made to the substance of the definition in section 10 - it continues to provide that disbursement activity is undertaken by a person if the person disburses money or things of value, and neither the person 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 1918 .  Disbursement activity remains registrable under section 21 when undertaken in Australia on behalf of a foreign principal for the purpose of political or governmental influence. 

Amendment 11:  Clause 10, page 8 (after line 13), after the definition of federal election

74.                This amendment inserts a new definition of final transparency notice into section 10 of the Bill.  The amendment provides that final transparency notice has the meaning given in section 14C

75.                Section 14C provides that if the Secretary does not revoke a provisional transparency notice before the end of the 28 day period within which the person may make submissions, the notice comes into force as a final transparency notice .  Consistent with paragraph 14D(b), the notice then remains in force until revoked.

Amendment 12: Clause 10, page 8 (lines 14 to 21)

76.                This amendment removes the definition of foreign business from section 10 of the Bill.

77.                The definition of foreign business was used in paragraph (d) of the definition of foreign principal , which defined a foreign principal to include a foreign business. 

78.                Amendments 15 and 16 will limit the definition of foreign principal in section 10 of the Bill to mean a foreign government, foreign government related entity, foreign political organisation or foreign government related individual. As the definition will no longer include a foreign business , it is unnecessary to retain a definition of foreign business in section 10.  

Amendment 13: Clause 10, page 8 (after line 31)

79.               This amendment inserts definitions of foreign government related entity and foreign government related individual in section 10 of the Bill.  These definitions are relevant to the definition of foreign principal , as amended by Amendments 15 and 16. 

80.               This amendment implements Recommendations 2, 3, 4 and 5 of the PJCIS report. 

81.                A foreign government related entity is defined to mean a person, other than an individual, who is related to a foreign government or foreign political organisation in one or more of the following ways:

·          if the person is a company, one of more of the following applies:

o    the foreign principal holds more than 15% of the issued share capital of the company

o    the foreign principal holds more than 15% of the voting power in the company

o    the foreign principal is in a position to appoint at least 20% of the company’s board of directors

o    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 foreign principal

o    the foreign principal is in a position to exercise, in any other way, total or substantial control over the company

·          if the person is not a company, either of the following applies:

o    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 foreign principal, or

o    the foreign principal is in a position to exercise, in any other way, total or substantial control over the person

· if the person is not a company, or falls within paragraphs (d) to (h), of the definition of person in section 10 and the foreign principal is a foreign political organisation:

o    a director or officer or employee of the person, or any part of the person, is required to be a member or part (however described) of that foreign political organisation, and

o    that requirement is contained in a law, or in the constitution, rules or other governing documents by which the person is constituted or according to which the person operates.

82.                Person is defined in section 10 to mean 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. Consistent with the definition, persons who are individuals will not be covered by this definition (these persons are covered by the definition of foreign government related individual , to be inserted by this Amendment). Under this definition, a person need not be resident in Australia, be formed or created in Australia, be carrying or a business within Australia, or be constituted under a law of Australia.

83.                No part of the definition of foreign government related entity will be satisfied by the provision of funding by a foreign government or foreign political organisation alone.  If that is the only link between an entity and a foreign government or foreign political organisation then the definition will not be satisfied.

84.                Paragraph (a) of the definition applies where the person is a company.  It only applies where the foreign principal is a foreign government or a foreign political organisation (as defined in section 10).  The definition will not apply where the foreign principal is another foreign government related entity .

85.                Subparagraph (a)(i) of the definition applies where the foreign principal holds more than 15% of the issued share capital of the company.  This issued share capital is intended to be a reference to the total of a company’s shares that are held by shareholders.  This paragraph cannot be interpreted to apply to other means by which a company receives funding.  For example, subparagraph (a)(i) will not apply if a company receives more than 15% of its overall funding from a foreign government or foreign political organisation.  It is limited specifically to the situation where the foreign government or foreign political organisation holds more than 15% of the issued share capital of the company.

86.                Subparagraph (a)(ii) of the definition applies where the foreign principal holds more than 15% of the voting power in the company.

87.                Subparagraph (a)(iii) of the definition applies where the foreign principal is in a position to appoint at least 20% of the company’s board of directors.

88.                Subparagraph (a)(iv) of the definition applies where 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 foreign principal.  This subparagraph will apply where the directors are under an obligation relating to their role in the company or the activities of the company rather than their personal capacity.  It will not apply to obligations with which all persons are obliged to comply.  For example, all persons are under an obligation to obey the law of a foreign country, and this will not be sufficient for this subparagraph to be satisfied. 

89.                The reference to ‘accustomed’ is intended to refer to situations where the person is accustomed to acting in accordance with the directions, instructions or wishes of the foreign principal in their position as director.  It does not apply simply because a director has previously held a position in which he or she was accustomed to acting in accordance with the directions, instructions or wishes of the foreign principal.  For example, a company may appoint a director who formerly held a senior position in the public service of a foreign country.  In that context, the person would have been accustomed to acting in accordance with the directions of the foreign government as their employer.  This would not be sufficient (in isolation) to mean that the company that had this director would be a foreign government related entity.  The reference to ‘accustomed’ in this subparagraph implements Recommendation 3 of the PJCIS report

90.                Subparagraph (a)(v) of the definition applies where the foreign principal is in a position to exercise, in any other way, total or substantial control over the company.  The reference to ‘substantial’ control is intended to convey that the foreign principal must exercise a considerable amount of control, or must control the essential aspects of the company, rather than just having a small or trivial level of control.

91.                Paragraph (b) of the definition applies where the person is not a company - for example a partnership or an association.

92.                Subparagraph (b)(i) of the definition applies where 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 foreign principal.  As with subparagraph (a)(iv) of the definition, this subparagraph will apply where the directors are accustomed, or under an obligation, relevant to their role in the company or the activities of the company rather than their personal capacity.  It will not apply to obligations with which all persons are obliged to comply.  For example, all persons are under an obligation to obey the law of a foreign country, and this will not be sufficient for this subparagraph to be satisfied.  The reference to ‘accustomed’ in this subparagraph implements Recommendation 3 of the PJCIS report.

93.                Subparagraph (b)(ii) applies where the foreign principal is in a position to exercise, in any other way, total or substantial control over the person.  As with subparagraph (a)(v) of the definition, the reference to ‘substantial’ control is intended to convey that the foreign principal must exercise a considerable amount of control, or must control the essential aspects of the company, rather than just having a small or trivial level of control.

94.                Paragraph (c) of the definition applies where the foreign principal is a foreign political organisation (as defined in section 10) and the person is a person (other than an individual or body politic).  This paragraph applies where:

·          a director, officer or employee of the person, or any part of the person, is required to be a member or part (however described) of that foreign political organisation, and

·          that requirement is contained in a law, or in the constitution, rules or other governing documents by which the person is constituted or according to which the person operates.

95.                Paragraph (c) of the definition would apply where, for example, the law of a country requires all companies of a particular size to have a person who is a member of a governing political party as a member of the company’s board of directors.

96.                The Note to this definition provides that a transparency notice issued under Division 3 of Part 1 may state that a person is a foreign government related entity.  If a notice is issued, the person stated in the notice is a foreign government related entity and therefore a foreign principal for the purposes of the scheme.

97.                The amendment that inserts the definition of foreign government related entity implements Recommendation 2 of the PJCIS report.

98.                Amendment 11 also inserts a definition of foreign government related individual into section 10.  Foreign government related individual is defined mean an individual: 

· who is neither an Australian citizen nor a permanent Australian resident, and

· who is related to a foreign principal that is a foreign government, foreign government related entity or foreign political organisation in either or both of the following ways:

o    the individual is accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign principal, or

o    the foreign principal is in a position to exercise, in any other way, total or substantial control over the individual.

99.                This definition will only apply to individuals who are neither Australian citizens nor Australian permanent residents.  It will apply where the foreign principal is a foreign government , foreign political organisation or foreign government related entity as defined in section 10 (as amended by this Amendment).

100.            Subparagraph (b)(i) of the definition applies where the individual is accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign principal. It will not apply to obligations with which all persons are obliged or accustomed to comply.  For example, all persons are under an obligation to obey the law of a foreign country, and this will not be sufficient for this subparagraph to be satisfied.  The reference to ‘accustomed’ in this subparagraph implements Recommendation 5 of the PJCIS report.

101.            Subparagraph (b)(ii) of the definition applies where the foreign principal is in a position to exercise, in any other way, total or substantial control over the individual.  The reference to ‘substantial’ control is intended to convey that the foreign principal must exercise a considerable amount of control over the individual, rather than just having a small or trivial level of control.

102.            The amendment that inserts the definition of foreign government related individual implements Recommendation 4 of the PJCIS report.

103.            The Note to this definition provides that a transparency notice issued under Division 3 of Part 1 may state that a person is a foreign government related individual.  If a notice is issued, the person stated in the notice is a foreign government related individual and therefore a foreign principal for the purposes of the scheme.

Amendment 14: Clause 10, page 8 (line 32)

104.            This amendment omits the current definition of foreign political organisation in section 10 of the Bill and inserts a new definition of this term.  The term foreign political organisation will be defined to include:

· a foreign political party, and

· a foreign organisation that exists primarily to pursue political objectives.

105.            The reference to foreign political parties in paragraph (a) of the definition is intended to cover political parties that are formally recognised or registered in a foreign country or part of a foreign country.  It is also intended to cover organisations that are akin to, and engage with the political system of the relevant country in the same way as, a formally recognised political party, even if that country does not have a system of registration for political parties.

106.            Paragraph (b) covers foreign organisations that exist primarily to pursue political objectives.  This paragraph is intended to capture organisations that have a political focus but are not ‘political parties’ per se.  It is not intended to cover charitable or advocacy organisations who have charitable or other goals as their primary objective (for example, environmental protection or social policy objectives).  The fact that engagement with the political system is an important means to progress these objectives would not mean that the organisations exist primarily to pursue political objectives.

107.            This amendment implements Recommendation 6 of the PJCIS report.

Amendment 15: Clause 10, page 9 (line 3)

108.            This amendment removes the words ‘public enterprise’ from paragraph (b) of the definition of foreign principal in section 10 and replaces them with the words government related entity.  This has the effect of removing the term foreign public enterprise from the definition of foreign principal and replacing it with the term foreign government related entity , which is separately defined in section 10, as amended by Amendment 13.

109.            This amendment implements Recommendation 1 of the PJCIS report, to the extent that it relates to foreign public enterprises.

Amendment 16: Clause 10, page 9 (lines 5 to 7)

110.            This amendment amends the definition of foreign principal in section 10 of the Bill by removing paragraphs (d) and (e) from the definition. 

111.            This amendment limits the definition of foreign principal to mean a foreign government, foreign government related entity, foreign political organisation or foreign government related individual.  The definition will now no longer include a foreign business (previously covered by paragraph (d)) or an individual who is neither an Australian citizen nor a permanent Australian resident (previously covered by paragraph (e)).

112.            The amendment inserts a new paragraph (d) into the definition of foreign principal .  New paragraph (d) refers to a foreign government related individual , which will be defined in section 10, as amended by Amendment 13.  This has the effect that foreign government related individuals are foreign principals for the purpose of the scheme.

113.            This amendment implements Recommendation 1 of the PJCIS report, to the extent that it relates to foreign businesses and foreign individuals.

Amendment 17: Clause 10, page 9 (lines 8 to 10)

114.            This amendment removes the definition of foreign public enterprise from section 10 of the Bill. Foreign public enterprise is being removed from the definition of foreign principal by Amendment 15 so it is no longer necessary to retain a definition of this term in section 10. 

Amendment 18: Clause 10, page 9 (after line 10)

115.            This amendment inserts a new definition of former Cabinet Minister .

116.            A former Cabinet Minister will be defined to mean, at a particular time, a person:

·          who was a member of the Cabinet at any time before the particular time, and

·          who is not at the particular time, a designated position holder. 

117.            This definition is relevant for the purpose of section 22 of the Bill (as amended by Amendments 50 to 52), which creates a requirement for former Cabinet Ministers to register under the scheme in certain circumstances.

118.            Section 22 of the Bill currently imposes registration requirements on recent Cabinet Ministers for a period of three years after they cease to hold a position as a Cabinet Minister or other designated position.  This amendment has the effect of increasing the period during which former Cabinet Minister may be required to register to a lifetime obligation.  This more accurately reflects the seniority of such persons within the Australian Government and the significant influence they can bring to bear in any activities undertaken on behalf of a foreign principal.

119.            A person cannot be a former Cabinet Minister if, at the particular time, he or she is a designated position holder.  A designated position holder is defined in Amendment 9 to mean a Minister, a member of the Parliament, a person who is a member of staff of a Minister and employed at the level of Senior Advisor and above under sections 13 or 20 of the MOPS Act, an Agency Head, a deputy agency head, the equivalent of an Agency Head or deputy agency head in an office established by or under a law of the Commonwealth, or an Ambassador or High Commissioner. 

120.            For example, a person may cease to be a member of the Cabinet but may still be a Ambassador.  For the period that they are an Ambassador, they will not yet be considered to be a former Cabinet Minister .

121.            This amendment implements Recommendation 14 of the PJCIS report, to the extent it relates to former Cabinet Ministers.

Amendment 19:  Clause 10, page 9 (line 31)

122.            This amendment removes the definition of the term periodical from section 10 of the Bill.

123.            The term periodical was used in the definition of communications activity in section 13. Amendment 38 will amend section 13 so that it no longer refers to a periodical. This amendment means it is unnecessary to retain the definition of periodical in section 10.

Amendment 20:  Clause 10, page 10 (after line 16), after the definition of political or governmental influence

124.            This amendment inserts a definition of provisional transparency notice into section 10 of the Bill.  The definition provides that provisional transparency notice has the meaning given in subsection 14B(1), to be inserted by Amendment 41.

125.            Subsection 14B(1) defines a provisional transparency notice to mean a notice issued by the Secretary stating that a particular person is a foreign government related entity or a foreign government related individual.  The Secretary may issue such a notice if the Secretary is satisfied that a person is a foreign government related entity or foreign government related individual.

Amendment 21:  Clause 10, page 10 (lines 18 to 22)

126.            This amendment removes the definition of recent Cabinet Minister from section 10 of the Bill.  This term is being replaced by the definition of former Cabinet Minister in Amendment 18, making it unnecessary to retain a definition of recent Cabinet Minister in section 10.

Amendment 22:  Clause 10, page 10 (after line 22)

127.            This amendment inserts a definition of recent designated position holder into section 10 of the Bill.

128.            A recent designated position holder will be defined to mean, at a particular time, a person:

·          who was a designated position holder at any time in the 15 years before the particular time, and

·          who is not at the particular time a designated position holder. 

129.            A designated position holder is defined in Amendment 9 to mean any of the following:

·          a Minister

·          a member of the Parliament

·          a person employed under section 13 or 20 of the Members of Parliament (Staff) Act 1984 who is a member of staff of a Minister and whose position is at or above the level or Senior Advisor

·          an Agency Head (within the meaning of the Public Service Act 1999 )

·          a deputy agency head (however described)

·          the holder of an office established by or under a law of the Commonwealth and equivalent to that of an Agency Head or deputy agency head, or

·          the holder of an office of the Commonwealth as an Ambassador or High Commissioner, in a country or place outside of Australia.

130.            This definition is relevant for the purposes of proposed section 23 of the Bill, which requires recent designated position holders to register under the scheme if, in undertaking a registrable activity on behalf of a foreign principal, the person contributes experience, knowledge, skills or contacts gained the person’s former capacity.

131.            Section 23 of the Bill currently imposes registration requirements on former Ministers, members of the Parliament, agency heads and deputy agency heads, as well as offices established under a law of the Commonwealth that are equivalent to an agency head or deputy agency, for a period of 18 months after they cease to hold such positions.  This amendment will have the effect of increasing the period during which recent designated position holders are required to register to 15 years after ceasing in a particular role is reflective of the fact that the reasons for imposing these additional requirements remain germane for a longer period of time than is presently reflected in the Bill.

132.            A person cannot be a recent designated position holder if, at the particular time. he or she is a designated position holder.  This means that, for example, a person who was a Minister and was then appointed as an Ambassador will not fall within the definition of recent designated position holder for the period that the person is an Ambassador.

133.            This amendment implements Recommendation 14 of the PJCIS report, to the extent it relates to recent designated position holders.

Amendment 23:  Clause 10, page 10 (lines 23 to 28)

134.            This amendment removes the definition of recent holder of a senior Commonwealth position from section 10 of the Bill. This definition is unnecessary due to the new definition of recent designated position holder being inserted by Amendment 22.

Amendment 24:  Clause 10, page 10 (line 29) to page 11 (line 2)

135.            This amendment removes the definition of recent Minister or member of Parliament from section 10 of the Bill.  This definition is unnecessary due to the new definition of recent designated position holder , to be inserted by Amendment 22.

Amendment 25:  Clause 10, page 11 (lines 11 to 14)

136.            This amendment removes the definition of registrable arrangement from section 10 and inserts a new definition, which provides that this term has the meaning given in section 13A.

137.            Section 13A (to be inserted by Amendment 39) provides that a registrable arrangement is an arrangement between a person and a foreign principal for the person to undertake, on behalf of the foreign principal, one or more activities that, if undertaken by the person on behalf of the foreign principal, would be registrable in relation to the foreign principal.  Section 13A also provides that an arrangement will not be a registrable arrangement to the extent that the arrangement is for the person to undertake an activity in circumstances in which the person would be exempt under Division 4 of Part 2.

Amendment 26:  Clause 10, page 11 (lines 18 to 20) to page 11 (line 2)

138.            This item omits the words ‘the rules, the Foreign Influence Transparency Scheme (Charges Imposition) Act 2017 and the regulations made under that Act’ from the definition of scheme in section 10 of the Bill.  The amendment will replace these words with the words ‘and the rules’.

139.            This amendment is consequential to Amendment 122 which removes section 63 from the Bill.  Following this amendment, fees will not be able to be charged for any applications or processes under the Bill.  Therefore, the Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017 will not proceed and the Charges Imposition Act and any regulation made under that Act will not exist and cannot form part of the scheme.

140.            Any rules made under the Foreign Influence Transparency Scheme Act will continue to fall within the definition of scheme in section 10 of the Bill.

Amendment 27:  Clause 10, page 11 (line 22)

141.            This amendment makes a minor technical amendment to remove the words ‘subsection 51(1)’ from the definition of scheme officials in section 10 of the Bill. Amendment 94 will remove subsections 51(2) and 51(3) from section 51 of the Act, which provide for evidentiary certificates to be issued by the Minister stating that a person is a scheme official for the purposes of the Act.

142.            As a result of Amendment 94, section 51 will no longer contain multiple subsections, which makes the reference to subsection 51(1) in the definition of scheme officials unnecessary. 

Amendment 28:  Clause 10, page 11 (lines 24 to 30)

143.            This amendment removes the definition of senior Commonwealth position from section 10 of the Bill. Reference to senior Commonwealth positions has been removed from the Act and replaced with the new definition of designated position holder in Amendment 9, making it unnecessary to retain the definition of senior Commonwealth position in section 10.

Amendment 29:  Clause 10, page 11 (after line 30)

144.            This amendment inserts a definition of transparency notice in section 10 of the Bill.  

145.            Transparency notice will have the meaning given to it by subsection 14A(2) which will be included in the Bill by Amendment 41.  New subsection 14A(2) provides that transparency notice means:

·          a provisional transparency notice (see subsection 14B(1)), or

·          a final transparency notice (see paragraph 14C(4)).

146.            Subsection 14B(1) defines a provisional transparency notice to mean a notice issued by the Secretary stating that a particular person is a foreign government related entity or a foreign government related individual.  The Secretary may issue such a notice if the Secretary is satisfied that a person is a foreign government related entity or foreign government related individual.

147.            Paragraph 14C(4) provides that if the Secretary does not revoke a provisional transparency notice before the end of the 28 day period within which a person may make submissions, the provisional transparency notice becomes a final transparency notice .  The notice then remains in force until revoked (consistent with paragraph 14D(b)).

Amendment 30:  Clause 11, page 12 (lines 23 to 30)

148.            This amendment omits subsection 11(1) from the Bill and replaces it with a new subsection 11(1).

149.            Following the amendment, a person will undertake an activity on behalf of a foreign principal if:

·          the person undertakes the activity in any of the following circumstances:

o    under an arrangement with the foreign principal

o    in the service of the foreign principal

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

o    under the direction of the foreign principal, and

·          at the time the arrangement or service is entered into, or the order, request or direction made, both the person and the foreign principal knew or expected that:

o    the person would or might undertake the activity, and

o    the person would or might do so in circumstances set out in section 20, 21, 22 or 23 (whether or not the parties expressly considered the existence of the scheme).

150.            The effect of this amendment is to narrow the circumstances in which a person will be considered to be acting on behalf of a foreign principal, particularly by removing paragraphs 11(1)(e) (with funding or supervision by the foreign principal) and 11(1)(f) (in collaboration with the foreign principal).  The amendment also amends subsection 11(3) and moves it into new paragraph 11(1)(b), to make it clear that this is an additional limitation on the circumstances in which a person will be acting on behalf of a foreign principal.

151.            This amendment also removes the reference to ‘controlled’ from subsection 11(1) .  This follows Amendment 8, which removes the definition of controlled from proposed section 10 of the Bill.

152.            Subparagraph 11(1)(a)(i) 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. 

153.            Subparagraph 11(1)(a)(ii) 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.

154.            Subparagraph 11(1)(a)(iii) 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.

155.            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.

156.            Subparagraph 11(1)(a)(iv) provides that a person is undertaking an activity on behalf of a foreign principal if the person undertakes the activity under the direction of the foreign principal.  Under the direction is not defined and is intended to take its ordinary meaning, including to cover the management or guidance of the person’s activities by the foreign principal.

