7. Enforcement

7.1
This chapter outlines the offences and enforcement measures established by the Foreign Influence Transparency Scheme Bill 2017 (the Bill). The evidence and issues presented here do not take account of the amendments proposed by the Attorney-General that were provided to the Committee on 7 June 2018.
7.2
The Bill contains a number of offences. These offences target persons and organisations:
that are not registered but should be; and
that are registered, but fail to comply with reporting requirements and other obligations.
7.3
Penalties for the offences range from 60 penalty units ($12,600) for strict liability offences, through to seven years imprisonment for intentionally failing to register ($441,000 for bodies corporate).

Offences for liable persons failing to register

7.4
The Bill establishes five new offences for failing to register under the proposed Scheme where the person was aware of the liability.
7.5
Table 7.1 lists the proposed offences, what the prosecution will be required to prove to establish the offence and the maximum penalty which a court could apply to the offence.
7.6
An offence can be committed by an individual as well as bodies corporate.
Table 7.1:  Offences for liable persons who fail to register
Proposed section
Offence
What must be proved
Maximum penalty
Failing to register or renew registration
57(1)
Intentional failure to register or renew registration – and registrable activity is undertaken
The prosecution must prove that the person knew they were required to register or renew registration; they intentionally omitted to do so, and they went on to undertake a registrable activity.
7 years imprisonment
($441,000 for bodies corporate)1
57(3)
Reckless failure to register or renew registration – and registrable activity is undertaken
The prosecution must prove that the person knew they were required to register or renew registration; they were reckless in omitting to do so, and they went on to undertake a registrable activity.
5 years imprisonment
($315,000 for bodies corporate)
57(4)
Intentional or reckless failure to register or renew registration (knowing it is required) – but no activity is undertaken
The prosecution must prove that the person knew they were required to register or renew registration; they intentionally or recklessly omitted to do so.
NOTE: There is no requirement to prove that the person then went on to undertake any registrable activities
12 months imprisonment
($63,000 for bodies corporate)
Intentionally cancelling registration when still liable to register
57(2)
Intentional cancellation of registration when still liable to register – and registrable activity is undertaken
The prosecution must prove that the person intentionally gave the Secretary notice cancelling their registration; that the person did this knowing that a registrable arrangement was still in existence and in fact was still in existence (and therefore that they were still required to be registered); and they went on to undertake a registrable activity.
7 years imprisonment
($441,000 for bodies corporate)
57(5)
Intentional cancellation of registration when still liable to register – but no activity is undertaken
The prosecution must prove that the person intentionally gave the Secretary notice cancelling registration; and that the person did this knowing that a registrable arrangement was still in existence and in fact was still in existence (and therefore that they were still required to be registered).
NOTE: There is no requirement to prove that the person then went on to undertake any registrable activities
12 months imprisonment ($63,000 for bodies corporate)
Source: Foreign Influence Transparency Scheme Bill 2017, proposed section 57.
7.7
All of the offences regarding failing to register or failing to renew registration require the prosecution to prove beyond reasonable doubt that the individual or organisation knew that they were required to be registered. In effect, this will mean that a person or organisation must also know that an exemption does or does not apply to their activities.
7.8
This is a high threshold for proving the offences, particularly with questions around how law enforcement agencies will be able to gather evidence about a person’s knowledge as to liability created by the Bill.
7.9
There are no offences in the Bill that criminalise conduct where a person or organisation fails to register or renew their registration where they are reckless or negligent as to their liability.
7.10
The Committee questioned the Department about an additional offence where a person was reckless as to their liability to register. The Department stated:
The obligation will be on the individual to determine whether they are liable to register under the scheme. Given this, the department does not consider it appropriate that a person could be liable to offences with penalties of up to seven years imprisonment unless they know of the existence of the requirement to register or renew registration. The department does not consider it necessary to include offences with recklessness or negligence as the fault element, particularly given the Bill includes strict liability offences to deal with less serious conduct.2
7.11
Box 7.1 provides a range of scenarios to demonstrate how the offences may arise.

