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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIA'S FOREIGN RELATIONS (STATE AND TERRITORY
ARRANGEMENTS) (CONSEQUENTIAL AMENDMENTS) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Foreign Affairs, Senator the Honourable Marise Payne)
AUSTRALIA'S FOREIGN RELATIONS (STATE AND TERRITORY
ARRANGEMENTS) (CONSEQUENTIAL AMENDMENTS) BILL 2020
GENERAL OUTLINE
1. This Bill makes consequential amendments necessary to support the implementation
of the scheme proposed to be established by the Australia's Foreign Relations (State and
Territory Arrangements) Bill 2020 (the Foreign Relations Bill).
2. The Foreign Relations Bill will establish a legislative mechanism for the Minister, on
behalf of the Commonwealth, to assess and manage the effect of arrangements between
State/Territory entities and foreign entities on Australia's foreign relations and foreign policy.
3. Under that Bill, State/Territory entities cannot negotiate, enter, vary, or continue to
give effect to arrangements with foreign entities where the Minister is satisfied that the
relevant arrangement would adversely affect Australia's foreign relations or would be
inconsistent with Australia's foreign policy.
4. This Bill makes consequential amendments to the Administrative Decisions (Judicial
Review) Act 1977 (the ADJR Act) to list the Foreign Relations Bill as a law to which the
ADJR Act does not apply. The effect of this will be that decisions made under the Foreign
Relations Bill will not be subject to review under the ADJR Act.
5. This is necessary because the decisions made under the Foreign Relations Bill will
involve complex political considerations relating to Australia's foreign policy and foreign
relations. These indicia are within the remit of the Commonwealth Government and Minister
for Foreign Affairs to determine and manage. As such, it is inappropriate for these decisions
to be open to judicial review under the ADJR Act.
6. In addition, this Bill makes the necessary consequential amendment to the
Foreign Acquisitions and Takeovers Act 1975 (the FATA) to ensure that information under
that scheme can be shared for the purposes of the Foreign Relations Bill.
7. This amendment reflects that there may be an intersection or overlap between
arrangements which are subject to the regulatory frameworks in the Foreign Relations Bill
and the FATA. Effective and efficient information sharing between the Commonwealth
entities responsible for administering these schemes will support a coordinated approach to
managing arrangements between the entities regulated by these schemes, including States and
Territories and foreign governments.
FINANCIAL IMPACT
8. This Bill will have nil or an insignificant financial impact on Commonwealth
Government departments and agencies.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australia's Foreign Relations (State and Territory Arrangements) (Consequential
Amendments) Bill 2020
9. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
10. This Bill makes necessary consequential amendments to support the implementation
of the Australia's Foreign Relations (State and Territory Arrangements) Bill 2020 (the
Foreign Relations Bill).
11. The Foreign Relations Bill will establish a legislative mechanism for the Minister, on
behalf of the Commonwealth, to assess and manage the effect of arrangements between
State/Territory entities and foreign entities on Australia's foreign relations and foreign policy.
12. Under that Bill, State/Territory entities cannot negotiate, enter, vary, or continue to
give effect to arrangements with foreign entities where the Minister is satisfied that the
relevant arrangement would adversely affect Australia's foreign relations or would be
inconsistent with Australia's foreign policy.
13. Item 1 of this Bill amends the Administrative Decisions (Judicial Review) Act 1977
(the ADJR Act) to list the Foreign Relations Bill as a law to which that Act does not apply.
The effect of this will be that decisions made under the Foreign Relations Bill will not be
subject to review under the ADJR Act.
14. Item 2 of the Bill amends the Foreign Acquisitions and Takeovers Act 1975
(the FATA) to ensure that protected information under that scheme can be shared for the
purposes of the Foreign Relations Bill.
Human rights implications
15. The Bill engages the following rights and freedoms:
a. the right to a fair hearing, and
b. the prohibition on arbitrary interference with privacy.
16. It is well accepted that international human rights law obligations are owed to
individuals only, and are not owed to non-natural persons, such as bodies corporate or bodies
politic.
17. The Foreign Relations Bill primarily regulates the entry into, and continuation of,
arrangements between state, territory and local government entities and foreign government
entities, and does not generally affect the rights of individuals. In addition, as relevant
protected information to be disclosed under the FATA would similarly relate to investments
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between such parties, this Bill only engages the above rights to the limited extent that they
may affect individuals (as opposed to a body politic or body corporate), such as individuals
who have entered into subsidiary arrangements (such as commercial contracts) under foreign
arrangements that are covered by the scheme.
Right to a fair hearing
18. Article 14 of the ICCPR provides that all people are to be equal before courts and
tribunals and that everyone, in the determination of rights and obligations in civil
proceedings, is entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law.
19. To the extent that an individual (as opposed to a body politic or body corporate) may
be affected by a decision of the Minister under the Foreign Relations Bill, item 1 of this Bill
which excludes judicial review under the ADJR Act, engages the right to a fair hearing.
