Wednesday, 2 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
Minister, before we were rudely interrupted by the adjournment debate last night, I was trying to ask you a question about decision reasoning and the publishing of decisions. You'll, of course, be aware that often decisions are published in respect of the AAT and the courts so that people in the community can understand what the rules are, how the law works and the operation of the bill in this instance. If there are never any reasons made available for people to look at to understand why something was rejected, how is it that the government will inform the public and entities that are subject to this bill of, basically, the mood of the government and how to avoid getting into a situation where an agreement is entered into that ultimately gets overturned or where they start to walk down a path for an agreement which then later has the minister intervening?
Senator Patrick, I think we were discussing this yesterday. Obviously, in relation to the processes which will exist under the bill, the engagement of the task force with entities, state and territory governments, local governments and universities will be very much part of that process. As I alluded to yesterday—and I haven't quite put my hand on the note that I was using yesterday—it's similar to the provisions under the FIRB, which are also sensitive decisions and are provisions which have a similar application as these. We will be engaging comprehensively with those stakeholders, with those entities, on these matters. I think once the stocktake process is underway, and we have the chance to go through the arrangements and work with entities about the nature of those arrangements, I do think this will fall into a sort of rhythm, if you like, in terms of awareness and understanding of what the implications are in relation to foreign policy and foreign relations.
One thing I would like to absolutely assure the chamber of is that this is in no way intended to be a confrontational engagement or a confrontational relationship between the Commonwealth government and state and territory and local governments and universities under this bill. This is meant to be and will be, I'm absolutely confident, a constructive set of relationships that will assist us all in coming to a collaborative approach on foreign policy and reflecting the Commonwealth's particular role in that regard.
I want to follow up in respect of the discussion we were having yesterday about the sensitivity of these reasons, and I do understand the minister's concerns. In relation to a decision that related to a state government—and I asked this question in ignorance of how Commonwealth-state relations work at a ministerial level—does the dialogue between states and the Commonwealth permit the disclosure of those perhaps sensitive reasons to the states so that they are assisted as they may seek to establish future agreements with overseas entities?
As part of the dialogue, that's an important part of the approach. The decisions themselves will obviously be contained in the public register as part of this process. That's formalised. That will provide a picture of arrangements that are inconsistent with foreign policy and foreign relations, and there will be a significant amount of consultation during the process between the entities and the Commonwealth government in the form of the Department of Foreign Affairs and Trade task force.
There are also the matters in section 51, which I alluded to yesterday, which are the matters that the minister is required to take into account. It gives some quite explicit guidance to the states and territories in relation to these matters and to the Commonwealth, frankly, in terms of what has to be taken into account by the minister.
On sensitivity, obviously decisions will be based on a range of inputs—the foreign minister's input—as is explicitly referred to in the bill, but also on classified issues, cabinet-in-confidence issues and a range of others. I do think, for the reasons that I set out yesterday and for the reasons that apply in the context of the FIRB similarly, that the way the bill has cast this, in terms of not providing reasons, is one that the government believes is appropriate.
I have a question in relation to delegations of decisions under the bill. Can you clarify whether the decisions are made exclusively by the minister or whether they are delegated, and, if they are to be delegated, to what level, perhaps matching those with the nature of the decisions that might be made?
I'm just trying to get an understanding of how low down the seniority chain some of these decisions may be delegated. What is the intention of the government? In some sense, that goes to the concerns Senator Wong expressed yesterday: you may have junior officials or even ELs making decisions. It would be informative to the chamber if you could perhaps be a little bit more specific.
Section 56 of the bill goes to the question of delegation. The delegations are limited to the secretary of the department or a person who holds or performs the duties of an SES in the department, but the minister is not able to delegate any of the minister's powers or functions under the parts of the bill which deal with negotiating and entering core foreign relations; or, in relation to part 4, a core foreign arrangement; or section 54, which is part of the legislation which deals with making the rules. A delegate, in exercising any powers or performing any functions under the delegations, must comply with any directions of the minister. That's section 56 of the legislation, which is very clear about the delegations.
I rise to put on the public record my concerns about not only the substance of this but this minister's failure to engage with us constructively. We are of the view that it's a pretty reasonable proposition when a minister is exercising this level of power—and it is a substantial power. Let's recall that this could enable whoever is there, perhaps this minister or possibly Peter Dutton—goodness me, imagine the power in his hands!—to just choose to exercise the power to stop Premier McGowan's agreements with some international entity. Obviously the BRI is in their sights—the Victorian one. There are some agreements Steven Marshall has with sister city arrangements. Whoever is in that seat, whether it's Marise Payne or Peter Dutton, could do so without giving the government notice and could make a decision without even writing down the reason for it. That's the kind of authoritarian power she's defending.
And I know Senator Payne doesn't like to pick up the phone, but there's an incredible amount of passivity associated with dealing with this legislation. Every day of consultation by this minister, which had been non-existent, was after the bill had been announced. I mean, really: that's not consultation. I think there's some suggestion that it's a privileged position to actually talk to people, but I just think it's good legislating. If you're going to introduce a power that gives you the discretion to veto agreements across subnational entities and universities, what's the problem with actually talking to people in order to work through how that might best work? That's called good government. But no, she didn't pick up the phone and didn't meet with them. We saw that on Qatar, too. Even with the engagement on foreign policy and the exchange with Senator Rice, I think it was, about why foreign policy isn't defined—and I actually understand the argument there—the minister's department has admitted that engagement with the affected entities on government foreign policy is ad hoc.
I indicated broad support for this legislation on the day it was announced, subject to constitutional remit and subject to looking at the detail. We hear from the minister's office and we want to be bipartisan. We send them our amendments—radio silence; not even the courtesy of a call. On this legislation, at this time, I would have thought they'd want some bipartisanship. During this time that we're going through—we saw what happened yesterday and the day before; we understand what Australia is dealing with—why not try to land an agreement? But no: just silence, and she just comes down here and airily dismisses it. Frankly, I think it's pretty poor form, and I'm putting that on the public record. It's deeply disappointing.
Nothing the minister has said on these issues around the accountability of the executive for this decision makes sense. Her arguments to Senator Patrick yesterday and today really don't hold up. I again put on record our willingness to consider an alternative proposition to deal with some of the issues the minister has raised, even though I believe that those issues are dealt with in the amendments we've proposed. But, again: radio silence. I can't work out whether it's just passivity or, frankly, arrogance—because I do think it's a pretty arrogant position to say the federal government is not accountable for the decisions it makes. So, I hope the Western Australians will have a think—whichever minister is there, whether it be Peter Dutton or someone like that—about which of Mark McGowan's propositions might be vetoed without reasonable notice.
I was hopeful we could actually have a sensible bipartisan discussion on this bill, but it appears this minister is unwilling or uninterested in doing so, and I express my disappointment, particularly at this time. I was going to move to other topics, but perhaps the Greens or Senator Patrick have further issues before I do so.
I want to conclude some of this discussion about the concerns we have about the lack of a collaborative approach and the lack of accountability. Minister, you've talked about how this isn't meant to be adversarial, that it's collaborative—that it's about people working together. But that hasn't been the experience so far in terms of consultation and working with a whole range of stakeholders before this legislation was introduced. I want to put on the record that Australia's interests are, obviously, incredibly important and the issue of foreign interference is incredibly important. I think everybody around this chamber recognises the measures to ensure that there isn't foreign interference—that is, that we are not entering into relationships that are not in our interests or not in the interests of human rights or not in the interests of good order in the world. It's important that we do have legislation that enables us to deal with those.
I also agree with the premise of the legislation. I think that it's important that there is a collaborative and cooperative approach between the states and the Commonwealth in terms of our international relations. A situation like the Victorian government deciding that it was going to go and enter into the Belt and Road Initiative with China without engaging the Commonwealth is not a situation that is in the good interests of Australia. That's playing off different parts of the Commonwealth and different states against each other. That collaborative approach is clearly essential, but we can see that that collaborative approach, and that reporting back and accountability, which goes hand in hand with that collaborative approach—is not baked into this bill. Minister, you talk about the fact that they can happen but that doesn't mean that they will happen. Unless you actually have them there in the legislation to ensure they will happen, it is very possible that—maybe not under you as minister, Minister Payne, but under future ministers—these things won't happen. The powers that are vested in the foreign minister to take a complete over-the-top, non-collaborative approach are there in the bill. They are there. They are enabled.
Going to the collaborative approach, we know there was no consultation with the states and territories before this legislation was introduced. What discussions have been had with all of the states and territories since the introduction of the bill? We know that not all of the states and territories took the opportunity to put in submissions to the inquiry and those that did were largely not supportive of the bill. Minister, could you please go through the negotiations and the discussions that you have had with all of the states and territories since the legislation was introduced?
Senator Rice, thank you for those observations. Let me say that in this place there are a range of ways in which legislation is brought to the parliament in either chamber—a range of ways. Government selects, according to the nature of the legislation and the approach government wants to take, how they do that. In some cases there will be large public exposure draft processes and in some cases there will not, but that is a matter which is for government. The approach that the government has taken in this context is obviously the one that is before us.
Following the introduction of the bill, as I indicated in the chamber yesterday, there were, I think, 60 consultations through the Department of Foreign Affairs and Trade. Prior to the committee hearings, I understand that the office of the Leader of the Opposition in the Senate was briefed on the bill as part of that process. I would have to say to the chamber that I think this government is actually very constructive with briefing engagement with the opposition in a way, in fact, that I did not experience in my time as a shadow minister in this place—not even close. I do think we try to be constructive and, indeed, very forthcoming with briefings as they are requested by senators, including yourself. If I may say, Senator Rice, in the brief time since you've held this portfolio briefings have been offered by government to the opposition in relation to key matters in my portfolio.
You asked for an indication of stakeholder engagement in the discussion of the legislation, Senator. In conferring with officials, I can advise you that consultations and discussions have taken place, largely by video conference, in the context of COVID-19, as follows in no particular order: with the South Australian Department of the Premier and Cabinet on 27 August, with the Tasmanian Department of Premier and Cabinet and Department of State Growth on 27 August, and with the New South Wales Department of Premier and Cabinet and Treasury on 28 August. There have been consultations and discussions on 31 August with the Queensland Department of the Premier and Cabinet and with Trade and Investment Queensland; on 2 September with WA's Department of Jobs, Tourism, Science and Innovation; on 2 September with Global Victoria; on 10 September with the Northern Territory Department of Industry, Tourism and Trade and Department of the Chief Minister and Cabinet; on 14 September with the Queensland Department of the Premier and Cabinet; and on 17 September with the Western Australian Department of the Premier and Cabinet and with WA Jobs, Tourism, Science and Innovation for a second time.