Box 7.1:   Scenarios: Offences for failing to register

Offence of intentionally failing to apply or maintain registration
Person A is engaged by a foreign government to lobby members of Parliament on Australian Government policy on foreign direct investment. The Australian Government has publicly dismissed the foreign government’s views as uninformed and Person A wants to hide the connection to the foreign government so as to have a fresh opportunity to convince the Australian Government of the foreign government’s position. Person A knows that they are required to register with the scheme on entering into an arrangement with the foreign government and prior to undertaking activities on behalf of the foreign government. Despite knowing their registration obligations, Person A intentionally decides not to register with the scheme and undertakes the lobbying activities on behalf of the foreign government.3
Offence of recklessly omitting to apply or maintain registration (knowing one should be registered)
On 20 January 2020, Person D enters into a registrable arrangement with a foreign public enterprise to lobby members of the Parliament on a Bill that is soon to be voted on. Person D registers under the scheme on 5 February 2020 and undertakes activities on behalf of the foreign public enterprise. Person D knows that they are required to renew their registration sometime towards the start of 2021 and that they will continue to undertake activities on behalf of the foreign public enterprise. However, Person D does not check the date for registration renewal and fails to renew his or her registration by 4 March 2021 as is required under the scheme. In the period after Person’s D registration has lapsed, Person D continues to lobby members of the Parliament on behalf of the foreign public enterprise.4
Offence of giving notice cancelling registration when still liable to register (registrable activity undertaken) – proposed section 57(3)
Person B has registered under the scheme in relation to an arrangement with a foreign political organisation to lobby a range of stakeholders for the purpose of influencing government policy. Person B’s registration is due to be renewed in seven days but the registrable arrangement is due to continue for the next two years. Person B has been publicly criticised for acting on behalf of the foreign political organisation, which is publicly known due to the registration under the scheme. Person B wants to be able to continue to undertake lobbying for the foreign political organisation without it being publicly known. Person B submits a notice to the Secretary under section 31 that Person B has ceased to undertake activities on behalf of the foreign political organisation and specifying that the registrable arrangement will cease in four days, before registration renewal is required. Despite knowing their registration renewal obligations, Person B intentionally continues to engage in lobbying activity on behalf of the foreign political organisation.5
Offence of giving notice cancelling registration when still liable to register (no activity undertaken) - proposed section 57(5)
Person E, a registrant under the scheme, notifies the Secretary in accordance with section 31 that their arrangement to provide parliamentary lobbying services to Country X has ceased. Person E submits the notice, knowing that the cessation date included in the notice is incorrect and that the correct cessation date is actually one month later. Person E does not undertake registrable activities on behalf of Country X after the incorrect cessation date listed in the notice.6

Offences that apply to registrants

7.12
The Bill establishes six new offences for failing to fulfil reporting responsibilities once registered under the proposed Scheme. Table 7.2 lists the proposed offences, what the prosecution will be required to prove to establish the offence and the maximum penalty which a court could apply to the offence.
7.13
Strict liability applies for all of the following offences, meaning that the prosecution need not prove intention, recklessness or negligence in a registrants’ failure to meet reporting obligations.
7.14
An offence can be committed by an individual as well as bodies corporate.
Table 7.2:  Strict liability offences for failing to fulfil reporting responsibilities
Proposed section
Offence
What must be proved
Maximum penalty
58(1)
Failing to report material change of circumstances
The prosecution must prove that the person was required to give the Secretary notice advising of a material change in circumstances within 14 days of the change occurring (see s 34), and the person failed to give the notice in accordance with the requirements of the Bill.
60 penalty units ($12,600 for individuals, and $63,000 for bodies corporate)
58(1)
Failing to report on donor activity (outside of and during voting period)
The prosecution must prove that the person was required to give the Secretary notice advising that the threshold for donor activity had been reached ($13,500) (see ss 35 and 37), and the person failed to give the notice in accordance with the requirements of the Bill.
60 penalty units ($12,600 for individuals, and $63,000 for bodies corporate)
58(1)
Failing to update registration when a voting period begins
The prosecution must prove that the person was required to review and update registration details within 14 days of a voting period beginning (see s 36), and the person failed to do this in accordance with the requirements of the Bill.
60 penalty units ($12,600 for individuals, and $63,000 for bodies corporate)
58(1)
Failing to report when undertaking activities during voting period
The prosecution must prove that the person was required to report when certain activities were undertaken in a voting period within 7 days of their occurring (see s 37), and the person failed to do this in accordance with the requirements of the Bill.
60 penalty units ($12,600 for individuals, and $63,000 for bodies corporate)
58(2)
Failing to make a disclosure in communications materials
The prosecution must prove that the person undertook a registrable communications activity on behalf of a foreign principal, and the person failed to make a disclosure in the communications material (see s 38) in accordance with the requirements if the Bill.
60 penalty units ($12,600 for individuals, and $63,000 for bodies corporate)
58(3)
Failing to keep records
The prosecution must prove that the person was required to keep records (see s 40), and the person failed to do this.
60 penalty units ($12,600 for individuals, and $63,000 for bodies corporate)
Source: Foreign Influence Transparency Scheme Bill 2017, proposed section 58
7.15
Box 7.2 provides a range of scenarios to demonstrate how the offences may arise.

