Jane Hume (Victoria, Liberal Party, Assistant Minister for Superannuation, Financial Services and Financial Technology) Share this | Hansard source

I table a revised explanatory memorandum relating to the Australia's Foreign Relations (State and Territory Arrangements) Bill 2020 and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

AUSTRALIA'S FOREIGN RELATIONS (STATE AND TERRITORY ARRANGEMENTS) BILL 2020

Today, I am introducing Australia's Foreign Relations (State and Territory Arrangements) Bill 2020.

The Commonwealth Government has many important roles to play. But one of the most important is our exclusive responsibility for setting Australia's foreign policy, negotiating treaties and representing our nation internationally.

That is not, however, to undervalue the important contribution that State, Territory and local government entities make to advancing Australia's foreign policy.

The types of arrangements entered into at these levels of government vary from Strategic Partnership arrangements; Memoranda of Understanding to encourage investment or cultural exchange; through to industry-specific cooperation arrangements, for example on education, energy or agriculture.

Most of these arrangements are a useful and productive part of Australia's huge breadth of international engagement, and it is important that we continue to encourage these links.

The Commonwealth Government, however, does not currently have visibility of all the arrangements which State, Territory and local governments, and related entities including public universities, have made with foreign governments.

While the Commonwealth Government sets a foreign policy agenda to both protect and promote the national interest, there is no consistent practice or requirement for State, Territory and local government, as well as Australian public universities, to consult with the Commonwealth when entering into arrangements with foreign governments.

This process, or lack of process, creates two significant challenges.

The first is that without Commonwealth engagement, there is a very real and significant risk that arrangements may be entered into that are inconsistent with, and in some cases may even undermine, Australia's broader foreign policy objectives.

The second is that without this visibility, the nation is unable to leverage these relationships to further our national objectives in our international engagements.

This gap in Commonwealth oversight must be remedied, and this Bill will create a process where we all – federal, State, Territory and local governments – work effectively together to ensure arrangements are consistent with our national approach to foreign relations.

Creating a process

The Bill will enable the Minister for Foreign Affairs to assess arrangements between State, Territory or local governments or an Australian public university and a foreign government, and related entities, and determine whether they:

1. adversely affect Australia's foreign relations; or

2. are inconsistent with Australia's foreign policy.

The Bill will capture all written arrangements with all foreign governments. This includes, for example national level foreign governments and their departments or agencies, and sub-national foreign governments such as provinces, states or municipalities.

The Bill is country agnostic and arrangement agnostic – the intention is not to target one particular type of arrangement or country.

We recognise, however, that there will be divergence in the likely impact different types of arrangements have on Australia's foreign policy.

For this reason, the Bill takes a nuanced approach, with different requirements for 'core' and 'non-core' arrangements.

Core arrangements

'Core' arrangements are those between State and Territory governments and foreign national governments, reflecting that they are most likely to affect Australia's foreign policy and foreign relations.

The Bill provides that the State or Territory entity will require approval from the Minister for Foreign Affairs before commencing negotiations, or entering into, a core arrangement.

The Minister will be empowered not to approve the negotiation or the arrangement where it would either adversely affect Australia's foreign relations or would be inconsistent with Australia's foreign policy.

If the State or Territory proceeds without the requisite approval, then the arrangement will either be automatically invalidated or will be required to be terminated or varied.

Non-core arrangements

A broader range of arrangements will fall within the scope of 'non-core' arrangements, including:

State and Territory entities will only need to notify the Minister for Foreign Affairs if they propose to enter a non-core arrangements, with the Minister able to also make declarations concerning negotiations of such arrangements.

Where a negotiation or arrangement would adversely affect Australia's foreign relations or is inconsistent with our foreign policy, the Minister for Foreign Affairs will be empowered to prevent the negotiation or arrangement from proceeding.

Pre-existing arrangements

The Bill also empowers the Foreign Minister to review any existing or prospective arrangement between state, territory and local government entities – including Australian public universities – and foreign governments.

The scheme is intentionally comprehensive to ensure that the Commonwealth can fulfil its constitutionally-mandated role to conduct Australia's foreign affairs and represent Australia internationally.

We cannot do so without full knowledge of current and prospective arrangements across all levels of government.

Enforcement and rule-making

The Bill provides for enforcement of decisions made under the Bill through Court injunctions.

The Bill also includes a broad rule-making power to ensure the Minister for Foreign Affairs has the authority to make such rules as are necessary for the effective operation of the legislation. This includes exempting certain categories of State or Territory entity and foreign entity from the scope of the Bill, ensuring we can take a flexible approach and reduce any regulatory impost where possible.

