10. Committee comment and recommendations

10.1
In this Chapter the Committee presents its findings and recommendations in relation to the Foreign Influence and Transparency Scheme Bill 2017 (the Bill).
10.2
The Committee commenced its inquiry into the Bill in December 2017, receiving submissions and conducting hearings in January, February and March. Through this consultation period, stakeholders raised substantial concerns with the Bill – in particular with the breadth of actors and activities which would be covered in the scope, the limited exemptions available, and the consequent administrative burden for individuals, organisations and businesses. Chapters 2 to 8 review the evidence received and issues raised regarding the Bill.
10.3
On 7 June 2018, the Attorney-General submitted to the Committee a set of proposed amendments and the Committee sought additional submissions and conducted additional public hearings. Chapter 9 summarises the evidence received and issues raised regarding the proposed amendments.
10.4
The Committee notes that a substantial number of the issues raised regarding the Bill have been addressed by the Attorney-General’s proposed amendments. The Committee is pleased to recommend the implementation of the proposed amendments. In some instances the Committee also seeks to refine the proposed amendments to strengthen the integrity and effectiveness of the Scheme.
10.5
In addition, the Committee has identified certain residual issues and, consistent with the scrutiny approach to considering other bills, makes recommendations to ensure the integrity and proportionality of the proposed measures, the clarity and effectiveness of their application and operation, and to strengthen provisions and provide adequate safeguards.
10.6
This Chapter considers the amendments proposed by the Attorney-General and certain residual issues, and makes recommendations in relation to:
scope of actors and activities,
exemptions,
registrant obligations,
operation of the scheme,
enforcement, and
oversight, review and implementation.

Scope of actors and activities

Section 10—Definition of a foreign principal

Proposed removal of foreign business, foreign public entity and foreign individual

10.7
As noted in Chapter 9, the Attorney-General has proposed amendments which would remove the following terms from within the definition of a ‘foreign principal’:
‘foreign business’,
‘foreign public enterprise’ and
‘an individual who is neither an Australian citizen nor a permanent Australian resident’.
10.8
Evidence to the Committee on the Bill indicated concern regarding the expansive breadth of a definition that did not require any close foreign ‘nexus’.1 As a result, the amendments proposed by the Attorney-General were welcomed by many stakeholders as an appropriate refinement of the Bill’s scope to address the identified—and stakeholder supported—objective of bringing transparency to Australia’s democratic processes.
10.9
The Committee is of the view that the proposed amendments define a more appropriate scope to the Scheme. As such these amendments will strengthen the proportionality of the measures and will aid in its effective operation and intent to address covert influence in Australia. Therefore the Committee supports the amendments as proposed by the Attorney-General to remove the terms ‘foreign business’, ‘foreign public entity’ and ‘an individual who is neither an Australian citizen nor a permanent Australian resident’, from the definition of the term ‘foreign principal’.

Recommendation 1

10.10
The Committee recommends the implementation of the Attorney-General’s proposed amendments to remove from the definition of ‘foreign principal’ in section 10 of the Bill, the terms
‘foreign business’,
‘foreign public entity’, and
‘an individual who is neither an Australian citizen nor a permanent Australian resident’.
10.11
In a further refinement to the Bill’s original scope, the Attorney-General has proposed the introduction of two new terms within the definition of a foreign principal:
a ‘foreign government related entity’, and
a ‘foreign government related individual’.
10.12
The combined effect of the amendment will be to ensure the Scheme is more closely and appropriately focussed on promoting transparency in relation to foreign government influence on Australian political and government processes.

Proposed definition of a ‘foreign government related entity’

10.13
The Committee notes that the proposed term was supported by stakeholders to provide the appropriate nexus back to a foreign government.
10.14
Some concerns were expressed on the thresholds set by the proposed amendment, most notably on the thresholds that apply to companies.
10.15
The Committee considers that some of these concerns may have arisen due to the lack of accompanying detailed explanation on the application of the proposed definition.
10.16
For example, the mere funding of an organisation by a foreign government—as the Department correctly noted—will not be sufficient to engage the threshold as set under the definition. The relevant clause requires the foreign government to hold 15 per cent of the issued share capital of the company.
10.17
For clarity on this point, the Committee is of the view that the supplementary Explanatory Memorandum to support the introduction of the proposed amendments should clearly express that mere funding (regardless of the amount) is not sufficient to engage the threshold as set in the definition.
10.18
The Committee also notes the concerns expressed by the Law Council with regards to consistency of the relevant threshold across Commonwealth law. As noted in Chapter 9, the Council was of the view that the threshold should be set at 20 per cent, to mirror the threshold set in Corporations Act 2001 (Cth), the Foreign Acquisitions and Takeovers Act 1975 (Cth) and the Financial Sector (Shareholdings) Act 1998 (Cth).
10.19
However, the Committee considers that the threshold, as proposed by the Attorney-General, is appropriate as it is not seeking to measure the level of control the foreign government may exercise over that company. The relevant test—to meet the very title of the term—is relatedness.
10.20
The Committee therefore is satisfied that the term, as proposed, is appropriate to meet the policy intent of the Bill.

Recommendation 2

10.21
The Committee recommends implementation of the Attorney-General’s proposed amendments to introduce the term ‘foreign government related entity’ (as defined in those amendments) within the definition of a ‘foreign principal’ in section 10 of the Bill.
The Committee further recommends the Explanatory Memorandum is amended to expressly set out that mere funding from a foreign government is not sufficient to satisfy the threshold requirements for the term’s application to companies.

Recommendation 3

10.22
The Committee recommends that the Attorney-General’s proposed definition of a ‘foreign government related entity’ be further amended so as to include those entities where the directors or members of the executive committee are accustomed to act in accordance with the directions, instructions or wishes of a foreign government or a foreign political organisation, even if they are under no obligation to do so.

Proposed definition of a ‘foreign government related individual’

10.23
The second term proposed to be introduced into the definition of a ‘foreign principal’ is a ‘foreign government related individual’.
10.24
The Committee notes the concern raised by the Australian Council of Trade Unions with respect to its conclusion that foreign individuals who merely comply with the law and administrative authority of their home country, may be captured by the term.
10.25
The Committee is of the view that the Australian Council of Trade Unions interpretation is not correct, and that the term is appropriately defined.
10.26
The Committee notes that the definition of the term was supported by Universities Australia, who commented that it would not prohibit universities from undertaking similar advocacy to that identified as a concern by the Australian Council for Trade Unions.
10.27
Again, the Committee considers that some of these concerns may have arisen due to the lack of accompanying detailed explanation on the application of the proposed definition.
10.28
The Committee recommends that the proposed term ‘foreign government related individual’ be included in the definition of a ‘foreign principal’.

Recommendation 4

10.29
The Committee recommends the implementation of the Attorney-General’s proposed amendments to introduce the term ‘foreign government related individual’ (as defined in those amendments) within the definition of a ‘foreign principal’ in proposed section 10.

Recommendation 5

10.30
The Committee recommends that the Attorney-General’s proposed definition of a ‘foreign government related individual’ be further amended so as to include those individuals who are directors or members of an executive committee, who are accustomed to act in accordance with the directions, instructions or wishes of a foreign government or a foreign political organisation, even if they are under no obligation to do so.

Retention of ‘foreign political organisation’

10.31
The Committee notes that the amendments proposed by the Attorney-General do not address concerns raised regarding the perceived ambiguity of the term ‘foreign political organisation’.
10.32
As noted in Chapter 9, stakeholders who provided supplementary submissions to the Committee’s review of the proposed amendments, expressed concern about the scope of organisations which may be covered by the definition.
10.33
On their analysis, a number of Australian-based international advocacy groups concluded that the term could be interpreted to include their international partners or counterpart (sister) organisations.
10.34
The Committee notes that the term, read in combination with the Explanatory Memorandum, provides that the term would not cover international advocacy organisations that do not operate politically. This interpretation was supported by the Department’s understanding of the interpretation of the term.
10.35
However, the Committee notes that clarity is important—particularly for a significant new Scheme that imposes an ongoing administrative burden and carries significant penalties for non-compliance.
10.36
The Committee notes that the definition is inclusive and is not exhaustive of the types of organisations that may fall within the term. This is appropriate, as providing an exhaustive list of the vast types of organisations that may operate to influence the Australian polity, is not feasible for legislation or appropriate for the policy intent.
10.37
Nonetheless, and noting its preference for increased clarity in the Scheme’s scope, the Committee is of the view that refinement of the term would substantially aid compliance with the Scheme and its obligations. This clarity will in turn improve the effectiveness of the Scheme in achieving the intent of bringing greater transparency and identifying foreign influence.
10.38
Therefore, the Committee is of the view that the Bill should retain its current inclusive definition of a ‘foreign political organisation’. However, the Committee recommends that the Bill be amended to provide greater specificity by including a subparagraph to the definition which provides ‘a foreign organisation that exists primarily to pursue political objectives’. This will reinforce that the definition is limited to inherently political organisations.

Recommendation 6

10.39
The Committee recommends that the Bill retain the current inclusive definition of a ‘foreign political organisation’ but be amended to provide that ‘foreign political organisation’ includes:
a foreign political party, and
a foreign organisation that exists primarily to pursue political objectives.

