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2019-2020
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Australia’s Foreign Relations (State and Territory Arrangements) Bill 2020
No. , 2020
(Foreign Affairs and Trade)
A Bill for an Act to protect and manage Australia’s foreign relations, and for related purposes
Contents
Division 1—Preliminary matters 1
1............ Short title............................................................................................. 1
2............ Commencement................................................................................... 2
3............ Simplified outline of this Act.............................................................. 2
4............ Definitions.......................................................................................... 4
Division 2—Core provisions of this Act 8
5............ Object of this Act................................................................................ 8
6............ Foreign arrangements.......................................................................... 8
7............ What are State/Territory entities?......................................................... 8
8............ What are foreign entities?.................................................................... 9
9............ What is an arrangement?................................................................... 10
10.......... Core foreign arrangements................................................................ 10
11.......... Application of this Act to subsidiary arrangements........................... 11
12.......... What is a subsidiary arrangement?.................................................... 11
13.......... Application of this Act to variations of arrangements....................... 12
Part 2—Negotiating and entering core foreign arrangements 14
Division 1—Simplified outline of this Part 14
14.......... Simplified outline of this Part............................................................ 14
Division 2—Negotiating core foreign arrangements 16
15.......... Prohibition on negotiations without the Minister’s approval............. 16
16.......... Requirement to notify the Minister about negotiations...................... 16
17.......... The Minister’s decision about negotiations....................................... 16
18.......... Notices relating to the Minister’s approval under subsection 17(2).. 18
19.......... When the Minister’s approval under subsection 17(2) is in force..... 18
20.......... Notice of the Minister’s refusal under subsection 17(3)................... 19
21.......... When the Minister is taken to have given approval for negotiations. 19
Division 3—Entering core foreign arrangements 20
22.......... Prohibition on entering core foreign arrangements............................ 20
23.......... Requirement to notify the Minister before entering core foreign arrangements 20
24.......... The Minister’s decision about proposals to enter core foreign arrangements 21
25.......... Notices relating to the Minister’s approval under subsection 24(2).. 22
26.......... When the Minister’s approval under subsection 24(2) is in force..... 23
27.......... Notice of the Minister’s refusal under subsection 24(3)................... 23
28.......... When the Minister is taken to have given approval for proposals to enter core foreign arrangements 24
29.......... Requirement to notify the Minister about entering core foreign arrangements 24
Division 4—Consequences of unlawfully entering core foreign arrangements 26
Subdivision A—Effect on legally binding arrangements 26
30.......... Arrangements that purport to be legally binding under Australian law 26
31.......... Arrangements that are legally binding under foreign law.................. 27
Subdivision B—Effect on non-legally binding arrangements 28
32.......... Arrangements that are not legally binding......................................... 28
Part 3—Entering non-core foreign arrangements 29
Division 1—Simplified outline of this Part 29
33.......... Simplified outline of this Part............................................................ 29
Division 2—Entering non-core foreign arrangements 30
Subdivision A—Requirement to notify the Minister about proposals to enter non-core foreign arrangements 30
34.......... Requirement to notify the Minister about proposals to enter non-core foreign arrangements 30
Subdivision B—Declarations about negotiations or proposals to enter non-core foreign arrangements 31
35.......... Declarations about negotiating non-core foreign arrangements......... 31
36.......... Declarations about proposals to enter non-core foreign arrangements 32
Subdivision C—Matters relating to declarations under this Part 33
37.......... Matters relating to declarations under this Part.................................. 33
Subdivision D—Requirement to notify the Minister about entering non-core foreign arrangements 34
38.......... Requirement to notify the Minister about entering non-core foreign arrangements 34
Part 4—The Minister’s powers to make declarations about foreign arrangements, and subsidiary arrangements, that are in operation 35
Division 1—Simplified outline of this Part 35
39.......... Simplified outline of this Part............................................................ 35
Division 2—The Minister’s power to make declarations about foreign arrangements that are in operation 38
Subdivision A—When the Minister may make declarations about foreign arrangements 38
40.......... When the Minister may make declarations under this Division......... 38
Subdivision B—Declarations about legally binding foreign arrangements 39
41.......... Foreign arrangements that are legally binding under Australian law. 39
42.......... Foreign arrangements that are legally binding under foreign law...... 42
Subdivision C—Declarations about non-legally binding foreign arrangements 44
43.......... Foreign arrangements that are not legally binding............................. 44
Subdivision D—Matters relating to declarations under this Division 47
44.......... Matters relating to declarations about foreign arrangements.............. 47
Division 3—The Minister’s power to make declarations about subsidiary arrangements that are in operation 49
Subdivision A—When the Minister may make declarations about subsidiary arrangements 49
45.......... When the Minister may make declarations under this Division......... 49
Subdivision B—Declarations about legally binding subsidiary arrangements 50
46.......... Subsidiary arrangements that are legally binding under Australian law 50
47.......... Subsidiary arrangements that are legally binding under foreign law. 52
Subdivision C—Declarations about non-legally binding subsidiary arrangements 54
48.......... Subsidiary arrangements that are not legally binding........................ 54
