Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

by leave—In respect of the Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020, I move amendments (4) and (5) on sheet 1078 together:

(4) Page 69 (after line 16), after clause 56, insert:

56A Guidelines

(1) The Minister must, by notifiable instrument, issue guidelines for the purposes of this Act.

(2) Without limiting subsection (1), the guidelines must outline the matters in relation to Australia's foreign policy which the Minister may consider when making a decision for the purposes of this Act.

(3) For the purposes of the performance of a function, the exercise of a power, or making of a decision under this Act, regard must be had to any guidelines issued by the Minister under this section.

(5) Page 69, after proposed clause 56A, insert:

56B Foreign Policy Statement

(1) The Minister must, by legislative instrument, make a statement (the Foreign Policy Statement) at least once each calendar year that outlines Australia's foreign policy for the purposes of this Act.

(2) The rules may prescribe other matters relating to the content or form of the Foreign Policy Statement.

(3) Regulations must not be made under paragraph 44(2) (b) of the Legislation Act 2003 to exempt the instrument from disallowance.

I don't need to speak to the amendments. They cover the same issues that we covered at length yesterday about putting some more checks and balances in the bill, getting clarity and not having the same complete control and power that the minister would have. It's setting in place some guidelines for how decisions are going to be made and setting in place a definition of foreign policy. In the interests of time I won't speak any more about them because I think we canvassed in a lot of detail yesterday the issues they cover.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The opposition will support amendment (4) but vote against amendment (5). Chair, I ask that you put them separately on that basis.

The CHAIR: I will put amendment (4) first. The question is that amendment (4) on sheet 1078 be agreed to.

Question negatived.

The CHAIR: I will now put the second part of that. The question is that amendment (5) on sheet 1078 be agreed to.

Question negatived.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

by leave—I ask that the votes of the Greens in favour of that amendment be recorded.

The CHAIR: Yes, we can do that.

In respect of the Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020, the Greens oppose clause 58 on sheet 1078 in the following terms:

(6) Clause 58, page 70 (lines 1 to 4), TO BE OPPOSED.

This is to remove a clause from the bill. At the moment, the bill says that the minister is not required to observe any requirements of procedural fairness in exercising a power or performing a function under this act. We think that it is pretty unreasonable. We think that basic legislative standards and common-law standards are that procedural fairness should be allowed. When these bills went to the Scrutiny of Bills Committee, the committee said:

The committee considers that the right to procedural fairness is a fundamental common law right and it expects that any limitation on this right be comprehensively justified…

The committee did not consider that the explanation in the explanatory memorandum as to why procedural fairness should be excluded was at all satisfactory, and we wrote to the minister. We received further information back from the minister and, certainly, having seen that letter, I do not see any further justification as to why procedural fairness should be excluded. The right to procedural fairness is based on two things. It requires that decision-makers aren't biased and do not appear to be biased, and that a person who may be adversely affected by a decision is given an adequate opportunity to put their case before the decision is made. I think these are two very, very basic requirements, and there is no reason why procedural fairness should be excluded in this legislation.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

In relation to Senator Rice's amendment, I understand that, in the normal course of events, issues—such as this one in relation to procedural fairness—are raised, but this is a different form of legislation. The inclusion of procedural fairness would require the disclosure to a state or territory entity, where there was a likelihood of an adverse decision, of the specific foreign policy matters considered which made the adverse decision likely. It is our view that it is not appropriate for sensitive decisions on foreign policy or foreign relations to be shared.

It's a well-established principle that information relating to Australia's international or foreign relations is not required to be released, and there are numerous examples of this: the Freedom of Information Act 1982 exempts documents affecting national security, defence or international relations; the Archives Act 1983 provides that access may be refused if releasing the information would damage Australia's security, defence or international relations; and under the Criminal Code there are offences for Commonwealth officers who cause harm to Australia's interests by communicating information that causes harm to Australia's interests, including information that harms or prejudices Australia's international relations. Public interest immunity considerations also include damage to Australia's international relations, particularly in instances where the information relates to exchanges between government officials.

