Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018

The instrument operates by reference to concepts defined in both the instrument and the Act. It repeatedly relies on the Act’s definitions and provisions: it is made for the purposes of paragraphs 38(2)(a)-(c) of the Act (s 5(1)), it treats as communications activity only communications to the public or a section of the public (note to s 5(1) referencing s 13 of the Act), and it cross‑refers to the Act’s registrability concept (note to s 5(1) and table item 2 referencing s 21 of the Act). Within the instrument itself the following definitions and concepts are given precise meaning:

• "Act" means the Foreign Influence Transparency Scheme Act 2018 (s 4). The instrument repeatedly frames its rules as supplementing statutory obligations in the Act.
• "Digital banner advertising" is defined to include static or dynamic website banners and the streaming of a video when a banner is hovered over (s 4).
• "Electronic message" is a defined concept with two limbs: the carriage service used (listed carriage service enabling end‑users to access the internet or any other listed carriage service) and the destination electronic address type (email, instant messaging, telephone or similar accounts). The definition expressly excludes voice calls using a standard telephone service (s 4).
• "Listed carriage service" is taken from the Telecommunications Act 1997 (s 4).
• "Message" is broadly defined to include text, data, audio, visual images and combinations thereof (s 4).
• "Telephony" and "voice call" are defined broadly to include voice over IP and recorded or synthetic voices and to allow equivalent calls for customers with disabilities (s 4).

Structurally, the instrument prescribes (a) the prescribed instances of communications activity (the 16 items in the table in s 5(1)), (b) the place in the communication where the disclosure must appear (column 2 of each table item), and (c) the textual content the disclosure must contain in general (s 5(2)) and in specified circumstances (ss 6-7). It also provides rules for language (s 8) and a prohibition on obfuscating or distorting written disclosures within the communications (s 9). Where a single communication falls within more than one table item, only one prescribed form and manner need be used (s 5(3)). The instrument therefore converts the Act’s disclosure mandate into concrete placement, formatting and content requirements for a broad range of modern and legacy communication media.

The instrument affects persons who undertake communications activity on behalf of foreign principals where those communications are registrable or otherwise fall within the Act’s scope. The instrument itself frames those affected in relation to the Act: s 5(1) prescribes instances of communications activity "for the purposes of paragraphs 38(2)(a), (b) and (c) of the Act", and the note to s 5(1) emphasises that a communication or distribution is only a communications activity if it is "to the public or a section of the public" (see s 13 of the Act). Concretely, the affected parties will include any natural person, corporation, or other "person" who, on behalf of a foreign principal, communicates or distributes information in one of the listed categories , for example publishers of printed materials, website operators or content providers, social media account holders, advertisers placing search or banner ads, broadcasters (radio and television), mobile app developers and operators, streaming services, out‑of‑home advertisers and persons making oral communications in public settings.

The instrument’s definitions have practical reach. The "electronic message" definition (s 4) captures messages sent via listed carriage services to electronic addresses linked to email, instant messaging, telephone or "similar accounts" but explicitly excludes standard voice calls. Telephony and voice call definitions (s 4) broaden the reach of "telephony" to include voice over IP and synthetic voices, and provide an accessibility exception (equivalent calls) for customers with disabilities. The "digital banner advertising" definition (s 4) captures contemporary banner formats, including interactive video‑on‑hover behaviours.

The instrument also interacts with other legal regimes that create parallel notification or announcement obligations. Section 7(1) lists specific laws (Commonwealth Electoral Act, Referendum (Machinery Provisions) Act, Broadcasting Services Act, Australian Broadcasting Corporation Act, Special Broadcasting Service Act) where particulars notified under those regimes can be used to satisfy disclosure requirements for authorised political material. Therefore parties who already notify under those laws will be directly affected in how they make their disclosures under the Scheme. Finally, because the instrument is made under the Act (s 3) and commenced simultaneously with the Act (s 2), persons required to register or otherwise comply under the Act will need to observe these disclosure rules as an ancillary compliance obligation.