Section 11—Undertaking an activity on behalf of a foreign principal

Subsection 11(1)—Removal of ‘under the control of’, ‘with funding or supervision by’ and ‘in collaboration with’

10.40
As noted in Chapter 3, the Bill as introduced captures a wide breadth of relationships which may not usually be considered to be within the commonly understood meaning of ‘on behalf of’. Many stakeholders argued that the approach taken ‘goes beyond the usual meaning of the phrase’,2 and that it extends beyond ‘normal agency relationships’.3
10.41
The proposed sections that were identified of greatest concern to stakeholders were:
(e) with funding or supervision by the foreign principal; and
(f) in collaboration with the foreign principal.
10.42
The Attorney-General’s proposed amendments would address the stakeholders concerns about these subsections by removing them from the definition of ‘undertaking activity on behalf of a foreign principal.
10.43
The proposed removal of these two terms was strongly supported by stakeholders, and the Committee considers the proposal an appropriate refinement of the Scheme’s scope.

Recommendation 7

10.44
The Committee recommends implementation of the Attorney-General’s proposed amendments to remove, from the definition of ‘undertaking activity on behalf of a foreign principal’ in section 11 of the Bill, the terms
‘with funding or supervision by the foreign principal’, and
‘in collaboration with the foreign principal’.

Subsection 11(1)—Retention of ‘arrangement’

10.45
The Committee notes that stakeholders continue to hold concerns regarding the retention of the term ‘arrangement’ in proposed subsection 11(1)(a). The Committee is concerned that the lack of clarity around this term may diminish the effectiveness and integrity of the Scheme, and result in either non-compliance or an undue administrative burden.
10.46
The Committee accepts that it is appropriate that subsection 11(1)(a) and the definition of ‘arrangement’ extend to informal arrangements and understandings, to ensure that prospective registrants and foreign principals cannot evade the scheme by setting up informal arrangements. Similarly, limiting subsection 11(1)(a) to situations where there is an obligation for the person to engage in registrable activities would allow parties to avoid registration by drafting contracts that allow the potential registrant discretion as to whether to engage in such activities, notwithstanding that there may be a real understanding between the potential registrant and foreign principal that they will engage in such activities.
10.47
The Committee further notes that the definition of an ‘arrangement’ in section 10 of the Bill would involve a shared understanding or commonality as well as degree of structure in the contract, agreement or understanding between those parties. The Committee notes evidence from the Department that this was the intended reading of the term.
10.48
The Committee notes that its recommendation, below, to amend subsection 11(3) will have the effect of crystallising the intended reading of the term ‘arrangement’. The requirement for both parties to know or expect that the activity would be undertaken under the arrangement places beyond doubt that the arrangement—and the parties to the arrangement—must contemplate the undertaking of registrable activities, in Australia, for the purpose of political or governmental influence. In the Committee’s view, this is the kind of arrangement that should appropriately be captured by the Scheme.

Subsection 11(3)—Knowledge of activities

10.49
The Committee acknowledges stakeholder concerns regarding the wording of subsection 11(3), and whether it is an additional avenue to establishing that an activity is undertaken on behalf of a foreign principal, or, as the Department asserts, a limiting factor on subsection 11(1).
10.50
The Department advised the Committee that it is the policy intent of subsection 11(3) to limit subsection (1). That is, there must be both a circumstance set out in subsection 11(1) and the knowledge or expectation on behalf of the person and the foreign principal in subsection 11(3).
10.51
The Department was of the view that subsection 11(3) could be amended to provide that a person only undertakes an activity on behalf of a foreign principal within the meaning of subsection 11(1) if both the person and the foreign principal knew or expected that the person would or might undertake the activity, and that the person would or might do so in circumstances falling within sections 20, 21, 22 or 23 of the Bill (whether or not the parties expressly considered the existence of the scheme).4
10.52
The Committee is of the view that the Department’s proposed amendment will aid clarity and address the concern of stakeholders. Consequently the Committee recommends that subsection 11(3) be amended.

Recommendation 8

10.53
The Committee recommends that subsection 11(3) of the Bill be amended to provide that a person only undertakes an activity on behalf of a foreign principal within the meaning of subsection 11(1) if both the person and the foreign principal knew or expected that:
the person would or might undertake the activity, and
the person would or might do so in circumstances falling within sections 20, 21, 22 or 23 of the Bill (whether or not the parties expressly considered the existence of the scheme).

Subsection 11(4)—Subsidiaries of foreign principals

10.54
The Attorney-General’s proposed amendment to introduced new subsection 11(4) makes clear that the activities undertaken by a company registered under the Corporations Act 2001 will not be undertaken on behalf of a foreign principal merely because the company is a subsidiary (within the meaning of the Corporations Act 2001) of that foreign principal.
10.55
The Committee notes that this amendment merely proposes to move the original exemption for such subsidiaries to an exemption for subsidiaries registered under the Corporations Act 2001. The Committee addressed in Chapter 9 concerns raised by Optus regarding the proposed definition of a ‘foreign government related entity’.
10.56
As noted earlier, the Committee considers that some stakeholder concerns would have been allayed by an accompanying detailed explanation on the application of the proposed amendments.
10.57
The Committee supports the Attorney-General’s proposed amendments to introduce new subsection 11(4) to make clear that a subsidiary company, registered under the Corporations Act 2001, will not be required to register for registrable activities on behalf of their parent company.

Recommendation 9

10.58
The Committee recommends the implementation of the AttorneyGeneral’s proposed amendment to introduce new subsection 11(4) to the Bill.

Section 12—Activities for the purpose of political or governmental influence

Subsection 12(1)—Amendment to require that the purpose must be the sole or primary purpose, or a substantial purpose

10.59
The Committee considers that the proposed amendment addresses concerns raised regarding the Bill, and supports its implementation.
10.60
The Committee notes that the Law Council proposed a minor amendment, to replace the word ‘substantial’ with ‘dominant’. The Department referred to advice from the Office of Parliamentary Counsel that this is the preferred modern form of drafting.

Recommendation 10

10.61
The Committee recommends implementation of the Attorney-General’s proposed amendments to proposed subsection 12(1) of the Bill, which require that the activity must be for the sole or primary purpose, or a substantial purpose, of influencing political or governmental processes.

Section 13—Communications activity

10.62
The Committee considers that the proposed amendment addresses concerns raised regarding the Bill, and supports its implementation.
10.63
The Committee also notes that critical stakeholders spoke to the need for a revised Explanatory Memorandum to clarify the Bill’s application to media in light of the proposed amendments.

Recommendation 11

10.64
The Committee recommends implementation of the Attorney-General’s proposed amendments to section 13 of the Bill which provide that broadcasters, carriage service providers and publishers are not required to register, merely because they edit information or materials produced by a foreign principal.
10.65
The Committee also notes that several stakeholders provided supplementary submissions on the Attorney-General’s proposed amendments in relation to communications activity. The Committee considers that this indicates the need for specific and detailed guidance to be developed on the application of the revised Bill to online publishers and platforms.
10.66
Noting the number of online publishers and platforms, the Committee is of the view that guidance should be developed prior to the commencement of the Scheme, to provide clarity to those entities on their liability to register.

Recommendation 12

10.67
The Committee recommends that the Attorney-General’s Department prepare and publish prior to the commencement of the Foreign Influence Transparency Scheme, detailed guidance material to assist online publishers and platforms with clarity as to their liability to register under the Scheme.

Section 14—Purpose of activity

10.68
Noting the concerns raised in subsection 11(3) with regards to the relevant knowledge of the person and the foreign principal, and reflecting the stakeholder evidence on the Bill as originally introduced, the Committee considers it advisable that subsection 14 be similarly amended.
10.69
The Department advised the Committee that it is the policy intent for both the person and the foreign principal to have the knowledge or expectation that the person would undertake activities on behalf of the foreign principal.5
10.70
The Committee has identified that, to meet this stated intent, an amendment is necessary to subsection 14 to make clear that the purpose of the activity must be determined by the intention or belief of person undertaking the activity.
10.71
Noting that it may not be possible, or relevant, to determine whether the foreign principal intended for the purpose of activity to influence a process provided in section 12, the Committee considers it appropriate that, in addition to the person’s intention or belief, reference may be had to, either:
the intention of any foreign principal on whose behalf of the activity is undertaken, or
any of the circumstances in which the activity is undertaken.

Recommendation 13

10.72
The Committee recommends that proposed section 14 of the Bill be amended to clarify that the purpose of an activity may be determined by having regard to the intent or belief of the person undertaking the activity and
the intention of any foreign principal on whose behalf the activity is undertaken, or
all of the circumstances in which the activity is undertaken.

Part 2, Division 3—Registrable activities

Extension of relevant time period for former Cabinet Ministers and recent designated position holders

10.73
The Committee notes that the Attorney-General’s proposed amendments seek to extend the additional obligations of former Cabinet Ministers (from three to ten years) and recent designated position holders (from 18 months to seven years).
10.74
The Committee considers additional obligations on former Cabinet Ministers are appropriate as they reflect the ongoing positions of influence these former officer holders occupy—despite leaving office—in the Australian polity.
10.75
The Committee notes that these are additional obligations to those that arise under the remainder of the Scheme, and considers that the imposition of these additional obligations is appropriate.
10.76
However, the Committee is of the view that these office holders remain influential beyond the period proposed by the Attorney-General. The Committee therefore recommends further amendment to the Attorney-General’s proposed amendments that would extend the relevant timeframes as follows:
for a former Cabinet Minister, the time period of ten years should be removed altogether, such that these additional obligations would extend in perpetuity; and
for recent designated position holders, the time period be amended from seven years to 15 years.

