Thursday, 3 September 2020
Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020; Second Reading
That this bill be now read a second time.
Today, I am introducing Australia's Foreign Relations (State and Territory Arrangements) Bill 2020.
The Commonwealth government has many important roles to play. But one of the most important roles is our exclusive responsibility for setting Australia's foreign policy, negotiating treaties and representing our nation internationally.
That is not, however, to undervalue the important contribution that state, territory and local government entities make to advancing Australia's foreign policy.
The types of arrangements entered into at these levels of government vary—from strategic partnership arrangements, to memoranda of understanding to encourage investment or cultural exchange, to industry-specific cooperation arrangements on, for example, education, energy or agriculture.
Most of these arrangements are a useful and productive part of Australia's huge breadth of international engagement, and it is obviously important that we continue to encourage those links.
The Commonwealth government, however, does not currently have visibility of all the arrangements which state, territory and local governments, and related entities including public universities, have made, or intend to make, with foreign governments.
While the Commonwealth government sets a foreign policy agenda to both protect and promote the national interest, there is no consistent practice or requirement for state, territory and local government, as well as Australian public universities, to consult with the Commonwealth when entering into arrangements with foreign governments.
This process, or lack of process, creates two very significant challenges.
The first challenge is that, without Commonwealth engagement, there is a very real and significant risk that arrangements may be entered into that are inconsistent with, and in some cases may even undermine, Australia's broader foreign policy objectives.
The second challenge is that, without this visibility, the nation is unable to leverage these relationships to further our national objectives in our international engagements.
This gap in Commonwealth oversight must be remedied, and this bill will create a process where we are all—federal, state, territory and local governments—working effectively together to ensure arrangements are consistent with our national approach to foreign relations.
Creating a process
The bill will enable the Minister for Foreign Affairs to assess arrangements between state, territory or local governments or Australian public universities, and a foreign government or related entities, and determine whether they:
1. adversely affect Australia's foreign relations; or
2. are inconsistent with Australia's foreign policy.
The bill will capture all written arrangements with all foreign governments. This includes, for example, national level foreign governments, and their departments or agencies, and sub-national foreign governments such as provinces, states or municipalities.
The bill is country agnostic and arrangement agnostic—the intention is not to target one particular type of arrangement or any specific country.
We recognise, however, that there will be divergence in the likely impact that different types of arrangements have on Australia's foreign policy.
For this reason, the bill takes a nuanced approach, with different requirements for 'core' and 'non-core' arrangements.
'Core' arrangements are those between state and territory governments and foreign national governments, reflecting that they are most likely to affect Australia's foreign policy and foreign relations.
The bill provides that the state or territory entity will require approval from the Minister for Foreign Affairs before commencing negotiations or entering into a core arrangement.
The minister will be empowered not to approve the negotiation or the arrangement where it would either adversely affect Australia's foreign relations or be inconsistent with Australia's foreign policy.
If the state or territory proceeds without the requisite approval the arrangement will either be automatically invalidated or required to be terminated or varied.
A broader range of arrangements will fall within the scope of 'non-core' arrangements, including:
State and territory entities will only need to notify the Minister for Foreign Affairs if they propose to enter a non-core arrangement, with the minister able to also make declarations concerning negotiations of such arrangements.
Where a negotiation or arrangement would adversely affect Australia's foreign relations or is inconsistent with our foreign policy, the Minister for Foreign Affairs will be empowered to prevent the negotiation or arrangement from proceeding.
The bill also empowers the foreign minister to review any existing or prospective arrangement between state, territory and local government entities—including Australian public universities—and foreign governments.
This scheme is intentionally comprehensive to ensure that the Commonwealth can fulfil its constitutionally mandated role to conduct Australia's foreign affairs and represent Australia internationally.
We cannot do so without full knowledge of current and prospective arrangements across all levels of government.
Enforcement and rule-making
The bill provides for enforcement of decisions made under the bill through court injunctions.
The bill will also include a broad rule-making power to ensure the Minister for Foreign Affairs has the authority to make such rules as are necessary for the effective operation of the legislation. This includes exempting certain categories of state or territory entities and foreign entities from the scope of the bill, ensuring we can take a flexible approach and reduce any regulatory impost where possible.
Finally, the bill will require the Minister for Foreign Affairs to maintain a publicly accessible register, to allow for transparency under the scheme, and to provide the public with information relating to foreign arrangements notified to the minister and any decisions made by the minister in relation to those arrangements.
Support to stakeholders
The government acknowledges that the bill is broad in scope, and deliberately so. To effectively manage Australia's foreign policy, the Commonwealth needs a comprehensive understanding of the arrangements being entered into at all levels of government.
We acknowledge that this process reflects a shift in approach for states, territories, local government and Australian public universities, and we will support stakeholders to transition to the new requirements under the bill.
In 1901, Alfred Deakin, who would later become Australia's second Prime Minister, wrote: 'It would be judicious and advantageous to provide by Act that the Commonwealth Executive shall administer all existing State laws in regard to … treaties and conventions, and all other external affairs. These should be entirely under the control of the Commonwealth. The whole scope and spirit of the Constitution require that save for the purposes of their domestic policies within their own domains the States shall be blended and absorbed into one political entity. They may still appear in some respects as a body of allied States, but to the Empire of which they form a part and to the world without it they have become and must remain a nation and a Commonwealth one and indivisible.'
As the Prime Minister has said, Australians have a right to expect that the Commonwealth government they elect will set our nation's foreign policy. It is the Commonwealth government's responsibility to ensure that our foreign policy both protects and promotes our national interest.
This bill is designed to give the Australian public confidence that all levels of Australian government are coordinated, aligned and working effectively together for the national interest.
The bill is necessary and it is proportionate.
It is necessary, because it ensures that the Commonwealth government will have full visibility of all arrangements with foreign countries, and can support the states, territories and local government and Australian public universities in undertaking effective, appropriate and informed international engagement overseas.
And it is proportionate to the complex global challenges and risks facing Australia as a nation today.
In the face of an increasingly complex and challenging global environment, in all international engagement, across every level of government and across every country, it is vital that Australia speaks as one nation, with one voice. This bill will ensure that we do so. I commend the bill to the House.