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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Australia's Foreign Relations (State and
Territory Arrangements) Bill 2020
No. , 2020
(Foreign Affairs and Trade)
A Bill for an Act to protect and manage Australia's
foreign relations, and for related purposes
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
i
Contents
Part 1--Preliminary
1
Division 1--Preliminary matters
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Simplified outline of this Act ............................................................ 2
4
Definitions ......................................................................................... 4
Division 2--Core provisions of this Act
8
5
Object of this Act............................................................................... 8
6
Foreign arrangements ........................................................................ 8
7
What are State/Territory entities? ...................................................... 8
8
What are foreign entities? .................................................................. 9
9
What is an arrangement? ................................................................. 10
10
Core foreign arrangements .............................................................. 10
11
Application of this Act to subsidiary arrangements ......................... 11
12
What is a subsidiary arrangement? .................................................. 11
13
Application of this Act to variations of arrangements ..................... 12
Part 2--Negotiating and entering core foreign arrangements
14
Division 1--Simplified outline of this Part
14
14
Simplified outline of this Part .......................................................... 14
Division 2--Negotiating core foreign arrangements
16
15
Prohibition on negotiations without the Minister's approval ........... 16
16
Requirement to notify the Minister about negotiations .................... 16
17
The Minister's decision about negotiations ..................................... 16
18
Notices relating to the Minister's approval under
subsection 17(2) .............................................................................. 18
19
When the Minister's approval under subsection 17(2) is in
force ................................................................................................. 18
20
Notice of the Minister's refusal under subsection 17(3) .................. 19
21
When the Minister is taken to have given approval for
negotiations ..................................................................................... 19
Division 3--Entering core foreign arrangements
20
22
Prohibition on entering core foreign arrangements .......................... 20
23
Requirement to notify the Minister before entering core
foreign arrangements ....................................................................... 20
24
The Minister's decision about proposals to enter core foreign
arrangements ................................................................................... 21
ii
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
25
Notices relating to the Minister's approval under
subsection 24(2) .............................................................................. 22
26
When the Minister's approval under subsection 24(2) is in
force ................................................................................................. 23
27
Notice of the Minister's refusal under subsection 24(3) .................. 23
28
When the Minister is taken to have given approval for
proposals to enter core foreign arrangements .................................. 24
29
Requirement to notify the Minister about entering core
foreign arrangements ....................................................................... 24
Division 4--Consequences of unlawfully entering core foreign
arrangements
26
Subdivision A--Effect on legally binding arrangements
26
30
Arrangements that purport to be legally binding under
Australian law .................................................................................. 26
31
Arrangements that are legally binding under foreign law ................ 27
Subdivision B--Effect on non-legally binding arrangements
28
32
Arrangements that are not legally binding ....................................... 28
Part 3--Entering non-core foreign arrangements
29
Division 1--Simplified outline of this Part
29
33
Simplified outline of this Part .......................................................... 29
Division 2--Entering non-core foreign arrangements
30
Subdivision A--Requirement to notify the Minister about
proposals to enter non-core foreign arrangements
30
34
Requirement to notify the Minister about proposals to enter
non-core foreign arrangements ........................................................ 30
Subdivision B--Declarations about negotiations or proposals to
enter non-core foreign arrangements
31
35
Declarations about negotiating non-core foreign
arrangements ................................................................................... 31
36
Declarations about proposals to enter non-core foreign
arrangements ................................................................................... 32
Subdivision C--Matters relating to declarations under this Part
33
37
Matters relating to declarations under this Part ............................... 33
Subdivision D--Requirement to notify the Minister about
entering non-core foreign arrangements
34
38
Requirement to notify the Minister about entering non-core
foreign arrangements ....................................................................... 34
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
iii
Part 4--The Minister's powers to make declarations about
foreign arrangements, and subsidiary arrangements,
that are in operation
35
Division 1--Simplified outline of this Part
35
39
Simplified outline of this Part .......................................................... 35
Division 2--The Minister's power to make declarations about
foreign arrangements that are in operation
38
Subdivision A--When the Minister may make declarations about
foreign arrangements
38
40
When the Minister may make declarations under this
Division ........................................................................................... 38
Subdivision B--Declarations about legally binding foreign
arrangements
39
41
Foreign arrangements that are legally binding under
Australian law .................................................................................. 39
42
Foreign arrangements that are legally binding under foreign
law ................................................................................................... 42
Subdivision C--Declarations about non-legally binding foreign
arrangements
44
43
Foreign arrangements that are not legally binding ........................... 44
Subdivision D--Matters relating to declarations under this
Division
47
44
Matters relating to declarations about foreign arrangements ........... 47
Division 3--The Minister's power to make declarations about
subsidiary arrangements that are in operation
49
Subdivision A--When the Minister may make declarations about
subsidiary arrangements
49
45
When the Minister may make declarations under this
Division ........................................................................................... 49
Subdivision B--Declarations about legally binding subsidiary
arrangements
50
46
Subsidiary arrangements that are legally binding under
Australian law .................................................................................. 50
47
Subsidiary arrangements that are legally binding under
foreign law ....................................................................................... 52
Subdivision C--Declarations about non-legally binding subsidiary
arrangements
54
48
Subsidiary arrangements that are not legally binding ...................... 54
iv
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Subdivision D--Matters relating to declarations under this
Division
57
49
Matters relating to declarations about subsidiary
arrangements ................................................................................... 57
Part 5--Other matters
59
Division 1--Simplified outline of this Part
59
50
Simplified outline of this Part .......................................................... 59
Division 2--Matters that the Minister must take into account
when making declarations under this Act
60
51
Matters that the Minister must take into account ............................. 60
Division 3--Enforcement
62
52
Injunctions ....................................................................................... 62
Division 4--The Public Register
64
53
The Minister must keep a public register ......................................... 64
Division 5--The rules
66
54
The rules .......................................................................................... 66
Division 6--The Australian National University
67
55
Application of this Act to the Australian National University ......... 67
Division 7--Other matters
68
56
Delegation by the Minister .............................................................. 68
57
Compensation for acquisition of property ....................................... 68
58
Requirements in relation to procedural fairness .............................. 69
59
Extraterritorial application and extension to external
Territories ........................................................................................ 69
60
Crown to be bound .......................................................................... 69
61
Concurrent operation with State and Territory laws ........................ 69
62
Approved forms ............................................................................... 69
63
Approved ways of giving notices to the Minister ............................ 69
64
Schedule 1 ....................................................................................... 69
Schedule 1--Transitional requirements relating to
pre-existing foreign arrangements
70
Division 1--Simplified outline of this Schedule
70
1
Simplified outline of this Schedule .................................................. 70
Division 2--Requirement to notify the Minister about
pre-existing foreign arrangements
71
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
v
2
Requirement to notify the Minister about pre-existing
foreign arrangements that are core foreign arrangements ................ 71
3
Requirement to notify the Minister about pre-existing
foreign arrangements that are non-core foreign arrangements ......... 72
Division 3--Consequences for failing to notify the Minister
about pre-existing foreign arrangements that are
core foreign arrangements
74
Subdivision A--Pre-existing foreign arrangements that are legally
binding
74
4
Arrangements that are legally binding under Australian law ........... 74
5
Arrangements that are legally binding under foreign law ................ 75
Subdivision B--Pre-existing foreign arrangements that are not
legally binding
76
6
Arrangements that are not legally binding ....................................... 76
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
1
A Bill for an Act to protect and manage Australia's
1
foreign relations, and for related purposes
2
The Parliament of Australia enacts:
3
Part 1--Preliminary
4
Division 1--Preliminary matters
5
6
1 Short title
7
This Act is the
Australia's Foreign Relations (State and Territory
8
Arrangements)
Act 2020
.
9
Part 1
Preliminary
Division 1
Preliminary matters
Section 2
2
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Part 1 and
anything in this
Act not elsewhere
covered by this
table
The day this Act receives the Royal Assent.
2. Parts 2 and 3
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 3 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
3. Parts 4 and 5
and Schedule 1
The day this Act receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Simplified outline of this Act
13
Foreign arrangements
14
Preliminary
Part 1
Preliminary matters
Division 1
Section 3
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
3
This Act deals with foreign arrangements. These are arrangements
1
between particular kinds of State and Territory entities and
2
particular kinds of foreign entities.
3
The kinds of State and Territory entities that are covered by this
4
Act are the States and Territories themselves, their governments,
5
Departments and agencies, as well as some other entities (see
6
section 7 for the entities that are covered). Each of these entities is
7
a "State/Territory entity".
8
The kinds of foreign entities that are covered by this Act are
9
foreign countries and the national governments, Departments and
10
agencies of foreign countries; provinces, states or other political
11
subdivisions of foreign countries and their corresponding
12
governments, Departments and agencies; and some other entities
13
(see section 8 for the entities that are covered). Each of these
14
entities is a "foreign entity".
15
A State/Territory entity is required to notify the Minister if the
16
entity proposes to enter, or enters, a foreign arrangement.
17
There are additional requirements in Part 2 that apply just to core
18
foreign arrangements. Core foreign arrangements are arrangements
19
between a core State/Territory entity and a core foreign entity.
20
Generally, these are principal State/Territory entities and foreign
21
entities. (See subsections 10(3) and (4) for the entities that are
22
covered.)
23
In some cases, additional requirements might apply to non-core
24
foreign arrangements. This depends on whether the Minister
25
decides to make a declaration in relation to those arrangements.
26
Certain conditions need to be satisfied before the Minister can
27
make the declaration. Part 3 deals with these declarations.
28
The Minister may make a declaration that a foreign arrangement
29
(whether or not a core foreign arrangement) is invalid and
30
unenforceable, required to be varied or terminated, or not in
31
operation (depending on the nature of the arrangement). Certain
32
Part 1
Preliminary
Division 1
Preliminary matters
Section 4
4
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
conditions need to be satisfied before the Minister can make the
1
declaration. Part 4 deals with these declarations.
2
Subsidiary arrangements of foreign arrangements
3
This Act also applies in a more limited way to subsidiary
4
arrangements of foreign arrangements. A subsidiary arrangement is
5
an arrangement that is entered under the auspices of a foreign
6
arrangement but is not itself a foreign arrangement.
7
The Minister may make a declaration that a subsidiary arrangement
8
is invalid and unenforceable, required to be varied or terminated, or
9
not in operation (depending on the nature of the arrangement).
10
Part 4 deals with these declarations for subsidiary arrangements.
11
Variations of foreign arrangements
12
Generally, this Act applies to variations of arrangements in the
13
same way as it applies to arrangements. For example, a
14
State/Territory entity will be required to give a notice of a proposal
15
to vary a foreign arrangement in the same way as it is required to
16
give a notice of a proposal to enter a foreign arrangement.
17
Transitional requirements for pre-existing foreign arrangements
18
A State/Territory entity that is party to a foreign arrangement that
19
is in operation on the commencement day, or which comes into
20
operation before the day on which Part 2 commences, must notify
21
the Minister about the arrangement. Schedule 1 deals with these
22
notification requirements.
23
4 Definitions
24
In this Act:
25
arrangement
: see subsection 9(1).
26
Australia
, when used in a geographical sense, includes the external
27
Territories.
28
Preliminary
Part 1
Preliminary matters
Division 1
Section 4
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
5
Australian law
means a law of the Commonwealth, a State or a
1
Territory.
2
Australia's foreign policy
: see subsection 5(2).
3
commencement day
means the day section 1 commences.
4
core foreign arrangement
: see subsection 10(2).
5
core foreign entity
: see subsection 10(4).
6
core State/Territory entity
: see subsection 10(3).
7
court
means the High Court of Australia or the Federal Court of
8
Australia.
9
exempt arrangement
means an arrangement of a kind that is
10
prescribed by the rules to be an exempt arrangement.
11
foreign arrangement
: see subsection 6(2).
12
foreign country
means any country that is outside Australia and
13
the external Territories, whether or not it is an independent
14
sovereign state.
15
foreign entity
: see subsection 8(1).
16
foreign law
means a law of a foreign country, or part of a foreign
17
country.
18
gives effect to
: a party to an arrangement
gives effect to
the
19
arrangement if the party:
20
(a) gives effect to the arrangement in any way and to any extent,
21
whether directly or indirectly; or
22
(b) takes any action for the purposes of implementing the
23
arrangement (whether or not the arrangement contemplates
24
that the action would be taken for those purposes), including,
25
for example, the following action:
26
(i) participating in discussions, forums, exchanges, visits or
27
other dealings contemplated by the arrangement;
28
Part 1
Preliminary
Division 1
Preliminary matters
Section 4
6
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
(ii) promoting projects or other matters contemplated by the
1
arrangement;
2
(iii) engaging in activities contemplated by the arrangement;
3
(iv) entering, or encouraging other entities to enter, other
4
arrangements contemplated by the arrangement; or
5
(c) does anything of a kind prescribed by the rules;
6
but does not include:
7
(d) taking any action to terminate the arrangement; or
8
(e) taking any action to vary the arrangement in accordance with
9
a requirement under this Act; or
10
(f) doing anything of a kind prescribed by the rules.