Recommendation 14

10.77
The Committee recommends the implementation of the Attorney-General’s proposed amendments with regard to additional obligations for former Cabinet Ministers and recent designated position holders in section 22 and proposed section 23 of the Bill, with further amendments as follows:
for a former Cabinet Minister, the time period of ten years should be removed altogether, such that these additional obligations would extend in perpetuity; and
for recent designated position holders, the time period be amended from seven years to 15 years.

Recommendation 15

10.78
The Committee recommends that the Government consider amending the definition of ‘recent designated position holder’ in the AttorneyGeneral’s proposed amendments to include individuals employed under the Members of Parliament (Staff) Act 1984 at the rank of Senior Adviser or above within the Ministry, so that the additional duties in section 23 (Registrable activities: recent designated position holders) apply to such people after they leave their employment.
10.79
The Committee also considers that that former Cabinet Ministers and recent designated position holders should not be able to access the exemption as amended under proposed section 29 (Exemption: government, commercial or business pursuits).
10.80
The Committee is of the view that this should be set out in amendments to proposed sections 22 and 23.

Recommendation 16

10.81
The Committee recommends that proposed section 22 (Registrable activities: former Cabinet Ministers) and 23 (Registrable activities: recent designated position holders) of the Bill be amended so that the individuals to whom those provisions apply cannot rely upon the exemptions in proposed section 29 (Exemption: government, commercial or business pursuits) to avoid what would otherwise be their registration obligations.

Exemptions

10.82
The Committee notes that a number of submissions and witnesses raised concerns with proposed Part 2, Division 4—Exemptions. These concerns—summarised in Chapter 4 of this report—include the limited availability of the proposed humanitarian exemption; no exemptions for charities, non-for-profit organisations, industry representative bodies, or arts and cultural organisations; a narrow scope to legal representation exemptions; and, the potential the Bill would capture religious activities.
10.83
The Committee considers that many of these concerns were addressed through the Attorney-General’s change to proposed Part 1, Division 2—Definitions, and changes to the exemptions provisions in the Bill.6 However, supplementary submissions and public hearings responding to the Attorney-General’s proposed amendments raised some residual concerns in the exemption provisions.

Section 24—Exemption: humanitarian aid or assistance

10.84
The Committee notes the Attorney-General recommended amending the exemption for humanitarian aid or assistance (proposed section 24) to cover ‘a person undertaking activity on behalf of a foreign principal primarily for the provision of humanitarian aid or assistance’. The Committee is satisfied that this amendment will provide a greater degree of flexibility to ensure that the exemption is not restricted to cases where the activity solely relates to the provision of humanitarian aid or assistance, as was the case in the original drafting of the Bill.
10.85
The Committee notes submitters’ concerns that the terms used in the proposed exemption are ‘generally understood to be limited to emergency responses, and not to long-term development assistance’.
10.86
However, the Committee considers that the Explanatory Memorandum provides a degree of flexibility as to what is encompassed by the terms ‘humanitarian aid’ and ‘humanitarian assistance’, which are
intended to be construed broadly, to apply to all aspects of humanitarian aid and assistance where the purpose is to save lives, alleviate suffering and maintain human dignity.7
10.87
The Explanatory Memorandum further states the term ‘provision of’ is also
intended to be construed broadly, to capture both direct forms of humanitarian aid and assistance, including through donating funds and delivering in country humanitarian assistance such as medical services, as well as activities beyond the act of directly giving or providing humanitarian aid or assistance, such as activities relating to processes and procedures which support the provision of humanitarian aid or assistance.8
10.88
The Committee considers the broad interpretation of these terms, along with the proposed amendment to replace ‘solely’ with ‘primarily’, ensures that the exemption covers the provision of preventative and long-term humanitarian aid or humanitarian assistance, as well as emergency responses.
10.89
However, the Committee notes the Explanatory Memorandum could be expanded to capture examples of preventative humanitarian aid and assistance; and to clarify that long-term development assistance is also included under the exemption.

Recommendation 17

10.90
The Committee recommends implementation of the Attorney-General’s proposed change to section 24 of the Bill.
The Committee further recommends that the Explanatory Memorandum is revised to clarify the circumstances under which the humanitarian aid and assistance exemption applies. In particular, the Committee recommends the exemption should not be limited to responsive humanitarian aid or assistance, but rather capture preventative and long-term humanitarian aid and assistance.

Section 25—Exemption: legal advice or representation

10.91
The Committee accepts the Attorney-General’s proposed amendments to proposed section 25, and notes that it ‘is an improvement and accords with the [Law Council] and Law Firms Australia’s alternative position’.9
10.92
However, the Committee notes that supplementary submissions from both the Law Council and Law Firms Australia identified that the phrase ‘or relates primarily to’ used in proposed section 25 is inconsistent with clause 3.5(f) of the Federal Lobbying Code of Conduct, which uses the words ‘or is incidental to’.10
10.93
The Committee notes advice from the Department that the term ‘primarily’ simply ‘reflects modern drafting practice’, and it would not make ‘a lot of practical difference’ if the terms ‘incidental’ and ‘primary’ were interchanged. The Law Council also advised that ‘it can be fairly said … that's the intent of these amendments, but it would be good if they were aligned in order to ensure there is no inconsistency’.11
10.94
The Committee notes the importance of providing consistent definitions between various acts and codes, and if the result of replacing the term ‘relates primarily to’ in the Bill will make little ‘practical difference’, then the preference is to replace it for clear and consistent wording to aid clarity.

Recommendation 18

10.95
The Committee recommends implementation of the Attorney-General’s proposed amendments to section 25 of the Bill, subject to the Government considering amending the section to also apply to activities that are ‘incidental to’ the matters currently listed in paragraphs (a) to (c).

Section 26—Exemption: diplomatic, consular or similar activities

10.96
The Committee notes that the Attorney-General did not propose amendments to section 26.

Section 27—Exemption: religion

10.97
The Committee accepts initial concerns that the exemptions under proposed section 27 of the Bill may not apply to religious groups such as the Catholic Church in Australia.
10.98
The Committee notes the Attorney-General’s proposed amendments to proposed section 27 exempts a person in relation to a religious activity the person undertakes, in good faith, on behalf of a foreign principal. The Committee recognises that the amendment was proposed in order to put concerns by the Catholic Church ‘beyond doubt’.12
10.99
However, the Committee notes further concerns from the Australian Catholic Bishops Conference, which submitted that the ‘proposed new exemption for religion does not offer certainty or clarity and so may have the effect of discouraging legitimate public policy comment by religious groups’.13 The Australian Catholic Bishops Conference proposed amending the exemption, as discussed in Chapter 9.
10.100
At a public hearing, the Department noted:
the amendment … was, in fact, actually intended to give effect to or to respond to the concerns articulated by the Australian Catholic Bishops Conference in its previous submissions and evidence to this committee. We certainly were under the impression we had faithfully given effect to that and had mirrored the exemption in the United States Foreign Agents Registration Act that they had referenced in their submissions. To the extent that there's any residual concern that that is not the effect achieved by the amendments, then we are open to either of those form of words to make that very clear. ... We are seeking to exclude religious activities from the effects of the bill.14
10.101
The Committee acknowledges the concerns raised by Australian Catholic Bishops Conference and the representations they have made to the Committee. The Committee fully supports an exemption for religious institutions and activities they may undertake in good faith primarily for religious purposes.
10.102
The Committee also notes evidence from the Department that it is the clear policy intent for religious activities to be exempt from the Scheme. Further, the Committee received strong evidence from the Department that the amendment was drafted specifically to give effect to this. It is the view of the Committee that section 27 (as amended by the Attorney-General) will provide the necessary breadth of exemption for such activities and the Committee further notes that other charitable activities that these institutions may undertake will be exempt under other recommendations of this Report.
10.103
While it is the view of the Committee that this is given effect under the proposed amendments, the Committee recommends that the Explanatory Memorandum be amended to ensure clarity.

Recommendation 19

10.104
The Committee recommends implementation of the Attorney-General’s proposed amendment to section 27 (Exemption: religion) of the Bill, and that the Explanatory Memorandum be amended to reflect the Government’s intention that religious institutions are exempt.

Section 28—Exemption: news media

10.105
The Committee notes the Attorney-General’s proposed narrowing of the scope of the Bill through changes to the definitions to ensure that an exemption for news media is no longer required under section 28 of the Bill.

Recommendation 20

10.106
The Committee recommends implementation of the Attorney-General’s proposed amendment to delete section 28 of the Bill.

Section 29—Exemption: government, commercial or business pursuits

10.107
The Committee supports the Attorney-General’s proposed amendments to section 29 of the Bill, subject to minor amendments.
10.108
The Committee acknowledges the potential issue with proposed section 29(2) applying more broadly than intended. The Committee therefore agrees that subsection 29(2) should be amended so that the exemption applies only where an individual’s position as a director, officer or employee is obvious on the face of the otherwise registrable activity undertaken by the individual.
10.109
The Committee further notes that the exemptions applied in proposed section 29(2)(b) in relation to commercial and business pursuits require further clarity in the Explanatory Memorandum.
10.110
At a public hearing, the Committee questioned whether the proposed section 29(2) exemption would apply in the case of a company—related to a foreign government—that might be trying to influence a purchasing decision worth billions of dollars.
10.111
The Department noted that ‘there are many other ways in which those types of tendering arrangements are transparent to the public’ but that ‘the purpose was that, for certain commercial pursuits, there is not the same level of engagement in Australia's democracy as the other processes that are listed in the definitions in the Bill’.15

Recommendation 21

10.112
The Committee recommends implementation of the Attorney-General’s proposed amendments to section 29 of the Bill, with further amendments to subsection 29(2) so that the government, commercial or business pursuits exemption applies only where an individual’s position as a director, officer or employee is obvious on the face of the otherwise registrable activity undertaken by the individual.