It does not, in our view, make sense and it is damaging to Australia to reverse a longstanding principle in the context of these bills. If the sensitive foreign policy information were excluded from such disclosures, the opportunity for procedural fairness would actually not be meaningful. The exclusion of procedural fairness does not prevent state or territory entities from consulting DFAT in relation to arrangements or relevant policy considerations prior to a formal notification.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

For the reasons previously outlined, Labor will support the amendment.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

Minister, do you have any legal advice that suggests that in these bills the requirements of procedural fairness would require disclosing sensitive information?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Senator Rice, we don't comment on legal advice of that nature in a discussion such as this, but I've been clear, I think, throughout the debate in relation to the sensitivity of the sorts of matters that these bills go to. The examples that I have just provided—from the FOI Act, from the Archives Act and from the Criminal Code—go to the seriousness of these issues. We are not talking about basic administrative decisions, Senator. We are talking about decisions in relation to foreign policy and foreign relations.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

Thank you, Minister; but do you have any legal advice? My understanding is that in the sort of legislation that you were talking about—and, indeed, in this legislation—you can have procedural fairness that does not require the disclosure of sensitive information. There was a discussion about this by the Australian Law Reform Commission that basically outlined that procedural fairness is still required, even where sensitive information is not disclosed.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

We have comprehensive legal advice on all aspects of the piece of legislation.

The CHAIR: The question is that clause 58 stand as printed.

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

I seek leave to move amendments (1) to (4) on sheet 1120 and amendment (5) on sheet 1120 together. I know that they will be voted on separately, but I'd like to move them together.

Leave granted.

In respect of the Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020, I move:

(1) Clause 7, page 9 (lines 6 and 7), omit paragraph (7) (e).

(2) Clause 7, page 9 (after line 12), after paragraph (h), insert:

(ha) a university established by, or under, a law of a State or a Territory; or

(3) Clause 10, page 11 (line 28), omit "paragraph 7(d), (e) or (f)", substitute "paragraph 7(d) or (f)".

(4) Clause 50, page 60 (lines 19 and 20), omit "Generally, this Act applies to the Australian National University as if it were a State/Territory entity."

And the Greens oppose division 6 in the following terms:

(5) Division 6, clause 55, page 68 (lines 1 to 12), to be opposed.

This year the government has presided over the complete devastation of universities, with $1 billion of core funding cuts; the doubling of fees for many degrees; international students being left completely abandoned during this time of crisis, having to line up outside food banks to put food in their stomach; and not lifting a finger to stop thousands of uni jobs being cut. The government are actually allowing all of that to happen right under their watch. One day, they want university autonomy and to wash their hands of any responsibility they have for universities; the next day, they come in here wanting to crack the whip on universities.

We side with the university sector, which says that the inclusion of universities in Australia's Foreign Relations (State and Territory Arrangements) Bill 2020 is going to be damaging to them. This bill has extraordinary scope. It is seemingly dressed up, but it is up to the whim of the government as to what they think the national interest is on a particular day. That is how they are going to operate. Nothing that the minister said in response to the questions from Senator Wong or Senator Rice has convinced me that it should be otherwise.

If this bill passes, the government can basically tear up any agreement between Australian universities and overseas organisations or governments, and those agreements could underpin vital research, which is something that the government doesn't like. It doesn't have to be international interference. It could be cultural issues or joint degrees—any of that. The attitude is, 'Trust us; we don't know what we are going to do with universities yet, but trust us.' I'm sorry; we don't really trust you.

I know the Labor Party have stood here over the past four days saying that universities haven't been consulted. Labor colleagues have waxed lyrical about the importance of consulting and engaging with universities properly. I would plead with you to support these amendments and exclude the universities. Once the government has consulted with the universities, even if you do want them included, maybe think about that later. At this point, we just don't know what the government is going to do. I commend these amendments to the Senate.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I have to respond to that. When I hear the Greens talk in this chamber I sometimes wonder whether they are really here to represent the Australian people, when all the time they're talking about overseas countries or foreign students, as they are in this case. I wonder if they have really taken the time to speak to the government to understand why the universities have been included in this bill. Have you really followed up to get some understanding about why they are in the bill?

This is about national interest, our safety. What we've found is that, even in the case of students, universities are collaborating and working with the Chinese government in research programs. On top of their jobs with universities, they're getting paid up to $150,000. We don't know what they're doing. We've built up our national security in this country in relation to cyberattacks and things like that. It is quite understandable to say that, if any agreements are taken up by universities with other foreign countries, we must know what those agreements are, pure and simple. To drag foreign students into this, saying it is about taking food out of their stomachs, is a load of rubbish as far as I'm concerned. Stick with what this bill is about. If you really care about this country, about the national interest, then you'll stand up and support this bill.