Box 7.2:   Scenarios: Offences that apply to registrants

Failing to report a material change in circumstances
Person A is registered under the scheme as undertaking parliamentary lobbying activities on behalf of Country X. Person A is required, under section 32 of the Act, to notify the Secretary of any material changes in circumstances in relation to his or her registration. Person A is subsequently engaged by Country X to develop and distribute communications materials designed to influence the Australian Government’s immigration policy, in addition to the parliamentary lobbying activities. Person A does not update their registration to report this change in circumstances.7
Failing to make a disclosure in communications activity
Person B in a media company has a contract with Country X to undertake communications activities on behalf of Country X in Australia. Person B is registered under the scheme. Person B broadcasts a television advertisement criticising the Australia Government’s approach to climate change. Person B fails to make a disclosure about the foreign principal. 8

Other offences

7.16
The Bill establishes three other offences where a registrant, a person who may be liable to register, or a third party, fails to comply with a notice from the Secretary to provide information. Table 7.3 lists the proposed offences, what the prosecution will be required to prove to establish the offence and the maximum penalty which a court could apply to the offence.
7.17
An offence can be committed by an individual as well as bodies corporate.
Table 7.3:  Offences in response to a request for information
Proposed section
Offence
Requires proof of:
Maximum penalty
60(1)
Providing false or misleading information in response to a request for information or documents by the Secretary
The prosecution must prove the person was given a notice request information or documents (see ss 45 and 46), and the person gives information or documents knowing that the information or documents is misleading, or omits a matter without which it is misleading.
NOTE: There is a defence where the information or document is not false or misleading in a material particular (s 60(2))
5 years imprisonment
($315,000 for bodies corporate)
59(1)
Failing to comply with a request for information by the Secretary
The prosecution must prove that a person was given a notice requesting the provision of information or documents (see ss 45 and 46), the person failed to comply with the notice within the time specified by the Secretary.
NOTE: The person does not commit an offence if the person took all reasonable steps to prove the information or document in the time specified, but provided it as soon as practicable after the end of the period (s 59(2)).
6 months imprisonment
($31,500 for bodies corporate)
61(1)
Intentional destruction of records to avoid liability, or defeat the transparency objectives of the Bill
The prosecution must prove that the person ( a registrant or a third-party) intentionally does an act or omits to do something, and that person intended to avoid or defeat the object of the Bill/the Scheme, and the act or omission results in the damage, concealment or destruction of a record which is required to be kept.
3 years imprisonment
($189,000 for bodies corporate)
Source: Foreign Influence Transparency Scheme Bill 2017, proposed sections 59-61.
7.18
As noted in Table 7.3, the Bill creates an offence for providing false or misleading information in response to a request from the Secretary for information or documents. This offence attracts a maximum penalty of five years imprisonment. In comparison, the Criminal Code contains an offence for providing false or misleading information to a Commonwealth entity, which attracts a maximum penalty of twelve months imprisonment.
7.19
The National Security Legislation Amendment (Espionage and Foreign Interference) Bill creates an aggravated offence for providing false or misleading information in a security clearance process, which will also attract a penalty of five years imprisonment (the justification being the serious security risks that could flow from the provision of that information in that process).
7.20
In questions to the Department, the Committee clarified the proposed imprisonment term, noting that it is five times that contained in the Criminal Code for the same conduct. The Department provided the following answer:
Consistent with Commonwealth criminal law policy, the maximum penalty for an offence should be set appropriately for the worst case scenario. The department considers the penalty of five years imprisonment to be appropriate given the serious implications of the provision of false or misleading information or documents under the Scheme, and the fact that the person is deliberately seeking to defeat the transparency objectives of the Scheme. It also seeks to ensure that persons who are issued notices to produce information provide accurate information, therefore ensuring the scheme holds information that accurately reflects the scale and scope of foreign influence activities in political and governmental processes. The penalty recognises the serious implications that unchecked and unknown forms and sources of foreign influence can have on Australia’s democratic system of government.9
7.21
Box 7.3 provides a range of scenarios to demonstrate how the offences may arise.

