Foreign Influence and Election Security

Overview

• Australian laws and government policy distinguish between 'foreign interference' and 'foreign influence'. Foreign interference is criminalised under the Criminal Code (Cth), whereas foreign influence is permitted under the Foreign Influence Transparency Scheme Act 2018 (Cth), provided relevant persons register and disclose that influence.
• The Commonwealth Electoral Act 1918 (Cth) seeks to establish and maintain electoral integrity and security, including the regulation of foreign donations to political parties.

Background

• The Foreign Influence Transparency Scheme was established in December 2018 by the Foreign Influence Transparency Scheme Act 2018 (Cth) and seeks to provide the public with a clear overview of the nature and extent of foreign actors' influence in Australia. The scheme recognises the importance of protecting information on computer systems by putting in place strategies and working closely with federal agencies to share perspectives and models on how to combat cyber security issues.
• The security and integrity of Australia's electoral system has been a government focus since 2016. Following the 2016 federal election, the Commonwealth Joint Standing Committee on Electoral Matters (JSCEM) was asked to "inquire into and report on all aspects of the 2016 Federal Election and related matters". This resulted in three interim reports:
  • First interim report: Authorisation
  • Second interim report: Foreign Donations
  • Third interim report: AEC Modernisation - This report found that the AEC computer system posed 'unacceptable risks' to public confidence in and the integrity of the voting system.
• In a Status Report (March 2019), the JSCEM argued, inter alia, that a new taskforce should be developed to tackle any cyber manipulation within Australia's electoral process.
• Deloitte's 'Electoral Cyber Security Maturity Review - Whole of National Report' (October 2018), commissioned by the Department of Home Affairs, proposed a new national coordinated approach to protect Australia's electoral systems, including greater collaboration between the AEC and Australian Cyber Security Centre, and adding 'electoral systems' to the classification of 'critical infrastructure' for the purposes of the Security of Critical Infrastructure Act 2018 (Cth).
• On 5 December 2019, the Commonwealth Senate resolved to establish a Select Committee on Foreign Interference through Social Media to inquire into and report on the risk posed to Australia’s democracy by foreign interference through social media. The final report is due by May 2022.

Legal Framework

Foreign Influence Transparency Scheme Act 2018 (Cth)

• The Foreign Influence Transparency Scheme Act 2018 (Cth) applies to all persons or entities who act on behalf of foreign actors to engage in foreign influence over a government, organisation or section of the public in Australia.
• A person must register under the scheme if they participate in 'registrable activities' (i.e. digital or electronic communication, parliamentary or political lobbying or disbursement of money) and these activities are undertaken in Australia on behalf of a foreign principal and pursued for the purpose of political or governmental influence. Certain exemptions apply (e.g. humanitarian aid, diplomatic activity). The Secretary has the power to issue a provisional transparency notice if they think an individual is a foreign government related person or entity. Consequently, any individual undertaking registrable activities on behalf of that person must register under the scheme.
• Registered persons or entities are subject to ongoing reporting and disclosure obligations (including disbursement activity and activity during Australian voting periods).
• The Act makes it an offence to undertake registrable activities while not being registered, failing to fulfil reporting and disclosure obligations under the scheme, providing false information or destroying records.
• See Foreign Influence Transparency Scheme Rules 2018 (Cth)
• See Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018 (Cth)

Commonwealth Electoral Act 1918 (Cth)

• Part 7 of the Commonwealth Electoral Act 1918 (Cth) regulates the qualification and disqualification of persons for enrolment and voting.
• Part 8 of the Act regulates the enrolment process (e.g. identification, alteration, records).
• Part 11 of the Act regulates the registration of political parties.
• Part 20 regulates election funding and financial disclosure.
  • Under this Part, gifts of at least $1000 to political entities and campaigners must not be made by foreign donors. Gifts by foreign donors for the purpose of incurring electoral expenditure or creating or communicating electoral matter are also prohibited.
• Part 21 contains electoral offences, such as bribery, interference with political liberty and misleading or deceptive publications.

Regulatory & Policy Framework

• Foreign Influence Transparency Scheme, Attorney-General's Department
  • Foreign Influence Transparency Scheme Resources
  • 2018-19 Annual Report on the Operation of the Foreign Influence Transparency Scheme

Relevant Organisations

• Australian Electoral Commission
  • Electoral Integrity Assurance Taskforce
  • AEC Transparency Register
  • AEC Annual Report 2019-20
• Department of Foreign Affairs and Trade

Inquiries & Consultations

• Parliament of Australia Joint Standing Committee on Electoral Matters
  • JSCEM Inquiries and Reports
  • Report on the conduct of the 2016 federal election and matters related thereto
  • Second interim report on the inquiry into the conduct of the 2013 Federal Election: An assessment of electronic voting options
  • Report on the 2007 federal election electronic voting trials
• Parliament of Australia Select Committee on Foreign Interference through Social Media
• Parliament of Victoria Electoral Matters Committee
  • Inquiry into Electronic Voting
  • Inquiry into the Conduct of the 2014 Victorian State Election
• Parliament of NSW Joint Standing Committee on Electoral Matters
  • Report - preference counting in local government elections in NSW
  • Final Report - Administration of the 2019 NSW State Election
  • Report - administration of the 2015 NSW election and related matters
  • NSW iVote reports and audits

Industry Materials

• What you need to know about the Foreign Influence Transparency Scheme Act 2018 (Cth), Corrs Chambers Westgarth (20 May 2019)
• Laura Giaretto, 'The foreign influence transparency scheme act: What's it about?' (2019) 41(9) Bulletin (Law Society of South Australia) 32
• Nyman Gibson Miralis, Australia’s response to “malign foreign influence”: An overview of the Foreign Influence Transparency Scheme, Lexology (13 March 2020)
• Rory Medcalf, 'Australia and China: Understanding the reality check' (2019) 73(2) Australian Journal of International Affairs 109
• Michael Head, 'Australia’s anti-democratic ‘foreign interference’ Bills' (2018)43(3) Alternative Law Journal 160
• Chris Draffen and Yee-Fui Ng, ‘Foreign Agent Registration Schemes in Australia and the United States: The Scope, Risks and Limitations of Transparency’ (2020) 43(4) UNSW Law Journal 1101
• 'European Lessons for Tackling Election Interference', Carnegie Endowment for International Peace (18 August 2020)
• Michael N Schmitt, 'Foreign Cyber Interference in Elections' (2021) 97 International Law Studies 739

Related Topics

• Espionage, Sabotage and Foreign Interference
• Directors' Duties
• Security of Critical Infrastructure