Note: The table does not take account of the amendments proposed by the Attorney-General that were provided to the Committee on 7 June 2018.
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Application
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The scheme will require persons or entities undertaking certain activities on behalf of a foreign principal to register and provide information about those activities.
Specifically, section 19 requires that any person who undertakes certain activities on behalf of a foreign principal, or enters a registrable arrangement with a foreign principal to undertake certain activities on behalf of a foreign principal, becomes liable to register under the scheme.
Person is defined in section 3 to mean an individual, organisation or association, body corporate or politic, partnership or any body prescribed by the rules of the scheme.
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Under 22 U.S.C. § 611, FARA applies to individuals, partnerships, associations, corporations, organisations or any other combination of individuals who:
(a) act as an agent, representative, employee or servant of a foreign principal, or,
(b) act under the order, request, control or direction of, or whose activities are directly or indirectly supervised, directed, controlled, financed or subsidised in whole or substantial part by a foreign principal (including a foreign country, person or organisation outside the US) and
undertakes certain activities on behalf of the foreign principal within the US.
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Activities to which the scheme applies
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Registration will be required where:
(a) a person engages in parliamentary lobbying within Australia on behalf of a foreign government (section 20)
(b) a person engages in activities within Australia for the purposes of influencing a political or governmental system or process (section 21). These activities are
(i) parliamentary lobbying (on behalf of a foreign principal that is not a foreign government)
(ii) general political lobbying
(iii) communications activity, and
(iv) donor activity
(c) a former Cabinet Minister is employed by, or acts in any capacity for, a foreign principal in the three years following their role as a Cabinet Minister (section 22)
(d) a former Minister or member of Parliament is employed by, or acts in any capacity for, a foreign principal in the three years following their role as a Minister or MP, where they contribute skills, knowledge, experience or contacts which have been gained through their former role (section 23);
(e) a former senior Commonwealth public official is employed by, or acts in any capacity for, a foreign principal in the eighteen months following their public role, where they contribute skills, knowledge, experience or contacts which have been gained through their former role (section 23).
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Under 22 U.S.C. § 611 (c), the FARA applies to a person or entity who acts on behalf of a foreign principal within the US and:
(a) engages in political activities;
(b) acts as a public relations counsel, publicity agent information service employee or political consultant;
(c) solicits, collects, disburses or dispenses contributions, loans, money or other things of value, or
(d) makes representations to US government agencies or officials.
FARA also applies to the dissemination of information materials, which are materials produced on behalf of the foreign principal and transmitted to two or more persons (22 U.S.C. § 616(a))
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Definition of ‘foreign principal’
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Defined in section 10 to mean:
(a) a foreign government
(b) a foreign public enterprise
(c) a foreign political organisation
(d) a foreign business, and
(e) a foreign individual who is neither an Australian citizen nor a permanent Australian resident.
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Foreign principal is defined in 22 U.S.C. § 611(b) to include:
(a) a government of a foreign country and a foreign political organisation,
(b) a person outside the United States, and
(c) a partnership, association, corporate, organisation or any other combination of persons organised under the laws of or having its principal place of business in a foreign country.
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Exemptions
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Division 4 outlines a number of targeted exemptions will apply to certain categories of activities and persons. These are:
(a) activities done for the sole purpose of, or which solely relate to, the provision of humanitarian aid or humanitarian assistance (section 24);
(b) activities done for the sole purpose of, or which solely relate to, the provision of legal advice or legal representation (section 25);
(c) activities of diplomats, consular and UN officials while performing official functions, duties and responsibilities of that role (section 26);
(d) activities done for the sole purpose of, or which solely relate to, religious pursuits regarding the religion of a foreign government (section 27);
(e) activities done for the sole purpose of, or which solely relate to, reporting news, presenting current affairs or expressing editorial content in news media on behalf of a foreign business or individual (section 28);
(f) certain business and commercial activities (section 29), including:
(i) the negotiation or conclusion of contracts for the provision of goods or services, and
(ii) activities of employees within Australia of foreign businesses.