Box 7.3:   Scenarios: Offences in response to a request for information

Giving false or misleading information in response to a notice to produce
Person X is engaged by Country Y to undertake parliamentary lobbying and communications activities on its behalf. Person X completes and submits a registration under the scheme but omits information about some of the activities he or she will undertake on behalf of Country Y. The Secretary gives Person X a notice under section 46 of the Act requesting further information and documents about Person X’s relationship with Country Y, including the nature of activities undertaken on behalf of Country Y. Person X receives the notice and responds by providing information about the parliamentary lobbying activities he or she is undertaking on behalf of Country Y, but intentionally omits information about distributing communications materials which has the effect of making such information misleading.10
Failing to comply with notice requiring information or documents
Person A is undertaking registrable activities on behalf of foreign political organisation B but has not registered under the scheme. On 1 July 2019, the Secretary issues a notice to Person A under section 45 as the Secretary reasonably suspects that person A might be liable to register under the scheme in relation to the foreign political organisation. The notice requests Person A provide relevant information and documents by 31 July 2019. Person A does not respond to the notice.11

International comparisons

United States

7.22
As noted earlier in this report, the Bill is based on the United States’ Foreign Agents Registration Act (FARA). FARA imposes both civil and criminal penalties upon conviction for the following conduct:
wilfully violating any provision of the Act attracts a penalty of $10,000, five years imprisonment, or both, and
providing false or misleading information attracts a penalty of $10,000, five years imprisonment, or both.12
7.23
In addition to criminal offences, FARA enables the federal Attorney-General to obtain an injunction to stop or prevent a person from engaging in conduct that would violate the requirements of the Act.13
7.24
It is also an offence for a public official in the executive, legislative, or judicial branch of the Government or in any agency to act as an agent of a foreign principal without registering under FARA or as a lobbyist under the Lobbying Disclosure Act of 1995. The offence attracts a maximum penalty of US$10,000 or a maximum imprisonment of two years, or both.14
7.25
In 2016, the InspectorGeneral of the Department of Justice released an audit of that Department’s administration and enforcement of FARA. The InspectorGeneral noted that there have been limited successful criminal prosecutions under the FARA scheme since 1966, concluding this was as a result of difficulty in proving that a person (individual or organisation) is a foreign agent seeking to improperly influence domestic policy in the United States.15

Canada

7.26
Although Canada has not introduced legislation for regulating foreign influence, it has a strong domestic lobbying scheme under the Lobbying Act.16 The Lobbying Act includes provisions for the development of a Lobbyists Code of Conduct and requires the registration of both consultant (thirdparty) lobbyists and in-house lobbyists for corporations and organisations.
7.27
That Act establishes a range of offences for failing to register, maintain registration, or knowingly provide false or misleading information which attracts a penalty of:
a fine of $50,000, six months imprisonment, or both (on summary conviction), or
a fine of $200,000, 2 years imprisonment, or both (on proceedings by way of indictment).17