On 17 September we met with the Victorian Department of Premier and Cabinet; on 23 September we met again with both the New South Wales Department of Premier and Cabinet and the New South Wales Treasury; and on 6 October we met for a second time with the South Australian Department of the Premier and Cabinet. On 12 October we met with the Senior Officials Trade and Investment Group, which I understand to be a group of officials from the ACT, Queensland, New South Wales, Northern Territory, South Australian and Victorian governments who are senior office holders in their portfolio area of trade and investment. On 5 November we met again with the New South Wales Department of Premier and Cabinet.
In relation to local government, we met on 28 August with the Local Government Association of Queensland; on 31 August with Local Government NSW; on 3 September with the Local Government Association of the Northern Territory; on 4 September with the Australian Local Government Association; on 9 September with the Local Government Association of Tasmania; and on 11 September with the Darwin City Council. On 15 September we met again with Local Government NSW; on 13 September we met with the Alice Springs Town Council; on 14 September we met with the City of Perth; and on 18 September we met again with the Local Government Association of Queensland.
In relation to universities, we met on 1 September with the Australian National University; on 4 September with Universities Australia and the Group of Eight; on 7 September with the Australian Technology Network of Universities, the ATN; on 16 September with the Universities Australia board, which included representatives of the UA executive, the University of Queensland, La Trobe University, Edith Cowan University, the University of New South Wales, the University of South Australia, the Australian National University, the Queensland University of Technology and the University of Southern Queensland. Also on 16 September we met again with the Group of Eight. That included the Group of Eight executive and representatives of the University of Adelaide, the University of Melbourne, Monash University, the Australian National University, the University of Queensland, the University of Western Australia, the University of New South Wales and the University of Sydney. On 17 September we met with the Innovative Research Universities group. That included the executive of the Innovative Research Universities group plus Griffith University, James Cook University, Western Sydney University, Charles Darwin University, La Trobe University, Murdoch University and Flinders University. On 25 September we met again with the executive of the Australian Technology Network of Universities and, secondly—also on 25 September—we met again with the ATN executive and the University of Technology Sydney, the RMIT University, the University of South Australia and Curtin University.
On 28 September we met with the University Foreign Interference Taskforce steering group, the UFIT steering group. That meeting included the UFIT, RMIT University, the University of Newcastle, the University of Queensland, La Trobe University and the Australian National University. On 30 September we met again with Universities Australia. That meeting included the executive of UA and also the University of Queensland. On 1 October we met with the Innovative Research Universities group again. The group on that occasion—I'm just trying to see if there is a difference between the universities that were included on that occasion and the 17 September group, but I don't think that there is—was the same group that met on 17 September.
There were meetings on 7 October, again, with Universities Australia, on 9 October, again, with the Australian Technology Network of Universities executive and on 15 October with the New South Wales Vice-Chancellor's Committee. That last meeting included the executive of the New South Wales VCC, the Australian Catholic University, the Australian National University, Charles Sturt University, Macquarie University, Southern Cross University, the University of New South Wales, the University of Wollongong, the University of Canberra, the University of New England, the University of Newcastle, the University of Sydney, the University of Technology, Sydney and the Western Sydney University.
On 23 November, Minister Tehan and I met with Universities Australia and with the Group of Eight and, as I mentioned yesterday, Professor George Williams also attended that meeting. On 16 September, the DFAT peak business body group was also engaged in consultation on this matter. That included AusIMM, the Australia China Business Council, the Ai Group, the Australian Petroleum Production and Exploration Association, the Australian Services Roundtable, the Business Council of Australia, Citi Australia, the Australian Chamber of Commerce and Industry, the Minerals Council of Australia, the National Farmers Federation, the Export Council of Australia, the Australian Fresh Produce Alliance, the Australian Food and Grocery Council, and Austmine.
Those consultations obviously have been broad and far ranging in terms of the issues on which DFAT has engaged. They have included: the draft rules, which, as you know, have been loaded onto DFAT's website; the information that is to be included in notices; the nature and form of the public register and what that will include; and exemption arrangements as part of those discussions.
That's, as you say, Minister, a very broad list of the consultation which has occurred. I actually only asked for the consultation with state and territory governments. I got a lot of information beyond that, which is fine. I'm happy to receive that information. In terms of that consultation, you've said some of the things that were covered. Have the key positions that are being put, questions that are being asked or overall perspective on the bill in that consultation been documented by DFAT or by the people who have been conducting the consultation, and is that available on the public record?
It is not a matter of public record, but it forms part of the work that DFAT is doing in bringing together or standing up the task force. It covered the areas that I mentioned in my remarks. I would be very happy to go through the list again if you would like to be refreshed.
In relation to any question and any issues that those entities and those governments have sought information on about the operation of the legislation, that's part of what has influenced the bringing together of the fact sheets, which are also loaded on DFAT's website, and the Q&A process which will be part of the public information process.
I will be very brief. I just want to make the observation that we have been debating this bill since Monday night. We are still in the committee stage, but we are yet to consider a single amendment. There have been a number of questions asked by senators on the same topic over and over again. It appears, to me, that it might be that the chamber is trying to delay the passage of this bill, which I think would be very unfortunate given the bipartisan support for this bill and particularly considering the events of this week. I hope the Senate can quickly move on to the substantive matters and the amendments that senators wish to move.
Senator Paterson, I completely reject what you were just saying. There are a lot of very important questions to be asked about this legislation. What I wanted to ask, finally, on those consultations, Minister, is this. You said documentation of those consultations isn't on the public record. I ask if you could please take on notice to provide the documentation of those consultations for us.
I have one further question in terms of those consultations. In terms of the rules and guidelines that have been laid out, I'm interested to know what discussions there have been with the states and territories or local governments about the arrangements with particular countries where the understanding will be that, yes, those arrangements will certainly need to be particularly scrutinised. Or is there a group of arrangements with particular countries that are ruled out, essentially because there is no worry, and so there isn't going to be considerable scrutiny of those countries. If so, has there been an articulation of which countries fall within those two buckets?
Obviously, we respect the confidence of the stakeholders who have been engaging with us but we have addressed every issue that they have raised. The public positions which are of interest to them can obviously be ascertained through their submissions to the committee process and from the public comments that they have made, but I do respect their confidence in the consultations.
In relation to countries, let me be very clear: this bill is not directed at any single country, or any single arrangement for that matter. As I said yesterday, and as I said publicly when the bill was announced by the Prime Minister some time ago now, an open-source review of state and territory arrangements with foreign countries provided a tally of over 130 different arrangements with more than 30 countries which literally spanned the globe, and the alphabet actually, in terms of their breadth. There will be many countries which have been discussed in consultations with officials. But until the stocktake process is underway and is in motion, as it were, as part of the implementation of the bill, should it pass, it's difficult to identify if there's a specific sort of arrangement, or a specific issue, or a specific country which will come to the fore in this. Most importantly, though, to bring it back to the principles behind the bill in relation to foreign policy and foreign relations: we come back to that position where the Commonwealth is the part-lead voice on these matters. Australia's approach is a consistent and joined-up one, and I do think that that is a very important purpose of the bill.
I've just got one final question. I want to pursue the issue of the documentation of the records of the consultations. There must be some documentation that you can share with the Senate that is de-identified and doesn't risk the privilege and the privacy of the stakeholder. There must be an overall summary of the documentation of the consultations that you are able to share with us relating to the issues that were raised in various consultations, and which summarises those issues and concerns.
Senator, I didn't reject your request for that information. You asked me to take it on notice and that's obviously a process which I will undertake with the Department of Foreign Affairs and Trade.
I refer to the list that the minister read out. Can she confirm that all of the consultations she listed occurred after the bill was finalised? Can she also confirm that she continues to refuse to take on board amendments that take into account the concerns of affected entities? Finally, can the minister advise how many conversations, or discussions or consultations she has had with premiers, chief ministers, vice chancellors or chancellors?
I did say in response to Senator Rice—I think you were elsewhere, Senator—that, yes, the consultations which I listed did occur after the introduction of the bill. I'm very happy to go through them all again, if you wish me to do so.
She's answering a different question, and that simply would be time wasting. I'm happy to go through them again. I asked her a very direct question. Firstly, can she confirm that she is refusing to take on amendments which go to the concerns raised by affected entities? Secondly, can she tell us who she has spoken to? Which premiers, chief ministers, vice-chancellors or chancellors has this minister consulted with in relation to this bill?
The consultation has been led by the Department of Foreign Affairs and Trade. In the break, I met with Minister Tehan, and with Group of 8 and with Universities Australia representatives. This included Professor Williams, as I have said. This has been a 60-stakeholder consultation process, which I think is an indication of the number and depth of the discussions that have been held on the bill and on its issues.
In relation to amendments, obviously we have made amendments to the bill. We've taken account of a number of suggestions, and we've amended the bill ourselves in the House of Representatives. We have placed rules on the public record, as we indicated that we would. Those rules respond to concerns raised by stakeholders, and there is the opportunity under the bill for there to be future rules as well.
I think that answer means she's had one meeting with stakeholders in relation to this far-reaching legislation—one. Can the minister confirm that there has been no conversation that she has engaged in with any of the heads of government or first ministers across Australia who are affected by this? Not Premier Berejiklian, not Premier Marshall, not Premier Gutwein, not Premier McGowan, not the Chief Ministers. She's not had any conversation with any level of government about this?
As the senator well knows, the Prime Minister has engaged with his First Minister counterparts, both through correspondence and in conversations. There have been 60 stakeholder consultations, as I have indicated—a very comprehensive engagement across the states and territories, across universities and across local government.
Yes, the minister's had one meeting. Excellent. I asked this question yesterday. You said you didn't have it with you, the date, but perhaps you have it today. When were Australian universities added to the bill?
I don't actually have that with me, and I apologise.
Senator Wong interjecting—
No, Senator; I don't think there is actually a date as such. The drafting process always envisaged the incorporation of universities in the bill. That was an ongoing process up until the announcement and tabling of the legislation in the House of Representatives. That drafting process is something that, as you well know, is a very consultative process between agencies, parliamentary council and ministers, and the bill in its final form is as it stands.
It's the process that dare not speak its name, isn't it? The universities didn't know about it until the bill got dropped. I know Senator Paterson said why should they be privileged? I just think it's not a bad thing, when they're involved in the foreign interference task force process, to actually let them know. You might get a better outcome. Anyway, let's just be really clear: the minister and her department have been asked this regularly, including at Senate estimates, and they refuse to answer, which can only lead to one conclusion—they were a last-minute inclusion in the bill.
You can't just sit there and say 'You're wrong' and not give an alternative.
Senator Payne interjecting—
Oh right; okay. Well, when was the first draft with the universities in it? It's a pretty simple question. Mr Newman is a very intelligent officer. He could have told me that, but he was—
Senator Payne interjecting—
I'm not patronising! I think he is. He answered questions—
Senator Payne interjecting—
I don't think someone like you should tell me about being patronising, Senator Payne. My point is: they know and you won't tell us, and I don't understand why not. Actually, I do: you don't want to tell us because it was a late edition. Can the minister explain the regulatory gap between public and private universities? Why aren't private universities subject to the same requirements?