Recommendation 22

10.113
The Committee recommends that the Explanatory Memorandum be amended to clarify the intent of the amended section 29 of the Bill and the circumstances under which commercial and business pursuits would be exempt.

Section 29A—Exemption: industry representative bodies

10.114
The Committee considered submissions on the Attorney-General’s proposed inclusion of section 29A of the Bill—an exemption for industry representative bodies. The Committee appreciates Chemistry Australia and The Australian Industry Group’s concerns that the proposed section 29A exemption created ambiguity in relation to section 29A(d)—the requirement that the activity the person undertakes in relation to a foreign principal ‘is, or relates primarily to, representing the interests of business, or the particular sector as a whole’.16
10.115
The Committee understands that Australian industry is, by its nature, fragmented, and that there are sectors and subsectors within industry that are predominantly foreign government owned. Further, individual issues or feedback may only relate to a narrow subset of members, or a single member.
10.116
However, given the Department’s ‘strong view’ that proposed section 29A(d) not be deleted, the Committee considers that further guidance should be provided in the Explanatory Memorandum on the kinds of activities that are included and excluded by proposed section 29A(d).
10.117
The Committee therefore recommends that the Explanatory Memorandum be amended to provide further guidance to industry representative bodies on the circumstances under which section 29A(d) applies. In particular, the Explanatory Memorandum should address situations in which a narrow subset of members’ interests are dealt with by an industry representative body, and situations in which a single member’s interests are dealt with.

Recommendation 23

10.118
The Committee recommends implementation of the Attorney-General’s proposed amendment to provide an exemption for industry representative bodies in section 29A of the Bill.
The Committee recommends the Government amend the Explanatory Memorandum to provide clarity to industry representative bodies as to what types of activities would be included and excluded under proposed section 29A(d) of the Bill.

Section 29B—Exemption: personal representation in relation to administrative process etc.

10.119
The Committee notes concerns that the Bill does not provide exemptions for matters of a personal nature. In response, the Attorney-General suggested amendments to introduce proposed section 29B.
10.120
The Committee received no supplementary submissions to the review on this section. However the Committee considers the proposed section enhances the exemptions by allowing for activity on behalf of family members; in circumstances where the individuals know each other personally and the activity is undertaken because of this in a personal capacity; and where the activity relates primarily to, representing in good faith the interests of the foreign principal in relation to an administrative process or matters affecting the personal welfare of the foreign principal.

Recommendation 24

10.121
The Committee recommends implementation of the Attorney-General’s proposed section 29B exemption for personal representation in relation to administrative process etc.

Exemption for charities

10.122
The Committee acknowledges the important contribution the charity and non-for-profit sector contributes to Australia, and notes that in 2016 half of the registered 55,600 charities had no paid staff, and the sector was supported by 2.9 million volunteers.17
10.123
The Committee notes the Attorney-General’s proposed changes to the definition of foreign principal under section 10 of the Bill, and to the definition of ‘undertaking activity on behalf of a foreign principal’ in section 11. These proposed amendments address many of the concerns raised by the charity and non-for-profit sector, and provide greater clarity and certainty to charities on registration requirements.
10.124
The Committee considers that charities and not-for-profits will be largely exempt under the scheme by virtue of the proposed amendments to the definitions in the Bill. However, the Committee accepts that some charities and not-for-profits may still be within the scope of the Scheme as proposed.
10.125
The Committee therefore recommends that the Bill be amended to provide a limited exemption for charities from the Scheme. This recommendation appears in the following paragraphs.

Exemption for the arts and cultural activities

10.126
The Committee notes that there is no exemption in the Bill for arts and cultural activities. The Department advised that it does not consider that collaboration between Australian and foreign arts organisations would fall within the definition of undertaking activities on behalf of a foreign principal in section 11 of the Bill.
10.127
Nevertheless, the Committee is of the view that there may be some relationships between Australian arts bodies and foreign governments that may be captured under the Scheme. The Committee therefore recommends that the Bill be amended to provide for a limited exemption for arts organisations.
10.128
This recommendation appears in the following paragraphs.

Exemption for industrial associations

10.129
The Committee notes that there is no exemption in the Bill for industrial associations. The Committee has considered evidence from the Australian Council of Trade Unions regarding the relationships it has with organisations that may be considered foreign political organisations.
10.130
The Committee notes that it has recommended amendments to the definition of ‘foreign political organisation’.
10.131
However the Committee considers it necessary for a limited exemption in line with that of charities and artistic groups.

Recommendation 25

10.132
The Committee recommends the Bill be amended to provide exemptions for charities, arts organisations and industrial associations, which would operate to relieve those organisations of an obligation to register when they are making routine representations in accordance with their respective purposes, and where the relationship with the foreign principal is well known or a matter of public record.

Exemption for other professions for representations made in the normal course of professional services

10.133
The Committee notes concerns that the Bill does not provided an exemption for members of, or activities in connection with, certain professions. The Committee considers that a number of the Attorney-General’s proposed amendments have substantially addressed these concerns.
10.134
Despite these significant improvements, the Committee identifies that an exemption is warranted.

Recommendation 26

10.135
The Committee recommends that the Bill be amended to provide a limited exemption for professions (such as tax agents, customs brokers and liquidators) where representations to government are parts of the normal day-to-day work of the people in that profession, and where the activity is such a regular day to day representation in the name of a foreign principal.

Availability of exemptions for registrable arrangements

10.136
The Committee recognises that ambiguity may arise where a person has entered into an arrangement to undertake registrable activities, but the activities are not yet performed. The proposed exemptions only apply to activities, and would not cover persons who have entered into arrangements, but not yet performed activities.
10.137
The Committee notes the Department’s advice that the exemptions apply regardless of whether a person has a registrable arrangement with a foreign principal or undertake registrable activities on behalf of a foreign principal.
10.138
The Committee considers the Department’s advice should be included in the Explanatory Memorandum to provide certainty.

Recommendation 27

10.139
The Committee recommends the Bill be amended to clarify that the proposed exemptions provisions apply to both arrangements and activities.

Members of parliament and parliamentary privilege

10.140
The application of the Bill to members of parliament was a significant matter of concern raised in the Committee’s inquiry.
10.141
Parliamentary privilege—that is, the special rights and immunities that apply to each House of the Parliament, its committee and its members—is derived from the United Kingdom’s Bill of Rights 1688, was inherited by the Commonwealth Parliament in 1901 through section 49 of the Constitution, and was partially codified in the Parliamentary Privileges Act 1987. It continues to be an important feature of Australia’s democratic system.
10.142
The Committee notes that the Bill, as originally drafted, does not explicitly seek to abrogate parliamentary privilege. However, as the Bill expressly covers a range of activities likely to be undertaken by members of parliament in the course of their duties, including in relation to ‘proceedings of a House of the Parliament’ (proposed section 12(c)) and ‘parliamentary lobbying’ (proposed section 21), the interaction of the scheme with parliamentary privilege is unclear.
10.143
The Committee therefore welcomes the Attorney-General’s proposal to insert a ‘savings provision’ into the Bill in the form of proposed section 9A. This provision will make clear that the Bill does not affect the law relating to the powers, privileges and immunities of the parliament, its members or its committees. The Committee also welcomes amendments that will provide that a notice issued by the Secretary under sections 45 or 46 does not extend to requiring a person to produce information or documents covered by privilege, and that any such notices will make the effect of section 9A clear to the recipient.
10.144
The Committee notes advice from the Clerk of the House of Representatives and the Clerk of the Senate that the proposed amendments appear to ‘largely address’ their earlier concerns.
10.145
However, the Committee also notes advice from eminent barrister, Mr Bret Walker SC, that the proposed amendments do not go far enough. In particular, the Committee notes that there are a range of activities undertaken in the course of a member of parliament’s duties that are unlikely to be covered by privilege, or are not sufficiently closely linked to formal parliamentary proceedings for the member to know whether registration is required. The Committee considers it important that this uncertainty is addressed.
10.146
The Committee further notes that, in circumstances where the conduct of a member of parliament is not considered to be covered by parliamentary privilege, a separation of powers issue arises. That is, a member of parliament would be required to report certain activities to the Department—part of the executive branch—and the Secretary of that Department would have the ability to compel the member of parliament to provide certain information or documents, or face possible criminal sanctions.
10.147
Moreover, the Committee notes the clear advice from the Attorney-General’s Department that it is intended that members of parliament be subject to transparency disclosure requirements. While noting the appropriateness of the amendment expressly not applying to conduct covered by parliamentary privilege, the extent to which transparency would be achieved in relation to foreign influence on parliamentary decision-making is unclear.
10.148
Members of parliament perform a range of duties that bring them into contact with foreign governments and entities, including, for example:
as members of parliamentary committees engaging with their counterparts in foreign countries,
on parliamentary study tours, and
representing their constituencies, in relation to issues such as foreign investment.
10.149
Although it is important that parliamentary privilege is not abrogated, the Committee considers that members of parliament should not as a result be excused from the transparency obligations placed on other members of the public. The Committee strongly endorses the principle that Senators and MPs should be transparent about when they are representing foreign government and related interests. However, given the unique nature of Parliamentarians’ work, and the unique status of the Parliament and its privileges, it is more appropriate that the Parliament establish its own registers.
10.150
For these reasons, the Committee support proposals for the House of Representatives and the Senate to establish a parliamentary foreign influence transparency scheme. The parliamentary transparency scheme should impose on members and senators similar transparency obligations to the Bill, appropriately adapted for the parliamentary environment. That is, members of parliament should be required to report on any registrable activities, or arrangements entered into, on behalf of a foreign principal. Similar to the Bill, the scheme should provide for the ability of its administrator to require information to be provided, and allow for penalties to be imposed for non-compliance.
10.151
Noting the potential for uncertainty in the interpretation of ‘parliamentary proceedings’—and to avoid members of parliament being potentially required to register under two separate schemes—the Committee considers that members of parliament should not be subject to the scheme established by the Bill. The parliamentary transparency scheme should accordingly be extended to cover the full range of activities engaged in by parliamentarians, whether or not these are covered by parliamentary privilege.
10.152
This will provide greater clarity and ensure a more effective, all-encompassing scheme. Given the role of members of parliament, an all-encompassing scheme is preferable to that proposed under the Bill and the Attorney-General’s amendments.
10.153
The Committee considers it appropriate that, similarly to existing registers of interests, the scheme be administered from within the Parliament. The Committee recognises, however, the level of complexity and sensitivity that could arise in relation to the obligations under the scheme—including in relation to decisions as to what information is made publicly available. In developing the scheme, the Houses may therefore wish to consider whether an independent officer of the Parliament should be appointed to administer the scheme.
10.154
The Committee notes that the Auditor-General and the Parliamentary Budget Officer provide current examples of independent officers being established with particular functions on behalf of the Parliament. The Committee also notes that the independent Commissioner of Lobbying, established by the Parliament of Canada to ensure transparency and accountability in the lobbying of public office holders, may provide a useful model for the development of an Australian independent administrator.
10.155
Regardless of the model of administration developed by the Houses, the Committee recognises that additional resources will need to be allocated to support the administration of the scheme.
10.156
While members of parliament would be exempted from the Bill, the Committee considers that it would be beneficial to retain proposed section 9A in the Bill in order to clarify the application of parliamentary privilege in relation to the interactions other persons with parliamentary proceedings. Noting that without section 9A the Bill could potentially be seen to limit parliamentary privilege, and noting the Department’s advice that such a limitation was not intended, the Committee further considers that subsection 9A(1) should be prefaced with the words ‘To avoid doubt …’. This would be consistent with drafting techniques commonly employed in relation to privilege matters.18