Public Register

Finally, the Bill will require the Minister for Foreign Affairs to maintain a publicly-accessible register, to allow for transparency under the scheme, and to provide the public with information relating to foreign arrangements notified to the Minister and any decisions made by the Minister in relation to those arrangements.

Support to stakeholders

The Government acknowledges that the Bill is broad in scope, and deliberately so. To effectively manage Australia's foreign policy, the Commonwealth needs a comprehensive understanding of the arrangements being entered into at all levels of government.

We acknowledge that this process reflects a shift in approach for States, Territories, local government and Australian public universities, and we will support stakeholders to transition to the new requirements under the Bill.

Conclusion

In 1901 Alfred Deakin, who would later become Australia's second Prime Minister, wrote:

"It would be judicious and advantageous to provide by Act that the Commonwealth Executive shall administer all existing State laws in regard to…treaties and conventions, and all other external affairs. These should be entirely under the control of the Commonwealth. The whole scope and spirit of the Constitution require that save for the purposes of their domestic policies within their own domains the States shall be blended and absorbed into one political entity. They may still appear in some respects as a body of allied States, but to the Empire of which they form a part and to the world without it they have become and must remain a nation and a Commonwealth one and indivisible."a2a

As the Prime Minister has said, Australians have a right to expect that the Commonwealth Government they elect will set our nation's foreign policy. It is the Commonwealth Government's responsibility to ensure that our foreign policy both protects and promotes our national interest.

This Bill is designed to give the Australian public confidence that all levels of Australian government are coordinated, aligned and working effectively for their interests.

The Bill is necessary and it is proportionate.

It is necessary, because it ensures that the Commonwealth Government will have full visibility of all arrangements with foreign countries, and can support the States, Territories and local government and Australian public universities in undertaking effective, appropriate and informed international engagement overseas.

And it is proportionate to the complex global challenges and risks facing Australia today.

In the face of an increasingly complex and challenging global environment, in all international engagement, across every level of government and across every country, it is vital that Australia speaks as one nation, with one voice. This Bill will ensure that we do so.

AUSTRALIA'S FOREIGN RELATIONS (STATE AND TERRITORY ARRANGEMENTS) (CONSEQUENTIAL AMENDMENTS) BILL 2020

Today I am introducing the Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020 (the Consequential Amendments Bill).

The Bill gives effect to Australia's Foreign Relations (State and Territory Arrangements) Bill 2020 (the Foreign Relations Bill), which enables the Minister for Foreign Affairs to assess whether arrangements between State and Territory governments and foreign governments, and entities related to them, would adversely affect Australia's foreign relations or would be inconsistent with Australia's foreign policy or.

The Consequential Amendments Bill amends the Foreign Acquisitions and Takeovers Act1975 to ensure information under that scheme can be shared for the purposes of the Foreign Relations Bill.

This amendment is important, because there may be occasions of intersection or overlap between arrangements subject to the regulatory frameworks in both the Foreign Relations Bill and the Foreign Acquisitions and Takeovers Act.

Effective and efficient information sharing between the Ministers and the Commonwealth entities administering these schemes will support a coordinated approach to managing arrangements between the States and Territories and foreign governments.

The Consequential Amendments Bill also amends the Administrative Decisions (Judicial Review) Act 1977 to list the Foreign Relations Bill as a law to which that Act does not apply. This means that the Foreign Relations Bill will not be subject to review under the Administrative Decisions (Judicial Review) Act.

This is a necessary amendment, because decisions made under the Foreign Relations Bill will involve complex foreign policy considerations within the exclusive remit of the Commonwealth Government and the Minister for Foreign Affairs to determine and manage.

It is not appropriate for these decisions to be open to judicial review under the Administrative Decisions (Judicial Review) Act.

Decisions made under the Foreign Relations Bill will be assessed on the basis of Australia's foreign relations and foreign policy, and as such, the opportunity for such decisions to be subject to judicial review should be reduced to preserve the Commonwealth Government's prerogative – exercised through the Minister for Foreign Affairs – to determine Australia's foreign relations posture and foreign policy.

Individuals affected by a decision under the Foreign Relations Bill may still seek judicial review by the Federal Court and the Federal Circuit Court or by the High Court.

This will ensure that affected individuals have an avenue to challenge decisions that affect them.

The Consequential Amendments Bill makes important amendments to support the operation of the Foreign Relations Foreign Relations Bill.

Debate adjourned.