157.            Paragraph 11(1)(b) provides that, at the time of making or entering into the arrangement, service, order, request or direction, both the person and the foreign principal must know or expect that the person would or might undertake the activity and that the person would or might do so in circumstances set out in section 20, 21, 22 or 23 (whether or not the parties expressly considered the existence of the scheme).  This ensures that a person does not need to register simply because their views align with those of a foreign principal, in a situation where the foreign principal has no ability to know that the person will or might engage in registrable activities.

158.            This amendment implements Recommendations 7 and 8 of the PJCIS report.

Amendment 31:  Clause 11, page 13 (lines 1 to 7)

159.            This amendment removes current subsection 11(3) from the Bill and inserts a new subsection 11(3), which provides that an activity undertaken by a company registered under the Corporations Act 2001 is not undertaken on behalf of a foreign principal merely because the company is a subsidiary (within the meaning of the Corporations Act) of a foreign principal.

160.            A company is registered under the Corporations Act once it has applied to the Australian Security and Investment Commission (ASIC) to be registered as a company and been formally issued with an Australian Company Number. 

161.            A subsidiary is defined in section 46 of the Corporations Act to mean a body corporate (the first body) that is a subsidiary of another body corporate (the other body) if, and only if:

·          the other body:

o    controls the composition of the first body’s board; or

o    is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first body; or

o    holds more than one-half of the issued share capital of the first body (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital), or

·          the first body is a subsidiary of a subsidiary of the other body.

162.            This amendment clarifies that a local subsidiary of a foreign principal is not taken to be acting on behalf of the foreign principal merely because it is owned, in whole or in part, by that foreign principal.  This amendment ensures that Australian companies are not considered to be acting on behalf of a foreign principal simply because they are a local subsidiary of, or are owned by, a foreign principal.

163.            While a company will not be considered to be acting on behalf of a foreign principal simply by virtue of being a subsidiary of a foreign principal, the company will not be fully exempt from the scheme.  For example, if a local subsidiary is directed by its foreign owner to engage in registrable activities in Australia, and the foreign owner falls within the definition of foreign principal under the scheme, the local subsidiary may be considered to be acting on behalf of a foreign principal due to subparagraph 11(1)(a)(iv).    

164.            This amendment implements Recommendation 9 of the PJCIS report.

Amendment 32: Clause 12, page 13 (lines 10 to 13)

165.            This amendment amends the definition of activity for the purpose of political or governmental influence in proposed section 12(1) of the Bill.  The amendment removes the words ‘a purpose of the activity (whether or not there are other purposes) is to influence, directly or indirectly, any aspect (including the outcome) of any one or more of the following’ and substitutes the words ‘the sole or primary purpose, or a substantial purpose, of the activity is to influence one or more of the following’ in the chapeau.

166.            Subsection 12(1) currently provides that a person undertakes an activity for the purpose of political or governmental influence if a purpose of the activity (whether or not there are other purposes) is to influence, directly or indirectly, any aspect (including the outcome) of the processes or proceedings listed in paragraphs 12(1)(a) to 12(1)(f).

167.            The effect of the amendment is that section 12 will only apply to an activity if its sole or primary purpose, or a substantial purpose, is to influence the activities listed in paragraphs 12(1)(a) to (f).  The amendment also removes the words ‘directly or indirectly’ and ‘any aspect’

168.            The terms ‘sole or primary purpose’ and ‘substantial purpose’ are not defined and will be given their ordinary meaning.  The term sole is intended to convey that an activity undertaken for political or governmental influence must be able to be completely and wholly considered as being done for political or governmental influence.  The term primary is intended to convey that the chief, principal or most important purpose of the activity is political or governmental influence.  The term substantial is intended to convey that an activity undertaken for political or governmental influence must be an ample or considerable amount of the purpose of the activity. 

169.            Purposes which are slightly connected or trivial will not be sufficient to meet these criteria.  For example, if an academic enters into an arrangement with a foreign principal to study a particular area and produce original research and analysis then this will be the primary purpose of those activities.  The fact that it is possible that the results of the research will be conveyed to the government in future to inform policy development would be an incidental purpose, and would not fall within the definition in section 12.

170.            This amendment implements Recommendation 10 of the PJCIS report.

Amendment 33:  Clause 12, page 13 (lines 22 to 26)

171.            This amendment amends the application of proposed section 12 of the Bill by removing subsection 12(2) and replacing it with a provision that provides a person also undertakes an activity for the purpose of political and governmental influence if the sole or primary purpose, or a substantial purpose, of the activity is to influence the public, or a section of the public, in relation to a process or proceedings mentioned in subsection 12(1).

172.            Subsection 12(2) currently provides 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 in subsection 12(1) by influencing the public, or a section of the public, in relation to the process or proceedings.  This subsection sought to clarify that the purpose of influence the public or a section of the public in relation to a process or proceeding mentioned in subsection 12(1) need not be the sole or dominant purpose for which an activity is undertaken, and there may be other purposes.  

173.            This amendment will narrow the scope of section 12 and is consistent with Amendment 32 to subsection 12(1) which will require that, for an activity to be registrable, the sole or primary purpose, or a substantial purpose , of that activity must be to influence any aspect of the process or proceedings listed in paragraphs 12(1)(a) to 12(1)(f).

174.            The terms ‘sole or primary purpose’ and ‘substantial purpose’ are not defined and will be given their ordinary meaning.  The term sole is intended to convey that an activity undertaken for political or governmental influence must be able to be completely and wholly considered as being done for political or governmental influence.  The term primary is intended to convey that the chief, principal or most important purpose of the activity is political or governmental influence.  The term substantial is intended to convey that an activity undertaken for political or governmental influence must be an ample or considerable amount of the purpose of the activity. 

175.            Purposes which are slightly connected or trivial will not be sufficient to meet these criteria.  For example, if an academic enters into an arrangement with a foreign principal to study a particular area and produce original research and analysis then this will be the primary purpose of those activities.  The fact that it is possible that the results of the research will be conveyed to the government in future to inform policy development would be an incidental purpose, and would not fall within the definition in section 12.

Amendment 34:  Clause 12, page 14 (lines 24 to 27)

176.            This amendment amends proposed subsection 12(5) of the Bill by removing existing subparagraph 12(5)(a)(vi) and replacing it with a new subparagraph that refers to ‘relationships with foreign principals’. 

177.            Subsection 12(5) currently provides a number of examples of processes in relation to a registered political party.  Under subparagraph 12(5)(a)(vi), these include processes relating to the party’s relationship with foreign principals within the meaning of paragraph (a), (b) or (c) of the definition of foreign principal in section 10, or with bodies controlled by such foreign principals.

178.            As currently drafted, subparagraph 12(5)(a)(vi) applies to the registered political party’s relationship with foreign principals that are foreign governments, foreign public enterprises or foreign political organisations.  The effect of this amendment is that that subparagraph 12(5)(a)(vi) will now apply to all categories of foreign principals in the revised definition of foreign principal at proposed section 10 of the Bill.

179.            This amendment is consequential to Amendment 15, which removes the concept of foreign public enterprise from the Bill and replaces it with a foreign government related entity , and Amendment 16, which will amend the definition of foreign principal in section 10 to mean a foreign government, a foreign government related entity, a foreign political organisation and a foreign government related individual.  It is also consequential to Amendment 8, which removes the definition of controlled from proposed section 10 of the Bill. 

Amendment 35:  Clause 12, page 15 (lines 18 to 21)

180.            This amendment amends proposed subsection 12(6) of the Bill by removing existing subparagraph 12(6)(a)(iv), and replacing it with a new subparagraph (iv) that refers to ‘relationships with foreign principals’. 

181.            Subsection 12(6) currently provides a number of examples of processes in relation to independent members of Parliament and candidates.  Under subparagraph 12(6)(a)(vi), these include processes relating to the person’s relationship with foreign principals within the meaning of paragraph (a), (b) or (c) of the definition of foreign principal in section 10, or bodies controlled by such foreign principals.

182.            As currently drafted, subparagraph 12(6)(a)(iv) applies only to an independent member of the Parliament or an independent candidate’s relationship with foreign principals that are foreign governments, foreign public enterprises or foreign political organisations. The effect of this amendment is that that subparagraph 12(6)(a)(vi) will now apply to all categories of foreign principals in the revised definition of foreign principal at proposed section 10 of the Bill.

183.            This amendment is consequential to Amendment 15, which removes the concept of foreign public enterprise from the Bill and replaces it with a foreign government related entity , and Amendment 16, which will amend the definition of foreign principal in section 10 to mean a foreign government, a foreign government related entity, a foreign political organisation and a foreign government related individual.  Given the revised definition of foreign principal is more closely linked to foreign government influence on Australian political and governmental processes, it is appropriate that the entirety of the new definition falls within subparagraph 12(6)(a)(vi).  

Amendment 36:  Clause 13, page 15 (line 28)

184.            This amendment amends the definition of communications activity in proposed subsection 13(1) of the Bill by adding the words ‘to the public or a section of the public’ to the current definition.

185.            Subsection 13(1) currently provides that a person undertakes communications activity if the person communicates or distributes information or material.  Adding the words ‘to the public or a section of the public’ at the end of this definition means that communications activity is limited to public, outward facing communication or distribution of information or material.  Examples of communicating or distributing information or material to the public, or a section of the public, would include placing advertisements on social media platforms, newspapers or television stations, or conducting a campaign of telephone calls or mailing leaflets to a section of the public (for example, to people in a particular electorate).  It will not capture, for example, private communications between colleagues. 

186.            This amendment implements Recommendation 11 of the PJCIS report.

Amendment 37:  Clause 13, page 15 (line 30)

187.            This amendment makes a minor technical amendment to remove ‘materials includes information or materials’ from subsection 13(2) and replace it with ‘material includes information or material’.  This amendment is necessary to correct an incorrect use of the plural ‘materials’ in subsection 13(2) of the Bill which should instead have been to the singular ‘material’.

188.            This amendment implements Recommendation 11 of the PJCIS report.

Amendment 38: Clause 13, page 15 (line 32) to page 16 (line 18)

189.            This amendment removes subsections 13(3) to 13(5) and inserts new subsections 13(3) and 13(4).  These subsections exclude certain activities from the definition of communications activity .

190.            New subsection 13(3) provides that an activity undertaken by a person (the disseminator) is not communications activity if:   

·          the activity is undertaken in the ordinary course of the disseminator’s business

·                      the activity is communicating or distributing, to the public or a section of the public, information or material:

o    produced entirely by a person other than the disseminator, or

o    produced by the disseminator only to the extent that the disseminator alters the information or material, without affecting substance, to ensure compliance with the law or to fit time or space constraints, and

·                      the identity of:

o    if the producer produced the information or material on behalf of another person—that other person, or

o    otherwise—the producer of the information or material;

is either apparent in the communicating or distributing or is disclosed in accordance with the rules.

191.            The term in the ordinary course of the disseminator’s business is not defined and will be given their ordinary meaning. The terms are intended to refer to the dissemination of information or material which is customary or normal in the disseminator’s occupation, profession or trade.

192.            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 section 13 if done so via a television program, newspaper, a magazine, an editorial, a book, a periodical, on social media, or via another online platform. 

193.            The requirement in revised subsection 13(3) that the identity of the producer is apparent from the information or material disseminated limits the scope of the exemption, and seeks to guard against non-transparent publications and or/broadcasts. It seeks to ensure that foreign principals cannot exploit the exemption by using a disseminator as a vehicle for foreign influence.  Examples of where the identity of the producer would be apparent from the information or material disseminated include:

·          where a television station broadcasts a program produced by another media organisation and that other media organisation’s logo is displayed

·          where a television or radio station broadcasts a short segment of content produced by another media organisation in the course of one of the station’s own news bulletins, and the station verbally identifies the media organisation that produced the content

·          where a print or online newspaper publishes an advertisement produced by a company (or on whose behalf an advertisement was produced by an advertising agency), and the company’s logo is displayed

·          where a television or radio station interviews a foreign government official, and the fact that the interviewee is an official of that foreign government is disclosed in the interview, and

·          where the disclosure is made in accordance with the rules.

194.            Media organisations, publishers and other disseminators will not be required to register under the scheme if the identity of the foreign principal is already transparent.  A disseminator should not be required to register if they disseminate (on behalf of a foreign principal, for the purpose of political or governmental influence), for example, an opinion-editorial or a book where the author’s name is stated in the by-line or on the cover.  However, if the disseminator broadcasts or publishes the material as though it was native content, thereby concealing the provenance of the material, registration should be required. For example, registration may be required where a disseminator publishes material given to a newspaper as an editorial, as though it were the newspaper’s own position. 

195.            Revised subsection 13(4) retains the current exemption for carriage service providers in existing subsection 13(3).  A specific exemption for carriage service providers recognises that carriage service providers do not communicate or distribute material in the ordinary course of their business, but rather provide the means by which information or material is communicated or distributed.

196.            A carriage service provider has the same meaning as section 87 of the Telecommunications Act 1997 .  Section 87 provides a basic definition which provides that a person is a carriage service provider if the 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.

197.            Consistent with subparagraph 13(3)(b)(i), a person who communicates or distributes to the public information or material produced entirely by another person, will not be required to register under the scheme, as long as the identity of the person who produced the material is apparent.

198.            Consistent with subparagraph 13(3)(b)(i), a person who communicates or distributes information or material to the public will not be required to register merely because they produced information or material to the extent that they altered the material, without affecting substance, to ensure compliance with the law or to fit time or space constraints.  This could occur, for example, when a disseminator shortens a television program produced by a foreign principal by a few seconds so that it fits into an allocated timeslot.

199.            This amendment implements Recommendation 11 of the PJCIS report.

Amendment 39: Clause 14, page 16 (lines 19 to 28)

200.            This amendment inserts a new provision dealing with registrable arrangements.

201.            Subsection 13A(1) provides that a registrable arrangement is an arrangement between a person and a foreign principal for the person to undertake, on behalf of the foreign principal, one or more activities that, if undertaken by the person on behalf of the foreign principal, would be registrable in relation to the foreign principal. 

202.            Subsection 13A also provides that an arrangement will not be a registrable arrangement to the extent that the arrangement is for the person to undertake an activity in circumstances in which the person would be exempt under Division 4 of Part 2.  This clarifies that the exemptions in Division 4 of Part 2 apply to both registrable arrangements and registrable activities, which implements Recommendation 27 of the PJCIS report.

Amendment 40: Clause 14, page 16 (lines 19 to 28)

203.            This amendment removes current section 14 from the Bill and replaces it with a new section 14 that provides that the purpose of an activity must be determined by having regard to:

·          the intention or belief of the person undertaking the activity, and

·          either or both of the following:

o    the intention of any foreign principal on whose behalf the activity is undertaken

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

204.            Under new section 14, it will be clear that the intention or belief of the person undertaking the activity must always be considered when determining the purpose of the activity and either the intention of the foreign principal or all of the other circumstances must also be considered.

205.            This amendment implements Recommendation 13 of the PJCIS report.

206.            The Note under section 14 clarifies that the purpose of an activity is relevant for some registrable activities and points the reader to section 12, which defines when an activity is for the purpose of political or governmental influence and section 21, which creates registration obligations for certain activities undertaken for the purpose of political or governmental influence.

Amendment 41:  Page 16 (after line 28), at the end of Part 1

207.            This amendment inserts new Division 3 into Part 1 of the Bill, which will provide that the Secretary may issue a transparency notice if the Secretary is satisfied that a person is a foreign government related entity or a foreign government related individual

208.            This amendment implements Recommendation 43 of the PJCIS report.

Section 14A—Transparency notices

209.            Subsection 14A(1) provides that, for the purposes of the Foreign Influence Transparency Scheme Act:

·          a person stated to be a foreign government related entity in a transparency notice that is in force is taken to be a foreign government related entity, and

·          a person stated to be a foreign government related individual in a transparency notice that is in force is taken to be a foreign government related individual.

210.            This has the effect that, if a transparency notice is in force, then the person or entity named in it will be a foreign government related entity or foreign government related individual (as the case requires) for the purposes of the definitions in section 10. In turn, the person or entity will therefore be a foreign principal for the purposes of the definition in section 10.   

211.            A foreign government related entity will be defined in section 10, as amended by Amendment 13, to mean a person, other than an individual, who is related to a foreign government or foreign political organisation in one or more of the following ways:

·          if the person is a company, one of more of the following applies:

o    the foreign principal holds more than 15% of the issued share capital of the company

o    the foreign principal holds more than 15% of the voting power in the company

o    the foreign principal is in a position to appoint at least 20% of the company’s board of directors

o    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 foreign principal

o    the foreign principal is in a position to exercise, in any other way, total or substantial control over the company

·          if the person is not a company, either of the following applies:

o    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 foreign principal, or

o    the foreign principal is in a position to exercise, in any other way, total or substantial control over the person;

· if the person is not a company, or falls within paragraphs (d) to (h), of the definition of person in section 10 and the foreign principal is a foreign political organisation:

o    a director or officer or employee of the person, or any part of the person, is required to be a member or part (however described) of that foreign political organisation, and

o    that requirement is contained in a law, or in the constitution, rules or other governing documents by which the person is constituted or according to which the person operates.

212.            A foreign government related individual will be defined in section 10, as amended by Amendment 13, to mean an individual: 

· who is neither an Australian citizen nor a permanent Australian resident, and

· who is related to a foreign principal that is a foreign government, foreign government related entity or foreign political organisation in either or both of the following ways:

o    the individual is accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign principal, or

o    the foreign principal is in a position to exercise, in any other way, total or substantial control over the individual.

213.            Both a foreign government related entity and a foreign government related individual are included in the definition of foreign principal in section 10 (as amended by Amendments 15 and 16).

214.            Subsection 14A(1) refers to a transparency notice being ‘in force’.  Section 14D provides for when a transparency notice is in force.  This is reflected in the Note under subsection 14A(1).

215.            Subsection 14A(2) provides a definition of transparency notice .  This definition provides that transparency notice means a provisional transparency notice or a final transparency notice.  Section 14B provides for the making of provisional transparency notices.  Section 14C(4) provides for when a provisional transparency notice becomes a final transparency notice.

Section 14B - Provisional transparency notice

216.            Section 14B provides for the Secretary to issue a provisional transparency notice in relation to a person where the Secretary is satisfied that a person is a foreign government related entity or a foreign government related entity, as the case requires.  This implements Recommendation 43 of the PJCIS report to the extent that it recommends including a ‘provisional’ transparency notice.

217.            Subsection 14B(1) provides that, if the Secretary is satisfied that a person is a foreign government related entity or a foreign government related individual, the Secretary may issue a notice (a provisional transparency notice ) stating that the person is a foreign government related entity or a foreign government related individual (as the case requires).

218.            A foreign government related entity will be defined in section 10, as amended by Amendment 13, to mean a person, other than an individual, who is related to a foreign government or foreign political organisation in one or more of the following ways:

·          if the person is a company, one of more of the following applies:

o    the foreign principal holds more than 15% of the issued share capital of the company

o    the foreign principal holds more than 15% of the voting power in the company

o    the foreign principal is in a position to appoint at least 20% of the company’s board of directors

o    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 foreign principal

o    the foreign principal is in a position to exercise, in any other way, total or substantial control over the company

·          if the person is not a company, either of the following applies:

o    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 foreign principal, or

o    the foreign principal is in a position to exercise, in any other way, total or substantial control over the person;

· if the person is not a company, or falls within paragraphs (d) to (h), of the definition of person in section 10 and the foreign principal is a foreign political organisation:

o    a director or officer or employee of the person, or any part of the person, is required to be a member or part (however described) of that foreign political organisation, and

o    that requirement is contained in a law, or in the constitution, rules or other governing documents by which the person is constituted or according to which the person operates.

219.            A foreign government related individual will be defined in section 10, as amended by Amendment 13, to mean an individual: 

· who is neither an Australian citizen nor a permanent Australian resident, and

· who is related to a foreign principal that is a foreign government, foreign government related entity or foreign political organisation in either or both of the following ways:

o    the individual is accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign principal, or

o    the foreign principal is in a position to exercise, in any other way, total or substantial control over the individual.

220.            Consistent with subsection 14A(1), a provisional transparency notice will be a transparency notice and, for the period that the notice is in force, means that the person stated in the provisional transparency notice is taken to be a foreign government related entity or foreign government related individual (as the case requires). 

221.            Section 14D provides for when a transparency notice is in force.  For a provisional transparency notice , paragraph 14D(a) provides that a provisional transparency notice comes into force on the day the notice is first made available to the public on a website under subsection 43(2A) and paragraph 14D(b) provides that it remains in force until revoked.

222.            The Secretary must personally exercise the power in subsection 14B(1).  Subsection 67(1A) (to be inserted by Amendment 124) provides that the Secretary must not delegate his or her functions or powers under section 14B.

223.            The Note under subsection 14B(1) clarifies that the Secretary’s powers to obtain information or documents under section 46 may assist the Secretary to be satisfied about whether a person is a foreign government related entity or foreign government related individual.  Section 46 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably believes that the person has information that is relevant to the operation of the scheme. 

224.            Paragraph 14B(2)(a) provides that a provisional transparency notice must be in writing.  Consistent with the Acts Interpretation Act 1901 , ‘writing’ includes any mode of representing or reproducing words, figures, drawings or symbols in a visible form.

225.            Paragraph 14B(2)(b) requires a provisional transparency notice to include such details as the Secretary considers necessary to identify the person who is the subject of the notice.  Given that a provisional transparency notice is made public, it is not appropriate to include further details in the notice itself.  The person named in the notice will be directly provided with more information about the notice under section 14C.  Therefore, the publicly available provisional transparency notice will only contain sufficient details to identify the person who is the subject of the notice.  This implements Recommendation 43 of the PJCIS report to the extent that it requests clarity about the details that must be included in the notice.

