3. Evidence received
   1. Many of the non-government submissions made to the Committee’s review focused on specific sectors of the community or industry affected by the operation of the Foreign Influence Transparency Scheme (FITS). Some offered general commentary from private individuals aligned with think tanks on the operation of the Scheme as a whole.
   2. A number of submissions were made to the Committee expressing concern about the influence and interference that specific foreign governments may exert on diaspora communities within Australia. To the extent that these contributions alleged foreign interference, they were not always within the scope of a review of the FITS, which deals with influence. However, this did highlight the challenge of distinguishing between influence and interference, and navigating the ‘grey zone’ between these in the broader countering foreign interference (CFI) framework.
   3. The Committee explored the issues raised in submissions at its public hearing in February 2023, with particular focus on the operation of the FITS to date and possible areas of improvement identified by both government and other commentators.
   4. At different points throughout the course of the review the Attorney-General’s Department (the Department) provided the Committee with classified case studies and information relating to the operation of the FITS. While such evidence is not able to be directly discussed in this report, it valuably further informed the Committee’s consideration of certain key issues.
   5. This chapter outlines evidence received by the Committee on key aspects of the FITS, including improvements or changes to the Scheme proposed by stakeholders.

Objectives and design of the scheme

3.6The object of the FITS Act is stated in section 3:

The object of this Act is to provide for a scheme for the registration of persons who undertake certain activities on behalf of foreign governments and other foreign principals, in order to improve the transparency of their activities on behalf of those foreign principals.[1]

3.7As identified in Chapter 2 the FITS Act does not directly define what foreign influence is, relying rather on identifying activities that require registration, hence constituting foreign influence in their undertaking.

3.8The Australian Strategic Policy Institute questioned the identification of only ‘influence’ as the Scheme’s target, arguing that the objective of the FITS is to combat foreign interference:

Rather, the Foreign Influence Transparency Scheme Act 2018 (Cth) (FITS Act) also addresses foreign interference. It does so by forcing disclosure of what would otherwise be concealed foreign influence. The rationale for enforced disclosure is that concealed foreign influence is foreign interference. Exertion of influence by foreign governments in Australia is permissible only to the extent that the foreign governmental source is transparent. The FITS Act seeks to bring about that transparency. If someone deliberately breaches it, then that constitutes foreign interference.[2]

3.9Ms Katherine Mansted proffered the following characterisation of the desired objectives of the FITS:

I like to think of FITS as a democratised form of intelligence. It’s something that community leaders, business organisations, the media, everyday citizens, should be able to look at to inform their decision making. That means it needs to be, like government intelligence is, relevant, actionable, timely and contextualised.[3]

3.10The Department submitted that the original purpose of the FITS, ‘to support the integrity of our open democratic system by providing greater transparency of foreign influence in political and government processes’, remained valid and should be affirmed.[4]

Objectives in relation to the Countering Foreign Interference Framework

3.11In submissions to the review, both the Australian Security Intelligence Organisation (ASIO) and the Department of Home Affairs identified the welcome nature of transparent foreign influence within Australian society. They emphasised that the clandestine and deliberately concealed aspects of potential foreign influence and foreign interference are the intended target of the FITS, complemented by the CFI activities of ASIO and Home Affairs.

3.12Mr Chris Teal, Deputy Director-General, Intelligence Service Delivery from ASIO clarified where the FITS sits in relation to the CFI framework:

We’re here to discuss the Foreign Influence Transparency Scheme Act. ASIO recognises that the scheme plays an important part in protecting Australia’s interests by providing transparency. That kind of transparency is welcome in our democratic society. It is important to know what the scheme is not. It is not about interference and it is not about catching spies. The scheme and our espionage and foreign interference legislation are complementary. The scheme encourages transparency and is the first step to hardening the environment against interference. Separately, the espionage and foreign interference legislation supports the criminal prosecution of those undertaking activities that cause serious harm to Australia’s national interests.[5]

3.13The work of the Counter Foreign Interference Coordination Centre in Home Affairs, and how it relates to but is separate from the FITS, was commented on by Mr Andrew Kefford PSM, then Deputy Secretary, Social Cohesion and Citizenship, Commonwealth Counter-Terrorism Coordinator, and National Counter Foreign Interference Coordinator:

In relation to the work of the CFI Centre and my role as coordination, essentially what we do is bring together Commonwealth colleagues, and increasingly state colleagues, in relation to sharing information and intelligence, and sharing of good practice in terms of responses.

…

The administration of the FITS Act, particularly to your second question, does sit with our colleagues in the Attorney-General’s Department. Our role in that context extends to sharing and facilitating the flow of information to them and from them back into the broader conversations we’re having about managing the whole of the issue. But we don’t have a significant role in terms of the actual decision making that’s made under the authority of the secretary inside the Attorney-General’s Department.[6]

3.14The Department highlighted that the cooperation and coordination that occurs with relevant agencies within the National Intelligence Community (NIC) helps identify behaviours to be tracked, but also potential improvement of the FITS:

This collaboration also informs the department’s investigations into the character and behaviours of certain entities. This ensures that the appropriate response is taken when dealing with different behaviours. The department also receives, on occasion, referrals of potential foreign influence that are not disclosed on the register. There are instances where information gathered by law enforcement and security agencies assists in understanding behaviours, or the context in which certain behaviours occurs, which in turn will shape the decisions made and recommended under the FITS Act.[7]

3.15Whether the appropriate position of the FITS in relation to the CFI framework is being achieved with the current administrative arrangements is a further question that was raised by submitters and is discussed later in this chapter.

The need for reform

3.16Much evidence given to the Committee expressed the view that the FITS was not currently achieving its objectives.

3.17Ms Katherine Mansted commented on a perceived need to reform the FITS due to developments in geopolitical context:

…there’s a pressing need, in my view, to recalibrate FITS to ensure it remains fit for purpose. In part, that’s because of two external drivers that weren’t present back in 2017. Firstly, our strategic environment in Australia has deteriorated more rapidly than any government policy or strategy anticipated. Secondly, our adversaries have been watching what we’re doing and they are adapting to FITS in order to work their way around it. In particular, authoritarian governments find and exploit grey zones in our legal and policy responses, and they do that to subvert our democracy while not meeting the evidentiary and legal threshold in a piece of legislation like FITS.[8]

3.18Ms Mansted identified three other elements of the FITS that have confronted its appropriate operation:

…firstly, that it doesn’t capture always the right information, which means it is capturing some low-risk, low-threat activity, but actually distracts from its fundamental purpose of cataloguing and exposing foreign influence. On the other hand, it has blind spots, particularly when it comes to capturing influence that emanates from authoritarian governments. Authoritarian influence, whether it is domestic or foreign, tends to be more complex, more informal, and often opaque, secret by nature, and that’s something that our rule of law democracy sometimes hasn’t been able to adapt to.

The second shortcoming is that, even where FITS is capturing the right information, it’s not actually reaching the right audiences in a way that’s meaningful and useful. We don’t want FITS to become a compliance checkbox mechanism. It needs to be a powerful transparency tool that is meaningful and used by the public and by decision-makers across our democracy. It’s worth noting that in three years, between 2018 and 2021, there were only about 10,000 visits to the register per year, and it would be almost certain that they are not unique visits. So, it’s not a well-used tool.

The final shortcoming is that, frankly, FITS has a bit of an image problem. It's seen as a name-and-shame list, it’s not seen as something that is a bulwark of democratic resilience to us. Partly that’s because its enforcement regime is not appropriately graduated and calibrated, and partly that’s because it doesn’t capture the right information. So, most of the media attention on FITS has focused on perceived failures to register as opposed to more holistic engagement about the trends, drivers and patterns of influence that FITS could be showing us.[9]

3.19The Hon Malcolm Turnbull, as the Prime Minister who introduced the FITS, commented on the need for flexibility and reform through this statutory review:

It’s really important in areas like this to take a dynamic approach. Some of your committee members will recall me saying when I was in office that, in areas of national security, there is no place for set and forget. The environment is constantly changing, and you’ve got to be prepared to adjust and adapt and learn from experience and redo your position and indeed your legislation. So, what you’re embarked upon is very important work and it’s work that was anticipated when the legislation was passed.[10]

3.20As noted in Chapter 2, the Department itself offered detailed suggestions for reform of the Scheme, which are discussed throughout this report.

Direct opposition to the FITS

3.21The Institute of Public Affairs (IPA) expressed a broader and stronger opposition to the current FITS Act overall, stating:

Institute of Public Affairs research has identified that the broad and vague powers contained in the Act immediately enabled bureaucrats to conspire with politicians to operate a system of political pressure and censorship against Australians on the basis of their political beliefs. As these powers have not been curtailed in any way, the potential for future abuses of power have not abated. The legislation must be vastly redrafted, if not repealed, to ensure the law is compatible with the intentions of parliament and consistent with the rule of law.[11]

3.22The IPA contended that the FITS:

1is inconsistent with the rule of law – by violating legal rights through issuing transparency notices without procedural fairness; removing the right to silence in response to a notice to give information or produce documents; and abrogating the privilege against self-incrimination where a person refuses or fails to comply with a notice because doing so might incriminate the person or expose them to a penalty;

2empowers bureaucrats to target Australians because of their political beliefs – citing an example in which a Conservative Political Action Conference (CPAC) event triggered registration requirements under the Act; and

3is constitutionally invalid – citing High Court of Australia consideration of a complaint from 2020 in which LibertyWorks argued that the Act impermissibly burdened the implied freedom of political communication and section 92 on freedom of intercourse; and was not supported by a constitutional head of power under section 51.[12]

3.23Ultimately, the IPA submission argued that the FITS Act produces ‘absurd and draconian outcomes’ and argued for its substantive redrafting or repeal.[13]

3.24Mr Morgan Begg, the author of the IPA submission, declined the Committee’s invitation to discuss these matters further at the public hearing.

The ‘grey zone’ between foreign influence and foreign interference

3.25As mentioned in Chapter 2, Ms Mansted and others identified the challenge that the FITS, as well as the CFI framework, faces in addressing the activities that foreign actors may undertake that sit in the ‘grey zone’ between foreign influence and foreign interference as they are regulated by Australian legislation.

