1   Short title

                   This Act is the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 .

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3   Simplified outline of this Act

4   Definitions

                   In this Act:

arrangement : see subsection 9(1).

Australia , when used in a geographical sense, includes the external Territories.

Australian law means a law of the Commonwealth, a State or a Territory.

Australia’s foreign policy : see subsection 5(2).

commencement day means the day section 1 commences.

core foreign arrangement : see subsection 10(2).

core foreign entity : see subsection 10(4).

core State/Territory entity : see subsection 10(3).

court means the High Court of Australia or the Federal Court of Australia.

exempt arrangement means an arrangement of a kind that is prescribed by the rules to be an exempt arrangement.

foreign arrangement : see subsection 6(2).

foreign country means any country that is outside Australia and the external Territories, whether or not it is an independent sovereign state.

foreign entity : see subsection 8(1).

foreign law means a law of a foreign country, or part of a foreign country.

gives effect to : a party to an arrangement gives effect to the arrangement if the party:

                     (a)  gives effect to the arrangement in any way and to any extent, whether directly or indirectly; or

                     (b)  takes any action for the purposes of implementing the arrangement (whether or not the arrangement contemplates that the action would be taken for those purposes), including, for example, the following action:

                              (i)  participating in discussions, forums, exchanges, visits or other dealings contemplated by the arrangement;

                             (ii)  promoting projects or other matters contemplated by the arrangement;

                            (iii)  engaging in activities contemplated by the arrangement;

                            (iv)  entering, or encouraging other entities to enter, other arrangements contemplated by the arrangement; or

                     (c)  does anything of a kind prescribed by the rules;

but does not include:

                     (d)  taking any action to terminate the arrangement; or

                     (e)  taking any action to vary the arrangement in accordance with a requirement under this Act; or

                      (f)  doing anything of a kind prescribed by the rules.

Paragraphs (a), (b) and (c) do not limit each other.

legally binding : see subsection 9(2).

negotiation of an arrangement means discussions or dealings between the proposed parties that are directed towards the making of the arrangement.

non-core foreign arrangement means a foreign arrangement that is not a core foreign arrangement.

pre-existing foreign arrangement : see subclause 2(2) of Schedule 1.

regulated Australian party to an arrangement means any of the following entities that are a party to the arrangement:

                     (a)  a State/Territory entity;

                     (b)  an individual who:

                              (i)  is an Australian citizen; or

                             (ii)  is a permanent Australian resident;

                     (c)  an Australian entity (within the meaning of the Foreign Acquisitions and Takeovers Act 1975 );

                     (d)  a partnership or an association incorporated or formed under an Australian law;

                     (e)  any other entity prescribed by the rules to be a regulated Australian party;

but does not include an entity prescribed by the rules as not being a regulated Australian party.

rules means rules made under subsection 54(1).

State/Territory entity : see section 7.

subsidiary arrangement : see subsection 12(1).

terminate an arrangement includes withdraw from the arrangement.

Territory means:

                     (a)  the Australian Capital Territory; or

                     (b)  the Northern Territory; or

                     (c)  an external Territory.

this Act includes the rules.

under the auspices : see subsection 12(2).

variation of an arrangement : see subsection 13(2).

5   Object of this Act

             (1)  The object of this Act is to ensure that the Commonwealth is able to protect and manage Australia’s foreign relations by ensuring that any arrangement between a State/Territory entity and a foreign entity:

                     (a)  does not, or is unlikely to, adversely affect Australia’s foreign relations; and

                     (b)  is not, or is unlikely to be, inconsistent with Australia’s foreign policy.

             (2)  Australia’s foreign policy includes policy that the Minister is satisfied is the Commonwealth’s policy on matters that relate to:

                     (a)  Australia’s foreign relations; or

                     (b)  things outside Australia;

whether or not the policy:

                     (c)  is written or publicly available; or

                     (d)  has been formulated, decided upon, or approved by any particular member or body of the Commonwealth.

6   Foreign arrangements

             (1)  For the purposes of achieving the objects of this Act, this Act has provisions that apply to foreign arrangements.

             (2)  A foreign arrangement is an arrangement between:

                     (a)  a State/Territory entity; and

                     (b)  a foreign entity;

whether or not other entities are also a party to the arrangement.

7   What are State/Territory entities?

                   A State/Territory entity is any of the following entities:

                     (a)  a State or Territory;

                     (b)  the government of a State or Territory;

                     (c)  a Department or agency (however described) that is part of an entity covered by paragraph (a) or (b);

                     (d)  a body established for the purposes of local government by, or under a law of a State or a Territory;

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

                      (f)  an entity that is prescribed by the rules to be a State/Territory entity;

but does not include:

                     (g)  a corporation that operates on a commercial basis; or

                     (h)  a hospital; or

                      (i)  an entity that is prescribed by the rules as not being a State/Territory entity.

Paragraphs (a) to (f) do not limit each other.

8   What are foreign entities?

             (1)  A foreign entity is any of the following entities:

                     (a)  a foreign country;

                     (b)  the national government of a foreign country;

                     (c)  a Department or agency (however described) of an entity covered by paragraph (a) or (b);

                     (d)  a province, state, self-governing territory, region, local council, municipality or other political subdivision (by whatever name known) of a foreign country;

                     (e)  a local council, municipality or other political subdivision (by whatever name known) of an entity covered by paragraph (d);

                      (f)  the government of an entity covered by paragraph (d) or (e);

                     (g)  a Department or agency (however described) of an entity covered by paragraph (d), (e) or (f);

                     (h)  an entity (other than a university) that:

                              (i)  is an authority of an entity covered by paragraph (a), (b), (d), (e) or (f); and

                             (ii)  is established for a public purpose;

                      (i)  a university that:

                              (i)  is located in a foreign country; and

                             (ii)  does not have institutional autonomy (see subsection (2));

                      (j)  an entity that is external to Australia and is prescribed by the rules to be a foreign entity;

but does not include:

                     (k)  a corporation that operates on a commercial basis; or

                      (l)  an entity that is prescribed by the rules as not being a foreign entity.