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22 U.S.C § 613 sets out a number of exemptions to FARA registration requirements. These include for:
(a) diplomats, consular officers, officials of foreign governments and staff members of diplomatic or consular officers;
(b) persons solely engaged in private and non‑political activities in furtherance of the bona fide trade or commerce of a foreign principal, activities not predominantly serving a foreign interest, or activities providing purely humanitarian assistance;
(c) persons engaging in bona fide religious, scholastic, academic, artistic or scientific pursuits or the fine arts;
(d) persons whose foreign principal is a government of a foreign country, and the US President has deemed the defence of that foreign country as vital to the defence of the US;
(e) persons engaged as lawyers for a foreign principal provided that the purpose of legal representation does not include attempts to influence or persuade agency personnel or officials other than in the course of judicial, criminal or civil law enforcement enquiries, investigations or proceedings; and
(f) persons engaged in lobbying activities and who have registered under the Lobbying Disclosure Act 1995.
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When does registration occur?
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A person or entity must register with the scheme within 14 days of undertaking certain activities or entering into an arrangement with a foreign principal to undertake activities (section 16).
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Individuals or entities must file an initial registration statement with the Attorney-General within 10 days of becoming an agent of a foreign principal (22 U.S.C. § 612 (a)).
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What information is provided to the scheme when registering?
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Section 16 outlines the requirement to register under the scheme within a certain period. This section also notes that an application to register must be in writing and in an approved form.
Section 71 allows the Minister to make rules prescribing matters necessary or convenient for carrying out or giving effect to the Act. The rules will prescribe the information that a registrant must provide when registering such as the registrant’s name and address, the name of the foreign principal and the types of activities that will be undertaken, as well as any necessary accompanying documents or information.
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22 U.S.C. § 612(a)(1) outlines what must be included on a person’s registration statement. The statement must include details such as the registrant’s name and addresses and the identity of the foreign principal for whom the registrant is acting, assuming or purporting to act or has agreed to act.
Details to be provided under the registration statement vary according to the nature of the agent and foreign principal relationship. If the registrant is acting on behalf of a foreign government, the registration statement should detail the relevant branch or agency with which the registrant engages, and the public official with whom the registrant deals. If the registrant is acting on behalf of a foreign political party, the registration statement should detail the party’s principal address, political aim and the official with whom the registrant deals. If the registrant is acting on behalf of a foreign organisation that is not a foreign government or political party, the registration statement should detail any supervision, ownership, direction, control, financing or subsidising a foreign government or political party may exercise over such an organisation.
Each partner, officer, director, associate, employee and agent of a registrant is required to file a short form registration statement unless he or she engages in no activities in furtherance of the interests of a registrant’s foreign principal or unless the services he or she renders to the registrant are secretarial, clerical or in a related capacity. The short form registration must include:
(a) the applicant’s name, date of birth, occupation, residential and business addresses, and nationalities;
(b) identities of foreign principals for which the applicant renders services in support of the primary registrant;
(c) identities of foreign principals for which the applicant renders services, separately than through the primary registrant;
(d) details of the services rendered must also be provided, and
(e) the nature and amount of contributions, income, money or thing of value that the applicant has received from or given to the foreign principal.
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Registration obligations
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Registrants will have a number of responsibilities under the scheme. These include:
(a) reporting material changes in circumstances within 14 days (section 34);
(b) reporting when donor activity occurs within 14 days of the electoral donations threshold, or a multiple of that threshold being reached (section 35);
(c) updating registration details within 14 days of a voting period for a federal election or for a designated vote (section 36);
(d) reporting any registrable activity undertaken during a voting period for a federal election or designated vote within 7 days of the activity taking place (section 37);
(e) making disclosure in communications activity about the foreign principal on whose behalf the communications activity is undertaken (section 38);
(f) renewing registration on an annual basis if the person continues to act on behalf of the foreign principal (section 39), and
(g) keeping records in relation to registration under the scheme (section 40).
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There are a number of obligations on registrants under FARA. These include:
(a) providing supplementary registration statements every six months that provide details of the registrant’s activities over that reporting period, any changes to contact details and the relationship between the individual and the foreign principal, any informational material disseminated on behalf of foreign principal and any funding received, contributed to or disbursed on behalf of foreign principals Registrants are required to submit supplementary registration statements within 30 days of every expiry (22 U.S.C. §612(b)).