I think this is quite sensible and feasible. We've spoken about private universities being included in this. I suggested to the government that they send a letter to them and invite them to be part of this. A lot of people in the universities don't understand what the government, ASIO or the Federal Police know is going on. They should be working with the foreign affairs department. So I have no problem with it. Instead of whinging and complaining about legislation, how many of you, even on the Labor side, have really taken the time to sit down and talk to the government about their legislation and the impact this is having? This whinging and complaining goes on all the time. Half the time you don't really know the full guts of the bill.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

The government does not support the Greens amendments to remove universities from the bill. Of course we acknowledge that universities are a major contributor to the Australian economy. That are a major exporter. They have world-class standing and an increasing global posture, which is absolutely welcomed by the government. But it is a complex and contested world, and one of the things that this bill seeks to do is to ensure that we are working together to ensure consistency in foreign policy and foreign relations, because Australian public universities are publicly funded institutions, established by law with a fundamental role in international research and partnerships, because the status of Australian public universities and their international posture means their foreign arrangements do have the potential to impact Australia's foreign relations and foreign policy. It's also the case, though—and the government has acknowledged this—that university arrangements present a lower degree of risk than state and territory arrangements with foreign national governments. So, within the bill, they are designated as non-core arrangements; they are subject to fewer requirements and a lesser degree of scrutiny as a consequence of that.

We will work very closely, through the task force in the Department of Foreign Affairs and Trade, with universities to support their efficient and effective engagement with the scheme. As I set out yesterday in my discussions in the committee stage with Senator Rice and Senator Wong in particular, the Department of Foreign Affairs and Trade has consulted during many meetings with universities and representative university bodies, and we will continue to work closely with them in the implementation of the bill, should it be passed.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

We have worked through this in committee and as you would have seen from the amendments. Whilst I understand the points, and the political point, that Senator Faruqi wishes to make, we start from the proposition that universities' international engagement does have potential implications for Australia's foreign policy and therefore should be subject to regulation.

We have substantial concerns, which I outlined at length, I think, yesterday, about the government's refusal to engage, the minister's continued refusal to engage and the fact that UFIT, the task force which was doing work on this, was bypassed. We also have concerns about the regulatory gap, which has never been explained, whereby private universities like Bond University will be excluded from the operations of the bill.

However, those concerns do not lead us to the proposition that the principle that universities should be subject to regulation in respect of foreign arrangements ought be abrogated. So, for that reason, we will not be supporting the Greens amendments, as I've expressed to them publicly.

I also note that the government has accepted the need for a review of the operation of the bill and for a narrowing of the definition of 'arrangements' and has provided a definition of 'institutional autonomy', all of which were matters raised and dealt with through the Senate committee which we participated in.

The CHAIR: The question is that amendments (1) to (4) on sheet 1220 as moved by Senator Faruqi be agreed to.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

In relation to amendment (5) on sheet 1120, and the question is that division 6 stand as printed.

Question agreed to.

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

In respect of the Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020, I move Greens amendment (1) on sheet 1118:

(1) Clause 9, page 11 (after line 10), after subclause (1), insert:

(1A) However, if a party to the arrangement is a university within the meaning of subsection 7(e), an arrangement has a value equal to, or more than, the threshold amount per financial year.

(1B) The threshold amount for the financial year starting on 1 July 2020 is $250,000. The amount is to be indexed in accordance with Part 5-6 (Indexation) of the Higher Education Support Act 2003.

I was hoping that I wouldn't have to move this amendment, because really universities should be excluded, but now that's not the case. This amendment really is about at least making sure that the larger projects or agreements are the ones that allow the government's broad scope to be looked at by the government. This amendment has a threshold amount of $250,000 for the government to be able to do what they want to do. Like I said: sadly, in the absence of universities being excluded from this legislation, at least this will minimise some of the damage and the harm done to universities and the people who work there. I commend the amendment to the Senate.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

The government opposes this amendment. The principles of this bill and the motivation behind it are related neither to the monetary value of arrangements such as this nor to the potential impact of the arrangements. It is our view that including a monetary value to limit application of the scheme could potentially allow circumvention of the scheme by breaking projects down into smaller amounts for precisely that reason—to avoid its application—and by masking arrangements with monetary value in subsidiary arrangements, which are not within the scheme unless head arrangements are caught. I also think, from an administrative perspective, it may on occasion be difficult to ascertain the value of certain arrangements, creating uncertainty in the bill's application. I don't think this amendment would go any way to assisting the implementation of the bill at all.

Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that amendment (1) on sheet 1118 moved by Senator Faruqi be agreed to.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I move opposition amendment (1) on sheet 1115R:

(1) Page 67 (before line 1), before Division 5, insert:

Division 4B—Port of Darwin Report

53B Port of Darwin Report

(1) The Minister must cause a report to be prepared on the following:

(a) whether the 99-year lease of the Port of Darwin adversely affects, or is likely to adversely affect, Australia's foreign relations;

(b) whether the 99-year lease of the Port of Darwin is, or is likely to be inconsistent with, Australia's foreign policy;

(c) what action the Minister may or may not take under this Act in relation to the 99-year lease of the Port of Darwin;

(d) any other implications of this Act for the 99-year lease of the Port of Darwin;

(e) the application of this Act to arrangements similar to the Port of Darwin lease that may be made in the future.

(2) The persons who prepare the report must give the report to the Minister within 3 months of the commencement of this section.

(3) The Minister must cause a copy of the report to be tabled in each House of Parliament within 15 sitting days of that House after the report is given to the Minister.

This is the opportunity for those who have been complaining about the Port of Darwin to actually get some accountability from this government about the 99-year lease, which they have steadfastly refused to be clear about. I would make this point: even yesterday, the minister was unable to give the chamber a clear answer about whether or not the Port of Darwin could be subject to this bill. This bill is, in effect, retrospective, so the minister can veto arrangements which have already been put in place prior to the legislation being passed. When asked about the Port of Darwin, the minister first said that, because it was leased with a private entity, it would be excluded, but then she could not rule out the potential for it to be included within the remit of the legislation, on the basis that there was a subsidiary arrangement and therefore it would be subject to the bill. What this amendment does is require the minister to provide a report. We're not seeking to actually take over the minister's role. We're seeking to ensure that there is transparency around the Port of Darwin lease, that a report be tabled in this chamber that goes to both the effect of the legislation on the lease but, as importantly, the effect of the lease on Australia's foreign policy objectives, which has been the subject of a number of contributions from senators around the chamber. I commend the amendment.

Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to this | Hansard source

Over the years, I have been consistent in my strident criticisms of the decision to lease the Port of Darwin to Landbridge. How can one of our most strategic assets in northern Australia be leased to a company with ties to the Communist Party in Beijing? There have been long concerns about the decision, attributed to the surveillance and espionage capabilities presented by the port's close proximity to Australian and US defence facilities as well as concerns about the strategic purpose of China's investment in the region as part of its Maritime Silk Road. I know many Australians who have contacted me do not agree, respectfully, with the defence minister's comments on 9 September that there are no security concerns regarding the Port of Darwin. How can this not be a matter of concern? Indeed, I have to say that, after the events of this week, I envisage that there will be renewed focus on the Port of Darwin and it will become very much symbolic of our political fortitude to stand up to the bullying tactics of the CCP.

I think it's important to highlight some of the aspects of that decision on the Port of Darwin, and they remain perplexing to this day. I know that, after its win in August 2012, the CLP started exploring the privatisation of assets, including the port. There was a process. There were 33 investors, including Australian and European companies, that expressed an interest, including Landbridge. At the time, media reports indicated that Landbridge was a subsidiary of the Shandong Landbridge Group, a private company, and that its 2013 billionaire owner, Ye Cheng, was named by the Chinese government as one of the top 10 individuals caring about the development of national defence. Shandong was found to have extensive links to the CCP and the PLA. Indeed, in an interview in Beijing in 2016, Mr Ye stated:

… the Darwin Port investment fit the company's strategy to expand its shipping and energy interests and served China's foreign policy goal known as One Belt, One Road …

In February 2015, the Northern Territory assembly appointed the Port of Darwin Select Committee. That committee went through a process. The evidence from that committee also indicated that the federal government had advised the Northern Territory government that the port was better privatised than continuing in government hands. One of the key recommendations in its April 2015 report was that an Australian entity control the lease and that there be FIRB and defence consultations regarding the strategic and security risks of a potential international investor. On 14 September, FIRB contacted Landbridge indicating that the lease was outside the purview of FIRB review because of a technicality that assets owned by state, territory and local governments were exempt from FIRB scrutiny. To this day, that remains the case. The exception has been modified to some extent, but it still remains an issue, and I think that that's something that we should be looking at.

