Senate debates

Tuesday, 1 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

6:26 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

Minister, I want to continue on the discussions about the impact of this legislation on universities in particular, but also local governments and other agencies who are going to be impacted. We have heard that there was basically zero consultation before this legislation was being proposed with the universities. I also know that local governments only realised after the fact that they were also going to be impacted. There is a considerable concern from universities, and from local governments in particular, that if they enter into arrangements that can be retrospectively deemed to be not in our foreign policy interests and then be overturned, that—let's go to the universities—this is going to have a chilling effect on the ability of universities to enter into cooperative research arrangements with countries and other universities. I'm wanting to know what discussions you have had with the universities about the potential of this chilling effect? What can you say to assure universities, who basically told us during the committee hearings that it would mean that they would not feel that they are in a position to be able to enter into these arrangements because of the prospect that they couldn't guarantee that they would be able to be continued, because retrospectively, at some stage in the future, it could be decided that these arrangements were not in Australia's foreign policy interests?

6:28 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

Thank you, Senator Rice. DFAT has been engaging in a number of stakeholder consultations—I think over 60 in total—following the introduction of the bill, which includes with local government through August and September, a number of representatives of local government, largely the peak bodies, and a number of city councils themselves. In terms of university consultations, they have been part of that. These issues that you have raised have been discussed as part of those consultations—again through peak organisations as well as others who are on my list here. Universities Australia itself, for example, has met with the Department of Foreign Affairs and Trade on 4, 9 and 30 September, 7 October and 13 November. The Group of Eight has also met with DFAT on two occasions. There have been a number of other consultations, which I can provide to you.

I want to repeat what I said earlier today in the chamber when we were discussing this matter, particularly in relation to the limited number of arrangements which will be captured by this legislation: it's only arrangements between Australian public universities and foreign governments or foreign entities that will be required to be notified. In terms of institutional autonomy, that includes foreign universities that are an agency or a department of a foreign government—for example, a military university that forms part of a country's department of defence or those where a foreign government has substantial control over the university's internal governance, education and academic staff. That is a limited group. We've defined institutional autonomy in that context so as to assist with this. The work that will be done by the Department of Foreign Affairs and Trade through the taskforce will be very much focused on familiarising state, territory and local governments and universities with the sorts of issues which are to be captured. You asked earlier today about an example, if I recall correctly. That would be a minor issue which would not be captured. It would be exempt under the changes that I spoke about this morning.

6:31 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

It is good to get that clarification. If there were a change in personnel at a workshop or conference, that would be an exempt minor issue. You talked about the consultations that have been had with the universities, but you didn't go to my question, which was: what assurances are you able to give them so they have confidence in entering into research arrangements and contracts with the entities that are captured? I want to ask that question again. I also want to follow up on your response that there is a limited number of these universities or other organisations that don't have institutional autonomy. Does the department have an estimate of how many of these there are that Australian universities already have arrangements with? How many would be currently captured, and how many of these organisations globally are covered? If you say it's limited, you must have an approximation of what that limited number is.

6:32 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

Part of the implementation that will be undertaken if the bill is passed is this stocktake process that we've referred to that will enable us to review those arrangements and determine some of those issues that you are asking about. That is something which has been discussed at length between the Department of Foreign Affairs and Trade and the universities. It was raised in my meetings with Minister Tehan, Universities Australia and with the Go8 as well.

As I said before, the bill is absolutely not intended or expected to impede the beneficial business of universities with foreign counterparts. We absolutely understand the value of that contribution in academic pursuit, in research and particularly in the Australian context. We absolutely expect that much of the routine business of universities will proceed as normal. The concerns that you raise are most certainly issues that have been discussed between DFAT and universities in their consultations.

Things like scholarships, research grants and university exchange programs are not expected to be affected by the scheme, unless and until they're assessed on a case-by-case basis as being inconsistent with Australia's foreign policy or as adversely affecting Australia's foreign relations. Our expectation is—and in the consultations we have had we provided this information—the vast majority of these arrangements will be unaffected. It is also open to the minister to make further rules excluding certain types of arrangements from the requirements of the scheme. As you and I spoke about earlier in this exchange in the chamber, those exempted arrangements that deal solely with minor administrative or logistical matters are an example of that.