Subdivision D—Matters relating to declarations under this Division 57
49.......... Matters relating to declarations about subsidiary arrangements......... 57
Part 5—Other matters 59
Division 1—Simplified outline of this Part 59
50.......... Simplified outline of this Part............................................................ 59
Division 2—Matters that the Minister must take into account when making declarations under this Act 60
51.......... Matters that the Minister must take into account............................... 60
Division 3—Enforcement 62
52.......... Injunctions........................................................................................ 62
Division 4—The Public Register 64
53.......... The Minister must keep a public register........................................... 64
Division 5—The rules 66
54.......... The rules........................................................................................... 66
Division 6—The Australian National University 67
55.......... Application of this Act to the Australian National University........... 67
Division 7—Other matters 68
56.......... Delegation by the Minister................................................................ 68
57.......... Compensation for acquisition of property......................................... 68
58.......... Requirements in relation to procedural fairness................................. 69
59.......... Extraterritorial application and extension to external Territories........ 69
60.......... Crown to be bound........................................................................... 69
61.......... Concurrent operation with State and Territory laws.......................... 69
62.......... Approved forms................................................................................ 69
63.......... Approved ways of giving notices to the Minister............................. 69
64.......... Schedule 1......................................................................................... 69
Schedule 1—Transitional requirements relating to pre-existing foreign arrangements 70
Division 1—Simplified outline of this Schedule 70
1............ Simplified outline of this Schedule.................................................... 70
Division 2—Requirement to notify the Minister about pre-existing foreign arrangements 71
2............ Requirement to notify the Minister about pre-existing foreign arrangements that are core foreign arrangements 71
3............ Requirement to notify the Minister about pre-existing foreign arrangements that are non-core foreign arrangements.......................................................................................................... 72
Division 3—Consequences for failing to notify the Minister about pre-existing foreign arrangements that are core foreign arrangements 74
Subdivision A—Pre-existing foreign arrangements that are legally binding 74
4............ Arrangements that are legally binding under Australian law............. 74
5............ Arrangements that are legally binding under foreign law.................. 75
Subdivision B—Pre-existing foreign arrangements that are not legally binding 76
6............ Arrangements that are not legally binding......................................... 76
A Bill for an Act to protect and manage Australia’s foreign relations, and for related purposes
The Parliament of Australia enacts:
Schedule 1 — Transitional requirements relating to pre-existing foreign arrangements
Note: See section 64.
Division 1 — Simplified outline of this Schedule
1 Simplified outline of this Schedule
A State/Territory entity is required to notify the Minister of any foreign arrangements that are in operation on the commencement day, or that come into operation before the day Part 2 commences.
If the foreign arrangement is a core foreign arrangement, then the State/Territory entity must notify the Minister before the end of 3 months, or such longer period (if any) prescribed by the rules, after the commencement day. Failure to meet the minimum notification requirements for a core foreign arrangement will result in the arrangement becoming invalid and unenforceable, becoming required to be terminated, or ceasing to be in operation (depending on the nature of the arrangement). The State/Territory entity and the foreign entity that are parties to the arrangement will also be prohibited from giving effect to the arrangement and from holding out that they are able to give effect to the arrangement. These consequences will apply automatically and without the involvement of the Minister (see clauses 4 to 6).
If the foreign arrangement is a non-core arrangement, then the State/Territory entity must notify the Minister about the arrangement before the end of 6 months, or such longer period (if any) prescribed by the rules, after the commencement day.
Division 2 — Requirement to notify the Minister about pre-existing foreign arrangements
(1) This clause applies to a pre-existing foreign arrangement between a core State/Territory entity and a core foreign entity.
(2) A pre-existing foreign arrangement is a foreign arrangement that:
(a) is in operation on the commencement day; or
(b) comes into operation during the period that:
(i) starts on the day after the commencement day; and
(ii) ends on the day before Part 2 of this Act commences.
(3) The core State/Territory entity must give a notice to the Minister:
(a) in accordance with subclause (4); and
(b) in accordance with subclause (5);
before the end of the period that:
(c) starts on the commencement day; and
(d) ends 3 months, or such longer period (if any) prescribed by the rules, after the commencement day.
Note: If the core State/Territory entity fails to give a notice in accordance with subclause (4) before the end of that period, then clause 4, 5 or 6 automatically applies to the pre-existing foreign arrangement to make it invalid, unenforceable or not in operation, or to require the State/Territory entity to terminate it. Those clauses also prohibit the parties from giving effect to the arrangement.
(4) The notice must:
(a) be in writing; and
(b) specify the arrangement; and
(c) be accompanied by a copy of the arrangement.
(5) The notice must also:
(a) be in the approved form (if any); and
(b) if the core State/Territory entity knows that there is another arrangement that is a subsidiary arrangement of the arrangement:
(i) include details about the subsidiary arrangement; and
(ii) if the core State/Territory entity has a copy of the subsidiary arrangement—be accompanied by a copy of the subsidiary arrangement; and
(c) include any information prescribed by the rules; and
(d) be accompanied by any documents prescribed by the rules; and
(e) be given in the approved way (if any).