The instrument sets precise duties regarding where, when and what to disclose for the prescribed instances of communications activity. The principal duties are:

• Make a disclosure in the prescribed form and manner for any instance appearing in the table in s 5(1), subject to s 5(3), s 6 and s 7 (s 5(1)(b)). The table prescribes the physical or temporal placement of the disclosure for each communication medium , for example, printed material must include the disclosure at the end or bottom of each page and in a type size readable by a person with 20/20 vision (table item 1); telephony disclosure must appear "at the beginning of the communication" (table item 4); social media disclosures must appear "at the end of the communication" or via a URL/photo if too long (table item 6).
• Include required content. Except where s 6 or s 7 applies, s 5(2) prescribes that the disclosure must: (a) identify the person undertaking the communications activity; (b) identify the foreign principal on whose behalf the person undertakes the activity; (c) include a statement that the communications activity is undertaken on behalf of the foreign principal; and (d) include a statement that the disclosure is made under the Foreign Influence Transparency Scheme Act 2018.
• Where multiple table items apply to a single instance of communications activity, only one prescribed form and manner need be used (s 5(3)). This is a duty‑reducing rule: compliance with one applicable item suffices.
• Radio advertisements have bespoke content requirements (s 6). For radio ads, a disclosure must include a statement that the communication is a registrable activity under the Scheme; and if the ad runs for more than 15 seconds it must identify the foreign principal and state that the activity is undertaken on behalf of that foreign principal if those facts are not apparent from the advertisement (s 6(2)(a)-(b)).
• Authorised political material that is already notified or announced under listed electoral and broadcasting laws may be disclosed using the same form and manner as the existing notification or announcement instead of the table form (s 7(2)). The content can also be simplified to the matters in s 7(4): statement of registrability, identification of the foreign principal if not apparent, and statement that the activity is undertaken on behalf of the foreign principal if not apparent.
• Language duty: disclosures must be made "in each language used (outside the disclosure) in the information or material communicated or distributed or, if no language is used, in English" (s 8). This requires multilingual disclosures if the surrounding communication uses multiple languages.
• Written disclosures must not be "obstructed, or distorted" by anything in the rest of the communication (s 9). This imposes a placement and presentation duty to preserve legibility and prominence.

Rights or mitigations embedded in the instrument include: the option, where disclosure content is too long for the medium, to place the full disclosure on an accessible website and include a URL with an indication that it contains the disclosure (table items 5, 6, 7, 9, 10, etc. specify this mechanism). For authorised political material, existing statutory notification mechanisms under the listed Acts may be used for disclosures (s 7), which allows use of established formats and potentially avoids duplication.

The instrument itself does not create offences or civil penalties; it is a rules instrument prescribing disclosure mechanics. Enforcement mechanisms and penalties are matters for the Act. The instrument prescribes specific formatting and placement duties, and provides limited avenues (URLs, photos) to accommodate medium constraints and length limits.

The instrument contains no penalty, fine, or enforcement provisions of its own. It is framed as subordinate legislation made under the Act (s 3) that prescribes the "form and manner" and content of disclosures required by the Act (s 5(1)). Because it repeatedly refers to obligations "for the purposes of paragraphs 38(2)(a), (b) and (c) of the Act" (s 5(1)) and treats registrability (s 5(1) note refers to s 21 of the Act) and what constitutes a communications activity (note to s 5(1) referring to s 13 of the Act) as matters governed by the Act, any failure to comply with these disclosure rules would be actionable only under the enforcement regime established by the Act. The instrument does not purport to alter those enforcement mechanisms.

Practically, this means that penalties, compliance notices, investigatory powers and any civil or criminal enforcement consequences are not specified in the instrument itself. Those outcomes depend on the Act’s provisions, which the instrument repeatedly invokes but does not reproduce. The instrument does impose concrete duties (placement, content, language, legibility, non‑obstruction) and provides some compliance mechanisms (URLs, photos, using existing electoral/broadcasting notifications for authorised political material). However, the instrument does not identify who enforces compliance, what remedies apply for non‑compliance, or the procedural route for dispute resolution. Those matters are left to the Act and any other relevant legislation.

Any compliance programme or risk assessment must therefore treat the instrument as the operative source of technical disclosure obligations and consult the Act for the enforcement, penalty and remediation architecture. The instrument’s silence on penalties should not be read as immunity; it indicates that the Act is the source of enforcement and that the instrument’s duties are intended to be enforced through the Act’s mechanisms.

