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This Act is the Foreign Influence Transparency Scheme Act 2018.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
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Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. The whole of this Act | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 10 December 2018 (F2018N00175) |
This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
The object of this Act is to provide for a scheme for the registration of persons who undertake certain activities on behalf of foreign governments and other foreign principals, in order to improve the transparency of their activities on behalf of those foreign principals.
A person who undertakes activities on behalf of a foreign principal may be liable to register under the scheme established by this Act, depending on who the foreign principal is, the activities the person undertakes and in some cases on the person’s former status.
Certain information about registrants and their activities is made publicly available.
A registrant has various responsibilities under the scheme. In general terms, these responsibilities are aimed at ensuring that the Secretary has up to date information about the activities of registrants, especially during voting periods for federal elections.
In addition, any person who undertakes communications activity that is registrable in relation to a foreign principal must make a disclosure about the foreign principal. This applies whether or not the person is a registrant.
Penalties apply for persons who are liable to register under the scheme and do not register, and for those who fail to fulfil responsibilities under the scheme.
This Act extends to every external Territory.
Constitutional basis
This Act relies on:
the Commonwealth’s legislative powers under paragraphs 51(xxix) and (xxxix) of the Constitution; and
any implied legislative powers of the Commonwealth.
Additional and severable operation of Act
Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.
To avoid doubt, none of the following subsections of this section limit the operation of any other subsection of this section.
Trade and commerce
This Act has the effect it would have if its operation were expressly confined to activities undertaken in the course of trade and commerce to which paragraph 51(i) of the Constitution applies.
Communications
This Act has the effect it would have if its operation were expressly confined to activities undertaken using a service to which paragraph 51(v) of the Constitution applies.
Corporations
This Act has the effect it would have if its operation were confined to activities undertaken by:
corporations to which paragraph 51(xx) of the Constitution applies; and
persons undertaking activities on behalf of corporations to which paragraph 51(xx) of the Constitution applies.
Census and statistics
This Act has the effect it would have if its operation were expressly confined to obtaining information for purposes relating to census and statistics within the meaning of paragraph 51(xi) of the Constitution.
Aliens
This Act has the effect it would have if its operation were expressly confined to activities undertaken on behalf of persons who are aliens within the meaning of paragraph 51(xix) of the Constitution.
External affairs
This Act has the effect it would have if its operation were expressly confined to activities undertaken beyond the limits of the States and Territories.
This Act has the effect it would have if its operation were expressly confined to give effect to Australia’s rights and obligations under an agreement with one or more foreign countries.
Territories
This Act has the effect it would have if its operation were expressly confined to activities undertaken in a Territory.
Nothing in this Act requires any of the following to register under the scheme:
the Crown in right of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory;
a department or instrumentality of the Commonwealth or of a State or Territory mentioned in paragraph (a).
This Act is not intended to exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.
Parliamentary privilege
To avoid doubt, this 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;
the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
Legal professional privilege
To avoid doubt, this Act does not affect the law relating to legal professional privilege.
Effect on Secretary’s power to obtain information and documents
In particular:
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 subsection (1) or (2); or
complying with the requirement would involve a breach of a privilege or immunity mentioned in subsection (1) or (2); and
the person need not comply with any purported requirement to that effect.
In this Act:
applicable disallowance period: see subsection 53(5).
approved form: see paragraph 66(a).
approved manner: see paragraph 66(b).
arrangement includes a contract, agreement, understanding or other arrangement of any kind, whether written or unwritten.
Australian police force means:
the Australian Federal Police; or
a police force or police service of a State or Territory.
becomes liable to register: see subsection 18(1).
benefit includes any advantage and is not limited to property.
by‑election has the same meaning as in Part XVB of the Commonwealth Electoral Act 1918.
candidate has the same meaning as in the Commonwealth Electoral Act 1918. In particular, a person who is, at a time, taken to be a candidate in an election within the meaning of that Act is taken to be a candidate at that time for the purposes of this Act.
ceases to be liable to register: see section 19.