226.            Note 1 under subsection 14B(2) provides that the Secretary must make provisional transparency notices publicly available on a website in accordance with proposed subsection 43(2A), to be inserted by Amendment 85. Subsection 43(2A) requires the Secretary to make available to the public, on a website, each provisional transparency notice issued under section 14B, along with:

· a written statement to the effect that a person whose interests are affected by the decision to issue the notice may, subject to the Administrative Appeals Tribunal Act 1975 , apply to the AAT for review of the decision, and

· if the notice comes into force as a final transparency notice under subsection 14D(2) - a written statement to that effect.

227.            Note 2 under subsection 14B(2) clarifies that section 14C provides for the person who is the subject of the notice to make submissions about the notice.  Note 2 also clarifies that a decision by the Secretary to issue a transparency notice is reviewable in accordance with proposed section 14H, which provides that applications may be made to the Administrative Appeals Tribunal for review of a decision by the Secretary to issue a provisional transparency notice under subsection 14B(1) (see paragraph 14H(a)).  The Note also clarifies that notice of review rights must be provided on the website with the provisional transparency notice (see subsection 43(2A), to be inserted by Amendment 85).

Section 14C - Submissions in relation to provisional transparency notice

228.            Subsection 14C(1) provides that, if the Secretary issues a provisional transparency notice in relation to a person, the Secretary must also:

· prepare an invitation for the person in accordance with subsection 14C(2), and

· take reasonable steps to give the invitation to the person as soon as practicable.

229.            The reference to taking ‘reasonable’ steps to give the invitation to the person in paragraph 14C(1)(b) reflects that the person named in the notice may not be located within Australia or the Secretary may not have an address for the person. The Secretary must take reasonable steps to identify an address for the person and to send the required information to the person. 

230.            Subsection 14C(2) sets out the details that must be included in the invitation that the Secretary is required to prepare under paragraph 14C(1)(a).  The invitation must:

· invite the person to make submissions to the Secretary about the provisional transparency notice within 14 days of the date of the invitation

· set out the effect of sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents), and

· notify the person of the person’s right to have certain decisions relating to the transparency notice reviewed.

231.            This allows the person to receive a copy of the notice and make submissions to the Secretary about whether or not the person does fall within the relevant definition and to provide other relevant information.

232.            Subsection 14C(3) provides that, if the person makes submissions about the provisional transparency notice within 14 days of the date of the invitation, the Secretary must consider the submissions before the end of the period of 28 days after the date of the invitation.  During this period, the person can provide factual or other information to the Secretary, who has the ability to vary or revoke transparency notices under subsection 14E.

233.            Subsection 14C(4) provides that if the Secretary does not revoke a provisional transparency notice before the end of the period of 28 days after the date of the invitation then the provisional transparency notice becomes a final transparency notice from that date.

Section 14D - When a transparency notice is in force

234.            Section 14D provides that a transparency notice:

· comes into force on the day the provisional transparency notice is first made available to the public on a website under subsection 43(2A), and

· remains in force, whether as a provisional transparency notice or a final transparency notice, until revoked.

235.            The requirement that the notice comes into force when it is made publicly available on the website reflects that, once in force, the person named in the notice is taken to be a foreign principal for the purpose of the scheme, which may enliven registration requirements for another person.  It is appropriate that this requirement can only arise at a point in time when the provisional transparency notice is available to the public.  This amendment implements Recommendation 43 of the PJCIS report, to the extent that it recommends that a transparency notice should come into force when it is made public, rather than when it is made.

236.            The Note under section 14D states that if a provisional transparency notice becomes a final transparency notice under subsection 14C(4), the provisional transparency notice made publicly available on a website must be accompanied by a statement to that effect (consistent with subsection 43(2A), to be inserted by Amendment 85).

Section 14E -Varying or revoking transparency notices

237.            Subsection 14E(1) provides that the Secretary may vary a transparency notice if the Secretary is satisfied that the details in the notice that identify the person stated to be a foreign government related entity or foreign government related individual (as the case requires) should be updated or corrected. 

238.            The effect of this subsection is to enable the Secretary to make corrections or updates to a transparency notice where it becomes clear, either through further investigation or through a person providing additional or updated details, that the details in the notice which identify a person as a foreign government related entity or a foreign government related individual are incorrect.  For example, the Secretary may vary a transparency notice if the foreign government related entity to which it refers changes its name.

239.            Subsection 14E(2) provides that the Secretary must revoke a transparency notice if the Secretary ceases to be satisfied that the person is a foreign government related entity or foreign government related individual (as the case requires).

240.            The effect of this subsection is to require the Secretary to revoke a transparency notice issued in relation to a person when there is evidence that satisfies the Secretary that the person no longer falls within the definition of a foreign government related entity or a foreign government related individual.  For example, the Secretary must revoke a transparency notice if the foreign government related entity changes its ownership structure and no longer meets the relevant criteria (for example, if 17% of its issued share capital was previously owned by a foreign government, but this is later reduced to 12%).

241.            Subsection 14E(3) provides that a transparency notice must be in writing.  Consistent with the Acts Interpretation Act, ‘writing’ includes any mode of representing or reproducing words, figures, drawings or symbols in a visible form

242.            Note 1 under subsection 14E(3) clarifies that the Secretary must make transparency notices publicly available in accordance with subsection 43(2A).  Subsection 43(2A) will be inserted into the Bill by Amendment 85, and will require the Secretary to make available to the public, on a website, any variation or revocation under section 14E along with a written statement to the effect that a person whose interests are affected by the decision to vary or revoke the notice may, subject to the Administrative Appeals Tribunal Act 1975 , apply to the AAT for review of the decision.

243.            Note 2 under subsection 14E(3) clarifies that a decision by the Secretary to vary or revoke a transparency notice is reviewable under section 14H.  Note 2 also states that notice of review rights must be provided on the website with the variation or revocation, consistent with subsection 43(2A).

Section 14F - Transparency notice is not a legislative instrument

244.            Section 14F provides that a transparency notice, or a variation or revocation of a transparency notice, is not a legislative instrument. 

245.            This clarifies that a variation or revocation of a notice is not legislative in character and the provisions of the Legislation Act 2003 which regulate matters relating to legislative instruments and notifiable instruments would not apply.  Proposed section 14C(5) is intended to be merely declaratory of the law, and is not intended to constitute a substantive exemption from the requirements of the Legislation Act. 

Section 14G - Requirements in relation to procedural fairness

246.            Section 14G provides that the Secretary is not required to observe any requirements of procedural fairness in issuing a transparency notice other than those set out in section 14C.  The effect of this subsection is to insert a clear legislative intention in the Act which will exclude the rules of procedural fairness that may otherwise be available to a person in these circumstances.

247.            Section 14C requires the Secretary to take reasonable steps to give a person named in a provisional transparency notice an invitation to provide submissions about the provisional transparency notice.  The Secretary has the ability to vary or revoke transparency notices under section 14E.

248.            The process set out in section 14C allows the person named in the notice to have an opportunity to present any relevant facts or circumstances to the Secretary about whether the person satisfies the definition of foreign government related entity or foreign government related individual

Section 14H—Review of decisions relating to transparency notices

249.            Section 14H provides that applications may be made to the Administrative Appeals Tribunal for review of the following decisions of the Secretary:

· a decision under subsection 14B(1) to issue a provisional transparency notice

· a decision under subsection 14E(1) to vary a transparency notice, and

· a decision under subsection 14E(2) to revoke a transparency notice..

250.            The effect of this section is to provide legislative authority for the AAT to review certain decision relating to the Act.  The AAT is an independent statutory agency which conducts independent merits reviews of administrative decisions made under Commonwealth legislation.  The AAT can only exercise its powers where this is specifically provided for in the relevant legislation. 

Section 14J—Protections against actions for defamation

251.            Subsection 14J(1) provides that there is no action for defamation available against the Commonwealth, a Minister, the Secretary, the Department or another Agency (within the meaning of the Public Service Act 1999 ), or an officer of the Department or another Agency, because the Secretary or an officer takes any of the following actions:

·          issues, varies or revokes a transparency notice

·          includes a transparency notice, or any variation or revocation of a transparency notice, on the register

·          makes available a transparency notice, or any variation or revocation of a transparency notice, on a website

·          publishes or otherwise makes available, in any way, a transparency notice, or any variation or revocation of a transparency notice, or

·          supplies or gives access to a draft transparency notice, or the draft of any variation or revocation of a transparency notice, to a Minister or Agency or any other person. 

252.            The effect of this subsection is to allow the Secretary and other relevant officers to undertake duties in relation to issuing, varying and revocation of a transparency notice without the threat of an action in defamation being brought against them. 

253.            Defamation is the communication from one person to at least one other person that harms the reputation of an identifiable third person.  It is essential that transparency notices are made available publicly, so that it is clear to potential registrants that a person or entity is a foreign government related entity or foreign government related individual (as the case requires) and therefore a foreign principal for the purpose of the scheme.  Therefore, this would likely constitute a communication of the information.

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

255.            Secretary is defined in section 10 of the Act to mean the Secretary of the Department.  This will be the Secretary of the Department that has responsibility for the administration of the scheme.

256.            Consistent with the Public Service Act 1999 , a ‘Department’ means a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency, and an ‘Agency’ means a Department, an Executive Agency or a Statutory Agency. 

257.            Paragraph 14J(1)(a) refers to a decision to issue, vary or revoke a transparency notice.  The Secretary may issue a provisional transparency notice in relation to a person under subsection 14A(1), and may vary a transparency notice under subsection 14E(1) if satisfied that the notice should be updated or corrected.  The Secretary must revoke a transparency notice under subsection 14E(2) if the Secretary ceases to be satisfied that the person is a foreign government related entity or a foreign government related individual. 

258.            Paragraph 14J(1)(b) refers to including a transparency notice, or any variation or revocation of a transparency notice on the register.  Subsection 42(1) provides that the Secretary must keep a register of information in relation to the scheme.  Paragraphs 42(1)(aa), (ab) and (ac) (which will be inserted into the Bill by Amendment 81) will require the Secretary to include on the register any provisional transparency notices issued under section 14B and any revocation or variation of a transparency notice under section 14E and, for any provisional transparency notices that become final transparency notices under subsection 14C(4), a statement to that effect.

259.            Paragraph 14J(1)(c) refers to including a transparency notice, or any variation or revocation of a transparency notice on a website.  Subsection 43(2A) (which will be inserted into the Bill by Amendment 85) will require the Secretary to make available to the public, on a website, a copy of each provisional transparency notice issued under section 14B, and a copy of any variation or revocation under section 14E.  Publishing copies of transparency notices, as well as variations and revocations of such notices, is important to fulfil the scheme’s transparency objectives.  It will make it clear to potential registrants that a person or entity is a foreign government related entity or foreign government related individual (as the case requires), and therefore a foreign principal for the purpose of the scheme.  The Secretary will also be required, for any provisional transparency notices that become final transparency notices under subsection 14C(4), to publish on the website a statement to that effect.

260.            Paragraph 14J(1)(d) refers to publishing or otherwise making available a transparency notice, or any variation or revocation of a transparency notice.  This seeks to ensure that any publication or communication which falls outside paragraphs 14J(1)(a) to 14J(1)(c) is similarly protected from an action for defamation.

261.            Paragraph 14J(1)(e) refers to supplying or giving access to a draft transparency notice, or a draft variation or revocation of a transparency notice.  This seeks to ensure that ordinary communications between officers administering the scheme and an agency which provides information that informs the Secretary’s decision to issue a provisional transparency notice or  vary or revoke a transparency notice, and with a Minister, are similarly protected against an action for defamation.  For example, the administering department may consult a range of Commonwealth departments and agencies in preparing a variation of a transparency notice under subsection 14E(1) and may share the draft variation with those departments and agencies.

262.            Subsection 14J(2) provides that protection against an action for defamation will apply even where there has been a failure to comply with a requirement of the Act, or the Administrative Appeals Tribunal Act.  The effect of this subsection is to protect the Secretary and other officers from an action of defamation even if one of the actions at paragraphs 14J(1)(a) to 14J(1)(e) does not comply with the legislative requirements of this Act or the requirements of the Administrative Appeals Tribunal Act.

263.            Subsection 14J(3) will define who is an ‘officer’ for the purposes of subsection 14J(1).  An officer of a Department or Agency includes:

·          a scheme official

·          an APS employee in the Department or Agency

·          a member of the staff of the Department or Agency

·          a member of the Agency or

·          a person engaged to perform services for the Department or Agency.

264.            Scheme official is defined in section 51 of the Act to be the Secretary, an APS employee in the Department to whom a function or power is delegated under section 67 of the Act 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.

265.            An APS employee will mean a person who is engaged as an employee of the Australian Public Service in a Department or an Agency.

266.            Paragraphs 14J(3)(c) and (d) are intended to cover a person who is employed as a staff member of that Department of Agency or who is described as a member of a Department or Agency in the legislation governing the operations of that Department or Agency. 

267.            Paragraph 14J(3)(e) is intended to cover other categories of people who may be engaged to undertake functions and duties for the Department or Agency, such as contractors. 

Amendment 42:  Clause 15, page 17 (lines 14 and 15)

268.            This amendment removes the words ‘whether the person has recently held a senior Commonwealth (including as a member of Parliament’ from the simplified outline in section 15 of the Bill and replaces it with the words ‘the person’s former status’.

269.            Section 15 currently sets out a simplified outline of Part 2 of the Bill and provides an outline of when a person is liable to register under the scheme, whether a particular activity is registrable, when registration is taken to have ended, and exemptions to the requirement to register.

270.            Amendment 28 removes the term senior Commonwealth position from the Bill and Amendment 9 inserts a new definition of designated position holder

271.            This amendment is made as a consequence of this change in terminology.  

Amendment 43:  Clause 16, page 19 (line 18)

272.            This amendment removes the Note under subsection 16(2) of the Bill.

273.            Subsection 16(2) provides for the details that must accompany an application to register under the scheme.  The Note under subsection 16(2) stated that charges may be imposed in relation to applications under section 63.

274.            This amendment is consequential to Amendment 122 which removes section 63 of the Bill.  Following this amendment, fees will not be able to be charged for any applications or processes under the Bill.  Therefore, there is no need for this Note, which previously clarified for the reader that charges may apply to the application.

Amendment 44:  Clause 19, page 20 (line 32)

275.            This amendment removes the reference to a ‘recent’ Cabinet Minister in paragraph 19(2)(a) of the Bill and replaces it with a reference to a ‘former’ Cabinet Minister.

276.            Section 19 deals with the circumstances in which a person ceases to be liable to register under the scheme.  Subsection 19(2) provides that if a person is a recent Cabinet Minister, a recent Minister or member of Parliament, or a recent holder of a senior Commonwealth position, the person will cease to be liable to register in relation to the foreign principal on the day they cease to be that kind of person.

277.            Amendment 21 removes the term recent Cabinet Minister from the Bill and Amendment 18 inserts a new definition of former Cabinet Minister .  The amendment reflects this new terminology.

Amendment 45:  Clause 19, page 20 (lines 33 and 34)

278.            This amendment will remove the references to ‘recent Minister or member of Parliament’ and ‘recent holder of a senior Commonwealth position’ from proposed paragraphs 19(2)(b) and 19(2)(c) of the Bill.  The amendment replaces them with a new paragraph 19(2)(b), which refers to ‘a recent designated position holder’.

279.            Section 19 deals with the circumstances in which a person ceases to be liable to register under the scheme.  Subsection 19(2) provides that if a person is 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 on the day they cease to be that kind of person.

280.            Amendments 23 and 24 remove the terms recent holder of a senior Commonwealth position and recent Minister or member of Parliament from the Bill.  Amendment 22 inserts a new definition of recent designated position holder .  The amendment reflects this new terminology. 

Amendment 46:  Clause 21, page 21 (table item 1, column headed “Foreign principal”)

281.            This amendment removes the reference to foreign public enterprise from Item 1 of the table at section 21 of the Act and inserts a reference to foreign government related entity in Item 1 of the table, in the column headed ‘Foreign principal’.

282.            Following this amendment, and Amendment 47, Item 1 of the table in section 21 will provide that parliamentary lobbying undertaken in Australia for the purpose of political or governmental influence can be undertaken on behalf of a foreign principal that is a foreign government related entity, a foreign political organisation or a foreign government related individual.

283.            This amendment is consequential to Amendment 15 which removes the term foreign public enterprise from the definition of foreign principal in section 10 of the Bill. Amendment 13 inserts a new definition of foreign government related entity into section 10.

Amendment 47:  Clause 21, page 21 (table item 1, column headed “Foreign principal”)

284.            This amendment removes the references to ‘foreign business’ and ‘an individual’ from Item 1 of the table at section 21 of the Act.  The amendment also inserts a reference to foreign government related individual in Item 1 of the table, in the column headed ‘Foreign principal’.

285.            Following this amendment, and Amendment 46, Item 1 of the table in section 21 will provide that parliamentary lobbying undertaken in Australia for the purpose of political or governmental influence can be undertaken on behalf of a foreign principal that is a foreign government related entity, a foreign political organisation or a foreign government related individual.

286.            This amendment is consequential to Amendment 16, which removes paragraphs (d) and (e) from the definition of foreign principal in section 10 of the Bill and inserts a reference to a foreign government related individual

Amendment 48:  Clause 21, page 22 (table item 4, column headed “Activity”)

287.            This amendment removes the reference to donor activity from Item 4 of the table in section 21 of the Bill, and replaces it with a reference to disbursement activity. This amendment is consequential to Amendment 10 which removes the definition of donor activity from section 10 of the Bill and replaces it with the definition of disbursement activity

Amendment 49:  Clause 21, page 22 (table item 4, column headed “Foreign principal”)

288.            This amendment removes the references to ‘foreign government’, ‘foreign public enterprise’ and ‘a foreign political organisation’ from Item 4 of the table at section 21 of the Act, and  inserts a reference to any foreign principal in Item 1 of the table, in the column headed ‘Foreign principal’.

289.            Item 4 of the table in section 21 currently provides that ‘donor activity’ undertaken in Australia for the purpose of political or governmental influence can be undertaken on behalf of a foreign principal that is a foreign government, foreign public enterprise or foreign political organisation.

290.            Amendment 10 removes the definition of ‘donor activity’ in section 10 of the Bill and replaces it with the term disbursement activity .  Amendment 48 removes the reference to ‘donor activity’ from Item 4 of the table, and replaces it with a reference to disbursement activity .

291.            This amendment is consequential to Amendment 15 which removes foreign public enterprise from the definition of foreign principal in proposed section 10 of the Bill and replaces it with the term foreign government related entity . Amendment 16 limits the definition of a foreign principal in section 10 of the Bill to mean a foreign government, foreign government related entity, a foreign political organisation or a foreign government related individual.  

292.            The effect of this amendment is that disbursement activity undertaken in Australia for the purpose of political or governmental influence is registrable if undertaken on behalf of any kind of foreign principal.

Amendment 50:  Heading to clause 22, page 22 (line 4)

293.            This amendment removes the reference to ‘recent’ Cabinet Ministers from the heading of section 22 of the Bill, and replaces it with ‘former’ Cabinet Ministers. 

294.            This amendment is necessary to properly reflect the content of section 22, as amended by Amendment 51.

Amendment 51:  Clause 22, page 22 (line 7)

295.            This amendment removes the reference to a ‘recent’ Cabinet Minister from paragraph 22(a) of the Bill, and replaces it with a reference to a ‘former’Cabinet Minister. 

296.            Following this amendment, section 22 will apply to an activity that a person undertakes in relation to a foreign principal if:

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

·          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.

297.            This amendment is consequential to Amendment 21 which removes the definition of ‘recent Cabinet Minister’ in section 10 of the Bill and Amendment 17 which inserts a definition of former Cabinet Minister .  

Amendment 52:  Clause 22, page 22 (line 8)

298.            This amendment removes paragraph 22(b) from section 22 of the Bill.

299.            The effect of current paragraph 22(b) is that an activity undertaken by a person who is a recent Cabinet Minister is a registrable activity if undertaken on behalf of any foreign principal except an individual.   Amendment 16 removes an individual from the definition of foreign principal in section 10 of the Bill.  This change makes it unnecessary to retain paragraph 22(b).

Amendment 53:  Clause 23, page 22 (line 13) to page 23 (line 6)

300.            This amendment removes section 23 from the Bill and replaces it with a new section 23.

301.            Following this amendment, section 23 will provide that an activity a person undertakes on behalf of a foreign principal is registrable in relation to a foreign principal if:

·          the person is a recent designated position holder

·          in undertaking the activity, the person contributes experience, knowledge, skills or contacts gained in the person’s former capacity as a designated position holder

·          the activity is not registrable in relation to the foreign principal under another provision of Division 3 of Part 2, and

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

302.            Amendment 23 removes the definition of recent holder of a senior Commonwealth position and Amendment 24 removes the definition of recent Minister or member of Parliament from proposed section 10 of the Bill.  Amendments 9 and 21 insert new definitions of designated position holder and recent designated position holder in section 10 of the Bill, which are used in new section 23. 

303.            A designated position holder is defined in section 10, as amended by Amendment 8, to mean any of the following:

·          a Minister

·          a member of the Parliament

·          a person employed under section 13 or 20 of the Members of Parliament (Staff) Act 1984 who is a member of the staff of a Minister and whose position is at or above the level of Senior Advisor

·          an Agency Head (within the meaning of the Public Service Act 1999 )

·          a deputy agency head (however described)

·          the holder of an office established by or under a law of the Commonwealth and equivalent to that of an Agency Head or deputy agency head, or

·          the holder of an office of the Commonwealth as an Ambassador or High Commissioner, in a country or place outside of Australia.

304.            A recent designated position holder is defined in section 10, as amended by Amendment 21, to mean, at a particular time, a person:

·          who was a designated position holder at any time in the 15 years before the particular time, and

·          who is not at the particular time a designated position holder. 