11
Paragraphs (a), (b) and (c) do not limit each other.
12
legally binding
: see subsection 9(2).
13
negotiation
of an arrangement means discussions or dealings
14
between the proposed parties that are directed towards the making
15
of the arrangement.
16
non-core foreign arrangement
means a foreign arrangement that
17
is not a core foreign arrangement.
18
pre-existing foreign arrangement
: see subclause 2(2) of
19
Schedule 1.
20
regulated Australian party
to an arrangement means any of the
21
following entities that are a party to the arrangement:
22
(a) a State/Territory entity;
23
(b) an individual who:
24
(i) is an Australian citizen; or
25
(ii) is a permanent Australian resident;
26
(c) an Australian entity (within the meaning of the
Foreign
27
Acquisitions and Takeovers Act 1975
);
28
(d) a partnership or an association incorporated or formed under
29
an Australian law;
30
(e) any other entity prescribed by the rules to be a regulated
31
Australian party;
32
Preliminary
Part 1
Preliminary matters
Division 1
Section 4
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
7
but does not include an entity prescribed by the rules as not being a
1
regulated Australian party.
2
rules
means rules made under subsection 54(1).
3
State/Territory entity
: see section 7.
4
subsidiary arrangement
: see subsection 12(1).
5
terminate
an arrangement includes withdraw from the
6
arrangement.
7
Territory
means:
8
(a) the Australian Capital Territory; or
9
(b) the Northern Territory; or
10
(c) an external Territory.
11
this Act
includes the rules.
12
under the auspices
: see subsection 12(2).
13
variation of an arrangement
: see subsection 13(2).
14
Part 1
Preliminary
Division 2
Core provisions of this Act
Section 5
8
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Division 2--Core provisions of this Act
1
5 Object of this Act
2
(1) The object of this Act is to ensure that the Commonwealth is able
3
to protect and manage Australia's foreign relations by ensuring that
4
any arrangement between a State/Territory entity and a foreign
5
entity:
6
(a) does not, or is unlikely to, adversely affect Australia's
7
foreign relations; and
8
(b) is not, or is unlikely to be, inconsistent with Australia's
9
foreign policy.
10
(2)
Australia's foreign policy
includes policy that the Minister is
11
satisfied is the Commonwealth's policy on matters that relate to:
12
(a) Australia's foreign relations; or
13
(b) things outside Australia;
14
whether or not the policy:
15
(c) is written or publicly available; or
16
(d) has been formulated, decided upon, or approved by any
17
particular member or body of the Commonwealth.
18
6 Foreign arrangements
19
(1) For the purposes of achieving the objects of this Act, this Act has
20
provisions that apply to foreign arrangements.
21
(2) A
foreign arrangement
is an arrangement between:
22
(a) a State/Territory entity; and
23
(b) a foreign entity;
24
whether or not other entities are also a party to the arrangement.
25
7 What are State/Territory entities?
26
A
State/Territory entity
is any of the following entities:
27
(a) a State or Territory;
28
Preliminary
Part 1
Core provisions of this Act
Division 2
Section 8
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
9
(b) the government of a State or Territory;
1
(c) a Department or agency (however described) that is part of
2
an entity covered by paragraph (a) or (b);
3
(d) a body established for the purposes of local government by,
4
or under a law of a State or a Territory;
5
(e) a university established by, or under, a law of a State or a
6
Territory;
7
(f) an entity that is prescribed by the rules to be a State/Territory
8
entity;
9
but does not include:
10
(g) a corporation that operates on a commercial basis; or
11
(h) a hospital; or
12
(i) an entity that is prescribed by the rules as not being a
13
State/Territory entity.
14
Paragraphs (a) to (f) do not limit each other.
15
8 What are foreign entities?
16
(1) A
foreign entity
is any of the following entities:
17
(a) a foreign country;
18
(b) the national government of a foreign country;
19
(c) a Department or agency (however described) of an entity
20
covered by paragraph (a) or (b);
21
(d) a province, state, self-governing territory, region, local
22
council, municipality or other political subdivision (by
23
whatever name known) of a foreign country;
24
(e) a local council, municipality or other political subdivision
25
(by whatever name known) of an entity covered by
26
paragraph (d);
27
(f) the government of an entity covered by paragraph (d) or (e);
28
(g) a Department or agency (however described) of an entity
29
covered by paragraph (d), (e) or (f);
30
(h) an entity (other than a university) that:
31
(i) is an authority of an entity covered by paragraph (a),
32
(b), (d), (e) or (f); and
33
(ii) is established for a public purpose;
34
Part 1
Preliminary
Division 2
Core provisions of this Act
Section 9
10
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
(i) a university that:
1
(i) is located in a foreign country; and
2
(ii) does not have institutional autonomy (see
3
subsection (2));
4
(j) an entity that is external to Australia and is prescribed by the
5
rules to be a foreign entity;
6
but does not include:
7
(k) a corporation that operates on a commercial basis; or
8
(l) an entity that is prescribed by the rules as not being a foreign
9
entity.
10
Paragraphs (a) to (j) do not limit each other.
11
(2) For the purposes of subparagraph (1)(i)(ii), a university does not
12
have institutional autonomy if, and only if:
13
(a) the rules prescribe circumstances in which a university is
14
taken not to have institutional autonomy; and
15
(b) those circumstances exist in relation to the university.
16
9 What is an arrangement?
17
(1) An
arrangement
is any written arrangement, agreement, contract,
18
understanding or undertaking:
19
(a) whether or not it is legally binding; and
20
(b) whether or not it is made in Australia; and
21
(c) whether it is entered before, on or after the commencement
22
day.
23
(2) An arrangement is
legally binding
if any of the provisions of the
24
arrangement confer legal rights or impose legal obligations that are
25
legally enforceable under an Australian law or a foreign law.
26
10 Core foreign arrangements
27
(1) For the purposes of achieving the objects of this Act, this Act has
28
special provisions that apply to core foreign arrangements.
29
(2) A
core foreign arrangement
is an arrangement between:
30
Preliminary
Part 1
Core provisions of this Act
Division 2
Section 11
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
11
(a) a core State/Territory entity; and
1
(b) a core foreign entity;
2
whether or not other entities are also a party to the arrangement.
3
Note:
Core foreign arrangements are a particular subset of foreign
4
arrangements. There are special requirements for them because they
5
are more likely to affect Australia's foreign relations. Part 2, in
6
particular, has special rules about negotiating or entering core foreign
7
arrangements.
8
(3) A
core State/Territory entity
is an entity covered by
9
paragraph 7(a), (b) or (c) (even if the entity is also covered by
10
paragraph 7(d), (e) or (f)).
11
(4) A
core foreign entity
is:
12
(a) an entity covered by paragraph 8(1)(a), (b) or (c) (even if the
13
entity is also covered by paragraph 8(1)(d), (e), (f), (g), (h),
14
(i) or (j)); or
15
(b) an entity that is external to Australia and is prescribed by the
16
rules to be a core foreign entity;
17
but does not include a corporation that operates on a commercial
18
basis.
19
11 Application of this Act to subsidiary arrangements
20
For the purposes of achieving the objects of this Act, this Act also
21
has provisions dealing with subsidiary arrangements of foreign
22
arrangements.
23
12 What is a subsidiary arrangement?
24
(1) An arrangement is a
subsidiary arrangement
of a foreign
25
arrangement if:
26
(a) the arrangement is entered under the auspices of the foreign
27
arrangement; and
28
(b) the arrangement is not a foreign arrangement.
29
(2) An arrangement is entered
under the auspices
of a foreign
30
arrangement if the arrangement is entered at the same time, or
31
after, the foreign arrangement is entered, and:
32
Part 1
Preliminary
Division 2
Core provisions of this Act
Section 13
12
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
(a) the arrangement is entered for the purposes of implementing
1
the foreign arrangement, in any way and to any extent,
2
whether directly or indirectly, and whether or not:
3
(i) the arrangement refers to the foreign arrangement; or
4
(ii) the foreign arrangement contemplates the arrangement,
5
or arrangements of the same kind as the arrangement,
6
being entered; or
7
(b) both of the following are satisfied:
8
(i) the foreign arrangement contemplates the arrangement,
9
or arrangements of the same kind as the arrangement,
10
being entered (including, for example, by encouraging
11
or promoting the arrangement, or arrangements of that
12
kind, to be entered);
13
(ii) the arrangement is entered as a consequence of the
14
foreign arrangement, or of any actions taken under the
15
foreign arrangement; or
16
(c) the arrangement and the foreign arrangement have a
17
relationship of a kind prescribed by the rules.
18
Paragraphs (a), (b) and (c) do not limit each other.
19
(3) For the purposes of subsection (1), it does not matter whether the
20
parties were aware, when entering the subsidiary arrangement, that
21
the foreign arrangement:
22
(a) was entered in contravention of a provision of this Act; or
23
(b) was, because of the operation of a provision of this Act,
24
invalid, unenforceable, not in operation, terminated, required
25
to be terminated, or affected in any other way.
26
13 Application of this Act to variations of arrangements
27
General application to variations of arrangements
28
(1) This Act applies in relation to a variation of an arrangement
29
(whether the arrangement is made before, on or after the
30
commencement day) in the same way it applies in relation to an
31
arrangement.
32
Preliminary
Part 1
Core provisions of this Act
Division 2
Section 13
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
13
Example: Sections 16 and 23 require a core State/Territory entity to notify the
1
Minister about proposals to negotiate or enter a core foreign
2
arrangement. Because of this subsection, if the entity proposes to
3
negotiate a variation of a core foreign arrangement, or make a
4
variation of a core foreign arrangement, then the entity is required to
5
notify the Minister about that proposal.
6
(2) A
variation of an arrangement
is any written variation of an
7
arrangement:
8
(a) whether or not it is legally binding; and
9
(b) whether or not it is made in Australia;
10
and includes the exercise of an option to extend the arrangement.
11
Additional application for subsidiary arrangements
12
(3) Without limiting subsection (1), this Act applies as if a reference to
13
an arrangement that is entered under the auspices of a foreign
14
arrangement includes a reference to the following:
15
(a) a variation of an arrangement that is made under the auspices
16
of a foreign arrangement;
17
(b) an arrangement that is entered under the auspices of a
18
variation of a foreign arrangement.
19
Exemptions
20
(4) Without limiting subsection (1), the rules may prescribe that
21
variations of arrangements of a kind are exempt, even if the rules
22
do not prescribe that arrangements of that kind are exempt.
23
Exceptions
24
(5) Subsections (1), (3) and (4) do not apply in:
25
(a) subsection (2); and
26
(b) subsection 9(1) (which is the definition of
arrangement
); and
27
(c) Schedule 1 (which is about pre-existing foreign
28
arrangements).
29
Part 2
Negotiating and entering core foreign arrangements
Division 1
Simplified outline of this Part
Section 14
14
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Part 2--Negotiating and entering core foreign
1
arrangements
2
Division 1--Simplified outline of this Part
3
14 Simplified outline of this Part
4
A core State/Territory entity that proposes to negotiate or enter an
5
arrangement with a core foreign entity must notify the Minister
6
about that proposal. If the entity enters the arrangement, it must
7
also notify the Minister about that.
8
A core State/Territory entity must not negotiate an arrangement
9
with a core foreign entity without the Minister's approval (see
10
section 15). The entity also must not enter the arrangement without
11
the Minister's approval (see section 22).
12
The Minister must give approval if the Minister is satisfied that the
13
proposed negotiation or arrangement:
14
(a)
would not adversely affect, or would be unlikely to
15
adversely affect, Australia's foreign relations; and
16
(b)
would not be, or would be unlikely to be, inconsistent
17
with Australia's foreign policy.
18
Otherwise, the Minister must refuse to give approval.
19
However, if the Minister does not make a decision within 30 days
20
of being notified of the proposal to negotiate or enter the
21
arrangement, then the Minister is taken to have given approval for
22
the proposal.
23
If a core State/Territory entity enters an arrangement with a core
24
foreign entity without the Minister's approval, then the
25
arrangement will be invalid and unenforceable, be required to be
26
terminated, or not be in operation (depending on the nature of the
27
arrangement). The entities will also be prohibited from giving
28
Negotiating and entering core foreign arrangements
Part 2
Simplified outline of this Part
Division 1
Section 14
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
15
effect to the arrangement and from holding out that they are able to
1
give effect to the arrangement. These consequences will apply
2
automatically and without the involvement of the Minister (see
3
sections 30 to 32).
4
Subsidiary arrangements of the unlawfully entered arrangement
5
may also be affected (see Division 3 of Part 4).