The instrument explicitly cross‑references several statutory regimes and incorporates definitions from other statutes. It is made under the Act (s 3) and expressly operates "for the purposes of paragraphs 38(2)(a), (b) and (c) of the Act" (s 5(1)), so it functions as an instrument to operationalise disclosure obligations that arise under the Act. The table note to s 5(1) directs readers to section 13 of the Act for the definition of when a communication is a communications activity (only if to the public or a section of the public). Table item 2 refers to section 21 of the Act in relation to websites "registrable in relation to at least one of those foreign principals", so the scheme’s notion of registrability is anchored in the Act.

The instrument also borrows a technical term from telecommunications law: "listed carriage service has the same meaning as in the Telecommunications Act 1997" (s 4). That link matters for electronic messages because the "electronic message" definition in s 4 uses "listed carriage service" to define the transmission medium. Consequently, the Telecommunications Act 1997’s definitions and classifications of carriage services will determine whether a transmission method qualifies as a listed carriage service for the purposes of the instrument.

Section 7(1) provides direct interaction with electoral and broadcasting statutes. If particulars of an instance of communications activity are already notified or announced under any of the listed laws , Part XXA of the Commonwealth Electoral Act 1918, Part IX of the Referendum (Machinery Provisions) Act 1984, subclause 4(2) of Schedule 2 to the Broadcasting Services Act 1992, s 79A(2) of the ABC Act 1983, or s 70A(2) of the SBS Act 1991 , then a disclosure under the Scheme may be made in the same form and manner as that notification or announcement instead of using the table form and manner in s 5(1) (s 7(2)). Content may likewise be simplified to the elements in s 7(4) where that approach is used (s 7(3)-(4)). This creates a compliance pathway for authorised political material that is already regulated under electoral and broadcasting rules.

The instrument also signals language expectations: s 8 requires disclosures to be made in each language used outside the disclosure in the communicated material or in English if no language is used. This links the Scheme’s disclosure duty to the linguistic features of communications governed by other statutory regimes, particularly in multilingual broadcasts or multilingual advertising.

Finally, because the instrument prescribes use of alternative delivery mechanisms (e.g. including a URL where the disclosure is too long) it potentially intersects with online content, advertising and consumer protection laws that regulate landing pages, advertising claims, and electronic communications; however, the instrument itself does not address those other compliance regimes. Practitioners should therefore assess disclosure placement and content not only against this instrument and the Act but also against any sectoral or medium‑specific obligations under the Electoral Acts, Broadcasting Acts, Telecommunications Act and consumer protection or advertising standards that might affect format, prominence, or content.

The instrument records its commencement and makes a specific note about amendment tracking. Section 2 contains a commencement table noting that "the whole of this instrument" commenced "At the same time as the Foreign Influence Transparency Scheme Act 2018 commences" and records the date/details as 10 December 2018. It also contains an editorial note that the table relates only to the provisions "as originally made" and "will not be amended to deal with any later amendments of this instrument" (s 2(1) and the following note). Section 3 identifies the statutory authority for making the instrument , the Foreign Influence Transparency Scheme Act 2018.

No amending provisions, schedules or subsequent legislative text appear within the instrument provided. The instrument itself contains a formal note in s 2(2) that information in column 3 of the commencement table is not part of the instrument and may be edited in published versions; that is an editorial statement about how published versions are presented and not a substantive amendment provision.

Because the text supplied contains only the instrument as originally made and explicitly records commencement information and the authority under which it was made, the instrument’s amendment history as within its own text is limited to stating its original commencement date and authority. It does not record subsequent amendments, revocations, or replacements. To establish whether later amendments have been made to the instrument a reader must consult consolidated legislation databases or the Act’s amendment history outside this instrument; the instrument itself does not include later amendment entries.

The instrument does not contain, cite or summarise any judicial decisions or administrative rulings. It contains no references to litigation, declaratory relief, or examples drawn from case law. The notes and text are confined to definitional material, the table of prescribed instances and the procedural and content requirements of disclosures. There is therefore no litigation history recorded within this instrument.