305.            New section 23 does not specify the kinds of activities that a recent designated position holder needs to undertake in order to be captured by this provision.  Any activity done by a recent designated position holder on behalf of a foreign principal is registrable if, in undertaking the activity, the person contributes experience, knowledge, skills or contacts gained in the person’s former capacity as a designated position holder.  The terms experience, knowledge, skills and contacts are not defined in the Bill and are intended to be construed broadly.

306.            Unlike the registration requirements in sections 20 and 21, section 23 does not require the activities to be undertaken in Australia.  Recent designated position holders will be required to register if they meet the requirements set out in the section, regardless of where the activities are undertaken in the world.

307.            New section 23 is intended to be mutually exclusive to sections 20, 21 and 22.  As such, if the activity that the recent designated position holder undertakes is a registrable activity under one of those sections, section 23 will not apply.

Amendment 54:  Clause 24, page 24 (line 4)

308.            This amendment amends existing section 24 to clarify the operation of the proposed exemption for humanitarian aid or assistance.

309.            The humanitarian aid or assistance exemption at section 24 currently provides that a person is exempt in relation to an activity that is undertaken on behalf of a foreign principal if the activity is, or relates solely to, the provision of humanitarian aid or humanitarian assistance.

310.            This amendment extends the operation of the provision, so that it can be applied where the activity is, or primarily relates to, the provision for humanitarian aid or assistance. It will no longer need to be the sole purpose.

311.            The term ‘primarily’ 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 chiefly or principally considered as being done to provide humanitarian aid or humanitarian assistance.

312.            This amendment implements Recommendation 17 of the PJCIS report.

Amendment 55:  Clause 25, page 24 (lines 6 to 11)

313.            This amendment removes existing section 25 and replaces it with a broader exemption for legal advice or representation, as well as extending the exemption for legal representation in relation to a government administrative process.

314.            The legal advice or representation exemption at section 25 currently provides that a person is exempt in relation to an activity that a 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. 

315.            This amendment extends the operation of section 25, so that it can be applied where the activity is, or relates primarily to, or is incidental to, the provision of legal advice or representation. It will no longer need to be the sole purpose.

316.            The term ‘primarily’ 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 25 must be able to be chiefly or principally considered as being done to provide legal advice or legal representation. 

317.            The term ‘incidental’ is intended to attract a narrow meaning.  The Macquarie Dictionary defines the term to mean:

·          happening or likely to happen in fortuitous or subordinate conjunction with something else

·          incurred causally and in addition to the regular or main amount

·          something incidental, as a circumstance

·          minor expenses, and

·          incidental to, liable to happen in connection with; naturally appertaining to.

318.            In the context of the legal advice and representation exemption in section 25, the term ‘incidental’ is intended to only take the final of these dictionary meanings - incidental to, liable to happen in connection with; naturally appertaining to.  Some of the other meanings require only a slight connection, which is not sufficient for the exemption to apply.

319.            This amendment also clarifies that the exemption as it relates to legal advice covers the provision of all legal advice, and is not limited to legal advice provided in relation to judicial, criminal or civil inquiries, investigations or proceedings. 

320.            This amendment also extends the application of section 25 to include legal representation in relation to a government administrative process involving the foreign principal. The term ‘administrative process’ is not defined and will take its ordinary meaning. This will cover, for example, processes under the Foreign Acquisitions and Takeovers Act 1975 and Personal Property Securities Act 2009.

321.            The term ‘legal representation’ is not defined and it intended to take its ordinary meaning.  In this context, legal representation could include forms of representations made as part of the lawyer-client relationship regarding a government administrative process.

322.            This amendment implements Recommendation 18 of the PJCIS report.

Amendment 56: Page 24 (after line 11), after clause 25

323.            This amendment inserts a new section 25A which provides an exemption for members of Parliament and statutory office holders.  New section 25A provides an exemption in relation to an activity a person undertakes on behalf of a foreign principal if the person:

·          is a member of the Parliament

·          is a member of the Parliament of a State, the Legislative Assembly for the Australian Capital Territory or the Legislative Assembly of the Northern Territory, or

·          holds any office or appointment under a law of the Commonwealth, or under a law of a State or Territory.

324.            The effect of this exemption is that a person who holds any of the appointments or positions listed in paragraphs 25A(a) to (c) will be completely exempt from the operation of the scheme for registrable activities that they undertake while they hold that appointment or position.

325.            The amendment addresses concerns raised by the Office of the Australian Small Business and Family Enterprise Ombudsman in Submission 36 to the PJCIS inquiry into the Bill and seeks to ensure that individuals in statutory appointed independent roles will not be required to register under the scheme. 

326.            This amendment implements Recommendation 29 of the PJCIS report.

Amendment 57: Clause 27, page 25 (lines 7 to 19)

327.            This amendment removes existing section 27 and replaces it with a strengthened exemption for religious activity.

328.            The exemption for religion at section 27 currently provides that a person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

·          the foreign principal is a foreign government, and

·          the activity is solely, or solely for the purposes of, acting in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion of the foreign government. 

329.            The amendment will insert a new section 27 that provides that a person is exempt in relation to a religious activity the person undertakes, in good faith, on behalf of a foreign principal.

330.            It is intended for this exemption to be interpreted broadly.  For example, it is not intended that the exemption only be available for formal activities connected with the exercise of the religion, but to also extend to advocacy for social policy outcomes that are consistent with the principles or beliefs of the religion.  This might include advocacy for policies or funding to reduce homelessness where this is undertaken because of the beliefs that form part of a particular religion.

331.            It is intended that this exemption apply broadly to all religious institutions.

Amendment 58: Clause 28, page 25 (line 20) to page 26 (line 2)

332.            This amendment removes section 28, which provided an exemption for activities undertaken 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.

333.            The changes to the definition of foreign principal at Amendment 16 exclude foreign businesses and foreign individuals from the definition of foreign principal . These changes make it unnecessary to retain a specific exemption for news media, as this exemption only applied where the foreign principal was a foreign business or foreign individual.   

334.            This amendment implements Recommendation 20 of the PJCIS report.

Amendment 59:  Clause 29, page 26 (lines 3 to 29)

335.            This amendment removes section 29 of the Bill and replaces it with a new exemption for foreign government employees and commercial or business pursuits.   

Individual employed by foreign government

336.            New subsection 29(1) provides that an individual is exempt in relation to an activity the individual undertakes on behalf of a foreign principal if:

·          the foreign principal is a foreign government, and

·          the individual undertakes the activity

o    in the individual’s capacity as an officer or employee of the foreign principal, and

o    in the name of the foreign principal.

337.            This exemption recognises that the activities of an officer or employee of a foreign government, undertaken in their capacity as an officer or employee and in the name of the foreign principal 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.

338.            Paragraph 29(1)(a) specifies that the exemption for individuals in this section is limited to circumstances where the foreign principal is a foreign government Foreign government is defined in section 10 of the Bill.

339.            The term individual is not defined for the purposes of section 29 and is intended to take its ordinary meaning, being a single human being as distinguished from a group. It does not include companies or other types of entities or organisations.

340.            Subparagraph 29(1)(b)(i) provides that the exemption applies if the activity is undertaken by the individual in his or her capacity as an officer or employee of the foreign principal. 

341.            The term capacity is not defined and is intended to take its ordinary meaning.  The term seeks to clarify that activities undertaken by the officer or employee that are not part of the officer or employee’s role, duties or performance expectations, or are not directed by the foreign government, do not fall within the exemption in subsection 29(1).

342.            The term officer is not defined and is intended to take its ordinary meaning, to include an individual appointed or elected to some position of responsibility and authority in an entity.  The term employee is 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 government and identifies themselves as such.  The term is not intended to include employees of third parties that are contracted by a foreign government. 

343.            Subparagraph 29(1)(b)(ii) provides that the exemption applies if the activity is undertaken in the name of the foreign principal.  Undertaking an activity ‘in the name of’ is not defined and is intended to take its ordinary meaning, to include activities undertaken by the authority of, on behalf of or under the name of the foreign principal.  This ensures that registration is not required under the scheme when it is clear that the activities undertaken by the individual can be clearly attributed to and linked with the foreign government.  

Individual employed by foreign government related entity

344.            New subsection 29(2) provides that an individual is exempt in relation to an activity the individual undertakes on behalf of a foreign principal if:

·          the foreign principal is a foreign government related entity, and

·          the activity is a commercial or business pursuit undertaken by the individual in the individual’s capacity as a director, officer or employee of the foreign principal, and

·          it is apparent in the circumstances that the individual is undertaking the activity in that capacity.

345.            This exemption recognises that the activities of a director, officer or employee of a foreign government related entity which are commercial or business pursuits and are undertaken in the individual’s capacity as a director, officer or employee have little impact on Australian government and political processes.  For example, departmental officers should be able to meet with persons representing a foreign government related entity to discuss a transaction involving goods and services, without invoking registration requirements under the scheme.  The fact that the person is acting in their capacity as a director, officer or employee of the foreign principal also means that such activities are likely to be sufficiently transparent so that registration is not required.  To require such persons to register would also impose disproportionate and unjustifiable regulatory requirements under the scheme.

346.            Paragraph 29(2)(a) specifies that the exemption for individuals in this section is limited to circumstances where the foreign principal is a foreign government related entity .   Foreign government related entity is defined in proposed section 10 of the Bill, as amended by Amendment 15.

347.            The term individual is not defined for the purposes of section 29 and is intended to take its ordinary meaning, being a single human being as distinguished from a group. It does not include companies or other types of entities or organisations.

348.            Paragraph 29(2)(b) provides that the exemption applies if the activity is a commercial or business pursuit undertaken by the individual in the individual’s capacity as a director, officer or employee of the foreign principal.

349.            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.

350.            The term capacity is not defined and is intended to take its ordinary meaning.  The term seeks to clarify that activities undertaken by the officer or employee that are not part of the officer or employee’s role, duties or performance expectations, or are not directed by the foreign government related entity, do not fall within the exemption in subsection 29(1). 

351.            The term director is not defined and is intended to take its ordinary meaning, to include one of a body of persons chosen to control or govern the affairs of a company or corporation.  The term officer is not defined and is intended to take its ordinary meaning, to include an individual appointed or elected to some position of responsibility and authority in an entity.  The term employee is 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 government related entity and identifies themselves as such.  The term is not intended to include employees of third parties that are contracted by a foreign government related entity. 

352.            If a director, officer or employee was to undertake activities that fall outside their responsibilities or duties as a director, officer or employee, and they have not been directed by the foreign government related entity to undertake the activity, they would not be able to rely on the exemption for registration in subsection 29(1). 

353.            Paragraph 29(2)(c) provides that the exemption only applies if it is apparent in the circumstances that the individual is undertaking the activity in their capacity as a director, officer or employee of the foreign principal.  This ensures that registration is not required under the scheme when it is clear that the activities undertaken by the individual can be clearly attributed to and linked with the foreign government related entity.  

Person operating under name of foreign government related entity

354.            New subsection 29(3) provides that a person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

·          the foreign principal is a foreign government related entity, and

·          the activity is a commercial or business pursuit undertaken by the person under the name of the foreign principal or a substantially similar name.

355.            Similar to the proposed exemption in subsection 29(2), this exemption recognises that there are a number of intermediaries in Australia which represent the interests of foreign government related entities in commercial pursuits which have little impact on Australian governmental and political processes.  Requiring registration of persons undertaking activities on behalf of a foreign government related entity in circumstances involving the sale of goods and services would impose additional regulatory requirements which are disproportionate and unjustified, and would not add to the transparency objectives of the scheme. 

356.            Paragraph 29(3)(a) specifies that the exemption for persons in this section is limited to circumstances where the foreign principal is a foreign government related entity .   Foreign government related entity is defined in section 10 of the Bill, as amended by Amendment 15.

357.            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.

358.            Paragraph 29(3)(b) provides that the exemption applies if the activity is a commercial or business pursuit undertaken by the person under the name of the foreign principal or a substantially similar name.

359.            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.

360.            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 the foreign principal relate to the same foreign government related entity.

Exemption not applicable to former Cabinet Ministers or recent designated position holders

361.            This amendment inserts new subsection 29(4) that provides that the exemptions in subsections 29(1), (2) and (3) do not apply in relation to an activity undertaken by a former Cabinet Minister or recent designated position holder. 

362.            This amendment implements Recommendations 16 and 21 of the PJCIS report.

Amendment 60: Page 26 (after line 29)

363.            This amendment inserts a new section 29A which provides an exemption for professional industry bodies representing the collective interests of its members (both foreign and domestic) under Division 4 of Part 2 of the Bill.

364.            Section 29A provides that a person is exempt in relation to an activity the person undertakes on behalf of a foreign principal if:

·          the person is an entity formed in Australia, or incorporated under a law of the Commonwealth, a State or a Territory (an Australian entity )

·          the person’s purpose is to represent the interests of business or a particular sector of business or industry

·          the person has members who are also Australian entities, and

·          the activity is, or relates primarily to, representing the interests of business, or the particular sector, as a whole.

365.            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.

366.            Paragraph 29A(a) provides that the exemption only applies to a person who is an entity formed in Australia or incorporated under a law of the Commonwealth, a State or a Territory.

367.            Paragraph 29A(b) provides that the person must represent the interests of business or a particular sector of business or industry.  The terms ‘business’ and ‘industry’ are not defined and are intended to take their ordinary meaning.

·          Business is intended to refer to a person, partnership or corporation engaged in business, an established or going enterprise or concern.

·          Industry is intended to refer to a particular branch of trade or manufacture, for example, the banking industry or the finance industry.

368.            Paragraph 29A(c) requires the person to have members who are also Australian entities (as described in paragraph 29A(a)).  This means that the exemption will not apply to a person whose entire membership is comprised of persons that are foreign principals within the definition in section 10 of the Act (as amended by Amendments 15 and 16).  

369.            Paragraph 29A(d) provides that the activity must be, or primarily relate to, representing the interest of business or the particular sector as a whole.  This means that, if the person was to undertake the activity on behalf of a single member, rather than the industry as a whole, the person would fall outside the scope of the exemption.  However, if the industry body is representing the industry or sector generally then the paragraph will be satisfied.  It is not necessary for the industry body to be representing the entire industry, as long as they are not only representing the interests of a single member (who is a foreign principal).

370.            For example, the purpose of an industry representative body may be to represent the telecommunications industry as a whole, including providers of mobile telephone services and carriage service providers.  The industry representative body may have a foreign government related entity that provides mobile telephone services as one of its members.  The industry representative body will have the benefit of the exemption even if they are only representing their members who are mobile telephone providers, rather than their entire membership (including carriage service providers).  This reflects the reality that some policy issues on which an industry representative body will lobby government are sector specific.

371.            The term primarily 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 29A must be able to be chiefly or principally considered as being done to represent the interests of business or the particular sector as a whole.  

372.            This amendment implements Recommendation 23 of the PJCIS report.

Amendment 61: Page 26 (after proposed section 29A)

373.            This amendment inserts new section 29B, which provides an exemption for representations made by an individual on behalf of a foreign principal who is also an individual in relation to a government administrative process involving the foreign principal, or matters affecting the personal welfare of the foreign principal.

374.            Individuals can fall within the definition of foreign principal in section 10 due to paragraph (d) of the definition, which (as amended by Amendment 16) refers to a foreign government related individual .

375.            Section 29B provides that an individual is exempt in relation to an activity the individual undertakes on behalf of a foreign principal who is also an individual if:

·          the individuals either:

o    are members of the same family, or

o    know each other personally and the individual undertaking the activity does so because of this and in that individual’s personal capacity, and

·          the activity is, or relates primarily to, representing in good faith the interests of the foreign principal in relation to:

o    a government administrative process involving the foreign principal, or

o    matters affecting the personal welfare of the foreign principal.

376.            Examples of where this exemption is intended may apply include:

·          where an individual writes to a Government Minister or member of the Parliament in relation to a foreign relative’s visa application

·          where a student welfare officer at a university makes representations to the Government on behalf of an international student in relation to their visa application, and

·          where a person makes representations to Government in relation to a foreign individual in immigration detention.

377.            The term individual is not defined for the purposes of section 29 and is intended to take its ordinary meaning, being a single human being as distinguished from a group. It does not include companies or other types of entities or organisations.

378.            The phrase ‘know each other personally’ is not defined and is intended to capture circumstances where there is a relationship or level of acquaintance between the individual and the foreign principal.  This exemption is not intended to apply when the individual and the foreign principal do not have a relationship or are unknown to each other personally.  

379.            The term primarily 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 29B must be able to be chiefly or principally considered as being done to represent the interests of the foreign principal.  

380.            The phrase ‘representing in good faith’ is not defined and will take its ordinary meaning, that is, to refer to circumstances were a person acts with honesty and with sincere intention.

381.            The term ‘administrative process’ is not defined and will take its ordinary meaning. This will cover, for example, processes under the Migration Act 1958.

382.            The term ‘personal welfare’ is not defined and will take its ordinary meaning, that is, to relate to a particular person’s wellbeing. 

383.            This amendment implements Recommendation 24 of the PJCIS report.

Amendment 62: Page 26 (after proposed section 29B)

384.            This amendment inserts new section 29C which provides an exemption for registered charities undertaking activities (other than disbursement activities) in pursuit of the person’s charitable purpose where, at the time the activity is undertaken, it is evident to the public or disclosed to the public that the person is undertaking the activity on behalf of a particular foreign principal.

385.            The new exemption at section 29C will apply to an activity a person undertakes on behalf of a foreign principal if:

·          the person is registered as a charity under the Australian Charities and Not-for-profits Commission Act 2012

·          the activity is undertaken in pursuit of the person’s charitable purpose within the meaning of Part 3 of the Charities Act 2013

·          the activity is not disbursement activity, and

·          at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:

o    the fact that the person is undertaking the activity on behalf of a foreign principal

o    the identity of the foreign principal.

386.            Paragraph 29C(a) requires the person to be registered as a charity under the Australian Charities and Not-for-profits Commission Act 2012 .  Charity registration is not a requirement for any particular entity but it is required to receive charity tax concessions and some categories of deductible gift recipient endorsement, which allows the entity to receive gifts for which the donor can claim a tax deduction.  Charities must register with the Australian Charities and Not-for-profits Commission before they can receive charity tax concessions from the Australian Tax Office (such as income tax exemption, GST concessions and Fringe Benefit Tax concessions).

387.            Paragraph 29C(b) requires the activity to be undertaken in pursuit of the person’s charitable purpose within the meaning of Part 3 of the Charities Act 2013 .  Section 12 of the Charities Act 2013 defines ‘charitable purpose’ to mean any of the following:

                            (a)             the purpose of advancing health

                           (b)             the purpose of advancing education

                            (c)             the purpose of advancing social or public welfare

                           (d)             the purpose of advancing religion

                            (e)             the purpose of advancing culture

                            (f)             the purpose of promoting reconciliation, mutual respect and tolerance between groups of individuals that are in Australia

                           (g)             the purpose of promoting or protecting human rights

                           (h)             the purpose of advancing the security or safety of Australia or the Australian public

                             (i)             the purpose of preventing or relieving the suffering of animals

                             (j)             the purpose of advancing the natural environment

                           (k)             any other purpose beneficial to the general public that may reasonably be regarded as analogous to, or within the spirit of, any of the purposes mentioned in paragraphs (a) to (j)

                             (l)             the purpose of promoting or opposing a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country, if:

                                                           (i)       in the case of promoting a change - the change is in furtherance or in aid of one or more of the purposes mentioned in paragraphs (a) to (k), or

                                                         (ii)       in the case of opposing a change - the change is in opposition to, or in hindrance of, one or more of the purposes mentioned in those paragraphs.

388.            Paragraph 29C(c) provides that the exemption only applies if the activity is not disbursement activity.  The definition of d isbursement activity in section 10 (as amended by Amendment 10) provides that a person undertakes disbursement activity if the person disburses money or things of value, and neither the person 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 1918 .

389.            Paragraph 29C(d) provides that the exemption only applies if, at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:

·          the fact that the person is undertaking the activity on behalf of a foreign principal

·          the identity of the foreign principal.

390.            This ensures that registration is not required under the scheme when it is clear that the activities undertaken by the person can be clearly attributed to and linked with the foreign principal and that relationship is apparent to the public.  

391.            This amendment implements Recommendation 25 of the PJCIS report, to the extent that it relates to charities.

Amendment 63:  Page 26, after proposed clause 29C

392.            This amendment inserts new section 29D which provides an exemption for a person whose purpose is, or relates primarily to, the arts undertaking activities (other than disbursement activities) that are, or relate primarily to, the person’s artistic purposes where, at the time the activity is undertaken, it is evident to the public or disclosed to the public that the person is undertaking the activity on behalf of a particular foreign principal.

393.            The new exemption at section 29D will apply to an activity a person undertakes on behalf of a foreign principal if:

·          for a person other than an individual:

o    the person’s purpose is, or relates primarily to, the arts, and

o    the activity is, or relates primarily to, or is incidental to, the person’s artistic purposes

·          for an individual - the person’s purpose in undertaking the activity is, or relates primarily to, the arts, and

·          the activity is, or relates primarily to, or is incidental to, the person’s artistic purposes

·          the activity is not disbursement activity, and

·          at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:

o    the fact that the person is undertaking the activity on behalf of a foreign principal

o    the identity of the foreign principal.

394.            Paragraph 29D(a) provides that, where the person is not an individual, the person’s purpose must be, or relate primarily to, the arts.  The term arts is not defined and is intended to take its ordinary meaning as referring to painting, sculpture, music, theatre, literature and other similar endeavours.  The term primarily 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 29C must be able to be chiefly or principally considered as being the arts or related to the arts.  Paragraph 29D(a) also requires the activity to be, or relate primarily to, or be incidental to, the person’s artistic purpose.