I can. I just want to grab the reference, if I may. Obviously, Australian public universities are covered because they are state and territory entities established by law with significant levels of international engagement. While the Australian National University is established by Commonwealth law, it has been included to ensure parity between public universities. Given that the bill is intended to address foreign engagement by state and territory governments and government entities, it's not intended to regulate private entities, such as private universities, which have no connection to government. Accordingly, the way the bill is presented reflects our focus on ensuring consistency in Australian foreign policy and foreign relations across all levels of Australian government.
Hang on! It's quite possible for private universities to engage in agreements which are not consistent with Australia's foreign policy. You shake your head, but I would have thought that would be pretty self-evident. Why does Bond University get to do whatever it likes while the ANU has to be subject to this regime? If we're consistent about Australia having a coherent approach to foreign policy, why would you exclude privates?
I think I've addressed that. The scheme is not intended to regulate private entities, such as private universities, that don't have a connection to government in the same way that public universities do. The focus of the bill is on ensuring consistency in Australia's foreign policy and Australia's relations across all levels of government.
With respect, I don't think you've actually explained that; you've just said: 'Privates are out. I'm making a policy point.' If we're serious that the federal government should have—and I agree with this proposition; I think it's unremarkable—the primary responsibility for Australia's foreign policy and external relations, surely, as a matter of policy, you would include private universities? On this, we've had a whole range of evidence put before the Senate committee, in the public arena and through the intelligence committee inquiry about the actions of universities. Is there a constitutional reason why private universities are not included, or is it just the privileging of Bond University and others?
I think that imputation is completely incorrect. It's not about privileging any private university entity. This is about public entities. It's about public universities being covered because they are state and territory entities established by law, because the ANU is a Commonwealth university established under Commonwealth law and therefore also a public university. Given that the bill is about addressing foreign engagement by state and territory governments and government entities and that private universities are not government entities, they are not within the scope of the bill.
Does the minister not envisage a circumstance where Bond University might enter into agreement with a foreign government that she has a concern with? This is a bill that goes to the local shire council. The bill includes your capacity to strike down agreements of much smaller entities than a private university. Is the minister really saying that there's no possibility that an entity such as Bond or another private university could enter into an agreement which was inconsistent with Australia's foreign policy?
What I am saying—as opposed to words that Senator Wong may wish me to say or put in my mouth—is that the bill relates specifically to Australian public universities because they are state and territory entities. They are established by law as state and territory entities. While, obviously, the ANU is established by the Commonwealth law, it falls within the scope of this bill because it is also a public university. The whole point of the legislation is about addressing foreign engagement by state and territory governments and government entities. Entities which are not government entities are not within the scope of the bill.
The bill covers local government. If we think about some local shire council in the Australian democracy, you could strike an agreement of theirs down but you think it's not relevant for a significant university to come within the remit of the bill. You can answer on process but there's a policy point: there's a regulatory gap which you've put in place and which you haven't justified other than in a sort of process-process answer.
Australian private universities are encouraged to be transparent about arrangements with foreign entities by publishing information about those arrangements on their websites. Australian private universities can also seek advice from the Department of Foreign Affairs and Trade on the foreign policy implications of potential arrangements before they enter those. Therefore, they have the capacity to consult on those issues as part of their normal business. We encourage them to do so, if they wish to.
Okay, well, that's discretionary. Other universities will be required to comply. My recollection is—and I'm sure the minister will correct me if I'm wrong—that all universities, including private universities, are part of the foreign interference task force process. Why was that decision made to exclude private universities from the remit of this bill? That's a policy question. Secondly, you haven't come back to me on this: can you just confirm that there is no constitutional reason that private universities should be excluded?
Again—for the third time—there are no constitutional reasons as to why Bond University is outside the remit of the bill. It's a policy decision you have made which gives a higher level of regulation to Australia's public universities than to private entities, like Bond University.
There are many private entities—private individuals and private businesses—which, as we know all too well, enter into arrangements with foreign governments. But this bill is directed to government entities and to state and territory local governments. That is the very specific and clear scope of the bill and, therefore, private universities are not covered.
There is more than one private university in Australia. As I said, they are encouraged to engage with the Department of Foreign Affairs and Trade on these issues. We have a good relationship with them. The frameworks that relate to foreign interference, to defence exports and to a range of other international issues are ones that private universities are also subject to as part of the normal business of government.
So private universities remain vulnerable to foreign interference. That's the reality. You're putting in place—
Senator Payne interjecting—
Well, I hear you talking to your adviser about this. My point is that, if it were all universities and you chose to bypass that process because you wanted this bill, then there is no constitutional reason as to why they're being excluded. Under this regime, then, foreign interference in private universities remains open, potentially, because you're excluding them from the legislation.
This bill is about foreign relations and foreign policy. This bill is not about foreign interference. Foreign interference is covered by the University Foreign Interference Taskforce, of which those universities are members, along with a range of other bodies, and those issues are addressed in that context. This bill, which I think is—to use a word you use—unremarkable, is related to government entities and state, territory and local governments. Private universities, self-evidently, are not government entities and are not state, territory or local governments.
Minister, I raised the same point that Senator Wong has raised about private universities. It was stated to me that it is to do with the states and territories, and I understand that. My suggestion, then, to the advisers would be: why shouldn't we write to the private universities and ask them to be part of it on a voluntary basis? I think that was going to be put to the department. Is it a consideration that, because it could be unconstitutional to include them in it, possibly it could be a matter of writing to the private universities to ask them to be a part of it voluntarily?
I also understand that this will come up for review in three years time so we can look at what it's like then, in three years time, and, if it has worked quite clearly and it's not going to be unconstitutional or cause problems with foreign relationships, we can then look at expanding it.
Thank you, Senator Hanson. I understand those conversations have been had. That is in part the purpose of doing the three-year review and why we made that amendment. As I said to Senator Wong—I'm not sure if you'd come into the chamber at that point—there are many avenues for engagement of private universities on these important and sensitive issues. We encourage them to engage. But, in terms of the issue you have raised, that is certainly something that can be considered in that way.
I'll move to another point that concerns me and, I would say, millions of Australians, which is the leasing of the Port of Darwin. Senator Wong has an amendment to the bill that would require a report from the government to be laid on the table. I'm a bit mystified as to why you would put up an amendment to the bill regarding a report to be laid on the table with regard to the bill, when this could have been done through a notice of motion. I am terribly concerned about the way the Port of Darwin was leased. My question for the government is: can the leasing of the Port of Darwin be reversed, under this bill or any other legislation by the government, so that the port ends up back in the hands of the Australian people, not foreign owned?
I'm happy to be corrected on this matter, but in relation to the Port of Darwin the first thing I would say is that we have strengthened the role of the Foreign Investment Review Board, as you are aware, to ensure that infrastructure acquisitions such as the Port of Darwin are now fully and appropriately assessed. That is a change since that transaction was made. That provision of the Foreign Investment Review Board goes to precisely the point that you make.
We also, in 2018, introduced the Security of Critical Infrastructure Act, which strengthens the ability of the government to monitor and protect against risks to critical infrastructure such as water, electricity, gas, and port assets specifically—in relation to this question. That means we now have a critical infrastructure asset register to ensure that government knows who owns and operates our most critical assets. It also provided a ministerial directions power of last resort, which provides the Minister for Home Affairs with the power to issue a direction to an owner or operator of a critical infrastructure asset to mitigate national security risks.
In June of this year we announced reforms to further strengthen our foreign investment framework, and those changes will include a new national security test to ensure the government can address national security concerns arising from new individual investment proposals which would otherwise be below the screening thresholds. Subject to the passage of legislation, those reforms commence on 1 January next year. In terms of the commercial agreement between the Northern Territory government and the commercial operator of the lease of the Port of Darwin, the Commonwealth is not in a position to reverse that agreement. But since 2016, through all of those steps, we have put in place protections and provisions which ensure that, should such a transaction come to the point of being made again, all of those steps that I have just gone through are now in place to address that and the concerns you have raised.
Under the free trade agreement with China, they can invest up to $1.1 billion in Australia before it goes before the Foreign Investment Review Board. Can you guarantee the Australian people that, even under that scheme, everything China wants to buy up in Australia will come under the national interest test so they can't just come in and buy it up without it going through FIRB, without it being fully investigated and without it being in the best interests of Australia?
If the proposed purchases or investments included any entity or any facility or any piece of infrastructure which is covered by the Foreign Investment Review Board's Security of Critical Infrastructure Act or the reforms to the foreign investment framework introduced in June then they would be reviewed through that process.
Senator Hanson, I want to follow up on one of the things you said. I would first make the point that the reason we have done it as an amendment rather than a motion is that the government can ignore a motion but it can't ignore a piece of law. That is the logic of it. You have raised that with me, and I think that is a consistent position. Why don't we do it as a notice of motion? The reality is that the minister can just ignore a notice of motion whereas you can't ignore the law—one hopes! Secondly, I don't recall the minister ever having said before what she is now saying, which is that the government is not in a position to reverse the lease on the Port of Darwin.
Senator Payne interjecting—
I'm sure that was the advice. No, I'm not pushing back on it; everyone has hedged it when we have asked it; everyone else has ducked that question. I would like to understand why. This legislation is in effect retrospective—that is, you can veto, under this legislation, deals which were previously made. I think that's pretty clear. Obviously, the Port of Darwin is such a deal. It may be that because the Port of Darwin arrangement is with an ostensibly private entity it is outside of the bill. If that's the case, I would like to understand that. These are the issues that we traversed in the Senate committee. I don't think they were clarified. It would be useful to clarify it here.
What I would offer on that is that, given that the legislation is focused on state and territory engagement with foreign governments, commercial arrangements entered into by corporations are therefore not the focus of the scheme. Arrangements of that nature may only be within the scheme's scope if they are subsidiary to a core or non-core arrangement between the state or territory government and a foreign government or a foreign government entity. That's irrespective of whether the corporation is wholly or partly state owned or privately owned. Arrangements by state or territory locally owned corporations such as water corporations or port authorities are not the focus of the legislation. My understanding is that those sorts of transactions, those sorts of commercial arrangements, are best situated within the context of FIRB arrangements rather than this bill.
This legislation would enable a minister to veto an existing arrangement. That's the first point. Second point: the Port of Darwin would not be within the remit of the legislation, because your advice is that it is with private entity. Third point: given the arrangements within China around the role of government and its engagement in the economy, does that change your view about whether or not the government could consider this lease to this private entity? Is that clear? It doesn't have a market economy. I know the Howard government said it did have a market economy. Obviously, the government has a much greater interest in, and capacity to influence, the behaviour of otherwise private companies than it does in Australia. Given that, does that change the government's view about its jurisdictional relation to the Port of Darwin?