But, in any case, on 13 October Chief Minister Giles announced the 99-year lease valued at $506 million. The lease process raises some legitimate questions as to why, given the lead time to this decision, more effort wasn't made by those in key federal positions and those advising them to remove the foreign investment exemption, given the national security implications of allowing such a critical asset to be handed over to an entity with well-known ties to the CCP and the PLA. We do note that, at the time, the Abbott government was very keen to ensure that a free trade agreement was entered into with China. The Chinese President, on 17 November 2014, addressed a joint sitting and, the day after, the FTA was announced by the trade minister, Andrew Robb—$18 billion. Subsequent to that, Mr Robb left and he took on a job with Landbridge—$880,000. I will leave it there, but those questions still remain open.

In its report after the decision, the Senate Economics References Committee examined a number of issues pertinent to the decision and, in particular, made recommendations regarding that exemption. Peter Jennings, Neil James and others gave evidence. They were very, very critical of the decision. As Peter Jennings said, we would now have to have our national security interests balanced against the reality of operating out of a harbour run by a company whose website proclaims that it is contributing its best to realise the great rejuvenation of the Chinese dream.

There were different offers at the time. An ABC report of 12 March 2019 goes back and looks at some of these offers. That article reflects that, whilst Landbridge was the highest offer, the second and third offers were very close thereto. Neil James said:

If [Landbridge's] offer was the best offer, but it introduced a major element of strategic risk for the whole country, they should have had the common sense to realise they take the second best offer or the third best offer and not have any strategic risk.

I have been consistent on this issue but also on my criticisms of predatory actions by totalitarian regimes and their state owned entities on various issues—in particular, the acquisition of strategic assets. I have advocated for a major overhaul of critical infrastructure legislation, including retaking the Port of Darwin. As the minister said, there is absolutely no doubt that, were the lease of the port to be considered today, it would be subject to FIRB rules. But I also believe that because the exemption has now been modified, most likely it would be rejected by the Treasurer. However, I am disappointed that the foreign investment changes proposed by the Treasurer, which we will probably be debating shortly in this place, will not allow a retrospective consideration of the port decision. Under FIRB rules, that is not going to be possible.

Regardless of why the lease was signed, there are cogent national security imperatives as to why consideration should be given to breaking the lease. It's obvious from the Northern Territory submission on these bills that there is some contemplation of a re-acquisition. However, I did put specific questions to the Northern Territory Chief Minister, Michael Gunner, which weren't responded to. They very much went to this issue. It would have been useful to have Mr Gunner give evidence, or at least provide responses to those questions, so that we could explore the issues. The only way we are going to explore these issues is with information from the Northern Territory government. So I say to those opposite that a better course of action here would be to seek the cooperation of the Northern Territory government. They have been reluctant in relation to releasing these documents. I would urge those opposite that a better course of action, rather than getting another report here as requested, would be to urge the Northern Territory government to release those documents so that we can make a comprehensive assessment.

The minister has answered in the committee stage the very questions that are raised in this amendment. This amendment also raises technical issues, that it's not just actions in the purview of the foreign minister but also actions in the purview of other ministers, including the Treasurer, that will be required to take action. So I believe there is a technical problem with this amendment. I won't repeat my concerns about this bill, which I outlined in the second reading debate. Suffice to say that I believe this amendment will not lead to any report that would be useful. I think that it's a futile exercise, because we already know the outcome, and the outcome is that there will not be a retaking of the Port of Darwin under this legislation.

As I have said, there are other opportunities. I have been advised that there are circumstances which may provide cause for the lease to be broken, including a failure by the port operator to meet legislative requirements if the company were to become insolvent, failure to meet defence access requirements and in the event that defence powers are exercised. (Time expired)

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

The government does not support this amendment. We discussed it during the debate in the committee stage for some time yesterday. The government absolutely recognises that foreign investment must be in our national interest. Foreign investment is a vital source of funds to maintain and enhance Australia's infrastructure networks—our assets. Investment in critical assets, however, must not be contrary to the national interest.