395.            The term incidental is intended to attract a narrow meaning.  The Macquarie Dictionary defines the term to mean:

·          happening or likely to happen in fortuitous or subordinate conjunction with something else

·          incurred causally and in addition to the regular or main amount

·          something incidental, as a circumstance

·          minor expenses, and

·          incidental to, liable to happen in connection with; naturally appertaining to.

396.            In the context of the exemption for artistic purposes in section 29D, the term ‘incidental’ is intended to only take the final of these dictionary meanings - incidental to, liable to happen in connection with; naturally appertaining to.  Some of the other meanings require only a slight connection, which is not sufficient for the exemption to apply.

397.            Paragraph 29D(b) requires that, where the person is an individual, the person’s purpose in undertaking the activity must be, or relate primarily to, the arts.  The terms in paragraph 29D(b) are to be interpreted consistently with the terms used in paragraph 29D(a).

398.            Paragraph 29D(c) provides that the exemption only applies if the activity is not disbursement activity. The definition of d isbursement activity in section 10 (as amended by Amendment 10) provides that a person undertakes disbursement activity if the person disburses money or things of value, and neither the person 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 1918

399.            Paragraph 29D(d) provides that the exemption only applies if, at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:

·          the fact that the person is undertaking the activity on behalf of a foreign principal

·          the identity of the foreign principal.

400.            This ensures that registration is not required under the scheme when it is clear that the activities undertaken by the person can be clearly attributed to and linked with the foreign principal and that relationship is apparent to the public. 

401.            This amendment implements Recommendation 25 of the PJCIS report, to the extent that it relates to arts organisations.

Amendment 64:  Page 26, after proposed section 29D

402.            This amendment inserts new section 29E which provides an exemption for certain registered organisations.

403.            This exemption applies to an activity a person undertakes on behalf of a foreign principal if:

·          the person is an association of employees, or an enterprise association, that is registered as an organisation under the Fair Work (Registered Organisations) Act 2009

·          the activity is undertaken in the interests of members of the organisation in Australia

·          the activity is not communications activity or disbursement activity, and

·          at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:

o    the fact that the person is undertaking the activity on behalf of a foreign principal

o    the identity of the foreign principal.

404.            Paragraph 29E(a) requires the person to be an association of employees, or an enterprise association, that is registered as an organisation under the Fair Work (Registered Organisations) Act 2009.  Section 18B of the Fair Work (Registered Organisations) Act defines federally registrable employee associations and section 18C defines federally registrable enterprise associations.

405.            Paragraph 29E(b) requires the activities to be undertaken in the interests of members of the association in Australia.  This ensures that an association covered by paragraph 29E(a) will only benefit from the exemption if it is acting in the interests of its Australian members.  To the extent such an association is undertaking activities for other purposes, including benefiting any foreign persons, the exemption will not be available.

406.            Paragraph 29E(c) provides that the exemption does not apply if the relevant organisation is engaging in communications activity or disbursement activity. Communications activity is defined in section 13 (as amended by Amendments 37 and 38).  The definition of d isbursement activity in section 10 (as amended by Amendment 10) provides that a person undertakes disbursement activity if the person disburses money or things of value, and neither the person 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 1918

407.            Paragraph 29E(d) provides that the exemption only applies if, at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:

·          the fact that the person is undertaking the activity on behalf of a foreign principal

·          the identity of the foreign principal.

408.            This ensures that registration is not required under the scheme when it is clear that the activities undertaken by the person can be clearly attributed to and linked with the foreign principal and that relationship is apparent to the public. 

409.            This amendment implements Recommendation 25 of the PJCIS report, to the extent that it relates to industrial organisations.

Amendment 65: Page 26, after proposed clause 29E

410.            This amendment creates a new exemption for the activities of members of certain professions. 

411.            This exemption applies to an activity a person undertakes on behalf of a foreign principal if:

·          the person’s profession is any of the following:

o    a tax agent

o    a customs broker

o    a liquidator or receiver

·          the activity is undertaken in the ordinary course of the person’s practice of that profession

·          the activity is, or relates primarily to, or is incidental to, the provision of representation in relation to a government administrative process involving the foreign principal, and

·          at the time the activity is undertaken, both of the following matters are either apparent to all persons which whom the person is dealing or disclosed to them:

o    the fact that the person is undertaking the activity on behalf of a foreign principal

o    the identity of the foreign principal.

412.            Paragraph 29F(a) applies where the person’s profession is a tax agent, customs broker, liquidator or receiver.  These are the professions highlighted in the PJCIS’s recommendation relevant to this exemption (Recommendation 26). 

·          Tax agents who provide services for fee or reward are required to be registered with the Tax Practitioners Board.  Tax agent services related to:

o    working out or advising about liabilities, obligations or entitlements of clients under a taxation law, or

o    representing entities in their dealings with the Commissioner of Taxation

where the client can be reasonably expected to rely on the service to satisfy liabilities or obligations or to claim entitlements under a taxation law.

·          Customs brokers will include persons who act as professional agents for importers and exporters and prepare and submit documents for clearing goods through customs.

·          Liquidators are persons who are appointed to wind up a company by collecting a company’s property and applying the assets in paying the company’s creditors and distributing any surpluses.  Liquidators may also investigate the reason for a company’s failure.

·          Receivers , sometimes also known as administrators, are appointed where a company is experiencing financial difficulties to take full control of the company to try to work out a way to save the company or its business.

413.            Paragraph 29F(b) applies where the activity is undertaken in the ordinary course of the person’s practice of the relevant profession listed in paragraph 29F(a).  The reference to ‘the ordinary course of the person’s practice’ of the profession is intended to implement the PJCIS’s reference to the ‘day to day’ work of the profession in Recommendation 26.  The exemption will only be available when the person is engaged in the ordinary course of their business.  If they engage in registrable activities in some other capacity, then the exemption may not be available.

414.            Paragraph 29F(c) applies where the activity is, or relates primarily to, or is incidental to, the provision of representation in relation to a government administrative process involving the foreign principal.  The term ‘administrative process’ is not defined and will take its ordinary meaning.  This will include dealings with government bodies, such as the Australian Securities and Investment Commission or the Australian Border Force.

415.            The term ‘incidental’ is intended to attract a narrow meaning.  The Macquarie Dictionary defines the term to mean:

·          happening or likely to happen in fortuitous or subordinate conjunction with something else

·          incurred causally and in addition to the regular or main amount

·          something incidental, as a circumstance

·          minor expenses, and

·          incidental to, liable to happen in connection with; naturally appertaining to.

416.            In the context of exemption in section 29F, the term ‘incidental’ is intended to only take the final of these dictionary meanings - incidental to, liable to happen in connection with; naturally appertaining to.  Some of the other meanings require only a slight connection, which is not sufficient for the exemption to apply.

417.            The term ‘primarily’ 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 29F must be able to be chiefly or principally considered as being done in the provision of representation in relation to a government administrative process involving the foreign principal.

418.            Paragraph 29F(d) provides that the exemption only applies if, at the time the activity is undertaken, both of the following matters are either apparent to all persons with whom the person is dealing or disclosed to them:

·          the fact that the person is undertaking the activity on behalf of a foreign principal

·          the identity of the foreign principal.

419.            This ensures that registration is not required under the scheme when it is clear that the activities undertaken by the individual can be clearly attributed to and linked with the foreign principal and the relationship is apparent to the public. 

Amendment 66: Clause 31, page 28 (line 17)

420.            This amendment removes the reference to ‘57’ in Note 2 in proposed section 31(1) of the Bill and replaces it with ‘57A’.

421.            This amendment is consequential to Amendment 110 which inserts new section 57A into the Bill.  New section 57A contains offences for a person who gives notice under section 31 of the end of liability to register under the scheme, but at that time a registrable arrangement continues to exist between the person and a foreign principal.

422.            Section 31 relates to notice of end of liability to register.  The offences in new 57A are therefore the appropriate offences to be referred to in this Note, which points the reader to the existence of the offences.

Amendment 67:  Clause 33, page 30 (line 8)

423.            This amendment removes the reference to ‘donor activity’ in the simplified outline in proposed section 33 of the Bill and replace it a reference to disbursement activity .

424.            Proposed section 33 provides a simplified outline of Part 3 of the Bill, which sets out the responsibilities of persons who are registered under the scheme.

425.            This amendment is consequential to Amendment 10, which removes the definition of donor activity from proposed section 10 of the Bill and replaces it with the definition of disbursement activity

Amendment 68:  Heading to clause 35, page 32 (line 19)

426.            This amendment removes the reference to ‘donor activity’ from the heading to proposed section 35 of the Bill and replaces it with a reference to disbursement activity .

427.            Proposed section 35, as amended by Amendments 69 to 71, provides that a registrant must report to the Secretary if he or she engages in registrable disbursement 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.  

428.            This amendment is necessary to properly reflect the content of section 35, as amended by Amendments 69 to 71.

Amendments 69 to 71:  Clause 35, page 32 (lines 24, 26 and 31)

429.            These amendments remove the references to ‘donor activity’ from section 35 of the Bill and replace them with references to disbursement activity .

430.            Proposed section 35 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.  

431.            This amendment is consequential to Amendment 10, which removes the definition of ‘donor activity’ from proposed section 10 of the Bill and replaces it with a definition of disbursement activity

Amendments 72 to 75:  Clause 37, page 34 (lines 32 and 33), page 35 (lines 6 and 14)

432.            These amendments remove the references to ‘donor activity’ from section 37 of the Bill and replace them with references to disbursement activity .

433.            Proposed 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. 

434.            This amendment is consequential to Amendment 10, which removes the definition of ‘donor activity’ from proposed section 10 of the Bill and replaces it with a definition of disbursement activity

Amendment 76:  Clause 39, page 36 (line 31)

435.            This clause amends the title of Note 1 under subsection 39(1).  This amendment is consequential to Amendment 77, which will remove Note 2.  After the second note is deleted, there will be only one Note and the heading ‘Note 1’ is no longer appropriate.  The amendment replaces the reference to ‘Note 1’ with a reference to ‘Note’.

Amendment 77:  Clause 39, page 37 (line 1)

436.            This amendment removes Note 2 from under subsection 39(1).  Note 2 currently states that charges may be imposed in relation to renewals, consistent with section 63.

437.            This amendment is consequential to Amendment 122 which removes section 63 of the Bill.  Following this amendment, fees will not be able to be charged for any applications or processes under the Bill.  Therefore, there is no need for this Note, which previously clarified for the reader that charges may apply to the renewal.

Amendment 78:  Clause 40, page 38 (line 3)

438.            This amendment replaces a reference to ‘5’ years with a reference to ‘3’ years. 

439.            Following this amendment, a person who is registered under the scheme must keep records of the matters mentioned in subsection 40(2) for a period of three years, rather than a period of five years.

440.            This amendment implements Recommendation 33 of the PJCIS report.

Amendment 79:  Clause 40, page 38 (after line 5)

441.            This amendment inserts new subsection 40(1A), which provides that, despite the requirement in subsection 40(1) to retain records for three years, a person is not required to keep any particular record for more than 10 years from the day the record was made.

442.            This amendment implements Recommendation 33 of the PJCIS report.

Amendment 80:  Clause 40, page 38 (line 14)

443.            This amendment inserts the words ‘to the public or a section of the public’ into paragraph 40(2)(e) of the Bill.

444.            Section 40 requires persons who are registered under the scheme in relation to a foreign principal to maintain appropriate records.  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.

445.            This amendment is consequential to Amendment 36, which amends the definition of communications activity to only apply to information or material provided to the public or a section of the public, to clearly exclude, for example, private communications between colleagues. 

446.            It is appropriate for the requirement to keep records to be similarly limited so that registrants are only required to keep records in relation to information and material that fall within the definition of communications activity .

Amendment 81:  Clause 42, page 40 (before line 25)

447.            This amendment inserts new paragraphs 42(3)(aa), (ab) and (ac) into proposed section 42.  The new paragraphs require the Secretary to include the following matters on the register of information relating to the scheme:

·          any provisional transparency notices issued under section 14B

·          any variation or revocation of a transparency notice under section 14E, and

·          for any provisional transparency notices that become final transparency notices under subsection 14C(4) - a statement to that effect.

448.            Section 42 currently requires the Secretary to keep a register of information in relation to the scheme and 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.

449.            Subsection 42(3) requires the Secretary to include the following information and documents on the scheme’s 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 the scheme), and any responses received

·          any information prescribed by the rules for the purposes of paragraph 43(1)(c) (prescribing the circumstances in which the Secretary must make information publicly available), other than in relation to registrants and not mentioned in another paragraph of subsection 42(3), and

·          any other information or documents the Secretary considers appropriate.

450.            This amendment inserts new paragraphs 42(3)(aa), (ab) and (ac), which will require that the Secretary must also include on the register:

·          any provisional transparency notices issued under section 14B, and

·          any variation or revocation of a transparency notice under section 14E

·          for any provisional transparency notices that become final transparency notices under subsection 14C(4) - a statement to that effect.

451.            Amendment 41 inserts new Division 3 into Part 1 of the Bill, which will provide that the Secretary may issue a transparency notice , if the Secretary is satisfied that a person is a foreign government related entity or a foreign government related individual

452.            Subsection 14B(1) provides that, if the Secretary is satisfied that a person is a foreign government related entity or a foreign government related individual, the Secretary may issue a notice (a provisional transparency notice) stating that the person is a foreign government related entity or foreign government related individual (as the case requires).  The effect of a provisional transparency notice issued under subsection 14B(1) is that a person acting on behalf of a person stated to be a foreign government related entity or a foreign government related individual in a transparency notice may be required to register under the scheme if undertaking activities on behalf of such a person in Australia for the purpose of political or governmental influence.

453.            Subsection 14E(1) provides that the Secretary may vary a transparency notice if the Secretary is satisfied that the details in the notice that identify the person as a foreign government related entity or foreign government related individual (as the case requires) should be updated or corrected. 

454.            Subsection 14E(2) provides that the Secretary must revoke a transparency notice if the Secretary ceases to be satisfied that the person is as foreign government related entity or foreign government related individual (as the case requires). 

455.            Subsection 14C(4) provides that, if the Secretary does not revoke a provisional transparency notice before the end of the period within which a person may make submissions, the provisional transparency notice becomes a final transparency notice.

456.            This effect of this amendment is to ensure that the register contains all relevant information and documentation essential to achieving the transparency objectives of the scheme and to ensure it is an accurate and complete record.  

Amendment 82:  Clause 43, page 41 (before line 7)

457.            This amendment inserts a new heading of Information relating to registrants into section 43.  This will assist readability of section 43 following the insertion of new subsections 43(1A), (1A) and (1C) by Amendment 83 and the insertion of new subsection 43(2A) by Amendment 85.

Amendment 83:  Clause 43, page 41 (after line 14)

458.            This amendment inserts new subsections (1A), (1B) and (1C) into section 43 of the Bill.

459.            New subsection 43(1A) provides that, if information that the Secretary is required to make available under subsection 43(1) is provided to the Secretary under section 36 (reporting on registration review when voting period begins) or section 37 (reporting registrable activity during voting periods), the information must be made available within 48 hours of it being provided to the Secretary.  This puts an obligation on the Secretary to ensure information is quickly made available to the public via the website where it is provided during a voting period.

460.            New subsection 43(1B) provides that other information that the Secretary is required to make available under subsection 43(1) must be made available within four weeks of it being provided to the Secretary.  This places an obligation to ensure that information is made available to the public via the website in a timely way.  The period is substantially longer than that provided for under new subsection 43(1A), because voting periods are a heightened period of political activity and it is more important that information be made available quickly during those periods.  At other times, it is important for information to be made available to the public, but not necessary for it to be done with such speed.

461.            New subsection 43(1C) provides that the Secretary does not need to comply with new subsections 43(1A or (1B) if the Secretary is considering whether subsection 43(2) applies to the information.  Subsection 43(2), as amended by Amendment 84, provides that the Secretary must not make information available on the public website if the Secretary is satisfied that the information is commercially sensitive or affects national security (or is information of a kind prescribed in the rules).  It is essential that the Secretary can properly consider whether these matters arise, and to seek appropriate briefing as required to support his or her decision about whether the information must be withheld from the website.  If this process takes longer than the relevant periods prescribed in subsections 43(1A) or (1B), then the Secretary will not need to make the information available on the website in accordance with those timeframes.

462.            This amendment implements Recommendation 37 of the PJCIS report.

Amendment 84:  Clause 43, page 41 (after line 14)

463.            Subsection 43(2) currently provides that the Secretary may decide not to make particular information available to the public if the Secretary is satisfied that the information:

·          is commercially sensitive

·          affects national security, or

·          is of a kind prescribed by the rules for the purposes of this subsection.

464.            This amendment amends subsection 43(2) so that the website must not include information that the Secretary is satisfied that the information is commercially sensitive, affects national security or is of a kind prescribed by the rules.  For example, the website would not be able to include information on the website if it would make available commercially sensitive information containing market sensitive details about a pending transaction, as this may be detrimental for market competition reasons.   

Amendment 85:  Clause 43, page 41 (lines 15 to 17)

465.            This amendment inserts a new subsection 43(2A) in proposed section 43 of the Bill which will require the Secretary to make publicly available on a website certain information about transparency notices.

466.            Subsection 43(1) currently requires the Secretary to make certain information publicly available on a website in relation to each person registered in relation to a foreign principal.  This information must 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 of the scheme for the purposes of this paragraph.

467.            Proposed subsection 43(2A) will provide that the Secretary must also make available to the public, on a website, the following:

·          each provisional transparency notice issued under section 14B along with:

o    a written statement to the effect that a person whose interests are affected by the decision to issue the notice may, subject to the Administrative Appeals Tribunal Act 1975 , apply to the AAT for review of the decision, and

o    if the notice becomes a final transparency notice under subsection 14C(4) - a written statement to that effect

·          any variation or revocation under section 14E along with a written statement to the effect that a person whose interests are affected by the decision to vary or revoke the notice may, subject to the Administrative Appeals Tribunal Act 1975 , apply to the AAT for review of the decision.

468.            Amendment 41 inserts new Division 3 into Part 1 of the Bill, which will provide that the Secretary may issue a notice, known as a transparency notice , if the Secretary is satisfied that a person is a foreign government related entity or a foreign government related individual

469.            Subsection 14B(1) provides that, if the Secretary is satisfied that a person is a foreign government related entity or a foreign government related individual, the Secretary may issue a notice (a provisional transparency notice) stating that the person is a foreign government related entity or foreign government related individual (as the case requires).  The effect of a provisional transparency notice issued under subsection 14B(1) is that a person acting on behalf of a person stated to be a foreign government related entity or a foreign government related individual in a transparency notice may be required to register under the scheme if undertaking activities on behalf of such a person in Australia for the purpose of political or governmental influence.

470.            Subsection 14E(1) provides that the Secretary may vary a transparency notice if the Secretary is satisfied that the details in the notice that identify the person as a foreign government related entity or foreign government related individual (as the case requires) should be updated or corrected. 

471.            Subsection 14E(2) provides that the Secretary must revoke a transparency notice if the Secretary ceases to be satisfied that the person is a foreign government related entity or foreign government related individual (as the case requires). 

472.            The effect of this amendment is that when a provisional transparency notice is issued, or a transparency notice is varied or revoked, it will be made publicly available on the scheme’s website.  Publishing copies of provisional transparency notices, as well as variations and revocations of transparency notices, is important to fulfilling the scheme’s transparency objectives. 

473.            This amendment also inserts a new heading Removal of information from website to improve readability of this section following the insertion of new subsection 43(2A).

Amendment 86:  Clause 45, page 42 (line 7)

474.            This amendment makes a minor technical amendment to remove ‘the’ from paragraph 45(1)(a) and replace it with ‘a’.  This amendment is necessary to correct an incorrect use of the word the in paragraph 45(1)(a), as a person is required to register under the scheme in relation to a foreign principal.

Amendment 87:  Clause 45, page 42 (line 24)

475.            This amendment amends the Note in subsection 45(2) of the Act to clarify that a notice given to a person under section 45 does not override the privileges and immunities contained in proposed section 9A, in addition to the existing text which provides that it is an offence not to comply with a notice issued under section 45. 

476.            Section 9A (which is inserted in the Bill by Amendment 4) provides that the scheme does not abrogate parliamentary privilege or legal professional privilege. 

477.            Section 45 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably suspects that the 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 the foreign principal. 

Amendment 88:  Clause 45, page 43 (lines 3 to 5)

478.            This amendment removes subsection 45(7) from section 45 of the Act and replaces it with a new subsection which clarifies what a notice issued under this section must set out and a subsection dealing with the Secretary’s inability to use the power in section 45 to obtain information about possible offences under Parts 5.1, 5.2 and 5.6 of  the Criminal Code.

479.            Subsection 45(7) currently provides that where the Secretary gives a person a notice under section 45, the notice must set out the effect of section 60 of the Act and sections 137.7 and 137.2 of the Criminal Code .  These sections establish offences relating to the provision of false or misleading information or documents.  

480.            Following this amendment, subsection 45(7) will provide that a notice given under section 45 must set out:

·          the relationship of this Act to the privileges and immunities mentioned in section 9A, and

·          the effect of section 60 of this Act and sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).

481.            Section 9A (which is inserted in the Bill by Amendment 4) clarifies that the scheme does not abrogate parliamentary privilege or legal professional privilege. 

482.            This amendment seeks to ensure that a person to whom a notice is issued under section 45 is aware of the operation of section 9A, as well as the sections of the Act and the Criminal Code which establish offences relating to the provision of false and misleading information or documents.

483.            This should have the effect of prompting a person who receives a notice to consider whether any of the information covered by the notice is also subject to parliamentary privilege or legal professional privilege, and therefore not required to be provided to the Secretary consistent with paragraph 9A(3)(b).