I do understand the question. The advice that officials have provided is that that still falls within the parameters of the statement I made earlier about commercial arrangements. They would only be within the scheme's scope if they were subsidiary to a core or non-core arrangement under the legislation, and that's irrespective of whether the corporation is—to your point about control—wholly or partly state owned or privately owned. So arrangements by state, territory or locally owned corporations are not the focus of the legislation.
That's all very complex—the core and subsidiary. I understand that architecture, but the very simple proposition is: are you telling the chamber that you are very certain that the Port of Darwin lease arrangements are not subject to this legislation because the arrangement is with an ostensibly private company?
Yes, that is my understanding. I would reiterate, as I did with Senator Hanson, the steps that we have taken in other contexts around the FIRB, around the security of critical infrastructure to address some of these issues that have arisen since that lease was signed in 2015.
We're talking about the Port of Darwin which has been leased for 99 years. Aren't the Port of Brisbane, Port of Melbourne and Port of Newcastle—which is the largest coal-exporting port in the world—in foreign hands? Aren't they foreign owned as well? How far do we go? Is it just the focus on the Port of Darwin? What else do we look at in Australia that's under foreign ownership?
I appreciate the issues that you raise and the other sites that you refer to, but they are not relevant to this bill. Given the importance of the infrastructure, if they're relevant to the Security of Critical Infrastructure Act then that gives us a much strengthened ability to monitor and protect against risks to critical infrastructure in that way. The conversations that I've had with Senator Wong also go to that point.
What is important in the security and critical infrastructure legislation is this ministerial last resort directions power, which does give the Minister for Home Affairs the power to issue a direction to an owner or an operator of a critical infrastructure asset to mitigate national security risks. That, and the enhanced protections that we have provided in the Foreign Investment Review Board process, our foreign investment framework, are part of a suite of steps which we have taken since 2015—and this particular incident—to protect exactly the concerns that you have identified.
Just to clarify: I think your answer to Senator Hanson means—and could you please correct me if I'm wrong—that, whether it's the Port of Darwin or the other ports the senator listed, those existing arrangements cannot be vetoed or altered by passage of this legislation, because they're with private entities. That's my first question, about the arrangements. Whilst I understand your argument that, with bipartisan support, you've done what we suggested, which was a different approach on FIRB and critical infrastructure et cetera, there is no capacity for government to regulate leases that have already been signed under those arrangements going forward. Does the minister have any concerns about any foreign policy implications or national security implications of those existing arrangements?
The nature of the commercial arrangements for the specific ports Senator Hanson identified are not immediately known to me. I don't have every one of those at my fingertips in terms of who is the owner or lessee in that context, so I can't comment directly on those. Therefore I am speaking in the broad, and I should reinforce that. The nature of the commercial arrangements is also not known to me. Obviously it is case-by-case. But I was trying to respond to the specific questions in relation to the Port of Darwin. My understanding is that the critical infrastructure legislation plus the FIRB, which has clear rules on state owned enterprise investments, are the relevant framework under which these are dealt with. We do not want to duplicate those powers, and these other frameworks cover private company and commercial concerns.
That takes me to this question. In Queensland the state government still owns the poles and wires. Would the federal government, under this legislation, then look closely at whether the state government intended to sell those poles and wires to foreign owners? Could that be overruled under this legislation?
Again, I would say that that is not pertinent to this legislation, because this legislation is about foreign relations and foreign policy. A commercial transaction of that nature would be covered under the Security of Critical Infrastructure Act and Foreign Investment Review Board processes but not by this bill.
Your advice today is that nothing can be done about the Port of Darwin and probably, subject to advice, nothing can be done about the other port arrangements that Senator Hanson has raised. But, in the future, if a state government engaged in an arrangement with a foreign entity—sorry: I've forgotten what the term is under the bill—which contemplated leasing arrangements, for example, then the leases would come within the remit of the minister for the purposes of the bill and could be vetoed at that point?
'Could' would be my observation. I would also say that, given the changes that have been made to the Foreign Investment Review Board process and with the Security of Critical Infrastructure Act, there would be a meshing of relevant legislation and, if the engagement was, as I said, subsidiary to a core or non-core arrangement, this legislation as well.
No, not you—I was looking at the adviser—
The TEMPORARY CHAIR: Senator Wong, I'm giving the call to the minister to answer, not her adviser.
Sure, sure. Perhaps I might make it clearer, so he can give advice or she can give it. As to the description you just outlined, which is that you have a state government arrangement, can you confirm that the Port of Darwin is not subsidiary to a foreign arrangement such that it is caught by the bill?
I would have to say that that is the whole purpose of the bill and the stocktake, because I do not have the details of, the nature of, an arrangement made by the Northern Territory government on this lease. So that has to be part of the process of examining such arrangements—to determine their nature, to determine whether they are consistent with the legislation. So I'm not going to pre-empt that.
That is fair enough. In other words, I think you're saying: that's possible, hypothetically, and you need to do the stocktake. So, given the concern about the Port of Darwin, what's the problem with a report to the Senate which outlines your findings based on that stocktake?
The proposal in the bill is to provide a register of decisions, to consult widely in that process—collaboratively and constructively, with strong relationships with the states and territories, local government and universities—and to work within the structure that's placed in the bill.
The TEMPORARY CHAIR: Senator Patrick, I think your time has come.
Thank you. I might just add that I actually think the lease arrangements for the Port of Darwin were tabled or provided to the Senate committee looking into the FIRB that specifically looked at that. I just have a feeling about that. People may want to look at that as I move my amendment. I seek leave to move amendments (1) to (8) on sheet 1061 revised together.
(1) Clause 3, page 3 (line 2), after "These are arrangements between particular kinds of State and Territory entities", insert ", including the Australian Olympic Committee,".
(2) Clause 3, page 3 (after line 17), after the paragraph beginning "A State/Territory entity is required to notify the Minister", insert:
Consistent with the object of protecting and managing Australia's foreign relations, this Act also deals with arrangements between the Australian Olympic Committee and foreign entities, including foreign Olympic bodies which include the International Olympic Committee, national Olympic Committees of countries other than Australia, and Organising Committees of Olympic Games in countries other than Australia. Each of these foreign Olympic bodies is a "foreign entity".
(3) Clause 4, page 4 (line 24) to page 7 (line 16), insert:
Australian Olympic Committee means the Australian Olympic Committee Incorporated, being an association incorporated on 24 June 1991 under the Corporations Act 2001.
foreign Olympic body: see section 8A.
International Olympic Committee means the organisation created by the Congress of Paris on 23 June 1894, being the organisation entrusted with the control and development of the modern Olympic Games.
(4) Clause 7, page 9 (after line 7), after paragraph 7(e), insert:
(ea) the Australian Olympic Committee;
(5) Clause 8, page 10 (after line 4), after paragraph 8(1) (i), insert:
(ia) a foreign Olympic body;
(6) Page 11 (after line 3), after clause 8, insert:
8A Meaning of foreign Olympic body
A foreign entity is a foreign Olympic body if the entity is one of the following:
(a) the International Olympic Committee;
(b) the Executive Board of the International Olympic Committee;
(c) a commission established by the President of the International Olympic Committee;
(d) the national Olympic committee of a country other than Australia;
(e) the organising committee for the Olympic Games in a country other than Australia.
(7) Clause 10, page 11 (line 27), omit "or (c)", substitute ", (c) or (ea)".
(8) Clause 10, page 12 (line 1), omit "or (c)", substitute ", (c) or (ia)".
Just so everyone understands, what these amendments seek to do is to bring within the scope of the bill both the Australian Olympic Committee and foreign Olympic committees—so that could be some foreign Olympic body or, indeed, the International Olympic Committee. I'm going to start off by telling you my motivation for this. All laws are generally designed to deal with controversy, so I just want to give you an example of the controversy that caused me to propose this amendment. It relates to the Beijing 2022 Olympic Winter Games. These winter games will occur in Beijing, and there is no question that the Olympics are the international event. They are used by governments of all types to promote national pride. They're used as a propaganda tool. We here in Australia used the Sydney Olympics as a promotional tool for Australia. In the case of the Beijing Olympics, unfortunately, those Olympics will be run in the shadow of a range of human rights abuses. I will name just a few of those. For example, of course, we have the Uighurs in western China who are being subjected to genocide, to use the words of Mr Joe Biden. We've got the crackdown on freedoms in Hong Kong—and, indeed, right across China. That's another issue that must be of concern to all Australians. We've had the arbitrary detention of foreigners in China, and, indeed, we know that just recently some Australian journalists were harassed, I might say, prior to leaving China.
We cannot stand by and simply observe what is happening and then basically allow the Chinese government to promote their nation to try to improve their national standing by using something like the Olympics. I know some people would say that sports and politics should never be mixed, but the reality is that they are inextricably linked and there is no question that they are. That is seen in the way in which countries promote their nations or their cities in the competitions that lead up to the selection processes and the fact that all of the athletes who attend the Beijing Olympics will have come from places like the Australian Institute of Sport or other organisations that are funded by taxpayers. Mr John Coates wrote to the committee that examined these bills and basically said that we've got to keep politics out of the Olympics. In some sense that's a farcical statement, because, whilst Mr John Coates is the chair of the Australian Olympic Committee, you'll see that the Chinese Olympic committee is stacked with CCP members—indeed, the head of their committee is, in fact, the Chinese minister for sport. To try to suggest that the Olympic arrangements are pure and divorced from any politics is just ridiculous. It is a huge business.
Some people may have a different opinion. They might say, 'I think you're wrong, Rex, and we should attend the Beijing 2022 Olympics.' I want to make it very clear that my amendments do not invoke a boycott of the Beijing 2022 Olympics. My amendments bring together those bodies within the scope of the bill so that the government, should it wish to, can initiate a boycott. It simply puts a card into the minister's back pocket for when we get to the point where others recognise what is happening in China. The British Foreign Secretary has raised concerns about participation in the Olympics, and I think that movement will grow stronger and stronger as we approach the Beijing 2022 Olympics. It would be good if the minister were able to exercise a power at government level to have Australia boycott the games.
We do not want to leave the decision on boycotting the Beijing 2022 Olympics to the athletes. That puts incredible pressure on those athletes, and that's not an acceptable outcome. We saw that taking place with the Moscow Olympics back in 1936, and we want to make sure that if a decision is made that it's not appropriate to attend the Beijing Olympics—and that's my strong view, because it's not appropriate to feed the Chinese propaganda machine—then that decision can be made by government. That could potentially invoke a range of different measures to compensate athletes, who devote their lives to preparing to attend these sorts of things. I want to be very clear that these amendments do not invoke a boycott; they simply give government an option to call for a boycott.
As I didn't make a contribution to the second reading debate, I might just say that I do support the bills. I support the intent of the bills, but I do have some concerns in relation to granting an executive power without an appropriately balanced judicial review of decisions. In that sense, I may well support some of the amendments and I'll deal with those as they pop up. But, in principle, these bills should, at the final instance, be supported.
