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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
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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 Administrative Appeals Tribunal Act 1975
Tribunal Act
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 Fair Work (Registered Organisations) Act 2009
Organisations) Act
FARA Foreign Agents Registrations Act 1938 (U.S.C. § 611 et
seq - United States Code)
Guide to Framing Guide to Framing Commonwealth Offences, Infringement
Commonwealth Offences 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
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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.
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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
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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
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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
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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,
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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.
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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.
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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.
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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.
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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
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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.
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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
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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
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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
17
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
18
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.
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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).
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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.
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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.
22
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
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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.
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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.
25
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:
26
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 written 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.
27
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.
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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.
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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.
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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
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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.
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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
33
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:
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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
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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).
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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
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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.
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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.
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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).
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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
41
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
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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.
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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
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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
45
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
46
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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:
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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
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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
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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
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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
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(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 disbursement 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
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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
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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 disbursement 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
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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 disbursement 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.
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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.
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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.
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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
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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.
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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
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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
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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
71
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
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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.
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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).
74
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.
75
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)
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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).
77
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
78
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.
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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.
80
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.
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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
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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
83
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
84
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
85
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:
86
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.
87
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.
88
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
89
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
90
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
91
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.
92
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
93
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
94
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
95
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.
96
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.
97
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)
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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.
99
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
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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.
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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
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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.
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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).
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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
105
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
106
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
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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.
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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.
109
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.
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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)
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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.
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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 Amendment 15 (foreign public
enterprise)
The Committee recommends the implementation of the
Attorney-General's proposed amendments to remove Amendment 16 (foreign business
from the definition of 'foreign principal' in section 10 of and foreign individual)
the Bill, the terms
'foreign business'
'foreign public entity', and
'an individual who is neither an Australian
citizen not a permanent Australian resident'.
Recommendation 2 Amendment 13
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.
Recommendation 3 Amendment 13
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.
113
Recommendation Parliamentary amendments
Recommendation 4 Amendment 13
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
Recommendation 5 Amendment 13
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.
Recommendation 6 Amendment 13
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.
Recommendation 7 Amendment 30
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'.
114
Recommendation Parliamentary amendments
Recommendation 8 Amendment 30
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).
Recommendation 9 Amendment 31
The Committee recommends the implementation of the
Attorney-General's proposed amendment to introduce
new subsection 11(4) to the Bill.
Recommendation 10 Amendment 32
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.
Recommendation 11 Amendment 36, 37 and 38
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.
Recommendation 12 N/A
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.
115
Recommendation Parliamentary amendments
Recommendation 13 Amendment 40
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.
Recommendation 14 Amendment 18(former Cabinet
Ministers)
The Committee recommends the implementation of the
Attorney-General's proposed amendments with regard Amendment 22 (recent designated
to additional obligations for former Cabinet Ministers position holder)
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
Recommendation 15 Amendment 9
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.
116
Recommendation Parliamentary amendments
Recommendation 16 Amendment 59
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.
Recommendation 17 Amendment 54
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.
Recommendation 18 Amendment 55
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).
Recommendation 19 Amendment 42
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.
Recommendation 20 Amendment 58
The Committee recommends implementation of the
Attorney-General's proposed amendment to delete
section 28 of the Bill.
117
Recommendation Parliamentary amendments
Recommendation 21 Amendment 59
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.
Recommendation 22 N/A
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.
Recommendation 23 Amendment 60
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.
Recommendation 24 Amendment 61
The Committee recommends implementation of the
Attorney-General's proposed section 29B exemption for
personal representation in relation to administrative
process etc.
118
Recommendation Parliamentary amendments
Recommendation 25 Amendment 62 (charities)
The Committee recommends the Bill be amended to
provide exemptions for charities, arts organisations and Amendment 63 (arts)
industrial associations, which would operate to relieve
those organisations of an obligation to register when
they are making routine representations in accordance Amendment 64 (registered
with their respective purposes, and where the organisations)
relationship with the foreign principal is well known or
a matter of public record.
Recommendation 26 Amendment 65
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.
Recommendation 27 Amendment 39
The Committee recommends the Bill be amended to
clarify that the proposed exemptions provisions apply to
both arrangements and activities.
Recommendation 28 Amendment 4
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'.
119
Recommendation Parliamentary amendments
Recommendation 29 Amendment 56
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.
Recommendation 30 N/A
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.
Recommendation 31 N/A
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.
120
Recommendation Parliamentary amendments
Recommendation 32 N/A
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.
Recommendation 33 Amendments 78 and 79
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.
Recommendation 34 Amendment 122
The Committee recommends that the Bill be amended to
remove section 63, and the Foreign Influence
Transparency Scheme (Charges Imposition) Bill 2017,
be withdrawn.
Recommendation 35 N/A
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.
Recommendation 36 N/A
The Committee recommends that the Explanatory
Memorandum be amended to provide clarity about the
terms 'commercially sensitive' and 'national security'.
121
Recommendation Parliamentary amendments
Recommendation 37 Amendment 83
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.
Recommendation 38 N/A
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.
Recommendation 39 Amendments 88 and 90
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.
Recommendation 40 Amendment 95
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.
122
Recommendation Parliamentary amendments
Recommendation 41 Amendment 124
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.
Recommendation 42 N/A
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.
Recommendation 43 Amendment 41
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.
Recommendation 44 Amendment 41
The Committee recommends that the
Attorney-General's proposed amendments for
section 14B(2) of the Bill, not be implemented.
123
Recommendation Parliamentary amendments
Recommendation 45 Amendments 100, 101, 105, 106,
110
The Committee recommends implementation of the
Attorney-General's proposed amendment to lower
penalties under sections 57 and 57A of the Bill.
Recommendation 46 Amendments 101, 106, 110
(sections 57 and 57A)
The Committee recommends that the Bill be amended to
Amendment 118 (section 61)
remove absolute liability from sections 57, 57A and 61.
Recommendation 47 Amendments 111, 112 and 113
The Committee recommends that the Bill be amended to
remove strict liability from section 58.
Recommendation 48 Amendments 115, 117 and 119
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.
124
Recommendation Parliamentary amendments
Recommendation 49 Amendment 125
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.
Recommendation 50 Amendment 126
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.
125
Recommendation Parliamentary amendments
Recommendation 51 N/A
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.
Recommendation 52 N/A
Subject to implementation of the Committee's
recommendations, the Committee recommends that the
Foreign Influence Transparency Scheme Bill 2017 be
passed.
126
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