Foreign Influence Registration Scheme

The Foreign Influence Transparency Scheme commenced on 10 December 2018 with the enactment of the Foreign Influence Transparency Scheme Act 2018 (Cth).

As stated in its name, the aim of the Scheme is transparency – providing the public and government decision makers with transparency around who and which foreign entities may be seeking to influence government and political processes here in Australia.

The Scheme requires persons or entities that undertake certain activities on behalf of, or have arrangements with, foreign principals to register through the Attorney-General’s Department. Those currently registered under the Scheme can be viewed here.

Registration is based on self-assessment of the relevant criteria, however, a failure to register when required can attract significant penalties – including up to 5 years imprisonment and fines of up to 60 penalty units.

In April this year, a number of amendments were made to the Act predominantly for the purpose of clarifying the operation of a difficult piece of legislation. However, a new requirement was also added which requires all persons that undertake “communications activity” to include appropriate disclosures in those materials, regardless of whether they are already registered under the Scheme.

Do you need to be registered?

  1. A person/entity who, on behalf of a foreign principal, undertakes a registerable activity, for the purpose of political or government influence is required to register. There are some exemptions, which are set out below.
  2. Types of “registerable activities” include the following:

  • if the foreign entity is a foreign government, a registerable activity is any type of parliamentary lobbying in Australia, which is lobbying a member of Parliament or their staff (see below);
  • if the foreign entity is related to a foreign government, or a foreign political organisation, parliamentary lobbying is only registerable if it is for the sole or primary purpose of political or governmental influence; and
  • for any kind of foreign principal:
  • general political lobbying for the sole or primary purpose of political or governmental influence is registerable;
  • communications activities for the sole or primary purpose of political or governmental influence are registerable; and
  • disbursement activities for the sole or primary purpose of political or governmental influence are registerable.
Additionally there are registration requirements for former Ministers and designated position holders for a period of 15 years after their role. 

Key definitions

Person is widely defined to capture an individual, corporation, and all registered or unregistered bodies and organisations, whether residing or incorporated in Australia or otherwise.

Foreign Principals are limited to:

  • foreign governments – government (local or national) or authority of a foreign country or part of a foreign country;
  • foreign government related entities – an entity, incorporated or otherwise, that a foreign government:
  • holds more than 15% shares or votes in; o
  • has a right to appoint 20% or more of the directors; or
  • otherwise has effective control over;
  • foreign political parties or organisations that exist primarily for political objectives; and
  • foreign government related individuals – non-Australia citizens that any of the above can substantially direct or control.

Sole or primary purpose of political or governmental influence means an activity to influence, or influence the public in relation to, one or more of the following processes or proceedings:

  • a federal election or referendum or similar vote or survey;
  • a federal government decision;
  • proceedings in Parliament;
  • Registered political parties:
  • Constitution, leadership, membership, platform, policy, administration or relationships with foreign principals;
  • Conduct of a campaign
  • Selection or endorsement of candidates;
  • Allocation of preferences;
  • Selection of ministers, shadow ministers or spokespersons;
  • an independent member of Parliament, or independent candidate; and
  • a political campaigner registered under the Commonwealth Electoral Act 1918 (Cth).

Exemptions

The following exemptions exist under the Scheme:

  • an entity is a Registered Organisation and the activity:
  • is not a communication or disbursement activity; and
  • the activity is in the interests of its members; and
  • the entity discloses the identity of the Foreign Entity it is undertaking the activity for;
  • an entity is a registered charity and the activity:
  • is not a disbursement activity; and
  • is undertaken in the scope of the entities charitable purposes; and
  • the entity discloses the identity of the Foreign Entity it is undertaking the activity for;
  • activities that primarily relate to humanitarian aid;
  • activities are primarily related to legal advice;
  • individuals that are members of Parliament or Statutory Office Holder;
  • individuals that hold diplomatic or consular immunities, or associated with the UN, and the activity is within the scope of their functions;
  • activities that are religious and undertaken in good faith;
  • employees of foreign government and foreign government related entities, and the activity is undertaken in the capacity as employee, director, officer or similar;
  • entity that is an Australian representative body representing Australian members;
  • an individual that is a family member of the Foreign Principal and the activity related to government administration, or personal welfare of the Foreign Principal
  • an activity is primarily related to the arts, and is not a disbursement activity; and
  • a person/entity that is a tax agent, customs broker or liquidator/receiver and the activity:
  • is in the course of the person/entities profession;
  • relates to representation of the Foreign Principal in a government administration matter; and
  • the person/entity discloses the identity of the Foreign Entity.

 

There is no doubt that the new legislation is complex and if you work with foreign bodies some thought should go into an assessment as to whether or not you or your organisation are required to register under the Scheme. If you are required to be registered, you also have an obligation to keep certain records. Whether or not you have an obligations to register, there are certain obligations and timeframes in which you must report registerable activities and reportable expenditure during an election campaign. Please contact us if you require any assistance in relation to the Scheme.

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