3.26Ms Mansted noted that these activities can be deliberate manipulations by certain foreign actors:

We know that in particular for some authoritarian governments—not all but some, particularly China, Russia and Iran—the way they go about doing their business when it comes to influence or interference in democratic countries is that they look for loopholes and grey zones to exploit. Those grey zones are actually created by us. However we calibrate our legal regime, those who wish to subvert our democracy will find ways around it…A good example of that is the way in which, for example, a number of activities coming out of the Chinese Communist Party aren't captured by the foreign interference or even the foreign influence register. We could think about the way in which there is no United Front Work activity currently captured on the register. Another example is the way in which we've seen some organisations change their governance structure to avoid being put on the foreign interference transparency register, for example, by adding extra layers of complexity to their governance regime, by hiding relationships so that it's almost impossible for the organisation in Australia to do the due diligence to understand what's going on.[14]

3.27Evidence given by Mr Alex Joske about Chinese Government influence in Australia, particularly through the work of the United Front Work Department (UFWD), indicated the complicated and interrelated nature of influence and interference in the ‘grey zone’:

But I think really one of the most concerning aspects, perhaps on a national level, when it comes to the activities of the United Front Work Department is that it's facilitating and in some ways providing networks and cover for even more sophisticated and concerning influence operations by agencies such as the Ministry of State Security that really specialise in professional, covert and clandestine operations. You have the United Front Work Department building out all these networks in a way that isn't prohibited by law, building relationships with people across various communities who are aligned with the Chinese Communist Party, and the Ministry of State Security really sees that as a great operating ground, as a list of people who I think it would feel comfortable approaching to recruit as intelligence assets and then tasking them to engage in covert political influence or political interference against the Australian political system.[15]

Commercial entities subject to foreign government control

3.28One of the challenges in the ‘grey zone’, and a deliberate target of the FITS, is capturing commercial entities that are subject to control or direction from a foreign government or foreign political organisation. The boundary between these commercial entities and government can become complicated, especially in the national security ecosystem.

3.29Mr Turnbull commented on the intention of capturing commercial entities subject to foreign government direction, drawing on a key example at the time the legislation was made:

I rather suspect what you're talking about is the Chinese telecom company Huawei, which is not a state owned enterprise. It may be that people have said, 'Huawei is not controlled by the government, it's not an SOE and it's not controlled by a foreign political party—that is, the Communist Party, which for all intents and purposes is the government of China.' They're essentially the same thing. I did turn my mind to this when the legislation was written, and my view was that companies of that kind, which were in a position where they had to comply with the directions of their government, and a particular political party, would be caught. But if the lawyers feel that's not the case, you amend it. Again, this is exactly what this committee is meant to be doing. But if you have a company which claims to be—and perhaps is, arguably—non-government owned but is nonetheless obliged to comply or has habitually complied with the directions of a government then the net should include it, plainly. You've just got to be practical about this.[16]

3.30Ms Mansted also commented on the nature of commercial entities that originate from, or are controlled by, authoritarian countries:

They're not independent in the same way as they would be within a democracy or a rule of law democracy, quite simply for the reason of that close nexus to the ruling party, and also that close relationship in authoritarian regimes, particularly in China, between market and state, especially in certain strategic industries and strategic sectors, and certain champion companies. In my mind, it's a no-brainer that those are not independent, private entities as they would be if they were operating in a peer democracy like Japan, the US or the UK.[17]

3.31Ms Mansted added that the boundary between politics and business is also a fluid entity in some countries, making the relationships that must be identified under the FITS harder to quantify:

The other point as well is that the way political relationships work in many of those authoritarian countries is that they are more informal, and so they're not documented. That also means that the current tests that we have assume ostensibly that every country in the world is a carbon copy of Australia and its peers, that they don't work for different countries with different political systems.[18]

3.32Mr Alex Joske elaborated on the example of Chinese companies:

They can be compelled by Chinese law, under the national intelligence law, to facilitate, cooperate in and keep secret intelligence operations when asked to by the Ministry of State Security and other Chinese government agencies. This means that you might have a Chinese business figure coming to Australia or a business figure from another country to build relationships and invest in Australia, but actually they're either acting at the direction of an intelligence officer or they themselves are an intelligence officer. Where I think this comes into the Foreign Influence Transparency Scheme is really the fact that it's clear from what the department has said, what other people have testified and what other people have observed that it really isn't shining a light on these activities; that most of the stuff, in fact the vast majority of registrations on there, are things that are already transparent.[19]

Work of foreign entities in diaspora communities

3.33As noted above, during the review the Committee received some evidence and correspondence relating to foreign diaspora communities in Australia, expressing concern about attempts to influence or coerce members of those communities by the governments of their countries of origin.

3.34The Department of Home Affairs acknowledged that the work of foreign entities in diaspora communities can transcend the commonly acknowledged boundaries of acceptable behaviour, and such activities can draw the attention of Australian intelligence agencies as potential foreign interference:

The challenges facing Australia from foreign interference are not limited to those sectors of Australian society traditionally associated with national security. The scale of hostile activity has increased across many sectors of society, including our universities, industry, and our democratic institutions. The Department is aware of instances of members of our culturally and linguistically diverse community being subjected to coercive behaviours by foreign governments in attempts to limit their freedom of expression and association.[20]

3.35As noted in Chapter 2, ASIO also acknowledged that seemingly legitimate foreign influence activities, including in diaspora communities, can be used to advance the interests of a foreign power to the detriment of Australia.[21]

3.36Mr Joske discussed the work of the UFWD in Chinese diaspora communities:

I think the right way to think about it is that the United Front Work Department's activities are really concerning in their own right. I think its key focus in Australia is meddling in diaspora communities essentially, so trying to build Chinese government networks and access to people, and the ability to influence people within ethnic Chinese communities, ethnic Uyghur communities, ethnic Tibetan communities and so on, and probably with some work also in Taiwanese and Hong Kong communities. This extends to trying to control and influence media that is consumed by those communities.[22]

3.37The Australia Tibet Council’s submission asserted that the creation of fake diaspora groups within the Australian Chinese community allowed the Chinese Communist Party to influence Australian politics by making misrepresentations to politicians and government processes.[23]

3.38The submission from the Falun Dafa Association raised similar concerns regarding the unregistered status of some diaspora community organisations and representatives, as well as allegations of false local council election communications.[24]

3.39The potential influence of foreign entities in managing communications and social media content in diaspora communities was also identified as an activity of concern not currently being captured by the FITS.[25]

3.40Ms Mansted said the potential for deliberate manipulation of foreign influence activities can be complicated and requires a flexible response:

So, there are ways for us to pierce that veil of opacity, if you will, in how we set the scheme up. That means we're going to have to move a little bit away from some of the strict evidentiary standards in the scheme. Because, of course, you cannot find evidence where it is deliberately concealed or just because it's different, because it's informal and unlikely to be caught.[26]

Definitions and scope

3.41Having identified the challenges facing the FITS in achieving its objective, the Committee received evidence about the effectiveness of the provisions defining both actors and activities in the FITS Act, and suggestions for reform of these.

3.42Prescribing a foreign influence scheme in statute requires that activities and actors be defined to allow for the administration of the scheme by government. However, as identified by Ms Mansted and others, the reliance on immovable legislative definitions can risk putting in place a legal framework that is unable to capture evolving actions by the people and entities intended to be regulated.

3.43While supporting amendments proposed by the Department (as discussed below), Ms Mansted urged caution in creating too much rigidity in refined definitions:

In the Attorney-General's Department submission I would support the ways in which they propose expanding the definitions in legislation to capture a broader set of activities and relationships, but I would also urge the committee as we think about that to resist the temptation to codify everything in legislation. I think it would be unfortunate if we put everything in legislation and don't leave space for the oversight body for FITS to issue guidance from time to time that is responsive to how governments adapt to FITS, responsive to changes in patterns of influence and in particular to intelligence coming from elsewhere within the government.[27]

3.44Other submitters provided mixed commentary on the impacts of definitions within the FITS Act.

3.45University bodies the Group of Eight and UNSW both identified definitions within the FITS Act as vague and confusing.[28] The University of Melbourne provided the following commentary on the potential application of definitions to research and educational undertakings:

…the wide scope and definitions of the FITS – such as the definitions of ‘foreign principals’, ‘acting on behalf of’, ‘registrable activities’ – do not have clear and evident application that enables universal application within the university context of teaching, learning and research activities. ‘Foreign government’, being one stated example of a foreign principal in the FITS Act, is broad enough to encapsulate not merely the national government of another country or the instrumentalities of that government, but also governments of parts of foreign countries, or their instrumentalities, together with foreign local or regional government bodies. The term ‘foreign government related entity’ as used in the definition of ‘foreign principal’, is also widely defined and vague in application.[29]

3.46Mr Tom Sear contended that the definitions contained within the FITS Act failed to capture the modern nature of political activity and the influence that the digital ecosystem has on the way political and government influence can be exercised.[30]

Defining foreign principals

3.47As outlined in Chapter 2, the concept of a foreign principal for the purposes of the FITS consists of four parties – foreign governments, foreign government related entities (FGRE), foreign political organisations, and foreign government related individuals (FGRI).[31]

3.48These parties are all defined individually within section 5 of the FITS Act, however the definitions of FGREs and FGRIs are more complex, containing elements of control (share capital, voting power, obligatory action or control relationships, or party membership etc).

3.49This core component of the FITS Act and its operation was acknowledged by the Department across its successive submissions and briefings to the Committee, and in its February 2023 submission the Department brought together the previous threads of complexity with these definitions, identifying:

…the complexity of these definitions means that it can be challenging for individuals to determine whether the entity they are acting on behalf of is a FGRE or FGRI, even after applying reasonable due diligence. This increases the administrative burden for registrants and likely results in fewer people proactively registering under the Scheme. It also complicates the department’s ability to establish whether particular entities are foreign principals within the meaning of the FITS Act, to provide prospective registrants with greater clarity, and to determine if the Secretary of the department should issue a transparency notice.[32]

3.50In responding to these definitional challenges, the Department identified two potential paths to reform the FITS to address the concerns – targeted improvements to the components of a foreign principal, or broadening the concept significantly.

3.51Speaking further to these suggested improvements, Deputy Secretary Simon Newnham told the Committee that:

Option 1 is adjustments to the definitions that exist on foreign government related entity company governance and management structures and also on the scope of paragraph (c) of that definition to legislate to embed political control or influence in entities, better reflecting the way that can occur, and thirdly extending the definition of a foreign government related individual to cover Australian citizens and permanent residents. That option 1 we do consider would reduce the workload required for some of that case work. Option 2 would go even further in terms of the expansion of the entities that would be covered but it would make that threshold, to our mind, easier to reach. But it would add, on the other end of it, additional burden in terms of administering a scheme that would attract actually quite a number more registrations.[33]

3.52The Department noted that in proposing reform of foreign principal definitions, it did not suggest removing coverage of entities and individuals established or based in Australia, arguing that continued capture of onshore subsidiaries and proxies was important to achieve the intent of the FITS.[34]

Option 1: more targeted definitions of foreign principals

3.53The suggested targeted improvements outlined by the Department were quite detailed, extending to five pages of detail in its submission,[35] but can be summarised as amending the definitions of FGRE and FGRI to capture a broader range of individuals and entities that are under the control or direction of a foreign principal, by:

• broadening the definition of FGRE to capture a wider range of company, governance and management structures that can enable a foreign principal to exercise control over an entity;
• expanding the scope of (paragraph (c) of) the definition of FGRE so that it better reflects the ways in which foreign governments may legislate to embed political control or influence in entities; and
• extending the definition of FGRI to cover Australian citizens and permanent residents, consistent with the approach that the Act currently takes to Australian companies and organisations which may be FGREs.[36]

Corporate structures

3.54The elements of state ownership and control of commercial entities required for a company to be considered a FGRE are objective measures related to its share capital or voting power (more than 15 per cent) or positions on a board of directors (at least 20 per cent).