6
Part 2
Negotiating and entering core foreign arrangements
Division 2
Negotiating core foreign arrangements
Section 15
16
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Division 2--Negotiating core foreign arrangements
1
15 Prohibition on negotiations without the Minister's approval
2
(1) A core State/Territory entity must not negotiate an arrangement
3
with a core foreign entity if the Minister's approval under
4
subsection 17(2) or 21(2) is not in force for the negotiation.
5
(2) Subsection (1) does not apply to an exempt arrangement.
6
16 Requirement to notify the Minister about negotiations
7
(1) If a core State/Territory entity proposes to negotiate an
8
arrangement with a core foreign entity, then it must give a notice to
9
the Minister in accordance with the requirements in subsection (2).
10
Note:
If the core State/Territory entity proposes to enter the arrangement, it
11
is required to give the Minister another notice about that (see
12
section 23).
13
(2) The notice must:
14
(a) be in writing; and
15
(b) be in the approved form (if any); and
16
(c) include any information prescribed by the rules; and
17
(d) be accompanied by any documents prescribed by the rules;
18
and
19
(e) be given in the approved way (if any).
20
(3) Subsection (1) does not apply to an exempt arrangement.
21
17 The Minister's decision about negotiations
22
Minister to make decision about negotiations
23
(1) If a core State/Territory entity gives the Minister a notice under
24
subsection 16(1) about a proposal to negotiate an arrangement with
25
a core foreign entity, then the Minister must, as soon as practicable,
26
make a decision under this section about the proposal.
27
Negotiating and entering core foreign arrangements
Part 2
Negotiating core foreign arrangements
Division 2
Section 17
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
17
Note:
However, if the Minister does not make a decision within 30 days of
1
being given the notice, then, under subsection 21(2), the Minister is
2
taken to have given approval for the negotiation proceeding. In
3
addition, the Minister will no longer be able to make a decision under
4
this section about the negotiation (see subsection 21(4)).
5
Approval decision
6
(2) If the Minister is satisfied that the proposed negotiation:
7
(a) would not adversely affect, or would be unlikely to adversely
8
affect, Australia's foreign relations; and
9
(b) would not be, or would be unlikely to be, inconsistent with
10
Australia's foreign policy;
11
then the Minister must give approval for the negotiation
12
proceeding.
13
Note:
The Minister must give the core State/Territory entity written notice of
14
the approval decision (see subsection 18(1)).
15
Refusal decision
16
(3) Otherwise, the Minister must refuse to give approval for the
17
negotiation proceeding.
18
Note:
The Minister must give the core State/Territory entity written notice of
19
the refusal decision (see section 20).
20
Revocation of approval decision
21
(4) The Minister may revoke an approval decision under
22
subsection (2) if the Minister ceases to be satisfied of the matters
23
on which the decision was made.
24
Note:
The Minister must give the core State/Territory entity written notice of
25
the revocation decision (see subsection 18(2)).
26
No revocation of refusal decision
27
(5) However, the Minister may not revoke a refusal decision under
28
subsection (3).
29
Note:
The Minister may make a new decision to give approval under this
30
section if the core State/Territory entity gives the Minister a new
31
notice under subsection 16(1).
32
Part 2
Negotiating and entering core foreign arrangements
Division 2
Negotiating core foreign arrangements
Section 18
18
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
18 Notices relating to the Minister's approval under subsection 17(2)
1
Notice of approval decision
2
(1) If the Minister makes a decision under subsection 17(2) to give
3
approval for a core State/Territory entity negotiating an
4
arrangement with a core foreign entity, then the Minister must, as
5
soon as practicable, give the core State/Territory entity a written
6
notice under this subsection that states:
7
(a) that the Minister gives approval for the negotiation to
8
proceed; and
9
(b) the day the approval comes into force.
10
Notice of decision to revoke approval decision
11
(2) If, under subsection 17(4), the Minister revokes the approval
12
decision under subsection 17(2), the Minister must, as soon as
13
practicable, give the core State/Territory entity a written notice that
14
states:
15
(a) that the Minister's approval is revoked; and
16
(b) the day the revocation comes into force; and
17
(c) that the Minister's approval is no longer in force from that
18
day.
19
19 When the Minister's approval under subsection 17(2) is in force
20
The Minister's approval for a core State/Territory entity to
21
negotiate an arrangement with a core foreign entity:
22
(a) comes into force on the day specified in the approval notice
23
given under subsection 18(1); and
24
(b) if, under subsection 17(4), the Minister revokes the approval
25
decision under subsection 17(2)--ceases to be in force on the
26
day specified in the revocation notice given under
27
subsection 18(2).
28
Negotiating and entering core foreign arrangements
Part 2
Negotiating core foreign arrangements
Division 2
Section 20
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
19
20 Notice of the Minister's refusal under subsection 17(3)
1
As soon as practicable after making a decision under
2
subsection 17(3) to refuse to give approval for a core
3
State/Territory entity to negotiate an arrangement with a core
4
foreign entity, the Minister must give the core State/Territory entity
5
a written notice of the decision.
6
21 When the Minister is taken to have given approval for
7
negotiations
8
(1) This section applies if:
9
(a) a core State/Territory entity gives the Minister a notice under
10
subsection 16(1) about its proposal to negotiate an
11
arrangement with a core foreign entity; and
12
(b) the Minister has not made a decision under subsection 17(2)
13
or (3) within the 30-day period that starts on the day the
14
notice is given.
15
(2) The Minister is taken to have given approval under this subsection
16
for the negotiation proceeding.
17
Note:
The Minister's approval under this subsection may not be revoked.
18
(3) The Minister's approval under subsection (2) comes into force
19
immediately after the end of the period referred to in
20
paragraph (1)(b).
21
(4) The Minister may no longer make a decision under section 17
22
about the negotiation.
23
Part 2
Negotiating and entering core foreign arrangements
Division 3
Entering core foreign arrangements
Section 22
20
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Division 3--Entering core foreign arrangements
1
22 Prohibition on entering core foreign arrangements
2
(1) A core State/Territory entity must not enter an arrangement with a
3
core foreign entity if the Minister's approval under
4
subsection 24(2) or 28(2) is not in force in relation to the
5
arrangement.
6
Note 1:
If the State/Territory entity enters the arrangement without the
7
Minister's approval, then section 30, 31 or 32 automatically applies to
8
the arrangement to make it invalid, unenforceable or not in operation,
9
or to require the State/Territory entity to terminate it. Those sections
10
also prohibit the parties from giving effect to the arrangement.
11
Note 2:
Similar consequences may apply to any subsidiary arrangements of
12
the arrangement (see sections 46 to 48).
13
(2) Subsection (1) does not apply to an exempt arrangement.
14
23 Requirement to notify the Minister before entering core foreign
15
arrangements
16
(1) If a core State/Territory entity proposes to enter an arrangement
17
with a core foreign entity, then it must give a notice to the Minister
18
in accordance with subsection (2) before entering the arrangement.
19
Note:
If the core State/Territory entity enters the arrangement, it is required
20
to give the Minister another notice about that (see section 29).
21
(2) The notice must:
22
(a) be in writing; and
23
(b) be in the approved form (if any); and
24
(c) be accompanied by a copy of the proposed arrangement; and
25
(d) specify the day it is proposed to enter the arrangement; and
26
(e) include any information prescribed by the rules; and
27
(f) be accompanied by any documents prescribed by the rules;
28
and
29
(g) be given in the approved way (if any).
30
Negotiating and entering core foreign arrangements
Part 2
Entering core foreign arrangements
Division 3
Section 24
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
21
(3) Subsection (1) does not apply to an exempt arrangement.
1
24 The Minister's decision about proposals to enter core foreign
2
arrangements
3
Minister must make decision about proposal
4
(1) If a core State/Territory entity gives the Minister a notice under
5
subsection 23(1) about its proposal to enter an arrangement with a
6
core foreign entity, then the Minister must, as soon as practicable,
7
make a decision under this section about the proposed
8
arrangement.
9
Note:
However, if the Minister does not make a decision within 30 days of
10
being given the notice, then, under subsection 28(2), the Minister is
11
taken to have given approval for the core State/Territory to enter the
12
proposed arrangement. In addition, the Minister will no longer be able
13
to make a decision under this section about the proposed arrangement
14
(see subsection 28(4)).
15
Approval decision
16
(2) If the Minister is satisfied that the proposed arrangement:
17
(a) would not adversely affect, or would be unlikely to adversely
18
affect, Australia's foreign relations; and
19
(b) would not be, or would be unlikely to be, inconsistent with
20
Australia's foreign policy;
21
then the Minister must give approval for the core State/Territory
22
entity to enter the arrangement as proposed.
23
Note:
The Minister must give the core State/Territory entity a written notice
24
of the approval decision (see subsection 25(1)).
25
Refusal decision
26
(3) Otherwise, the Minister must refuse to give approval for the core
27
State/Territory entity entering the arrangement.
28
Note:
The Minister must give the core State/Territory entity a written notice
29
of the refusal decision (see section 27).
30
Part 2
Negotiating and entering core foreign arrangements
Division 3
Entering core foreign arrangements
Section 25
22
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Revocation of approval decision
1
(4) The Minister may revoke a decision under subsection (2) if the
2
Minister ceases to be satisfied of the matters on which the decision
3
was made.
4
Note:
The Minister must give the core State/Territory entity a written notice
5
of the revocation decision (see subsection 25(2)).
6
(5) However, the Minister may not revoke a decision under
7
subsection (2) after the core State/Territory entity enters the
8
arrangement.
9
Note:
However, if after the arrangement is entered, the Minister is no longer
10
satisfied of the matters referred to in subsection (2), the Minister may
11
make a declaration under Part 4 about the arrangement (see
12
section 40).
13
No revocation of refusal decision
14
(6) The Minister may not revoke a refusal decision under
15
subsection (3).
16
Note:
The Minister may make a new decision to give approval under this
17
section if the core State/Territory entity gives the Minister a new
18
notice under subsection 23(1).
19
25 Notices relating to the Minister's approval under subsection 24(2)
20
Notice of approval decision
21
(1) If the Minister makes a decision under subsection 24(2) to give
22
approval for a core State/Territory entity entering an arrangement
23
with a core foreign entity, then the Minister must, as soon as
24
practicable, give the core State/Territory entity a written notice
25
under this subsection that states:
26
(a) that the Minister gives approval for the core State/Territory
27
entity entering the arrangement; and
28
(b) the day the approval comes into force.
29
Negotiating and entering core foreign arrangements
Part 2
Entering core foreign arrangements
Division 3
Section 26
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
23
Notice of revocation of approval decision
1
(2) If, under subsection 24(4), the Minister revokes an approval
2
decision under subsection 24(2), the Minister must, as soon as
3
practicable, give the core State/Territory entity a written notice that
4
states:
5
(a) that the Minister's approval is revoked; and
6
(b) the day the revocation comes into force; and
7
(c) that the Minister's approval is no longer in force from that
8
day.
9
26 When the Minister's approval under subsection 24(2) is in force
10
The Minister's approval for a core State/Territory entity entering
11
an arrangement with a core foreign entity:
12
(a) comes into force on the day specified in the approval notice
13
given under subsection 25(1); and
14
(b) if, under subsection 24(4), the Minister revokes the decision
15
under subsection 24(2)--ceases to be in force on the day
16
specified in the revocation notice given under
17
subsection 25(2).
18
27 Notice of the Minister's refusal under subsection 24(3)
19
As soon as practicable after making a decision under
20
subsection 24(3) to refuse to give approval for a core
21
State/Territory entity entering an arrangement with a core foreign
22
entity, the Minister must give the core State/Territory a written
23
notice that states:
24
(a) the Minister's decision; and
25
(b) if the Minister considers that changes could be made to the
26
arrangement that could allow the Minister to give approval
27
for the core State/Territory entity entering an arrangement
28
with the core foreign entity--the Minister's recommended
29
changes.
30
Note:
If the core State/Territory entity agrees to the Minister's
31
recommended changes, the entity could decide to give a new notice
32
Part 2
Negotiating and entering core foreign arrangements
Division 3
Entering core foreign arrangements
Section 28
24
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
under subsection 23(1) for a new arrangement with the core foreign
1
entity that incorporates those changes.
2
28 When the Minister is taken to have given approval for proposals
3
to enter core foreign arrangements
4
(1) This section applies if:
5
(a) a core State/Territory entity gives the Minister a notice under
6
subsection 23(1) about its proposal to enter an arrangement
7
with a core foreign entity; and
8
(b) the Minister has not made a decision under subsection 24(2)
9
or (3) within the 30-day period that starts on the day the
10
notice is given.
11
(2) The Minister is taken to have given approval under this subsection
12
for the core State/Territory entity to enter the arrangement as
13
proposed.
