FOREIGN INFLUENCE TRANSPARENCY SCHEME BILL 2017

2016-2017

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Foreign Influence Transparency Scheme

Bill 2017

No. , 2017

(Attorney-General)

A Bill for an Act to establish a scheme to improve

the transparency of activities undertaken on behalf

of foreign principals, and for related purposes

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

Contents

Part 1--Preliminary

Division 1--Preliminary

Short title ........................................................................................... 1

Commencement ................................................................................. 2

Object ................................................................................................ 2

Simplified outline of this Act ............................................................ 2

Extension to external Territories ....................................................... 3

Extraterritoriality ............................................................................... 3

Constitutional basis and severability ................................................. 3

Application to Commonwealth, States and Territories ...................... 5

Concurrent operation of State and Territory laws .............................. 5

Division 2--Definitions

Definitions ......................................................................................... 6

Undertaking activity on behalf of a foreign principal ...................... 12

Activity for the purpose of political or governmental

influence .......................................................................................... 13

Communications activity ................................................................. 15

Purpose of activity ........................................................................... 16

Part 2--Registration under the scheme

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 17

Division 2--Requirement to register

Requirement to register ................................................................... 19

When a person is registered under the scheme ................................ 19

Persons who are liable to register .................................................... 19

Ceasing to be liable to register ......................................................... 20

Division 3--Registrable activities

Registrable activities: parliamentary lobbying on behalf of

foreign government ......................................................................... 21

Registrable activities: activities in Australia for the purpose

of political or governmental influence ............................................. 21

Registrable activities: recent Cabinet Ministers ............................... 22

Registrable activities: recent Ministers, members of

Parliament and other holders of senior Commonwealth

positions .......................................................................................... 22

Division 4--Exemptions

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Exemption: humanitarian aid or assistance ...................................... 24

Exemption: legal advice or representation ....................................... 24

Exemption: diplomatic, consular or similar activities ...................... 24

Exemption: religion ......................................................................... 25

Exemption: news media................................................................... 25

Exemption: commercial or business pursuits .................................. 26

Exemption: prescribed circumstances.............................................. 27

Division 5--End of registration

Notice of end of liability to register ................................................. 28

End of registration ........................................................................... 29

Part 3--Responsibilities of registrants under the scheme

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 30

Division 2--Reporting to the Secretary

Reporting material changes in circumstances .................................. 31

Reporting donor activity in Australia for the purpose of

political or governmental influence (other than in voting

period) ............................................................................................. 32

Reporting on registration review when voting period begins .......... 33

Reporting registrable activity during voting periods ....................... 34

Division 3--Other responsibilities

Disclosure in communications activity ............................................ 36

Annual renewal of registration ........................................................ 36

Keeping records ............................................................................... 37

Part 4--Obtaining and handling scheme information

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 39

Division 2--Register of scheme information

Secretary must keep a register ......................................................... 40

Certain information to be made publicly available .......................... 41

Secretary may correct or update information in the register ............ 41

Division 3--Secretary's powers to obtain information and

documents

Notice requiring information to satisfy Secretary whether

person is liable to register under the scheme ................................... 42

Notice requiring information relevant to scheme ............................ 43

Self-incrimination ............................................................................ 44

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

iii

Copies of documents ....................................................................... 44

Retention of documents ................................................................... 44

Division 4--Communicating and dealing with scheme

information

Scheme information ......................................................................... 46

Scheme officials .............................................................................. 46

Authorisation--purposes of scheme ................................................ 47

Authorisation--other purposes ........................................................ 47

Authorisation--secondary communication of or dealing with

information ...................................................................................... 48

Authorisation--information publicly available ............................... 48

Part 5--Enforcement

Simplified outline of this Part .......................................................... 49

Failure to apply for or maintain registration .................................... 49

Failure to fulfil responsibilities under the scheme ........................... 51

Failure to comply with notice requiring information ....................... 52

False or misleading information or documents ................................ 53

Destruction etc. of records ............................................................... 54

Part 6--Miscellaneous

Simplified outline of this Part .......................................................... 56

Charges ............................................................................................ 56

Treatment of partnerships ................................................................ 57

Treatment of other unincorporated bodies ....................................... 57

Approvals ........................................................................................ 57

Delegations ...................................................................................... 58

Agreements ...................................................................................... 58

Annual report ................................................................................... 58

Review of operation of the scheme .................................................. 59

Rules ................................................................................................ 59

Preliminary Part 1

Preliminary Division 1

Section 1

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

A Bill for an Act to establish a scheme to improve

the transparency of activities undertaken on behalf

of foreign principals, and for related purposes

The Parliament of Australia enacts:

Part 1--Preliminary

Division 1--Preliminary

1 Short title

This Act is the Foreign Influence Transparency Scheme Act 2017.

Part 1 Preliminary

Division 1 Preliminary

Section 2

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

2 Commencement

(1) 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.

Commencement information

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.

Note:

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.

(2) 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.

3 Object

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, foreign businesses and other foreign principals, in

order to improve the transparency of their activities on behalf of

those foreign principals.

4 Simplified outline of this Act

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 whether the person has recently

Preliminary Part 1

Preliminary Division 1

Section 5

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

held a senior Commonwealth position (including as a member of

Parliament).

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:

(a)

the Secretary has up to date information about the

activities of registrants, especially during voting periods

for federal elections; and

(b)

if a registrant makes disbursements or communications

on behalf of the foreign principal, appropriate

disclosures are made.

Penalties apply for persons who are liable to register under the

scheme and do not register, and for registrants who fail to fulfil

their responsibilities under the scheme.

5 Extension to external Territories

This Act extends to every external Territory.

6 Extraterritoriality

This Act applies both within and outside Australia.

7 Constitutional basis and severability

Constitutional basis

(1) This Act relies on:

(a) the Commonwealth's legislative powers under paragraphs

51(xxix) and (xxxix) of the Constitution; and

(b) any implied legislative powers of the Commonwealth.

Part 1 Preliminary

Division 1 Preliminary

Section 7

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Additional and severable operation of Act

(2) Without limiting the effect of this Act apart from this section, this

Act also has effect as provided by this section.

(3) To avoid doubt, none of the following subsections of this section

limit the operation of any other subsection of this section.

Trade and commerce

(4) 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

(5) 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

(6) This Act has the effect it would have if its operation were confined

to activities undertaken by:

(a) corporations to which paragraph 51(xx) of the Constitution

applies; and

(b) persons undertaking activities on behalf of corporations to

which paragraph 51(xx) of the Constitution applies.

Census and statistics

(7) 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

(8) 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.

Preliminary Part 1

Preliminary Division 1

Section 8

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

External affairs

(9) 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.

(10) 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

(11) This Act has the effect it would have if its operation were expressly

confined to activities undertaken in a Territory.

8 Application to Commonwealth, States and Territories

Nothing in this Act requires any of the following to register under

the scheme:

(a) the Crown in right of the Commonwealth, a State, the

Australian Capital Territory or the Northern Territory;

(b) a department or instrumentality of the Commonwealth or of a

State or Territory mentioned in paragraph (a).

9 Concurrent operation of State and Territory laws

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.

Part 1 Preliminary

Division 2 Definitions

Section 10

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Division 2--Definitions

10 Definitions

In this Act:

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:

(a) the Australian Federal Police; or

(b) 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.

broadcaster means:

(a) the Australian Broadcasting Corporation referred to in

section 5 of the Australian Broadcasting Corporation Act

1983; or

(b) the Special Broadcasting Service Corporation referred to in

section 5 of the Special Broadcasting Service Act 1991; or

Communications and Media Authority under the

Broadcasting Services Act 1992; or

(d) a person making a broadcast under the authority of a class

licence determined by the Australian Communications and

Media Authority under the Broadcasting Services Act 1992.