Recommendation 28

10.157
The Committee recommends implementation of the Attorney-General’s proposed amendments to clarify the interaction of the Bill with parliamentary privilege, including by the insertion of a ‘savings provision’ in section 9A of the Bill and limiting the application of the Secretary’s powers to obtain information or documents.
However, the Committee recommends that subsection 9A(1) be prefaced with the words ‘To avoid doubt’.

Recommendation 29

10.158
The Committee recommends that the Bill be amended to provide that the Foreign Influence Transparency Scheme does not apply to members of the House or Representative or Senators.
The Committee further recommends that the House of Representatives and the Senate develop a parallel parliamentary foreign influence transparency scheme, imposing on Members and Senators similar transparency obligations to those in the Bill, but appropriately adapted for the parliamentary environment.
In developing that parallel scheme, the Houses should consider all conduct undertaken by Members and Senators in the course of their duties as parliamentarians, including conduct not directly related to proceedings in the Parliament. The scheme should be administered independently within the Parliament, and include
an obligation to report registrable activities undertaken on behalf of a foreign principal, or registrable arrangements with a foreign principal, appropriately adapted for the parliamentary environment,
a power for the administrator to obtain information and documents, and
appropriate sanctions for non-compliance.

Registrants’ obligations

Section 16—Requirement to register

10.159
The Bill as introduced does not set out in the primary legislation the information that must be required to affect registration (section 16). Rather, these requirements are proposed to be set out in rules.
10.160
The Department noted that it intends that rules will provide that the following information will be required to affect registration:
the name of the person and general details (address, occupation, citizenship status and any prior government employment, including position and term of employment),
the name of the foreign principal and general details (contact details, nationality, type of foreign principal and general description of business/activities),
high level details of the nature of the relationship between the registrant and the foreign principal (for example, whether there is a contract in place, an informal agreement or otherwise) and whether the person has received / is receiving financial benefits from the foreign principal, and
issues of interest which the registrant intends to pursue on behalf of the foreign principal (such as, environmental issues, defence contracts, a particular vote or policy).
10.161
To provide the necessary flexibility, the Committee considers that should there be a requirement for additional information in the future, this should be set out in regulations and subject to a disallowance period.

Section 34—Reporting material changes in circumstances and section 35—Reporting disbursement activity in Australia for the purpose of political or governmental influence (other than in voting period)

10.162
The Committee notes that stakeholders raised significant concerns regarding the regulatory burden imposed by requirements under the Bill.
10.163
The Committee is satisfied that many of these concerns have been alleviated by the Attorney-General’s proposed amendments to refine the scope of the Scheme.
10.164
Further, the Committee is satisfied that the Attorney-General’s amendments will substantially reduce the regulatory burden associated with the Scheme, and timely reporting in relation to foreign influence that emanates from a foreign government or closely-related entities is of particular importance.

Recommendation 30

10.165
The Committee recommends that the review required under proposed section 70 of the Bill specifically consider the appropriateness of the reporting requirements in light of the experience garnered through the operation of the Scheme.
10.166
The Committee also considers it appropriate that registrants be required to report more regularly during significant periods where the impact of their activities to influence outcomes is greater. In Australia’s democratic system, elections are a period where a significant volume of information is distributed and activities undertaken in an attempt to influence voters. In the vast majority of cases, this is legitimate activity as regulated under the Commonwealth Electoral Act.
10.167
However, the potential for foreign influence in elections and our democratic systems must be appropriately guarded against. Accordingly the Committee considers it appropriate that registrants are required to provide more regular updates during these periods (as proposed in sections 36 and 37). The Committee does not therefore, seek any amendment to those provisions.

Section 38—Disclosure in communications activity

10.168
The Committee notes that the obligations set out in proposed section 38 will require a person to not only register under the Scheme, but also provide disclosure of any communications activities undertaken on behalf of a foreign principal. As drafted, the Bill provides that these disclosure obligations will be provided in rules.
10.169
The Explanatory Memorandum foreshadows that the rules may extend to requiring that disclosure be made on the materials communicated, and in a certain size font, that identifies that the foreign principal and the arrangement under which the communication materials were developed.19
10.170
The Committee considers a disclosure requirement on the materials is appropriate, however notes that these materials may well be captured under existing regulation provided by the Commonwealth Electoral Act 1918, including Part XX of that Act.
10.171
Noting that there may be considerable overlap—which, in practice may require two disclosures to be made on the same material to satisfy both the Commonwealth Electoral Act 1918 and the requirement under the Bill—the Committee is of the view that consideration should be given to aligning the obligations.
10.172
Certain electoral communications are legally required to be accompanied with a statement of who authorised their distribution. The purpose of such statements is to promote ‘free and informed voting at elections’ by enhancing:
the transparency of the electoral system, by allowing voters to know who is communicating electoral matter;
the accountability of those persons participating in public debate by making those persons responsible for their communications; and
the traceability of communications, by ensuring that obligations imposed by the Electoral Act in relation to those communications can be enforced.20
10.173
These purposes are broadly similar with some of the purposes identified for the Bill, and so provide a comparable objective for imputing a similar disclosure requirement into the Bill.
10.174
In March 2018, a range of new authorisation requirements entered into force regarding electoral communications (Part XX of the Commonwealth Electoral Act). The new authorisation requirements apply to an expanded range of communications containing ‘electoral matter’ including all publicly communicated material. This includes printed material, social media, voice calls (including robocalls) and text messaging (for example, bulk text messaging). These authorisation requirements are not limited to voting periods, but apply perpetually.
10.175
The new requirements provide a tiered system of disclosure obligations based on who has authorised it (a registered political party, an associated entity, current members of Parliament carry greater disclosure obligations), and the type or method of communication.
10.176
The Committee is of the strong view, that the principles adopted by the Joint Standing Committee on Electoral Matters’ report should be considered in the development of the disclosure rules under the Scheme. The principles that have guided the Joint Standing Committee on Electoral Matters’ (JSCEM) reports are:
Transparency via visible and timely disclosure;
Clarity about what is required and by whom;
Consistency of regulations, so that they capture all participants and support a level playing field; and
Compliance through enforceable regulations with minimal, practicable compliance burdens.21
10.177
In line with the principles articulated by the JSCEM, the Committee supports the additional transparency that is proposed to be provided to decisionmakers (which may include voters) under section 38 of the Bill. However, the Committee is of the view that the Government should consider providing clarity in the rules about what is required to be disclosed, and that where appropriate this should be consistent, or align, with the existing obligations contained in electoral law. The Committee is of the view that clarity and consistency are significant drivers of compliance, but accepts that differences in the context and operation of the scheme may require some appropriate adaptations.

Recommendation 31

10.178
The Committee recommends that the rules should provide clarity about the disclosure requirements, and that the Government should consider the existing obligations contained under the Commonwealth Electoral Act 1918 when developing these rules.