6:35 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

Minister, I hear what you're saying. You're essentially saying: trust us that it's not going to impact on too many and most of the arrangements will be considered beneficial. But there is a cloud hanging over those arrangements. In having 'unless and until', it is entirely in your hands currently, or in the hands of future foreign ministers, to determine that something suddenly is no longer in our foreign policy interests. And that is on a basis that doesn't have to be laid out, that there are no guidelines for and that there is no analysis of. So a university or a state government entering into an arrangement with another government agency cannot have certainty that the arrangement they're entering into, which may be for 10 years, won't at some stage in the future be determined, on the basis of whatever is in the head of the foreign minister at the time, not to be compatible with our foreign policy interests. What certainty can you give them that they can confidently sign an agreement that will last for the next 10 years and not, potentially, have it overturned at some stage in the future?

6:36 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

Senator Rice, thank you very much for your question. That is one of the purposes of establishing the task force in the Department of Foreign Affairs and Trade. It is so there is a distinct entity with which state, territory and local governments and universities are able to work through these processes. It is to provide guidance and advice in the context of the arrangements that are undertaken between state and territory and local governments, and universities. I'm not shying away from the fact that this is a new piece of legislation and will require compliance by relevant parties, and they include universities and state, territory and local governments, but it is in Australia's national interests to ensure that we are able to achieve this degree of consistency, and it is absolutely in my interests—in the government's interests and in the department of foreign affairs' interests—to work constructively with relevant entities in the process of doing that. That is overwhelmingly our intention and it is indeed what we have been doing through the process of the 60 stakeholder consultations since the bill was introduced.

6:37 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

It will move on. It is basically, 'Trust us that everything's going to be okay,' and my experience has been that that's not a good basis for public policy.

I want to move to the issue of how constitutionally sound this legislation is, given the opinion from Professor George Williams in his appearance before our committee. What confidence do you have that the bill is constitutionally sound and cannot be overturned in a High Court challenge, given that the external affairs power is shared between the states and the Commonwealth?

6:38 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

I appreciate that a number of views have been expressed on this matter. Indeed, Professor Williams was in a meeting that I was engaged in on these issues and has been in a number of meetings with the Department of Foreign Affairs and Trade. In terms of the measures within the bill which fall under the external affairs power, what the bill does is to expressly link the discretionary powers of the minister to the management of Australia's foreign relations and therefore to the foreign relations aspect of the external affairs power in the Constitution. Those discussions with Professor Williams included discussions around the concurrent power in the Constitution, which indicates that the Commonwealth doesn't have exclusive responsibility for external affairs, but only the Commonwealth can set foreign policy on behalf of Australia—although acknowledging, as this bill does, that both the Commonwealth and the states can legislate with respect to external affairs and states and territories can, for example, as we are contemplating in this conversation, enter into relationships with foreign countries.

6:40 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

Minister, have you sought advice from the Australian Government Solicitor on the constitutionality of the bill?

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

We have sought advice. We are confident, and I'm not going to go into the contents of that advice.

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

When did you receive that advice?

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

In the process of development of the legislation.

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

Can you be more specific than that?

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

I don't have that information with me right now, but I'll seek some advice from officials.

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

I have a supplementary question to that. Have the states expressed any concern to the government in respect of constitutionality? Has any state indicated to government that they see that there are constitutional problems?

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

Not that I've been advised of, and I've checked with officials that that is not the case.

6:41 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

I just want to ask some questions that relate to the judicial review processes and options under this bill. In some sense they go to amendments that have been moved by either the Greens or Labor, and I'm genuinely trying to get an understanding of whether or not it's worth supporting those particular amendments. Just to give perhaps anyone who is listening a common level of understanding, in relation to decisions made by the minister—

An honourable senator: You're an optimist!