Where disputes arise about the meaning, application or sufficiency of a disclosure made under these rules, any litigation or administrative review would proceed under the Act and relevant court or tribunal jurisdiction, but the instrument itself provides no record of cases, appeals or regulatory determinations. Practitioners looking for precedent or interpretive guidance will need to look outside the instrument , to decisions under the Act, regulator guidance, or advisory material , none of which are in this text.

The instrument contains several operational details and traps for the unwary that create practical compliance risks if overlooked:

• Public versus private communications: The instrument applies to communications "to the public or a section of the public" (note to s 5(1) referencing s 13 of the Act). A communication privately sent to a single person or otherwise not to the public is not a communications activity for these purposes, but the instrument does not define what constitutes a "section of the public" , that remains a question of construction under the Act. Practitioners should not assume every message to a group is covered without reference to the Act.
• Multiple applicable items: If an activity falls within more than one table item, only one disclosure form and manner need be used (s 5(3)). While that reduces duplication, it requires a decision about which prescribed form best fits the communication; incorrect choice could leave the disclosure non‑compliant with one or more relevant placement or content expectations.
• Length constraints and URLs: Several items permit placing the disclosure on an accessible website and including a URL in the communication if the disclosure is too long for the medium (items 5, 6, 7, 9, 10). The instrument requires that the URL be included "with an indication that the URL is of a website that contains a disclosure under the Foreign Influence Transparency Scheme Act 2018". Failure to include that indication, or using a URL that is not readily accessible, may frustrate the intended compliance mechanism.
• Social media peculiarities: For social media the disclosure can be at the end of the communication or in a website accessible via URL or in a photo included in the communication if the disclosure is too long (table item 6). Relying on a photo may be problematic on platforms that compress images or strip metadata; the instrument requires the disclosure to be made in the photo itself (not merely metadata), and s 9 requires the written disclosure not be obstructed or distorted.
• Electronic message exclusion: The instrument’s "electronic message" definition excludes messages that are voice calls made using a standard telephone service (s 4). However, "telephony" and "voice call" are separately covered in the table (items 4 and 16). This bifurcation requires attention when choosing the proper table item and placement: for telephony the disclosure must be "at the beginning of the communication" (item 4).
• Radio adverts and time‑based obligations: For radio advertisements the disclosure must include a statement that the communication is a registrable activity, and for ads over 15 seconds additional identification and on‑behalf statements are required if not apparent (s 6(2)). Broadcasters and advertisers must therefore track ad duration as it affects disclosure content.
• Legibility standard: Printed material disclosures must be "in a type size that can be read by a person with 20/20 vision without the use of any visual aid" (table item 1). This is a factual standard rather than a specified point size and may lead to disputes about sufficiency.
• Language requirement: s 8 requires disclosure in each language used outside the disclosure in the communicated material, or in English if no language is used. For multilingual communications this triggers a duty to prepare multiple language versions of the disclosure.
• Non‑obstruction/distrortion: s 9 forbids written disclosures from being obstructed or distorted by other content. This affects design choices (colours, overlays, visual clutter) and may constrain creative presentation in advertising or branded content.
• Authorised political material: s 7 allows use of existing statutory notification formats for certain political communications, but only where those particulars are "notified or announced" under the listed laws. Parties relying on this pathway must ensure their material satisfies the listed statutory notification conditions to qualify.
• Definitions cross‑referenced to other Acts: "Listed carriage service" is defined by reference to the Telecommunications Act 1997 (s 4). Whether a given transmission medium is a listed carriage service therefore depends on that other Act’s definitions, which may create complexity for novel services or platforms.

Each of these points is set out in the instrument; they are pragmatic compliance issues that require careful operationalisation rather than abstract legal debate.

The instrument supplies concrete placement, content and language obligations. A practical compliance checklist, grounded in the instrument’s text, is as follows:

1. Determine whether the communication is a "communications activity" under the Act (instrument note to s 5(1) refers to s 13 of the Act), namely whether it is communicated "to the public or a section of the public". If not, these disclosure rules do not apply.

2. Determine whether the communication is undertaken on behalf of a foreign principal and whether it is registrable under the Act (the instrument references registrability and the Act, e.g. table item 2 and s 5(1)). If the communication is not on behalf of a foreign principal or not registrable, the instrument’s disclosure duties will not apply.

