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Update: the Foreign Influence Transparency Scheme Act 2018
On 10 December 2018, the Foreign Influence Transparency Scheme Act 2018 (Cth) (the Act) commenced.
After consideration by the Parliamentary Joint Committee on Intelligence and Security and recommendations by the Attorney-General and robust parliamentary debate, a suite of amendments were made to the Foreign Influence Transparency Scheme Bill 2017, resulting in the current Act. The amendments address some of Not-for-profit Law’s key concerns with the original Bill.
The intent of the scheme is to provide transparency on the forms and sources of foreign interest and influence on the Australian government and political process.
Broadly speaking, the scheme includes registration and reporting obligations on people or organisations who undertake activities designed to influence government or politics (called “registrable activities”) on behalf of or in connection with a foreign organisation, business, or government (called “foreign principles”). There are a range of exemptions (discussed below), including for example, some activities of a charity registered with the Australian Charities and Not-for-profits Commission (as long as they are not disbursement activities (i.e payment of money) and it is made clear to the public that the activity is undertaken by a foreign principle and the identity of the foreign principle).
Foreign principle is taken to mean a foreign government, foreign public enterprise, foreign political organisation, foreign business, or an individual related to a foreign principal who is neither an Australian citizen nor a permanent Australian resident.
Registrable activities that are caught by the Act include:
- parliamentary lobbying on behalf of a foreign government,
- parliamentary lobbying and political lobbying for the purpose of political or governmental influence by any kind of foreign principal,
- communications or disbursements for the purpose of political or governmental influence by any kind of foreign principal, and
- the engagement of certain persons (such as a Cabinet minister, or head of a Government Agency) on behalf of a foreign principal for certain activities.
EXAMPLE: A health organisation in Australia, working to promote awareness of infectious diseases caused by bacteria spread by parasites, being provided with a small amount of funding by the New Zealand Government to help it develop information for distribution in New Zealand. The material is circulated in Australia in an attempt to bring awareness to the issue locally and this leads to a decision by Parliament to hold an inquiry. This activity may be caught by the legislation as it involves funding from a foreign government and the (initially unplanned) communications activity indirectly influences Parliament. It would be caught if the information communicated specifically called on Government(s) to take a particular action in relation to the diseases.
If your not-for-profit organisation is a foreign principle undertaking a registrable activity, you may have registration and reporting requirements from 10 December 2018. There are penalties for failing to comply.
Exemptions under the Act may apply. Some aremore relevant to not-for-profits than others, for example, your not-for-profit organisation may be exempt if:
- the registrable activity is in relation to a religious activity undertaken in good faith,
- your organisation is a registered charity with the Australian Charities and Not-for-profits Commission, the registrable activity is undertaken in pursuit of a charitable purpose, not a disbursement activity, and at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:
- the fact that the person is undertaking the activity on behalf of a foreign principal, and
- the identity of the foreign principal.
- your organisation’s purpose is, or relates primarily to the arts, the registrable activity is undertaken in pursuit of the organisation’s artistic purpose, is not a disbursement activity, and at the time the activity is undertaken, both of the following matters are either apparent to the public or disclosed to the public:
- the fact that the person is undertaking the activity on behalf of a foreign principal;
- the identity of the foreign principal.
- the registrable activity is, or relates primarily to, or is incidental to, the provision of legal advice or representation,
- the registrable activity is undertaken by an Australian industry body in the course of representing its members.
If your not-for-profit community organisation does not fit into an exemption, is funded by or works with foreign governments or entities and is undertaking activities with the purpose of influencing government or politics, you may be caught by the Act. If you are unsure if and when your organisation is required to register, you should seek legal advice.
For more information, including on the registration and reporting requirements see the Foreign Influence Transparency Scheme page on the Attorney-General’s website: www.ag.gov.au/Transparency