484.            New subsection 45(8) provides that nothing in section 45 authorises the Secretary to give a person a notice for the purpose of obtaining information or documents in relation to the possibility of the person having committee an offence against Part 5.1 (treason and related offences), Part 5.2 (espionage and related offences) or Part 5.6 (secrecy of information) of the Criminal Code.  This provision implements Recommendation 39 of the PJCIS report to the extent it covers section 45.

485.            The Secretary’s power in section 45 is a standard information gathering provision, consistent with many other provisions in the Commonwealth statute book.  The provision is not a process for obtaining evidence of a criminal offence, which would be obtained by the Australian Federal Police using its powers under the Crimes Act 1914 and elsewhere.  This provision is included to avoid doubt, rather than to imply that section 45 can be used to gather evidence of criminal offences other than to the extent excluded by new subsection 45(8).

Amendment 89:  Clause 46, page 43 (line 19)

486.            This amendment amends the Note in subsection 46(2) of the Act to clarify that a notice given to a person under section 46 does not override the privileges and immunities contained in section 9A, in addition to the existing text which provides that it is an offence not to comply with a notice issued under section 46. 

487.            Section 9A (which is inserted in the Bill by Amendment 4) clarifies that the scheme does not abrogate parliamentary privilege or legal professional privilege. 

488.            Section 46 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably believes that the person has information that is relevant to the operation of the scheme.  

Amendment 90:  Clause 46, page 43 (lines 29 to 31)

489.            This amendment removes subsection 46(7) from section 46 of the Act and replaces it with a new subsection which clarifies what a notice issued under this section must set out and a subsection dealing with the Secretary’s inability to use the power in section 46 to obtain information about a possible offence under Parts 5.1, 5.2 and 5.6 of the Criminal Code..

490.            Subsection 46(7) currently provides that where the Secretary gives a person a notice under section 46, the notice must set out the effect of section 60 of the Act and sections 137.7 and 137.2 of the Criminal Code .  These sections establish offences relating to the provision of false or misleading information or documents.  

491.            New subsection 46(7) will provide that a notice given under section 46 must set out:

·          the relationship of this Act to the privileges and immunities mentioned in section 9A in relation to the notice, and

·          the effect of section 60 of this Act and sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).

492.            Section 9A (which is inserted in the Bill by Amendment 4) clarifies that the scheme does not abrogate parliamentary privilege or legal professional privilege. 

493.            This amendment seeks to ensure that the person to whom the notice is issued under section 46 is aware of the operation of section 9A, as well as the sections of the Act and the Criminal Code which establish offences relating to the provision of false and misleading information or documents.

494.            This should have the effect of prompting a person who receives a notice to consider whether any of the information covered by the notice is also subject to parliamentary privilege or legal professional privilege, and therefore not required to be provided to the Secretary consistent with paragraph 9A(3)(b).

495.            New subsection 46(8) provides that nothing in section 46 authorises the Secretary to give a person a notice for the purpose of obtaining information or documents in relation to the possibility of the person having committee an offence against Part 5.1 (treason and related offences), Part 5.2 (espionage and related offences) or Part 5.6 (secrecy of information) of the Criminal Code.  This provision implements Recommendation 39 of the PJCIS report to the extent it covers section 46.

496.            The Secretary’s power in section 46 is a standard information gathering provision, consistent with many other provisions in the Commonwealth statute book.  The provision is not a process for obtaining evidence of a criminal offence, which would be obtained by the Australian Federal Police using its powers under the Crimes Act 1914 and elsewhere.  This provision is included to avoid doubt, rather than to imply that section 45 can be used to gather evidence of criminal offences other than to the extent excluded by new subsection 46(8).

Amendment 91:  Clause 47, page 44 (after line 18), at the end of subclause (2)

497.            This amendment inserts a Note under subsection 47(2), which states that paragraph 47(2)(c) confers a derivative use immunity.  This is consistent with paragraph 10.261 of the PJCIS report which states:

…to reduce uncertainty, the Committee suggests clarification, by way of a note to the provision, that section 47 provides a derivative use immunity.

498.            The Note provides an example which states that in criminal proceedings for an offence by an individual against Part 5.2 of the Criminal Code (espionage and related offences), any information, document or other thing obtained as a direct or indirect consequence of the individual giving information or producing documents in compliance with a notice under section 45 or 46 would not be admissible.

Amendment 92:  Heading to subclause 51(1), page 46 (line 11)

499.            This amendment removes the heading to subsection 51(1).

500.            Amendment 94 removes subsections 51(2) and 51(3), which provide for evidentiary certificates to be issued by the Minister stating that a person is a scheme official for the purposes of the Act. These subsections are not necessary.

501.            As a result of Amendment 94, section 51 will no longer contain multiple subsections, which makes the heading in subsection 51(1) unnecessary. 

Amendment 93:  Clause 51, page 46 (lines 12)

502.            This amendment makes a minor technical amendment to remove the number ‘(1)’ in proposed section 51.

503.            Amendment 94 removes subsections 51(2) and 51(3), which provide for evidentiary certificates to be issued by the Minister stating that a person is a scheme official for the purposes of the Act.  These subsections are not necessary. 

504.            As a result of Amendment 94, section 51 will no longer contain multiple subsections, which makes the reference to ‘(1)’in this section unnecessary. 

Amendment 94:  Clause 51, page 46 (lines 21 to 28)

505.            This amendment removes subsections 51(2) and 51(3).

506.            Subsection 51(2) currently provides that the Minister may sign a certificate stating that a specified person is, or was at a specified time, a scheme official for the purposes of the Act.  Subsection 51(3) provides that, for the purposes of proceedings for an offence against the Act or Part 7.4 of the Criminal Code in relation to this Act (false or misleading statements), an evidentiary certificate signed by the Minister under this section is prima facie evidence of the matters certified in it. 

507.            The amendment removes these subsections as they are not necessary given that the scheme does not contain any offences relevant to scheme officials. 

Amendment 95:  Clause 53, page 48 (after line 3)

508.            This amendment inserts new subsections (3), (4) and (5) into section 53.  These subsections provide for review by the Parliamentary Joint Committee on Intelligence and Security of any rules made for the purposes of Item 4 of the table in subsection 53(1).

509.            The table in subsection 51(3) provides an authorisation for the Secretary to disclose scheme information for a range of specified persons and to a person specified for that purpose in the table.  Item 4 of the table allows the Minister to prescribe additional purposes for which, and persons to whom, scheme information can be communicated.

510.            Subsection 53(3) provides that the PJCIS must:

·          review rules made for the purposes of Item 4 of the table in subsection 53(1) as soon as possible after the rules are made, and

·          report the PJCIS’s comments and recommendations to each House of the Parliament before the end of the applicable disallowance period for that House.

511.            Subsection 53(4) provides that, if the PJCIS’s report on a review of the rules is tabled in a House of the Parliament during the applicable disallowance period for that House and on or after the eighth sitting day of the applicable disallowance period then Part 2 of Chapter 3 of the Legislation Act 2003 has effect, in relation to the rules and that House, as if each period of 15 sitting days referred to in that Part were extended in accordance with the table in the subsection.  The term ‘applicable disallowance period’ is defined in subsection 53(5).

512.            Subsection 53(5) provides that the term applicable disallowance period for a House of Parliament means the period of 15 sitting days of that House after the rules, or a copy of the rules, was laid before that House in accordance with section 38 of the Legislation Act 2003 .  Section 38 of the Legislation Act requires the Office of Parliamentary Counsel to arrange for a copy of each registered legislative instrument to be delivered to each House of the Parliament to be laid before each House within six sitting days of that House after the registration of the instrument.

513.            This amendment implements Recommendation 40 of the PJCIS report.

Amendment 96:  Heading to clause 57, page 49 (line 11)

514.            This amendment amends the heading to proposed section 57 of the Bill by removing the word ‘maintain’ and replace it with ‘renew’.  This amendment is necessary to properly reflect the content of the offences in section 57 which relate to failure to apply for registration or renew registration.

Amendment 97:  Heading to subclause 57(1), page 49 (lines 12 to 13)

515.            This amendment removes the heading in proposed subsection 57(1) of the Bill— Intentional omission to apply or renew and registrable activity undertaken— and replaces it with Intentional omission to apply or renew knowing required to do so, and registrable activity undertaken.

516.            This amendment reflects the expanded scope of section 57 proposed by Amendments 101 and 106 which introduce offences applying recklessness as the fault element for the physical element of the offence that the person was required to apply for registration or renew registration.  The amended title reflects the requirement in paragraph 57(1)(a) that the person knew they there were required to apply for registration or renew their registration.   

Amendment 98:  Clause 57, page 49 (line 17)

517.            This amendment makes a minor technical amendment to remove ‘the foreign’ from subparagraph 57(1)(a)(i) and replace it with ‘a foreign’.  This amendment is necessary to correct an incorrect use of the word the in subparagraph 57(1)(a)(i), as a person is required to apply for registration under the scheme in relation to a foreign principal.

Amendment 99:  Clause 57, page 49 (line 18)

518.            This amendment makes a minor technical amendment to remove ‘relation to the foreign’ from subparagraph 57(1)(a)(ii) and replace it with ‘under the scheme in relation to a foreign’.  This amendment is necessary to correct an incorrect use of the word the in subparagraph 57(1)(a)(ii), as a person is required to apply for registration under the scheme in relation to a foreign principal.

Amendment 100:  Clause 57, page 49 (line 24)

519.            This amendment lowers the maximum penalty for the offence at subsection 57(1) from seven years imprisonment to five years imprisonment. The revised penalty is consistent with the tiered offence structure for the section 57 offences introduced by Amendments 101 and 106, and the revised penalty for the offence at subsection 57(3) introduced by Amendment 105. 

520.            The offence at subsection 57(1) will carry the highest penalty of the section 57 offences, reflecting the fact that a person must have a greater level of culpability to be convicted of an offence under this subsection. 

521.            This amendment implements Recommendation 45 of the PJCIS report.

Amendment 101:  Clause 57, page 49 (line 25) to page 50 (line 14)

522.            This amendment removes the existing offence at subsection 57(2) of the Bill and replaces it with a new offence of intentional omission to apply or renew reckless as to whether required to do so, and registrable activity undertaken.

523.            New subsection 57(2) makes it an offence for a person to intentionally omit to apply for registration or renew their registration, reckless as to whether they are required to do so, and the person undertakes a registrable activity on behalf of a foreign principal.

524.            The offence will be punishable by a maximum penalty of three years imprisonment.

525.            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 is reckless as to this, or

o    required to renew their registration under the scheme in relation to a foreign principal by the end of a period and the person is reckless as to 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 after the end of the period, and

·          the activity is registrable in relation to the foreign principal and the person is reckless as to this element.

526.            Recklessness is the fault element for paragraphs 57(2)(a) 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.

527.            Intention is the fault element for paragraphs 57(2)(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.

528.            For paragraph 57(2)(a) of the offence, the prosecution will have to prove beyond a reasonable doubt that the person 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.

529.            The prosecution will also have to prove that the person was reckless as to the requirement applying to them in relation to registration or renewal of registration.

530.            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.

531.            The term foreign principal in proposed section 10 of the Bill will be amended by Amendment 15 and Amendment 16 to mean:

·          a foreign government

·          a foreign government related entity

·          a foreign political organisation, or

·          a foreign government related individual.

532.            The term scheme is also defined in section 10 (as amended by Amendment 26) to mean this Act and the rules made under section 71.

533.            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.

534.            For paragraph 57(2)(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.

535.            For paragraph 52(2)(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.

536.            For paragraph 57(2)(d) of the offence, the prosecution will have to prove beyond a reasonable doubt that the activity referred to in paragraph 57(2)(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.  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.

537.            The penalty for this offence is three years imprisonment. This is appropriate given the serious consequences that can flow from hidden foreign influence on Australia’s political and governmental processes.  It recognises, however, the level of culpability of the offender is less than were the person knows that they are required to register or renew their registration, as is required in the offence in proposed subsection 57(1).   This amendment implements Recommendation 45 of the PJCIS report.

538.            Absolute liability does not apply, consistent with Recommendation 46 of the PJCIS report.

Amendment 102:  Heading to subclause 57(3), page 50 (lines 15 and 16)

539.            This amendment removes the heading in subsection 57(3) of the Bill— Reckless omission to apply or renew and registrable activity undertaken— and replaces it with Reckless omission to apply or renew knowing required to do so, and registrable activity undertaken.

540.            This amendment reflects the expanded scope of section 57 proposed by Amendments 101 and 106 which introduce offences applying recklessness as the fault element applying to the physical element of an offence that the person was required to apply for registration or renew registration. 

541.            The amended heading reflects the requirement in paragraph 57(3)(a) that the person knew they there were required to apply for registration or renew their registration.   

Amendment 103:  Clause 57, page 50 (line 20)

542.            This amendment makes a minor technical amendment to remove ‘the foreign’ from subparagraph 57(3)(a)(i) and replace it with ‘a foreign’.  This amendment is necessary to correct an incorrect use of the word the in subparagraph 57(3)(a)(i), as a person is required to apply for registration under the scheme in relation to a foreign principal.

Amendment 104:  Clause 57, page 50 (lines 21 and 22)

543.            This amendment makes a minor technical amendment to remove ‘in relation to the foreign’ from subparagraph 57(3)(a)(ii) and replace it with ‘under the scheme in relation to a foreign’.  This amendment is necessary to correct an incorrect use of the word the in subparagraph 57(3)(a)(ii), as a person is required to apply for registration under the scheme in relation to a foreign principal.

Amendment 105:  Clause 57, page 50 (line 28)

544.            This amendment lowers the maximum penalty for the offence at subsection 57(3) from five years imprisonment to three years imprisonment.  The revised penalty is consistent with the tiered offence structure for the section 57 offences introduced by Amendments 101 and 106, and the revised penalty for the offence at subsection 57(1) introduced by Amendment 100.

545.            This amendment implements Recommendation 45 of the PJCIS report.

Amendment 106:  Clause 57, page 50 (after line 28)

546.            This amendment inserts a new offence at subsection 57(3A) for reckless omission to apply or renew reckless as to whether required to do so, and registrable activity undertaken.

547.            New subsection 57(3A) makes it an offence for a person to recklessly omit to apply for registration or renew their registration, reckless as to whether they are required to do so, and the person undertakes a registrable activity on behalf of a foreign principal.

548.            The offence will be punishable by a maximum penalty of two years imprisonment.

549.            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 is reckless as to this, or

o    required to renew their registration under the scheme in relation to a foreign principal by the end of a period and the person is reckless as to this

·          the person is reckless as to whether he or she has omitted to apply for registration or renew his or her registration

·          the person intentionally undertakes an activity on behalf of the foreign principal after the end of the period, and

·          the activity is registrable in relation to the foreign principal and the person is reckless as to this element.

550.            Recklessness is the fault element for paragraphs 57(3A)(a), (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.

551.            Intention is the fault element for paragraph 57(3A)(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.

552.            For paragraph 57(3A)(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.

553.            The prosecution will also have to prove that the person was reckless as to the requirement applying to them in relation to registration or renewal of registration.

554.            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.

555.            The term foreign principal in proposed section 10 of the Bill will be amended by Amendment 15 and Amendment 16 to mean:

·          a foreign government

·          a foreign government related entity

·          a foreign political organisation, or

·          a foreign government related individual.

556.            The term scheme is also defined in section 10, as amended by Amendment 26, to mean this Act and the rules made under section 71.

557.            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.

558.            For paragraph 57(3A)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant was reckless as to whether they omitted to apply for registration under the scheme or to renew the person’s registration.

559.            For paragraph 57(3A)(c) of the offence, the prosecution will have to prove beyond a reasonable doubt that the person intentionally undertook an activity on behalf of the foreign principal after the end of the period.

560.            For paragraph 57(3A)(d) of the offence, the prosecution will have to prove beyond a reasonable doubt that the activity referred to in paragraph 57(3A)(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.  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.

561.            The penalty for this offence is three years imprisonment, and is consistent with the tiered offence structure for the section 57 offences. This is appropriate given the serious consequences that can flow from hidden foreign influence on Australia’s political and governmental processes.  It recognises, however, the level of culpability of the offender is less than were the person knows that they are required to register or renew their registration and intentionally omits to do so, which warrants the higher penalty in proposed subsection 57(1).  This amendment implements Recommendation 45 of the PJCIS report.

562.            Absolute liability does not apply, consistent with Recommendation 46 of the PJCIS report.

Amendment 107:  Clause 57, page 51 (line 2)

563.            This amendment makes a minor technical amendment to remove ‘the foreign’ from subparagraph 57(4)(a)(i) and replace it with ‘a foreign’.  This amendment is necessary to correct an incorrect use of the words the in subparagraph 57(4)(a)(i), as a person is required to apply for registration under the scheme in relation to a foreign principal.

Amendment 108:  Clause 57, page 51 (line 3)

564.            This amendment makes a minor technical amendment to remove ‘relation to the foreign’ from subparagraph 57(4)(a)(ii) and replaces it with ‘under the scheme in relation to a foreign’.  This amendment is necessary to correct an incorrect use of the words the in subparagraph 57(4)(a)(ii), as a person is required to apply for registration under the scheme in relation to a foreign principal.

Amendment 109:  Page 51 (after line 21), after clause 57

565.            This amendment will remove the existing offence at proposed subsection 57(5) of the Bill for giving a notice under section 31 of the Act knowing that an arrangement still exists and regardless of whether a registrable activity is undertaken.  This offence is being moved into new section 57A, to be inserted by Amendment 110.

Amendment 110:  Page 51 (after line 21), after clause 57

566.            This amendment inserts four offences for a person who gives notice under section 31 of the end of liability to register under the scheme, but at that time a registrable arrangement continues to exist between the person and a foreign principal.  The offences at subsection 57(2) and 57(5) of the Bill have been removed from section 57 by Amendment 101 and 109 and included in new subsection 57A.  This ensures that all offences about giving notice of end of liability to register while still liable to register are co-located in the Bill. 

567.            Absolute liability does not apply to any parts of the offences in new section 57A, consistent with Recommendation 46 of the PJCIS report.

Notice given knowing arrangement still exists, and registrable activity undertaken

568.            Subsection 57A(1), which is the same as proposed subsection 57(2) of the Bill (as removed by Amendment 101), makes 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.

569.            The offence will be punishable by a maximum penalty of five years imprisonment.

570.            To establish this offence, the 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 after that day, and

·          the activity is registrable in relation to the foreign principal and the person is reckless as to this element.

571.            Intention is the fault element for paragraphs 57A(1)(a) and (d).  Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

572.            Recklessness is the fault element for paragraphs 57A(1)(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 that risk.  

573.            Paragraph 57A(1)(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 will exist in the ordinary course of events.

574.            For paragraph 57A(1)(a) of the offence, the prosecution will have to prove, beyond a reasonable doubt, that the person 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.

575.            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.

576.            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.

577.            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.

578.            The term scheme is defined in section 10, as amended by Amendment 19h, to mean this Act and the rules made under section 71.

579.            The term foreign principal is defined in section 10 of the Bill (as amended by Amendment 15 and Amendment 16) to mean:

·          a foreign government

·          a foreign government related entity

·          a foreign political organisation, or

·          a foreign government related individual.

580.            For paragraph 57A(1)(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 physical element.  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.

581.            A registrable arrangement is defined in section 13A (as inserted by Amendment 39) to mean an arrangement between a person and a foreign principal for the person to undertake, on behalf of the foreign principal, one or more activities that, if undertaken by the person on behalf of the foreign principal, would be registrable in relation to the foreign principal. An arrangement will not be a registrable arrangement to the extent that the arrangement is for the person to undertake an activity in circumstances in which the person would be exempt under Division 4 of Part 2. 

582.            For paragraph 57A(1)(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 was in place on that day specified in the notice. 

583.            For paragraph 57A(1)(d) of the offence, the prosecution will have to prove beyond a reasonable doubt that the person intentionally undertakes an activity on behalf of the foreign principal after that day.

584.            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.’

585.            Section 11 (as amended by Amendments 30 and 31) 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, or

·          under the direction of the foreign principal, and

at the time the arrangement or service is entered into, or the order, request or direction made, both the person and the foreign principal knew or expected that:

·          the person would or might undertake the activity, and

·          the person would or might do so in circumstances set out in section 20, 21, 22 or 23 (whether or not the parties expressly considered the existence of the scheme).

586.            For paragraph 57A(1)(e) of the offence, the prosecution will have to prove beyond a reasonable doubt that the activity undertaken on behalf of the foreign principal (referred to in paragraph 57A(1)(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.  Recklessness is the fault element for this physical 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.

587.            The penalty for this offence is five years imprisonment.  The penalty has been lowered from seven years imprisonment in existing subsection 57(2) of the Bill to five years imprisonment consistent with the tiered offence structure for section 57A offences introduced by this Amendment.  It is appropriate that section 57A(1) carry a penalty of five years imprisonment given the serious consequences that can flow from hidden foreign influence on Australia’s political and governmental processes. This subsection will carry the highest penalty of the section 57A offences, reflecting the fact that a person must have a greater level of culpability to be convicted of an offence under this subsection. 

Notice given reckless as to whether arrangement still exists, and registrable activity undertaken

588.            New subsection 57A(2) makes 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, reckless as to whether 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. 

589.            This offence will be punishable by a maximum penalty of three years imprisonment.

590.            To establish this offence, the 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 under section 31 as the day the person’s registration is to cease and the person is reckless as to this

·          the person intentionally undertakes an activity on behalf of the foreign principal after that day, and

·          the activity is registrable in relation to the foreign principal and the person is reckless as to this element.

591.            Intention is the fault element for paragraphs 57A(2)(a) and (d).  Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

592.            Recklessness is the fault element for paragraphs 57A(2)(b), (c) 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 that risk.  

593.            For paragraph 57A(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.

594.            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.

595.            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.

596.            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.

597.            The term scheme is defined in section 10, as amended by Amendment 26, to mean this Act and the rules made under section 71.