Okay! In relation to decisions made by ministers, there are normally different ways in which they can be challenged. The simplest one for a litigant, particularly a litigant in person—an individual—is through the AAT, for a $930 fee, and they would then seek to have that decision reviewed in a quasi-judicial environment. Perhaps the next level up is through a court, either the FCC or the Federal Court, using the Administrative Decisions (Judicial Review) Act or some other provision in an act that permitted that. And then the final stage, which of course can't be legislated out, is a review by way of constitutional writ of prohibition or mandamus or such things. I'm just trying to work out the logic behind—actually, I understand the logic behind it—not wanting to have a review that goes to national security matters or national interest matters necessarily played out. At the moment, the only option is a constitutional review. I wonder what the difference is in terms of burden for an entity to initiate that constitutional review versus something under the Administrative Decisions (Judicial Review) Act. In some sense that will inform the chamber as to why you sought to cut out the AD(JR) Act.

6:43 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

I will endeavour, with the advice of officials, to provide you with a response on some of those issues. Let me start by saying that the grounds for judicial review in the AD(JR) Act of course largely mirror the common law. We see substantial overlap between the scope of judicial review under the Judiciary Act and the Constitution—that is common law, which is already available—and the grounds for judicial review under the AD(JR) Act. So, there's not a great deal of meaningful difference between the nature or prospects of success of applications for review under either avenue.

A key difference—and you adverted to this in your comments—is the requirement to provide reasons for a decision. The government is of the view that the provision of reasons would have the potential to adversely affect Australia's foreign relations by potentially disclosing Australia's foreign policy or position on the sensitive issue which is in question, in the context of the arrangement that is being examined. It has the potential to damage bilateral relationships and to disadvantage Australia's interests in international fora and negotiations. I do think that the provision of reasons in that context in these circumstances would defeat the object of the bill, which is to protect and to manage Australia's foreign relations.

I also want to emphasise that judicial review does remain available under the bill by the Federal Circuit Court under section 39B of the Judiciary Act 1903 and by the High Court under section 75(v) of the Constitution. And, like the ADJR, these avenues of review do allow a court to do several things, including setting aside a decision which has been made unlawfully, requiring the performance of a duty that a decision-maker has failed to perform, ceasing proceedings where a decision-maker has failed to exercise their powers properly, and also to grant an injunction that can prevent or require certain actions.

I think and the government thinks that the judicial review mechanism in the bill is appropriate. There are comparable schemes which also exclude the AD(JR) Act review on the basis that they involve complex political considerations. There are a couple of examples of that that I think are useful for the chamber to be aware of—for example, decisions under the FIRB regime, because those decisions are exclusively a matter of government policy and the ADJR judicial review could result, in that case, in public disclosure of classified and commercially confidential material. Certain decisions under the Australian Passports Act fall into that category, which is also an act I deal with, as well as extradition and prison transfer arrangements and a range of decisions which relate to intelligence and national security, and some in relation to taxation, corporations and charities.

These are issues that we have considered; they're issues that we have examined in the context of the development of the legislation, and they are the determinations that we've come to.

6:47 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

Thank you. That was quite helpful. I will try and digest that. I don't have the advantage of being a lawyer.

Senator Wong interjecting

Senator Wong, I will come back to it, because I note that your amendment deals with that. With those mechanisms you've talked about under the Judicial Act and the Constitution, the normal process in any judicial review is to often look at reasons. So, even in those circumstances where someone wants to make an application to the court, are they not fettered by the fact that they are not privy to the reasons that you've made the decision? You might want to seek leave in the High Court, for example, and you would have to at least state an argument, and you would be completely blind to those reasonings. I'm wondering how, in effect, you are able to make an appeal to those particular avenues without an understanding of the reasons in respect of the way you've made the decision.

6:48 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

I would say in the same way they occur in the context of those other comparable schemes that I outlined. The process works in that context, whether it is the examples I gave, such as the decisions under the FIRB regime, certain decisions under the Australian Passports Act, extradition and prison transfer, and a range of other matters which might relate to intelligence and national security, and even taxation, corporations and charities. They are dealt with in a similar way and are able to be assessed in the context of the arrangements which are provided for in this bill.