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

Preliminary Part 1

Definitions Division 2

Section 10

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

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 subsection 13(1).

controlled: a person is controlled by another person (the

controller) if:

(a) in relation to a company--one or more of the following

applies:

(i) the controller holds more than 50% of the issued share

capital of the company;

(ii) the controller holds more than 50% of the voting power

in the company;

(iii) the controller is in a position to appoint more than 50%

of the company's board of directors;

(iv) 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 controller;

(v) the controller is in a position to exercise control over the

company; and

(b) for any other kind of person--either of the following applies:

(i) 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 controller;

(ii) the controller is in a position to exercise control over the

person.

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 vote means:

Part 1 Preliminary

Division 2 Definitions

Section 10

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

(a) a referendum; or

(b) a vote, survey, or other process for the expression of

opinions, of the kind prescribed by the rules for the purposes

of this paragraph.

donor activity: a person undertakes donor activity if:

(a) the person disburses money or things of value; and

(b) 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 $13,500.

federal election means a House of Representatives election or a

Senate election within the meaning of the Commonwealth

Electoral Act 1918.

foreign business means a person (other than an individual) that:

(a) either:

(i) is constituted or organised under a law of a foreign

country or of part of a foreign country; or

(ii) has its principal place of business in a foreign country;

and

(b) is not a foreign government, foreign public enterprise or

foreign political organisation.

foreign country means any country other than Australia or an

external Territory (whether or not an independent sovereign State).

foreign government means:

(a) the government of a foreign country or of part of a foreign

country; or

(b) an authority of the government of a foreign country; or

(d) a foreign local government body or foreign regional

government body.

foreign political organisation includes a foreign political party.

Preliminary Part 1

Definitions Division 2

Section 10

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

foreign principal means:

(a) a foreign government;

(b) a foreign public enterprise;

(d) a foreign business;

(e) an individual who is neither an Australian citizen nor a

permanent Australian resident.

foreign public enterprise means a company or any other person

(other than an individual) controlled by the government of a

foreign country or of part of a foreign country.

general political lobbying means lobbying any one or more of the

following:

(a) a Commonwealth public official;

(b) a Department, agency or authority of the Commonwealth;

(d) a candidate in a federal election;

other than lobbying that is Parliamentary lobbying.

influence includes affect in any way.

liable to register: see section 18.

lobby includes:

(a) communicate, in any way, with a person or a group of

persons for the purpose of influencing any process, decision

or outcome; and

(b) 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) a member of the Parliament;

(b) a person employed under section 13 or 20 of the Members of

Parliament (Staff) Act 1984.

periodical: see subsection 13(5).

Part 1 Preliminary

Division 2 Definitions

Section 10

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

person means any of the following:

(a) an individual;

(b) a body corporate;

(d) a partnership;

(e) an association (whether or not incorporated);

(f) an organisation (whether or not incorporated);

(g) any combination of individuals who together constitute a

body;

(h) 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.

Note:

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.

purpose has a meaning affected by section 14.

recent Cabinet Minister, at a particular time, means a person:

(a) who was a Minister and a member of the Cabinet at any time

in the 3 years before the particular time; and

(b) is not at the particular time a Minister, member of the

Parliament or holder of a senior Commonwealth position.

recent holder of a senior Commonwealth position, at a particular

time, means a person:

(a) who held a senior Commonwealth position at any time in the

18 months before the particular time; and

(b) is not at the particular time a Minister, member of the

Parliament or holder of a senior Commonwealth position.

recent Minister or member of Parliament, at a particular time,

means a person:

(a) who was a Minister or a member of the Parliament at any

time in the 3 years before the particular time; and

Preliminary Part 1

Definitions Division 2

Section 10

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

(b) is not at the particular time a Minister, member of the

Parliament or holder of a senior Commonwealth position.

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 means an arrangement between a person

and a foreign principal for the person to undertake an activity that,

if undertaken by the person, would be registrable in relation to the

foreign principal.

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, the rules, the Foreign Influence

Transparency Scheme (Charges Imposition) Act 2017 and the

regulations made under that Act.

scheme information: see section 50.

scheme official: see subsection 51(1).

Secretary means the Secretary of the Department.

senior Commonwealth position means any of the following

positions:

(a) agency head (within the meaning of the Public Service Act

1999);

(b) deputy agency head (however described);

and equivalent to that of agency head or deputy agency head.

Part 1 Preliminary

Division 2 Definitions

Section 11

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

voting period means any of the following:

(a) for a federal election--the period:

(i) beginning on the day of the issue of the writ for the

election under the Commonwealth Electoral Act 1918;

and

(ii) 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;

(b) for a referendum--the period:

(i) beginning on the day of the issue of the writ for the

referendum under the Referendum (Machinery

Provisions) Act 1984; and

(ii) 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;

purposes of paragraph (b) of the definition of designated

vote--the period prescribed by the rules.

11 Undertaking activity on behalf of a foreign principal

(1) A person undertakes an activity on behalf of a foreign principal if

the person undertakes the activity:

(a) under an arrangement with the foreign principal; or

(b) in the service of the foreign principal; or

(d) under the control or direction of the foreign principal; or

(e) with funding or supervision by the foreign principal; or

(f) in collaboration with the foreign principal.

(2) For the purposes of subsection (1), it does not matter whether

consideration is payable.

Preliminary Part 1

Definitions Division 2

Section 12

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

(3) Without limiting subsection (1), a person undertakes an activity on

behalf of a foreign principal if both the person and the foreign

principal knew or expected that:

(a) the person would or might undertake the activity; and

(b) 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).

12 Activity for the purpose of political or governmental influence

(1) 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 any one or more of the

following:

(a) a process in relation to a federal election or a designated vote;

(b) a process in relation to a federal government decision;

(d) a process in relation to a registered political party;

(e) a process in relation to a member of the Parliament who is

not a member of a registered political party;

(f) a process in relation to a candidate in a federal election who

is not endorsed by a registered political party.

(2) Without limiting subsection (1), 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 that subsection by influencing the public, or a section

of the public, in relation to the process or proceedings.

Examples of federal government decisions

(3) For the purposes of paragraph (1)(b), decisions made by any of the

following are examples of federal government decisions:

(a) the Executive Council;

(b) the Cabinet or a committee of the Cabinet;

Part 1 Preliminary

Division 2 Definitions

Section 12

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

(d) 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);

(e) a Commonwealth company (within the meaning of the Public

Governance, Performance and Accountability Act 2013);

(f) an individual in the course of performing his or her functions

in relation to a person or body mentioned in an above

paragraph.

(4) 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:

(a) whether or not the decision is final; and

(b) whether or not the decision is a formal decision.

Examples of processes in relation to a registered political party

(5) For the purposes of paragraph (1)(d), the following are examples of

processes in relation to a registered political party:

(a) processes relating to the party's:

(i) constitution; or

(ii) platform; or

(iii) policy on any matter of public concern; or

(iv) administrative or financial affairs; or

(v) membership; or

(vi) 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;

(b) the conduct of the party's campaign in relation to a federal

election or a designated vote;

relation to a federal election;

(d) the allocation of the party's preferences in relation to a

federal election;

(e) the selection (however done) of officers of the party's

executive or delegates to party conferences;

Preliminary Part 1

Definitions Division 2

Section 13

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

(f) the election of a person to be the leader of the party in the

Parliament of the Commonwealth;

(g) the selection (however done) of persons to be:

(i) Ministers; or

(ii) shadow Ministers or party spokespersons (however

described) in relation to the Commonwealth.