Stakeholders concerns

7.28
Although the Scheme will require enforcement mechanisms,18 a number of stakeholders expressed concern about the severity of the proposed enforcement penalties.19
7.29
For example, the Australian Financial Markets Association commented that the proposed penalties are ‘extremely harsh for what … is purely redtape’.20 Similarly, the Financial Services Council described the proposed penalties as ‘draconian and disproportionate’.21
7.30
Australian Lawyers for Human Rights noted that all offences would apply irrespective of whether or not harm has actually been caused by the activity. The organisation stated:
Generally, offences under the criminal law should only be imposed where an activity both causes, or is likely to cause, harm to an essential public interest, and where there is relevant mens rea. Otherwise, the activity should be dealt with by administrative or civil penalties, which should be proportionate to the likely harm of the activity. Given the extremely broad reach of the Bill and the lack of exemptions for activities involving normal political discourse, the current approach is of great concern.22
7.31
The Human Rights Council of Australia noted that in New South Wales, an offence punishable by a maximum penalty of seven years imprisonment is classified as a ‘serious indictable offence’.23
7.32
The Law Council of Australia noted that, in many cases, it will be difficult to prove to a criminal standard that activities have been conducted on behalf of a foreign principal, particularly in instances where there is ‘little evidence to link a person’s actions or representations with a foreign party’.24 In making these comments, it noted the 2016 audit of the FARA Scheme in the United States by the InspectorGeneral of the Department of Justice which found the lack of enforcement of that Scheme was as a result of a similar evidentiary requirement as proposed in this Bill.25
7.33
The Law Council of Australia also questioned the effectiveness of the proposed enforcement provisions to address covert influence:
While financial trails and written authorisations may assist in enforcement, in many cases foreign influence may be extended under less identifiable arrangements, creating significant enforcement hurdles. In this regard, the ability to circumvent the measures, most notably by those foreign powers that are the primary target of the measures, should be further considered. … There are concerns that sophisticated and clandestine influencers will not be deterred by these measures, rather than the full force of the scheme will be felt by benign, lawabiding entities with overseas links.26
7.34
Noting the evidentiary challenges of establishing a breach of the proposed measures at a criminal standard, the Law Council advocated consideration of the availability of civil penalties to enforce noncompliance.27
7.35
The imposition of civil penalties rather than criminal offences was supported by the Australian Professional Government Relations Association, which stated that ‘it is inappropriate and disproportionate for strict liability to apply in relation to any offence provisions’.28
7.36
The Committee sought clarification from the Department as to why civil penalties had not been included in the Bill. The Department responded:
The department does not consider it necessary to include civil penalty provisions in the Bill at this time. Criminal offences are considered the most appropriate way to deter non-compliance with the registration requirements under the Scheme, and provide a meaningful enforcement mechanism should a person who is liable to register not be registered under the Scheme. According to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, criminal offences may be included in legislation where warranted due to the degree of malfeasance or the nature of the wrongdoing involved. An example of such conduct is dishonest or fraudulent conduct.29
7.37
The Department went on to advise that:
The Scheme includes a suite of measures to encourage compliance, including powers to compel production of information and documents, and tiered offences which distinguish between intentional and reckless conduct for a range of offences including undertaking registrable activities while not being registered, failing to fulfil other responsibilities under the Scheme, and providing false or misleading information or destroying records in connection with the Scheme.30
7.38
The Department indicated that the appropriate mechanisms for enforcement of the Scheme would be examined as part of the legislated review of the Scheme, including whether it would be necessary to supplement the criminal offences with civil penalties.31