6:49 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

I'll give you a practical example of an issue that does raise security, and it's a very publicly known example. I raise this because you talked about the Australian Passports Act. We know that Witness K, for example, had an application for a passport. It might have been revoked on the advice of ASIS. That was fleshed out in estimates by former Senator Xenophon and others. That's a matter that did go to the AAT and did go to the special security division of the AAT and seems to have played out without any harm to national security, because the AAT's security division does deal with some of those issues on a regular basis. So in your consideration of this bill—and I take it you genuinely have a concern about national security—I wonder why Senator Wong's motion, which actively refers matters to that security division, would be problematic in the context of what you just said?

6:50 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

Senator Patrick, those decisions which are reviewed by the AAT are, in my understanding, genuinely truly administrative decisions. I think the AAT is a separate question from the discussion we were having previously. In relation to the AAT, the concept of stretching merits review of what are truly administrative decisions—because that's what they broadly do—to ministerial policy decisions on significant public and foreign policy issues is not something that I understand the AAT to be either equipped for or designed for. I think that would undermine the bill. It would, as I said, in the context of this discussion have the potential to damage our bilateral relations and to undermine our global interests. The Treasurer, for example, is not required to explain his decisions on national interest on the FIRB applications given the sensitivity, and the same goes for these sorts of decisions. What we are contemplating would be covered here in the bill. The way in which it is drafted is more about error of law or failure to take account of relevant factors and an error which infects or affects the decision-making—obviously acting outside of the scope of the bill, for example. It doesn't require reasons for the decision to be able to pursue that. If the minister makes a decision that's not authorised by the act you can take that to court without knowing the reasons for the decision. So I think the AAT's role is for truly administrative decisions and is not something which is necessarily appropriate to apply here.

6:53 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

Some of those examples you just provided, I recall, are actually reasons under the Administrative Decisions (Judicial Review) Act and in fact are questions of law, so a question as to whether or not the decision-maker gave relevance to information that was irrelevant or didn't give relevance to information that was irrelevant. Again, those sorts of things would normally require a decision.

Just to get an understanding of how this might work—and it also goes to Senator Wong's amendment—there was a series done a long time ago by, I think, the Law Reform Commission that looked at better decision-making in an administrative sense. It basically said that all decisions should be set out in writing. I am just differentiating that from being made public at this point. But, if you make a decision, you make a better decision if you write out the reasonings yourself so that you understand exactly what you have included in the information. If you do get to a point where a matter is brought before a court, that might become relevant. Is it the case that in making decisions under this bill—notwithstanding limited or no review rights in the AAT, for example—the intention is that you would record the decision reasoning for file purposes?

6:54 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

I'm not sure that I understand your question, Senator. But if your question is in relation to how the process occurs then, obviously, the minister takes advice and works with the Department of Foreign Affairs and Trade, with the task force which has been announced and which will be established within the department. We would definitely have carefully considered reasons in the process of this decision-making.

What I would say is that one of the reasons for the stocktake process is to enable government to make an assessment. I think I said publicly at the time of the announcement of the legislation that a public, open-source review had indicated that there were over 130 arrangements with more than 30 different countries just for the states and territories. As that material is returned to the department as part of the stocktake process I think that the nature of the sorts of arrangements which are made, and those which fall on either side of the provisions of the legislation, will become clear. So there will be carefully considered reasons.

6:56 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

I understand that as good process you will, in effect, annotate reasons, and that's a good thing. Senator Wong's amendment proposes that reasons might be given where you might extract out some of the detail. Do you see that as a possibility, or is it just hugely problematic even to provide that level of reasoning?

6:57 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

I understand that those proposed amendments do propose a redaction of a statement of reasons to remove information that is, or is likely to be, protected by public interest immunity, for example. I think that that, in and of itself, acknowledges in part the complexity in providing reasons under this bill. Any reasons provided, in the government's view, will almost always be subject to public interest immunity because the provision of reasons has the potential to damage Australia's international relations and to damage Australia's defence or national security. So the application of public interest immunity will play large here, in our view.