Examples of processes in relation to independent members of

Parliament and candidates

(6) For the purposes of paragraphs (1)(e) and (f), the following are

examples of processes in relation to a person mentioned in those

paragraphs:

(a) processes relating to the person's:

(i) platform; or

(ii) policy on any matter of public concern; or

(iii) administrative or financial affairs in his or her capacity

as a member of the Parliament or candidate in a federal

election; or

(iv) 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;

(b) the conduct of the person's campaign in relation to a federal

election or designated vote;

federal election.

13 Communications activity

(1) A person undertakes communications activity if the person

communicates or distributes information or material.

(2) For the purposes of subsection (1), a reference to information or

materials includes information or materials in any form, including

oral, visual, graphic, written, electronic, digital and pictorial forms.

(3) Despite subsection (1), a broadcaster, or a carriage service provider

(within the meaning of section 87 of the Telecommunications Act

Part 1 Preliminary

Division 2 Definitions

Section 14

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

1997), does not undertake communications activity in relation to

information or materials only because:

(a) the broadcaster broadcasts the information or materials; or

(b) the carriage service provider supplies the listed carriage

service (within the meaning of section 16 of the

Telecommunications Act 1997) used to communicate the

information or materials.

(4) Despite subsection (1), the publisher of a periodical does not

undertake communications activity in relation to information or

materials only because the publisher publishes the information or

materials.

(5) A periodical means an issue (however described) of a newspaper,

magazine, journal, newsletter or other similar publication:

(a) whether published in print or electronic form; and

(b) whether issues are published at regular or irregular intervals;

and

charge.

14 Purpose of activity

The purpose of an activity may be determined by having regard to

any one or more of the following:

(a) the intention or belief of the person undertaking the activity;

(b) the intention of any foreign principal on whose behalf the

activity is undertaken;

Note:

The purpose of an activity is relevant for the purposes of certain

registrable activities (see sections 12 and 21) and for the purposes of

the exemptions in Division 4 of Part 2.

Registration under the scheme Part 2

Simplified outline of this Part Division 1

Section 15

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

Part 2--Registration under the scheme

Division 1--Simplified outline of this Part

15 Simplified outline of this Part

A person may become liable to register under the scheme:

(a)

if the person undertakes registrable activities on behalf

of a foreign principal (even if the person only does so

once); or

(b)

if the person enters an arrangement with a foreign

principal to undertake registrable activities on behalf of

the foreign principal (whether or not the person actually

undertakes the activities).

Whether a particular activity is registrable or not depends on who

the foreign principal is and the purpose of the activity, and in some

cases on whether the person has recently held a senior

Commonwealth position (including as a member of Parliament).

Once a person becomes liable to register, the person has 14 days to

apply for registration.

The person must register for each foreign principal on whose

behalf the person undertakes registrable activities.

In most cases, the person continues to be liable to register in

relation to a foreign principal until the person notifies the Secretary

otherwise and ceases to have any arrangement with the foreign

principal.

Registration usually ends if the person notifies the Secretary that

the person has ceased to be liable or if the person fails to annually

renew the registration.

There are exemptions to ensure that a person does not have to

Registration under the scheme Part 2

Requirement to register Division 2

Section 16

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

Division 2--Requirement to register

16 Requirement to register

(1) A person who:

(a) becomes liable to register under the scheme in relation to a

foreign principal; and

(b) is not already registered under the scheme in relation to the

foreign principal;

must apply to the Secretary for registration in relation to the

foreign principal, no later than 14 days after becoming liable.

Note:

It is an offence not to register if a person is liable to register (see

section 57).

(2) The application must be:

(a) in writing; and

(b) in an approved form (if any); and

(d) accompanied by any information or documents required by

the Secretary.

Note:

Charges may be imposed in relation to applications (see section 63).

17 When a person is registered under the scheme

(1) If a person makes an application for registration in relation to a

foreign principal that complies with subsection 16(2), the person is

registered under the scheme, in relation to the foreign principal:

(a) from the day the application is given to the Secretary; and

(b) until the registration ends under section 32.

(2) Paragraph (1)(a) applies even if the application is made more than

14 days after the person became liable to register in relation to the

foreign principal.

18 Persons who are liable to register

(1) If a person:

Part 2 Registration under the scheme

Division 2 Requirement to register

Section 19

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

(a) undertakes an activity on behalf of a foreign principal that is

registrable in relation to the foreign principal; or

(b) enters a registrable arrangement with a foreign principal;

the person becomes liable to register under the scheme in relation

to the foreign principal.

(2) A person who has become liable to register under the scheme in

relation to a foreign principal remains liable to register under the

scheme in relation to the foreign principal until ceasing to be liable

under section 19

(3) To avoid doubt:

(a) paragraph (1)(a) applies even if the person only undertakes

an activity once; and

(b) paragraph (1)(b) applies even if the person never undertakes

an activity under the arrangement.

19 Ceasing to be liable to register

(1) A person ceases to be liable to register in relation to a foreign

principal, on a day, if:

(a) the person has given the Secretary a notice in relation to the

foreign principal under section 31 (notice of end of liability

to register) specifying the day in accordance with

subsection 31(3) as the day the person's registration in

relation to the foreign principal is to cease; and

(b) on the day, no registrable arrangement exists between the

person and the foreign principal.

Note:

A person must be registered under the scheme before the person can

give a notice under section 31.

(2) If a person is liable to register under the scheme in relation to a

foreign principal only because of being one of the following kinds

of persons, the person ceases to be liable to register in relation to

the foreign principal the day he or she ceases to be that kind of

person:

(a) a recent Cabinet Minister;

(b) a recent Minister or member of Parliament;

Registration under the scheme Part 2

Registrable activities Division 3

Section 20

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

Division 3--Registrable activities

20 Registrable activities: parliamentary lobbying on behalf of

foreign government

An activity that a person undertakes on behalf of a foreign

government is registrable in relation to the foreign government if:

(a) the activity is parliamentary lobbying in Australia (whether

or not the purpose is political or governmental influence);

and

(b) the person is not exempt under Division 4 in relation to the

activity.

21 Registrable activities: activities in Australia for the purpose of

political or governmental influence

(1) An activity that a person undertakes on behalf of a foreign

principal is registrable in relation to the foreign principal if:

(a) the activity is covered by an item in the table; and

(b) the foreign principal is the kind of foreign principal specified

for the activity in the table; and

activity.

Activities in Australia for the purpose of political or governmental influence

Item

Activity

Foreign principal

Parliamentary lobbying:

(a) in Australia; and

(b) for the purpose of political or

governmental influence

(a) a foreign public enterprise; or

(b) a foreign political organisation;

(d) an individual

General political lobbying:

(a) in Australia; and

(b) for the purpose of political or

governmental influence

any kind of foreign principal

Communications activity:

any kind of foreign principal

Part 2 Registration under the scheme

Division 3 Registrable activities

Section 22

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Activities in Australia for the purpose of political or governmental influence

Item

Activity

Foreign principal

(a) in Australia; and

(b) for the purpose of political or

governmental influence

Donor activity:

(a) in Australia; and

(b) for the purpose of political or

governmental influence

(a) a foreign government; or

(b) a foreign public enterprise; or

(2) A single activity undertaken by a person may be covered by more

than one item of the table in subsection (1). If it is, the scheme

applies in relation to the activity as covered by each such item.