(b) including an identity statement on any informational material disseminated stating that the materials are being distributed on behalf of a foreign principal and specifying the foreign individual or entity (22 U.S.C. §614(b)),
(c) providing any informational materials must be submitted to the administering body within 48 hours of that material being transmitted (22 U.S.C. §614(a)), and
(d) keeping books of account and other records relating to his or her activities as an agent of a foreign principal (22 U.S.C. §615).
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Publicly available information
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Certain information will be made publicly available on a website for each person/entity that is registered in relation to a foreign principal (section 43). The publicly available information will include:
(a) the name of the registrant and the foreign principal for whom the registrant is acting;
(b) a description of the kind of registrable activities the person undertakes on behalf of the foreign principal, and
(c) any other information that is prescribed by the scheme’s rules.
Certain information may not be made public if the information is commercially sensitive, affects national security, or has been prescribed by the rules of the scheme as being exempt from being made available (subsection 43(2)).
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A comprehensive range of information is publicly available on a public-facing database for each person/entity registered in relation to a foreign principal.
The information available on the website includes the full registration statement, plus any additional documentation that is provided by the registrant.
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Powers
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The Secretary will have the power to request and compel the provision of information and documents that is relevant to whether a person is required to register under the scheme (section 45).
The Secretary will be able to compel such information or documents from persons who the Secretary reasonably suspects may be liable to register under the scheme and have not done so, and from persons (whether or not a registrant) who are reasonably believed to have information or documents relevant to the operation of the scheme (section 46).
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Limited enforcement powers are available. The administering unit primarily seeks to ensure compliance with FARA requirements on a voluntary basis and send letters of inquiry advising a person of the existence of FARA and their possible obligations.
The administering unit can also conduct compliance inspections, which cover every aspect of a registrant’s relationship with a foreign principal including financial records, contracts and all correspondence between the registrant and the foreign principal (22 U.S.C. §615). However, compliance with inspections cannot be compelled.
FARA does not otherwise have any power to compel documents or information.
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Offences and penalties
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Part 5 of the Bill contains a range of offences which provide a meaningful and serious deterrent for non-compliance with the scheme, and provide the scheme with sufficient means to pursue a person who is deliberately undermining the transparency objective of the scheme. These include: These include offences for:
(a) failing to apply for, or maintain registration under the scheme (section 57);
(b) failing to fulfil responsibilities under the scheme (section 58);
(c) failing to comply with a notice from the Secretary requiring information (section 59);
(d) providing false or misleading information or documents (section 60);
(e) destroying, damaging, concealing or preventing a registrant from keeping records required to be kept under the scheme (section 61).
The penalties range from 60 penalty units (for example, for failing to report a material change in circumstances), through to seven years imprisonment (for example, for intentionally omitting to register under the scheme when required to do so).
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There are a number of criminal penalties under 22 U.S.C. §618 that apply in relation to FARA. It is an offence under the Act to:
(a) wilfully violate any provision of the Act, or any regulations under it;
(b) wilfully make a false or misleading statement of a material fact on a registration statement or any other document provided under the Act
(c) wilfully omit a material fact or material document provided under the Act.
Depending on the circumstances in which the offence is committed, penalties range from a fine of US$5,000 or a term of imprisonment of six months (or both) to a fine of US$10, 000 or a maximum term of five years imprisonment.
It is also an offence for a public official of the US in the executive, legislative or judicial branch of the Government, or in any agency of the US to act on behalf of a foreign principal without registering. This offence attracts a penalty of a maximum fine of US$10,000 or a maximum term of imprisonment of two years (or both).
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Fees
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The scheme will be partially cost recovered – it is not intended that any amount charged will generate revenue. The Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017 provides legislative authority to impose charges under the scheme.
The amount that will be charged has not yet been determined and will be set in accordance with the Australian Government Charging Framework.
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Both initial registrations and supplemental registration statements incur a filing fee of US$305.
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Which agency administers the scheme?
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Attorney‑General’s Department
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The US Department of Justice
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