If you're going to extract detail and to redact in that way, I think that, arguably, it renders this unworkable. You'd just end up redacting everything.

6:58 pm

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

I was going to ask some questions—obviously, when we move these amendments, which are further down the list, I'll make more detailed remarks—but I have to submit or suggest that I think the answers by the minister to Senator Patrick's reasonable questions really did not hold water.

Firstly, I think that comes down to the view that one takes about the extent to which executive government actually ought to be accountable. There is a very significant power in this legislation; it's a power to veto agreements across many entities. I understand why the government want to do it. I've been critical of the process and I've been critical of the way in which they failed to consult, and of the political timetable around the announcement. But I understand the reasons for it. I also think they should get out of the habit of trying to bash the Victorian Premier through the media and perhaps sit down with him and try to resolve these issues.

But, leaving that aside, I understand the reasons for the federal government wanting this power. However, it seems to the opposition that, as a matter of principle, you don't give executive government a power, except in very important circumstances, that has no accountability, or so little accountability. I would have thought that that would have been something that those on that side would actually have thought about. The Labor Party has been very careful in drawing up amendments. We've asked the minister's office on a number of occasions to provide feedback if they don't like our amendments. We were hoping for some bipartisan engagement on this. But do you know what we're asking for in the amendments on sheet 1114 that Senator Patrick has been speaking to? Firstly, we're asking for notice of a decision so that if, surprise, surprise, the bureaucrats get it wrong—an amazing proposition—people would be able to say, 'Actually, it's the wrong agreement,' or, 'That's not the right point,' or, 'You've got this fact wrong.'

Secondly, we're asking for a statement of reasons, which I think is pretty reasonable. Thirdly, we ask that there be protections:

To avoid doubt, subsections (2) and (3) do not require information to be included … if the Minister believes on reasonable grounds that disclosure of that information is or is likely to be protected by public interest immunity.

I think it's absolutely absurd that the minister came in here and airily said in a generalised way, 'We don't want any requirement to give reasons or to give notice to make sure the decisions are right, because it will affect our foreign relations.' Even under the terms of our amendments—and we're open to a discussion about how to protect the sorts of issues the minister is describing—you have the capacity to exclude content on the basis of public interest immunity, which clearly includes some of the issues to which you're referring. The minister brings up that classic argument: 'It's too secret' or 'It's too risky'. There's nothing in this bill to stop the exercise of what is a quite substantive power.

Let's talk about the BRI in Victoria, which has been the subject of Senator Paterson's petition and lots of media coverage. Leaving aside the politics of that, if the federal government decide that they want to cancel an agreement that an elected state government has undertaken, I don't think it's that unreasonable to say that we probably should have some reasons for the decision. As Senator Patrick correctly pointed out and reminded me, we also referred this legislation to the security division of the tribunal. We do this for far more sensitive issues. I was on the PJCIS for many years. I'm quite pleased that I'm no longer on the PJCIS, given the workload. But there are many areas, as this minister knows, particularly from her previous portfolio, where highly classified decisions are made. These decisions are protected by the principles that we have in a liberal democracy that you don't allow executive power to go completely unchecked or without accountability and the issue of confidentiality or national security is resolved by the way in which legal rights have been drafted.

I think the reality is that you don't want to have to give reasons for decisions, and I don't quite understand that. I understand that Mr Newnham's role is to give you very conservative advice, but if one is actually trying to explain to various entities why certain things are problematic, the guidance that comes from that process is important. As I said at the outset of the debate, what we want is our sovereignty to be resilient. Resilience doesn't just come from a minister in Canberra having a power of veto. It comes from people understanding and institutions understanding what they should do and what they shouldn't do. This situation, where there's not a requirement to provide reasons and there's not really any effective capacity for review—we all understand the parameters of judicial review—I don't think provides the best outcome. I don't think it furthers the national interest that the bill is supposedly about. I've got plenty of material I can go to, but I did want to respond to the minister's point there. There are some substantive questions. Why have there been no review rights included? Why did you exclude review rights? Why did you exclude the requirement to provide reasons to people whose agreements you were cancelling? I don't think those questions have been answered adequately.