3.55These elements can be hard to determine and the Department proposed the following potential amendments to allow for the capture of more complex arrangements:

1Amending the definition to allow it to capture chains of holding and subsidiary companies. The current FGRE definition does not allow the relationship between an entity and foreign principal to be made out through chains of subsidiaries. This is because the definition requires a FGRE to be related to a foreign government or foreign political organisation, but not related via another FGRE. This has made it difficult to apply the Act to complex corporate structures.

2Amending the FGRE definition to account for influence over shares or securities which goes beyond ownership or the holding of rights. As outlined above, subparagraphs (a)(i) and (ii) of the FGRE definition currently apply where a foreign principal ‘holds’ more than 15% of the issued share capital of or voting power in a company. This has made it challenging to apply the Act in circumstances where the foreign principal has the ability to control the relevant share capital indirectly through an intermediary or subsidiary. Amendments to account for influence over shares or securities based on the well-established principles in the Corporations Act 2001 for determining when a person has a ‘relevant interest’ in shares would address these challenges.

3Adding a new test in the FGRE definition to capture companies, as well as other entities covered by paragraphs (b) and (c) of the definition, where there is a level of overlap between the membership of the board, executive committee or senior leadership and a foreign principal’s board membership, executive committee membership or senior leadership. At present, subparagraph (a)(iii) of the definition of FGRE applies where a foreign principal is ‘in a position’ to appoint at least 20% of a company’s board of directors. The proposed amendment would apply to incorporated and unincorporated associations, and a wider range of companies, where there is a practice of appointing directors or executive committee members across related entities as a means of exercising control or influence, but which may not meet the existing legislative thresholds in the FGRE definition.

4Amendments to clarify that the Act applies where there is split ownership or control by foreign principals from the same foreign state. This would place beyond doubt that the control they collectively exercise over an entity can be considered together when attempting to satisfy the FGRE thresholds, consistent with the intent of the existing definition.[37]

Total or substantial control

3.56One way to define FGREs and FGRIs under the FITS Act is where a foreign principal has ‘total or substantial control’ over a company or individual.

3.57The Department submitted that the requirement of ‘total or substantial control’ has proved problematic and may be too high a bar:

It involves establishing that the foreign principal can exercise a considerable level of control, or control over the essential aspects of the entity or individual. The threshold is relatively straightforward to satisfy in the case of government-owned corporations, noting that such companies would generally also be covered by subparagraph (a)(i) to (iii) of the definition.

The threshold may, however, operate to exclude some companies or entities from being foreign principals for the purposes of the Act, notwithstanding a high degree of foreign government control over key aspects of their activities or operations. This is particularly likely to be the case in circumstances where a foreign government may exercise legal or practical control over key parts or aspects of an entity’s activities (such as its strategic objectives, critical investments, or public communications), without exercising control over the entity’s day-to-day commercial or operating activities.[38]

3.58The Department suggested an amendment to change this threshold to circumstances where a foreign government or foreign political organisation is in a position to exercise control over the whole of, or part of, the entity’s or individual’s activities. This would align with the current proposal being considered in the United Kingdom, as outlined in Chapter 2.[39]

Foreign political organisation membership

3.59The definition of FGRE includes an element to capture situations where a foreign government may legislate to embed party or political control within an entity. This element is satisfied (only) if the constitution or other governing documents of the entity require a director, officer or employee to be a member of the political organisation. The Department submitted that:

The purpose of this provision is to ensure that entities are captured by the Act in circumstances where:

• the law of the relevant jurisdiction confers significant control or influence over entities on the ruling political party rather than the government itself, which is a more common feature in jurisdictions where, compared to liberal democracies like Australia, there is less separation between the government and the ruling party, or
• the entity has been established by, or for the purposes of, a foreign political organisation (which would generally be reflected in the entity’s constitutive documents).

Based on practical experience, the department has found that the current test in paragraph (c) of the FGRE definition does not fully reflect the ways in which foreign governments may legislate to embed party control or influence in entities.[40]

3.60The Department suggested providing for more flexibility in the ways in which a foreign political organisation may exert control or influence, by amending this limb to apply when:

• the foreign principal is a foreign political organisation
• a branch of the foreign political organisation has been established in the entity, and
• the entity is required by law to assist or facilitate the activities of the branch of the foreign political organisation.[41]

Australian citizens and permanent residents as Foreign Government Related Individuals

3.61The current definition of an FGRI excludes Australian citizens and permanent residents. This is inconsistent with the current definition of an FGRE which can apply to an Australian company or organisation. The Department outlined that this has had two effects on the Scheme:

First, it has precluded the department from considering issuing transparency notices to indicate that an individual is a FGRI on the basis that they are under the control or direction of a foreign principal if they are an Australian citizen or permanent resident. Second, it has precluded the department from considering whether third parties undertaking registrable activities on behalf of such Australian individuals may have registration obligations.[42]

3.62The Department advised that amending the FGRI definition to cover Australians would:

…expand the scope of registration obligations under the Scheme, as people undertaking registrable activities on behalf of Australians citizens and permanent residents who are FGRIs would also be required to register. However, the existing exemptions to the requirement to register in Part 2, Division 4 of the FITS Act would continue to apply. Of note, section 29B of the FITS Act exempts individuals who make representations on behalf of family members or friends who are also foreign principals, if they are representing them in good faith in relation to a government administrative process or matters affecting their personal welfare.[43]

Option 2: Expanding the definition of foreign principal

3.63The other option identified by the Department, as well as other submitters, was to reverse the definition of a foreign principal back to that originally proposed in the Foreign Influence Transparency Scheme Bill 2017 (the FITS Bill), which cast the net wider to encompass all foreign entities and foreign individuals, not just those that are foreign government related. This would bring the FITS into alignment with the US FARA scheme and some elements of the proposed UK FIRS.

3.64As outlined briefly in Chapter 1, and in detail in the former Committee’s Advisory Report on the Foreign Influence Transparency Scheme Bill 2017, the original FITS Bill was directed towards this wide class of entities and individuals, but in line with the Committee’s recommendations on the Bill, the eventual Act was drawn back to the narrower FGRE and FGRI definitions.

3.65The then Attorney-General commented on the Government’s amendments to the Bill in this regard:

Limiting the range of foreign principals in respect of whom registration is required serves two important objectives. First, this amendment will ensure the scheme is more closely focussed on promoting transparency in relation to foreign government influence on Australian political and government processes…

Second, this amendment will assist to ensure that the regulatory burden imposed by the scheme is reasonable and proportionate, by reducing the circumstances in which registration will be required.[44]

3.66As identified above, the narrowing of these definitions has led to some complexity and limitation in administering the Scheme. The Department identified a number of potential advantages of re-casting the definitions more widely:

• ensure the Act is more easily able to capture government influence that is exercised through purportedly non-government foreign entities, particularly relating to jurisdictions where the distinction between the public and private sectors is less pronounced than in Australia
• provide a more comprehensive picture of all foreign influence on Australia’s federal government and political systems, which can occur through foreign governments, organisations, commercial enterprises and individual actors – it would reflect the public interest in knowing about any activities that are undertaken on behalf of any foreign entity that seek to influence Australian federal politics and policy, and
• provide prospective registrants with greater certainty about their obligations and promote a more consistent application of the Scheme by relying on concepts that are more easily understood and simpler to define, such as ‘foreign business’ and ‘foreign individual’.[45]
  67. The Department acknowledged that this option would expand the burden of registration obligations to more entities and individuals, but noted that this would still be confined to those seeking to exercise political or governmental influence, and that existing exemptions to registration would continue to apply.[46]
  68. When asked about whether amending the definition of a foreign principal may have a chilling effect on political activity, especially online, the Department stressed that the FITS, even if amended, would only be relevant to activity ‘on behalf of’ a foreign principal and was not intended to deter public engagement in political activity or expression, only to ensure the transparency of activity undertaken on behalf of a foreign principal.[47]
  69. Mr Turnbull did not support the option of widening the scope of the FITS in the manner of the US FARA Scheme, arguing this would not achieve better coverage:

I think it would be more likely to actually make it harder, because you'd have a greater universe of entities in respect of which there had to be reporting. You've got to recognise that every time parliament passes a law that imposes regulations and compliance on people, that's a cost to business. It's distracting business people and citizens from more useful applications of their time, and it does the same thing in the Public Service. The key thing is to focus on what is the main objective and make sure that is targeted.[48]

3.70Commercial Radio Australia also supported the retention of the current scope of foreign principal within the FITS Act, so as to prevent the potential capture of advertising placed by foreign owned companies or organisations such as charities.[49]

Obligations on former Cabinet Ministers and recent designated position holders

3.71As identified in Chapter 2, sections 22 and 23 of the current FITS Act oblige former Cabinet Ministers and recent designated position holders to register a broader range of activities, for their lifetime or 15 years after holding office, respectively.

3.72The Department highlighted the current rationale for these requirements:

…by virtue of having held such a senior position within the Australian Government, these persons bring significant influence and knowledge to bear in any activities undertaken on behalf of a foreign principal. As a result, it was considered to be in the public interest to know when such persons are acting on behalf of a foreign principal irrespective of the nature of the activity they are undertaking.[50]

3.73These obligations have led to media reporting regarding former Cabinet Ministers having to register innocuous activities. This was commented on by Mr Turnbull:

I rather wonder why time would be spent seeking Kevin Rudd to record his interviews with the BBC, which is, after all, a state owned broadcaster; perhaps time might be better spent actually finding out why a whole range of organisations are not reporting associations that are widely known to occur.[51]

3.74In response to this, the Department outlined two potential responses:

Refining and better targeting the obligations for this cohort would ensure that activity captured by the Scheme provides a clear transparency benefit for decision-makers and for the public.

One option would be to adjust the registration requirements for former Cabinet Ministers and recent designated positions holders in relation to communications activities, as these are the activities where issues have most commonly arisen. For example, there could be an exemption where the foreign principal’s involvement in the communications activity is apparent and the activity is not for the purpose of political or governmental influence in Australia.