I can confirm to the chamber again that the Port of Darwin arrangement was not covered by the foreign investment regime in 2015. But, given the changes that have been made since 2015 by this government, similar leasing and acquisition proposals would now be covered and would require a formal FIRB process going forward. The Prime Minister repeated in June of this year, during the announcement of the upcoming foreign investment reforms:

The Darwin Port was not sold with the approval or authority of the Commonwealth Government. It was not. At that time, sales of assets by Territory governments, state governments, did not require and did not call in the authority of the Foreign Investment Review Board or the Treasurer. As a result of that, I engaged with all the states and territories and had the rules changed and that came into effect in March of 2016.

As the Prime Minister has said, the lease decision wasn't solely on the basis of the decision of the Northern Territory government. Of course, that decision could only be explained by the Northern Territory government of the time.

The issues in the system that that sale identified were addressed by our government—indeed, by the Prime Minister when he was Treasurer. In March 2016, the then Treasurer added those additional safeguards to Australia's foreign investment framework. Working with the states and territories, the government amended the Foreign Acquisitions and Takeovers Regulations so that the FIRB would assess the sale of critical state owned infrastructure assets to private foreign investors. In addition, in 2017 the government established the Critical Infrastructure Centre. The centre provides coordinated and comprehensive assessments of national security risks to critical infrastructure in the ports, water, electricity, gas and telecommunications sectors. The centre is also responsible for the administration of the security of the Security of Critical Infrastructure Act 2018. That act also established a critical infrastructure assets register, a ministerial last-resort directions power to manage the risks to water, electricity, gas and port assets. These legislative measures must ensure that the government knows who owns and operates our most critical assets and is able to mitigate any identified national security risks. Of course, departments coordinate on this basis: they bring matters of concern to the attention of the Treasurer, who then consults across government, including with my department and, where necessary and appropriate, with the foreign minister on the ramifications for the national security risks identified.

The previous reforms which have been made by the coalition government will both complement and be added to by the comprehensive reforms to the foreign investment review framework, introduced to parliament by the government in October of this year. These are reforms which also address national security risks, including those related to critical infrastructure. They strengthen the existing system, particularly as it relates to compliance by foreign investments.

So I assure the Senate that the government takes these issues very seriously. We will always act in the national interest, as clearly shown by the development of this foreign relations bill, which will necessarily address a separate, but just as important, gap in our overall system.

Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to this | Hansard source

Minister, I would envisage, as part of the stocktake that you have indicated to the chamber, that it would include approaches to the states and territories, including the Northern Territory, which to this day has been reluctant to release any of those documents publicly or, as I understand it, to the Commonwealth itself. As part of that stocktake would we envisage that without the cooperation of the states and territories—and in particular without the cooperation of the Northern Territory Labor government—that we won't be in the position to make a comprehensive assessment of what the Port of Darwin issue is?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Senator, thank you for your question. I'm not going to speculate, as I have not through this entire debate, on specific examples of particular cases, because that is the purpose of the stocktake. But we are working closely with the states and territories, including the Northern Territory—who were part of the consultations that I outlined in detail to the chamber yesterday—in relation to these matters. Once the bill sets out the requirements that the states and territories are required to respond to in the stocktake process and the task force is working with those state and territory agencies, then I would hope and expect that states and territories would work constructively with the Commonwealth to address these issues.

Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that amendment (1) on sheet 1115 revised, moved by Senator Wong, be agreed to.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I move:

That the report be adopted.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I move the following amendment to the report from the Committee of the Whole:

At the end of the motion add:

"and that, in relation to amendment (1) on sheet 1112:

(a) each annual report tabled by the Minister for Foreign Affairs pursuant to section 53A of the Australia's Foreign Relations (State and Territory Arrangements) Act 2020 ('the Act'),stand referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report in accordance with standing order 25(20);

(b) should the committee, as part of its inquiry into each annual report, request and receive information from the Minister related to the exercise of the Minister's decision-making powers under the Act that is information of the kind referred to in subsection 53(3) of the Act, the committee is to examine that information in confidence, including hearing any evidence in relation to such material in camera; and

(c) this order is of continuing effect.

It simply relates to ensuring that the annual report, which we have previously inserted into the legislation, will be referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Senator Wong and I did speak about this very, very briefly, and I did that without the amendment in front of me. It is an amendment of continuing effect. I don't believe it's just consequential to the resolution to the amendment that the chamber agreed in relation to the annual report. In that case, the government will oppose the amendment.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Thank you for giving me notice of the fact that you are not going to agree with what we agreed previously at the table. And I just say, yet again, here is a minister, on a bill we agreed with—

The TEMPORARY CHAIR: Senator Wong, you need to seek leave.