If I may, in response to Senator Patrick and to his amendment: I want to be very clear that I very much appreciate the issues that motivate you to bring such an amendment to the chamber. These issues have been discussed recently within the parliament and more broadly. I understand why they are of significant and sincere concern. But, in terms of the bill, they do go beyond the scope and the intention of the bill. At the risk of sounding like a broken record, this is about regulating state and territory arrangements with foreign governments and related entities and there is not a direct line of government relationship between the Australian Olympic Committee and the International Olympic Committee and state and territory governments and foreign entities. As non-government organisations, they're not regulated by this bill.
I would also say that the Olympic Charter, which so far has broadly stood the test of time, provides that organisations within the Olympic movement shall apply political neutrality. I do think it's important to respect that political neutrality. In Australia the mechanism that goes to participation in the Olympic Games rests with the Australian Olympic Committee. They're responsible for funding and selecting the Australian team and sending them to the Olympic Games no matter where they are held.
We have a range of avenues available to us to advocate on human rights questions. I think a fair-minded observer would say that this government has advocated on those issues with conviction and commitment in multiple fora international and domestically and directly with China. We have participated and supported, from time to time, resolution statements in relation to precisely the issues that you have raised as matters of concern in your remarks today and previously in public statements. We continue to do so because advocacy on human rights is an important role for Australia and is something we took very, very seriously during our term as a member of the Human Rights Council. Whether it is in the UN General Assembly or in the Human Rights Council or other appropriate fora, that is the approach we have taken.
In terms of attendance at international sporting events such as the Olympic Games, when I was briefly in Japan in October I was particularly struck by the extraordinary engagement of the entire nation—as we saw in Australia 20 years ago—in the prospective holding of the Tokyo 2020 Olympic Games. The Olympic Games are a very, very big deal for any country that is a host. We work closely with community organisations and with non-government organisations—they include sporting organisations. When there are concerns, from a foreign policy or security perspective, with Australian sporting teams attending international events, that is always something government can take up with the relevant sporting organisation. I recall that many years ago, in 2007, the then Prime Minister Howard and one of my distinguished predecessors—a fine South Australian—the then foreign minister Alexander Downer directed the cancellation of the Australian cricket team's tour of Zimbabwe. I'm sure you recall that too. So governments can and will engage on such matters, where it is necessary, to protect Australia's interests. That is really the point to come to, Senator Patrick, because I do understand what you seek to have government do and what you seek to have government have the capacity to do. I don't agree that the specific amendment is necessary for this to occur and, as I said at the beginning of my remarks, it goes beyond the confines of the bill, in terms of its application to state and territory government arrangements with foreign governments and related entities.
Thank you very much for your comprehensive statement, Minister. I want to ask a question in relation to that response. I have a genuine concern that there is momentum building up to a boycott of the 2022 Beijing Olympics, but I'll ask this question in a geographically neutral manner. In the event that there is an Olympic event where the pressure has built up to a point where athletes are being asked to make a decision for themselves about boycotting—that's the dilemma I'm trying to solve here. You mentioned Zimbabwe. What are the mechanisms for government to protect those athletes in circumstances where the pressure has built and the government is in agreement? What are the mechanisms to protect those athletes from having to make that decision themselves rather than having a decision made by the government on their behalf?
I think that goes to the point that I made in relation to what is termed to me as an 'instruction' that was given in 2007 in relation to the touring Australian cricket team and Zimbabwe. Mechanisms per se—legislated, constructed—are not envisaged. And to be clear: at this point in time we're not considering a boycott of the 2022 Winter Olympics. You make a relevant point about pressure and the demands that are placed on athletes, Senator Patrick. But government, as I said, works very closely with sporting organisations, peak bodies particularly, non-government organisations and community organisations in relation to these issues. I do remember that decision of the Howard government. I am in some circles known as a cricket tragic; it was a matter which I was following strongly at the time and which I strongly supported. I wrote to, I think, at least one cricketer at the time, who had taken it upon himself to take a particular personal stand. We're now friends—weird world. But there's not a structured mechanism, and I don't think that it's appropriate for that to be inserted in the context of this bill, for the reasons that I have said. But I can absolutely assure you, Senator Patrick, of how seriously government takes this, and that we can and will engage on those matters where it's necessary to protect Australia's interests.
The Greens absolutely understand where Senator Patrick is coming from with these amendments. We deeply share his concerns about human rights abuses in China. We are deeply and passionately worried about the plight of the Uighurs in China, and the plight of the Tibetans over many years, and any people working for democracy in China; in fact, anybody within mainland China who dissents from the positions of the Chinese Communist Party, and the appalling attacks on them, the jailing and the torture. We are deeply concerned about the current situation in Hong Kong: the massive attacks on democracy in Hong Kong, the complete trashing of the 'one country, two systems' agreement, and, essentially, China just coming in with its might in Hong Kong. The question is what you do about it.
I think it is exceptionally important for Australia to be acting very strongly and, particularly, to be acting multilaterally—in fact, leading multilateral arrangements—because of our relationship with China and because it has been our largest trading partner. We know, with the situation we're currently at with China, that it's a very difficult and sensitive situation as to how you can apply meaningful pressure on China to get some meaningful action on the human rights abuses that are going on, without everything just escalating out of control. These are incredibly serious issues that the world needs to be grappling with, not just allowing Chinese expansionism and not just allowing the ongoing abuse of human rights in China.
That said, the question, as I said, is how you go about it. We do not think that this legislation, including this sort of mechanism in this legislation, is the appropriate way to go about it. In fact, our position on this legislation is that we think it is too far-reaching and there is far too much control, without the appropriate checks and balances, over universities. We've got an amendment, as you know, to remove universities from the scheme. We think that the level of control and the ability to negate agreements made by local governments is overreach. So we don't think this legislation would be an appropriate mechanism to include that ability of control over the Olympic Committee.
That said, I think the calls, as Senator Patrick said, for a boycott of the Beijing Winter Olympics are growing, and they are going to continue to grow because of the human rights situation in China. We really need to have the conversation about what we think of that call, because we know that the Beijing Winter Olympics are going to be a massive propaganda moment for the Chinese Communist Party. They are going to milk that for all they can, saying, 'No, we are a legitimate world player, a superpower on the world stage,' and trying to brush away what is going on, whether it's the Uighurs, the Tibetans or what is happening in Hong Kong. That is something the world is really going to need to grapple with and take a multilateral approach on. I can see over the coming two years that there will be countries that will decide their athletes should not go, and that will be supported by their countries. I also think it's incredibly important that, if there is a decision for Australia to boycott the Winter Olympics, it should be a decision that is supported by government. It cannot be left to the athletes to bear that decision themselves. I also reject the position that the Olympics Committee currently have that you need to separate sport from politics. That's never happened; and it never will. At this moment, the Winter Olympics are a political moment, and they are a critical moment for China on the world stage.
That said, we have got a very serious issue when it comes to human rights in China. It's a very serious issue, and the world needs to be dealing with it more appropriately than it is at the moment. But including the ability to deal with that within this legislation is not something the Greens support.
On the amendment, I've ceded to others to go first. I'll just indicate the opposition's position, which I've indicated to Senator Patrick. The amendment seeks to bring the Olympic movement within the operation of the bill and seeks to deal with arrangements between the AOC and foreign entities, including foreign Olympic bodies, which include the IOC—the International Olympic Committee—and other national Olympic committees in countries other than Australia. Each of these, obviously, is a foreign entity. I do recognise the concerns that Senator Patrick has held about the Olympic Winter Games that sit behind the amendment are longstanding. The advice I've received from the Australian Olympic Committee is that subjecting it to this legislation would violate its autonomy under the Olympic Charter. So, for that reason and others, the opposition is not minded to support Senator Patrick's amendment.
I want to go back to the capacity for a requirement for reasons to be provided. Senator Patrick, I note, has circulated some amendments. Obviously I don't think they're as good as mine, but they are quite sensible amendments which go to the provision of reasons. I made the point earlier that these are pretty wideranging powers for a minister. A minister can veto an arrangement that Premier Berejiklian, the Sutherland Shire Council, Ipswich City Council or any of the above engages in with a foreign entity. We understand why that is necessary, but I repeat what I said yesterday, which is that I think if ministers do stuff they probably should explain to people what they're doing. My concern is the extent of the power that is vested in a minister by the parliament as a consequence of this is substantial and wideranging. It isn't enough of an answer on that extent of power to simply say, 'Foreign policy is the remit of the federal government.' Yes, it is, but a suggestion doesn't proceed from that that you can simply veto arrangements without providing any reasons or having any accountability.
Leaving aside the minister's arguments about the AAT, which, for the reasons I've previously outlined, I don't think are correct, can the minister explain why she believes it is wrong for a minister to provide any reasons for a decision under this legislation.
Thank you very much, Senator Wong. This is obviously a matter which we discussed yesterday and have again today. It is a matter which was considered seriously in the drafting of the legislation. The government is of the view, similarly to the way the FIRB legislation is constructed, that to prevent the potential for damage to bilateral relations, to protect Australia's position, including in bilateral and international forums or negotiations, it is appropriate for such serious decisions, as they are taken in the context of the FIRB as well, for reasons not to be publicly provided. However, I do think that the implementation of the bill, the provisions within the bill and the work of the Department of Foreign Affairs and Trade task force will go a great distance in our engagement with states and territories, local governments and universities in informing them and enabling them to work on these issues with a much better foundation.
It's not a secret process. The minister's decisions are made public through the register. They are open for all to see and to scrutinise. The minister is required in section 51 to take a significant set of matters into account in relation to the state or territory that might be making the arrangement. They include the importance of the arrangement in assisting or enhancing the state or territory's functioning and the extent of the performance of the arrangement—so its implementation. They include whether the declaration would impair the continued existence of the state or territory as an independent entity.
Senator Wong interjecting—
Senator, they include whether the declaration would significantly curtail or interfere with the capacity of the state or territory to function as a government; whether the declaration would have significant financial consequences; whether it would impede the acquisition of goods or services by the state or territory, including, as some have raised, for the purposes of infrastructure; and whether it 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.
The senator may choose to find humour in that list of matters, but the point I would make is that you would expect us to have considered the implications for states and territories in relation to this legislation. In doing so, we have developed and put into the legislation presented to the parliament as part of section 51(2) those particular conditions. These are going to be decisions which are made robustly, made in the public interest, and made with transparency and accountability, as is appropriate given the nature of the issues concerned.
My amusement was that there was somehow some great democratic principle about you not being able to make decisions which actually impinged upon the existence of the state and its capacity to operate. I just don't know that's much of a protection. I think the Constitution does that. You say, Minister, that these decisions will be made robustly, with transparency and accountability. Can you confirm that you would not have to give any state government any notice of the possibility that you would veto an agreement which it had entered into?