Another option could be to reduce the timeframe for which broader obligations apply after a person leaves office. The original version of the FITS Bill applied broader obligations for shorter periods of time — 3 years for former Cabinet Ministers, Ministers and members of Parliament and 18 months for recent senior Commonwealth officers.[52]

Coverage of communications activity and social media

3.75Communications activity is one of the key activities requiring registration under the FITS, and is defined in subsections 13(1) & (2) of the FITS Act as:

13Communications activity

(1)A person undertakes communications activity if:

(a)the person communicates or distributes information or material to the public or a section of the public; or

(b)the person produces information or material for the purpose of the information or material being communicated or distributed to the public or a section of the public.

(2)For the purposes of subsection(1), a reference to information or material includes information or material in any form, including oral, visual, graphic, written, electronic, digital and pictorial forms.

3.76The breadth of this definition was acknowledged in the 2017 Bill’s Explanatory Memorandum:

The term has been defined broadly and is intended to capture the various ways in which information or materials can be communicated, including as technologies and practices change over time. This definition would include communicating information or material via newspapers, magazines, editorials, social media, fixed landlines, mobile telephones, books, and publications. The abovementioned examples are not intended to limit the operation or scope of this definition.[53]

3.77Registration of this type of activity to date has been very low, with only 35 new or renewed communications activity registrations reported in the FITS 2022-23 Annual report.[54]

3.78Some submitters highlighted the complexity of registration obligations in relation to social media, given the difficulty of determining the origin or identity of the originator of social media content.

3.79Mr Tom Sear expressed concerns regarding the use of the WeChat platform in communicating material to the Chinese diaspora, including Chinese Australians. Mr Sear outlined the complications with Chinese Communist Party (CCP) control over WeChat content and its potential to exert influence over Australian citizens and influence political and government processes, without a clear origin of content enabling registration under the FITS.[55]

3.80The Falun Dafa Association and Australia Tibet Council also mentioned social media influence as a strategy of Chinese control.[56]

3.81Social media influence on societal constructs, communication and norms was acknowledged by the Department of Home Affairs as an element of the current threat environment and potential foreign interference – ‘attempting to shape public discourse and undermine free and open public debate on matters of national significance in Australia through interference in and control over academic institutions and the media (including social media channels and the foreign language media)’.[57]

3.82While this difficulty was acknowledged, neither the Department nor any other submitters proposed reforms to better enable the capture of relevant communications activity, including social media influence, by the FITS.

Exemptions

3.83The FITS Act provides a range of exemptions under Part 2 Division 4, as outlined in Chapter 2.

3.84The Department recommended in its evidence that ‘the PJCIS consider whether the current exemptions in the FITS Act are clear, appropriate and fit for purpose’.[58]

3.85In its initial 2021 submission the Department provided some commentary on the current impact of exemptions on registrations. Its initial observation about the appropriateness of some exemptions was that:

Some exemptions are justified because the connection between the person and the foreign principal is already sufficiently transparent (such as of the exemption for diplomatic or consular activities, provided by section 26 of the FITS Act), or because the activities are within the established scope of the person’s functions (such as the exemption for industry representative bodies, provided by section 29A).[59]

3.86However, the Department identified two exemptions that may have unintended impacts:

• Section 29C – registered charities – two similar entities, providing similar services, can be inequitably covered, solely because one is registrable under the Australian Charities and Not-for-profits Commission Act 2012 and the other is not; and
• Section 29 – foreign government employees and commercial or business pursuits – as stated by the Department ‘the exemption was included to minimise the regulatory burden on persons or businesses acting for a foreign government related entity who, for example, supply goods and services to government. However, it may exempt activities such as lobbying the Australian Government for particular regulatory outcomes that would benefit a foreign enterprise or foreign state’.[60]
  87. In its 2023 supplementary submission the Department also identified the section 25A(c) exemption for statutory office holders as problematic, stating that without a nexus to activities related to their office or appointment, the exemption currently extends to activities undertaken in their personal capacity.[61]
  88. The potential for abuse of the current exemption under section 29C for people undertaking activities on behalf of a foreign principal when undertaken in pursuit of a charitable purpose was commented on by others, such as Mr Joske:

I think charities are really an important conduit for foreign interference potentially. There's a case study in my book of a charity in Shanghai that was actually established and is run and staffed by undercover officers of the Ministry of State Security's Shanghai bureau. These officers use this charity to receive funds from a Chinese Buddhist temple and also support this temple's engagement with Buddhist figures and monks around the world. There's clear evidence of Chinese intelligence services using charities as conduits for covert and clandestine operations…I think it would be definitely important to consider that charities are a known conduit for intelligence operations and influence operations by the Chinese government.[62]

3.89When questioned regarding the current exemption for legal advice and representation under section 25, Mr Joske agreed that this may also provide a loophole, citing activities undertaken by lawyer and former senator Mr Nick Xenophon on behalf of Huawei Technologies:

Especially given the lack of real independence in society and the private sector in China, we have to be really aware of how all these things that aren't necessarily directly governmental but nominally private companies, such as Huawei, and nominally private charities such as this one in Shanghai can actually be operating as arms of the state or at least instructed to carry out activities on behalf of the state. If someone is doing that as a lawyer, I think that should still require them to register under the Foreign Influence Transparency Scheme.[63]

3.90The Australian Catholic Bishops Conference expressed its appreciation for the section 27 exemption in the FITS Act for religious activity undertaken in good faith on behalf of a foreign principal. This exemption allows the Catholic Church in Australia to undertake its activities under authority conferred by Church canon law dictated by the Vatican, without the requirement to register.[64]

3.91Commercial Radio Australia also advocated for the continuation of the effective exemption for broadcasters under subsection 13(3) of the FITS Act, allowing broadcasting of material produced by a third party without the requirement to register that broadcast as a communications activity.[65]

3.92The Committee also received classified evidence about the current impact of some exemptions on the requirement to register under the FITS. This evidence is unable to be discussed in this report, but contributed to the Committee’s views and recommendations in relation to exemptions, as expressed in Chapter 4.

Country agnosticism

3.93As identified throughout this report, the current FITS is a deliberate statutory construct in which all foreign principals are treated equally, making the scheme country agnostic.

3.94A number of submitters commented on this country agnostic approach, suggesting that the Department must give equal weight to all potential foreign influence activities, from all countries, regardless of that country’s known risk profile and acknowledged potential for clandestine conduct.

3.95ASPI submitted, regarding the country-agnostic approach, that:

To bring a democratic government’s influence efforts out of the shadows, only minimal regulation is needed, but the same can’t be said of authoritarian jurisdictions where the tentacles of official power extend further. That contrast between foreign political systems is obvious, yet it’s the very thing that country agnosticism insists we ignore.[66]

3.96This difference was acknowledged by Ms Mansted who identified it as an area in which FITS administration should be refocused:

I think it just needs to recognise that influence in authoritarian countries looks different, and it's more secret and it's more complex often. That doesn't mean that we need to have a list of authoritarian countries, even. It doesn't even mean that we need to list out what we think is an authoritarian regime or an illiberal regime. It means that we need to have guidance that says, for example, if a company that is not a foreign government related entity on the current test has embedded within it representatives of the ruling party of a government, which is a common feature in authoritarian regimes, then it is automatically treated as a foreign entity that needs to go on the list. Or if there are members of the ruling party who sit on the board of a company, that should be captured. I don't think we need to go through the extra-difficult work of conceptualising what's authoritarian, what's illiberal. We just need to recognise that different countries go about their political system differently. Some are more closed. Some are more secretive. Some have ruling parties as opposed to elected officials. We need to make sure that is captured in how the scheme is enforced and administered.[67]

3.97Ms Mansted ultimately favoured retaining the country agnostic approach:

In my view, the fact that FITS is country agnostic as a general proposition is actually a good thing, because it's not a naughty list or a name-and-shame list, it is a way to gain transparency across all acts of foreign influence in our country. But where it falls short is the legal definitions and evidentiary thresholds don't take into account that influence that emanates from authoritarian governments looks different from influence that we see within our own democracy and that comes from peer democracies around the world.[68]

3.98Mr Turnbull acknowledged that there were strong arguments in favour of departing from the country agnostic approach,[69] but noted there would also be complexities.[70] He considered that ‘on balance’ it would be better to retain the current approach but to simplify compliance and improve enforcement in relation to authoritarian countries.[71]

3.99Mr Kefford from the Department of Home Affairs recognised that the country-agnostic approach had both benefits and risks:

The benefit of the country-agnostic approach is that it allows us to say, in effect, we don't like this behaviour, whether it's interference or influence that isn't properly registered and declared, we don't really care where it comes from, we don't like it. The question then becomes, does that mean that we're necessarily directing efforts to the areas of greatest risk? I think that's one concern. But note in that context that the UK in their new legislation has in effect established a two-track process, where there are both general obligations and the possibility or the ability for the government to declare particular countries as being of concern and apply a higher reporting threshold.

The danger of country agnosticism is that it's not a shorthand for just one country. I think it gets used that way sometimes. But I think, no matter where we're having a conversation, of course what we're ultimately seeking to do is protect and safeguard Australia and Australia's interests. So there will be some areas and activities from some countries that are worthy of greater scrutiny, even if that's within a country-agnostic approach, in the sense that we don't really care where the interference comes from, we don't like it.[72]

3.100The most direct evidence received by the Committee about specific countries of concern related to activities of the Chinese state and its entities.

United Front Work Department

3.101Mr Turnbull made the following observation regarding the lack of UFWD entities on the FITS register:

It is noteworthy that there is apparently, according to the Transparency Register, no organisation in Australia that has any association with the United Front Work Department of the Communist Party of China. I would love to think that was true, but regrettably I can say absolutely that it is not true.[73]

3.102When questioned further on the operation of the FITS and the application of definitions, Mr Turnbull reiterated the UFWD as an example of a gap in the operation of the FITS to date:

The United Front Work Department is an agency of the Chinese Communist Party. It is acknowledged. It's not a secret organisation. Xi Jinping has described it as the magic weapon. That's very well documented and yet, apparently, nobody is declaring any connection with it in Australia. That beggars belief. It's clearly caught by the legislation, so that is an enforcement problem.[74]

3.103This position was reiterated by ASPI in its submission and accompanying paper.[75]

3.104Mr Alex Joske outlined for the Committee at the public hearing how the work of the UFWD can be difficult to discretely identify:

…seemingly legitimate exchanges through cultural ventures, through United Front organisations, through media activities, through business, integrated with the work of the Ministry of State Security and other Chinese intelligence agencies. The way the Chinese Communist Party engages internationally is deliberately set up to make that line almost impossible to draw. That will be I think one of the real challenges for the government in understanding how to tackle foreign interference. There are agencies and many probably outstanding officers in the government who are experienced with countering espionage, but influence I think is something that governments are still struggling with and trying to get their heads around. It's this integration of overt and covert work, of using seemingly legitimate activities to hide stuff that is clearly unacceptable, if not illegal, that really creates problems here.[76]

3.105Further to the above evidence, Mr Joske identified other examples of Chinese Communist Party influence:

…you've had organisations like the Australian Council for the Promotion of Peaceful Reunification of China that has very clearly in the past operated at the direction of the United Front Work Department or its officials. Once more light was shone on that organisation and media reporting showed how individuals associated with that were engaging in foreign influence work in Australia, such as the former president of that group, Xiangmo Huang, many of the individuals there really shifted to operating through another organisation called the Australia-China Economics, Trade and Culture Association, which is still very active and essentially has much of the same membership as this organisation that has previously been exposed. This is an evolving problem that requires a proactive response from the government.[77]

Confucius Institutes

3.106The example of the work of Confucius Institutes was also identified in evidence, both as a country-specific concern and also as demonstrating the unclear application of the FITS to perceived control and direction from a foreign principal on the work of an Australian-based entity.