Section 40—Record keeping

10.179
The Committee notes the significant concern expressed by stakeholders regarding record keeping requirements under the Bill. Although the Committee considers some of these concerns may be ameliorated by the refined scope of the Bill, as proposed by the Attorney-General, some concerns still remain.
10.180
The Committee acknowledges the considerable regulatory burden created by section 40 of the Bill and notes that the Attorney-General’s proposed amendments have not sought to engage with the record keeping obligations.
10.181
The Committee is of the view that stakeholder concerns should be addressed by providing clarity on the types of records that will be required to be kept by registrants. The proposed section provides a wide range of matters that may require records to be kept. To provide clarity and certainty for stakeholders, the Committee recommends guidance be developed on the types of records required to be kept, and that this guidance be publicly available prior to the commencement of the Scheme. The Committee considers this guidance is essential for the compliance and integrity of the Scheme.

Recommendation 32

10.182
The Committee recommends that the Attorney-General’s Department prepare, and publish prior to the commencement of the Scheme, detailed guidance on the types of records that are required to be kept for the purpose of section 40 (Keeping records) of the Bill.

Recommendation 33

10.183
The Committee recommends that section 40 of the Bill be amended to lower the period a person is required to retain records from five years to three years after registration ends, and that the Government consider an amendment that would provide that records of ten years or more are no longer required to be retained by a registered person.

Section 63—Charges

10.184
As noted by the Department, in many instances foreign influence is ‘quite legitimate’. The intent of the Bill is not to diminish or quell lobbying activities, but to bring transparency to these interactions and engagements.
10.185
Moreover, in a representative democracy, the Committee is of the view that seeking access to elected representatives should not be accompanied by the imposition of a fee. Therefore the Committee considers that charges for initial registration, renewal and any reporting lodgement should be removed from the Bill. This would aid compliance and ensure that legitimate activities are not adversely impacted by the Bill. The Committee recommends that the section 63 be removed from the Bill.
10.186
The Committee also notes that the Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017—which was not referred to the Committee—will also need to be withdrawn to give effect to the Committee’s recommendation.

Recommendation 34

10.187
The Committee recommends that the Bill be amended to remove section 63, and the Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017, be withdrawn.

Relationship with the Lobbying Code of Conduct and Register of Lobbyists

10.188
The Committee notes that many of the lobbying activities captured by the Scheme will already be regulated under the Lobbying Code of Conduct and the Register of Lobbyists.
10.189
In February 2018, the Auditor-General released a performance audit report on the management of the Australian Government’s Register of Lobbyists. The Auditor-General concluded that improvements could be made to communications, compliance management and evaluation for the Code and the Register.
10.190
Critically, the audit found the effectiveness of the Department’s compliance monitoring approach has been reduced by the lack of strategy around advice to Government representatives of their compliance monitoring responsibilities and reliance on reports of non-compliance to drive compliance activities.
10.191
The Committee also notes the evidence received to the Bill which called for exemptions to be provided for those persons already registered on the Register of Lobbyists.
10.192
The Committee considers that it would be inappropriate for an exemption to be provided to the legislative scheme proposed by the Bill, based on the Lobbying Code of Conduct or the Register of Lobbyists.
10.193
However the Committee considers it appropriate to consider better aligning the Lobbying Code of Conduct and the Register of Lobbyists with the proposed Scheme.

Recommendation 35

10.194
The Committee recommends that, following the passage of this Bill, the Government introduce measures to:
better align the Lobbying Code of Conduct and the Register of Lobbyists with the proposed Foreign Influence Transparency Scheme, and
amend the Lobbying Code of Conduct to provide an exemption for registration where a person is registered under the Foreign Influence Transparency Scheme.

Operation of the Scheme

Section 43—Certain information to be made publicly available

10.195
The Secretary will be required to publish certain information online for public access unless the information is ‘commercially sensitive’, ‘affects national security’ or is of a kind prescribed by rules.
10.196
The Committee supports the prohibition on the Secretary publishing matters that are commercially sensitive or affect national security. Publishing such information would not be appropriate.
10.197
The Committee is of the view that that greater clarity and direction should be provided to the Secretary in this decision through amending the Explanatory Memorandum to further explain these two terms. Greater direction will also aid the integrity and safeguards of the Scheme.

Recommendation 36

10.198
The Committee recommends that the Explanatory Memorandum be amended to provide clarity about the terms ‘commercially sensitive’ and ‘national security’.
10.199
The Foreign Influence Transparency Scheme is intended to provide the public with ‘sunlight’ on the source of foreign influence in Australia’s government and political decision making. However, it will only achieve that objective through timely publication of the required registration and reporting requirements as set out in the Bill.
10.200
Despite this, the Secretary administering the Scheme is not required to publish Scheme information within any set time period, merely that the information be made available to the public, on a website (section 43 of the Bill).
10.201
The Committee is of the view that the transparency provided by the public register will be informative and beneficial, particularly during election periods where it may be reasonably expected that the number and scale of registrable activities will be higher.
10.202
To achieve the stated policy intent, the Committee therefore recommends that section 43 of the Bill be amended to clearly set out time periods for the publication of information listed in subsection 43(1). The Committee considers the following timeframes would be appropriate:
four weeks for information provided outside of a voting period (under proposed sections 34 and 35), and
48 hours for information provided within a voting period (under proposed sections 36 and 37).
10.203
There is precedent in the Commonwealth Electoral Act 1918 Part XX (Division 4 and 5) to require an administrator to make public returns submitted by relevant entities. The administrator (in this case the Electoral Commissioner) is required to publish entities’ disclosure of donations on an annual basis and within a set period following electoral events (including by-elections).

Recommendation 37

10.204
The Committee recommends that section 43 of the Bill be amended to require the Secretary to publish information listed in section 43 within a period of four weeks of receiving the information from a person liable to register under the Scheme.
Further, the Committee recommends that for information provided during voting periods, as required under proposed section 36 and 37, the Secretary should be required to publish relevant information within 48 hours of its receipt.
However, there should be a limited ability for the Secretary to take longer to publish information in circumstances where he or she is considering whether one of the grounds for non-publication applies.
10.205
The Committee notes the Australian Information Commissioner recommended that a Privacy Impact Assessment be undertaken and the Department agreed that this would be undertaken ‘prior to the commencement of the scheme’.
10.206
The Committee recommends such an assessment should take place at the earliest possible opportunity and prior to the commencement of the Scheme to ensure information both requested and shared by the Secretary is undertaken in compliance with an individual’s right to privacy.

Recommendation 38

10.207
The Committee recommends a Privacy Impact Assessment is undertaken at the earliest possible opportunity and prior to the commencement of the Scheme to ensure information both requested and shared by the Secretary is undertaken in compliance with an individual’s right to privacy.

Sections 45 and 46—Notices requiring information

10.208
The Committee notes the scope of the Secretary’s powers to request additional information from both a person suspected of being liable to register, and a third party who may have information relevant to the Scheme.
10.209
The Committee is concerned that information that is the subject of a notice issued under these provisions may be used to prove an intent element in an offence under the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017. The Committee considers that this would not be appropriate.

Recommendation 39

10.210
The Committee recommends that the Bill be amended to clarify that the Secretary’s powers cannot be used to compel evidence from a person in order to obtain evidence from that person that is then admissible in a prosecution of that person for an offence contained in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.

Section 53—Authorisation—other purposes

10.211
The Committee notes the range of persons with whom, and purposes for which, the Secretary may share Scheme information. The Committee acknowledges the breadth of purposes and agencies proposed.
10.212
However, the Committee is concerned that additional purposes and persons may be prescribed in rules, without additional oversight or consideration by the Parliament.
10.213
The Committee considers that this is inappropriate, and recommends that any expansion of the list of purposes and persons be referred to this Committee for review.

Recommendation 40

10.214
The Committee recommends section 53 of the Bill be amended to provide that any additional persons with whom, or purposes for which, Scheme information may be shared, be referred to the Parliamentary Joint Committee on Intelligence and Security for its review and approval.

Section 67—Delegations

10.215
The Committee welcomes the Attorney-General’s proposed amendments to section 67 which seek to limit the matters which may be delegated to a junior officer in the Attorney-General’s Department, to exclude the following:
any functions or powers to issue a transparency notice under Part 1, Division 3, and
any functions or powers to issue a notice requesting information under Part 4, Division 3, and
any functions or powers to share Scheme information under proposed section 53.
10.216
These proposed amendments respond to concerns raised in evidence on the Bill, and these amendments are supported by the Committee.
10.217
However, the Committee considers there should be similar amendments to limit the delegation of decisions to publish, or withhold from publication, information under proposed section 43 (Certain information to be made publicly available).
10.218
As noted in evidence by the Law Council on the proposed amendments, decisions about what matters are ‘commercially sensitive’ or relate to ‘national security’ are appropriately handled at the highest political or governmental level. The suggestion that such matters can be undertaken by less senior officials is of concern.
10.219
The Committee therefore recommends that section 67 be further amended to provide that decisions by the Secretary under section 43 should not be delegated to an officer who is below the level of a Senior Executive Service officer.

Recommendation 41

10.220
The Committee recommends implementation of the Attorney-General’s proposed amendments to section 67 of the Bill that limit the powers and functions that the Secretary may delegate.
Further, the Committee recommends that section 67 be amended to provide that decisions by the Secretary under section 43 should not be delegated to an officer who is below the level of a Senior Executive Service officer.