7:05 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

Minister, there is an extraordinarily broad definition of 'Australia's foreign policy' in this bill. Can you tell me what ensures, for the purposes of this framework, that that's going to be a meaningful definition? As to 'foreign policy', what is going to be in place to ensure that it doesn't change from week to week or even minute to minute? Will there be any public guidance on what Australia's foreign policy is, given that the whole basis of the bill is that these arrangements can be overturned on the basis that they are inconsistent with Australia's foreign policy?

7:06 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

I thank Senator Rice for her question. I think there are a number of aspects to the question of the definition per se of 'foreign policy' that the senator raises. The government is of the view that it is appropriate for the Minister for Foreign Affairs to hold a broad discretion to determine Australian foreign policy. Australian foreign policy and foreign relations are the prerogative of the Commonwealth government to determine, and they do evolve—they change in response to a range of domestic and international factors.

The Department of Foreign Affairs and Trade, as I've said before, has work that it is going to do in the context of the task force. And the department itself, of course, has offices in the states and territories that work very closely with the state and territory governments. They will continue that work with states and territories and their entities on implementing the scheme, including to help them understand Australia's foreign policy objectives.

I think there will be transparency provided. We didn't get to this with Senator Patrick, but transparency will be provided also through the establishment of a public register, which will make clear those foreign arrangements which are the subject of the minister's decision. That will assist the states and territories in building a picture of what kinds of arrangements might be deemed to be adverse to or inconsistent with Australia's foreign policy.

As I have also said, Senator, the changing current international environment is one which is obviously increasingly complex and subject to rapid change. That means that our foreign policy and our foreign relations don't remain static. They will also evolve and change, in response to a range of domestic and international factors. The Commonwealth government, the government of the day, is best placed to determine that, taking the advice of the Department of Foreign Affairs and Trade and the advice of other government departments and working with the Prime Minister and relevant ministers, as has always been the case. I don't think changes in foreign policy, though, are a threat to legal certainty—if that's a part of your question—and certainly that is a matter which has been raised in consultations with the department and, I think, addressed.

7:09 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

Can I get more information as to how that has been addressed given that legal certainty? Although you say you're going to be issuing information that will inform people as to what sorts of things will be taken into account, to me the lack of a definition of foreign policy means that legal certainty is absolutely going to continue to exist. What will be done to overcome that? Will there, for example, be public guidelines issued—even if they change, even if it's new guidelines every couple of months—to say what foreign policy in Australia at the moment actually is?

7:10 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

We were speaking earlier about information that is provided to affected entities, including state, territory and local governments and universities. There will be a very significant level of engagement and consultation with the states and territories. That is a feature of the bill, and it is a very significant step forward. Those discussions will be ongoing, but I don't think you can presume that our positions on foreign policy and foreign relations remain static. They have to change; and they do change, due to a range of domestic and international factors.

I think this will provide greater transparency than we have seen before in engagement on questions of foreign policy in a context of constant communication, considerable consultation and transparency. That's one of the reasons we have established a Foreign Arrangements Taskforce within the Department of Foreign Affairs and Trade. Their role is to work closely with state and territory entities to implement the scheme, including to assist them to understand Australia's foreign policy objectives. That consultation is demonstrated by the 60 or so stakeholder discussions we have held since the bill was introduced. Senator Rice, I think I was speaking to you earlier about a number of those stakeholder consultations across local government at the time.

I also think it's important to note the matters that the minister has to take into account. Looking to the bill itself, section 51(2) states:

(2)   When making the decision, the Minister must take into account the following matters in relation to the State or Territory to which the arrangement relates:

  (a)   the importance of the arrangement in assisting or enhancing the functioning of the State or Territory;

  (b)   the extent of the performance of the arrangement;

  (c)   whether the declaration would impair the continued existence of the State or Territory as an independent entity;

  (d)   whether the declaration would significantly curtail or interfere with the capacity of the State or Territory to function as a government;

  (e)   whether the declaration would have significant financial consequences for the State or Territory;

  (f)   whether the declaration would impede the acquisition of goods or services by the State or Territory, including, for example, for the purposes of infrastructure;

  (g)   whether the declaration would have an effect on the capacity of the State or Territory to complete an existing project that is to be delivered under the arrangement …

That guidance on matters that the minister must take into account is also very important for states and territories and associated entities which will be subject to the act.