I seek leave to make further statements.

Leave granted.

We have written to this minister. We have invited them to negotiate on amendments. There has been silence as a result. She has not had the outcome in the chamber that she wanted—all for want of picking up the phone and actually having a discussion. Now we have, frankly, an absurd proposition that a bill which has been amended to include an annual report—an uncontroversial amendment—that would require that report to go to a committee that the government controls, she's now going to oppose. You want a fight when you don't need to have one. There's an annual report that we can send to a references committee. It is a very responsible and sensible amendment to send to a committee the government controls.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Senator Wong, you'd be sadly mistaken if you thought that I was seeking a fight. I'm not seeking a fight. Senator Wong, we had an informal discussion—

The TEMPORARY CHAIR: Minister, you need to seek leave as well.

I seek leave to make a short statement.

Leave granted.

Let me repeat. If Senator Wong thinks I'm seeking a fight she's sadly mistaken. She most certainly will know if I am. But I would say, on this matter—

Senator Wong interjecting —

Senator, that's not my intention whatsoever. I don't think this matter is merely a consequential amendment to the amendment that was agreed by the chamber in relation to the annual report. Of course I accept that that is agreed by the chamber and now forms part of the bill. There is no question in relation to that. If, with the provision of the annual report, the chamber is then minded to refer it to a committee at the time then that will be a matter for the chamber. But this is an order of continuing effect, Senator. It's not a minor amendment and the government doesn't support it.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I seek leave to make a statement of no more than two minutes.

Leave granted.

So we are clear, and the coalition senators can be very clear about what we are now going to have a division on: we are having a division because the minister is refusing to have an order which requires an annual report, which has now been inserted in the bill, to go to a committee that the government controls.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

The Greens will be supporting this motion for having this report in continuing effect, to report on what has occurred under this legislation. It is a tiny measure that we have been able to get through this chamber to provide some level of accountability for this bill. It is a tiny measure, which is why we will support it.

In terms of the bill overall, the Greens know that issues of foreign interference are serious. We know that it is far preferable to have the Commonwealth, the states, the territories, universities and local governments, actually working collaboratively and coherently together to make sure that their interactions with foreign governments and foreign universities are in the national interest. The Greens would have supported reasonable legislation that aimed to do that—legislation that was developed collaboratively and cooperatively, with input from the states, the territories, the universities and local governments, before the legislation was put into this place. But we cannot support this legislation. As I said, this motion is to have an annual report on the legislation. Other than that, this legislation gives unbridled power to the foreign minister. It hasn't been developed in consultation with affected parties; it hasn't got definitions in it; there are no guidelines on how decisions are going to be made as to overriding decisions that sovereign governments have made with foreign entities. There are no reasons for decisions that have to be issued to people who are going to be affected—who have had their decisions overridden. There is retrospectivity, so that states, territories and universities can enter into arrangements, and at some stage in the future, because foreign policy is deemed to have changed, suddenly their arrangements can be overridden. There is no procedural fairness, as we discussed earlier on today. It has all been, 'Trust us; everything will be fine.' Frankly, we do not trust you. You have form in not being able to be trusted to work cooperatively and genuinely with everyone to make sure things are occurring in the national interest and in the interests of all Australians, not just for your vested interests, not just for the people that you happen to get on with. The Greens, as I said, would have supported legislation that went to the serious issue that we're facing. We are supporting this amendment as one tiny measure, but, overall, we cannot support this legislation.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I seek leave to make a short statement.

Leave not granted.

Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment to the report of the Committee of the Whole moved by Senator Wong be agreed to.

Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question now is that the report from the Committee of the Whole, as amended, be adopted.

Question agreed to.

Report adopted.

Senator Wong?

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I understand that the government made a mistake on an earlier division—I was giving you time to be briefed, Madam Acting Deputy President. I've been briefed by text message that the government is going to seek to recommit the vote. As long as the procedure is followed—and perhaps the manager or the minister can explain it—then the opposition will allow the vote to be recommitted in accordance with the usual conventions.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Thank you, Senator Wong. I understand that there was an error in the arrangements for the vote on opposition amendment (1) on sheet 1115. The government seeks to recommit the vote.

Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that amendment (1) on sheet 1115, standing in the name of Senator Wong be agreed to.

Question negatived.