14
Note:
The Minister's approval under this subsection may not be revoked.
15
(3) The Minister's approval under subsection (2) comes into force
16
immediately after the end of the period referred to in
17
paragraph (1)(b).
18
(4) The Minister may no longer make a decision under section 24
19
about the proposed arrangement.
20
29 Requirement to notify the Minister about entering core foreign
21
arrangements
22
(1) If a core State/Territory entity enters an arrangement with a core
23
foreign entity, then the State/Territory entity must, within 14 days
24
or such longer period prescribed by the rules, give a notice to the
25
Minister in accordance with subsection (2).
26
(2) The notice must:
27
(a) be in writing; and
28
(b) be accompanied by a copy of the arrangement; and
29
(c) include any information prescribed by the rules; and
30
Negotiating and entering core foreign arrangements
Part 2
Entering core foreign arrangements
Division 3
Section 29
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
25
(d) be accompanied by any other documents prescribed by the
1
rules.
2
(3) Subsection (1) does not apply to an exempt arrangement.
3
Part 2
Negotiating and entering core foreign arrangements
Division 4
Consequences of unlawfully entering core foreign arrangements
Section 30
26
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Division 4--Consequences of unlawfully entering core
1
foreign arrangements
2
Subdivision A--Effect on legally binding arrangements
3
30 Arrangements that purport to be legally binding under
4
Australian law
5
(1) If:
6
(a) a core State/Territory entity enters an arrangement with a
7
core foreign entity in contravention of subsection 22(1); and
8
(b) the arrangement purports to be legally binding under an
9
Australian law;
10
then this section applies to the arrangement.
11
(2) The arrangement is, and is taken to have always been, invalid and
12
unenforceable.
13
(3) The core State/Territory entity must:
14
(a) within 14 days, or such longer period (if any) prescribed by
15
the rules, notify the core foreign entity that:
16
(i) this section applies to the arrangement; and
17
(ii) the arrangement is, and is taken to have always been,
18
invalid and unenforceable; and
19
(b) as soon as practicable after it has complied with
20
paragraph (a), notify the Minister, in writing, of its
21
compliance with that paragraph.
22
(4) The core State/Territory entity must not, at any time:
23
(a) give effect to the arrangement; or
24
(b) hold out, or conduct itself on the basis, that:
25
(i) it can give effect to the arrangement; or
26
(ii) the arrangement is valid or enforceable.
27
(5) The core foreign entity must not, from the time it is notified under
28
subsection (3) that this section applies to the arrangement:
29
Negotiating and entering core foreign arrangements
Part 2
Consequences of unlawfully entering core foreign arrangements
Division 4
Section 31
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
27
(a) give effect to the arrangement in Australia; or
1
(b) hold out in Australia, or conduct itself in Australia on the
2
basis, that:
3
(i) it can give effect to the arrangement; or
4
(ii) the arrangement is valid or enforceable.
5
31 Arrangements that are legally binding under foreign law
6
(1) If:
7
(a) a core State/Territory entity enters an arrangement with a
8
core foreign entity in contravention of subsection 22(1); and
9
(b) the arrangement is legally binding under a foreign law;
10
then this section applies to the arrangement.
11
(2) After entering the arrangement, the core State/Territory entity
12
must:
13
(a) within 14 days, or such longer period (if any) prescribed by
14
the rules:
15
(i) notify the core foreign entity that this section applies to
16
the arrangement; and
17
(ii) take steps to terminate the arrangement in accordance
18
with the foreign law; and
19
(b) as soon as practicable after it has complied with
20
paragraph (a), notify the Minister, in writing, of its
21
compliance with that paragraph.
22
(3) The core State/Territory entity must not, at any time:
23
(a) give effect to the arrangement; or
24
(b) hold out, or conduct itself on the basis, that it can give effect
25
to the arrangement.
26
(4) The core foreign entity must not, from the time it is notified under
27
subsection (2) that this section applies to the arrangement:
28
(a) give effect to the arrangement in Australia; or
29
(b) hold out in Australia, or conduct itself in Australia on the
30
basis, that it can give effect to the arrangement.
31
Part 2
Negotiating and entering core foreign arrangements
Division 4
Consequences of unlawfully entering core foreign arrangements
Section 32
28
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Subdivision B--Effect on non-legally binding arrangements
1
32 Arrangements that are not legally binding
2
(1) If:
3
(a) a core State/Territory entity enters an arrangement with a
4
core foreign entity in contravention of subsection 22(1); and
5
(b) the arrangement is not legally binding;
6
then this section applies to the arrangement.
7
(2) The arrangement is not, and is taken never to have been, in
8
operation.
9
(3) After entering the arrangement, the core State/Territory entity
10
must:
11
(a) within 14 days, or such longer period (if any) prescribed by
12
the rules, notify the core foreign entity that:
13
(i) this section applies to the arrangement; and
14
(ii) the arrangement is not, and is taken never to have been,
15
in operation; and
16
(b) as soon as practicable after it has complied with
17
paragraph (a), notify the Minister, in writing, of its
18
compliance with that paragraph.
19
(4) The core State/Territory entity must not, at any time:
20
(a) give effect to the arrangement; or
21
(b) hold out, or conduct itself on the basis, that:
22
(i) it can give effect to the arrangement; or
23
(ii) the arrangement is in operation.
24
(5) The core foreign entity must not, from the time it is notified under
25
subsection (3) that this section applies to the arrangement:
26
(a) give effect to the arrangement in Australia; or
27
(b) hold out in Australia, or conduct itself in Australia on the
28
basis, that:
29
(i) it can give effect to the arrangement; or
30
(ii) the arrangement is in operation.
31
Entering non-core foreign arrangements
Part 3
Simplified outline of this Part
Division 1
Section 33
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
29
Part 3--Entering non-core foreign arrangements
1
Division 1--Simplified outline of this Part
2
33 Simplified outline of this Part
3
A State/Territory entity that proposes to enter a non-core
4
arrangement must notify the Minister about that proposal. If the
5
entity enters the arrangement, it must also notify the Minister about
6
that.
7
The Minister may make a declaration prohibiting a State/Territory
8
entity from negotiating or entering a non-core arrangement.
9
Broadly, the Minister may only make such a declaration if the
10
Minister is satisfied that the negotiation or arrangement:
11
(a)
would adversely affect, or would be likely to adversely
12
affect, Australia's foreign relations; or
13
(b)
would be, or would be likely to be, inconsistent with
14
Australia's foreign policy.
15
There are particular matters that the Minister must take into
16
account when making a decision to make a declaration (see
17
section 51).
18
If a State/Territory entity enters a non-core arrangement with a
19
foreign entity in contravention of a declaration by the Minister,
20
then that will be a ground on which the Minister may make a
21
declaration under Part 4 about the arrangement (which could result
22
in the arrangement being invalid and unenforceable, required to be
23
terminated, or not in operation (depending on the nature of the
24
arrangement).
25
Subsidiary arrangements of the unlawfully entered arrangement
26
may also be affected (see Division 3 of Part 4).
27
Part 3
Entering non-core foreign arrangements
Division 2
Entering non-core foreign arrangements
Section 34
30
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Division 2--Entering non-core foreign arrangements
1
Subdivision A--Requirement to notify the Minister about
2
proposals to enter non-core foreign arrangements
3
34 Requirement to notify the Minister about proposals to enter
4
non-core foreign arrangements
5
(1) If:
6
(a) a State/Territory entity proposes to enter an arrangement with
7
a foreign entity; and
8
(b) the arrangement is a non-core foreign arrangement;
9
then it must give a notice to the Minister in accordance with
10
subsection (2).
11
Note:
If the State/Territory entity enters the arrangement, it is required to
12
give the Minister another notice about that (see section 38).
13
(2) The notice must:
14
(a) be in writing; and
15
(b) be in the approved form (if any); and
16
(c) be accompanied by a copy of the proposed arrangement; and
17
(d) include any information prescribed by the rules; and
18
(e) be accompanied by any documents prescribed by the rules;
19
and
20
(f) be given in the approved way (if any); and
21
(g) be given in the period (if any) prescribed by the rules.
22
(3) Subsection (1) does not apply to an exempt arrangement.
23
Entering non-core foreign arrangements
Part 3
Entering non-core foreign arrangements
Division 2
Section 35
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
31
Subdivision B--Declarations about negotiations or proposals to
1
enter non-core foreign arrangements
2
35 Declarations about negotiating non-core foreign arrangements
3
When Minister may make declaration
4
(1) The Minister may make a declaration under subsection (2) if:
5
(a) the Minister becomes aware that a State/Territory entity
6
proposes to negotiate, or is negotiating, an arrangement with
7
a foreign entity; and
8
(b) the arrangement is a non-core foreign arrangement; and
9
(c) if the State/Territory entity is proposing to negotiate the
10
arrangement--the Minister is satisfied that the proposed
11
negotiation:
12
(i) would adversely affect, or would be likely to adversely
13
affect, Australia's foreign relations; or
14
(ii) would be, or would be likely to be, inconsistent with
15
Australia's foreign policy; and
16
(d) if the State/Territory entity is negotiating the arrangement--
17
the Minister is satisfied that the negotiation:
18
(i) adversely affects, or is likely to adversely affect,
19
Australia's foreign relations; or
20
(ii) is, or is likely to be, inconsistent with Australia's
21
foreign policy.
22
Note 1:
The Minister must take into account certain matters when making a
23
decision to make a declaration under subsection (2) (see section 51).
24
Note 2:
Section 37 deals with general matters about the declaration (such as
25
revocation and giving notice to the State/Territory entity).
26
Declaration not to negotiate
27
(2) The Minister may make a written declaration that the
28
State/Territory entity must not start, or continue, to negotiate the
29
arrangement.
30
Part 3
Entering non-core foreign arrangements
Division 2
Entering non-core foreign arrangements
Section 36
32
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Compliance with declaration
1
(3) The State/Territory entity must comply with the declaration.
2
Matters relating to declaration
3
(4) A declaration made under subsection (2) is not a legislative
4
instrument.
5
36 Declarations about proposals to enter non-core foreign
6
arrangements
7
When Minister may make declaration
8
(1) The Minister may make a declaration under subsection (2) if:
9
(a) a State/Territory entity proposes to enter an arrangement with
10
a foreign entity (whether or not notice of the proposal has
11
been given to the Minister under section 34); and
12
(b) the arrangement is a non-core foreign arrangement; and
13
(c) the Minister is satisfied that the proposed arrangement:
14
(i) would adversely affect, or would be likely to adversely
15
affect, Australia's foreign relations; or
16
(ii) would be, or would be likely to be, inconsistent with
17
Australia's foreign policy.
18
Note 1:
The Minister must take into account certain matters when making a
19
decision to make a declaration under subsection (2) (see section 51).
20
Note 2:
Section 37 deals with general matters about the declaration (such as
21
revocation and giving notice to the State/Territory entity).
22
Declaration not to enter arrangement
23
(2) The Minister may make a written declaration that the
24
State/Territory entity must not enter the arrangement.
25
Compliance with declaration
26
(3) The State/Territory entity must comply with the declaration.
27
Note 1:
If the State/Territory entity enters the arrangement in contravention of
28
the declaration, then the Minister may make a declaration under
29
Entering non-core foreign arrangements
Part 3
Entering non-core foreign arrangements
Division 2
Section 37
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
33
section 41, 42 or 43 in relation to the arrangement. If the Minister
1
does so, then, to the extent specified in the declaration, the
2
arrangement will become invalid, unenforceable or not in operation,
3
or be required to be varied or terminated. The declaration may also
4
prohibit the State/Territory entity and foreign entity from giving effect
5
to the arrangement or from holding out that they are able to give effect
6
to the arrangement.
7
Note 2:
In addition, the Minister may make a similar declaration in relation to
8
any subsidiary arrangements of the arrangement (see sections 46 to
9
48).
10
Matters relating to declaration
11
(4) A declaration made under subsection (2) is not a legislative
12
instrument.
13
Subdivision C--Matters relating to declarations under this Part
14
37 Matters relating to declarations under this Part
15
When this section applies
16
(1) This section applies if the Minister makes a declaration under
17
subsection 35(2) or 36(2) in relation to negotiations or proposals to
18
enter an arrangement between a State/Territory entity and a foreign
19
entity.
20
When declaration comes into force
21
(2) The declaration must specify the day the declaration comes into
22
force.
23
Revoking declarations
24
(3) The Minister may revoke the declaration if the Minister ceases to
25
be satisfied of the matters on which the declaration was made.
26
Part 3
Entering non-core foreign arrangements
Division 2
Entering non-core foreign arrangements
Section 38
34
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Notice of declaration
1
(4) The Minister must, as soon as practicable after making the
2
declaration, give the State/Territory entity a written notice under
3
this subsection that:
4
(a) states the Minister's decision to make the declaration; and
5
(b) is accompanied by a copy of the declaration; and
6
(c) complies with any requirements prescribed by the rules.
