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Part 3—Entering non-core foreign arrangements

Part 3 Entering non-core foreign arrangements

Division 1 Simplified outline of this Part

33   Simplified outline of this Part

A State/Territory entity that proposes to enter a non-core arrangement must notify the Minister about that proposal. If the entity enters the arrangement, it must also notify the Minister about that.

The Minister may make a declaration prohibiting a State/Territory entity from negotiating or entering a non-core arrangement. Broadly, the Minister may only make such a declaration if the Minister is satisfied that the negotiation or arrangement:

       (a)     would adversely affect, or would be likely to adversely affect, Australia’s foreign relations; or

      (b)     would be, or would be likely to be, inconsistent with Australia’s foreign policy.

There are particular matters that the Minister must take into account when making a decision to make a declaration (see section 51).

If a State/Territory entity enters a non-core arrangement with a foreign entity in contravention of a declaration by the Minister, then that will be a ground on which the Minister may make a declaration under Part 4 about the arrangement (which could result in the arrangement being invalid and unenforceable, required to be terminated, or not in operation (depending on the nature of the arrangement).

Subsidiary arrangements of the unlawfully entered arrangement may also be affected (see Division 3 of Part 4).

Division 2 Entering non-core foreign arrangements

Subdivision A Requirement to notify the Minister about proposals to enter non-core foreign arrangements

34   Requirement to notify the Minister about proposals to enter non-core foreign arrangements

             (1)  If:

                     (a)  a State/Territory entity proposes to enter an arrangement with a foreign entity; and

                     (b)  the arrangement is a non-core foreign arrangement;

then it must give a notice to the Minister in accordance with subsection (2).

Note:          If the State/Territory entity enters the arrangement, it is required to give the Minister another notice about that (see section 38).

             (2)  The notice must:

                     (a)  be in writing; and

                     (b)  be in the approved form (if any); and

                     (c)  be accompanied by a copy of the proposed arrangement; and

                     (d)  include any information prescribed by the rules; and

                     (e)  be accompanied by any documents prescribed by the rules; and

                      (f)  be given in the approved way (if any); and

                     (g)  be given in the period (if any) prescribed by the rules.

             (3)  Subsection (1) does not apply to an exempt arrangement.

Subdivision B Declarations about negotiations or proposals to enter non-core foreign arrangements

35   Declarations about negotiating non-core foreign arrangements

When Minister may make declaration

             (1)  The Minister may make a declaration under subsection (2) if:

                     (a)  the Minister becomes aware that a State/Territory entity proposes to negotiate, or is negotiating, an arrangement with a foreign entity; and

                     (b)  the arrangement is a non-core foreign arrangement; and

                     (c)  if the State/Territory entity is proposing to negotiate the arrangement—the Minister is satisfied that the proposed negotiation:

                              (i)  would adversely affect, or would be likely to adversely affect, Australia’s foreign relations; or

                             (ii)  would be, or would be likely to be, inconsistent with Australia’s foreign policy; and

                     (d)  if the State/Territory entity is negotiating the arrangement—the Minister is satisfied that the negotiation:

                              (i)  adversely affects, or is likely to adversely affect, Australia’s foreign relations; or

                             (ii)  is, or is likely to be, inconsistent with Australia’s foreign policy.

Note 1:       The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) (see section 51).

Note 2:       Section 37 deals with general matters about the declaration (such as revocation and giving notice to the State/Territory entity).

Declaration not to negotiate

             (2)  The Minister may make a written declaration that the State/Territory entity must not start, or continue, to negotiate the arrangement.

Compliance with declaration

             (3)  The State/Territory entity must comply with the declaration.

Matters relating to declaration

             (4)  A declaration made under subsection (2) is not a legislative instrument.

36   Declarations about proposals to enter non-core foreign arrangements

When Minister may make declaration

             (1)  The Minister may make a declaration under subsection (2) if:

                     (a)  a State/Territory entity proposes to enter an arrangement with a foreign entity (whether or not notice of the proposal has been given to the Minister under section 34); and

                     (b)  the arrangement is a non-core foreign arrangement; and

                     (c)  the Minister is satisfied that the proposed arrangement:

                              (i)  would adversely affect, or would be likely to adversely affect, Australia’s foreign relations; or

                             (ii)  would be, or would be likely to be, inconsistent with Australia’s foreign policy.

Note 1:       The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) (see section 51).

Note 2:       Section 37 deals with general matters about the declaration (such as revocation and giving notice to the State/Territory entity).

Declaration not to enter arrangement

             (2)  The Minister may make a written declaration that the State/Territory entity must not enter the arrangement.

Compliance with declaration

             (3)  The State/Territory entity must comply with the declaration.

Note 1:       If the State/Territory entity enters the arrangement in contravention of the declaration, then the Minister may make a declaration under section 41, 42 or 43 in relation to the arrangement. If the Minister does so, then, to the extent specified in the declaration, the arrangement will become invalid, unenforceable or not in operation, or be required to be varied or terminated. The declaration may also prohibit the State/Territory entity and foreign entity from giving effect to the arrangement or from holding out that they are able to give effect to the arrangement.

Note 2:       In addition, the Minister may make a similar declaration in relation to any subsidiary arrangements of the arrangement (see sections 46 to 48).

Matters relating to declaration

             (4)  A declaration made under subsection (2) is not a legislative instrument.

Subdivision C Matters relating to declarations under this Part

37   Matters relating to declarations under this Part

When this section applies

             (1)  This section applies if the Minister makes a declaration under subsection 35(2) or 36(2) in relation to negotiations or proposals to enter an arrangement between a State/Territory entity and a foreign entity.

When declaration comes into force

             (2)  The declaration must specify the day the declaration comes into force.

Revoking declarations

             (3)  The Minister may revoke the declaration if the Minister ceases to be satisfied of the matters on which the declaration was made.

Notice of declaration

             (4)  The Minister must, as soon as practicable after making the declaration, give the State/Territory entity a written notice under this subsection that:

                     (a)  states the Minister’s decision to make the declaration; and

                     (b)  is accompanied by a copy of the declaration; and

                     (c)  complies with any requirements prescribed by the rules.

Notice of revocation of declaration

             (5)  If, under subsection (3), the Minister revokes the declaration, then the Minister must, as soon as practicable, give the State/Territory entity a written notice that states that the declaration is revoked.

Subdivision D Requirement to notify the Minister about entering non-core foreign arrangements

38   Requirement to notify the Minister about entering non-core foreign arrangements

             (1)  If:

                     (a)  a State/Territory entity enters an arrangement with a foreign entity; and

                     (b)  the arrangement is a non-core foreign arrangement;

then the State/Territory entity must, within 14 days or such longer period prescribed by the rules, give a notice to the Minister in accordance with subsection (2).

             (2)  The notice must:

                     (a)  be in writing; and

                     (b)  be accompanied by a copy of the arrangement; and

                     (c)  include any information prescribed by the rules; and

                     (d)  be accompanied by any documents prescribed by the rules.

             (3)  Subsection (1) does not apply to an exempt arrangement.