Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

Like so many things that this government does, the Australia’s Foreign Relations (State and Territory Arrangements) Bill 2020 suffers from the marketing and spin around its being prioritised over its substance and effect. It's another case of 'all sizzle, no sausage' from this Prime Minister.

I'll start with the fact that Labor supports the objective of this legislation, and if Liberal members had been listening to the speeches that have been given by Labor members on this bill they would have understood that Labor supports the objective of this legislation. I'll make that clear again: Labor supports the objective of this legislation, which is that there should be greater federal oversight and review mechanisms of arrangements between sub-national governments and foreign government entities. In particular, and all the Labor speakers who've spoken on this bill today have made this clear, Labor supports there being a federal legislative scheme that gives the foreign minister power to terminate arrangements—that is the term the bill uses—between state, territory and local governments and government funded universities and foreign entities if the agreements adversely affect Australia's foreign relations or are inconsistent with Australian foreign policy.

Our concerns lie not with the stated intent of this bill but with the many flaws in the scheme that this bill would establish. In a way, it's not dissimilar to the support Labor offered from the outset to the Foreign Influence Transparency Scheme bill that was brought to this parliament on 7 December 2017 by former Prime Minister Turnbull. That bill suffered from a number of deficiencies. It had to be very substantially rewritten by the time it passed this parliament in June 2018. But it was supported as to its intent that there should be transparency of foreign influence in relation to a range of Australian activities. The problem with the bill as originally presented to this parliament was that it was far too broad in its reach. In particular—and this is something that this bill suffers from, too—the government had simply not thought through the effect of its first proposed Foreign Influence Transparency Scheme bill on the universities of Australia. So too for this bill, the Australia’s Foreign Relations (State and Territory Arrangements) Bill; the government hasn't thought through the effect on Australia's universities.

There are a very large number of concerns about the bill that's now before the parliament. I certainly haven't got time to go through all those concerns, but a number of my colleagues who spoke earlier today have outlined the concerns that not merely Labor but also many, many parts of the Australian community have expressed about the legislation that this government has brought before the parliament. To begin with, it's worth noting that our nation already has a range of legal protections, processes and institutions in place to help protect us from malign foreign interference. Yet the government has failed to explain how this bill complements and interacts with the suite of existing legislation, processes and institutions that already works to safeguard Australia's sovereignty, build domestic institutional resilience and regulate international engagement. This includes the countering foreign interference legislation. It includes the defence export controls. It includes the Security of Critical Infrastructure Act passed by this parliament in 2018. It includes the Foreign Influence Transparency Scheme Act passed by this parliament, also in 2018, and the University Foreign Interference Taskforce, or UFIT.

It has been extraordinary to listen to a number of the speeches that have been given by Liberal members on this bill. You would think that none of this long-established set of safeguards and controls that have been built up painstakingly by successive Australian governments over decades even existed. But you'd be forgiven for thinking that, because both the government and the Liberal members who've addressed this bill in speeches today have made hardly any reference to these long-existing safeguards and controls.

It's also clear that, in the Prime Minister's haste to distract Australians from his government's tragic neglect of the aged-care system, the government failed to consult with any relevant stakeholders in the development of this legislation. For example, universities were not consulted before the announcement of this bill on 27 August this year, despite the potential impact on the sector, which is already suffering from the loss of foreign students caused by the COVID-19 pandemic and from the Morrison government's bloody-minded ideological vendetta against education, which led it to exclude universities from the JobKeeper program. Even more astonishingly, state and territory first ministers were only advised about this bill the day before it was introduced to the parliament. That kind of arrogance from this Morrison government does nothing to further support for a scheme such as this; nor does that kind of arrogance and haste give the Australian community confidence that the Morrison government actually might know what it is doing.

The drafting of this bill was self-evidently rushed, and it means that a range of fundamental issues have not been properly considered. We invite the government to properly consider them before this bill passes both houses of this parliament. Just to give an example, the bill excludes procedural fairness. It excludes the operation of the Administrative Decisions (Judicial Review) Act 1977. It excludes any form of merits review. Some might be thinking: 'What does it matter if merits review is excluded, given that the Morrison government has decided to make the AAT into a taxpayer funded retirement home for Liberal Party former MPs, staffers and failed candidates? So maybe it's a blessing that merits review has been excluded.' But judicial review of ministerial decisions is also very important. Perhaps there, again, one might comment that even that would have limited use without a requirement for the minister to provide reasons for any of the decisions which the minister is empowered to make under this bill. The bill fails to provide clear definitions of critical terms, including the terms 'foreign policy' and 'foreign relations', which you might think were absolutely central to the scheme that this bill proposes to establish. The broad discretion this leaves to define those terms as the government of the day or the minister of the day might wish to define them leaves the ambit of this legislation entirely unclear, and ironically, given the laudable objectives of the bill, it exposes tens of thousands of valuable contracts, agreements and arrangements to sovereign risk.

With respect to Australian universities, it is also clear that the bill's undefined—or broadly defined, in some cases—key terms, the regulatory gap that a number of previous Labor speakers have referred to in that private universities are not covered, the lack of transparency and the lack of procedural fairness will all limit university international engagement. For decades it has been understood just how important international engagement is for all of Australia's universities. The bill will create sovereign risk concerns for Australian universities. It will generate significant administrative burdens for Australian universities. The point has been made—and universities have made this point publicly already, over and over again, but there is no indication the government is yet listening—that in its current form the bill could apply to tens of thousands of arrangements between Australian entities and their foreign counterparts. There are thousands of agreements reached on all manner of activities between Australian universities and universities in other countries, and it will undoubtedly impact significantly on universities if this bill continues to take the form that it currently has and if it continues to be expressed in this broad way.

The bill, I might say also, provides the foreign minister with broad discretionary powers and as yet provides not one bit of oversight for the regime. It means that the regime that this bill would establish, like so many other things that this government has done and wishes to do, would lack transparency. The government has entirely failed to provide clarity on how the 99-year lease of the Port of Darwin to a Chinese company permitted by this government—this government—in 2015 would be treated under the regime established by this bill. As Senator Penny Wong said earlier today:

… this bill is the sloppy result of a Prime Minister who puts his political interest above the national interest

That is why Labor has called on the government to rewrite this legislation. I say again, so as to leave no room for doubt, that Labor supports the objectives of this bill, but the legislation itself is so sloppy that it must be rewritten. If the government refuses to do that, Labor intend to do what we can to address the flaws that have been identified through the Senate committee process. Somewhat reluctantly, I commend this bill to the House.

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