Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018

Overview

The Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018, made under the Foreign Influence Transparency Scheme Act 2018, aim to address the need for transparency in communications activities that are influenced by foreign principals. These rules, which commenced on 10 December 2018, provide guidelines on the form and content of disclosures required in various communications activities, ensuring that the public is informed when such activities are conducted on behalf of foreign principals. The rules apply to a wide range of communication methods, from printed materials and electronic messages to social media and broadcast media, and specify where and how disclosures must be made. The policy objective is to enhance transparency and accountability in communications that may be influenced by foreign interests, thereby protecting the integrity of public discourse and decision-making processes.

Scope and Application

The Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018 applies to various instances of communications activity undertaken on behalf of foreign principals, as defined under the Foreign Influence Transparency Scheme Act 2018. This encompasses a broad range of activities including the communication or distribution of printed material, online content, social media posts, electronic messages, and advertisements, among others. The scope of the Act is comprehensive, covering both digital and traditional media, and it mandates specific disclosures to be made in these communications to ensure transparency regarding the involvement of foreign principals. The rules specify the form, manner, and content of these disclosures, ensuring they are clearly identifiable and not obscured or distorted. The Act applies nationally across Australia and is enforced by the relevant authorities under the legislative framework established by the Foreign Influence Transparency Scheme Act 2018. There are no explicit exclusions mentioned in the text, although the rules are designed to apply to activities that are undertaken on behalf of a foreign principal and are directed to the public or a section of the public. The Act’s application can be extended or modified through subordinate instruments, as authorised by the principal Act.

Key Provisions

• The Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018 (the "Rules") provide detailed provisions regarding the disclosure requirements for certain communications activities undertaken on behalf of a foreign principal. These Rules are made under the Foreign Influence Transparency Scheme Act 2018 (the "Act"). The Rules specify the instances of communications activity that require disclosure, the content of such disclosures, and the form and manner in which they must be made (section 5). These instances include, among others, communications or distribution of printed material, telephony, electronic messages, and broadcasting by radio or television (section 5). The content of the disclosure must identify the person undertaking the communications activity, the foreign principal on whose behalf the activity is undertaken, and include statements indicating that the activity is on behalf of the foreign principal and that the disclosure is made under the Act (section 5(2)). For radio advertisements, the disclosure must include a statement that the communication is a registrable activity under the Act and, if the advertisement runs for more than 15 seconds, identify the foreign principal and state that the activity is undertaken on behalf of the foreign principal if not apparent from the advertisement (section 6). For authorised political material, the disclosure can be made in the same form and manner as the notification or announcement required by certain electoral and broadcasting laws, and must include a statement that the communication is a registrable activity, identify the foreign principal if not apparent, and state that the activity is on behalf of the foreign principal if not apparent (section 7).
• The Rules impose obligations on persons undertaking communications activities on behalf of foreign principals to make the requisite disclosures in the prescribed form and manner. These obligations are aimed at ensuring transparency in communications that may be influenced by foreign entities. For instance, if a person distributes printed material, they must include a disclosure at the end of each page in a readable type size (section 5(1)(1)(a)). For digital banner advertising, the disclosure must be at the end of the banner or, if too long, linked via a URL in the banner to a website containing the disclosure (section 5(1)(1)(9)). The language of the disclosure must match the language used in the communication or, if none is used, be in English (section 8). Additionally, written disclosures must not be obstructed or distorted by anything in the rest of the communication (section 9).
• Breach of the disclosure requirements under the Rules may result in various consequences. While the Rules themselves do not explicitly state penalties, the Act under which these Rules are made provides for potential civil and criminal penalties for non-compliance. Under section 43 of the Act, a person who contravenes a provision of the Act is liable to a civil penalty of up to 500 penalty units (approximately AUD 83,500 as of 2023). For more serious breaches, the Act also provides for criminal penalties, including fines of up to 10,000 penalty units (approximately AUD 1,670,000 as of 2023) and imprisonment for up to 10 years for individuals, and higher penalties for bodies corporate. The seriousness of the breach, the extent of non-compliance, and any aggravating or mitigating factors are considered when determining the appropriate penalty.

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National Security Law

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Regulation

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Definitions & Interpretation

Reporting & Disclosure Obligations

Enforcement Powers