7
Notice of revocation of declaration
8
(5) If, under subsection (3), the Minister revokes the declaration, then
9
the Minister must, as soon as practicable, give the State/Territory
10
entity a written notice that states that the declaration is revoked.
11
Subdivision D--Requirement to notify the Minister about
12
entering non-core foreign arrangements
13
38 Requirement to notify the Minister about entering non-core
14
foreign arrangements
15
(1) If:
16
(a) a State/Territory entity enters an arrangement with a foreign
17
entity; and
18
(b) the arrangement is a non-core foreign arrangement;
19
then the State/Territory entity must, within 14 days or such longer
20
period prescribed by the rules, give a notice to the Minister in
21
accordance with subsection (2).
22
(2) The notice must:
23
(a) be in writing; and
24
(b) be accompanied by a copy of the arrangement; and
25
(c) include any information prescribed by the rules; and
26
(d) be accompanied by any documents prescribed by the rules.
27
(3) Subsection (1) does not apply to an exempt arrangement.
28
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
Simplified outline of this Part
Division 1
Section 39
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
35
Part 4--The Minister's powers to make
1
declarations about foreign arrangements,
2
and subsidiary arrangements, that are in
3
operation
4
Division 1--Simplified outline of this Part
5
39 Simplified outline of this Part
6
Declarations in relation to foreign arrangements
7
Under this Part, the Minister may make a declaration that a foreign
8
arrangement between a State/Territory entity and a foreign entity is
9
invalid and unenforceable, required to be varied or terminated, or
10
not in operation (depending on the nature of the arrangement), to
11
the extent specified in the declaration. If the Minister makes such a
12
declaration, the entities will also be prohibited from giving effect
13
to the arrangement and from holding out that they are able to give
14
effect to the arrangement, to the extent specified in the declaration.
15
There are 2 situations in which the Minister may make the
16
declaration. The first is where the Minister is satisfied that the
17
arrangement:
18
(a)
adversely affects, or is likely to adversely affect,
19
Australia's foreign relations; or
20
(b)
is, or is likely to be, inconsistent with Australia's foreign
21
policy.
22
The second is where the arrangement was entered in contravention
23
of a declaration made by the Minister under Part 3 (which is about
24
non-core arrangements).
25
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 1
Simplified outline of this Part
Section 39
36
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
There are particular matters that the Minister must take into
1
account when making a decision to make a declaration about a
2
foreign arrangement (see section 51).
3
Declarations in relation to subsidiary arrangements
4
Under this Part, the Minister may also make a declaration that a
5
subsidiary arrangement of a foreign arrangement is invalid and
6
unenforceable, required to be varied or terminated, or not in
7
operation (depending on the nature of the subsidiary arrangement),
8
to the extent specified in the declaration. If the Minister makes
9
such a declaration, the parties to the subsidiary arrangement will be
10
prohibited from giving effect to the arrangement and from holding
11
out that they are able to give effect to the arrangement, to the
12
extent specified in the declaration.
13
Two conditions must be satisfied before the Minister may make
14
such a declaration in relation to a subsidiary arrangement.
15
The first is that any of the following apply to the foreign
16
arrangement:
17
(a)
the Minister has made a declaration that the foreign
18
arrangement is invalid and unenforceable, required to be
19
varied or terminated, or not in operation (depending on
20
the nature of the foreign arrangement);
21
(b)
the foreign arrangement was entered in contravention of
22
subsection 22(1) or 36(3);
23
(c)
clause 4, 5 or 6 of Schedule 1 applies to the foreign
24
arrangement.
25
The second is that the Minister is satisfied that the subsidiary
26
arrangement:
27
(a)
adversely affects, or is likely to adversely affect,
28
Australia's foreign relations; or
29
(b)
is, or is likely to be, inconsistent with Australia's foreign
30
policy.
31
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
Simplified outline of this Part
Division 1
Section 39
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
37
There are particular matters that the Minister must take into
1
account when making a decision to make a declaration about a
2
subsidiary arrangement (see section 51).
3
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 2
The Minister's power to make declarations about foreign arrangements that
are in operation
Section 40
38
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Division 2--The Minister's power to make declarations
1
about foreign arrangements that are in operation
2
Subdivision A--When the Minister may make declarations
3
about foreign arrangements
4
40 When the Minister may make declarations under this Division
5
When the Minister may make declaration
6
(1) The Minister may make a declaration under this Division in
7
relation to an arrangement between a State/Territory entity and a
8
foreign entity if:
9
(a) the Minister is satisfied that the arrangement:
10
(i) adversely affects, or is likely to adversely affect,
11
Australia's foreign relations; or
12
(ii) is, or is likely to be, inconsistent with Australia's
13
foreign policy; or
14
(b) the State/Territory entity entered the arrangement in
15
contravention of subsection 36(3).
16
Note:
The Minister must take into account certain matters when making a
17
decision to make a declaration under this Division (see section 51).
18
Matters that are not relevant
19
(2) The Minister may make the declaration, irrespective of whether:
20
(a) the arrangement was entered before or after the
21
commencement day; or
22
(b) the Minister previously decided:
23
(i) not to make a declaration under this Division in relation
24
to the arrangement; or
25
(ii) to make a different declaration under this Division in
26
relation to the arrangement; or
27
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
The Minister's power to make declarations about foreign arrangements that are in
operation
Division 2
Section 41
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
39
(c) if the arrangement is a core foreign arrangement--the
1
Minister gave approval under subsection 24(2) or 28(2) for
2
the core State/Territory entity to enter the arrangement; or
3
(d) if the arrangement is a non-core foreign arrangement--the
4
Minister did not make a declaration under subsection 36(2)
5
prohibiting a State/Territory entity entering the arrangement.
6
Subdivision B--Declarations about legally binding foreign
7
arrangements
8
41 Foreign arrangements that are legally binding under Australian
9
law
10
When Minister may make declaration
11
(1) The Minister may make a declaration under subsection (2) or (3) in
12
relation to an arrangement between a State/Territory entity and a
13
foreign entity if:
14
(a) subsection 40(1) is satisfied in relation to the arrangement;
15
and
16
(b) apart from the declaration, the arrangement would be legally
17
binding under an Australian law.
18
Note 1:
The Minister must take into account certain matters when making a
19
decision to make a declaration under subsection (2) or (3) (see
20
section 51).
21
Note 2:
Section 44 deals with general matters about the declaration (such as
22
revocation and giving notice to the State/Territory entity).
23
Declaration that arrangement is invalid and unenforceable
24
(2) The Minister may make a written declaration that:
25
(a) the arrangement:
26
(i) is invalid and unenforceable to the specified extent and
27
from the specified day; or
28
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 2
The Minister's power to make declarations about foreign arrangements that
are in operation
Section 41
40
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
(ii) if the arrangement was entered in contravention of
1
subsection 36(3)--is, and is taken to have always been,
2
invalid and unenforceable to the specified extent; and
3
(b) the State/Territory entity must, within the specified period,
4
notify the foreign entity that:
5
(i) a declaration is in force under this subsection in relation
6
to the arrangement; and
7
(ii) the arrangement is invalid and unenforceable, to the
8
specified extent;
9
and give the foreign entity a copy of the declaration; and
10
(c) the State/Territory entity must, as soon as practicable after
11
complying with paragraph (b), notify the Minister, in writing,
12
of its compliance with that paragraph; and
13
(d) the State/Territory entity must not, to the specified extent and
14
from the specified day:
15
(i) give effect to the arrangement; or
16
(ii) hold out, or conduct itself on the basis, that it can give
17
effect to the arrangement; or
18
(iii) hold out, or conduct itself on the basis, that the
19
arrangement is valid or enforceable; and
20
(e) the foreign entity must not, to the specified extent and from
21
the specified day:
22
(i) give effect to the arrangement in Australia; or
23
(ii) hold out in Australia, or conduct itself in Australia on
24
the basis, that it can give effect to the arrangement; or
25
(iii) hold out in Australia, or conduct itself in Australia on
26
the basis, that the arrangement is valid or enforceable.
27
The declaration in relation to paragraph (a) has effect accordingly.
28
Declaration requiring variation or termination of arrangement
29
(3) The Minister may make a written declaration that:
30
(a) the State/Territory entity must, within the specified period,
31
notify the foreign entity that:
32
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
The Minister's power to make declarations about foreign arrangements that are in
operation
Division 2
Section 41
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
41
(i) a declaration is in force under this subsection in relation
1
to the arrangement; and
2
(ii) the arrangement is required to be varied or terminated in
3
accordance with any specified requirements;
4
and give the foreign entity a copy of the declaration; and
5
(b) the State/Territory entity must, in accordance with any
6
specified requirements, vary or terminate the arrangement;
7
and
8
(c) the State/Territory entity must, as soon as practicable after
9
complying with paragraph (a) or (b), notify the Minister, in
10
writing, of its compliance with that paragraph; and
11
(d) the State/Territory entity must not, to the specified extent and
12
from the specified day:
13
(i) give effect to the arrangement; or
14
(ii) hold out, or conduct itself on the basis, that it can give
15
effect to the arrangement; and
16
(e) the foreign entity must not, to the specified extent and from
17
the specified day:
18
(i) give effect to the arrangement in Australia; or
19
(ii) hold out in Australia, or conduct itself in Australia on
20
the basis, that it can give effect to the arrangement.
21
Compliance with declaration
22
(4) The State/Territory entity must comply with the declaration to the
23
extent that it applies to the entity.
24
(5) The foreign entity must comply with the declaration:
25
(a) if it has been a given a copy of the declaration as required by
26
paragraph (2)(b) or (3)(a); and
27
(b) to the extent that the declaration applies to the entity.
28
Matters relating to declaration
29
(6) For the purposes of paragraph (3)(b), the declaration may require
30
that the arrangement be varied or terminated:
31
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 2
The Minister's power to make declarations about foreign arrangements that
are in operation
Section 42
42
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
(a) in accordance with the Australian law; or
1
(b) in accordance with any other requirements; or
2
(c) in accordance with both the Australian law and other
3
requirements.
4
(7) A declaration made under subsection (2) or (3) is not a legislative
5
instrument.
6
42 Foreign arrangements that are legally binding under foreign law
7
When Minister may make declaration
8
(1) The Minister may make a declaration under subsection (2) in
9
relation to an arrangement between a State/Territory entity and a
10
foreign entity if:
11
(a) subsection 40(1) is satisfied in relation to the arrangement;
12
and
13
(b) the arrangement is legally binding under a foreign law.
14
Note 1:
The Minister must take into account certain matters when making a
15
decision to make a declaration under subsection (2) (see section 51).
16
Note 2:
Section 44 deals with general matters about the declaration (such as
17
revocation and giving notice to the State/Territory entity).
18
Declaration requiring variation or termination of arrangement
19
(2) The Minister may make a written declaration that:
20
(a) the State/Territory entity must, within the specified period,
21
notify the foreign entity that:
22
(i) a declaration is in force under this subsection in relation
23
to the arrangement; and
24
(ii) the arrangement is required to be varied or terminated in
25
accordance with any specified requirements;
26
and give the foreign entity a copy of the declaration; and
27
(b) the State/Territory entity must, in accordance with any
28
specified requirements, vary or terminate the arrangement;
29
and
30
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
The Minister's power to make declarations about foreign arrangements that are in
operation
Division 2
Section 42
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
43
(c) the State/Territory entity must, as soon as practicable after
1
complying with paragraph (a) or (b), notify the Minister, in
2
writing, of its compliance with that paragraph; and
3
(d) the State/Territory entity must not, to the specified extent and
4
from the specified day:
5
(i) give effect to the arrangement; or
6
(ii) hold out, or conduct itself on the basis, that it can give
7
effect to the arrangement; and
8
(e) the foreign entity must not, to the specified extent and from
9
the specified day:
10
(i) give effect to the arrangement in Australia; or
11
(ii) hold out in Australia, or conduct itself in Australia on
12
the basis, that it can give effect to the arrangement.
13
Compliance with declaration
14
(3) The State/Territory entity must comply with the declaration to the
15
extent that it applies to the entity.
16
(4) The foreign entity must comply with the declaration:
17
(a) if it has been a given a copy of the declaration as required by
18
paragraph (2)(a); and
19
(b) to the extent that the declaration applies to the entity.
20
Matters relating to declaration
21
(5) For the purposes of paragraph (2)(b), the declaration may require
22
that the arrangement be varied or terminated:
23
(a) in accordance with the foreign law; or
24
(b) in accordance with any other requirements; or
25
(c) in accordance with both the foreign law and other
26
requirements.
27
(6) A declaration made under subsection (2) is not a legislative
28
instrument.
