This article was written by Malcolm Brennan, Stephen Mason, Monique Carroll and Caitlin Rodgers.
On 28 November 2018 the Attorney-General introduced the Foreign Influence Transparency Scheme Legislation Amendment Bill 2018. This Bill will amend the Foreign Influence Transparency Scheme Act 2018 and the National Security Legislation (Espionage and Foreign Interference) Act 2017 (as the NSLA Act contains the transitional provisions for the FITS Scheme). We expect that the changes to the legislation will be passed early in the new year.
At the same time, the Attorney-General released for consultation draft rules under the Acts, and extensive guidance.
The Acts were passed as a response to concerns about foreign government related influence on and interference with Australia’s Federal Government and political processes.
Under the FITS Scheme, anyone who acts on behalf of “foreign government principals” in connection with activities to influence Federal Government-decision making, or the Federal political process, will need to register with the Attorney-General’s Department.
Links to our previous alerts on the FITS Scheme are here and here.
Information will remain on the Register
Under the FITS Act, the Secretary of the Attorney-General’s Department must establish a Register and publish information about registered persons on the Register.
Under the proposed amendments, the Secretary will have to keep certain information about registered persons on the Register, even though they are no longer registered. The purpose is to ensure that historical information about previous registrations under the Scheme remains on the Register to give the public continuing access to information about past (and not just present) instances of representations made on behalf of foreign government related entities.
Transitional provisions for the Scheme give people who have pre-existing arrangements with foreign principals, in force before the FITS Act commences, six months to become registered. On that basis, there would be no obligation to register under the Scheme before the next Federal election.
The amendments reduce this transitional period to three months. If the amendments are passed, the Scheme will likely catch pre-existing arrangements in relation to the next Federal election.
The Attorney-General has released draft rules for consultation and extensive fact sheets and other guidance in relation to the operation of the FITS Scheme. These include core concepts such as the difference between influence and interference, who is a ‘foreign principal’ and obligations of those liable to register during voting periods.
Fees for registration
The fees for registration have not yet been published.
The Attorney-General indicated that the Federal Government is looking to commence the FITS Scheme on 10 December 2018.
Given the sensitivity of foreign government influence and interference and the suggested negative impact on the democratic process, we expect that the Federal Government will be looking to ensure that the Register under the Scheme is fully operational and effective in time for the next Federal election.
What do you need to do now
Now is the time to assess whether you or your organisation will be caught by the Scheme.
In brief, this means checking whether you make submissions to, or otherwise engage with, the Federal Government on behalf of a foreign government related entity.
Our team is happy to help you work out whether you need to register under the Scheme and what your potential obligations under the Scheme would be.