Commonwealth public official has the same meaning as in the Criminal Code.
communications activity: see section 13.
deal with information or an article has the same meaning as in Part 5.6 of the Criminal Code (see subsections 90.1(1) and 121.1(1) of the Code).
designated position holder means:
a Minister; or
a member of the Parliament; or
a person employed under the Members of Parliament (Staff) Act 1984 as a personal employee (Ministerial) and whose position is at or above the level of Senior Advisor; or
an Agency Head (within the meaning of the Public Service Act 1999); or
a deputy agency head (however described); or
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; or
the holder of an office of the Commonwealth as an Ambassador or High Commissioner, in a country or place outside Australia.
designated vote means:
a referendum; or
a vote, survey, or other process for the expression of opinions, of the kind prescribed by the rules for the purposes of this paragraph.
disbursement activity: 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.
electoral donations threshold means the disclosure threshold within the meaning of Part XX of the Commonwealth Electoral Act 1918.
federal election means a House of Representatives election or a Senate election within the meaning of the Commonwealth Electoral Act 1918.
final transparency notice: see subsection 14C(4).
foreign country means any country other than Australia or an external Territory (whether or not an independent sovereign State).
foreign government means:
the government of a foreign country or of part of a foreign country; or
an authority of the government of a foreign country; or
an authority of the government of part of a foreign country; or
a foreign local government body or foreign regional government body.
foreign government related entity means a person, other than an individual, who is related to a foreign principal that is a foreign government or a foreign political organisation in one or more of the following ways:
if the person is a company—one or more of the following applies:
the foreign principal holds more than 15% of the issued share capital of the company;
the foreign principal holds more than 15% of the voting power in the company;
the foreign principal is in a position to appoint at least 20% of the company’s board of directors;
the directors (however described) of the company are accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign principal;
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:
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;
the foreign principal is in a position to exercise, in any other way, total or substantial control over the person;
if the person is a person other than a body politic and the foreign principal is a foreign political organisation:
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.
A transparency notice issued under Division 3 of this Part may state that a person is a foreign government related entity.
foreign government related individual means 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:
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;
the foreign principal is in a position to exercise, in any other way, total or substantial control over the individual.
A transparency notice issued under Division 3 of this Part may state that a person is a foreign government related individual.
foreign political organisation includes:
a foreign political party; and
a foreign organisation that exists primarily to pursue political objectives.
foreign principal means:
a foreign government;
a foreign government related entity;
a foreign political organisation;
a foreign government related individual.
former Cabinet Minister, at a particular time, means 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.
general political lobbying means lobbying any one or more of the following:
a Commonwealth public official;
a Department, agency or authority of the Commonwealth;
a registered political party;
a candidate in a federal election;
a person or entity that is registered under the Commonwealth Electoral Act 1918 as a political campaigner;
other than lobbying that is Parliamentary lobbying.
influence includes affect in any way.
liable to register: see section 18.
lobby includes:
communicate, in any way, with a person or a group of persons for the purpose of influencing any process, decision or outcome; and
represent the interests of a person, in any process.
on behalf of a foreign principal: see section 11.
parliamentary lobbying means lobbying any one or more of the following persons:
a member of the Parliament;
a person employed under the Members of Parliament (Staff) Act 1984.
person means 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;
any body of a kind 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.
See sections 64 and 65 for how the scheme applies to partnerships and other bodies that are not legal persons.
political or governmental influence: see section 12.
provisional transparency notice: see subsection 14B(1).
purpose has a meaning affected by section 14.
recent designated position holder, at a particular time, means 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.
referendum has the same meaning as in the Referendum (Machinery Provisions) Act 1984.
registered under the scheme in relation to a foreign principal: see section 17.
registered political party has the same meaning as in the Commonwealth Electoral Act 1918.
registrable activity in relation to a foreign principal: see sections 20, 21, 22 and 23.
registrable arrangement: see section 13A.
registrant means a person who is registered under the scheme.
renewal period: see subsection 39(3).
rules means rules made under section 71.
scheme means this Act and the rules.
scheme information: see section 50.
scheme official: see section 51.