3.107The issuing of a provisional transparency notice to the Confucius Institute at the University of Sydney, as outlined in Chapter 2, indicates the potential for such institutions to be registered. The governance and behavioural change that led to the revocation of that notice may indicate a retraction of control, or a further manipulation of arrangements to avoid registration, as acknowledged by Ms Mansted:

Firstly, if organisations change their behaviour to not be on FITS, that could be a good thing, because maybe it means that they are in fact operating at arm's length. However, it may very well be the case that organisations adapt their governance structure in order to avoid FITS, because they intend to engage in influence. We should keep our mind open to both possibilities.[78]

3.108The University of Melbourne and UNSW both identified governance arrangements and considerations of the Confucius Institutes operating within their institutions,[79] further indicating the potential coverage of these institutes under the FITS, but with neither currently being registered.

3.109The ASPI submission drew specific attention to Confucius Institutes in Australia and used the example of the provisional transparency notice process for the Sydney University institute as an example of how the current FITS can be subverted, stating:

CIs remain an essential element of CCP united front work. Our assessment is that their operations in Australia should be of concern to the Australian government and deserving of closer scrutiny under the FITS Act.[80]

Would a country-specific approach be better?

3.110The statistics of activity under the FITS to date show that ‘…the vast majority of registrations do cover entities linked with China. In terms of the top jurisdictions that we are seeing in the registrations under the FITS, China is quite clearly No. 1 with 130 registered activities currently’.[81]

3.111This was evidenced in the 2022-23 Annual Report for the operation of the FITS, as visualised in Figure 3.1 below.

Source: Attorney-General’s Department, Annual Report on the Operation of the Foreign Influence Transparency Scheme: 1 July 2022 to 30 June 2023, p. 6.

3.112Suggestions were made to this review to allow the Scheme to focus on the countries of most concern.

3.113ASPI proposed that:

…the enforcement posture should not be country agnostic. It should focus on the influence activities of the countries that pose the greatest national security risk to Australia’s democracy. For example, one focus should be an organisation explicitly referenced by the former Prime Minister when introducing the legislation — the CCP.[82]

3.114Mr Turnbull offered the following alternative suggestion:

…I would recommend that, rather than having a list of countries of concern, which I think is what the British are looking at, you have a list of countries about which we are not concerned, if you like. You'd start off with the Five Eyes. We are really not troubled by people representing or working with or associated with our closest allies. It gets back to Kevin's BBC example. The object is to make it easy to comply with, and to make sure the key object is pursued and enforced. Again, if you were to recommend going to a country-specific approach, I would understand that. But you will end up with some grey areas. It's obvious you would list People's Republic of China, Russia, Iran and North Korea. They would be the top four. That's easy. Then, of course, who else is in there? That's where it can get a bit contentious.[83]

3.115On the other hand, Ms Mansted recommended that FITS remain ‘country agnostic but context aware’, suggesting that the focus on particular countries as a risk in themselves is not the best way forward:

Importantly, no activity should be deemed risky or problematic merely because of its source country. However, since influence is a relational concept, the level of risk will depend on a range of contextual factors, including:

• Australia’s bilateral relations with the influencing country
• the influencing country’s broader foreign policy and strategic objectives, and
• how the influencing country responds to and uses influence in its own political system.

Additionally, there is a need to generate public awareness about the way in which rule-of-law systems are most vulnerable to grey zone foreign influence and most constrained from taking countermeasures. Empowering domestic actors to identify and understand whether foreign influence activity is coming from a country with a robust rule-of-law can therefore help them to identify whether that influence is problematic or risky. So too can empowering actors to understand if influence comes with a degree of reciprocity, and whether they are engaging in an open two-way relationship. Depending on the sector in question (e.g. parliament, the university sector, a particular industry) it may be necessary to understand the corresponding sector in the foreign country – including its structure and relationship with government – to better appreciate and assess foreign influence risk. This is particularly important given the way in which grey zone influence campaigns are increasingly integrated and draw on actors outside of government to achieve their objectives.[84]

3.116How adopting a country-focused approach might affect the administration of the FITS was not covered in discussions with or evidence from the Government, other than to note that potential foreign affairs implications would need to be considered.

Compliance and enforcement

3.117As discussed in Chapter 2, from a pure metrics basis, engagement with the FITS has been low over the four years of its operation, with low numbers of registrations and very little compliance or enforcement action.

3.118Despite manifestly low cooperation with the FITS from entities and countries of greatest concern, compliance and enforcement activity has been very weak. Only two provisional transparency notices and 24 information gathering notices have been issued since the establishment of the Scheme in 2018.

3.119Ms Mansted characterised this as a product of the compliance-based nature of the FITS and its obligations:

…it is a piece of legislation that creates compliance requirements, and like any piece of legislation with a compliance requirement organisations and entities will take a compliance approach. It's a bit like the old saying that anyone who's doing tax will try to minimise their tax, even if they don't try to tax avoid. When it comes to organisations being on the register, I think a similar approach is being taken. If you can through legalistic approaches avoid being registered, organisations do. I think that is where we need to make sure that FITS is updated, to make it less of a check-the-box or a legalistic approach and one that is more geared towards getting organisations on there.[85]

3.120Ms Mansted argued that to be effective, the FITS needs to be more than a ‘compliance checkbox mechanism’,[86] also suggesting that high registration was not necessarily an indicator of success, citing the operation of the Foreign Agents Registration Act 1938 (FARA) in the United States of America (US):

The US has had a regime like ours for a lot longer. I would say in general it falls into some of the pitfalls that we have. It captures too much for it to be totally usable, meaningful and contextualised and it doesn't always push that information out across society in a way that it should, so that we can inform decision-making, we can inform behaviour across our democracy rather than just collecting information in another compliance exercise that may not actually build our democratic resilience.[87]

3.121The Australian Professional Government Relations Association (APGRA) outlined broad support for the FITS in its submission, noting that compliance with FITS requirements amongst its members is high, but that broader business community knowledge of FITS obligations is limited.[88]

The burden of compliance

3.122The compliance burden was raised as an issue principally by the higher-education sector, with Professor George Williams identifying compliance and administration duties:

We're looking back now with hindsight at FITS, which was passed in a different era, pre this arrangement. I would put that and also the foreign arrangements legislation in the basket of high compliance, little impact. To be frank, there's a lot of work at our end but it's actually not driving productive behaviour. That's the problem; we want to use our resources well to actually drive behaviour that benefits the national interest, supports our academics and mitigates the risk. When it comes to FITS, we're actually at a loss sometimes to work out what it's meant to achieve in the sector.[89]

3.123Professor Williams also identified the cost of legal advice regarding FITS application to individual circumstances:

…where there are compliance costs for FITS it's typically for needing legal advice to decipher the complexity of the legislation only to find that it doesn't apply. That's usually how it works. We haven't registered anything, because we keep getting the advice consistently it's not covered by the legislation. That can be an expensive process sometimes, getting that legal advice, and hence to our end we just wonder what the point is.[90]

3.124Government relations practitioners have a high compliance burden and APGRA noted that its practitioners comply where necessary but that the Scheme may cause administrative burden with registration timeframes and potential commercial sensitivities related to reporting of activities.[91]

Compliance vs change

3.125The Department argued that registration activity under the FITS is not the only indicator of impact. Behavioural change is also an indicator of compliance, and the Department submitted that behavioural change had been observed in individuals and organisations since the introduction of the FITS:

Some organisations and individuals have chosen to tailor their activities and arrangements to the Scheme’s obligations, in order to make transparent the extent of their relationship with a foreign principal. Others have chosen to cease engaging in certain activities that would otherwise be subject to registration. Some entities have integrated consideration of foreign influence risks into their institutional policies and practices, to ensure that instances of foreign influence are appropriately registered with the department.[92]

3.126The Department identified voluntary behavioural or corporate responses, such as that by the University of Queensland (UQ) to require staff to assess activities as potentially registrable under the FITS.[93] UQ has created a public statement and assessment process for staff to determine whether activities being undertaken might need to be registered under the FITS.[94] Some other submitters also outlined their voluntary responses to the FITS.

3.127Ms Mansted believed that increasing guidance under the FITS would do much to elicit behaviour change from both users and targets of the Scheme:

…there's possibly scope below that for more guidance, more advisories put out from the Attorney-General's department, like our corporate regulators do, for example—class rulings, guidance documents—to help clarify how FITS applies and to do some of that work we were talking about before, to make sure that it is adjusted from time to time to how those countries influencing Australia change their practices and behaviours.[95]

Enforcement

3.128As noted in Chapter 2, enforcement measures under the Act to date have also been very limited, with only two transparency notices issued and no prosecutions referred.

3.129Mr Alex Joske highlighted the importance and difficulty of taking enforcement action in relation to ‘malign’ foreign influence:

Now there's this challenge of working out how to move it into an enforcement phase, how to use some of the more coercive powers essentially under the Act to actually shine light on this grey zone, shine light on foreign interference, and turn it into something that is no longer covert.[96]

3.130Ms Mansted saw the current FITS enforcement regime as too blunt an instrument:

That's the problem with FITS at the moment; you really have a binary choice to do nothing or go to the level of a criminal prosecution, which raises a whole bunch of issues around meeting standards of evidence and so forth and resources.[97]

Graduated enforcement

3.131In its initial 2021 submission the Department offered a brief suggestion for new enforcement options to augment the current criminal offences, to bolster compliance without requiring the serious conduct and high evidentiary standards of a criminal prosecution:

Some options to strengthen enforcement could include a power for the Secretary to name entities that the department considers have registration obligations but who refuse to register, or a power to issue infringement notices.[98]

3.132This position was revised in 2023 in relation to the suggestion for infringement notices:

One option was to explore a power to issue infringement notices for cases of minor infringements rather than relying on prosecution of criminal offences in all cases. The department has further considered this option in the intervening period and no longer recommends pursuing it. Infringement notice regimes should generally only apply to strict or absolute liability offences involving relatively minor contraventions of the law, where an enforcement officer can easily make an assessment of guilt or innocence. As such, an infringement notice regime may not be suitable for most of the offences in the FITS Act.[99]

3.133Another area identified for potential enforcement improvement was a power to compel registration, through a power for the Secretary to register an entity or individual where they had not registered themselves, and/or a power for the Secretary to identify an entity or individual on the Register as being non-compliant with their obligations under the Act.[100]

3.134In addressing the proposed enforcement improvements put forward by the Department, Mr Newnham stated that:

We do support graduated compliance mechanisms to be added to the existing framework. In particular, we would support, which doesn't currently exist, the ability for the secretary of the Attorney-General's Department to be able to register individual entities and individuals on the FITS register. Moreover, we would also offer the committee the option of registration of entities where they've been identified as being non-compliant with their obligations under the act. At present there is not that form of what I would describe as somewhere in the spectrum of action that can be taken underneath the scheme. Of course there are criminal offences in rare and serious circumstances under the act, but there is there is nothing short of that, apart from the existing section 45 and 46 information notices, and transparency notices as well.[101]

Power to register a person when liable to register but have failed to do so

3.135The first option put forward by the Department was outlined as follows:

The process for exercising this power could include a requirement to notify the person that they are liable to register and inviting them to make submissions about their registration obligations. If, after considering any submissions, the Secretary remains satisfied that the person is required to register, the Secretary could then register the person. This would ensure procedural fairness and would be consistent with the process for issuing transparency notices under the Act.