20. The exclusion of judicial review under the ADJR Act is necessary as it reflects that
decisions under the scheme established by the Foreign Relations Bill will be assessed on the
basis of Australia's foreign relations and foreign policy. Accordingly, 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) to determine
Australia's foreign relations posture and foreign policy. Given the high political consequence
of these decisions, as well as the impact such decisions have on Australia's relationship with
other countries, Commonwealth-State relationships and national security, it is appropriate
that the decisions are not subject to review under the ADJR Act.
21. However, individuals affected by a decision under the Foreign Relations Bill may still
seek judicial review by the Federal Court and the Federal Circuit Court, under subsection
39B(1) of the Judiciary Act 1903, or by the High Court, under section 75(v) of the
Constitution. This will ensure that affected individuals still have an avenue to challenge
decisions that affect them.
The prohibition on arbitrary interference with privacy
22. Article 17 of the ICCPR establishes a prohibition on arbitrary or unlawful interference
with privacy. The UN Human Rights Committee has not defined 'privacy'. It should be
understood to comprise freedom from unwarranted and unreasonable intrusions into activities
that society recognises as falling within the sphere of individual autonomy.
23. Item 2 of Schedule 1 of the Bill will amend the FATA such that a person may disclose
information obtained under, in accordance with, or for the purposes of the FATA to the:
a. Minister administering the Foreign Relations Bill (being the Minister for Foreign
Affairs), and
b. accountable authority of the Commonwealth entity that deals with the
administration of the Foreign Relations Bill (being the Secretary of the
Department of Foreign Affairs and Trade).
24. This recognises that a proposed arrangement that is subject to the requirements of the
Foreign Relations Bill may also be subject to the requirements of the FATA. As such, it is
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necessary that the Minister and department responsible for administering the Foreign
Relations Bill are able to receive in relation to the same negotiation or arrangement without
contravening the FATA.
25. Item 2 of this Bill engages the prohibition on interference with privacy to the extent
that the relevant protected information disclosed consists of personal information but is not
arbitrary as it is reasonable in the circumstances.
26. Enabling information to be shared for the purposes of transactions simultaneously
subject to two regimes is essential to the effective and efficient administration of the Foreign
Relations Bill. The Minister needs access to all the relevant information upon which to base
his or her decisions under the Foreign Relations Bill, and where the foreign party is
simultaneously regulated by the FATA, this includes information obtained under that regime.
27. This ultimately ensures the legitimate objective of the Foreign Relations Bill, which is
to enable the Minister to protect Australia's foreign relations by ensuring that arrangements
between State/Territory entities and foreign entities are not inconsistent with Australia's
foreign policy or adversely affect Australia's foreign relations. It is also in the interest of the
parties regulated by each regime to have information shared efficiently and outcomes decided
upon consistently.
28. Where a disclosure under subsection 122(1) of the FATA includes personal
information, Australian Privacy Principle 6.2(b) authorises the disclosure as it is an
Australian law authorising the disclosure of personal information. However, other Australian
Privacy Principles continue to apply, in particular, Australian Privacy Principle 11.1, which
requires that an Australian Privacy Principle entity must take reasonable steps to protect
personal information from misuse, interference or loss, and from unauthorised access,
modification or disclosure. Any personal information that is obtained under the FATA and
shared for the purposes of the Foreign Relations Bill will be used only for the purposes of the
administration of the Foreign Relations Bill, or for another lawful purpose. The information
will not be published on the Register established by that Bill.
Conclusion
29. The Bill is compatible with human rights because to the extent that it may limit rights,
those limitations are reasonable, necessary and proportionate.
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NOTES ON CLAUSES
List of abbreviations
ADJR Act Administrative Decisions (Judicial Review) Act 1977
FATA Foreign Acquisitions and Takeovers Act 1975
Foreign Relations Bill Australia's Foreign Relations (State and Territory
Arrangements) Bill 2020
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Preliminary
Section 1 Short title
30. Section 1 provides for the short title of the Act to be the Australia's Foreign Relations
(State and Territory Arrangements) (Consequential Amendments) Act 2020.
Section 2 Commencement
31. Section 2 provides for the commencement of each provision of the Act, as set out in
the table at subsection 2(1).
32. Item 1 in the table provides that sections 1 to 3 and anything in the Act not elsewhere
covered by the table will commence on the day on which the Act receives Royal Assent.
33. Item 2 in the table provides that Schedule 1 will commence at the same time as
section 1 of the Foreign Relations Bill commences. Section 2 of the Foreign Relations Bill
provides that Part 1 of that Bill, which includes section 1, will commence on the day on
which the Bill receives Royal Assent. Therefore, Schedule 1 of this Bill will commence on
the day on which the Foreign Relations Bill receives Royal Assent.
34. Subsection 2(2) specifies that information in column 3 of the table at subsection 2(1)
is not a part of the Act, and information may be inserted in this column, or information in it
may be edited, in any published version of this Act.
Section 3 Schedules
35. Section 3 enables legislation that is specified in a Schedule to this Act to be amended
or repealed as set out in the applicable items in the Schedule concerned, and specifies that
any other item in a Schedule to this Act has effect according to its terms.
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Schedule 1 - Amendments
Administrative Decisions (Judicial Review) Act 1977
Item 1 At the end of Schedule 1
36. Item 1 provides that judicial review under the Administrative Decisions (Judicial
Review) Act 1977 (the ADJR Act) is not available for decisions under the Foreign Relations
Bill.