Paragraphs (a) to (j) do not limit each other.

             (2)  For the purposes of subparagraph (1)(i)(ii), a university does not have institutional autonomy if, and only if:

                     (a)  the rules prescribe circumstances in which a university is taken not to have institutional autonomy; and

                     (b)  those circumstances exist in relation to the university.

9   What is an arrangement?

             (1)  An arrangement is any written arrangement, agreement, contract, understanding or undertaking:

                     (a)  whether or not it is legally binding; and

                     (b)  whether or not it is made in Australia; and

                     (c)  whether it is entered before, on or after the commencement day.

             (2)  An arrangement is legally binding if any of the provisions of the arrangement confer legal rights or impose legal obligations that are legally enforceable under an Australian law or a foreign law.

10   Core foreign arrangements

             (1)  For the purposes of achieving the objects of this Act, this Act has special provisions that apply to core foreign arrangements.

             (2)  A core foreign arrangement is an arrangement between:

                     (a)  a core State/Territory entity; and

                     (b)  a core foreign entity;

whether or not other entities are also a party to the arrangement.

Note:          Core foreign arrangements are a particular subset of foreign arrangements. There are special requirements for them because they are more likely to affect Australia’s foreign relations. Part 2, in particular, has special rules about negotiating or entering core foreign arrangements.

             (3)  A core State/Territory entity is an entity covered by paragraph 7(a), (b) or (c) (even if the entity is also covered by paragraph 7(d), (e) or (f)).

             (4)  A core foreign entity is:

                     (a)  an entity covered by paragraph 8(1)(a), (b) or (c) (even if the entity is also covered by paragraph 8(1)(d), (e), (f), (g), (h), (i) or (j)); or

                     (b)  an entity that is external to Australia and is prescribed by the rules to be a core foreign entity;

but does not include a corporation that operates on a commercial basis.

11   Application of this Act to subsidiary arrangements

                   For the purposes of achieving the objects of this Act, this Act also has provisions dealing with subsidiary arrangements of foreign arrangements.

12   What is a subsidiary arrangement?

             (1)  An arrangement is a subsidiary arrangement of a foreign arrangement if:

                     (a)  the arrangement is entered under the auspices of the foreign arrangement; and

                     (b)  the arrangement is not a foreign arrangement.

             (2)  An arrangement is entered under the auspices of a foreign arrangement if the arrangement is entered at the same time, or after, the foreign arrangement is entered, and:

                     (a)  the arrangement is entered for the purposes of implementing the foreign arrangement, in any way and to any extent, whether directly or indirectly, and whether or not:

                              (i)  the arrangement refers to the foreign arrangement; or

                             (ii)  the foreign arrangement contemplates the arrangement, or arrangements of the same kind as the arrangement, being entered; or

                     (b)  both of the following are satisfied:

                              (i)  the foreign arrangement contemplates the arrangement, or arrangements of the same kind as the arrangement, being entered (including, for example, by encouraging or promoting the arrangement, or arrangements of that kind, to be entered);

                             (ii)  the arrangement is entered as a consequence of the foreign arrangement, or of any actions taken under the foreign arrangement; or

                     (c)  the arrangement and the foreign arrangement have a relationship of a kind prescribed by the rules.

Paragraphs (a), (b) and (c) do not limit each other.

             (3)  For the purposes of subsection (1), it does not matter whether the parties were aware, when entering the subsidiary arrangement, that the foreign arrangement:

                     (a)  was entered in contravention of a provision of this Act; or

                     (b)  was, because of the operation of a provision of this Act, invalid, unenforceable, not in operation, terminated, required to be terminated, or affected in any other way.

13   Application of this Act to variations of arrangements

General application to variations of arrangements

             (1)  This Act applies in relation to a variation of an arrangement (whether the arrangement is made before, on or after the commencement day) in the same way it applies in relation to an arrangement.

Example:    Sections 16 and 23 require a core State/Territory entity to notify the Minister about proposals to negotiate or enter a core foreign arrangement. Because of this subsection, if the entity proposes to negotiate a variation of a core foreign arrangement, or make a variation of a core foreign arrangement, then the entity is required to notify the Minister about that proposal.

             (2)  A variation of an arrangement is any written variation of an arrangement:

                     (a)  whether or not it is legally binding; and

                     (b)  whether or not it is made in Australia;

and includes the exercise of an option to extend the arrangement.

Additional application for subsidiary arrangements

             (3)  Without limiting subsection (1), this Act applies as if a reference to an arrangement that is entered under the auspices of a foreign arrangement includes a reference to the following:

                     (a)  a variation of an arrangement that is made under the auspices of a foreign arrangement;

                     (b)  an arrangement that is entered under the auspices of a variation of a foreign arrangement.

Exemptions

             (4)  Without limiting subsection (1), the rules may prescribe that variations of arrangements of a kind are exempt, even if the rules do not prescribe that arrangements of that kind are exempt.

Exceptions

             (5)  Subsections (1), (3) and (4) do not apply in:

                     (a)  subsection (2); and

                     (b)  subsection 9(1) (which is the definition of arrangement ); and

                     (c)  Schedule 1 (which is about pre-existing foreign arrangements).