Interaction with proposed espionage and foreign interference offences

7.39
As noted in earlier chapters, the Bill was introduced by the Prime Minister as a package of measures to address foreign influence and foreign interference in Australia, including the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (Espionage and Foreign Interference Bill).
7.40
In evidence to the Committee, the Department described the two Bills as ‘complementary measures’32 but responding to ‘distinct concepts’.33
7.41
The Law Council of Australia expressed concern regarding the possible interaction of the proposed foreign interference offences in the Espionage and Foreign Interference Bill with the offences proposed under the present Bill. The Council explained:
Strict liability offences are in place for registrants that fail to notify the Secretary of material changes, report on certain activities, or keep adequate records of activities. A person who is found guilty for one of these strict liability offences may be considered to be operating in a ‘deceptive’ manner for the purposes of the proposed foreign interference offences in the [National Security Legislation (Espionage and Foreign Interference) Bill 2017].34
7.42
The Council therefore recommended that the Explanatory Memorandum make clear that a finding of guilt in relation to the proposed Scheme will not necessarily amount to a finding of guilt in relation to the proposed foreign interference offences in the Bill.35
7.43
The Department responded to the Council’s concern and recommendation, advising:
The offences in the FITS Bill do not address foreign interference … [Those offences] are designed to deter noncompliance with the registration requirements under the Scheme, and provide a meaningful enforcement mechanism should a person who is liable to register not be registered under the Scheme.
The conduct which the proposed foreign interference offences in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill … seek to address is different. Foreign interference is harmful conduct undertaken by foreign principals using covert or deceptive means to damage or destabilise the government or political processes of a country, either to harm that country’s national interests or to create an advantage for the foreign country.
In contrast … the offences in the FITS Bill apply where a person is undertaking registrable activities on behalf of a foreign principal and fails to register or comply with their registration obligations under the Scheme. The penalties are tiered, with the most serious penalties applying where a person engages in registrable activities without registering under the Scheme, despite knowing of their obligation to do so.36
7.44
At a later public hearing, the Department noted that:
the two Bill’s ‘complement’ one another as if a person’s conduct ‘doesn’t fall within the foreign interference offence, it may be picked up as a transparency requirement’;37 and
‘the foreign influence scheme is not simply intended to catch those people who are engaging in foreign interference’.38
7.45
The Department further advised that a finding of guilt for an offence under the Scheme would not constitute a finding of guilt for other offences, stating that the offences contained in the Bill ‘are not options for alternative verdicts for the foreign interference offences as the elements of the offences are sufficiently different’.39
7.46
The Crimes Act would prevent a person being prosecuted for both an offence under the present Bill and a foreign interference offence.40
7.47
The Committee sought similar clarification from the Department in its questions in writing. Specifically, the Committee questioned whether:
the offences could provide an alternative to the more evidentiary challenging offences proposed in the Espionage and Foreign Interference Bill, and
the strict liability offences could be used to establish an intent element to the proposed offences in the Espionage and Foreign Interference Bill which apply where a person’s conduct is overt or deceptive, involves threats or menaces, or does not disclose the fact that the person undertakes the conduct on behalf of a foreign principal.41
7.48
The Department stated:
The offences in the Bill and the proposed espionage and foreign interference offences in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill are designed to complement each other rather than overlap and provide a suite of investigative options for agencies.
It is not clear to the department how the commission of an offence under the Bill could be used to establish an intent element for one of the proposed offences in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill.42
7.49
Further, the Committee sought clarification on whether the Secretary’s powers to request information under the Bill could be used to:
establish intent for the proposed offences in the Espionage and Foreign Interference Bill; and
overcome evidentiary challenges to the proposed offences in the Espionage and Foreign Interference Bill.
7.50
The Department responded:
Section 53 allows the Secretary to communicate scheme information to a law enforcement body for an enforcement related activity within the meaning of the Privacy Act 1988. It is not possible to comment on how such information might be used by a law enforcement body in the performance of its functions, as this will depend on the nature of the particular investigation or matter.
The Secretary’s powers to request information are limited to situations where:
the Secretary reasonably suspects that a person might be liable to register under the Scheme (subsection 45(1)), or
the Secretary reasonably believes that a person has information or a document that is relevant to the operation of the Scheme (subsection 46(1)).43
7.51
During a hearing, the Department advised that the proposed offences in relation to the Scheme may be used as an alternative to prosecution under the Espionage and Foreign Interference Bill:
I wouldn't want to say that the only purpose for creating a transparency scheme is to create an offence which is a backstop for the inability to demonstrate other more serious offences. There is a genuine objective in providing transparency to the public about who is acting on behalf of whom. But you are correct: the failure-to-register offences could potentially be used where somebody is engaging in activities and would have had an obligation to register, and did not do so. That may arise in circumstances where they are seeking to engage in covert and deceptive conduct for influencing purposes.44

Committee comment

7.52
The Committee notes the following issues were raised regarding the proposed enforcement provisions:
whether an additional offence is required to respond to circumstances where a liable person was reckless or negligent as to their liability to register under the Scheme;
the proposed penalty for providing false or misleading information in response to a request from the Secretary for information or documents is five times that contained in the Criminal Code for the same conduct;
the proposed penalties for the offences are broadly higher than those in comparable jurisdictions;
significant stakeholder concern regarding the severity of the proposed penalties, including strict liability offences;
proposals for civil penalties as opposed to criminal sanction;
evidentiary problems with proving to a criminal standard the conduct proposed to be subject to criminal sanction;
the interaction with proposed espionage and foreign interference offences, namely:
whether the offences proposed in this Bill could be used to establish an intent element for offences contained in the Espionage and Foreign Interference Bill, and
whether the Secretary’s powers could be used to overcome evidentiary challenges to the proposed offences in the Espionage and Foreign Interference Bill.
7.53
A number of these concerns are addressed by the Attorney General’s proposed amendments. These proposed amendments are discussed in Chapter 9.
7.54
In Chapter 10 of this report, the Committee provides its comments and discusses areas where it considers further refinements may be made to address outstanding issues, improve the clarity and proportionality of the proposed measures, and to ensure adequate safeguards are provided.