3. Identify which table item in s 5(1) corresponds to the medium and form of the communication (printed material; website; online article/blog; telephony; electronic message; social media; search advertising; streaming music; digital banner; mobile app; video; out‑of‑home visual; projection; radio; television; oral communication). Where multiple items could apply, choose one compliant form and manner (s 5(3)).

4. Apply the placement prescription from column 2 of the applicable table item. For example:

   • Printed pages: disclosure at the end/bottom of each page and legible to someone with 20/20 vision (table item 1).
   • Websites/web pages used primarily for communications activity: disclosure at the bottom of each page (table item 2).
   • Online articles/blog posts: disclosure at the end of the article or on each page of multi‑page content (table item 3).
   • Telephony: disclosure at the beginning of the communication (table item 4).
   • Electronic messages: disclosure at the end of the message, or include a URL when the disclosure is too long (table item 5).
   • Social media: disclosure at the end, or via URL, or included in a photo if too long (table item 6).
   • Search advertising and banner ads: disclosure on the landing page, or via URL where word limits prevent inclusion (table items 7 and 9).
   • Mobile apps: disclosure at the end of information/material or via URL on the open screen or in a photo (table item 10).
   • Video, radio, and television: in an announcement and display at the end of the communication; radio requires the announcement at the end (table items 11, 14, 15).
   • Oral communications made in person: disclosure at the beginning and in any accompanying material (table item 16).

5. Ensure the disclosure content meets s 5(2) unless s 6 or s 7 applies. The standard content must:

   • identify the person undertaking the communications activity;
   • identify the foreign principal;
   • state that the communications activity is undertaken on behalf of that foreign principal;
   • state that the disclosure is made under the Foreign Influence Transparency Scheme Act 2018.

   Use the illustrative wording in the instrument’s note as a model if suitable: "This material is communicated by [name of person] on behalf of [name of foreign principal]. This disclosure is made under the Foreign Influence Transparency Scheme Act 2018."

6. For radio advertisements, follow s 6. Include a statement that the communication is a registrable activity; if the ad runs for more than 15 seconds, additionally identify the foreign principal and state that the communication is on behalf of that foreign principal if those facts are not apparent.

7. For authorised political material already notified/announced under the listed Acts, use the same form and manner as that notification per s 7(2) and ensure content at least complies with s 7(4) (statement of registrability, identification of the foreign principal if not apparent, and statement that the activity is undertaken on behalf of the foreign principal if not apparent).

8. Language: prepare disclosures in each language used in the surrounding communication (s 8). If the communication uses no language, prepare the disclosure in English. For multilingual communications, ensure concurrent publication of each language version.

9. Legibility and non‑obstruction: for written disclosures ensure the disclosure is not obstructed or distorted by other content (s 9). For printed pages ensure size/contrast suffices so a person with 20/20 vision can read it without aid (table item 1). Design choices (font size, colour contrast, layering) should preserve readability.

10. Long disclosures: where the disclosure is too long for the medium, host the full disclosure on a website and include a URL in the communication together with an indication that the URL contains a disclosure under the Act (see items 5, 6, 7, 9, 10). Ensure the URL is persistent and accessible; the instrument requires the URL be included and identified as containing the disclosure.

11. Recordkeeping and audit trail: although not mandated by the instrument, maintain records demonstrating how the chosen disclosure format satisfies the applicable table item, the language deployed, the URL used and its availability, and the decision process if multiple items were available (s 5(3)). Retain copies of the actual communications showing the disclosure in situ to support any challenge under the Act.

12. Cross‑reference telecom definitions: where reliance on "electronic message" is involved, confirm that the carriage service used qualifies as a "listed carriage service" under the Telecommunications Act 1997 because s 4 adopts that statutory definition.

13. Seek coordinated compliance where multiple jurisdictions or statutory regimes intersect: if communications are simultaneously regulated under the electoral/broadcasting laws listed in s 7(1), evaluate whether using those notification formats satisfies the Scheme disclosure obligations.

Following this checklist aligns practical steps with the instrument’s textual prescriptions (primarily s 5(1) and the table, ss 5(2), 6-9 and the definitions in s 4). Because the instrument does not itself specify enforcement procedures, implementers should coordinate disclosure processes with their wider compliance programmes under the Act and retain documentary evidence of compliance.