I was asking the officers for the section, Senator. That is not required under the legislation. But the process of the stocktake of arrangements which we will be undertaking with the states and territories and local government and relevant entities is part of developing, if you like—I think I used the word 'rhythm' previously in a discussion with Senator Rice or Senator Patrick—that relationship and the understanding of the nature of arrangements which might be within the purview of the bill, and the act if it is passed. And state and territory governments will be a key part of ensuring that that comes together. That goes to the point of the consultation, again, Senator. It's why we engage with jobs, tourism, science and innovation groups, and with the trade and investment group particularly, because these are issues of interest to them, and they've been productive discussions.
Behind all the words—so you don't have to give any notice to a state government if you are considering cancelling an arrangement which they have entered into—why do you think that's appropriate? When another level of government in Australia enters into an agreement—leaving aside whether it's good or bad—before you as the minister make a decision to override an elected government about whatever agreement they get into, whether it's with Korea, Japan, the United Kingdom, whatever, why do you think it's appropriate the foreign minister doesn't even have to tell them she or he is considering it?
As I have said in some detail, this is going to be a comprehensive and collaborative approach between state, territory and local governments and universities that are covered by the bill. It is open to the states and territories to seek further information, to seek to vary an arrangement to ensure that it is consistent. As I've said in answer to other questions, I think the stocktake process is a very important part of this in ensuring that it provides a level of awareness and information that will give familiarity to states and territories of those issues and areas which may be affected by the provisions of the bill.
I would like to follow up on that remark about why you don't have to talk to them about your decision. Most state governments and state councils are in huge debt. China, through Belt and Road, wants to go to Victoria and put up a lot of money to build infrastructure. This bill has come about because of concerns about China putting Belt and Road into Victoria. Why is it a concern of the federal government to not allow Victoria, or even local government, to be involved in Belt and Road? If they are signing up to these agreements, why is the federal government taking the stance of overriding their decisions?
I said in my summing-up speech to the chamber that these are decisions that will not be taken lightly; these are serious decisions of government. But we recognise that, internationally, Australia's strength is greatest when we are speaking with one voice as governments across Australia. That's the purpose the bill serves. This bill will assist us in ensuring a consistent approach to Australia's international relations, in Australia's national interest, reflecting the Commonwealth government's fundamental role in setting those foreign policy and foreign relations parameters. It's our role to negotiate treaties. It's our role to represent our nation internationally. We do think that this remedies a gap, therefore, in the existing system. States and territories do not have to advise or even consult the Commonwealth in relation to such arrangements. That is a large gap in the system. It gives the Commonwealth no line of sight, no vision of what state and territory governments are entering into. We believe that the mechanisms set out in the legislation are about protecting our national interest and, importantly, addressing the consistency of our foreign policy across all levels of Australian government.
I will use an example. With Belt and Road, China actually put a lot of money into the Shanghai port. The port couldn't pay it back, so China took over the port. China is putting a lot of money into Belt and Road and the agreements that are made. They are using their own technology. Whether it is building a rail line or a computer system, they are using their own technology—and, in the future, you will always have to buy from China because you can't get the product from elsewhere. They are protecting their own interests. We will constantly have to buy from China. They are tying us up. We can't go outside those parameters because they have used all their knowledge, all their technology and all their infrastructure, and we are bound and tied to it.
In the broad, one of the things that COVID-19 has shown us is the need for diversification of supply chains and to make sure Australia stands on its own two feet. That's why we have an advanced manufacturing policy led by Karen Andrews, the Minister for Industry, Science and Technology. That's why we have been working across multiple bilateral relationships and in multilateral contexts on supply chain diversity to make sure that we never find ourselves in a position where we are strongly reliant on a very narrow cohort of suppliers. COVID-19 has brought that to the fore in about 90 per cent of all my international engagements in the last year.
I find it very difficult to accept what the minister just said. Coming from a manufacturing background, I know that people aren't serious when they start talking about 'advanced manufacturing'. The government allowed one of our core national capabilities, one of the industries that provided critical national capability—the Australian automotive industry—to go offshore. All this froth and bubble about national resilience, all this talk about supply chain diversity, counts for nothing after the government that you've been part of did everything in its power to force offshore not just the 40,000 jobs but the national resilience and innovation and capability that comes from that. Look offshore now at what the United Kingdom is doing, as just one example, with big investments in automotive capability that they see as precisely serving the policy objectives that you've been glossing over in terms of national resilience and supply chain capability. The Canadians have billions and billions of dollars going into green cars, into electric vehicles. For political sloganeering purposes, just last year and the year before, some joker in Liberal campaign land decided that an effort to invest in electric vehicles—which is the future of automotive engineering and automotive capability—was, in some way, an effort to take away people's weekends. It was the silliest thing that I'd ever heard. It was a self-defeating thing, because of the opportunity for us to re-engage with that most sophisticated, largest job-generating industry that also gives rise to the capacity for innovation and capability. It does make me wonder about the capacity of this government to think its way through the foreign relations problems that now confront it.
I listened carefully yesterday and today, as we've been circling around this question, about why it is appropriate for the minister neither to consult prior to making a decision in relation to a foreign agreement that the states and territories may reach nor to provide reasons. One of the reasons I'm so apprehensive about this set of arrangements is that the government set the tone. I think the phrase that you used, Minister, was whether the Commonwealth should have a line of sight on the kinds of agreements that state, territory and local governments or universities are reaching with foreign entities. There is no contest at all on that question in this place. But I think the way that the bill has been formulated and the language that's been used by advocates for the bill in this place would give states and territories, and universities in particular, some real concerns about the arbitrariness of the power that the minister is proposing to exercise. I've heard you say that the power would be used in a robust way—I'm not sure what that means—that it wouldn't be used lightly and that there'd be processes in place. Those commitments are good, as far as they go. But, if you're the Premier of New South Wales or the Premier of Victoria, or you're a researcher in one of the institutions that the bill seeks to cover, your most recent experience of the government's engagement over this question is zero consultation in the formulation of the bill—zero. For the states and territories, there's been no engagement in the construction of this most important legislation. For the universities, there's been no engagement and no consultation.
Senator Paterson said yesterday, 'Why should they have that privilege?'
That's not a position that this government would take if it were seeking to regulate the beef industry. It's not a position that the government would take if it were trying to change the regulations for the retail or finance sectors. It's a contemptuous way, really, of engaging with universities, so no wonder they are so apprehensive about the way that the Commonwealth is going to engage with them prospectively, if from our most recent experience over the last three weeks we've seen the government being so contemptuous of them.
It seems to me that the legislation has two approaches that have been very confused. One is the arbitrariness in the minister's power of veto and the other is the softer, more educative line-of-sight propositions that the minister has advanced. It appears to me that there are twin sets of objectives, which could be reconciled in the legislation if a bill in a different form had been brought to this place. It's harder to reconcile those two objectives, because of the government's behaviour and, for example, the government's refusal to provide reasons.
Before I ask my questions, I would like to say that I have heard much criticism from the individual institutions in the university sector—although I have to say that some of the criticism from their peak organisations has been muted; you don't hear much of any substance from them—expressing deep concern about the character of the minister's power and, in particular, about the way that the government conducted itself by not consulting with the sector. Those criticisms have been aired in this place and they were aired substantially yesterday. I'd like to understand why the government conducted itself in the way that it did. What was the rationale for not consulting with the university sector in this case? Does the government recognise that that failure to consult has hurt its capacity to engage constructively? Primarily, Minister, I'd like to understand why the minister and the department chose, in the drafting process that we heard so much about in estimates, not to consult with the institutions that the bill seeks to cover.
I feel duty-bound to provide a real-time fact check on Senator Ayres's contribution, in one respect, before turning to the substantive matters of his contribution. The first is on the question of the car industry and its departure from Australia. In Australia there are four major car companies that manufacture: Mitsubishi, Ford, Holden and Toyota. Senator Ayres certainly is correct to say—
Senator Wong interjecting—
Senator Whish-Wilson interjecting—
Order! Senator Wong and Senator Whish-Wilson—order!
Senator Wong interjecting—
Senator Wong interjecting—
Senator Whish-Wilson interjecting—
Senator Wong and Senator Whish-Wilson, I've called you to order many times. Order, please. Senator Paterson is making a contribution.
Senator Paterson would like to make a contribution! I'm having flashbacks to being the token Liberal delegate at NUS, when the Trots and the Labor Party fought each other. This is eerily reminiscent.
Honourable senators interjecting—
It was a very happy time.
Honourable senators interjecting—
Returning to the peripheral and substantive manners—
Honourable senators interjecting—
The CHAIR: Senator Wong and Senator Whish-Wilson—order!
Thank you, Chair, I appreciate your assistance. Returning to the substantive matters: I was going to the four car companies which were manufacturers in Australia—Mitsubishi, Ford, Holden and Toyota. I acknowledge that Senator Ayres is right: Holden and Toyota did make the decision and did announce their decision to cease manufacturing in Australia under the first term of the Abbott government. However, as Senator Ayres should know and may have forgotten—or has chosen to forget—the departure of Mitsubishi was announced in 2008 under the Rudd government and the announcement of Ford's departure from manufacturing in Australia was in 2013 under the Gillard government. So two of the four Australian car manufacturers announced their departure under the Rudd-Gillard government, not under this government. To attribute the blame to this side of politics for those events is, I think, curious.
Turning to the more substantive matters raised in Senate Ayres's contribution about this question of ministerial accountability for decisions made: I appreciate the perspective raised by the opposition and some crossbench senators on this question. But I do observe that in our system of government ministers are accountable to this parliament and governments are accountable to the people. If the opposition or any other member of this place is curious about a decision that the minister has made, if the minister does indeed make a decision to cancel an agreement, then they're free to ask the minister about that in this chamber. I look forward to them doing so if indeed that is the case. Ultimately, the government is accountable to the people for the decision it makes.
I was reflecting on a contribution that Senator Rice made in this debate last night. She made the good point that, sadly, it may not be the case that Senator Payne will be foreign minister forever. I hope it is for a very long time, but one day perhaps she will be succeeded by another foreign minister. It may be Senator Wong who replaces her one day as foreign minister. It may be Senator Ayres or it may be Senator Kitching, given their interest in these matters. But, speaking as a Liberal senator, I will sleep very soundly at night knowing that it may be Senator Wong who retains this power in the future. I would much rather Senator Wong have this power to make this decision and much rather she exercise her judgement using this power and the judgement of the federal government on questions of national interest and foreign policy than any state premier, Labor or Liberal—let alone any local council mayor or any vice-chancellor. That's because I know that ultimately she will be informed by the best advice and the best expertise here in Canberra and because, fundamentally, I don't think there is a really profound difference on foreign policy across the chamber. Fundamentally, I think we substantially agree.
So I'm not troubled as Senator Rice is by the fact that the foreign ministry may change hands one day. I trust that an elected government and the person they choose to appoint as foreign minister will exercise that choice carefully and that any decisions they make will be subject to the scrutiny of this parliament and the Australian people.