29
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 2
The Minister's power to make declarations about foreign arrangements that
are in operation
Section 43
44
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Subdivision C--Declarations about non-legally binding foreign
1
arrangements
2
43 Foreign arrangements that are not legally binding
3
When Minister may make declaration
4
(1) The Minister may make a declaration under subsection (2) or (3) in
5
relation to an arrangement between a State/Territory entity and a
6
foreign entity if:
7
(a) subsection 40(1) is satisfied in relation to the arrangement;
8
and
9
(b) the arrangement is not legally binding.
10
Note 1:
The Minister must take into account certain matters when making a
11
decision to make a declaration under subsection (2) or (3) (see
12
section 51).
13
Note 2:
Section 44 deals with general matters about the declaration (such as
14
revocation and giving notice to the State/Territory entity).
15
Declaration that arrangement is not in operation
16
(2) The Minister may make a written declaration that:
17
(a) the arrangement:
18
(i) is not in operation, to the specified extent and from the
19
specified day; or
20
(ii) if the arrangement was entered in contravention of
21
subsection 36(3)--is not, and is taken never to have
22
been, in operation to the specified extent; and
23
(b) the State/Territory entity must, within the specified period
24
notify the foreign entity that:
25
(i) a declaration is in force under this subsection in relation
26
to the arrangement; and
27
(ii) the arrangement is not in operation, to the specified
28
extent;
29
and give the foreign entity a copy of the declaration; and
30
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
The Minister's power to make declarations about foreign arrangements that are in
operation
Division 2
Section 43
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
45
(c) the State/Territory entity must, as soon as practicable after
1
complying with paragraph (b), notify the Minister, in writing,
2
of its compliance with that paragraph; and
3
(d) the State/Territory entity must not, to the specified extent and
4
from the specified day:
5
(i) give effect to the arrangement; or
6
(ii) hold out, or conduct itself on the basis, that it can give
7
effect to the arrangement; or
8
(iii) hold out, or conduct itself on the basis, that the
9
arrangement is in operation; and
10
(e) the foreign entity must not, to the specified extent and from
11
the specified day:
12
(i) give effect to the arrangement in Australia; or
13
(ii) hold out in Australia, or conduct itself in Australia on
14
the basis, that it can give effect to the arrangement; or
15
(iii) hold out in Australia, or conduct itself in Australia on
16
the basis, that the arrangement is in operation.
17
The declaration in relation to paragraph (a) has effect accordingly.
18
Declaration requiring variation or termination of arrangement
19
(3) The Minister may make a written declaration that:
20
(a) the State/Territory entity must, within the specified period,
21
notify the foreign entity that:
22
(i) a declaration is in force under this subsection in relation
23
to the arrangement; and
24
(ii) the arrangement is required to be varied or terminated in
25
accordance with any specified requirements;
26
and give the foreign entity a copy of the declaration; and
27
(b) the State/Territory entity must, in accordance with any
28
specified requirements, vary or terminate the arrangement;
29
and
30
(c) the State/Territory entity must, as soon as practicable after
31
complying with paragraph (a) or (b), notify the Minister, in
32
writing, of its compliance with that paragraph; and
33
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 2
The Minister's power to make declarations about foreign arrangements that
are in operation
Section 43
46
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
(d) the State/Territory entity must not, to the specified extent and
1
from the specified day:
2
(i) give effect to the arrangement; or
3
(ii) hold out, or conduct itself on the basis, that it can give
4
effect to the arrangement; and
5
(e) the foreign entity must not, to the specified extent and from
6
the specified day:
7
(i) give effect to the arrangement in Australia; or
8
(ii) hold out in Australia, or conduct itself in Australia on
9
the basis, that it can give effect to the arrangement.
10
Compliance with declaration
11
(4) The State/Territory entity must comply with the declaration to the
12
extent that it applies to the entity.
13
(5) The foreign entity must comply with the declaration:
14
(a) if it has been a given a copy of the declaration as required by
15
paragraph (2)(b) or (3)(a); and
16
(b) to the extent that the declaration applies to the entity.
17
Matters relating to declaration
18
(6) For the purposes of paragraph (3)(b), the declaration may require
19
that the arrangement be varied or terminated:
20
(a) in accordance with any variation or termination clause of the
21
arrangement; or
22
(b) in accordance with any other requirements; or
23
(c) in accordance with any variation or termination clause and
24
other requirements.
25
(7) A declaration made under subsection (2) or (3) is not a legislative
26
instrument.
27
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
The Minister's power to make declarations about foreign arrangements that are in
operation
Division 2
Section 44
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
47
Subdivision D--Matters relating to declarations under this
1
Division
2
44 Matters relating to declarations about foreign arrangements
3
When this section applies
4
(1) This section applies if the Minister makes a declaration under
5
subsection 41(2) or (3), 42(2) or 43(2) or (3) in relation to an
6
arrangement between a State/Territory entity and a foreign entity.
7
When declaration comes into force
8
(2) The declaration must specify the day the declaration comes into
9
force.
10
Revoking declaration
11
(3) The Minister may revoke the declaration if the Minister ceases to
12
be satisfied of the matters on which the declaration was made.
13
(4) However, the Minister may not revoke the declaration if it has
14
already come into force.
15
(5) If the Minister revokes the declaration, then the Minister must
16
revoke any declaration made under subsection 46(2) or (3), 47(2)
17
or 48(2) or (3) in relation to a subsidiary arrangement of the
18
arrangement.
19
Notice of declaration
20
(6) The Minister must, as soon as practicable after making the
21
declaration, give the State/Territory entity a written notice under
22
this subsection that:
23
(a) states the Minister's decision to make the declaration; and
24
(b) is accompanied by a copy of the declaration; and
25
(c) complies with any requirements prescribed by the rules.
26
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 2
The Minister's power to make declarations about foreign arrangements that
are in operation
Section 44
48
Australia's Foreign Relations (State and Territory Arrangements) Bill
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No. , 2020
Notice of revocation of declaration
1
(7) If, under subsection (3), the Minister revokes the declaration, then
2
the Minister must, as soon as practicable, give the State/Territory
3
entity a written notice that states that the declaration is revoked.
4
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
The Minister's power to make declarations about subsidiary arrangements that are in
operation
Division 3
Section 45
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
49
Division 3--The Minister's power to make declarations
1
about subsidiary arrangements that are in
2
operation
3
Subdivision A--When the Minister may make declarations
4
about subsidiary arrangements
5
45 When the Minister may make declarations under this Division
6
When the Minister may make declaration
7
(1) The Minister may make a declaration under this Division in
8
relation to a subsidiary arrangement of a foreign arrangement if:
9
(a) any of the following apply to the foreign arrangement:
10
(i) a declaration is in force under subsection 41(2) or (3),
11
42(2) or 43(2) or (3) in relation to the foreign
12
arrangement;
13
(ii) the foreign arrangement was entered in contravention of
14
subsection 22(1) or 36(3);
15
(iii) clause 4, 5 or 6 of Schedule 1 applies to the foreign
16
arrangement; and
17
(b) the Minister is satisfied that the subsidiary arrangement:
18
(i) adversely affects, or is likely to adversely affect,
19
Australia's foreign relations; or
20
(ii) is, or is likely to be, inconsistent with Australia's
21
foreign policy.
22
Note:
The Minister must take into account certain matters when making a
23
decision to make a declaration under this Division (see section 51).
24
Matters that are not relevant
25
(2) The Minister may make the declaration, irrespective of whether:
26
(a) the subsidiary arrangement was entered before or after the
27
commencement day; or
28
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 3
The Minister's power to make declarations about subsidiary arrangements
that are in operation
Section 46
50
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(b) the Minister previously decided:
1
(i) not to make a declaration under this Division in relation
2
to the subsidiary arrangement; or
3
(ii) to make a different declaration under this Division in
4
relation to the subsidiary arrangement.
5
Subdivision B--Declarations about legally binding subsidiary
6
arrangements
7
46 Subsidiary arrangements that are legally binding under
8
Australian law
9
When the Minister may make declaration
10
(1) The Minister may make a declaration under subsection (2) or (3) in
11
relation to a subsidiary arrangement of a foreign arrangement if:
12
(a) subsection 45(1) is satisfied in relation to the subsidiary
13
arrangement; and
14
(b) apart from the declaration, the subsidiary arrangement would
15
be legally binding under an Australian law.
16
Note 1:
The Minister must take into account certain matters when making a
17
decision to make a declaration under subsection (2) or (3) (see
18
section 51).
19
Note 2:
Section 49 deals with general matters about the declaration (such as
20
revocation and giving notice to the parties).
21
Declaration that arrangement is invalid and unenforceable
22
(2) The Minister may make a written declaration that:
23
(a) the subsidiary arrangement:
24
(i) is invalid and unenforceable to the specified extent and
25
from the specified day; or
26
(ii) if the foreign arrangement was entered in contravention
27
of subsection 22(1) or 36(3)--is, and is taken to have
28
always been, invalid and unenforceable to the specified
29
extent; and
30
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
The Minister's power to make declarations about subsidiary arrangements that are in
operation
Division 3
Section 46
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
51
(b) each party to the subsidiary arrangement that is a regulated
1
Australian party must not, to the specified extent and from
2
the specified day:
3
(i) give effect to the arrangement; or
4
(ii) hold out, or conduct itself on the basis, that it can give
5
effect to the arrangement; or
6
(iii) hold out, or conduct itself on the basis, that the
7
arrangement is valid or enforceable; and
8
(c) each other party to the subsidiary arrangement must not, to
9
the specified extent and from the specified day:
10
(i) give effect to the arrangement in Australia; or
11
(ii) hold out in Australia, or conduct itself in Australia on
12
the basis, that it can give effect to the arrangement; or
13
(iii) hold out in Australia, or conduct itself in Australia on
14
the basis, that the arrangement is valid or enforceable.
15
The declaration in relation to paragraph (a) has effect accordingly.
16
Declaration requiring variation or termination of arrangement
17
(3) The Minister may make a written declaration that:
18
(a) each party to the subsidiary arrangement that is a regulated
19
Australian party must:
20
(i) vary or terminate the arrangement in accordance with
21
any specified requirements; and
22
(ii) as soon as practicable after complying with
23
subparagraph (i), notify the Minister, in writing, of its
24
compliance with that subparagraph; and
25
(b) each party to the subsidiary arrangement that is a regulated
26
Australian party must not, to the specified extent and from
27
the specified day:
28
(i) give effect to the arrangement; or
29
(ii) hold out, or conduct itself on the basis, that it can give
30
effect to the arrangement; and
31
(c) each other party to the subsidiary arrangement must not, to
32
the specified extent and from the specified day:
33
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 3
The Minister's power to make declarations about subsidiary arrangements
that are in operation
Section 47
52
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
(i) give effect to the arrangement in Australia; or
1
(ii) hold out in Australia, or conduct itself in Australia on
2
the basis, that it can give effect to the arrangement.
3
Compliance with declaration
4
(4) Each party to the subsidiary arrangement must comply with the
5
declaration:
6
(a) if the Minister has given the party a copy of the declaration
7
under subsection 49(5); and
8
(b) to the extent that the declaration applies to the party.
9
Matters relating to declaration
10
(5) For the purposes of paragraph (3)(a), the declaration may require
11
that the subsidiary arrangement be varied or terminated:
12
(a) in accordance with the Australian law; or
13
(b) in accordance with any other requirements; or
14
(c) in accordance with both the Australian law and other
15
requirements.
16
(6) The Minister may make a declaration under subsection (2) or (3)
17
only to the extent that the subsidiary arrangement was entered
18
under the auspices of the foreign arrangement.
19
(7) A declaration made under subsection (2) or (3) is not a legislative
20
instrument.
21
47 Subsidiary arrangements that are legally binding under foreign
22
law
23
When Minister may make declaration
24
(1) The Minister may make a declaration under subsection (2) in
25
relation to a subsidiary arrangement of a foreign arrangement if:
26
(a) subsection 45(1) is satisfied in relation to the subsidiary
27
arrangement; and
28
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
The Minister's power to make declarations about subsidiary arrangements that are in
operation
Division 3
Section 47
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
53
(b) the subsidiary arrangement is legally binding under a foreign
1
law.
2
Note 1:
The Minister must take into account certain matters when making a
3
decision to make a declaration under subsection (2) (see section 51).
4
Note 2:
Section 49 deals with general matters about the declaration (such as
5
revocation and giving notice to the parties).
