Foreign Influence Transparency Scheme Act 2018

The scheme affects four categories of persons. First, professional lobbyists, public relations practitioners, political consultants, and communications professionals who have contractual arrangements with foreign governments or their affiliates. Second, former Ministers and senior government officials who use their connections and knowledge to assist foreign interests. Third, any organisation that receives money or direction from foreign government-related entities to conduct political or communications activity in Australia. Fourth, individuals employed by or acting on behalf of foreign governments, foreign political parties, or government-linked entities.

Companies, firms, partnerships, and associations may all be liable. Former Cabinet Ministers are subject to broad lifetime registration obligations for any activity on behalf of any foreign principal. Recent designated position holders face a 15-year lookback window.

Registration (s 16): A person who becomes liable to register must apply within 14 days. The application must be in writing in an approved form.

Reporting material changes (s 34): A registrant must notify the Secretary of material changes in circumstances during the registration period.

Reporting disbursement activity (s 35): Registrants who undertake disbursement activity in Australia for the purpose of political or governmental influence must report this activity.

Reporting on registration review when voting period begins (s 36): At the start of each federal election voting period, registrants must review and report on the accuracy of their registration details.

Reporting during voting periods (s 37): Registrants must report registrable activity (other than disbursement activity) undertaken during voting periods.

Disclosure in communications activity (s 38): Any person (whether or not registered) who undertakes communications activity that is registrable must disclose the fact that they are acting for a foreign principal and identify the foreign principal. This obligation applies even to unregistered persons.

Annual renewal (s 39): Registrants must annually renew their registration. Failure to renew ends the registration.

Record keeping (s 40): Registrants must keep records of their registrable activities and their registrable arrangements.

The Secretary (under the Department administering the Act) receives applications, maintains the register, and can issue notices requiring information from any person to determine whether they are liable to register (s 45) or relevant to the scheme (s 46).

The Attorney-General may issue transparency notices declaring a person to be a foreign government-related entity or individual (ss 14A-14H). These are issued after provisional notice and submission opportunity. Transparency notices are subject to Administrative Review Tribunal review.

The Secretary may correct or update information on the public register (s 44).

Rules may be made under s 71 to prescribe various matters including designated vote types, time periods for the former designated position holder category, and other procedural requirements.

Failure to register (s 57): Criminal offence for a person who is liable to register and does not apply within the 14-day period. Penalty: 5 years imprisonment or 500 penalty units, or both.

Giving notice of end of liability while still liable (s 57A): Offence for giving false notice. Penalty: 5 years imprisonment or 500 penalty units, or both.

Failure to fulfil responsibilities (s 58): Offence for failing to comply with Part 3 obligations (reporting, disclosure, renewal, record keeping). Penalty: 2 years imprisonment or 200 penalty units, or both.

Failure to comply with information notices (s 59): Offence for not complying with a Secretary's information notice under s 45 or 46.

False or misleading information or documents (s 60): Offence for providing false or misleading information. Penalty: 12 months imprisonment or 60 penalty units, or both.

Destruction of records (s 61): Offence for destroying or altering records required to be kept. Penalty: 2 years imprisonment or 200 penalty units, or both.

Civil penalties are not used in this scheme; enforcement is criminal.

1. Person undertakes registrable activity or enters registrable arrangement with foreign principal.
2. Within 14 days, person must apply for registration with the Secretary (s 16).
3. Registration is effective from the day of application (s 17).
4. Ongoing obligations during registration: material change notices (s 34), disbursement activity reports (s 35), voting period reports (ss 36-37), disclosure requirements in communications (s 38), and record keeping (s 40).
5. Annual renewal required under s 39 to maintain registration.
6. To end registration: person gives notice under s 31 specifying the last day, and on that day has no registrable arrangement with the foreign principal (s 19(1)).
7. Former Cabinet Ministers cease to be liable when the circumstances that make them a former Cabinet Minister are no longer applicable (which, practically, is never).
8. Recent designated position holders cease liability when the relevant look-back period expires (s 19(2)).

Voting periods for federal elections are periods prescribed under the Commonwealth Electoral Act 1918 and trigger enhanced reporting obligations under ss 36 and 37.

The Commonwealth Electoral Act 1918 is the primary related legislation. The disbursement activity definition (s 10) is framed by reference to the Electoral Act's donation disclosure thresholds. During federal elections, the Electoral Act's voting period also triggers FITS Act reporting obligations.