I have just a few responses. The first is that we do think this is a role for the federal government. But we also think that where there are substantial powers vested in any minister, as they are by this legislation—including to cancel agreements that elected state governments, elected territory governments and elected councils are engaged in—a modicum of notice and reasons for decisions are pretty reasonable propositions. I don't think that derogates from the central proposition asserted, which is that the federal government has responsibility for foreign relations.
I will just respond very briefly to your defence of your government, Senator Paterson, when it comes to the car industry. I'm from South Australia. I've worked for unions which have had members at Holdens and as part of the supply chain. I'll say this to you: every worker and their family knows what happened. Your Treasurer—
An honourable senator interjecting—
In the northern suburbs it's Holdens—GMH, right? Every person knows that Joe Hockey stood up on the floor of the parliament and goaded them to leave. People were watching, including management, and they were astounded. I remember one of them, confidentially—I won't give the name—saying to me: 'We have never seen something like this. We have been goaded to leave by the Treasurer of Australia.' And then they did. So every South Australian knows, every worker and every family who has suffered as a consequence of that decision knows that it was the coalition and a coalition Treasurer who not only turned their backs on the industry, but, out of some ideological big he-man bent, stood on the floor of the parliament and goaded them to leave, and we will never forget it. We will never forget it. We will never forget it.
An honourable senator interjecting—
Thank you for that. After all that, I move opposition amendment on sheet No. 1112 circulated in my name:
(1) Page 66 (after line 19), after Division 4, insert:
Division 4A—Annual report
53A Annual report
(1) The Minister must cause to be prepared, as soon as practicable after the end of each calendar year, an annual report on the exercise of the Minister's decision-making powers under this Act during the year.
(2) Without limiting subsection (1), the report must include the following:
(a) statistical information about the decisions made by the Minister under the Act during the year, including the total number of decisions, the total number of decisions in each class of decision, and the outcomes of the decisions;
(b) a summary of the details of each of the decisions made by the Minister under the Act during the year;
(c) an outline of the engagement that has occurred during the year with entities covered by the Act to articulate and explain to those entities Australia's foreign policy and how they should engage with foreign entities in Australia's national interest.
(3) A copy of the report must be given to the Leader of the Opposition in the House of Representatives, but it is the duty of the Leader of the Opposition to treat as secret any part of the report that is not tabled in a House of the Parliament.
(4) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the end of the year to which the report relates.
(5) However, before tabling the report the Minister may make such redactions to the report as the Minister considers necessary in order to avoid prejudice to security, the defence of Australia, Australia's relations with other countries, law enforcement operations or the privacy of individuals.
This is an amendment that requires the minister to provide an annual report to the Senate on the exercise of their decision-making power under the proposed act after each calendar year. It really goes to the point Senator Paterson made about accountability. It also prescribes the minimum contents of such reports, given we've seen reports provided by this government which avoid certain delicate topics that are actually important, such as the aged-care annual report and response to the royal commission report. In order to avoid the risk of vague and unhelpful reports, it requires statistical information about decisions and results, and the details of each decision. It's consistent with the recommendations of my colleagues on the Senate committee. It also requires an outline of the engagement that has occurred during the year with entities covered by the proposed act to articulate and explain those amendments to those entities, Australia's foreign policy and how they should engage with foreign entities in Australia's national interest.
We are conscious, being a responsible opposition, that some information may need to be redacted from tabled reports. The minister would be obliged to prepare two reports, a classified report and an unclassified report. The amendment requires the minister to table the unclassified report, but to give a copy of the classified report to the Leader of the Opposition, which they are under duty to keep secret. I would underline that this is precisely the same sort of arrangement which applies to intelligence agency reports—for example, under the ASIO legislation—which enables these classified reports to be filed to the Leader of the Opposition. It is important, obviously, to ensure that these sorts of issues are not weaponised or politicised in any way, and to ensure the bipartisanship on these sorts of national security matters is provided on the basis of reasonable shared information. Conscious of the national security matters inherent in the decision-making under the bill, the amendment provides that, before tabling the report, the minister may make redactions, as she or he considers necessary, in order to avoid prejudice to security, the defence of Australia, Australia's relations with other countries, law enforcement operations or the privacy of individuals.
There are two aspects to this amendment. We're dealing with the first, which is the amendment to the bill, which requires the minister to provide an annual report to the Senate. When we move the report of the Committee of the Whole, when the minister does that, there is a motion for a continuing order, which requires these reports to be referred to Senator Abetz's committee, the Senate Foreign Affairs, Defence and Trade Legislation Committee, so that the authority for the committee examining the reports is pursuant to Senate order rather than the bill. I would have preferred the latter, but I am doing what the Clerk told me was the right thing to do. If this amendment is successful, we'll then move that amendment subsequently. We're conscious of the sensitivity required in the handling of national security matters, and we have taken that into account in relation to the drafting of both amendments.
The government don't support this amendment. We do believe that the public register is going to be a very important process through which information is provided about the decisions that are made. It will enable the ascertaining of the minister's decisions on arrangements, in terms of the numbers and the outcomes of those arrangements; it will be completely publicly available to allow for that sort of public scrutiny over decision-making. It will help the states and territories to build a picture of the kinds of arrangements that might be deemed to be adverse to or inconsistent with Australia's foreign policy. It will include information about arrangements to support greater transparency. I think it is an important confidence-building mechanism for the public, for business and for state and territory entities themselves, that they can enter and deal with arrangements knowing they are consistent with Australia's foreign policy and foreign relations.
To be clear, there's certain information that won't be published on the register. That includes commercially sensitive information, information that would disclose state or territory cabinet deliberations or documents, any information that's subject to legal professional privilege or public interest immunity, or national security information. That is to protect that information—to recognise that its publication could have a detrimental impact.
The Greens will be supporting this amendment and the improved transparency and accountability that would be provided by an annual report. I note the minister's response—that she's not supporting this because she feels that the public register will be enough information. It is very clear that there is going to be much more limited information on that public register—and, Minister, you just outlined some of the things that won't be on the public register—than we think is appropriate to be either publicly available or, in the case of sensitive information, to be redacted, to take account of that sensitivity. We note that there is not full transparency because of the provisions outlined in this proposed amendment to be able to redact sensitive information.
Critically, the provision of annual reports is one of a suite of amendments that we and the Labor Party are moving, to try and improve the transparency and the accountability and to actually put some checks and balances in this legislation, because—for all of your words, Minister, that this is going to be a most wonderful, collaborative, open approach, where everything is going to be discussed with everybody else—there is nothing in the legislation that says that that's the way it has to be. All the legislation lays out is, basically, a framework that allows the government, if it wanted to, to come in, in an incredibly heavy-handed, non-consultative and completely over-the-top manner, without having to give any reasons for decisions that are being made, without having to account for itself, without having to give any reports and without the ability to review those decisions. It is a very authoritarian way of going about this piece of legislation and is completely at odds with the expressions that you have been using during this debate, Minister, of your commitment to a collaborative and open approach.
The CHAIR: The question is that amendment (1) on sheet 1112 be agreed to.
I move Australian Greens amendment (1) on sheet 1078:
(1) Clause 4, page 5 (after line 3), after the definition of Australia's foreign policy, insert:
Australia ' s foreign relations means the relationship between Australia and foreign countries arising out of their dealings with each other.
This amendment is to define what 'foreign relations' means in the bill. A consistent theme throughout all the discussion and debate we have had on this bill is that key terms and definitions are undefined or poorly defined. This is a very simple amendment. We think it would have been a pretty obvious thing to include a definition of foreign relations. We hope that it's a useful one that will provide clarity in the legislation about, indeed, the extent of what is covered by this legislation.
The CHAIR: The question is that amendment (1) on sheet 1078, as moved by Senator Rice, be agreed to.
We've had a discussion today about the review of decisions. I understand, just for clarity, the government has put forward legislation which enables a minister to make a decision under this bill to veto an agreement that an elected government has entered into without notice and without any reasons for a decision and without any capacity for review. The opposition, for the reasons outlined, doesn't believe that is appropriate. I place on record again that I have offered to the government, both at a staff level and at a principle level, to engage with them about the content—
Government senators interjecting—
The CHAIR: Order!
I have raised with the government via multiple channels—staff, office to office, leader to leader—a willingness to engage with the substance of changes to this. We've had no reply from the government until recently, which I think is disappointing, as I have said before. By leave—I move opposition amendments circulated in my name on sheet 1114:
(1) Clause 50, page 60 (after line 7), after the paragraph beginning "The Minister must take into account", insert:
Decisions made by the Minister under this Act may be reviewed by the Administrative Appeals Tribunal.
(2) Page 62 (after line 25), after Division 2, insert:
Division 2A—Review of decisions
51A Review of decisions
(1) Applications may be made to the Administrative Appeals Tribunal for review of a reviewable decision referred to in column 1 of the following table:
Notice of decision must include statement of reasons etc.
(2) The notice that is required to be given in relation to a reviewable decision referred to in column 1 of the table in subsection (1), under the provision referred to in column 2 of the table, must contain:
(a) a statement of reasons for the decision in accordance with subsections (3) and (4); and
(b) information about the right to have the decision reviewed.
(3) The statement of reasons must include:
(a) if in making the decision the Minister is satisfied or not satisfied of a foreign relations matter, or has ceased to be satisfied of a foreign relations matter—an explanation of the basis on which the Minister reached that position and the particular foreign relations, foreign policy or other considerations involved; and
(b) if the Minister is required under section 51 to take the matters specified in subsection 51(2) into account in making the decision—an explanation of how those matters have been taken into account and have affected the decision made.
Note: See also section 25D of the Acts Interpretation Act 1901 for other rules about the contents of a statement of reasons.
(4) To avoid doubt, subsections (2) and (3) do not require information to be included in a statement of reasons if the Minister believes on reasonable grounds that disclosure of that information is or is likely to be protected by public interest immunity. However, if information is not included in a statement of reasons on that basis, the statement of reasons must:
(a) state that fact; and
(b) specify the particular grounds for the claim of public interest immunity, including the grounds on which it is considered that it is not in the public interest to disclose the information and the harm to the public interest that could result from the disclosure of information.
Reviews by Security Division of the Tribunal
(5) The power of the Administrative Appeals Tribunal to review a reviewable decision referred to in subsection (1) may be exercised by the Tribunal only in the Security Division of the Tribunal.
(6) The provisions of the Administrative Appeals Tribunal Act 1975 apply in relation to an application for review of a reviewable decision referred to in subsection (1) with the modifications specified in the rules.
Definition of foreign relations matter
(7) For the purposes of this section, a foreign relations matter means a matter that relates to whether a particular action:
(a) would or would not adversely affect, or would be likely or unlikely to adversely affect, Australia's foreign relations; or
(b) would or would not be, or would be likely or unlikely to be, inconsistent with Australia's foreign policy; or
(c) adversely affects, or is likely to adversely affect, Australia's foreign relations; or
(d) is, or is likely to be, inconsistent with Australia's foreign policy.