6
Declaration requiring variation or termination of arrangement
7
(2) The Minister may make a written declaration that:
8
(a) each party to the subsidiary arrangement that is a regulated
9
Australian party must:
10
(i) vary or terminate the arrangement in accordance with
11
any specified requirements; and
12
(ii) as soon as practicable after complying with
13
subparagraph (i), notify the Minister, in writing, of its
14
compliance with that subparagraph; and
15
(b) each party to the subsidiary arrangement that is a regulated
16
Australian party must not, to the specified extent and from
17
the specified day:
18
(i) give effect to the arrangement; or
19
(ii) hold out, or conduct itself on the basis, that it can give
20
effect to the arrangement; and
21
(c) each other party to the subsidiary arrangement must not, to
22
the specified extent and from the specified day:
23
(i) give effect to the arrangement in Australia; or
24
(ii) hold out in Australia, or conduct itself in Australia on
25
the basis, that it can give effect to the arrangement.
26
Compliance with declaration
27
(3) Each party to the subsidiary arrangement must comply with the
28
declaration:
29
(a) if the Minister has given the party a copy of the declaration
30
under subsection 49(5); and
31
(b) to the extent that the declaration applies to the party.
32
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 3
The Minister's power to make declarations about subsidiary arrangements
that are in operation
Section 48
54
Australia's Foreign Relations (State and Territory Arrangements) Bill
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Matters relating to declaration
1
(4) For the purposes of paragraph (2)(a), the declaration may require
2
that the subsidiary arrangement be varied or terminated:
3
(a) in accordance with the foreign law; or
4
(b) in accordance with any other requirements; or
5
(c) in accordance with both the foreign law and other
6
requirements.
7
(5) The Minister may make a declaration under subsection (2) only to
8
the extent that the subsidiary arrangement was entered under the
9
auspices of the foreign arrangement.
10
(6) A declaration made under subsection (2) is not a legislative
11
instrument.
12
Subdivision C--Declarations about non-legally binding
13
subsidiary arrangements
14
48 Subsidiary arrangements that are not legally binding
15
When Minister may make declaration
16
(1) The Minister may make a declaration under subsection (2) or (3) in
17
relation to an arrangement if:
18
(a) subsection 45(1) is satisfied in relation to the subsidiary
19
arrangement; and
20
(b) the subsidiary arrangement is not legally binding.
21
Note 1:
The Minister must take into account certain matters when making a
22
decision to make a declaration under subsection (2) or (3) (see
23
section 51).
24
Note 2:
Section 49 deals with general matters about the declaration (such as
25
revocation and giving notice to the parties).
26
Declaration that arrangement is not in operation
27
(2) The Minister may make a written declaration that:
28
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
The Minister's power to make declarations about subsidiary arrangements that are in
operation
Division 3
Section 48
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
55
(a) the subsidiary arrangement:
1
(i) is not in operation, to the specified extent and from the
2
specified day; or
3
(ii) if the foreign arrangement was entered in contravention
4
of subsection 22(1) or 36(3)--is not, and is taken never
5
to have been, in operation to the specified extent; and
6
(b) each party to the subsidiary arrangement that is a regulated
7
Australian party must not, to the specified extent and from
8
the specified day:
9
(i) give effect to the arrangement; or
10
(ii) hold out, or conduct itself on the basis, that it can give
11
effect to the arrangement; or
12
(iii) hold out, or conduct itself on the basis, that the
13
arrangement is in operation; and
14
(c) each other party to the subsidiary arrangement must not, to
15
the specified extent and from the specified day:
16
(i) give effect to the arrangement in Australia; or
17
(ii) hold out in Australia, or conduct itself in Australia on
18
the basis, that it can give effect to the arrangement; or
19
(iii) hold out in Australia, or conduct itself in Australia on
20
the basis, that the arrangement is in operation.
21
The declaration in relation to paragraph (a) has effect accordingly.
22
Declaration requiring variation or termination of arrangement
23
(3) The Minister may make a written declaration that:
24
(a) each party to the subsidiary arrangement that is a regulated
25
Australian party must:
26
(i) vary or terminate the arrangement in accordance with
27
any specified requirements; and
28
(ii) as soon as practicable after complying with
29
subparagraph (i), notify the Minister, in writing, of its
30
compliance with that subparagraph; and
31
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 3
The Minister's power to make declarations about subsidiary arrangements
that are in operation
Section 48
56
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
(b) each party to the subsidiary arrangement that is a regulated
1
Australian party must not, to the specified extent and from
2
the specified day:
3
(i) give effect to the arrangement; or
4
(ii) hold out, or conduct itself on the basis, that it can give
5
effect to the arrangement; and
6
(c) each other party to the subsidiary arrangement must not, to
7
the specified extent and from the specified day:
8
(i) give effect to the arrangement in Australia; or
9
(ii) hold out in Australia, or conduct itself in Australia on
10
the basis, that it can give effect to the arrangement.
11
Compliance with declaration
12
(4) Each party to the subsidiary arrangement must comply with the
13
declaration:
14
(a) if the Minister has given the party a copy of the declaration
15
under subsection 49(5); and
16
(b) to the extent that the declaration applies to the party.
17
Matters relating to declaration
18
(5) For the purposes of paragraph (3)(a), the declaration may require
19
that the subsidiary arrangement be varied or terminated:
20
(a) in accordance with any variation or termination clause of the
21
arrangement; or
22
(b) in accordance with any other requirements; or
23
(c) in accordance with any variation or termination clause and
24
other requirements.
25
(6) The Minister may make a declaration under subsection (2) or (3)
26
only to the extent that the subsidiary arrangement was entered
27
under the auspices of the foreign arrangement.
28
(7) A declaration made under subsection (2) or (3) is not a legislative
29
instrument.
30
The Minister's powers to make declarations about foreign arrangements, and subsidiary
arrangements, that are in operation
Part 4
The Minister's power to make declarations about subsidiary arrangements that are in
operation
Division 3
Section 49
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
57
Subdivision D--Matters relating to declarations under this
1
Division
2
49 Matters relating to declarations about subsidiary arrangements
3
When this section applies
4
(1) This section applies if the Minister makes a declaration under
5
subsection 46(2) or (3), 47(2) or 48(2) or (3) in relation to a
6
subsidiary arrangement.
7
When declaration comes into force
8
(2) The declaration must specify the day the declaration comes into
9
force.
10
Revoking declaration
11
(3) The Minister may revoke the declaration if the Minister ceases to
12
be satisfied of the matters on which the declaration was made.
13
(4) However, the Minister may not revoke the declaration if it has
14
already come into force.
15
Notice of declaration
16
(5) The Minister must, as soon as practicable after making the
17
declaration, take reasonable steps to give the parties to the
18
subsidiary arrangement a written notice under this subsection that:
19
(a) states the Minister's decision to make the declaration; and
20
(b) is accompanied by a copy of the declaration; and
21
(c) complies with any requirements prescribed by the rules.
22
Notice of revocation of declaration
23
(6) If, under subsection (3), the Minister revokes the declaration, then
24
the Minister must, as soon as practicable, take reasonable steps to
25
Part 4
The Minister's powers to make declarations about foreign arrangements, and
subsidiary arrangements, that are in operation
Division 3
The Minister's power to make declarations about subsidiary arrangements
that are in operation
Section 49
58
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
give the parties to the subsidiary arrangement a written notice that
1
states that the declaration is revoked.
2
Other matters
Part 5
Simplified outline of this Part
Division 1
Section 50
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
59
Part 5--Other matters
1
Division 1--Simplified outline of this Part
2
50 Simplified outline of this Part
3
This Part mostly deals with general matters that are relevant to this
4
Act.
5
The Minister must take into account certain matters when making
6
declarations under this Act. Those matters are set out in section 51.
7
If the Minister is satisfied that an entity has contravened, is
8
contravening, or is proposing to contravene particular provisions of
9
this Act, the Minister may apply to the court for an injunction to
10
require the entity to comply with the provision.
11
The Minister must keep a Public Register and make that register
12
available for public inspection on the internet. Broadly, the Public
13
Register must contain particular information about foreign
14
arrangements to which this Act applies, and their subsidiary
15
arrangements. Some information must not be included on the
16
Public Register (such as commercially sensitive information).
17
The Minister may make rules for the purposes of this Act.
18
Generally, this Act applies to the Australian National University as
19
if it were a State/Territory entity.
20
This Part also deals with a number of miscellaneous matters (such
21
as the Minister's ability to delegate the Minister's powers and
22
functions under this Act, the extraterritorial application of this Act,
23
approved forms and approved ways of giving notices to the
24
Minister).
25
Part 5
Other matters
Division 2
Matters that the Minister must take into account when making declarations
under this Act
Section 51
60
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Division 2--Matters that the Minister must take into
1
account when making declarations under this Act
2
51 Matters that the Minister must take into account
3
(1) This section applies if the Minister is making a decision to make a
4
declaration in relation to an arrangement under:
5
(a) subsection 35(2) (which is about declarations that prohibit
6
State/Territory entities from negotiating non-core foreign
7
arrangements); or
8
(b) subsection 36(2) (which is about declarations that prohibit
9
State/Territory entities from entering non-core foreign
10
arrangements); or
11
(c) subsection 41(2) or (3) (which are about declarations that
12
affect foreign arrangements that are legally binding under
13
Australian law); or
14
(d) subsection 42(2) (which is about declarations that affect
15
foreign arrangements that are legally binding under foreign
16
law); or
17
(e) subsection 43(2) or (3) (which are about declarations that
18
affect foreign arrangements that are not legally binding); or
19
(f) subsection 46(2) or (3) (which are about declarations that
20
affect subsidiary arrangements that are legally binding under
21
Australian law); or
22
(g) subsection 47(2) (which is about declarations that affect
23
subsidiary arrangements that are legally binding under
24
foreign law); or
25
(h) subsection 48(2) or (3) (which are about declarations that
26
affect subsidiary arrangements that are not legally binding).
27
(2) When making the decision, the Minister must take into account the
28
following matters in relation to the State or Territory to which the
29
arrangement relates:
30
(a) the importance of the arrangement in assisting or enhancing
31
the functioning of the State or Territory;
32
Other matters
Part 5
Matters that the Minister must take into account when making declarations under this
Act
Division 2
Section 51
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
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61
(b) the extent of the performance of the arrangement;
1
(c) whether the declaration would impair the continued existence
2
of the State or Territory as an independent entity;
3
(d) whether the declaration would significantly curtail or
4
interfere with the capacity of the State or Territory to
5
function as a government;
6
(e) whether the declaration would have significant financial
7
consequences for the State or Territory;
8
(f) whether the declaration would impede the acquisition of
9
goods or services by the State or Territory, including, for
10
example, for the purposes of infrastructure;
11
(g) whether the declaration would have an effect on the capacity
12
of the State or Territory to complete an existing project that
13
is to be delivered under the arrangement (either at all, or
14
within the intended timeframe);
15
(h) any other matter that the Minister considers is relevant;
16
to the extent that information concerning those matters has been
17
given to the Minister by the State or Territory in accordance with
18
subsection (3).
19
(3) A State or Territory may give the Minister information concerning
20
the matters referred to in subsection (2) in relation to an
21
arrangement. However, the information may only be given:
22
(a) in writing; and
23
(b) in the approved form (if any); and
24
(c) in the approved way (if any).
25
Part 5
Other matters
Division 3
Enforcement
Section 52
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Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Division 3--Enforcement
1
52 Injunctions
2
(1) This section applies if the Minister is satisfied that an entity has
3
contravened, is contravening, or is proposing to contravene one or
4
more of the following provisions:
5
(a) subsection 15(1) (which deals with when negotiations about
6
core foreign arrangements are prohibited);
7
(b) subsection 16(1) (which deals with the requirement to notify
8
the Minister about negotiations of core foreign
9
arrangements);
10
(c) subsection 22(1) (which deals with the prohibition on
11
entering core foreign arrangements);
12
(d) subsection 23(1) (which deals with the requirement to notify
13
the Minister about proposals to enter core foreign
14
arrangements);
15
(e) subsection 29(1) (which deals with the requirement to notify
16
the Minister about entering core foreign arrangements);
17
(f) subsection 30(3), (4) or (5), 31(2), (3) or (4) or 32(3), (4) or
18
(5) (which deal with requirements relating to core foreign
19
arrangements that have been unlawfully entered);
20
(g) subsection 34(1) (which deals with the requirement to notify
21
the Minister about proposals to enter non-core foreign
22
arrangements);
23
(h) subsection 35(3) (which prohibits negotiating arrangements
24
that are non-core foreign arrangements in contravention of a
25
declaration);
26
(i) subsection 36(3) (which prohibits entering non-core foreign
27
arrangements in contravention of a declaration);
28
(j) subsection 38(1) (which deals with the requirement to notify
29
the Minister about entering non-core foreign arrangements);
30
(k) subsection 41(4) or (5), 42(3) or (4) or 43(4) or (5) (which
31
deal with requirements in declarations about foreign
32
arrangements);
33
Other matters
Part 5
Enforcement
Division 3
Section 52
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
63
(l) subsection 46(4), 47(3) or 48(4) (which deal with
1
requirements about subsidiary arrangements);
2
(m) subclause 2(3) of Schedule 1 (which deals with the
3
requirement to notify the Minister about pre-existing foreign
4
arrangements that are core foreign arrangements);
5
(n) subclause 3(2) of Schedule 1 (which deals with the
6
requirement to notify the Minister about pre-existing foreign
7
arrangements that are non-core foreign arrangements);
8
(o) subclause 4(3), (4) or (5), 5(2), (3) or (4) or 6(3), (4) or (5) of
9
Schedule 1 (which deal with contraventions of the
10
requirement to notify the Minister about pre-existing foreign
11
arrangements that are core foreign arrangements).