Secretary means the Secretary of the Department.
transparency notice: see subsection 14A(2).
voting period means any of the following:
for a federal election—the period:
beginning on the day of the issue of the writ for the election under the Commonwealth Electoral Act 1918; and
ending at the time determined in accordance with that Act to be the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election;
for a referendum—the period:
beginning on the day of the issue of the writ for the referendum under the Referendum (Machinery Provisions) Act 1984; and
ending at the time determined in accordance with that Act to be the latest time on the voting day for the referendum at which an elector in Australia could enter a polling booth for the purpose of voting at the referendum;
for a vote, survey or process prescribed by the rules for the purposes of paragraph (b) of the definition of designated vote—the period prescribed by the rules.
A person undertakes an activity on behalf of a foreign principal if:
the person undertakes the activity in any of the following circumstances:
under an arrangement with the foreign principal;
in the service of the foreign principal;
on the order or at the request of the foreign principal;
under the 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).
For the purposes of subsection (1), it does not matter whether consideration is payable.
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 2001) of a foreign principal.
A person undertakes an activity for the purpose of political or governmental influence if the sole or primary purpose, or a substantial purpose, of the activity is to influence one or more of the following:
a process in relation to a federal election or a designated vote;
a process in relation to a federal government decision;
proceedings of a House of the Parliament;
a process in relation to a registered political party;
a process in relation to a member of the Parliament who is not a member of a registered political party;
a process in relation to a candidate in a federal election who is not endorsed by a registered political party;
processes in relation to a person or entity registered under the Commonwealth Electoral Act 1918 as a political campaigner.
A person also undertakes an activity for the purposes of political or 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 (1).
Examples of federal government decisions
For the purposes of paragraph (1)(b), decisions made by any of the following are examples of federal government decisions:
the Executive Council;
the Cabinet or a committee of the Cabinet;
a Minister or Ministers;
a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) or a subsidiary of a Commonwealth entity (within the meaning of that Act);
a Commonwealth company (within the meaning of the Public Governance, Performance and Accountability Act 2013);
an individual in the course of performing his or her functions in relation to a person or body mentioned in an above paragraph.
For the purposes of paragraph (1)(b) and subsection (3), a reference to a decision includes a decision of any kind in relation to any matter, including administrative, legislative and policy matters:
whether or not the decision is final; and
whether or not the decision is a formal decision.
Examples of processes in relation to a registered political party
For the purposes of paragraph (1)(d), the following are examples of processes in relation to a registered political party:
processes relating to the party’s:
constitution; or
platform; or
policy on any matter of public concern; or
administrative or financial affairs; or
membership; or
relationships with foreign principals;
the conduct of the party’s campaign in relation to a federal election or a designated vote;
the selection or endorsement of the party’s candidates in relation to a federal election;
the allocation of the party’s preferences in relation to a federal election;
the selection (however done) of officers of the party’s executive or delegates to party conferences;
the election of a person to be the leader of the party in the Parliament of the Commonwealth;
the selection (however done) of persons to be:
Ministers; or
shadow Ministers or party spokespersons (however described) in relation to the Commonwealth.
Examples of processes in relation to independent members of Parliament and candidates
For the purposes of paragraphs (1)(e) and (f), the following are examples of processes in relation to a person mentioned in those paragraphs:
processes relating to the person’s:
platform; or
policy on any matter of public concern; or
administrative or financial affairs in his or her capacity as a member of the Parliament or candidate in a federal election; or
relationships with foreign principals;
the conduct of the person’s campaign in relation to a federal election or designated vote;
the allocation of the person’s preferences in relation to a federal election.
Examples of processes in relation to registered political campaigner
For the purposes of paragraph (1)(g), the following are examples of processes in relation to a person or entity registered under the Commonwealth Electoral Act 1918 as a political campaigner:
processes in relation to the campaigner’s:
constitution; or
platform; or
policy on any matter of public concern; or
administrative or financial affairs (in his or her capacity as a campaigner, if the campaigner is an individual); or
membership; or
relationships with foreign principals;
the conduct of the campaigner’s campaign in relation to a federal election or designated vote;
the selection (however done) of officers of the campaigner’s executive or delegates to its conferences;
the selection (however done) of the campaigner’s leader and any spokespersons for the campaigner.