Thursday, 3 December 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill 2020, Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020; In Committee
In relation to Senator Rice's amendment, I understand that, in the normal course of events, issues—such as this one in relation to procedural fairness—are raised, but this is a different form of legislation. The inclusion of procedural fairness would require the disclosure to a state or territory entity, where there was a likelihood of an adverse decision, of the specific foreign policy matters considered which made the adverse decision likely. It is our view that it is not appropriate for sensitive decisions on foreign policy or foreign relations to be shared.
It's a well-established principle that information relating to Australia's international or foreign relations is not required to be released, and there are numerous examples of this: the Freedom of Information Act 1982 exempts documents affecting national security, defence or international relations; the Archives Act 1983 provides that access may be refused if releasing the information would damage Australia's security, defence or international relations; and under the Criminal Code there are offences for Commonwealth officers who cause harm to Australia's interests by communicating information that causes harm to Australia's interests, including information that harms or prejudices Australia's international relations. Public interest immunity considerations also include damage to Australia's international relations, particularly in instances where the information relates to exchanges between government officials.
It does not, in our view, make sense and it is damaging to Australia to reverse a longstanding principle in the context of these bills. If the sensitive foreign policy information were excluded from such disclosures, the opportunity for procedural fairness would actually not be meaningful. The exclusion of procedural fairness does not prevent state or territory entities from consulting DFAT in relation to arrangements or relevant policy considerations prior to a formal notification.