  • 1
    All pecuniary penalties for bodies corporate have been calculated in accordance with section 4B of the Crimes Act 1914 (Pecuniary penalties–natural persons and bodies corporate).
  • 2
    AttorneyGeneral’s Department, Submission 5.1, p. 44.
  • 3
    Explanatory Memorandum, p. 109, para 620.
  • 4
    Explanatory Memorandum, p. 116, para 660.
  • 5
    Explanatory Memorandum, pp. 112-133, para 639.
  • 6
    Explanatory Memorandum, p. 122, para 696.
  • 7
    Explanatory Memorandum, p. 125, para 714.
  • 8
    Explanatory Memorandum, p. 127, para 729.
  • 9
    Attorney​‑General’s Department, Submission 5.1, p. 44.
  • 10
    Explanatory Memorandum, p. 135, para 776.
  • 11
    Explanatory Memorandum, p. 132, para 759.
  • 12
    United States’ Foreign Agents Registration Act 1938, 22 U.S.C. § 618(a).
  • 13
    United States’ Foreign Agents Registration Act 1938, 22 U.S.C. § 618(f).
  • 14
    United States Department of Justice, FARA Enforcement, <https://www.fara.gov/enforcement.html>, last accessed 5 March 2018.
  • 15
    Department of Justice, Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act, p. 8, <https://oig.justice.gov/reports/2016/a1624.pdf>, last accessed 5 March 2018.
  • 16
    Lobbying Act (Can), RSC 1985, c. 44.
  • 17
    Lobbying Act (R.S.C. 1985, c. 44), ss 14(1).
  • 18
    Mr Bret Walker SC, private capacity, Committee Hansard, Canberra, 16 February 2018, p. 2.
  • 19
    Australian Financial Markets Association, Submission 3, p. 5; Law Council of Australia, Submission 4, p. 15; Australian Lawyers for Human Rights, Submission 7, p. 12; Australian Professional Government Relations Association, Submission 13, p. 10; Justice Connect, Submission 50, p. 2; Australian Council for International Development, Submission 55, p. 4; Federation of Ethnic Communities’ Councils of Australia, Submission 59, p. 2.
  • 20
    Australian Financial Markets Association, Submission 3, p. 5.
  • 21
    Financial Services Council, Submission 16, p. 2.
  • 22
    Australian Lawyers for Human Rights, Submission 7, p. 12.
  • 23
    Human Rights Council of Australia, Submission 29, p. 3.
  • 24
    Law Council of Australia, Submission 4, p. 15.
  • 25
    Law Council of Australia, Submission 4, p. 15.
  • 26
    Law Council of Australia, Submission 4, p. 15.
  • 27
    Law Council of Australia, Submission 4, pp. 15-16.
  • 28
    Australian Professional Government Relations Association, Submission 13, p. 10.
  • 29
    AttorneyGeneral’s Department, Submission 5.1, p. 6.
  • 30
    AttorneyGeneral’s Department, Submission 5.1, pp. 45-46.
  • 31
    Proposed section 70 would require a review of the Scheme to be completed within 5 years. This is further discussed in Chapter 8.
  • 32
    Ms Anna Harmer, First Assistant Secretary, Security and Criminal Law Division, Attorney-General's Department, Committee Hansard, Canberra, 31 January 2018, p. 19.
  • 33
    Ms Anna Harmer, First Assistant Secretary, Security and Criminal Law Division, Attorney-General's Department, Committee Hansard, Canberra, 31 January 2018, p. 16.
  • 34
    Law Council of Australia, Submission 4, p. 16.
  • 35
    Law Council of Australia, Submission 4, p. 16.
  • 36
    AttorneyGeneral’s Department, Submission 5.1, pp. 6-7.
  • 37
    Ms Tara Inverarity, Assistant Secretary, AttorneyGeneral’s Department, Committee Hansard, Melbourne, 16 March 2018, p. 52.
  • 38
    Ms Anna Harmer, First Assistant Secretary, Security and Criminal Law Division, AttorneyGeneral’s Department, Committee Hansard, Melbourne, 16 March 2018, p. 53.
  • 39
    AttorneyGeneral’s Department, Submission 5.1, pp. 6-7.
  • 40
    Crimes Act 1914, section 4C.
  • 41
    National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, Schedule 1, Division 92, Subdivision B, proposed sections 92.2-92.4 into Part 5.2 of the Criminal Code.
  • 42
    AttorneyGeneral’s Department, Submission 5.1, p. 23.
  • 43
    AttorneyGeneral’s Department, Submission 5.1, p. 23.
  • 44
    Ms Anna Harmer, First Assistant Secretary, Security and Criminal Law Division, Attorney-General’s Department, Private Committee Hansard, Canberra, 16 February 2018, pp. 8-9.

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