598.            The term foreign principal is defined in section 10 of the Bill (as amended by Amendment 15 and Amendment 16) to mean:

·          a foreign government

·          a foreign government related entity

·          a foreign political organisation, or

·          a foreign government related individual.

599.            For paragraph 57A(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 physical element.  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.

600.            A registrable arrangement is defined in section 13A (as inserted by Amendment 39) to mean an arrangement between a person and a foreign principal for the person to undertake, on behalf of the foreign principal, one or more activities that, if undertaken by the person on behalf of the foreign principal, would be registrable in relation to the foreign principal. An arrangement will not be a registrable arrangement to the extent that the arrangement is for the person to undertake an activity in circumstances in which the person would be exempt under Division 4 of Part 2.  For paragraph 57A(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.  Recklessness is the fault element for this physical element.  Therefore, the person will need to have been aware of a substantial risk that the registrable arrangement would still be in existence on the day specified in the notice as the day the person’s registration in relation to the foreign principal was to cease and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

601.            For paragraph 57A(2)(d), the prosecution will have to prove beyond a reasonable doubt that the person undertakes an activity on behalf of the foreign principal after that day..

602.            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.’

603.            Section 11 (as amended by Amendments 30 and 31) 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, or

·          under the direction of the foreign principal, and

at the time the arrangement or service is entered into, or the order, request or direction made, both the person and the foreign principal knew or expected that:

·          the person would or might undertake the activity, and

·          the person would or might do so in circumstances set out in section 20, 21, 22 or 23 (whether or not the parties expressly considered the existence of the scheme).

604.            For paragraph 57A(2)(e) of the offence, the prosecution will have to prove beyond a reasonable doubt that the activity undertaken on behalf of the foreign principal (referred to in paragraph 57A(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.

605.            Recklessness is the fault element for this physical 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.

606.            The penalty for this offence is three years imprisonment.  This is appropriate given the significant consequences that can flow from hidden foreign influence on Australia’s political and governmental processes.  It recognises, however, the level of culpability of the offender is less than where the person knows that the registrable agreement will still be in existence on the day specified in the notice as the day the registration is to cease, as is required in the offence in proposed subsection 57A(1).

Notice given knowing arrangement still exists, whether or not registrable activity undertaken

607.            New subsection 57A(3), which is the same as proposed subsection 57(5) of the Bill (as removed by Amendment 109), makes 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

608.            This offence will be punishable by a maximum penalty of 12 months imprisonment.

609.            To establish this offence, the 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, and

·          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.

610.            Intention is the fault element for paragraph 57A(3)(a).  Under section 5.2 of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

611.            Recklessness is the fault element for paragraph 57A(3)(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 that risk.  

612.            Paragraph 57A(3)(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 will exist in the ordinary course of events.

613.            For paragraph 57A(3)(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.

614.            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.

615.            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.

616.            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.

617.            The term scheme is defined in section 10, as amended by Amendment 26, to mean this Act and the rules made under section 71.

618.            The term foreign principal in defined in section 10 of the Bill (as amended by Amendment 15 and Amendment 16) to mean:

·          a foreign government

·          a foreign government related entity

·          a foreign political organisation, or

·          a foreign government related individual.

619.            A registrable arrangement is defined in section 13A (as inserted by Amendment 39) to mean an arrangement between a person and a foreign principal for the person to undertake, on behalf of the foreign principal, one or more activities that, if undertaken by the person on behalf of the foreign principal, would be registrable in relation to the foreign principal. An arrangement will not be a registrable arrangement to the extent that the arrangement is for the person to undertake an activity in circumstances in which the person would be exempt under Division 4 of Part 2.  For subsection 57A(3)(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 physical element.  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.

620.            For subsection 57A(3)(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 in place on the day specified in the notice.

621.            The penalty for this offence is 12 months imprisonment.  This is a significantly lower penalty than the offences in subsections 57A(1) and (2), 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.

Notice given reckless as to whether arrangement still exists, whether or not registrable activity undertaken

622.            New subsection 57A(4) makes 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, reckless as to whether there is a registrable arrangement in existence between the person and a foreign principal.

623.            This offence will be punishable by a maximum penalty of six months imprisonment.

624.            To establish this offence, the 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, and

·          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 is reckless as to this.

625.            Intention is the fault element for paragraph 57A(4)(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.

626.            Recklessness is the fault element for paragraphs 57A(4)(b) and (c).  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 that risk.  

627.            For paragraph 57A(4)(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.

628.            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.

629.            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.

630.            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.

631.            The term scheme is defined in section 10, as amended by Amendment 26, to mean this Act and the rules made under section 71.

632.            The term foreign principal in defined in section 10 of the Bill (as amended by Amendment 15 and Amendment 16) to mean:

·          a foreign government

·          a foreign government related entity

·          a foreign political organisation, or

·          a foreign government related individual.

633.            A registrable arrangement is defined in section 13A (as inserted by Amendment 39) to mean an arrangement between a person and a foreign principal for the person to undertake, on behalf of the foreign principal, one or more activities that, if undertaken by the person on behalf of the foreign principal, would be registrable in relation to the foreign principal. An arrangement will not be a registrable arrangement to the extent that the arrangement is for the person to undertake an activity in circumstances in which the person would be exempt under Division 4 of Part 2. 

634.            For paragraph 57A(4)(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 physical element.  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.

635.            For paragraph 57A(4)(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.  Recklessness is the fault element for this physical element.  Therefore, the person will need to have been aware of a substantial risk that the registrable arrangement would still be in existence on the day specified in the notice as the day the person’s registration in relation to the foreign principal was to cease 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 six months imprisonment.  This is a significantly lower penalty than the offences in paragraphs 57A(1) and (2), 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.  The penalty is also lower than that for the offence in paragraph 57A(3) as the level of culpability of the offender is less than where the person knows that the registrable agreement will still be in existence on the day specified in the notice as the day the registration is to cease.

637.            This amendment (to the extent it relates to penalties) implements Recommendation 45 of the PJCIS report. 

Amendment 111: Clause 58, page 51 (line 24)

638.            This amendment removes the words ‘of strict liability’ from subsection 58(1).  The effect of this amendment is that fault elements will need to be proved for the elements of the offence in subsection 58(1). This implements Recommendation 47 of the PJCIS report.

639.            Subsection 58(1) makes it an offence for a person who is required to give a notice under Division 2 of Part 3 (reporting to the Secretary) to fail to do so in accordance with that requirement. 

640.            The offence is punishable by a maximum penalty of 60 penalty units.

641.            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 is reckless as to this, and

·          the person intentionally fails to give the notice in accordance with the provision.

642.            As a consequence of the removal of the reference to strict liability by this amendment, recklessness is the fault element for paragraph 58(1)(a).  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 that risk.  

643.            As a consequence of the removal of the reference to strict liability by this amendment, intention is the fault element for paragraph 58(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.

644.            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) and that the person was reckless as to this element.

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.            Notices that can be given under Division 2 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).

647.            For paragraph 58(1)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the person intentionally failed to give the notice in accordance with the provision.

648.            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 neglects to do something

·          In accordance with is intended to refer to all the requirements of a provision under Division 2 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. 

649.            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 2 of Part 3 of the Act. 

Amendment 112: Clause 58, page 52 (line 3)

650.            This amendment removes the words ‘of strict liability’ from subsection 58(2).  The effect of this amendment is that fault elements will need to be proved for the elements of the offence in subsection 58(2).  This implements Recommendation 47 of the PJCIS report.

651.            Subsection 58(2) makes it an offence for a person who is required  to make a disclosure in accordance with rules made for the purposes of section 38 (disclosure in communications activity) to fail to do so in accordance with the rules. 

652.            The offence is punishable by a maximum penalty of 60 penalty units.

653.            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 is reckless as to this element, and

·          the person intentionally fails to make a disclosure in accordance with those rules.

654.            As a consequence of the removal of strict liability by this amendment, recklessness is the fault element for paragraph 58(2)(a).  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 that risk.  

655.            As a consequence of the removal of the reference to strict liability by this amendment, intention is the fault element for paragraph 58(2)(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.

656.            For paragraph 58(2)(a), the prosecution is required to prove beyond a reasonable doubt that the person is required to make a disclosure in accordance with the rules under section 38 (disclosure in communications activity) and that the person is reckless as to this element.

657.            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.

658.            Section 38 provides that if:

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

·          the person undertakes communication activity (as defined in section 13) 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)

then the person must make a disclosure about the foreign principal in accordance with rules made for the purposes of subsection 38(2).

659.            Subsection 38(2) of the Bill 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.

660.            Section 71 of the Bill allows the Minister to make rules prescribing certain matters by way of legislative instrument. 

661.            For paragraph 58(2)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally failed to make the disclosure in accordance with the rules.

662.            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 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. 

663.            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. 

Amendment 113:  Clause 58, page 52 (line 11)

664.            This amendment removes the words ‘of strict liability’ from subsection 58(3).  The effect of this amendment is that fault elements will need to be proved for the elements of the offence in subsection 58(3).  This implements Recommendation 47 of the PJCIS report.

665.            Subsection 58(3) will make it an offence for a person who is required to  keep records of a matter under section 40 (keeping records) for a period to fail to do so.

666.            The offence will be punishable by a maximum penalty of 60 penalty units.

667.            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 is reckless as to this element, and

·          the person intentionally fails to do so.

668.            As a consequence of the removal of the reference to strict liability by this amendment, recklessness is the fault element for paragraph 58(3)(a).  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 that risk.  

669.            As a consequence of the removal of the reference to strict liability by this amendment, intention is the fault element for paragraph 58(3)(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.

670.            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) and that the person is reckless as to this element

671.            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].

672.            Section 40 requires a person who is registered under the scheme to keep particular records.  Subsection 40(2) (as amended by Amendment 80) 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 to the public or a section of the public in Australia on behalf of the foreign principal.

673.            For paragraph 58(3)(b) of the offence, the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally 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 neglects to do something.

674.            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.

Amendment 114:  Clause 59, page 52 (before line 23)

675.            This amendment inserts a new Note in subsection 59(1) of the Bill (which makes it an offence for a person to fail to comply with a notice given to the person under sections 45 or 46 within a certain period) to clarify that a notice given under sections 45 or 46 does not override the privileges and immunities contained in proposed section 9A. 

676.            Section 9A (which is inserted in the Bill by Amendment 4) clarifies that the scheme does not abrogate parliamentary privilege or legal professional privilege. 

677.            Section 45 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably suspects that the 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 the foreign principal.  Section 46 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably believes that the person has information that is relevant to the operation of the scheme. 

Amendment 115:  Clause 60, page 53 (line 16)

678.            This amendment lowers the maximum penalty for the offence at section 60 of the Bill (which makes it an offence to give information or produce a document to the Secretary in response to a notice given to the person under sections 45 or 46 knowing that the information or document is false or misleading, or omits any matter or thing without which it is misleading) from five years imprisonment to three years imprisonment.  

679.            Section 45 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably suspects that the 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 the foreign principal.  Section 46 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably believes that the person has information that is relevant to the operation of the scheme. 

680.            The revised penalty is consistent with the reduction in penalties for other offences in this Part to be made by Amendments 100, 101, 105, 110 and 117, and ensures that the penalty reflects the seriousness of the offending relative to other offences in the Bill.

681.            This implements Recommendation 48 of the PJCIS report.

Amendment 116:  Clause 61, page 54 (line 22)

682.            This amendment removes ‘(1)’ from the beginning of the subsection in section 61.  This is consequential to Amendment 118, which omits subsection 61(2).  Following the amendment to remove subsection (2), there will no longer be multiple subsections in section 61 and the reference to ‘(1)’ is therefore unnecessary.

Amendment 117:  Clause 61, page 55 (line 1)

683.            This amendment lowers the maximum penalty for the offence at section 61 of the Bill (which criminalises a person’s failure to keep records with the intention of avoiding or defeating the object of the scheme) from five years imprisonment to three years imprisonment.

684.            The revised penalty is consistent with the reduction in penalties for other offences in this Part to be made by Amendments 100, 101, 105, 110 and 115, and ensures that the penalty reflects the seriousness of the offending relative to other offences in the Bill.

685.            This implements Recommendation 48 of the PJCIS report.

Amendment 118:  Clause 61, page 55 (line 2)

686.            This amendment removes subsection 61(2) from the Bill.  The effect of this amendment is that absolute liability will no longer apply to the element of the offence in paragraph 61(a).

687.            Following the amendment, recklessness will be fault element for physical element of the offence in paragraph 61(a) that, under section 40, a registrant is required to keep records.  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 that risk.  

688.            This amendment implements Recommendation 46 of the PJCIS report.

Amendment 119:  Page 55 (after line 2), at the end of Part 5

689.            This amendment inserts new section 61A to clarify the application of geographical jurisdiction to the offences in Part 5 of the Bill.

690.            Subsection 61A(1) will provide that section 15.4 of the Criminal Code (extended geographical jurisdiction—Category D) applies to an offence against this Part if at the time of the conduct constituting the offence, the defendant was a former Cabinet Minister or a recent designated position holder.  Under section 15.4, the effect of Category D geographical jurisdiction is that the offences apply:

·          whether or not the conduct constituting the alleged offence occurs in Australia, and

·          whether or not a result of the conduct constituting the alleged offence occurs in Australia.

691.            This Part is a reference to Part 5 of the Bill which contains criminal offences for failure to apply for or maintain registration under the scheme (section 57), giving notice of the end of liability to register while still liable to register (new section 57A, as inserted by Amendment 110), failure to fulfil responsibilities under the scheme (section 58), failure to comply with a notice requiring information (section 59), providing false or misleading information or documents (section 60), and for destruction of records (section 61).

692.            The application of Category D jurisdiction to the offences contained in Part 5 is limited to where the defendant is a former Cabinet Minister or a recent designated position holder .

693.            The term former Cabinet Minister will be defined in proposed section 10 of the Bill as inserted by Amendment 18, to mean a person who, at a particular time, was a member of the Cabinet at any time before the particular time, and who is not at the particular time a designated position holder.

694.            The term recent designated position holder will be defined in proposed section 10 of the Bill as inserted by Amendment 22, to mean a person who, at a particular time, was a designated position holder at any time in the 15 years before the particular time, and who is not at the particular time a designated position holder.

695.            The term designated position holder will be defined in proposed section 10 of the Bill as inserted by Amendment 9, to mean any of the following:

·          a Minister

·          a member of the Parliament

·          a person employed under section 13 or 20 of the MOPS Act who is a member of the staff of a Minister and whose position is at or above the level of Senior Advisor

·          an Agency Head (within the meaning of the Public Service Act 1999)

·          a deputy agency head (however described)

·          the holder of an office established by or under a law of the Commonwealth and equivalent to that of Agency Head or deputy agency head

·          the holder of an office of the Commonwealth as an Ambassador or High Commissioner, in a country or place outside Australia.

696.            Category D jurisdiction is appropriate for former Cabinet Ministers and recent designated position holders as people who fall within these categories of individuals are most likely to be able to exert a high degree of influence on Australian political and governmental processes from outside Australia.  It is foreseeable that former Cabinet Ministers and recent designated position holders may live and work overseas upon ceasing their public roles and remain highly influential on Australian political and governmental processes from overseas, including from the territory of the foreign government on whose behalf they are acting or from the place of business of other types of foreign principals.  It is therefore necessary for the offences in Part 5 of the Bill to apply extraterritorially in respect of these individuals.  

697.            In addition, the specific categories of registration that apply to former Cabinet Ministers and recent designated position holders (sections 22 and 23 respectively) require registration regardless of where in the world the relevant activities occur.  This can be contrasted with sections 20 and 21, which only require registration when the relevant activities occur within Australia.

698.            Subsection 61A(2) will clarify that section 14.1 of the Criminal Code (standard geographical jurisdiction) applies to any other offence against Part 5.  Under section 14.1, the effect of standard geographical jurisdiction is that a person does not commit an offence unless:

·          the conduct constituting the alleged offence occurs wholly or partly in Australia, or wholly or partly on board an Australian aircraft or an Australian ship, or

·          the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs wholly or partly in Australia, or wholly or partly on board an Australian aircraft or an Australian ship.  

699.            The effect of subsection 61A(2) means that the offences in Part 5 of the Bill carry standard geographical jurisdiction for all persons except for persons who fall within the definitions of former Cabinet Ministers and recent designated position holders in section 10.

700.            This implements Recommendation 48 of the PJCIS report.

Amendment 120:  Clause 62, page 56 (lines 4 and 5)

701.            This amendment removes the words ‘matters relating charges payable under the scheme’ from section 62 of the Bill.

702.            Section 62 currently sets out a simplified outline of Part 6 of the Bill and provides that the Part deals with miscellaneous matters, including matters relating to charges payable under the scheme.

703.            This amendment is consequential to Amendment 122 which removes section 63 of the Bill.  Following this amendment, fees will not be able to be charged for any applications or processes under the Bill.  Therefore, Part 6 will not deal with matters relating to charges payable under the scheme and there is no need for the simplified outline of the Part to refer to those matters.

Amendment 121:  Clause 62, page 56 (lines 10 and 11)

704.            This amendment omits the words ‘scheme to be reviewed before the end of its first 5 years of operation’ from section 62 of the Bill and inserts the words ‘Parliamentary Joint Committee on Intelligence and Security to begin a review of the scheme within 3 years of the scheme commencing’.

705.            Section 62 currently sets out a simplified outline of Part 6 of the Bill and provides that the Part deals with miscellaneous matters, including matters relating to review of the scheme.

706.            This amendment is consequential to Amendment 126, which provides that the Parliamentary Joint Committee on Intelligence and Security must begin a review of the operation, effectiveness and implications of the scheme.  This replaces the previous requirement in section 70 of the Bill for the Minister to cause a review of the operation of the scheme to be conducted after five years.

Amendment 122:  Clause 63, page 56 (line 12) to page 57 (line 2)

707.            This amendment removes section 63 from the Bill. 

708.            Section 63 currently provides that a person is liable to pay a charge imposed by the Foreign Influence Transparency Scheme (Charges Imposition) Act 2017 if the person:

·          makes an application for registration under section 16, or

·          renews a registration under section 39.

709.            The PJCIS stated, at paragraph 10.185:

Moreover, in a representative democracy, the Committee is of the view that seeking access to elected representatives should not be accompanied by the imposition of a fee.  Therefore, the Committee considers that charges for initial registration, renewal and any reporting lodgement should be removed from the Bill.  This would aid compliance and ensure that legitimate activities are not adversely impacted by the Bill.  The Committee recommends that the section 63 be removed from the Bill.

710.            This amendment implements Recommendation 34 of the PJCIS report.

Amendment 123:  Clause 67, page 58 (line 2)

711.            This amendment amends subsection 67(1) so that subsection 67(1) operates subject to subsections 67(1A) and 67(1B) which are inserted by Amendment 124.

712.            Proposed subsection 67(1) currently provides that the Secretary may delegate all of his or her functions and 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.

713.            The amendment inserts the words ‘Subject to subsections (1A) and (1B)’ in subsection 67(1) which will have the effect of limiting the operation of section 67, qualifying that Secretary’s ability to delegate his or her functions and powers under the Act is subject to proposed subsections 67(1A) and 67(1B) as inserted by Amendment 124.

714.            New subsection 67(1A) prohibits the Secretary from delegating to any other person his or her functions or powers under sections 14B and 14E relating to the issuing, varying or revoking of a transparency notice (to be inserted by Amendment 41).

·          Subsection 14B(1) provides that, if the Secretary is satisfied that a person is a foreign government related entity or a foreign government related individual, the Secretary may issue a notice (a provisional transparency notice) stating that the person is a foreign government related entity or foreign government related individual (as the case requires).  The effect of a provisional transparency notice issued under section 14B(1) is that a person acting on behalf of a person stated to be a foreign government related entity or a foreign government related individual in a transparency notice may be required to register under the scheme if undertaking activities on behalf of such a person in Australia for the purpose of political or governmental influence.

·          Subsection 14E(1) provides that the Secretary may vary a transparency notice if the Secretary is satisfied that the details in the notice that identify the person as a foreign government related entity or foreign government related individual (as the case requires) should be updated or corrected. 

·          Subsection 14E(2) provides that the Secretary must revoke a transparency notice if the Secretary ceases to be satisfied that the person is as foreign government related entity or foreign government related individual (as the case requires). 

715.            New subsection 67(1B) provides that the Secretary must not delegate his or her functions or powers under sections 43, 45 or 46 or subsection 53(1) to an APS employee who holds or is acting in an Executive Level 2 or equivalent position in the Department.

716.            Section 43 provides that the Secretary must make certain information publicly available in relation to each person registered in relation to a foreign principal.  Section 45 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably suspects that the 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 the foreign principal.  Section 46 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably believes that the person has information that is relevant to the operation of the scheme.  Subsection 53(1) 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 subsection.

717.            This amendment, together with Amendment 124, implements the outcome of the Senate Standing Committee for the Scrutiny of Bills’ consideration of the Bill as reported in Scrutiny Digest 3/18.  In response to queries raised by the Committee about the appropriateness of the delegation powers in section 67, the Attorney-General provided the following comment which was welcomed by the Committee:

The committee enquires whether the Government would amend the Bill to limit the delegation of powers to SES employees, at least in relation to coercive powers and the communication of scheme information.  The Government considers that this would be an appropriate amendment that ensures the information-gathering powers are limited only to more senior officers within the department. 

718.            Given the complexity associated with issuing, varying and revoking transparency notices, and the consequences that flow from such decisions, it is appropriate the Secretary is also restricted from delegating his or her powers in respect of such notices.   

Amendment 124:  Clause 67, page 58 (after line 9)

719.            This amendment amends section 67 in the Bill to limit the Secretary’s ability to delegate certain functions and powers under the Act.

720.            Subsection 67(1) currently provides that the Secretary may delegate all of his or her functions and 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.