22 Registrable activities: recent Cabinet Ministers

An activity that a person undertakes on behalf of a foreign

principal is registrable in relation to the foreign principal if:

(a) the person is a recent Cabinet Minister; and

(b) the foreign principal is not an individual; and

principal under another provision of this Division; and

(d) the person is not exempt under Division 4 in relation to the

activity.

23 Registrable activities: recent Ministers, members of Parliament

and other holders of senior Commonwealth positions

An activity that a person undertakes on behalf of a foreign

principal is registrable in relation to the foreign principal if:

(a) the person is:

(i) a recent Minister or member of Parliament; or

(ii) a recent holder of a senior Commonwealth position; and

(b) the foreign principal is not an individual; and

knowledge, skills or contacts gained in the person's former

Part 2 Registration under the scheme

Division 4 Exemptions

Section 24

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Division 4--Exemptions

24 Exemption: humanitarian aid or assistance

A person is exempt in relation to an activity the person undertakes

on behalf of a foreign principal if the activity is, or relates solely

to, the provision of humanitarian aid or humanitarian assistance.

25 Exemption: legal advice or representation

A person is exempt in relation to an activity the person undertakes

on behalf of a foreign principal if the activity is solely, or solely for

the purposes of, the provision of legal advice or legal

representation in judicial, criminal or civil law enforcement

inquiries, investigations or proceedings.

26 Exemption: diplomatic, consular or similar activities

(1) A person is exempt in relation to an activity the person undertakes

on behalf of a foreign principal if:

(a) the foreign principal is a foreign government; and

(b) the person is entitled to privileges and immunities under the

Consular Privileges and Immunities Act 1972, the

Diplomatic Privileges and Immunities Act 1967 or the

Overseas Missions (Privileges and Immunities) Act 1995; and

(i) within the meaning of section 20 (parliamentary

lobbying on behalf of a foreign government); or

(ii) within the meaning of section 21 (activities in Australia

for the purpose of political or governmental influence);

and

(d) undertaking the activity is within the scope of the functions

that, under the Act mentioned in paragraph (b), entitle the

person to the privileges and immunities conferred by the Act.

(2) A person is exempt in relation to an activity the person undertakes

on behalf of a foreign principal if:

(a) the foreign principal is a foreign government; and

Registration under the scheme Part 2

Exemptions Division 4

Section 27

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

(b) the person is a UN or associated person within the meaning

of Division 71 of the Criminal Code (see subsection 71.23(1)

of the Code); and

that the person undertakes in the person's capacity as such a

person.

27 Exemption: religion

(1) A person is exempt in relation to an activity the person undertakes

on behalf of a foreign principal if:

(a) the foreign principal is a foreign government; and

(b) the activity is solely, or solely for the purposes of, acting in

good faith in accordance with the doctrines, tenets, beliefs or

teachings of the particular religion of the foreign government.

(2) Subsection (1) does not apply in relation to activities that are

registrable in relation to the foreign principal within the meaning

of:

(a) section 22 (recent Cabinet Ministers); or

(b) section 23 (recent Ministers, members of Parliament and

other holders of senior Commonwealth positions).

28 Exemption: news media

(1) A person is exempt in relation to an activity the person undertakes

on behalf of a foreign principal if:

(a) the foreign principal is:

(i) a foreign business; or

(ii) an individual; and

(b) the activity is solely, or solely for the purposes of, reporting

news, presenting current affairs or expressing editorial

content in news media.

(2) Subsection (1) does not apply in relation to activities that are

registrable in relation to the foreign principal within the meaning

of:

(a) section 22 (recent Cabinet Ministers); or

Part 2 Registration under the scheme

Division 4 Exemptions

Section 29

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

(b) section 23 (recent Ministers, members of Parliament and

other holders of senior Commonwealth positions).

29 Exemption: commercial or business pursuits

Commercial negotiations

(1) A person is exempt in relation to an activity the person undertakes

on behalf of a foreign principal if:

(a) the foreign principal is:

(i) a foreign business; or

(ii) an individual; and

(b) the activity is solely, or solely for the purposes of, the pursuit

of bona fide business or commercial interests in relation to

preparing to negotiate, negotiating, or concluding, a contract

for the provision of goods or services; and

(i) national security;

(ii) defence;

(iii) public infrastructure within the meaning of Division 82

of the Criminal Code.

Person employed by or operating under name of foreign principal

(2) A person is exempt in relation to an activity the person undertakes

on behalf of a foreign principal if:

(a) the foreign principal is:

(i) a foreign public enterprise; or

(ii) a foreign business; and

(b) the activity is a commercial or business pursuit:

(i) undertaken by an individual in his or her capacity as an

employee of the foreign principal; or

(ii) undertaken by the person under the name of the foreign

principal.

Part 2 Registration under the scheme

Division 5 End of registration

Section 31

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Division 5--End of registration

31 Notice of end of liability to register

(1) A person who is registered under the scheme in relation to a

foreign principal may give the Secretary a notice under this section

if the person is satisfied that:

(a) the person has ceased to undertake activities on behalf of the

foreign principal that are registrable in relation to the foreign

principal; and

(b) there is no registrable arrangement in existence between the

person and the foreign principal.

Note 1:

If a person gives this notice, the person's registration in relation to the

foreign principal ends (see section 32).

Note 2:

If a person gives this notice while a registrable arrangement is still in

existence between the person and the foreign principal:

(a) the person continues to be liable to register despite the notice (see

subsection 19(1)); and

(b) the person may commit an offence under this Act (see section 57)

and under the Criminal Code (see section 137.1 of the Code).

(2) The notice must be:

(a) in writing; and

(b) in an approved form (if any); and

(d) accompanied by any information or documents required by

the Secretary.

(3) The notice must specify a day as the day the person's registration

in relation to the foreign principal is to cease. The day:

(a) must not be earlier than the day the notice is given; and

(b) must not be later than the last day of the next renewal period

for the registration (or, if the notice is given during a renewal

period, the last day of that renewal period).

Registration under the scheme Part 2

End of registration Division 5

Section 32

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

32 End of registration

The registration of a person under the scheme in relation to a

foreign principal ends on the earliest of the following days:

(a) the day specified under subsection 31(3) in a notice given by

the person under that section for the registration (notice of

end of liability to register);

(b) if the person is required to renew the registration under

section 39 and does not do so--the first day after the end of

the renewal period for the registration;

by the rules.

Part 3 Responsibilities of registrants under the scheme

Division 1 Simplified outline of this Part

Section 33

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Part 3--Responsibilities of registrants under the

scheme

Division 1--Simplified outline of this Part

33 Simplified outline of this Part

A registrant has various responsibilities under the scheme. In

general terms, the responsibilities are to:

(a)

promptly report any material changes affecting the

registration and any donor activity undertaken on behalf

of the foreign principal; and

(b)

during the voting period for a federal election or

designated vote--review the currency of information

provided by the registrant and promptly report about

certain registrable activities undertaken during the

voting period; and

(c)

make disclosures when undertaking communications

activity on behalf of the foreign principal; and

(d)

renew registration annually for so long as the person

remains liable to register under the scheme; and

(e)

keep proper records.

Responsibilities of registrants under the scheme Part 3

Reporting to the Secretary Division 2

Section 34

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

Division 2--Reporting to the Secretary

34 Reporting material changes in circumstances

(1) If a person who is registered under the scheme in relation to a

foreign principal becomes aware that information provided to the

Secretary for the purposes of the registration:

(a) is, or will become, inaccurate or misleading in a material

particular; or

(b) omits, or will omit, any matter or thing without which the

information is or will be misleading;

the registrant must give the Secretary a notice correcting the

inaccuracy or misleading impression.