If a power to register a person was included, the department would recommend retaining the existing criminal offences for failure to register as an alternative or additional option where a strong public deterrence approach is required or the conduct involved justifies criminal prosecution. Retaining criminal offences as an additional option may also be required to address circumstances where the Secretary registered a person and the person then failed to subsequently maintain their registration as required under the Act.

This option would bridge the gap that currently exists between circumstances where a person knowingly or recklessly fails to register, and circumstances where the Secretary believes a person is liable to register but the person disagrees or is ignorant of their requirement to register.[102]

Power to publicly list non-compliant persons on the FITS register

3.136The second option put forward was outlined briefly as follows:

…allowing the Secretary to include information on the public registration [sic] indicating that the person did not register voluntarily, or has otherwise not complied with the Act, so as to publicly identify non-compliance and incentivise proactive registration. This would provide graduated enforcement options by enabling the department to take action without escalating directly to criminal prosecution.

A similar power to publicly identify non-compliance exists in Part 4 of the Lobbying of Government Officials Act 2011 (NSW). Section 12 of that Act requires the NSW Electoral Commission to maintain a publicly accessible ‘Lobbyists Watch List’ containing the names and other identifying details of any third-party or other lobbyist who contravene that Act or the NSW Lobbyists Code of Conduct.[103]

3.137This would allow for a gradated level of identification, short of actual registration, and could supplement the current transparency notices under Part 1 Division 3 of the Act.

Transparency notice framework

3.138As outlined in Chapter 2, the Secretary can issue transparency notices (provisional then potentially final) under Part 1 Division 3 of the FITS Act.

3.139The provisional transparency notice issued to the Confucius Institute at the University of Sydney in 2021, and the transparency notice issued regarding the Australian Council for the Promotion of Peaceful Reunification of China (ACPPRC) Incorporated issued in January 2023, are the only exercise of these powers since the FITS commenced.

3.140The Department identified in its 2021 submission the challenges it can face in gathering the relevant information to issue transparency notices, as well as information gathering notices (under Part 4 Division 3):

• In some jurisdictions, basic information such as company ownership (even for state owned enterprises) is not publicly available. Where this information is not made public in respect of potential foreign principals located overseas, the department has no recourse to obtain it, as the Scheme’s information gathering powers do not extend outside Australia.
• Companies may introduce trusts or holding companies, where the person or entity controlling these structures is unclear.
• Minutes of Board meetings and detailed governance documents (such as contracts establishing operational procedures) are rarely available through open source research, if at all. These documents are often the only way to conclusive[ly] determine whether a person meets certain elements of the foreign principal definitions. Although governance documents, where they exist, may be obtained via information gathering notices, issuing an information gathering notice often requires certain thresholds to be met and may not be effective in circumstances where entities and information are located overseas.[104]
  141. The Department identified potential amendments and improvements to the transparency notice framework in its 2023 submission, aimed at improving the level of transparency provided by such notices and the functionality of them within the overall FITS.
  142. The first suggested amendment would be to amend section 14B of the FITS Act to authorise the Secretary to include additional information in a notice above what is currently required. The Department’s justification for such a change was:

Although the Secretary is currently required to include details necessary to identify the person who is the subject of the notice, the Act does not require transparency notices to identify the related foreign principal and associated foreign jurisdiction. This does not prevent the Secretary from including this additional information in a notice, and the Secretary has specified the relevant foreign jurisdiction in notices issued to date.

The inclusion of this additional information would increase the level of transparency that notices provide by ensuring the public and government decision makers are aware of the source of the foreign control, in particular when engaging with the entity or individual. It would also be consistent with the type of information that registrants are required to provide as part of their registration.

The department considers that it would be preferable for such a requirement to be set out on the face of the Act, to ensure such information is uniformly included in transparency notices.[105]

3.143The Department also suggested potential amendment to section 14C to extend and provide flexibility to the timeframes for issuing, response and consideration of transparency notice processes. This was explained by the Department:

…the subject of a notice currently has 14 days to make a submission to the Secretary about the notice, and the notice becomes final after 28 days of the date of invitation unless the Secretary decides to revoke it. In practice, this means the subject of the notice and the Secretary only have 14 days respectively to draft or consider submissions and seek advice if required. These timeframes are counted in calendar days and are only extended to the next business day if the final day of the timeframe falls on a weekend or public holiday.

This timeframe could create a potential burden on the recipient of a notice, depending on factors such as their level of prior engagement with the department, the language spoken by the recipient, their resources and the complexity of the case. While timely finalisation of notices is consistent with the transparency objectives of the Scheme, it is also important that entities and individuals have sufficient time to provide complete and accurate information. One option the PJCIS may wish to consider, is amendments to allow the Secretary to specify an appropriate response timeframe in the invitation to make submissions, being no less than 10 business days, and an option to extend that timeframe where appropriate.

The fixed timeframe may also prove challenging for the department depending on the volume and complexity of submissions provided by the recipient, whether any documents require translation and whether submissions raise novel legal issues on which advice is required. As such, the department also recommends provisional transparency notices only become final 20 business days after the date submissions are due.[106]

3.144Thirdly, the Department suggested consideration of amendment to section 14D and subsection 43(2A) as to whether only a final transparency notice should be published on the FITS website, to allow for standard procedural fairness processes to apply to publication of a notice. Currently the provisional transparency notice is required to be published as soon as it is issued and in force, even though subject of the notice then has the opportunity to make submissions that may ultimately lead to a notice being revoked rather than made final[107] – as happened with the Sydney University Confucius Institute.

3.145If these suggested amendments were to be made, then a transparency notice would only be published once any submissions had been considered or applicable timeframes elapsed, allowing the potentially affected party to be heard, if they choose to do so, before any decision was made final and public.

Potential duplication with other regulation

3.146While the FITS is a unique regulatory framework within Australian statute, some submitters argued that it created unnecessary uncertainty and potential duplication with other statutory requirements related to arrangements with foreign entities.

3.147The higher education sector submitters were the primary identifiers of potential confusion and duplication, especially in relation to the Foreign Arrangements Scheme (FAS) administered by the Department of Foreign Affairs and Trade (DFAT); and the University Foreign Interference Taskforce (UFIT).

3.148While the majority of the university sector submissions and witnesses recognised the need for and value derived from the FITS, its application to the higher education sector was questioned and even contested.

3.149Professor George Williams, Deputy Vice-Chancellor, University of New South Wales, summarised that institution’s views into three main points:

The first is it's just not clear legislation. It lacks clarity in key areas. It's a maze of vague definitions and language that makes it very difficult to apply. That gets in the way of people understanding their obligations, let alone actually complying with them appropriately. The second thing that is a problem is that it's badly calibrated to actually achieve the objectives in this area. In one sense, it covers too much, but it also covers too little. Too much in that you are looking for the registration of issues that simply pose no known security risks to Australia with countries that don't raise issues that would concern us and so the registration of those activities doesn't serve any compelling or necessary public interest criterion.

Secondly, when you look at the items that have been registered it's not clear we're actually capturing the higher matters of foreign influence that we might expect to be covered, and so that over-inclusion and under-inclusion suggests a scheme that's not well drafted to achieve its goals. The third point is that we do have a very positive example, as this committee identified in its first recommendation on its report on the higher education sector. That is the UFIT process. It talks there about active transparency and it's not clear how this fits with that process. It should be something that's well integrated with other schemes. It should be part of a larger body of work. As the university sector we'd like to know clearly what we need to do to support the national interest. Again, to be frank, it's just not clear where this scheme fits and what it's trying to achieve when it comes to our work.[108]

3.150Evidence provided to the review even questioned whether the FITS was intended to apply to universities. As identified by Professor Williams:

…when it comes to FITS we've mostly spent our time on legal advice to better understand where it applies, and it tends to not apply.[109]

3.151Professor Michael Wesley, Deputy Vice-Chancellor (International), The University of Melbourne, emphasised the regulatory cost of compliance with the FITS and other regulation:

We've done a quick audit. A lot of these are sunk costs. The University of Melbourne has estimated that we have, for the foreign arrangements scheme, the cost in compliance from all sources of well over a million dollars to put those systems in place. We are confident that those systems are robust. The cost to us for implementing a foreign engagements disclosure platform was also over a million dollars. That is now in place and we're very confident of the robustness of that.[110]

3.152This compliance burden was also emphasised by Dr John Byron, Principal Policy Adviser, Queensland University of Technology:

…one of the risks that we perceive from the national interest point of view is the proliferation of requirements being imposed on universities seemingly without visibility of each other. I'm thinking about foreign arrangements and critical technologies piling on top of FITS, and seemingly unaware of UFIT. So we have this arrangement of a whole lot of different compliance regimes, often being operated by the same individuals inside universities that become obsessed with ticking the boxes and ensuring that we're on the right side of the thin blue line, instead of actually dealing with underlying risk.