721.            Amendment 123 inserts the words ‘Subject to subsections (1A) and (1B)’ in subsection 67(1) which will have the effect of limiting the operation of section 67, qualifying that Secretary’s ability to delegate his or her functions and powers under the Act is subject to proposed subsections 67(1A) and 67(1B) as inserted by this Amendment.

722.            New subsection 67(1A) prohibits the Secretary from delegating to any other person his or her functions or powers under sections 14B and 14E relating to the issuing, varying or revoking of a transparency notice (to be inserted by Amendment 41). 

·          Subsection 14B(1) provides that, if the Secretary is satisfied that a person is a foreign government related entity or a foreign government related individual, the Secretary may issue a notice (a provisional transparency notice) stating that the person is a foreign government related entity or foreign government related individual (as the case requires).  The effect of a provisional transparency notice issued under section 14B(1) is that a person acting on behalf of a person stated to be a foreign government related entity or a foreign government related individual in a transparency notice may be required to register under the scheme if undertaking activities on behalf of such a person in Australia for the purpose of political or governmental influence.

·          Subsection 14E(1) provides that the Secretary may vary a transparency notice if the Secretary is satisfied that the details in the notice that identify the person as a foreign government related entity or foreign government related individual (as the case requires) should be updated or corrected. 

·          Subsection 14E(2) provides that the Secretary must revoke a transparency notice if the Secretary ceases to be satisfied that the person is as foreign government related entity or foreign government related individual (as the case requires). 

723.            The effect of new subsection 67(1A) is that only the Secretary is able to issue, vary or revoke transparency notices.  Given the complexity associated with issuing, varying and revoking transparency notices, and the nuanced issues the decision maker must consider in doing so, it is appropriate that the Secretary be restricted from delegating his or her powers in respect of such notices.  

724.            New subsection 67(1B) prohibits the Secretary from delegating his or her functions or powers under sections 43, 45, 46 or 53(1) to an APS employee who holds or is acting in an Executive Level 2 or equivalent position in the Department,. 

725.            Section 43 provides that the Secretary must make certain information publicly available in relation to each person registered in relation to a foreign principal.  Section 45 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably suspects that the 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 the foreign principal.  Section 46 enables the Secretary to issue a notice seeking information from a person if the Secretary reasonably believes that the person has information that is relevant to the operation of the scheme.  Subsection 53(1) 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 subsection.

726.            The effect of proposed subsection 67(1B) will be to limit the Secretary’s ability to delegate his or her powers to make information publicly available under section 43, his or her coercive information gathering powers undersections 45 and 46, and also his or her powers relating to communication of scheme information under subsection 53(1).  These powers will now only be able to be delegated to an SES employee or an acting SES employee in the Department.  The term ‘SES employee’ will have the same meaning given to it as in the Public Service Act 1999 .

727.            This amendment, together with Amendment 123, implements the outcome of the Senate Standing Committee for the Scrutiny of Bills’ consideration of the Bill as reported in Scrutiny Digest 3/18.  In response to queries raised by the Committee about the appropriateness of the delegation powers in section 67, the Attorney-General provided the following comment which was welcomed by the Committee:

The committee enquires whether the Government would amend the Bill to limit the delegation of powers to SES employees, at least in relation to coercive powers and the communication of scheme information.  The Government considers that this would be an appropriate amendment that ensures the information-gathering powers are limited only to more senior officers within the department.

728.            This amendment implements Recommendation 41 of the PJCIS report.

Amendment 125:  Clause 69, page 58 (lines 25 and 26)

729.            This amendment removes subsection 69(2), which provides for the matters that must be included in the annual report, and inserts a new subsection 69(2), which requires the annual report to include the following matters in relation to the financial year:

·          the number of new registrations

·          the number of registrations that ended

·          the number of notices give to the Secretary under Division 2 of Part 3 (reporting to the Secretary)

·          a statement as to whether the Secretary has complied with section 42 (requirement to keep a register

·          the number of provisional transparency notices issued

·          the number of submissions made in response to invitations prepared under subsection 14C(1) for the subjects of provisional transparency notices

·          the number of transparency notices varied or revoked

·          the number of notices issued under section 45 (notice requiring information to satisfy Secretary whether person is liable to register under the scheme)

·          the number of notices issued under section 46 (notice requiring information relevant to scheme)

·          the number of documents produced to the Secretary in compliance with notices issued under section 46

·          the number of occasions on which the Secretary or a scheme official communicates scheme information to a person in reliance on the authorisation in section 52 (purposes of scheme) or 53 (other purposes) (whether or not any other authorisation is also relied on)

·          a list of the Departments, agencies, authorities or Australian police forces to which scheme information has been communicated in reliance on the authorisation in section 52 or 53 (whether or not any other authorisation is also relied on)

·          the number of persons charged with offences under Part 5 (enforcement)

·          the number of proceedings before the courts in relation to the scheme

·          any other matters prescribed by the rules for the purposes of this section.

730.            This amendment implements Recommendation 49 of the PJCIS report.

Amendment 126:  Clause 70, page 59 (lines 5 to 14)

731.            This amendment removes section 70 of the Bill, which provided for a review of the operation of the scheme, and replaces it with a new section 70 which provides for a review of the scheme by the Parliamentary Joint Committee on Intelligence and Security.

732.            New section 70 requires the Parliamentary Joint Committee on Intelligence and Security to:

·          begin a review of the operation, effectiveness and implications of the scheme by the third anniversary of the day this Act commences, and

·          report the Committee’s comments and recommendations to each House of the Parliament as soon as practicable after completing the review.

733.            This section implements Recommendation 50 of the PJCIS report.  Consistent with that recommendation, the PJCIS is required to initiate the review no later than three years after the scheme commences.  There is no time limit imposed on the PJCIS to complete the review, but the PJCIS must report its findings to each House of the Parliament as soon as practicable after completing the Review.

734.            Recommendation 30 of the PJCIS report suggests that the review required under this section should specifically consider the appropriateness of the reporting requirements in Part 3 of the Bill in completing the review.  Section 70 does not require this to be considered, this will be a matter for the PJCIS at the time it conducts the review.



 

ATTACHMENT A

 

Parliamentary Amendments in Response to:

Parliamentary Joint Committee on Intelligence and Security

Advisory Report on the

Foreign Influence Transparency Scheme Bill 2017

(Report tabled 25 June 2018)

Recommendation

Parliamentary amendments

Recommendation 1

The Committee recommends the implementation of the Attorney-General’s proposed amendments to remove from the definition of ‘foreign principal’ in section 10 of the Bill, the terms

·          ‘foreign business’

·          ‘foreign public entity’, and

·          ‘an individual who is neither an Australian citizen not a permanent Australian resident’.

Amendment 15 (foreign public enterprise)

Amendment 16 (foreign business and foreign individual)

 

Recommendation 2

The Committee recommends implementation of the Attorney-General’s proposed amendments to introduce the term ‘foreign government related entity’ (as defined in those amendments) within the definition of a ‘foreign principal’ in section 10 of the Bill.

The Committee further recommends the Explanatory Memorandum is amended to expressly set out that mere funding from a foreign government is not sufficient to satisfy the threshold requirements for the term’s application to companies.

Amendment 13

Recommendation 3

The Committee recommends that the Attorney-General’s proposed definition of a ‘foreign government related entity’ be further amended so as to include those entities where the directors or members of the executive committee are accustomed to act in accordance with the directions, instructions or wishes of a foreign government or a foreign political organisation, even if they are under no obligation to do so.

Amendment 13

Recommendation 4

The Committee recommends the implementation of the Attorney-General’s proposed amendments to introduce the term ‘foreign government related individual’ (as defined in those amendments) within the definition of a ‘foreign principal’ in proposed section 10

Amendment 13

Recommendation 5

The Committee recommends that the Attorney-General’s proposed definition of a ‘foreign government related individual’ be further amended so as to include those individuals who are directors or members of an executive committee who are accustomed to act in accordance with the directions, instructions or wishes of a foreign government or a foreign political organisation, even if they are under no obligation to do so.

Amendment 13

Recommendation 6

The Committee recommends that the Bill retain the current inclusive definition of a ‘foreign political organisation’ but be amended to provide that ‘foreign political organisation’ includes:

·          a foreign political party, and

·          a foreign organisation that exists primarily to pursue political objectives.

Amendment 13

Recommendation 7

The Committee recommends implementation of the Attorney-General’s proposed amendments to remove, from the definition of ‘undertaking activity on behalf of a foreign principal’ in section 11 of the Bill, the terms

·          ‘with funding or supervision by the foreign principal’, and

·          ‘in collaboration with the foreign principal’.

Amendment 30

Recommendation 8

The Committee recommends that subsection 11(3) of the Bill be amended to provide that a person only undertakes an activity on behalf of a foreign principal within the meaning of subsection 11(1) if both the person and the foreign principal knew or expected that:

·          the person would or might undertake the activity, and

·          the person would or might do so in circumstances falling within sections 20, 21, 22, 22 or 23 of the Bill (whether or not the parties expressly considered the existence of the scheme).

Amendment 30

Recommendation 9

The Committee recommends the implementation of the Attorney-General’s proposed amendment to introduce new subsection 11(4) to the Bill.

Amendment 31

Recommendation 10

The Committee recommends implementation of the Attorney-General’s proposed amendments to proposed subsection 12(1) of the Bill, which require that the activity must be for the sole or primary purpose, or a substantial purpose, of influencing political or governmental processes.

Amendment 32

Recommendation 11

The Committee recommends implementation of the Attorney-General’s proposed amendments to section 13 of the Bill which provide that broadcasters, carriage service providers and publishers are not required to register, merely because they edit information or materials produced by a foreign principal.

Amendment 36, 37 and 38

Recommendation 12

The Committee recommends that the Attorney-General’s Department prepare and publish prior to the commencement of the Foreign Influence Transparency Scheme, detailed guidance material to assist online publishers and platforms with clarity as to their liability to register under the Scheme. 

N/A

Recommendation 13

The Committee recommends that proposed section 14 of the Bill be amended to clarify that the purpose of an activity may be determined by having regard to the intent or belief of the person undertaking the activity and:

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

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

Amendment 40

Recommendation 14

The Committee recommends the implementation of the Attorney-General’s proposed amendments with regard to additional obligations for former Cabinet Ministers and recent designated position holders in section 22 and proposed section 23 of the Bill, with further amendments as follows:

·          for a former Cabinet Minister, the time period of ten years should be removed altogether, such that these additional obligations would extend in perpetuity, and

·          fore recent designated position holders, the time period be amended from seven years to 15 years

Amendment 18(former Cabinet Ministers)

Amendment 22 (recent designated position holder)

Recommendation 15

The Committee recommends that the Government consider amending the definition of ‘recent designated position holder’ in the Attorney-General’s proposed amendments to include individuals employed under the Members of Parliament (Staff) Act 1984 at the rank of Senior Adviser or above within the Ministry, so that the additional duties in section 23 (Registrable activities: recent designated position holders) apply to such people after they leave their employment.

Amendment 9

Recommendation 16

The Committee recommends that proposed section 22 (Registrable activities: former Cabinet Ministers) and 23 (Registrable activities: recent designated position holders) of the Bill be amended so that the individuals to whom those provisions apply cannot rely upon the exemptions in proposed section 29 (Exemption: government, commercial or business pursuits) to avoid what would otherwise be their registration obligations.

Amendment 59

Recommendation 17

The Committee recommends implementation of the Attorney-General’s proposed change to section 24 in the Bill.

The Committee further recommends that the Explanatory Memorandum is revised to clarify the circumstances under which the humanitarian aid and assistance exemption applies.  In particular, the Committee recommends the exemption should not be limited to responsive humanitarian aid or assistance, but rather capture preventative and long term humanitarian aid and assistance.

Amendment 54

Recommendation 18

The Committee recommends implementation of the Attorney-General’s proposed amendments to section 25 of the Bill, subject to the Government considering amending the section to also apply to activities that are ‘incidental to’ the matters currently listed in paragraphs (a) to (c).

Amendment 55

Recommendation 19

The Committee recommends implementation of the Attorney-General’s proposed amendment to section 27 (Exemption: religion) of the Bill, and that the Explanatory Memorandum be amended to reflect the Government’s intention that religious institutions are exempt.

Amendment 42

 

 

Recommendation 20

The Committee recommends implementation of the Attorney-General’s proposed amendment to delete section 28 of the Bill.

Amendment 58

Recommendation 21

The Committee recommends implementation of the Attorney-General’s proposed amendments to section 29 of the Bill, with further amendments as follows:

that subsection 29(2) be amended so that the government, commercial or business pursuits exemption applies only where an individual’s position as a director, officer or employee is obvious on the face of the otherwise registrable activity undertaken by the individual.

Amendment 59

Recommendation 22

The Committee recommends that the Explanatory Memorandum be amended to clarify the intent of the amended section 29 of the Bill and the circumstances under which commercial and business pursuits would be exempt.

N/A

Recommendation 23

The Committee recommends implementation of the Attorney-General’s proposed amendment to provide an exemption for industry representative bodies in section 29A of the Bill.

The Committees the Government amend the Explanatory Memorandum to provide clarity to industry representative bodies as to what types of activities would be included and excluded under proposed section 29A(d) of the Bill.

Amendment 60

Recommendation 24

The Committee recommends implementation of the Attorney-General’s proposed section 29B exemption for personal representation in relation to administrative process etc.

Amendment 61

Recommendation 25

The Committee recommends the Bill be amended to provide exemptions for charities, arts organisations and industrial associations, which would operate to relieve those organisations of an obligation to register when they are making routine representations in accordance with their respective purposes, and where the relationship with the foreign principal is well known or a matter of public record.

Amendment 62 (charities)

 

Amendment 63 (arts)

 

Amendment 64 (registered organisations)

Recommendation 26

The Committee recommends that the Bill be amended to provide a limited exemption for professions (such as tax agents, customs brokers and liquidators) where representations to government are parts of the normal day-to-day work of the people in that profession, and where the activity is such a regular day-to-day representation in the name of a foreign principal.

Amendment 65

Recommendation 27

The Committee recommends the Bill be amended to clarify that the proposed exemptions provisions apply to both arrangements and activities.

Amendment 39

Recommendation 28

The Committee recommends implementation of the Attorney-General’s proposed amendments to clarify the interaction of the Bill with parliamentary privilege, including by the insertion of a ‘savings provision’ in section 9A of the Bill and limiting the application of the Secretary’s powers to obtain information or documents.

However, the Committee recommends that subsection 9A(1) be prefaced with the words ‘To avoid doubt’.

Amendment 4

Recommendation 29

The Committee recommends that the Bill be amended to provide that the Foreign Influence Transparency Scheme does not apply to members of the House or Representative (sic) or Senators.

The Committee further recommends that the House of Representatives and the Senate develop a parallel parliamentary foreign influence transparency scheme, imposing on Members and Senators similar transparency obligations to those in the Bill, but appropriately adapted for the parliamentary environment.

In developing that parallel scheme, the Houses should consider all conduct undertaken by Members and Senators in the course of their duties as parliamentarians, including conduct not directly related to proceedings in the Parliament.  The Scheme should be administered independently within the Parliament, and include

·          an obligation to report registrable activities undertaken on behalf of a foreign principal, or registrable arrangements with a foreign principal, appropriately adapted for the parliamentary environment,

·          a power for the administrator to obtain information and documents, and

·          appropriate sanctions for non-compliance.

Amendment 56

Recommendation 30

The Committee recommends that the review required under proposed section 70 of the Bill specifically consider the appropriateness of the reporting requirements in light of the experience garnered through the operation of the Scheme.

N/A

Recommendation 31

The Committee recommends that the rules should provide clarity about the disclosure requirements, and that the Government should consider the existing obligations contained under the Commonwealth Electoral Act 1918 when developing these rules.

N/A

Recommendation 32

The Committee recommends that the Attorney-General’s Department prepare, and publish prior to the commencement of the Scheme, detailed guidance on the types of records that are required to be kept for the purpose of section 40 (Keeping records) of the Bill.

N/A

Recommendation 33

The Committee recommends that section 40 of the Bill be amended to lower the period a person is required to retain records from five years to three years after registration ends, and that the Government consider an amendment that would provide that records of ten years or more are no longer required to be retained by a registered person.

Amendments 78 and 79

Recommendation 34

The Committee recommends that the Bill be amended to remove section 63, and the Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017, be withdrawn.

Amendment 122

Recommendation 35

The Committee recommends that, following the passage of this Bill, the Government introduce measures to:

·          better align the Lobbying Code of Conduct and the Register of Lobbyists with the proposed Foreign Influence Transparency Scheme, and

·          amend the Lobbying Code of Conduct to provide an exemption for registration where a person is registered under the Foreign Influence Transparency Scheme.

N/A

Recommendation 36

The Committee recommends that the Explanatory Memorandum be amended to provide clarity about the terms ‘commercially sensitive’ and ‘national security’.

N/A

Recommendation 37

The Committee recommends that section 43 of the Bill be amended to require the Secretary to publish information listed in section 43 within a period of four weeks of receiving the information from a person liable to register under the Scheme.

Further, the Committee recommends that for information provided during voting periods, as required under proposed section 36 and 37, the Secretary should be required to publish relevant information within 48 hours of its receipt.

However, there should be a limited ability for the Secretary to take longer to publish information in circumstances where he or she is considering whether for one of the grounds for non-publication applies.

Amendment 83

Recommendation 38

The Committee recommends a Privacy Impact Assessment is undertaken at the earliest possible opportunity and prior to the commencement of the Scheme to ensure information both requested and shared by the Secretary is undertaken in compliance with an individual’s right to privacy.

N/A

Recommendation 39

The Committee recommends that the Bill be amended to clarify that the Secretary’s powers cannot be used to compel evidence from a person in order to obtain evidence from that person that is then admissible in a prosecution of that person for an offence contained in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.

Amendments 88 and 90

Recommendation 40

The Committee recommends section 53 of the Bill be amended to provide that any additional persons with whom, or purposes for which, Scheme information may be shared, be referred to the Parliamentary Joint Committee on Intelligence and Security for its review, and approval.

Amendment 95

Recommendation 41

The Committee recommends implementation of the Attorney-General’s proposed amendments to section 67 of the Bill that limit the powers and functions that the Secretary may delegate.

Further, the Committee recommends that section 67 be amended to provide that decisions by the Secretary under section 43 should not be delegated to an officer who is below the level of a Senior Executive Service officer.

Amendment 124

Recommendation 42

The Committee recommends that after an initial period of operation, the Government give consideration to the Scheme being administered by an independent statutory officer, as an alternative to it being administered by the Secretary of the Attorney-General’s Department.

N/A

Recommendation 43

The Committee recommends implementation of the Attorney-General’s proposed amendments to the Bill which establish new Part 1, Division 3 - Transparency notices, subject to the following further amendments.  The Committee recommends that the transparency notice framework as proposed by the Attorney-General be separated to include:

·          a ‘provisional’ transparency notice, and

·          a ‘final’ transparency notice, and

the following technical amendments be implemented to:

·          provide that the notice comes into force when it is made public, rather than when it is made, and

·          clarify what ‘details’ (mentioned in subsection 14C(1)) must be included in a notice.

Amendment 41

Recommendation 44

The Committee recommends that the Attorney-General’s proposed amendments for section 14B(2) of the Bill, not be implemented.

Amendment 41

Recommendation 45

The Committee recommends implementation of the Attorney-General’s proposed amendment to lower penalties under sections 57 and 57A of the Bill.

Amendments 100, 101, 105, 106, 110

Recommendation 46

The Committee recommends that the Bill be amended to remove absolute liability from sections 57, 57A and 61.

Amendments 101, 106, 110 (sections 57 and 57A)

Amendment 118 (section 61)

Recommendation 47

The Committee recommends that the Bill be amended to remove strict liability from section 58.

Amendments 111, 112 and 113

Recommendation 48

The Committee recommends implementation of the Attorney-General’s proposed amendments to

·          lower the penalty in proposed section 60 of the Bill from five to three years

·          lower the penalty under proposed 61 - destruction etc. of records - from five years to three years, and

·          introduce section 61A - geographical jurisdiction of offences.

Amendments 115, 117 and 119

Recommendation 49

The Committee recommends that section 69 of the Bill be amended to specify minimum requirements for inclusion in the annual report on the operation of the Scheme.  These requirements should include:

·          the numbers of new and ceased registrations, and reports provided to the Secretary,

·          the number of transparency notices issued, varied or revoked,

·          the number of written notices issued by the Secretary under sections 45 and 46, and the number of documents obtained by the Secretary as a result of section 46 notices,

·          the number of occasions a subject of a provisional transparency notice issued under Part 1 - Division 3 makes submissions to the Secretary,

·          a statement of compliance with the obligations under section 42 of the Act (register of scheme information)

·          the number of occasions on which Scheme information has been shared, including which agencies are obtaining Scheme information,

·          information on fees collected under the Scheme, and

·          any other matter prescribed by the rules for the purposes of the section.

Amendment 125

Recommendation 50

The Committee recommends that section 70 of the Bill be amended to provide that the Parliamentary Joint Committee on Intelligence and Security initiate a review within three years of the commencement of the Scheme.

Amendment 126

Recommendation 51

The Committee recommends that the Parliamentary Joint Committee on Intelligence and Security is provided with reports by the administrator of the Scheme, as follows:

·          a report detailing the Scheme’s implementation progress and strategy, to be provided to the Committee six months after Royal Assent of the Bill, or prior to the commencement of the Scheme, whichever occurs first, and

·          a report detailing the Scheme’s early operation to be provided to the Committee within 18 months of its commencement.

The administrator should be available to brief the Committee following the presentation of each report.

N/A

Recommendation 52

Subject to implementation of the Committee’s recommendations, the Committee recommends that the Foreign Influence Transparency Scheme Bill 2017 be passed.

N/A