The position of the Secretary

10.221
The Committee notes that there are a range of options which could be considered as to who administers the Scheme. As noted in earlier chapters, Canada has recently established the position of an independent Commissioner of Lobbying, established by the Parliament to ensure transparency and accountability in the lobbying of public office holders. The Committee considers that position may provide a useful model for the development of an Australian independent administrator for the Scheme.
10.222
It is important to ensure that the public has faith in the integrity and independence of the Scheme administrator. The Scheme may risk a perception of insufficient distance and the Committee is keen to ensure there is transparency in the Scheme itself and in its operation. The Committee is of the view that an independent Scheme administrator—similar to that adopted in Canada—could provide a useful model for the future operation of the Scheme.
10.223
The Committee notes the Secretary will administer the Scheme, however recommends that after an initial period of operation, the Government give consideration to the Scheme being administered by an independent statutory officer.

Recommendation 42

10.224
The Committee recommends that after an initial period of operation, the Government give consideration to the Scheme being administered by an independent statutory officer, as an alternative to it being administered by the Secretary of the Attorney-General’s Department .

Resourcing

10.225
The Committee considers that if the Scheme is to achieve its transparency objective, it is important that it be appropriately resourced.
10.226
The Committee recognises that the Scheme places onerous requirements on individuals and groups required to register, particularly in relation to giving notice within an election period (seven days under section 37 of the Bill); reporting material changes in circumstances (14 days under section 34); reporting disbursement activity (14 days under section 35); and, reporting on registration review when a voting period begins (14 days under section 36).
10.227
The Committee considers that if the Scheme requires registrants to respond within short timeframes, the administrator of the Scheme must similarly be required to promptly discharge his or her duties in administering the Scheme.
10.228
Consequently, and as recommended above, the Committee considers that required timeframes should be set out for the Secretary with regards to making information available to the public on a website.
10.229
The Committee notes early stakeholders concerns that the Scheme would likely attract a larger number of registrants than anticipated. The Committee is satisfied that, taking into account the Attorney-General’s proposed amendments, the scope of the Scheme has been sufficiently narrowed such that the number of registrants is likely to be significantly reduced.
10.230
The Committee states its expectation that, regardless of the number of registrants, the Scheme will be adequately resourced by the Government to ensure the Secretary’s obligations are met and the public is given a level of assurance and transparency in both the process of administering and reporting on the Scheme.
10.231
While the Committee has yet to receive details on how the Scheme would be implemented, the Committee states its expectation that the Department will have a sufficient number of appropriately trained staff to develop guidance material, answer registration requirement questions, and assist in administering the Scheme, particularly during its commencement period.

Part 1, Division 3—Transparency notices

10.232
The Committee supports the Attorney-General’s proposed amendments that would provide clarity on the status of a ‘foreign government entity’ and a ‘foreign government individual’.
10.233
As noted elsewhere in this Chapter, the Committee has sought to prioritise clarity, noting the intended integrity and transparency objectives of the Scheme.
10.234
The Committee notes that transparency notices will be reviewable—on merits—by the Administrative Appeals Tribunal and that as a result a person may seek reasons from the Secretary for that decision. However, the Committee received significant evidence that expressed ongoing concern regarding the lack of procedural fairness that is afforded to a subject of a notice.
10.235
The Committee considers that the transparency notice framework as proposed by the Attorney-General should be split to include:
a ‘provisional’ transparency notice, and
a ‘final’ transparency notice.
10.236
The Committee puts forward the following amended process. The Secretary must first issue a provisional notice in the same fashion as he or she would issue a notice under the present Bill. After 28 days, the provisional notice should become final by force of law. During the 28 day period, the Secretary must consider any submission made by the entity or individual that is the subject of the notice, and may issue a revocation notice. Consistent with the Bill as it stands, the Secretary would not be required to observe procedural fairness in deciding whether to issue a revocation notice. There would be no difference in the legal effect of a provisional notice and a final notice.
10.237
However the Committee considers that the introduction of a provision notice framework would:
clearly signal that the notice is not ‘final’ and merely represents the Secretary’s provisional view, mitigating potential reputational impacts of the notice, and
allow the entity or individual to make representations to the Secretary before the notice becomes final.

Recommendation 43

10.238
The Committee recommends implementation of the Attorney-General’s proposed amendments to the Bill which establish new Part 1, Division 3—Transparency notices, subject to the following further amendments. The Committee recommends that the transparency notice framework as proposed by the Attorney-General be separated to include:
a ‘provisional’ transparency notice, and
a ‘final’ transparency notice, and
the following technical amendments be implemented to:
provide that the notice comes into force when it is made public, rather than when it is made, and
clarify what ‘details’ (mentioned in subsection 14C(1)) must be included in a notice.
10.239
The Committee has also identified a tension between proposed subsections 14B(2) and14B(1), and in any case section 14B(2) appears unnecessary given there is a presumption that administrative decisions are valid.

Recommendation 44

10.240
The Committee recommends that the Attorney-General’s proposed amendments for 14B(2) of the Bill, not be implemented.

Enforcement

10.241
The Committee considered a number of issues raised regarding the proposed enforcement provisions in Part 5 of the Bill. The recurring issues raised by submitters and witnesses centred on the severity of the criminal penalties, the inclusion of strict liability offences, and the lack of civil penalties as opposed to criminal sanction.
10.242
The Attorney-General’s proposed amendments—outlined in Chapter 9 of this report—address some of these issues. However, several organisations provided supplementary submissions to suggest that further amendments to the enforcement provisions should be considered.22

Proposed sections 57 and 57A

Penalties under proposed sections 57 and 57A

10.243
The Committee notes submissions received to the Bill were critical of the magnitude of the criminal penalties under section 57. The Attorney-General’s proposed amendments lowered some of these penalties, with the new maximum proposed penalty under the Bill decreasing from seven years to five. The Committee supports these amendments.
10.244
The Committee notes that the proposed five year penalty is now comparable with the United States’ Foreign Agents Registration Act (FARA), which imposes a maximum penalty of $10 000, five years imprisonment, or both for wilfully violating any provision of FARA.
10.245
The Committee notes that some submitters considered that offences under the Bill should be civil rather than criminal. The Committee also notes evidence from the Department stating that, ‘fundamentally, the acts that are described in this Bill are not criminal and nor should any adverse inference be drawn from a requirement to register under the Foreign Influence Transparency Scheme’.23 The offences apply only in the event of an intentional or reckless failure to register.
10.246
The Committee also notes the evidence of the Department that ‘Criminal offences are considered the most appropriate way to deter non-compliance with the registration requirements under the Scheme’.24

Recommendation 45

10.247
The Committee recommends implementation of the Attorney-General’s proposed amendment to lower penalties under sections 57 and 57A of the Bill.

Absolute and strict liability

10.248
The Committee notes that the proposed inclusion of absolute liability in sections 57 and 57A caused concern from submitters, and according to the Law Council of Australia ‘adds nothing to the normal requirements that the defendant engaged in some prohibited act’.25
10.249
The Committee further notes concerns that the inclusion of absolute liability would prevent the defence of honest and reasonable mistake of fact in relation to the subsections in 57 and 57A to which it applied. The Committee sees no reason to prevent this defence for these offences. As such, and in order to ensure sections 57 and 57A are workable, the Committee recommends removing proposed sections 57(5) and 57A(5) (absolute liability) from the sections 57 and 57A offences.
10.250
The Committee also recommends that the Government consider removing proposed subsection 61(2) (absolute liability), so that it does not apply to section 61 (Destruction of records etc.).
10.251
The Government further notes concerns with strict liability applying to offences in section 58 (Failure to fulfil responsibilities under the scheme). The Committee recommends that section 58 offences be amended to remove strict liability.

Recommendation 46

10.252
The Committee recommends that the Bill be amended to remove absolute liability from sections 57, 57A and 61.

Recommendation 47

10.253
The Committee recommends that the Bill be amended to remove strict liability from section 58.

False and misleading information

10.254
As noted in Chapter 9, the Attorney-General proposed lowering the penalty for false or misleading information or documents under section 60 of the Bill to three years imprisonment. The Committee notes submitters’ concerns that the original five years penalty was five times the penalty for committing a similar offence under section 137.1 of the Criminal Code. The Committee notes that the penalty of three years is still three times that of the Criminal Code penalty.
10.255
The Committee questioned the Department on the reason for the discrepancy between the Bill and the Criminal Code penalty. The Committee accepts the Department’s response that the purpose of the scheme is to
bring transparency to things that can damage our democracy, whereas providing a false or misleading document to another type of agency might have a financial impact on the Commonwealth or some other impact but doesn't get to the purpose of the scheme, which is preventing Australia from being the subject of foreign influence without transparency.26
10.256
The Committee agrees that providing false and misleading information in this context may justify a higher penalty. The Attorney-General has proposed further amendments to the enforcement provisions under proposed section 61 and 61A. The Committee supports these proposals.

Recommendation 48

10.257
The Committee recommends implementation of the Attorney-General’s proposed amendments to
lower the penalty in proposed section 60 of the Bill from five to three years,
lower the penalty under proposed section 61—destruction etc. of records—from five years to three years, and
introduce section 61A—geographical jurisdiction of offences.