I again underline that the bill does not require the minister to provide any reasons for a decision and does not allow for any process of review or appeal by affected entities of ministerial decisions. The bill excludes procedural fairness, the operation of the Administrative Decisions (Judicial Review) Act and any form of merits review.
I note that when Mr Morrison announced this legislation he claimed that the legislation would 'provide a transparency' around all of those arrangements and it would:
… ensure ultimately a greater awareness of the federal foreign policy settings that we are seeking the alignment of and the support of and the cooperation with of governments and government related entities right across Australia.
The problem is that a regime that provides no transparency of the minister's decision, no notice of the minister's decision, no requirement for the federal government to advise affected entities of its foreign policy settings and no guidance to ensure the alignment of governments and government related bodies right across Australia is not a scheme that provides the sort of transparency and enables the alignment of which the Prime Minister spoke. If the government wants to deliver on this promise it should provide guidance, and when the entities get it wrong they should explain why. That is, over time, the only way we can ensure the sort of alignment that is necessary at this time.
I also make the point that without procedural fairness, without a requirement to provide reasons and without capacity for review, this is a discretion that sits solely with the minister. There is no requirement to explain what Australia's foreign policy is and no requirement to explain how an arrangement is inconsistent with foreign policy. Now, I don't doubt the motivations of this minister. I've been critical of her performance, but I don't doubt her motivations. But any minister may make decisions with regard to all kinds of matters under this legislation, given the broad discretion given to the minister under the bill. For example, it's not unimaginable that a federal government of one political persuasion might take issue with an arrangement that is beneficial to a state or territory government of another political persuasion, and we have seen that in the way in which the government here has chosen to attack Premier Andrews through the media without actually sitting down and having a chat.
Government senators interjecting—
I'm just looking to see who was moaning. Well, I just think that when it comes to foreign policy, how about not doing it through the newspapers? If you're really serious about safeguarding Australia's national interests, why don't you sit down—
Senator Rennick interjecting—
Well, you can come in here. If you want to join the debate, I'm very happy for you to, Senator. Why don't you come over here and have the guts to stand up? They won't let him—ha! Oh dear. I always offer Senator Rennick leave to speak, but he never takes me up on it.
Being told to grow up by Senator Rennick is one of the highlights of my career, I reckon! Look, I think that whatever people's views are on the BRI—and I've made my views clear—if we're serious about safeguarding Australia's sovereignty in the context of the sort of strategic and geopolitical environment that Australia is in, then there actually has to be a degree of unity and a degree of working together. My criticism of the federal government is that they have chosen to play this through the media for political purposes rather than actually trying to resolve it. As I said, at the same time they refuse to release their own secret BRI deals—and it's a pity Senator Rennick wasn't here to hear that—which Mr Ciobo entered into. The minister can exercise powers under this regime to cancel an arrangement without the need to provide reasons, without any notice and without the capacity for review, and people wouldn't even know what factors the minister took into account; only the minister would know that. So we've taken a responsible approach in drafting the amendments to ensure that the government's concerns are dealt with, including the need for sensitivity in publishing details of Australia's foreign policy.
I say to the government, if you want to deliver on what Mr Morrison promised in announcing this regime—transparency, leadership and alignment—you would accept these arrangements. The statement of reasons that we have drafted would include, whether, if in making the decisions, the minister is satisfied or not satisfied of a foreign relations matter or had ceased to be satisfied of a foreign relations matter, an explanation for the basis on which the minister reached that position and, in particular, foreign relations, foreign policy or other considerations involved and an explanation of how matters have been taken into account.
The minister raised earlier, as a justification for non-inclusion of national security sensitivities, I again make this point, that in recognition of national security sensitivities, this amendment does not—I repeat does not—require information to be included in a statement of reasons if disclosure of that information is, or is likely to be, protected by public interest immunity of which obviously national security grounds aren't a ground. The opposition has provided that the threshold for withholding information on the basis of a PII, public interest immunity, claim is that the minister believes on reasonable grounds that the information is subject to public interest immunity. I outline that because that is a very substantial protection of national security or other information that a minister reasonably believes should be excluded on the basis of public interest immunity.
The minister has said a number of times that she has put judicial review into the legislation. I make this point: judicial review of ministerial decisions has limited utility without a requirement for a minister to provide reasons for decision. It also limits the ability of Australian entities to comply with the legislation. These amendments establish a right of review of decisions under the act by the AAT. They require the minister to provide reasons to affected entities and for entities to have the capacity to appeal them. They insert a new clause in the bill, itemising decisions that would be reviewable. We have specified that the review function should be conferred on the security division of the AAT so that the procedural requirements for classified evidence apply. For the purposes of this clause, a foreign relations matter means a matter that relates to whether or not a particular action would or would not adversely affect, or would be likely or unlikely to adversely affect, Australian foreign relations, or be inconsistent with Australian foreign policy amongst other things, to summarise.
The minister has not been interested in engaging on this. These are very sensible amendments. It is a very substantial power. The Labor Party doesn't believe the minister should have this kind of untrammelled power to veto agreements that sovereign state governments and territory governments have entered into without at least providing reasons for the decisions and having some capacity to be accountable for them.
I note that the government does not support these amendments for the reasons that have been ventilated at length in the discussion and the debate during the committee stage. I appreciate the matters that Senator Wong has raised but we believe they are covered within the provisions of the bill. We are very conscious of the decisions being made under this bill and the potential impact that they have in relation to bilateral relations in relation to disadvantaging Australia's position, including in bilateral and international fora or negotiations.
I do want to emphasise again, as I did in response to a previous discussion, that this is not by any means a secret, or secretive for that matter, process. The minister's decisions are made public through the register. They are open for all to see and to scrutinise. They are made on the basis of Australia's foreign policy, which is the purview of the Commonwealth government. It's determined by the minister in consultation and processes through the Prime Minister, the cabinet process, advice from the Department of Foreign Affairs and Trade. These decisions will be robust decisions, as I have said before. They will be made in the public interest and with the transparency and accountability that is appropriate in the context of the nature of those decisions.
The Greens will be supporting these amendments. They are a very similar result to an amendment that we're also putting forward. Having to provide reasons for decisions, having the ability to challenge those decisions, is fundamental. It's part of a framework where you have got accountability. We believe that accountability is fundamental to having a framework of actually working collaboratively together.
I think all of us here are on the same page when we think, 'Yes, it would be the best outcome if we have the Commonwealth, the state and territory governments, universities and local governments all on the same page, not cutting across each other and not making decisions that are in conflict with the decisions that the others are making.' If you've got a problem where that's occurring, the question is: how do you address it? I've done a lot of work in bringing groups of people together to work out how they can work together, see what their common aims are, see what their common purposes are and reach solutions together. I can tell you there is only one way to do it that will last, and that is to genuinely work together collaboratively, to genuinely talk with each other, to genuinely listen to each other, to genuinely hear and learn from each other and then to work together. The way that you do that is you set up a framework for those discussions that ensures that that's going to occur. You cannot have a framework where, despite lots of good words at the beginning, saying, 'Yes, we are going to work collaboratively, transparently and in an accountable way,' at the end of the day all the power rests with one person. That's the problem that we have with this legislation.
A framework actually set up for the states and Commonwealth to work together but which doesn't vest all that overarching power into the hands of the minister would be the way forward. There is clearly room for improvement compared with where we're currently at. As I said earlier, I don't think it is appropriate for state governments to be going off and signing the Belt and Road Initiative with China that the Commonwealth had no knowledge of or engagement in. That's not a sensible way forward. But there is a vast gulf between that situation and what's being proposed here. You can set up a framework that addresses that that doesn't then place all the power in the hands of the foreign minister in a way that does not have to be accountable. Yes, Minister, you might be committed to being accountable. You personally might be committed to providing reasons. Personally, your way of working may be collaborative. But, unless it's laid out in the legislation, it does haven't to occur. Unless you have guidelines for the decisions, a requirement to lay out guidelines for the reasons why a decision is being made and a requirement to actually provide reasons back to people to whom you are saying that arrangement can no longer occur, unless that is in the legislation, it doesn't have to occur. That is our concern.
I'm sure that it would have been possible to get a piece of legislation that addressed the vast majority of what you wanted to achieve with this legislation with multipartisan support, because there is support around this chamber and around this parliament for what I think the intent of this legislation is—to address the problem of making sure that those arrangements are in Australia's national interest. But the fact that you are not willing to accommodate very sensible amendments that put in place a framework of accountability shows that that cooperation is not present. That's why we are having to have this debate here today. It means that you're not going to get support from us. I don't understand the reasons. In fact, I don't think there have been sufficient reasons given as to why these very sensible amendments are not being supported by the government. Your response was, 'There are potential threats to our bilateral arrangements.' That's not a reason. There is room in this amendment to be able to redact information that is sensitive and shouldn't be in the public eye. This blanket approach of no guidelines, no review and no reasons for decisions is complete overreach and is setting up a regime that has the potential to be misused in the future.
To be absolutely clear so that there's no misapprehension in terms of the record: this process is not all in the hands of the foreign minister, full stop. Within the legislation there is the process of judicial review; the parameters of the foreign policy test, which I have set out in the chamber in this debate; the limited scope of the coverage; the matters in section 51 which the foreign minister must take into account; and the public register itself. The rules, of course, are disallowable and, of course, the legislation was amended by the government in the House of Representatives to also incorporate a three-year review which will give the parliament and the government the ability to address any prospective changes or amendments to the process.
by leave—I move Australian Greens amendments (2) and (3) on sheet 1078 together:
(2) Clause 50, page 60 (after line 7), after the paragraph beginning "The Minister must take into account", insert:
Decisions made by the Minister under this Act may be reviewed by the Administrative Appeals Tribunal.
(3) Page 62 (after line 25), after Division 2, insert:
Division 2A—Review of decisions
51A Review of decisions
(1) Applications may be made to the Administrative Appeals Tribunal for review of decisions made by the Minister under this Act.
(2) A notice that the Minister is required to give under this Act in relation to a decision by the Minister must state the reasons for the decision.
Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.
These amendments are very similar to but not as detailed as the clauses in the Labor Party's amendments that have just been considered, but I have moved them anyway.
The government does not support the amendments. We've had a number of discussions in the committee stage on that matter. I don't think that the proposed amendments add clarity, but they do run the risk of creating legal uncertainty. We believe the terms should be interpreted in the context of the Commonwealth's prerogative to determine Australia's foreign policy and foreign relations.
The opposition will support these amendments. They are substantively similar to the amendments the Labor Party moved earlier, although there is some conflict in terms of the right of review. I would just again make the point that I think the minister's justification for opposing these various administrative amendments really doesn't make a lot of sense in the circumstances.
The TEMPORARY CHAIR (12:45): Order! It being 12.45, the Senate will now move to senators' statements.