Note:

It is an offence for a registrant not to give this notice (see

subsection 58(1)). It is also an offence under the Criminal Code to

give false or misleading information in compliance with a law of the

Commonwealth (see section 137.1 of the Code).

(2) The notice must be given before the end of the period of 14 days

after the day the person becomes aware of the matter.

(3) The notice must be:

(a) in writing; and

(b) in an approved form (if any); and

(d) accompanied by any information or documents required by

the Secretary.

(4) The following are examples of circumstances in which a person

who is registered in relation to a foreign principal must give a

notice to the Secretary under this section:

(a) the person starts to undertake another kind of registrable

activity on behalf of the foreign principal;

(b) another kind of registrable activity is added to the activities

the person is to undertake under an arrangement with the

foreign principal;

Part 3 Responsibilities of registrants under the scheme

Division 2 Reporting to the Secretary

Section 35

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

relation to an activity the person undertakes on behalf of the

foreign principal;

(d) consideration starts to be paid, or there is a change in

consideration payable, to the person in relation to registrable

activities undertaken on behalf of the foreign principal.

(5) Subsection (1) does not apply in relation to information that would,

apart from this subsection, be required to be included in a notice

given under this section, if the information has been included in a

notice given in accordance with:

(a) section 36 (reporting on registration review when voting

period begins); or

(b) section 37 (reporting registrable activity during voting

periods).

This subsection applies even if the notice under this section was

required to be given before the notice under section 36 or 37.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the Criminal Code).

35 Reporting donor activity in Australia for the purpose of political

or governmental influence (other than in voting period)

(1) If:

(a) a person is registered under the scheme in relation to a

foreign principal; and

(b) the person undertakes donor activity on behalf of the foreign

principal; and

principal within the meaning of section 21 (activity in

Australia for the purpose of political or governmental

influence); and

(d) the total value of the money or things of value disbursed in

the course of the donor activity:

(i) reaches the electoral donations threshold; or

(ii) reaches a multiple of that threshold;

the person must give the Secretary a notice specifying the total

value reached.

Responsibilities of registrants under the scheme Part 3

Reporting to the Secretary Division 2

Section 36

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

Note:

It is an offence for a registrant not to give this notice (see

subsection 58(1)). It is also an offence under the Criminal Code to

give false or misleading information in compliance with a law of the

Commonwealth (see section 137.1 of the Code).

(2) The notice must be given before the end of the period of 14 days

after the day the total value reaches the threshold or multiple

mentioned in paragraph (1)(d).

(3) The notice must be:

(a) in writing; and

(b) in an approved form (if any); and

(d) accompanied by any information or documents required by

the Secretary.

(4) This section does not apply if the total value reaches the threshold

or multiple mentioned in paragraph (1)(d) on a day in the voting

period for a federal election or designated vote.

Note:

In this case see section 37 instead.

36 Reporting on registration review when voting period begins

(1) If a voting period begins for a federal election (other than a

by-election) or for a designated vote, a person who is registered

under the scheme in relation to a foreign principal must:

(a) review the information provided by the person to the

Secretary in relation to the registration; and

(b) give the Secretary a notice in relation to the information:

(i) confirming that the registration is up to date; or

(ii) if it is not--updating any information.

Note:

It is an offence for a registrant not to give this notice (see

subsection 58(1)). It is also an offence under the Criminal Code to

give false or misleading information in compliance with a law of the

Commonwealth (see section 137.1 of the Code).

(2) The notice must be given before the end of the period of 14 days

after the voting period begins.

(3) The notice must be:

Part 3 Responsibilities of registrants under the scheme

Division 2 Reporting to the Secretary

Section 37

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

(a) in writing; and

(b) in an approved form (if any); and

(d) accompanied by any information or documents required by

the Secretary.

(4) Subsection (1) does not apply if the person applied for the

registration under section 16, or renewed the registration under

section 39, less than 14 days before the voting period began.

37 Reporting registrable activity during voting periods

(1) If:

(a) a person is registered under the scheme in relation to a

foreign principal; and

(b) the person undertakes an activity on behalf of the foreign

principal at any time in the voting period for a federal

election (other than a by-election) or for a designated vote;

and

(d) the activity relates to the federal election or the designated

vote;

the person must give the Secretary a notice in relation to the

activity.

Note:

It is an offence for a registrant not to give this notice (see

subsection 58(1)). It is also an offence under the Criminal Code to

give false or misleading information in compliance with a law of the

Commonwealth (see section 137.1 of the Code).

(2) This subsection applies in relation to the activity if the activity is

registrable in relation to the foreign principal within the meaning

of:

(a) section 20 (parliamentary lobbying on behalf of a foreign

government); or

(b) section 21 (activities in Australia for the purpose of political

or governmental influence), other than donor activity.

(3) This subsection applies in relation to donor activity if:

Responsibilities of registrants under the scheme Part 3

Reporting to the Secretary Division 2

Section 37

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

(a) the donor activity is registrable in relation to the foreign

principal within the meaning of section 21 (activities in

Australia for the purpose of political or governmental

influence); and

(b) the total value of the money or things of value disbursed in

the course of the donor activity reaches the threshold or

multiple mentioned in paragraph 35(1)(d) in the voting

period.

(4) The notice must be given before the end of the period of 7 days

after:

(a) if subsection (2) applies in relation to the activity--the day

the person undertakes the activity; or

(b) if subsection (3) applies in relation to the activity--the day

the threshold or multiple is reached.

(5) The notice must be:

(a) in writing; and

(b) in an approved form (if any); and

(d) accompanied by any information or documents required by

the Secretary.

Part 3 Responsibilities of registrants under the scheme

Division 3 Other responsibilities

Section 38

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Division 3--Other responsibilities

38 Disclosure in communications activity

(1) If:

(a) a person is registered under the scheme in relation to a

foreign principal; and

(b) the person undertakes communications activity on behalf of

the foreign principal; and

foreign principal within the meaning of section 21 (activity in

Australia for the purpose of political or governmental

influence);

the person must make a disclosure about the foreign principal in

accordance with rules made for the purposes of subsection (2).

Note:

It is an offence for a registrant not to make the disclosure (see

subsection 58(2)).

(2) The rules may prescribe any or all of the following:

(a) instances of communications activity;

(b) when and how disclosures are to be made in relation to

instances of communications activity;

(d) circumstances in which a person is exempt from making a

disclosure.

39 Annual renewal of registration

(1) By the end of the renewal period each year for a person's

registration in relation to a foreign principal, the person must

either:

(a) if the person remains liable to register in relation to the

foreign principal--renew the registration; or

(b) give the Secretary a notice under section 31 (notice of end of

liability to register).

Note 1:

It is an offence for a registrant not to renew if still liable to register

(see section 57).

Responsibilities of registrants under the scheme Part 3

Other responsibilities Division 3

Section 40

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

Note 2:

Charges may be imposed in relation to renewals (see section 63).

(2) A renewal must be:

(a) in writing; and

(b) in an approved form (if any); and

(d) accompanied by any information or documents required by

the Secretary.

(3) The renewal period for a person's registration in relation to a

foreign principal is:

(a) the month beginning on either:

(i) the anniversary of the day the person applied (or most

recently applied) under section 16 for registration in

relation to the foreign principal; or

(ii) if another day is specified under paragraph (4)(a)--that

other day; or

(b) if an extended period is specified under paragraph (4)(b)--

that extended period.