(6) Subclause (3) does not apply to an exempt arrangement.
(1) This clause applies to a pre-existing foreign arrangement between a State/Territory entity and a foreign entity if the arrangement is a non-core foreign arrangement.
(2) The State/Territory entity must give a notice to the Minister in accordance with subclause (3) before the end of the period that:
(a) starts on the commencement day; and
(b) ends 6 months, or such longer period (if any) prescribed by the rules, after the commencement day.
(3) 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 arrangement; and
(d) if the State/Territory entity knows that there is another arrangement that is a subsidiary arrangement of the arrangement:
(i) include details about the subsidiary arrangement; and
(ii) if the State/Territory entity has a copy of the subsidiary arrangement—be accompanied by a copy of the subsidiary arrangement; and
(e) include any information prescribed by the rules; and
(f) be accompanied by any documents prescribed by the rules; and
(g) be given in the approved way (if any).
(4) Subclause (2) does not apply to an exempt arrangement.
Subdivision A — Pre-existing foreign arrangements that are legally binding
4 Arrangements that are legally binding under Australian law
(1) If:
(a) a core State/Territory entity contravenes paragraph 2(3)(a) in relation to a pre-existing foreign arrangement between the State/Territory entity and a core foreign entity; and
(b) apart from this clause, the arrangement would be legally binding under an Australian law;
then this clause applies to the arrangement.
(2) The arrangement is invalid and unenforceable after the contravention.
(3) The core State/Territory entity must:
(a) within 14 days, or such longer period (if any) prescribed by the rules, notify the core foreign entity that:
(i) this clause applies to the arrangement; and
(ii) the arrangement is invalid and unenforceable; and
(b) as soon as practicable after it has complied with paragraph (a), notify the Minister, in writing, of its compliance with that paragraph.
(4) The core State/Territory entity must not, at any time after the contravention:
(a) give effect to the arrangement; or
(b) hold out, or conduct itself on the basis, that:
(i) it can give effect to the arrangement; or
(ii) the arrangement is valid or enforceable.
(5) The core foreign entity must not, from the time it is notified under subclause (3) that this clause applies to the arrangement:
(a) give effect to the arrangement in Australia; or
(b) hold out in Australia, or conduct itself in Australia on the basis, that:
(i) it can give effect to the arrangement; or
(ii) the arrangement is valid or enforceable.
(6) This clause does not apply to an exempt arrangement.
5 Arrangements that are legally binding under foreign law
(1) If:
(a) a core State/Territory entity contravenes paragraph 2(3)(a) in relation to a pre-existing foreign arrangement between the State/Territory entity and a core foreign entity; and
(b) the arrangement is legally binding under a foreign law;
then this clause applies to the arrangement.
(2) The core State/Territory entity must:
(a) within 14 days, or such longer period (if any) prescribed by the rules:
(i) notify the core foreign entity that this clause applies to the arrangement; and
(ii) take steps to terminate the arrangement in accordance with the foreign law; and
(b) as soon as practicable after it has complied with paragraph (a), notify the Minister, in writing, of its compliance with that paragraph.
(3) The core State/Territory entity must not, at any time after the contravention:
(a) give effect to the arrangement; or
(b) hold out, or conduct itself on the basis, that it can give effect to the arrangement.
(4) The core foreign entity must not, from the time it is notified under subclause (2) that this clause applies to the arrangement:
(a) give effect to the arrangement in Australia; or
(b) hold out in Australia, or conduct itself in Australia on the basis, that it can give effect to the arrangement.
(5) This clause does not apply to an exempt arrangement.
Subdivision B — Pre-existing foreign arrangements that are not legally binding
6 Arrangements that are not legally binding
(1) If:
(a) a core State/Territory entity contravenes paragraph 2(3)(a) in relation to an arrangement between the State/Territory entity and a core foreign entity; and
(b) the arrangement is not legally binding;
then this clause applies to the arrangement.
(2) The arrangement is not in operation after the contravention.
(3) The core State/Territory entity must:
(a) within 14 days, or such longer period (if any) prescribed by the rules, notify the core foreign entity that:
(i) this clause applies to the arrangement; and
(ii) the arrangement is not in operation; and
(b) as soon as practicable after it has complied with paragraph (a), notify the Minister, in writing, of its compliance with that paragraph.
(4) The core State/Territory entity must not, at any time after the contravention:
(a) give effect to the arrangement; or
(b) hold out, or conduct itself on the basis, that:
(i) it can give effect to the arrangement; or
(ii) the arrangement is in operation.
(5) The core foreign entity must not, from the time it is notified under subclause (3) that this clause applies to the arrangement:
(a) give effect to the arrangement in Australia; or
(b) hold out in Australia, or conduct itself in Australia on the basis, that:
(i) it can give effect to the arrangement; or
(ii) the arrangement is in operation.
(6) This clause does not apply to an exempt arrangement