37. Item 1 inserts new paragraph (zh) into Schedule 1 of the ADJR Act. Schedule 1 of the
ADJR Act sets out classes of decisions which are excluded from review under that Act.
38. As such, the effect of new paragraph (zh) is that the ADJR Act does not apply to
decisions under the Foreign Relations Bill, and therefore judicial review of such decisions is
not available under that Act.
39. The Minister's decision-making powers under the Foreign Relations Bill, and
determination of whether an arrangement with a foreign entity adversely affects Australia's
foreign relations or is inconsistent with Australia's foreign policy, involve considerations
within the Commonwealth's remit and discretion. The determination of these matters are at
the prerogative of the Commonwealth executive government and the Minister's consideration
as to whether these elements are satisfied is not appropriate for judicial adjudication under the
ADJR Act.
40. As such, the exclusion of judicial review under the ADJR Act for these decisions
recognises that decisions relating to sensitive governmental matters, such as whether an
arrangement between a State or Territory and a foreign entity is consistent with Australia's
foreign relations and foreign policy, are not suitable for judicial review.
41. This exclusion is similar to the exclusion of ADJR review from comparable
legislation which relates to matters of foreign relations and the national interest, including
decisions under the Foreign Acquisitions and Takeovers Act 1977 (the FATA).
42. In addition, as the Foreign Relations Bill predominately regulates the conduct of State
and Territory governments, and other non-natural persons, the exclusion of judicial review
under the ADJR Act will not unduly trespass on personal rights and liberties.
43. Although new paragraph (zh) will exclude judicial review under the ADJR Act for
decisions under the Foreign Relations Bill, persons affected by a decision under that Bill may
still seek judicial review by the Federal Court and the Federal Circuit Court, under
subsection 39B(1) of the Judiciary Act 1903, or by the High Court, under section 75(v) of the
Constitution. These avenues will ensure that affected persons have an avenue to seek review
of decisions that affect them.
Foreign Acquisitions and Takeovers Act 1975
Item 2 After paragraph 122(1)(a)
44. Item 2 ensures that persons may share information obtained under the FATA with the
Minister and Secretary of the Department for the purposes of the Foreign Relations Bill.
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45. Subsection 122(1) of the FATA prescribes a list of Acts in relation to which a person
may disclose protected information (within the meaning of section 120 of that Act) to the
Minister, or accountable authority administering the listed Act, for the purposes of
administering that Act.
46. Item 2 inserts new paragraph (aa) into subsection 122(1) of the FATA, which adds the
Foreign Relations Bill to the list of prescribed laws in subsection 122(1). This amendment
will have the effect of ensuring that a person may disclose protected information under the
FATA to relevant persons for the purpose of administering the Foreign Relations Bill.
47. This amendment ensures that information can be shared with the Minister responsible
for the Foreign Relations Bill or the accountable authority of a Commonwealth entity that
deals with the administration of that Bill. The accountable authority for the purposes of the
Foreign Relations Bill is the Secretary of the Department responsible for the administration
of the Bill (pursuant to section 12 of the Public Governance, Performance and Accountability
Act 2013), being the Department of Foreign Affairs and Trade.
48. Appropriate sharing of protected information will ensure the Minister responsible for
the Foreign Relations Bill can properly administer that Bill (once enacted).
49. This amendment recognises that arrangements considered under the Foreign Relations
Bill may overlap with, or intersect with, investments required to be screened under the
FATA. The criteria set out in FATA relate to national interest--this is the test for the
Treasurer to apply when considering a proposed investment under the FATA. Although this
differs from the criteria set out in the Foreign Relations Bill, which relate to adverse effect on
Australia's foreign relations and consistency with Australia's foreign policy, there is a level
of intersection between the two tests and a given arrangement may be subject to approval
under both regimes depending on the nature of the arrangement.
50. Therefore, ensuring that the Minister, and the Department, are able to access this
protected information will ensure a consistent and whole-of-government approach to
Australia's national interest and foreign relations across these pieces of legislation. This
information sharing will also support an aligned Commonwealth position in relation to
particular arrangements, to the extent necessary given the different legislative tests.
Item 3 Application of item 2
51. Item 3 provides for the application of item 2 relating to information sharing under the
FATA.
52. Item 3 provides that the amendment made by item 2 applies, after its commencement,
in relation to protected information obtained before, on or after the commencement of that
item.
53. In accordance with section 2, item 2 will commence at the same time as section 1 of
the Foreign Relations Bill. Accordingly, protected information disclosed under the FATA by
virtue of the amendment to subsection 122(1) may include information obtained before, on or
after the commencement of the Foreign Relations Bill.
54. This provision ensures that information under the FATA may be shared in relation to
the Foreign Relations Bill regardless of when that information was obtained. This recognises
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that information obtained prior to the commencement of the Foreign Relations Bill may be
relevant to the Minister's decision-making powers under that Bill--in particular, in relation
to declarations regarding arrangements that are already in operation, which includes
pre-existing arrangements, under Part 4 of that Bill.
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