(4) On request by the person made in writing, the Secretary may, in

writing:

(a) if satisfied it is appropriate to align renewal periods for

registrations of a person registered in relation to more than

one foreign principal--specify a day for the registration for

the purposes of subparagraph (3)(a)(ii); or

(b) if satisfied that exceptional circumstances exist--specify an

extended period for the registration, for a specified year, for

the purposes of paragraph (3)(b).

(5) An instrument made under subsection (4) is not a legislative

instrument.

40 Keeping records

(1) A person who is registered under the scheme in relation to a

foreign principal must keep records of the matters mentioned in

subsection (2):

Part 3 Responsibilities of registrants under the scheme

Division 3 Other responsibilities

Section 40

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

(a) while registered under the scheme in relation to the foreign

principal; and

(b) until the end of 5 years after the registration ends.

Note:

Certain conduct in relation to records is an offence (see

subsection 58(3) and section 61).

(2) The matters are the following:

(a) registrable activities the person undertakes on behalf of the

foreign principal;

(b) benefits provided to the person by the foreign principal;

activity that is registrable in relation to the foreign principal;

(d) any registrable arrangement between the person and the

foreign principal;

(e) other information or material communicated or distributed in

Australia on behalf of the foreign principal.

Obtaining and handling scheme information Part 4

Simplified outline of this Part Division 1

Section 41

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

Part 4--Obtaining and handling scheme

information

Division 1--Simplified outline of this Part

41 Simplified outline of this Part

The Secretary must keep a register of information obtained under

the scheme.

The Secretary has the power to obtain information from any person

if the Secretary reasonably believes the person has information

relevant to the scheme.

Some scheme information will be made publicly available (mainly,

the names of registrants and foreign principals and descriptions of

the registrable activities being undertaken).

Other scheme information must be handled in accordance with the

Privacy Act 1988, Part 5.6 of the Criminal Code (secrecy of

information) and the authorisations set out in Division 4.

Part 4 Obtaining and handling scheme information

Division 2 Register of scheme information

Section 42

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Division 2--Register of scheme information

42 Secretary must keep a register

(1) The Secretary must keep a register of information in relation to the

scheme.

(2) The Secretary must include on the register the following

information and documents for each person who is registered in

relation to a foreign principal:

(a) the name of the person and the foreign principal;

(b) the application for the registration and any accompanying

information or documents;

Division 2 of Part 3 (reporting to the Secretary) and any

accompanying information or documents;

(d) any renewal of the registration and any accompanying

information or documents;

(e) a record of any other communications between the person

and the Secretary;

(f) any information prescribed by the rules for the purposes of

paragraph 43(1)(c) in relation to registrants and not

mentioned in another paragraph of this subsection;

(g) any other information or documents the Secretary considers

appropriate.

(3) The Secretary must also include the following information and

documents on the register:

(a) any notices given by the Secretary to a person other than a

registrant under:

(i) section 45 (notice requiring information to satisfy

Secretary whether person is liable to register under the

scheme); or

(ii) section 46 (notice requiring information relevant to

scheme);

and any responses received;

Obtaining and handling scheme information Part 4

Section 43

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

(b) any information prescribed by the rules for the purposes of

paragraph 43(1)(c) (other than in relation to registrants) and

not mentioned in another paragraph of this subsection;

appropriate.

43 Certain information to be made publicly available

(1) The Secretary must make available to the public, on a website, the

following information in relation to each person registered in

relation to a foreign principal:

(a) the name of the person and the foreign principal;

(b) a description of the kind of registrable activities the person

undertakes on behalf of the foreign principal;

of this paragraph.

(2) Despite subsection (1), the Secretary may decide not to make

particular information available to the public if the Secretary is

satisfied that the information:

(a) is commercially sensitive; or

(b) affects national security; or

subsection.

Note:

A registrant who considers that information is commercially sensitive

can specify this when giving the information.

(3) The rules may prescribe circumstances in which the Secretary is to

remove publicly available information from the website.

44 Secretary may correct or update information in the register

The Secretary may correct or update information in the register.

Part 4 Obtaining and handling scheme information

Division 3 Secretary's powers to obtain information and documents

Section 45

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Division 3--Secretary's powers to obtain information and

documents

45 Notice requiring information to satisfy Secretary whether person

is liable to register under the scheme

(1) This section applies if:

(a) the Secretary reasonably suspects that a person might be

liable to register under the scheme in relation to the foreign

principal; and

(b) the person is not registered under the scheme in relation to

that foreign principal.

(2) The Secretary may, by written notice given to the person, require

the person:

(a) to give to the Secretary, within the period and in the manner

and form specified in the notice, any information that may

satisfy the Secretary as to whether the person is liable to

(b) to produce to the Secretary, within the period and in the

manner and form specified in the notice, any documents that

may satisfy the Secretary as to whether the person is liable to

Secretary, within the period and in the manner specified in

the notice, those copies.

Note:

It is an offence not to comply with the notice (see section 59).

(3) The period specified in the notice must be a period of at least 14

days after the notice is given.

(4) The Secretary may, on request by the person, extend the period by

written notice given to the person.

(5) Before giving a person a notice under subsection (2), the Secretary

must have regard to the costs, in complying with any requirement

in the notice, that would be likely to be incurred by the person.

Obtaining and handling scheme information Part 4

Secretary's powers to obtain information and documents Division 3

Section 46

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

(6) Subsection (5) does not limit the matters to which regard may be

had.

(7) The notice must set out 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).

46 Notice requiring information relevant to scheme

(1) This section applies if the Secretary reasonably believes that a

person (whether or not a registrant) has information or a document

that is relevant to the operation of the scheme.

(2) The Secretary may, by written notice given to the person, require

the person:

(a) to give to the Secretary, within the period and in the manner

and form specified in the notice, any such information; or

(b) to produce to the Secretary, within the period and in the

manner specified in the notice, any such documents; or

Secretary, within the period and in the manner specified in

the notice, those copies.

Note:

It is an offence not to comply with the notice (see section 59).

(3) The period specified in the notice must be a period of at least 14

days after the notice is given.

(4) The Secretary may, on request by the person, extend the period by

written notice given to the person.

(5) Before giving a person a notice under subsection (2), the Secretary

must have regard to the costs, in complying with any requirement

in the notice, that would be likely to be incurred by the person.

(6) Subsection (5) does not limit the matters to which regard may be

had.

(7) The notice must set out 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).

Part 4 Obtaining and handling scheme information

Division 3 Secretary's powers to obtain information and documents

Section 47

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

47 Self-incrimination

(1) A person is not excused from giving information or producing a

document or a copy of a document under section 45 or 46 on the

ground that the information or the production of the document or

copy might tend to incriminate the person or expose the person to a

penalty.

(2) However, in the case of an individual:

(a) the information given or the document or copy produced; and

(b) giving the information or producing the document or copy;

and

indirect consequence of giving the information or producing

the document or copy;

is not admissible in evidence against the individual in criminal

proceedings, other than proceedings for an offence against

section 60 of this Act, or section 137.1 or 137.2 of the Criminal

Code that relates to this Division (false or misleading information

or documents), or in civil proceedings.

48 Copies of documents

(1) The Secretary may inspect a document or copy produced in

compliance with a notice given under section 45 or 46 and may

make and retain copies of such a document.

(2) The Secretary may retain possession of a copy of a document

produced in compliance with a notice given under section 45 or 46.

49 Retention of documents

(1) The Secretary may take, and retain for as long as is necessary,

possession of a document produced in compliance with a notice

given under section 45 or 46.

