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Australia’s Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020

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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 20 20

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.





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 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 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.



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

 

 

 



 

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.



 

S chedule 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.

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 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.