In my view, the addition of all of these additional regimes without visibility of each other is increasing underlying actual risk. We are going backwards by trying to do all of these additional things.[111]

3.153Ms Vicki Thomson, Chief Executive, The Group of Eight, identified that the compliance and regulatory framework on universities has evolved since the introduction of the FITS:

This piece of legislation was introduced and implemented before UFIT—to your question about the University Foreign Interference Taskforce. It was an early piece of the puzzle, if you like, but I think we have a far more sophisticated discussion now underway as a result of the University Foreign Interference Taskforce. And not to put all the eggs in the UFIT basket; of course, there are a range of other compliance issues that we need to be dealing with. But I think it's a really good opportunity to use that almost like a sounding board and a testing board.[112]

3.154Professor Wesley appealed for a review of the entire landscape of national security legislation affecting universities:

…it's terrific to see the review of this particular Act, but what I would urge the committee to do is review the whole range of foreign influence, foreign interference regulations and legislation at the same time. As someone who has led my university's response to each of these, it is not clear to me that we have a coherent and mutually supporting regime of instruments for dealing with foreign transparency and foreign interference issues. From where I stand, I think a good review would see areas of overlap, areas of redundancy, areas of ineffectiveness and, quite frankly, gaps. I'm not sure that when these pieces of legislation and regulation were being put together there was much thought given to how they articulated with each other, and I think they are ripe for a comprehensive review in the coming months and years.[113]

3.155During the public hearing there was mixed messaging from university witnesses regarding their engagement with relevant Departments regarding the FITS and the FAS, as well as cross-agency communication and cooperation through the UFIT process.[114]

3.156These observations were addressed by witnesses from the Department later in the hearing:

It's obviously of concern if a stakeholder is concerned about the nature of the scheme and our engagement with them. I would offer that we are standard attendees at UFIT, the foreign interference task force for universities, which is a bespoke model that in our view works very well. There's very good engagement with those universities. We attend that and would be very open to concerns being raised there.

It wouldn't necessarily be a feature of the scheme that we'd go to any stakeholder and say there's compliance, but what we do is offer as much clarity and assistance as we can to anyone that would contact us, raise any concerns or ask questions about the nature of their activities and how they might apply under the scheme. That's at the heart of what we're seeking to do as the administrator.

There are multiple frameworks in place. They were established at different times and they covered different things. I understand that the university sector, particularly, is concerned about the wide range of the number of those frameworks and how much they apply to them. I would just offer, for the committee's benefit, that the FITS Act has actually had limited application to universities. To date, there have only been approximately four universities with related registering since the scheme commenced.[115]

3.157The Department of Home Affairs identified the use of the UFIT process to seek to minimise duplication for the higher education sector:

The approach we have taken at the UFIT table is that if from multiple schemes there are opportunities for us to align reporting to alleviate a reporting burden, whether that's FITS or the foreign arrangements or other things, that's a live conversation. If matters have been covered for the government, what we're trying to do with our colleagues in Foreign Affairs and elsewhere is to say, can we streamline the reporting and the discussion so that universities don't have to report multiple times, rather than saying, necessarily, to the point of your question, should they be excluded from the operation of a particular scheme.[116]

Other suggested amendments

3.158The Department made some further suggestions for potential technical and minor amendments to other elements of the FITS Act to improve the functionality and administration of the FITS:

• Amend the definition of ‘on behalf of’ in section 11 of the FITS Act – to clarify that it only captures circumstances where the person undertaking the activities knew or expected the activities would benefit the foreign principal, either directly or indirectly. This could address High Court of Australia concerns that the current definition extends beyond the common law concept of agency.
• Amend sections 16, 39, 45 and 46 of the FITS Act regarding information requirements – currently the Act does not explicitly state that the power of the Secretary to request information is limited to the extent of information required for administration of the Act, and not open to misinterpretation and wider use.
• Amend Division 3 of Part 4 to clarify that the Secretary cannot issue information gathering notices for anything other than the administration of the FITS.
• Amend section 50 to preclude information gathered from the public domain as ‘scheme information’ for reporting purposes.
• Amend section 69 to revise annual reporting requirements related to documents received in response to information gathering notices, and in relation to disclosures of information for the purposes of administration of the scheme.[117]

Government administration of the FITS

3.159In a number of submissions and in evidence to the Committee’s public hearing, questions were raised regarding the current and ongoing suitability of the administration of the FITS within the Attorney-General’s Department.

3.160Ms Mansted suggested that departmental administration of the FITS could be replaced by the creation of an independent sovereignty commissioner:

…what I think is really important about this scheme is it is something that is public facing and engaged with. Frankly, that is not happening at the moment. There is no-one who is really engaging with FITS. That might be because it's sitting inside a relatively cloistered part of the government…the idea of a sovereignty commissioner, for instance, an independent post who is empowered and trusted to speak with the Australian public about trends in foreign influence. Remembering that the whole idea of the foreign influence scheme is not just to catch bad behaviour we don't like but also to baseline and explain every year what the shape, size and trends of foreign influence is. Because often that foreign influence is a good thing. I think there is merit in continuing to consider whether there is an independent voice on this.[118]

3.161If an independent administrator or regulator is not the preferred option, then Ms Mansted stated her support for better collaboration, coordination of a single point of contact for all issues on CFI, critical infrastructure and other complex regulated national security legislation:

I also think, even if the committee decides to recommend leaving it within the Attorney-General's department, there is a need for much more intelligence sharing and interdepartmental collaboration between Home Affairs and the Attorney General's Department.

…

Perhaps there is merit in having a central coordinating point in Home Affairs that can speak to critical infrastructure providers, institutions of our democracy at large along a range of these risks to provide an advisory on latest risk and also advice on how they should comply with what is a growing number of security related bits of legislation

…

The example I would draw within our own system is the way in which, for the pointy end of influence—foreign interference—we have now a much more public-facing role for the Director-General of ASIO, who every year does his annual report and address and speaks about examples of foreign interference. In my mind, we need an equivalent that speaks about foreign influence—much of which is welcome but some of which is unwelcome—and can do that in an independent and trusted way, not in a politicised way, and get that cut-through and outreach to communities and industry across Australia.[119]

3.162ASPI recommended directly that FITS administration should sit within the Home Affairs portfolio:

Further, the FITS Act should be enforced by the CFI taskforce within the Home Affairs portfolio. The enforcement of an important pillar of Australia’s CFI strategy should be entrusted to the Department that otherwise has oversight of Australia’s domestic national security landscape.[120]

3.163Mr Anthony Coles, First Assistant Secretary, Counter Foreign Interference, Coordination Centre, and Deputy Counter Foreign Interference Coordinator, Department of Home Affairs, outlined for the Committee the coordination and governance arrangements between the Department and Home Affairs regarding the FITS and the overall CFI framework:

We have a pretty robust governance structure in place now between Commonwealth agencies on the CFI. Mr Kefford chairs the CFI executive board. AGD is part of that. AGD is also part of a separate but related oversight board that sits above the Counter Foreign Interference Task Force that is led out of ASIO but also includes the AFP, which is the enforcement aspect… those governance structures that have evolved over the last year or so give AGD the ability to plug into various agencies of government where they need to to pull out the information that they need to support their regime.[121]

Administration by the Department

3.164Mr Newnham identified the framework that staff of the Attorney-General’s Department work under in administering the FITS:

…we are absolutely operating, as you would expect us to, inside the parameters of a piece of federal legislation passed by parliament. So we take very seriously the evidentiary thresholds that exist there and the elements to findings that we require to be made for us to enact enforcement, for example, underneath the framework. That can be particularly labour intensive where the nature of a relationship between entities is opaque; where vast volumes of documentation is provided but needing to be translated, for example; and where there is a lack of cooperation by entities and limits then to the sorts of actions that we can take. Within those parameters, I can say that we move as fast as we can through what I would describe as complex case work, making sure that we meet those evidentiary thresholds at every stage through the requirements of the act.[122]

3.165When questioned about the resources committed to the administration of the FITS, the Department outlined that 13 staff work within the section that administers the FITS as well as the lobbying code of conduct, but provided the following response regarding dedicated staff and specialty skills:

Currently, there are eight members of staff who primarily work on the Scheme. One senior officer, who has responsibility for the leadership and management of complex casework under the Scheme, has a professional background in investigations. In addition to this, officers have a range of professional backgrounds and skills in relevant fields, including:

• foreign language proficiency
• the protection of national security information in proceedings
• international relations and security
• regulatory policy and operations, and
• legal policy expertise in transparency, integrity and national security.[123]
  166. The Department noted resource implications of some of its and others’ recommendations to reform the scheme. The options proffered by the Department would create a different operational and administrative environment for staff, with consequential resourcing requirements:

…the scheme was structured in such a way that costings were made according to the nature of that legislative scheme and the resources that would be required to implement that scheme. It has proven to be the case that, as I said, in relation to those opaque relationships which we are seeking to better understand and gather the evidentiary base on which the act rests—that does take quite a bit of resources, so freeing up some of those resources is a net gain. But equally, to your point, there would be resource implications for that wider lens that would apply under either option 1 or 2. But under option 2 it would be more acute.[124]

3.167Mr Parker Reeve, Acting Assistant Secretary, Transparency and Administrative Law Branch, Integrity Frameworks Division, Integrity and International Group offered further insight into the improvements that could stem from definitional improvements, both in workflow and administrative simplification:

On the relative increase or decrease in the resourcing requirement to undertake investigations…the definition of foreign government related entity in particular has some quite objectively determinable elements to it. That's things like the company's structure, its ownership, the application of foreign laws to it. Those elements are generally relatively simple for us to establish and for potential registrants to establish when determining whether they have obligations under the scheme. We've identified some areas where we think those elements of the definition could be improved. And I think that to the extent that those elements are improved, that will bring more matters under the scheme into where it is reasonably straightforward, simple to administer, simple to investigate and simple for potential registrants themselves to determine whether they have obligations under the scheme. Where our investigations tend to become quite complex and resource intensive…is where we are seeking to establish informal relationships of control, particularly under paragraph B of the definition of foreign government related entity, where we're not looking at the actual laws or constitution of a company or the composition of its board or its shareholding but on the actual practices of people involved in that entity to determine whether they are under a formal or informal obligation to follow the directions of a foreign government or are accustomed to follow the directions of a foreign government. That is quite intensive to do. So I think improvements to the definition to minimise the number of cases where we need to seek to rely on those elements of the definition will simplify the administration of the scheme. And the improvements, even to those informal elements of the definition, I think will assist in investigations as well. So we may get more cases coming in but a number of them would be simpler for us to address.[125]

Potential oversight of the FITS

3.168The current oversight of the administration of the FITS by the Department falls to the general oversight and audit functions in place for government departments and programs, such as the performance auditing powers of the Auditor-General and the Australian National Audit Office.

Footnotes

[1]Foreign Influence Transparency Scheme Act 2018, s. 3.

[2]Australian Strategic Policy Institute, Submission 13, p. [2].

[3]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 4.

[4]Attorney-General’s Department, Submission 2, p. 15.

[5]Mr Chris Teal PSM, Deputy Director-General, Intelligence Service Delivery, Australian Security Intelligence Organisation, Committee Hansard, Canberra, 21 February 2023, p. 30.

[6]Mr Andrew Kefford PSM, Deputy Secretary, Social Cohesion and Citizenship, Commonwealth Counter-Terrorism Coordinator, and National Counter Foreign Interference Coordinator, Department of Home Affairs, Committee Hansard, Canberra, 21 February 2023, pp 30-31.