(2) The person otherwise entitled to possession of the document is

entitled to be supplied, as soon as practicable, with a copy certified

by the Secretary to be a true copy.

Obtaining and handling scheme information Part 4

Secretary's powers to obtain information and documents Division 3

Section 49

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

(3) A certified copy:

(a) may be used by the Secretary if the Secretary returns

possession of the original document to the person otherwise

entitled to possession of it; and

(b) in any case--must be received in all courts and tribunals as

evidence as if it were the original.

(4) Until a certified copy is supplied, the Secretary must, at such times

and places as he or she thinks appropriate, permit the person

otherwise entitled to possession of the document, or a person

authorised by that person, to inspect and make copies of the

document.

Part 4 Obtaining and handling scheme information

Division 4 Communicating and dealing with scheme information

Section 50

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Division 4--Communicating and dealing with scheme

information

50 Scheme information

Information is scheme information if the information:

(a) is obtained by a scheme official in the course of performing

functions or exercising powers under the scheme; or

(b) was information to which paragraph (a) applied and is

obtained by a person by way of a communication authorised

under this Division.

51 Scheme officials

Definition

(1) Each of the following is a scheme official:

(a) the Secretary;

(b) an APS employee in the Department:

(i) to whom a function or power is delegated under

section 67; or

(ii) whose functions otherwise include functions in relation

to the scheme;

scheme under an agreement with the Commonwealth.

Evidentiary certificate

(2) The Minister may sign a certificate stating that a specified person

is, or was at a specified time, a scheme official.

(3) For the purposes of proceedings for an offence against this Act, or

against Part 7.4 of the Criminal Code (false or misleading

statements) in relation to this Act, a certificate signed by the

Minister under this section is prima facie evidence of the matters

certified in it.

Obtaining and handling scheme information Part 4

Communicating and dealing with scheme information Division 4

Section 52

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

52 Authorisation--purposes of scheme

A scheme official may communicate or otherwise deal with

scheme information:

(a) for the purposes of performing functions or exercising

powers under the scheme; or

(b) otherwise in the course of performing the scheme official's

functions in relation to the scheme.

53 Authorisation--other purposes

(1) The Secretary may communicate scheme information, for a

purpose specified in an item in column 1 of the table, to a person

specified for that purpose in column 2 of the table.

Authorisation for Secretary to communicate scheme information

Item

Column 1

Communication for this

purpose:

Column 2

May be made to:

an enforcement related activity

of an enforcement body within

the meaning of the Privacy Act

1988

the enforcement body

the protection of public revenue

any of the following that has functions in

relation to the purpose:

(a) a Department, agency or authority of

the Commonwealth, a State or a

Territory;

(b) an Australian police force

the protection of security within

the meaning of the Australian

Security Intelligence

Organisation Act 1979

any of the following that has functions in

relation to the purpose:

(a) a Department, agency or authority of

the Commonwealth, a State or a

Territory;

(b) an Australian police force

a purpose prescribed by the

rules

a person prescribed by the rules

Part 4 Obtaining and handling scheme information

Division 4 Communicating and dealing with scheme information

Section 54

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

(2) The Minister must consult the Information Commissioner before

making rules for the purposes of item 4 of the table in

subsection (1).

54 Authorisation--secondary communication of or dealing with

information

A person may communicate or otherwise deal with scheme

information if:

(a) the person obtains the information in the person's capacity as

a person, or as an employee or official of a person, to whom

information is communicated under this Division (including

this section); and

(b) the person communicates or otherwise deals with the

information for the purposes for which the information was

obtained by the person to whom it was communicated.

55 Authorisation--information publicly available

A person may communicate or otherwise deal with scheme

information if the information has already been communicated or

made available to the public with the authority of the

Commonwealth (including under section 43 (certain information to

be made publicly available) or 69 (annual report)).

Enforcement Part 5

Section 56

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

Part 5--Enforcement

56 Simplified outline of this Part

It is a criminal offence for a person who is liable to register not to

be registered under the scheme.

Criminal offences also apply for failing to fulfil responsibilities

under the scheme or providing false or misleading information in

purported fulfilment of responsibilities, and for destroying records.

It is also a criminal offence not to comply with a notice from the

Secretary requiring information in relation to the scheme.

57 Failure to apply for or maintain registration

Intentional omission to apply or renew and registrable activity

undertaken

(1) A person commits an offence if:

(a) the person knows that the person is required:

(i) to apply for registration under the scheme in relation to

the foreign principal by the end of a period; or

(ii) to renew the person's registration relation to the foreign

principal by the end of a period; and

(b) the person intentionally omits to do so; and

principal after the end of the period; and

(d) the activity is registrable in relation to the foreign principal.

Penalty: Imprisonment for 7 years.

Section 31 notice given knowing arrangement still exists and

undertaking registrable activity

(2) A person commits an offence if:

Part 5 Enforcement

Section 57

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

(a) the person gives the Secretary a notice under section 31

(notice of end of liability to register) for the person's

registration under the scheme in relation to the foreign

principal; and

(b) at the time the person does so a registrable arrangement

exists between the person and the foreign principal; and

in existence on the day specified in the notice under

subsection 31(3) as the day the person's registration in

relation to the foreign principal is to cease; and

(d) the person undertakes an activity on behalf of the foreign

principal after that day; and

(e) the activity is registrable in relation to the foreign principal.

Penalty: Imprisonment for 7 years.

Reckless omission to apply or renew and registrable activity

undertaken

(3) A person commits an offence if:

(a) the person knows that the person is required:

(i) to apply for registration under the scheme in relation to

the foreign principal by the end of a period; or

(ii) to renew the person's registration in relation to the

foreign principal by the end of a period; and

(b) the person is reckless as to whether the person has omitted to

do so; and

principal after the end of the period; and

(d) the activity is registrable in relation to the foreign principal.

Penalty: Imprisonment for 5 years.

Intentional or reckless omission to apply or renew whether or not

registrable activity undertaken

(4) A person commits an offence if:

(a) the person knows that the person is required:

Enforcement Part 5

Section 58

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

(i) to apply for registration under the scheme in relation to

the foreign principal by the end of a period; or

(ii) to renew the person's registration relation to the foreign

principal by the end of a period; and

(b) the person intentionally omits, or is reckless as to whether the

person has omitted, to do so.

Penalty: Imprisonment for 12 months.

Section 31 notice given knowing arrangement still exists whether

or not registrable activity undertaken

(5) A person commits an offence if:

(a) the person gives the Secretary a notice under section 31

(notice of end of liability to register) for the person's

registration under the scheme in relation to the foreign

principal; and

(b) at the time the person does so a registrable arrangement

exists between the person and the foreign principal; and

in existence on the day specified in the notice under

subsection 31(3) as the day the person's registration in

relation to the foreign principal is to cease.

Penalty: Imprisonment for 12 months.

58 Failure to fulfil responsibilities under the scheme

Failure to fulfil reporting responsibility

(1) A person commits an offence of strict liability if:

(a) the person is required to give a notice under a provision of

Division 2 of Part 3 (reporting to the Secretary); and

(b) the person fails to give the notice in accordance with the

provision.

Penalty: 60 penalty units.

Part 5 Enforcement

Section 59

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Failure to fulfil responsibility to disclose in communications

activity

(2) A person commits an offence of strict liability if:

(a) the person is required to make a disclosure in accordance

with the rules under section 38 (disclosure in

communications activity); and

(b) the person fails to make the disclosure in accordance with the

rules.

Penalty: 60 penalty units.