The Criminal Code (Cth) applies to the Act's offences through the standard criminal responsibility framework (though s 7's constitutional basis section ensures the Act can stand on multiple heads of power).

The Diplomatic Privileges and Immunities Act 1967, Consular Privileges and Immunities Act 1972, and Overseas Missions (Privileges and Immunities) Act 1995 are relevant to the diplomatic and consular exemption in s 26.

The Australian Charities and Not-for-profits Commission Act 2012 and the Charities Act 2013 are referenced in the registered charity exemption (s 29C).

The Fair Work (Registered Organisations) Act 2009 is referenced in the registered organisations exemption (s 29E).

The Intelligence Services Act 2001 and Australian Security Intelligence Organisation Act 1979 operate alongside this Act in the national security context.

Constitutional basis: s 7 enumerates an unusually broad set of constitutional heads of power including external affairs (s 51(xxix)), incidental powers (s 51(xxxix)), trade and commerce (s 51(i)), communications (s 51(v)), corporations (s 51(xx)), census and statistics (s 51(xi)), aliens (s 51(xix)), territories, and implied powers. This reflects the contested constitutional foundations of the Act and the need for severability.

A single activity triggers registration even if never repeated. Section 18(3)(a) expressly states that becoming liable under s 18(1)(a) applies even if the person only undertakes the activity once. There is no de minimis threshold; any single registrable activity creates a 14-day registration obligation.

Entering an arrangement triggers registration even without undertaking any activity. Section 18(1)(b) and s 18(3)(b) confirm that entering a registrable arrangement with a foreign principal creates liability to register even if no activity is actually performed under the arrangement.

The disclosure obligation in s 38 applies to non-registrants. Section 38 requires disclosure in communications activity for any person undertaking registrable communications activity on behalf of a foreign principal, whether or not they are registered. This catches persons who mistakenly believe they are exempt or who have not yet registered.

Former Cabinet Ministers face lifetime registration obligations. Section 22 requires registration for any activity a former Cabinet Minister undertakes on behalf of any foreign principal, with no time limit. The 15-year look-back applies to recent designated position holders but not to former Cabinet Ministers, for whom there is no sunset provision in the Act (though rules may prescribe modifications).

The transparency notice mechanism can apply to businesses with no awareness. A transparency notice under Division 3 can be issued declaring a company to be a foreign government-related entity if a foreign government holds more than 15% of shares or voting power (s 10). The company may not know it has been declared, though the provisional notice and submission process provides some opportunity for challenge.

The exemptions have specific qualifying conditions. The registered charity exemption (s 29C) requires both that the foreign principal connection is apparent to, or disclosed to, the public at the time of the activity, and that the activity is not disbursement activity. A charity that undertakes political advocacy for a foreign government without public disclosure of that relationship is not exempt. Similarly, the artistic exemption (s 29D) requires public disclosure of the foreign principal connection.

A Sydney-based public affairs firm is engaged by the embassy of Country X to lobby members of a Senate committee about proposed foreign investment regulations. Parliamentary lobbying on behalf of a foreign government is registrable under s 20 regardless of purpose. The firm must register within 14 days of agreeing to (or beginning) this engagement. Even if the engagement lasts only a day, the obligation applies (s 18(3)(a)).

A former Foreign Minister leaves politics and is engaged by a state-owned company of Country Y to arrange meetings with current ministers. The former Minister is a former Cabinet Minister under s 22. Any activity they undertake on behalf of the company (which is likely a foreign government-related entity under s 10) is registrable, regardless of whether the activity falls within any other registrable activity category. The former Minister must register within 14 days.

A digital media company is paid by a foreign political party to run a social media advertising campaign during an Australian federal election campaign. This is communications activity on behalf of a foreign political organisation for the purpose of political or governmental influence, registrable under s 21 item 3. The company must register and must also disclose in each communication that it is acting for the foreign political party (s 38), whether or not it is registered.

A registered charity receives a grant from a foreign government-linked foundation and uses it to fund a public campaign advocating changes to Australian refugee policy. The charity exemption under s 29C is potentially available if the activity is not disbursement activity and both the foreign principal connection and the identity of the foreign principal are publicly disclosed at the time of the activity. If the charity makes no such disclosure, the exemption does not apply.