Self-incrimination

10.258
The Committee notes that section 47 of the Bill creates an immunity for information provided under sections 45 and 46. Such information is inadmissible in criminal proceedings, other than for an offence against section 60, or in sections 137.1 and 137.2 of the Criminal Code, concerning false or misleading information or documents.
10.259
The Committee notes evidence from the Department that section 47 is intended to create a derivative use immunity. A derivative use immunity protects a person who is required to give self-incriminating evidence from that evidence being used to gather other evidence against that person.
10.260
However, the Committee heard contradictory evidence from the Law Council, suggesting that section 47 did not achieve the intent of providing a derivative use immunity.
10.261
As such and to reduce uncertainty the Committee suggests clarification, by way of a note to the provision, that section 47 provides a derivative use immunity. The Committee understands this notation may not be required under the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

Oversight, review and implementation

Annual report

10.262
The Committee supports the requirement in section 69 of the Bill for the Secretary to provide an annual report on the operation of the scheme to the Minister, for presentation to the Parliament.
10.263
The Committee notes, however, that the Bill does not specify the matters that should be included in the report. Rather, the matters that must be included are proposed to be prescribed by rules.
10.264
The Committee accepts that there is a need for flexibility to determine what should be contained in the report once operational arrangements to support the Scheme have been established. The initial operation of the Scheme will help inform the type of information that should be included, for example, the nature of activities engaged in on behalf of foreign principals, and public awareness activities undertaken by the Department administrating the Scheme. Additional information may also be required for reporting periods that encapsulate voting periods.
10.265
However, to ensure that there is an appropriate level of transparency and oversight of the operation of the scheme from year-to-year, the Committee considers that it would be desirable for the Bill to set out certain minimum requirements for the annual report. The rule-making power should be retained to enable these minimum requirements to be expanded where appropriate.

Recommendation 49

10.266
The Committee recommends that section 69 of the Bill be amended to specify minimum requirements for inclusion in the annual report on the operation of the Scheme. These requirements should include:
the numbers of new and ceased registrations, and reports provided to the Secretary,
the number of transparency notices issued, varied or revoked,
the number of written notices issued by the Secretary under sections 45 and 46, and the number of documents obtained by the Secretary as a result of section 46 notices,
the number of occasions a subject of a provisional transparency notice issued under Part 1—Division 3 makes submissions to the Secretary,
a statement of compliance with the obligations under section 42 of the Act (register of scheme information),
the number of occasions on which Scheme information has been shared, including which agencies are obtaining Scheme information,
the number of persons charged with offences under Part 5 of the Act, and the number prosecutions before the courts,
information on fees collected under the Scheme, and
any other matter prescribed by the rules for the purposes of the section.

Statutory review

10.267
The Committee supports the inclusion in the Bill of a requirement for the Scheme to be reviewed within a specified time after commencement. The Bill as drafted specifies this time period to be five years. The Committee considers a three year time limit to be more appropriate, and accordingly recommends that section 70 be amended.
10.268
The Committee notes that a review will provide an opportunity for any issues arising during the Scheme’s implementation and initial operation to be identified and rectified.
10.269
The Committee notes that the Bill remains silent as to who will undertake the review, other than a person nominated by the Minister. The Committee suggests the most appropriate body to undertake such a review is the Parliamentary Joint Committee on Intelligence and Security.

Recommendation 50

10.270
The Committee recommends that section 70 of the Bill be amended to provide that the Parliamentary Joint Committee on Intelligence and Security initiate a review within three years of the commencement of the Scheme.
10.271
The Committee considers that it appropriate for there to be oversight during the both implementation phase and early operation of the Scheme. Accordingly, the Committee is of the view that the administrator of the Scheme should provide a report to the Parliamentary Joint Committee on Intelligence and Security outlining the implementation progress and strategy. This should be provided to the Committee six months after Royal Assent of the Bill, or prior to the commencement of the Scheme, whichever occurs first.
10.272
Eighteen months following commencement of the Scheme, the administrator of the Scheme should provide to the Committee a report on the Scheme’s operation. The administrator of the Scheme should be available to brief the Committee following presentation of each report.

Recommendation 51

10.273
The Committee recommends that the Parliamentary Joint Committee on Intelligence and Security is provided with reports by the administrator of the Scheme, as follows:
a report detailing the Scheme’s implementation progress and strategy, to be provided to the Committee six months after Royal Assent of the Bill, or prior to the commencement of the Scheme, whichever occurs first, and
a report detailing the Scheme’s early operation to be provided to the Committee within 18 months of its commencement.
The administrator should be available to brief the Committee following the presentation of each report.

Ongoing oversight

10.274
The Committee notes that the Bill confers a range of significant decision-making powers on the Secretary of the Attorney-General’s Department, including powers to obtain information and documents, issue transparency notices and to communicate information to other government agencies.
10.275
The Committee notes that there is no specific oversight function included in the Bill to ensure the integrity of the Secretary’s handling of these powers. As noted in Chapter 8, the Secretary’s decisions will be subject to the usual operation of the Administrative Decisions (Judicial Review) Act 1977. Additionally, it would be within the remit of the Auditor-General to conduct a performance audit of the implementation and operation of the Scheme once it has been established.
10.276
There are a range of mechanisms that could potentially be used to provide increased oversight over the Secretary’s decision-making powers, including, potentially, a role for an independent commissioner. Taking into account the other reporting and review requirements noted above, the Committee is of the view that the existing mechanisms are likely sufficient. However, noting that it is a new scheme and that many of its aspects are yet to be developed, the Committee considers that the adequacy of oversight mechanisms should be given detailed consideration during the Parliamentary Joint Committee on Intelligence and Security’s statutory review.

Implementation

10.277
The Committee considers the remaining amendments proposed by the Attorney-General to be more technical amendments. The Committee notes that no issues have been raised regarding these proposed amendments and the Committee supports their implementation.
10.278
Subject to implementation of the recommendations made here, the Committee recommends that the Bill be passed.

Recommendation 52

10.279
Subject to implementation of the Committee’s recommendations, the Committee recommends that the Foreign Influence Transparency Scheme Bill 2017 be passed.
Mr Andrew Hastie MP
Chair

  • 1
    Tony Kevin, Submission 1, pp. 11-12; Australian Financial Markets Association, Submission 3, p. 3; Law Council of Australia, Submission 4, p. 6; Australian Catholic University, Submission 6, p. 1; Australian Lawyers for Human Rights, Submission 7, p. 1; American Chamber of Commerce in Australia, Submission 8, p. 2; The Group of Eight, Submission 11, p. 1; Australian Professional Government Relations Association, Submission 13, p. 2; Financial Services Council, Submission 16, p. 1; Community Council for Australia, Submission 34, p. 2; Australian Major Performing Arts Group, Submission 37, p. 1; JMTinc, Submission 41, p. 1; Social Ventures Australia, Submission 42, p. 1; World Vision Australia, Submission 45, p. 2; Free TV Australia, Submission 47, p. 2; Justice Connect, Submission 50, p. 3; The Chamber of Arts and Culture Western Australia, Submission 54, p. 2; Oxfam Australia, Submission 57, p. 5; WWF-Australia, Submission 58, p. 1; Federation of Ethnic Communities’ Councils of Australia, Submission 59, p. 2; The Smith Family, Submission 60, p. 4; GetUp!, Submission 63, pp. 2-3.
  • 2
    World Vision Australia, Submission 45, pp. 2-3.
  • 3
    GetUp!, Submission 63, p. 4; see also Human Rights Council of Australia, Submission 29, pp. 2-3
  • 4
    Attorney-General’s Department, Submission 5.6, p. 2.
  • 5
    Attorney-General’s Department, Submission 5.6, p. 2.
  • 6
    Attorney-General, Submission 84.1.
  • 7
    Explanatory Memorandum, p. 60.
  • 8
    Explanatory Memorandum, pp. 60-61.
  • 9
    Law Council of Australia, Submission 4.2, p. 2.
  • 10
    Law Council of Australia, Submission 4.2, p. 2; Law Firms Australia, Submission 10.2, p. 2.
  • 11
    Mr Arthur Moses, SC, President-elect, Law Council of Australia, Proof Committee Hansard, Canberra, 18 June 2018, p. 14.
  • 12
    Attorney-General, Submission 84.1, p. 6.
  • 13
    Australian Catholic Bishop’s Conference, Submission 12.2, p. 1.
  • 14
    Ms Anna Harmer, First Assistant Secretary, Attorney-General’s Department, Proof Committee Hansard, 18 June 2018, p. 31.
  • 15
    Ms Tara Inverarity, Assistant Secretary, Proof Committee Hansard, Canberra, 18 June 2018, p. 26.
  • 16
    Chemistry Australia, Submission 91; The Australian Industry Group, Submission 32.1.
  • 17
    Australian Charities and Non-for-profits Commission, Submission 33.2, p. 5.
  • 18
    See, for example, Parliamentary Privileges Act 1987, section 16(1).
  • 19
    Explanatory Memorandum, pp. 85-86, para 477.
  • 20
    Australian Electoral Commission, ‘Electoral Backgrounder: Electoral communications and authorisation requirements’, updated 6 March 2018, https://www.aec.gov.au/About_AEC/Publications/Backgrounders/authorisation.htm (last accessed 20 June 2018).
  • 21
    Joint Standing Committee on Electoral Matters, Advisory report on the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017, April 2018, para 1.12
  • 22
    Law Council of Australia, Submission 5.1; Australian Lawyers for Human Rights, Submission 7.1; Australian Professional Government Relations Association, Submission 13.1; Getup, Submission 63.1.
  • 23
    Ms Anna Harmer, First Assistant Secretary, Attorney-General’s Department, Proof Committee Hansard, 18 June 2018, p. 3.
  • 24
    Attorney-General’s Department, Submission 5.1, p. 6.
  • 25
    Law Council of Australia, Submission 4.2, p. 5.
  • 26
    Ms Tara Inverarity, Assistant Secretary, Attorney-General’s Department, Proof Committee Hansard, 18 June 2018, p. 39.

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