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Espionage, foreign interference and foreign influence

On 28 June 2018, the Australian Parliament passed a comprehensive package of legislative reforms, including legislation to:

  • enhance existing espionage, secrecy, treason, sabotage and related offences
  • introduce new offences targeting foreign interference and economic espionage
  • establish a Foreign Influence Transparency Scheme.

Espionage and foreign interference laws

The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018:

  • strengthens existing espionage offences
  • introduces new foreign interference offences targeting covert, deceptive or threatening actions by foreign actors who intend to influence Australia's democratic or government processes or to harm Australia
  • reforms the Commonwealth's secrecy offences, ensuring they appropriately criminalise leaks of harmful information while also protecting freedom of speech
  • introduces comprehensive new sabotage offences that effectively protect critical infrastructure in the modern environment
  • modernises and reforms offences against government, including treason, to better protect Australia's defence and democracy
  • introduces a new theft of trade secrets offence to protect Australia from economic espionage by foreign government principals
  • introduces a new aggravated offence for providing false and misleading information in the context of security clearance processes
  • ensures law enforcement agencies have access to telecommunications interception powers to investigate these serious offences.

Foreign Influence Transparency Scheme

The Foreign Influence Transparency Scheme Act 2018 provides the public and government decision-makers visibility of the nature, level and extent of foreign influence on Australia's government and political process. The scheme will introduce registration obligations for persons and entities who have certain arrangements with, or undertake certain activities on behalf of, foreign principals. The scheme provides visibility of the nature and extent of foreign influence over Australia's government and political processes.

The Foreign Influence Transparency Scheme will commence within 12 months of the Bill receiving the Royal Assent (on 29 June 2018) unless proclaimed earlier. Rules will be made under the Act to set the form and manner in which registrants must apply. The government will publicise further details of the scheme and its commencement in due course.

A foreign principal includes:

  • a foreign government
  • a foreign government related entity
  • a foreign political organisation
  • a foreign government related individual.

Categories of registrable activities include:

  • parliamentary lobbying on behalf of a foreign government
  • parliamentary lobbying on behalf of other kinds of foreign principals for the purpose of political or governmental influence
  • general political lobbying for the purpose of political or governmental influence
  • communications activities for the purpose of political or government influence
  • disbursement activities for the purpose of political or governmental influence
  • employment or activities of recent Cabinet ministers, recent ministers, recent members of Parliament or recent senior Commonwealth public officials in the period immediately following their public role.

Under the scheme, registrants will be required to disclose information about the nature of their relationship with a foreign principal, and activities undertaken pursuant to that relationship (both at the initial point of registration and on an ongoing basis for the duration of the relationship).

The scheme also:

  • establishes exemptions, including for diplomatic and consular activities, activities related to the provision of legal advice or representation, religious activities, a ctivities of registered charities, activities related to the arts and activities for the purposes of providing humanitarian aid
  • establishes a process for the Secretary of the department to issue a transparency notice if the Secretary is satisfied that a person is a foreign government related entity or a foreign government related individual
  • contains criminal offences ranging from failing to comply with obligations under the scheme, through to failing to register in circumstances where a person is required to do so
  • provides that some information will be made publicly available to achieve the transparency objectives of the scheme.