[7]Attorney-General’s Department, Submission 2, p. 13.

[8]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 1.

[9]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 1.

[10]Hon Malcolm Turnbull, Committee Hansard, Canberra, 21 February 2023, p. 18.

[11]Institute of Public Affairs, Submission 17, p. 1.

[12]Institute of Public Affairs, Submission 17, pp. 1-5.

[13]Institute of Public Affairs, Submission 17, pp. 1-5.

[14]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, pp. 2-3.

[15]Mr Alex Joske, Committee Hansard, Canberra, 21 February 2023, p. 27.

[16]Hon Malcolm Turnbull, Committee Hansard, Canberra, 21 February 2023, pp. 19-20.

[17]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 5.

[18]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 6.

[19]Mr Alex Joske, Committee Hansard, Canberra, 21 February 2023, pp. 26-27.

[20]Department of Home Affairs, Submission 12, p. 5.

[21]Australian Security Intelligence Organisation, Submission 5, p. 2.

[22]Mr Alex Joske, Committee Hansard, Canberra, 21 February 2023, p. 27.

[23]Australian Tibet Council, Submission 9, pp. 9-12.

[24]Falun Dafa Association of Australia Inc, Submission 18.

[25]Mr Tom Sear, Submission 1.

[26]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 3.

[27]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 2.

[28]Committee Hansard, Canberra, 21 February 2023, pp. 9-11.

[29]University of Melbourne, Submission 16, p. 7.

[30]Mr Tom Sear, Submission 1, p. [4].

[31]Foreign Influence Transparency Scheme Act 2018, s. 5.

[32]Attorney-General’s Department, Submission 2.2, p. 4.

[33]Mr Simon Newnham, Deputy Secretary, Integrity and International Group, Attorney-General's Department, Committee Hansard, Canberra, 21 February 2023, pp. 39-40.

[34]Attorney-General’s Department, Submission 2.2, pp. 9-10.

[35]Attorney-General’s Department, Submission 2.2, pp. 4-8.

[36]Attorney-General’s Department, Submission 2.2, p. 5.

[37]Attorney-General’s Department, Submission 2.2, pp. 5-6.

[38]Attorney-General’s Department, Submission 2.2, p. 6.

[39]Attorney-General’s Department, Submission 2.2, p. 6.

[40]Attorney-General’s Department, Submission 2.2, p. 7.

[41]Attorney-General’s Department, Submission 2.2, p. 7.

[42]Attorney-General’s Department, Submission 2.2, p. 7.

[43]Attorney-General’s Department, Submission 2.2, p. 8.

[44]Submission to the former Committee’s Review of the Foreign Influence Transparency Scheme Bill 2017 - Attorney-General, Submission 84, p. 3.

[45]Attorney-General’s Department, Submission 2.2, p. 9.

[46]Attorney-General’s Department, Submission 2.2, p. 9.

[47]Attorney-General’s Department, Submission 2.1, p. [1].

[48]Hon Malcolm Turnbull, Committee Hansard, Canberra, 21 February 2023, p. 23.

[49]Commercial Radio Australia, Submission 6, p. 1.

[50]Attorney-General’s Department, Submission 2, p. 19.

[51]Hon Malcolm Turnbull, Committee Hansard, Canberra, 21 February 2023, p. 18.

[52]Attorney-General’s Department, Submission 2, p. 20.

[53]Revised Explanatory Memorandum for the Foreign Influence Transparency Scheme Bill 2017, p. 29.

[54]Attorney-General’s Department, Annual Report on the Operation of the Foreign Influence Transparency Scheme: 1 July 2022 to 30 June 2023, p. 7.

[55]Mr Tom Sear, Submission 1.

[56]Australia Tibet Council, Submission 9; Falun Dafa Association, Submission 18.

[57]Department of Home Affairs, Submission 12, p. 6.

[58]Attorney-General’s Department, Submission 2.2, p. 11.

[59]Attorney-General’s Department, Submission 2, p. 20.

[60]Attorney-General’s Department, Submission 2, p. 20.

[61]Attorney-General’s Department, Submission 2.2, p. 12.

[62]Mr Alex Joske, Committee Hansard, Canberra, 21 February 2023, p. 28. See also University of Melbourne, Submission 16, pp. 3, 8.

[63]Mr Alex Joske, Committee Hansard, Canberra, 21 February 2023, p. 28.

[64]Australian Catholic Bishops Conference, Submission 15.

[65]Commercial Radio Australia, Submission 6, p. 1.

[66]Daniel Ward, Australian Strategic Policy Institute, Losing our agnosticism: How to make Australia’s foreign influence laws work, July 2021, p. 5.

[67]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 2.

[68]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 2.

[69]Hon Malcolm Turnbull, Committee Hansard, Canberra, 21 February 2023, pp. 18, 23, 25.

[70]Hon Malcolm Turnbull, Committee Hansard, Canberra, 21 February 2023, pp. 23, 25.

[71]Hon Malcolm Turnbull, Committee Hansard, Canberra, 21 February 2023, p. 20.

[72]Mr Andrew Kefford PSM, Deputy Secretary, Social Cohesion and Citizenship, Commonwealth Counter-Terrorism Coordinator, and National Counter Foreign Interference Coordinator, Department of Home Affairs, Committee Hansard, Canberra, 21 February 2023, p. 32.

[73]Hon Malcolm Turnbull, Committee Hansard, Canberra, 21 February 2023, p. 18.

[74]Hon Malcolm Turnbull, Committee Hansard, Canberra, 21 February 2023, p. 20.

[75]Australian Strategic Policy Institute, Submission 13.

[76]Mr Alex Joske, Committee Hansard, Canberra, 21 February 2023, p. 26.

[77]Mr Alex Joske, Committee Hansard, Canberra, 21 February 2023, p. 28.

[78]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 6.

[79]University of Melbourne, Submission 16; UNSW, Submission 7.

[80]Australian Strategic Policy Institute, Submission 13, p. [5].

[81]Mr Simon Newnham, Deputy Secretary, Integrity and International Group, Attorney-General's Department, Committee Hansard, Canberra, 21 February 2023, p. 42.

[82]Australian Strategic Policy Institute, Submission 13, p. [3].

[83]Hon Malcolm Turnbull, Committee Hansard, Canberra, 21 February 2023, p. 20.

[84]Ms Katherine Mansted, ANU National Security College Occasional Paper, The Domestic Security Grey Zone: Navigating the Space Between Foreign Influence and Foreign Interference, February 2021, p. 17.

[85]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 7.

[86]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 1.

[87]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 4.

[88]Australian Professional Government Relations Association, Submission 20, p. 4.

[89]Prof George Williams, Deputy Vice-Chancellor, University of New South Wales, Committee Hansard, Canberra, 21 February 2023, p. 13.

[90]Prof George Williams, Deputy Vice-Chancellor, University of New South Wales, Committee Hansard, Canberra, 21 February 2023, p. 15.

[91]Australian Professional Government Relations Association, Submission 20, p. 5.

[92]Attorney-General’s Department, Submission 2, p. 11.

[93]Attorney-General’s Department, Submission 2, p. 11.

[94]University of Queensland, “Foreign influence’, https://staff.uq.edu.au/information-and-services/legal-risk-and-governance/disclosures/foreign-influence, accessed 11 November 2022.

[95]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 4.

[96]Mr Alex Joske, Committee Hansard, Canberra, 21 February 2023, p. 27.

[97]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 6.

[98]Attorney-General’s Department, Submission 2, p. 19.

[99]Attorney-General’s Department, Submission 2.2, p. 10.

[100]Attorney-General’s Department, Submission 2.2, p. 10.

[101]Mr Simon Newnham, Deputy Secretary, Integrity and International Group, Attorney-General's Department, Committee Hansard, Canberra, 21 February 2023, p. 40.

[102]Attorney-General’s Department, Submission 2.2, p. 11.

[103]Attorney-General’s Department, Submission 2.2, p. 11.

[104]Attorney-General’s Department, Submission 2, pp. 17-18.

[105]Attorney-General’s Department, Submission 2.2, p. 13.

[106]Attorney-General’s Department, Submission 2.2, p. 13.

[107]Attorney-General’s Department, Submission 2.2, p. 14.

[108]Prof George Williams, Deputy Vice-Chancellor, University of New South Wales, Committee Hansard, Canberra, 21 February 2023, p. 11.

[109]Mr Luke Sheehy, Executive Director, Australia Technology Network of Universities, Committee Hansard, Canberra, 21 February 2023, p. 14.

[110]Prof Michael Wesley, Deputy Vice-Chancellor (International), The University of Melbourne, Committee Hansard, Canberra, 21 February 2023, p. 12.

[111]Dr John Byron, Principal Policy Adviser, Queensland University of Technology, Committee Hansard, Canberra, 21 February 2023, p. 14.

[112]Ms Vicki Thomson, Chief Executive, The Group of Eight, Committee Hansard, Canberra, 21 February 2023, p. 13.

[113]Prof Michael Wesley, Deputy Vice-Chancellor (International), The University of Melbourne, Committee Hansard, Canberra, 21 February 2023, p. 12.

[114]Multiple witnesses, Committee Hansard, Canberra, 21 February 2023, pp. 15-17.

[115]Mr Simon Newnham, Deputy Secretary, Integrity and International Group, Attorney-General's Department, Committee Hansard, Canberra, 21 February 2023, p. 47.

[116]Mr Andrew Kefford PSM, Deputy Secretary, Social Cohesion and Citizenship, Commonwealth Counter-Terrorism Coordinator, and National Counter Foreign Interference Coordinator, Department of Home Affairs, Committee Hansard, Canberra, 21 February 2023, p. 32.

[117]Attorney-General’s Department, Submission 2.2, pp. 14-16.

[118]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 5.

[119]Ms Katherine Mansted, Committee Hansard, Canberra, 21 February 2023, p. 5.

[120]Australian Strategic Policy Institute, Submission 13, p. [3].

[121]Mr Anthony Coles, First Assistant Secretary, Counter Foreign Interference, Coordination Centre, and Deputy Counter Foreign Interference Coordinator, Department of Home Affairs, Committee Hansard, Canberra, 21 February 2023, p. 36.

[122]Mr Simon Newnham, Deputy Secretary, Integrity and International Group, Attorney-General's Department, Committee Hansard, Canberra, 21 February 2023, p. 39.

[123]Attorney-General’s Department, Submission 2.3, p. [1].

[124]Mr Simon Newnham, Deputy Secretary, Integrity and International Group, Attorney-General's Department, Committee Hansard, Canberra, 21 February 2023, p. 40.

[125]Mr Parker Reeve, Acting Assistant Secretary, Transparency and Administrative Law Branch, Integrity Frameworks Division, Integrity and International Group, Attorney-General's Department, Committee Hansard, Canberra, 21 February 2023, p. 40.