7:13 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

Can I get some clarification. You are saying that the states and territories and local governments and universities—and all the people affected—are going to have information to assist them to understand Australia's foreign policy objectives but you are not willing to actually commit to issuing guidelines as to what those foreign policy objectives are. That's the fundamental thing—that people can have some certainty as to what the foreign policy objectives are so that they can determine whether their arrangements are going to be at risk.

7:14 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

Under the bill, there are a number of steps on implementation. They include the stocktake, for example. They include the work that will be done with the states and territories to examine those arrangements and to effectively engage on their implications for foreign policy and foreign relations. This process—which will be one the Department of Foreign Affairs and Trade is deeply, deeply involved in—will be part of providing that support to the states and territories, in relation to the implications of the arrangements in question. In terms of the practical and process aspects, we also have a number of fact sheets—which, as I understand it, have already been provided on the DFAT website—and the development of a set of Q and As, which are also helpful for stakeholders. There is no question and I understand that, when you seek to implement a new system such as this, it does raise concerns in affected entities about what its impact will be. But the role of the task force, the role of my department, is to work comprehensively with those entities to seek to provide them with support and guidance in bringing forward those arrangements for consideration. I think the production of guidelines itself creates a frozen-in-time judgement. I don't think that that's necessarily productive in this context. The approach that we take is one which is responsive to evolving global developments and which is not, as I said, frozen in time.

7:16 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

Can I just complete this line of questioning, then. So, given evolving global developments—not frozen in time; evolving foreign policy—do you acknowledge that this creates uncertainty in organisations' ability to plan for the long term, that is, to enter into arrangements that they know are actually going to continue over the next five or 10 years? This is because of the risk that, because of the retrospective nature and the far-reaching nature of this legislation, an arrangement that they put in place now, in five years time, could be overturned quite arbitrarily. This would be at the whim of a foreign minister—who may not be you; who may be somebody else. They can decide that on the basis of—they don't have to provide reasons; they don't have to provide guidelines. We just have to trust that a task force within the department is doing acceptable work. Can you see that this provides a great deal of uncertainty and concern for organisations and their ability to enter into these long-term arrangements?

7:17 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

Senator, with respect, I don't actually agree with you, no. I do think that the implementation of the legislation will, in fact, provide greater certainty, greater awareness, greater communication and greater transparency in the engagement between the Commonwealth and the states and territories, for example, and in universities as well. I don't think that shifts or changes in foreign policy that are responsive to current international developments are a threat to legal certainty. There are contractual frameworks which already account for changes to laws or changes to foreign policy. They would include changes to sanctions laws. They would include counterterrorism laws or anti-money-laundering obligations. That can occur very quickly to address national security concerns. I've seen that happen myself on multiple occasions in my time in the Senate. So I don't agree with you, Senator, that it's a threat to legal certainty. I do think that the process of implementation of the bill will establish, if you like, a rhythm and a system with which state and territory governments will be strongly engaged and deeply embedded with the department's Foreign Arrangements Taskforce. Part of the stocktake process will be doing that analysis which will provide that guidance—that direction, if you like—for arrangements that are developed in the future. I know there have been questions raised in relation to legal certainty, but I think those points I've made around the changes in law or foreign policy that flow from changes in the international environment are a good example of how arrangements are able to withstand that. This will make them more robust. This will give them greater certainty and a greater underpinning that they are consistent with Australia's foreign policy and Australia's foreign relations.

7:19 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

Following on from that, is it not the case that the publication of reasons can help people understand the policies and how they might decide on a course of action, just as court cases, when published, assist the general public in understanding—

Progress reported.