Failure to keep records

(3) A person commits an offence of strict liability if:

(a) the person is required to keep records of a matter under

section 40 (keeping records) for a period; and

(b) the person fails to do so.

Penalty: 60 penalty units.

59 Failure to comply with notice requiring information

(1) A person commits an offence if:

(a) the person is given a notice under section 45 or 46; and

(b) the person fails to comply with the notice:

(i) by the end of the period specified in the notice; or

(ii) if the Secretary extends that period--by the end of the

extended period.

Penalty: Imprisonment for 6 months.

(2) Subsection (1) does not apply if:

(a) the person fails to comply with the notice only because the

person does not provide the information or a document

within the applicable period; and

(b) the person took all reasonable steps to provide the

information or document within that period; and

practicable after the end of that period.

Enforcement Part 5

Section 60

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

60 False or misleading information or documents

Offence

(1) A person commits an offence if:

(a) the person gives information or produces a document to the

Secretary; and

(b) the person does so in response to a notice given to the person

under section 45 (notice requiring information to satisfy

Secretary whether person is liable to register) or 46 (notice

requiring information relevant to scheme); and

(i) the information or document is false or misleading; or

(ii) the information omits any matter or thing without which

the information is misleading.

Penalty: Imprisonment for 5 years.

Defence--not material

(2) Subsection (1) does not apply as a result of subparagraph (1)(c)(i)

if the information or document is not false or misleading in a

material particular.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

(3) Subsection (1) does not apply as a result of subparagraph (1)(c)(ii)

if the information did not omit any matter or thing without which

the information is misleading in a material particular.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

Defence--not informed of offence

(4) Subsection (1) does not apply if, before the person gave the

information or produced the document to the Secretary, the

Part 5 Enforcement

Section 61

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Secretary did not take reasonable steps to inform the person of the

existence of the offence against subsection (1).

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

(5) For the purposes of subsection (4), it is sufficient if the following

form of words is used: "Giving false or misleading information or

documents is an offence".

Defence--statement about false or misleading document

(6) Subsection (1) does not apply to a person who produces a

document if the document is accompanied by a written statement

signed by the person or, in the case of a body corporate, by a

competent officer of the body corporate:

(a) stating that the document is, to the knowledge of the

first-mentioned person, false or misleading in a material

particular; and

(b) setting out, or referring to, the material particular in which

the document is, to the knowledge of the first-mentioned

person, false or misleading.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

61 Destruction etc. of records

(1) A person commits an offence if:

(a) under section 40, a registrant is required to keep records (a

scheme record); and

(b) the person (whether or not the registrant) does an act, or

omits to do an act; and

intention of avoiding or defeating the object of this Act or

any element of the scheme; and

(d) the act or omission results in:

(i) damage to, or the destruction of, a scheme record; or

(ii) the concealment of a scheme record; or

(iii) the registrant being prevented from keeping scheme

records.

Part 6 Miscellaneous

Section 62

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

Part 6--Miscellaneous

62 Simplified outline of this Part

This Part deals with miscellaneous matters, including matters

relating to charges payable under the scheme, the treatment of

persons who are not legal persons (such as partnerships) and other

matters such as delegations, approvals and rule-making powers.

There is also a requirement for the Minister to report annually to

the Parliament about the operation of the scheme, and for the

scheme to be reviewed before the end of its first 5 years of

operation.

63 Charges

(1) A person is liable to pay a charge imposed by the Foreign

Influence Transparency Scheme (Charges Imposition) Act 2017 if

the person:

(a) makes an application for registration under section 16; or

(b) renews a registration under section 39.

(2) Charges are payable to the Commonwealth.

(3) The amount of a charge:

(a) is a debt due to the Commonwealth; and

(b) may be recovered by the Minister, on behalf of the

Commonwealth, by action in a court of competent

jurisdiction.

(4) If an application or renewal is not accompanied by the amount of

the charge that the applicant or registrant is liable to pay, then,

unless the rules prescribe otherwise, the application or renewal is

taken not to have been given to the Secretary.

(5) The Secretary may refund a charge, or part of a charge, in the

circumstances prescribed by the rules.

Miscellaneous Part 6

Section 64

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

(6) The rules may prescribe other matters in relation to the payment of

charges.

64 Treatment of partnerships

(1) The scheme applies to a partnership as if the partnership were a

legal person, but with the changes set out in this section.

(2) An obligation that would otherwise be imposed on the partnership

under the scheme is imposed on each partner instead, but may be

discharged by any of the partners.

(3) An offence against this Act (including an offence against Chapter 7

of the Criminal Code in relation to this Act) that would otherwise

have been committed by the partnership is taken to have been

committed by each partner in the partnership, at the time the

offence was committed, who:

(a) did the relevant act or made the relevant omission; or

(b) aided, abetted, counselled or procured the relevant act or

omission; or

relevant act or omission (whether directly or indirectly and

whether by any act or omission of the partner).

(4) For the purposes of the scheme, a change in the composition of a

partnership does not affect the continuity of the partnership.

65 Treatment of other unincorporated bodies

The scheme applies to a person that is not a legal person, other than

a partnership, as if the person were a legal person, but with the

changes prescribed by the rules for that kind of person.

66 Approvals

The Secretary may, in writing, approve:

(a) a form (an approved form) for the purposes of a provision of

this Act; and

(b) a manner (an approved manner) for giving a notice or

renewal under this Act.

Part 6 Miscellaneous

Section 67

Foreign Influence Transparency Scheme Bill 2017

No. , 2017

67 Delegations

(1) The Secretary may, in writing, delegate all or any of his or her

functions or powers under this Act to:

(a) an SES employee, or an acting SES employee, in the

Department; or

(b) an APS employee who holds, or is acting in, an Executive

Level 2 or equivalent position in the Department.

Note:

Sections 34AA to 34A of the Acts Interpretation Act 1901 contain

provisions relating to delegations.

(2) In performing a delegated function or exercising a delegated

power, the delegate must comply with any written directions of the

Secretary.

68 Agreements

The Secretary may, on behalf of the Commonwealth:

(a) enter into a written agreement with a person for the person to

perform services in relation to the scheme; and

(b) make payments to the person in accordance with any such

agreement.

69 Annual report

(1) The Secretary must, as soon as practicable after the end of each

financial year, prepare and give to the Minister, for presentation to

the Parliament, a report on the operation of the scheme in relation

to the financial year.

Note:

See also section 34C of the Acts Interpretation Act 1901.

(2) The report must include any matters prescribed by the rules for the

purposes of this subsection.

(3) Despite subsection (2), the report must not include information that

the Secretary is satisfied:

(a) is commercially sensitive; or

(b) affects national security; or

Miscellaneous Part 6

Section 70

No. , 2017

Foreign Influence Transparency Scheme Bill 2017

purposes of subsection 43(2).

Note:

A registrant who considers that information is commercially sensitive

can specify this when giving the information.

70 Review of operation of the scheme

(1) The Minister must cause a review to be conducted of the operation

of the scheme.

(2) The review must be conducted before the end of the period of 5

years beginning on the day after this section commences.

(3) The person undertaking a review must give the Minister a written

report of the review.

(4) The Minister must cause a copy of the report to be tabled in each

House of the Parliament within 15 sitting days of that House after

the report is given to the Minister.

71 Rules

(1) The Minister may, by legislative instrument, make rules

prescribing matters:

(a) required or permitted by this Act to be prescribed by the

rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

Commonwealth of Australia Bills

FOREIGN INFLUENCE TRANSPARENCY SCHEME BILL 2017