12
(2) The Minister may apply to the court for an injunction to require the
13
entity to comply with the relevant provision.
14
(3) If the court is satisfied that the entity has contravened, is
15
contravening, or is proposing to contravene the relevant provision,
16
the court must grant an injunction on such terms as the court
17
considers appropriate.
18
Part 5
Other matters
Division 4
The Public Register
Section 53
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Division 4--The Public Register
1
53 The Minister must keep a public register
2
(1) The Minister must keep a register (the
Public Register
) of
3
information of the kind referred to in subsection (2) relating to:
4
(a) each foreign arrangement for which:
5
(i) a State/Territory entity has given a notice to the
6
Minister under this Act; or
7
(ii) the Minister has made a decision under this Act; or
8
(iii) section 30, 31 or 32, or clause 4, 5 or 6 of Schedule 1,
9
has applied, but only if the Minister is aware of the
10
application of those sections to the foreign arrangement;
11
and
12
(b) each subsidiary arrangement of a foreign arrangement
13
referred to in paragraph (a) for which:
14
(i) a State/Territory entity has given a notice to the
15
Minister under this Act; or
16
(ii) the Minister has made a decision about under Division 3
17
of Part 4.
18
(2) The Minister must include on the Public Register the following
19
information for each foreign arrangement and subsidiary
20
arrangement referred to in subsection (1):
21
(a) the title of the arrangement;
22
(b) the parties to the arrangement;
23
(c) whether any decisions were made by the Minister in relation
24
to the arrangement;
25
(d) any information prescribed by the rules.
26
(3) However, the following information must not be included on the
27
Public Register:
28
(a) information that the Minister is satisfied:
29
(i) is commercially sensitive; or
30
Other matters
Part 5
The Public Register
Division 4
Section 53
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
65
(ii) would disclose the contents of a document prepared for
1
the purposes of a meeting of the Cabinet of a State or
2
Territory; or
3
(iii) would disclose the deliberations of a meeting of the
4
Cabinet of a State or Territory; or
5
(iv) is the subject of legal professional privilege; or
6
(v) is protected by public interest immunity; or
7
(vi) affects national security; or
8
(b) information about notices given by a core State/Territory
9
entity under subsection 16(1); or
10
(c) information about the Minister's recommended changes to a
11
foreign arrangement (as referred to in paragraph 27(b)) that is
12
included in a notice given by the Minister under section 27;
13
or
14
(d) any information prescribed by the rules.
15
(4) The Public Register must be made available for public inspection
16
on the internet.
17
(5) The Minister may correct or update information on the Public
18
Register.
19
Part 5
Other matters
Division 5
The rules
Section 54
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Division 5--The rules
1
54 The rules
2
(1) The Minister may, by legislative instrument, make rules
3
prescribing matters:
4
(a) required or permitted by this Act to be prescribed by the
5
rules; or
6
(b) necessary or convenient to be prescribed for carrying out or
7
giving effect to this Act.
8
(2) To avoid doubt, the rules may not do the following:
9
(a) create an offence or civil penalty;
10
(b) provide powers of:
11
(i) arrest or detention; or
12
(ii) entry, search or seizure;
13
(c) impose a tax;
14
(d) set an amount to be appropriated from the Consolidated
15
Revenue Fund under an appropriation in this Act;
16
(e) directly amend the text of this Act.
17
Other matters
Part 5
The Australian National University
Division 6
Section 55
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
67
Division 6--The Australian National University
1
55 Application of this Act to the Australian National University
2
(1) This Act applies in relation to the Australian National University
3
(the
ANU
) as if it were a State/Territory entity covered by
4
paragraph 7(e) (which covers universities established under a law
5
of a State or Territory).
6
(2) However, if the ANU is the only State/Territory entity that is a
7
party, or proposed party, to a foreign arrangement, then section 51
8
does not apply when the Minister is making a decision to make a
9
declaration in relation to:
10
(a) the foreign arrangement; or
11
(b) a subsidiary arrangement of the foreign arrangement.
12
Part 5
Other matters
Division 7
Other matters
Section 56
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Division 7--Other matters
1
56 Delegation by the Minister
2
(1) The Minister may, in writing, delegate all or any of the Minister's
3
powers or functions under this Act to:
4
(a) the Secretary to the Department; or
5
(b) a person who holds or performs the duties of an SES officer
6
in the Department.
7
(2) However, the Minister may not delegate any of the Minister's
8
powers or functions under:
9
(a) Part 2 (which deals with negotiating and entering core
10
foreign arrangements); or
11
(b) Part 4 in relation to a core foreign arrangement; or
12
(c) section 54 (which deals with making the rules).
13
(3) In exercising a power or performing a function under a delegation
14
under subsection (1), the delegate must comply with any directions
15
of the Minister.
16
57 Compensation for acquisition of property
17
(1) If the operation of this Act would result in an acquisition of
18
property (within the meaning of paragraph 51(xxxi) of the
19
Constitution) from a person otherwise than on just terms (within
20
the meaning of that paragraph), the Commonwealth is liable to pay
21
a reasonable amount of compensation to the person.
22
(2) If the Commonwealth and the person do not agree on the amount
23
of the compensation, the person may institute proceedings in
the
24
court for the recovery from the Commonwealth of such reasonable
25
amount of compensation as the court determines.
26
Other matters
Part 5
Other matters
Division 7
Section 58
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
69
58 Requirements in relation to procedural fairness
1
The Minister is not required to observe any requirements of
2
procedural fairness in exercising a power or performing a function
3
under this Act.
4
59 Extraterritorial application and extension to external Territories
5
(1) This Act applies both within and outside Australia.
6
(2) This Act extends to every external Territory.
7
60 Crown to be bound
8
This Act binds the Crown in each of its capacities.
9
61 Concurrent operation with State and Territory laws
10
This Act does not exclude or limit the operation of a law of a State
11
or Territory to the extent that the law is capable of operating
12
concurrently with this Act.
13
62 Approved forms
14
The Minister may, in writing, approve one or more forms for the
15
purposes of a provision of this Act that provides for something to
16
be done in an approved form.
17
63 Approved ways of giving notices to the Minister
18
The Minister may, in writing, approve one or more ways in which
19
a State/Territory entity may or must give a notice for the purposes
20
of a provision of this Act that provides for a notice to be given in
21
an approved way.
22
64 Schedule 1
23
Schedule 1 has effect.
24
Schedule 1
Transitional requirements relating to pre-existing foreign arrangements
Division 1
Simplified outline of this Schedule
Clause 1
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Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
Schedule 1--Transitional requirements
1
relating to pre-existing foreign
2
arrangements
3
4
Note:
See section 64.
5
Division 1--Simplified outline of this Schedule
6
1 Simplified outline of this Schedule
7
A State/Territory entity is required to notify the Minister of any
8
foreign arrangements that are in operation on the commencement
9
day, or that come into operation before the day Part 2 commences.
10
If the foreign arrangement is a core foreign arrangement, then the
11
State/Territory entity must notify the Minister before the end of 3
12
months, or such longer period (if any) prescribed by the rules, after
13
the commencement day. Failure to meet the minimum notification
14
requirements for a core foreign arrangement will result in the
15
arrangement becoming invalid and unenforceable, becoming
16
required to be terminated, or ceasing to be in operation (depending
17
on the nature of the arrangement). The State/Territory entity and
18
the foreign entity that are parties to the arrangement will also be
19
prohibited from giving effect to the arrangement and from holding
20
out that they are able to give effect to the arrangement. These
21
consequences will apply automatically and without the
22
involvement of the Minister (see clauses 4 to 6).
23
If the foreign arrangement is a non-core arrangement, then the
24
State/Territory entity must notify the Minister about the
25
arrangement before the end of 6 months, or such longer period (if
26
any) prescribed by the rules, after the commencement day.
27
Transitional requirements relating to pre-existing foreign arrangements
Schedule 1
Requirement to notify the Minister about pre-existing foreign arrangements
Division 2
Clause 2
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
71
Division 2--Requirement to notify the Minister about
1
pre-existing foreign arrangements
2
2 Requirement to notify the Minister about pre-existing foreign
3
arrangements that are core foreign arrangements
4
(1) This clause applies to a pre-existing foreign arrangement between a
5
core State/Territory entity and a core foreign entity.
6
(2) A
pre-existing foreign arrangement
is a foreign arrangement that:
7
(a) is in operation on the commencement day; or
8
(b) comes into operation during the period that:
9
(i) starts on the day after the commencement day; and
10
(ii) ends on the day before Part 2 of this Act commences.
11
(3) The core State/Territory entity must give a notice to the Minister:
12
(a) in accordance with subclause (4); and
13
(b) in accordance with subclause (5);
14
before the end of the period that:
15
(c) starts on the commencement day; and
16
(d) ends 3 months, or such longer period (if any) prescribed by
17
the rules, after the commencement day.
18
Note:
If the core State/Territory entity fails to give a notice in accordance
19
with subclause (4) before the end of that period, then clause 4, 5 or 6
20
automatically applies to the pre-existing foreign arrangement to make
21
it invalid, unenforceable or not in operation, or to require the
22
State/Territory entity to terminate it. Those clauses also prohibit the
23
parties from giving effect to the arrangement.
24
(4) The notice must:
25
(a) be in writing; and
26
(b) specify the arrangement; and
27
(c) be accompanied by a copy of the arrangement.
28
(5) The notice must also:
29
(a) be in the approved form (if any); and
30
Schedule 1
Transitional requirements relating to pre-existing foreign arrangements
Division 2
Requirement to notify the Minister about pre-existing foreign arrangements
Clause 3
72
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
(b) if the core State/Territory entity knows that there is another
1
arrangement that is a subsidiary arrangement of the
2
arrangement:
3
(i) include details about the subsidiary arrangement; and
4
(ii) if the core State/Territory entity has a copy of the
5
subsidiary arrangement--be accompanied by a copy of
6
the subsidiary arrangement; and
7
(c) include any information prescribed by the rules; and
8
(d) be accompanied by any documents prescribed by the rules;
9
and
10
(e) be given in the approved way (if any).
11
(6) Subclause (3) does not apply to an exempt arrangement.
12
3 Requirement to notify the Minister about pre-existing foreign
13
arrangements that are non-core foreign arrangements
14
(1) This clause applies to a pre-existing foreign arrangement between a
15
State/Territory entity and a foreign entity if the arrangement is a
16
non-core foreign arrangement.
17
(2) The State/Territory entity must give a notice to the Minister in
18
accordance with subclause (3) before the end of the period that:
19
(a) starts on the commencement day; and
20
(b) ends 6 months, or such longer period (if any) prescribed by
21
the rules, after the commencement day.
22
(3) The notice must:
23
(a) be in writing; and
24
(b) be in the approved form (if any); and
25
(c) be accompanied by a copy of the arrangement; and
26
(d) if the State/Territory entity knows that there is another
27
arrangement that is a subsidiary arrangement of the
28
arrangement:
29
(i) include details about the subsidiary arrangement; and
30
Transitional requirements relating to pre-existing foreign arrangements
Schedule 1
Requirement to notify the Minister about pre-existing foreign arrangements
Division 2
Clause 3
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
73
(ii) if the State/Territory entity has a copy of the subsidiary
1
arrangement--be accompanied by a copy of the
2
subsidiary arrangement; and
3
(e) include any information prescribed by the rules; and
4
(f) be accompanied by any documents prescribed by the rules;
5
and
6
(g) be given in the approved way (if any).
7
(4) Subclause (2) does not apply to an exempt arrangement.
8
Schedule 1
Transitional requirements relating to pre-existing foreign arrangements
Division 3
Consequences for failing to notify the Minister about pre-existing foreign
arrangements that are core foreign arrangements
Clause 4
74
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2020
No. , 2020
Division 3--Consequences for failing to notify the Minister
1
about pre-existing foreign arrangements that are
2
core foreign arrangements
3
Subdivision A--Pre-existing foreign arrangements that are
4
legally binding
5
4 Arrangements that are legally binding under Australian law
6
(1) If:
7
(a) a core State/Territory entity contravenes paragraph 2(3)(a) in
8
relation to a pre-existing foreign arrangement between the
9
State/Territory entity and a core foreign entity; and
10
(b) apart from this clause, the arrangement would be legally
11
binding under an Australian law;
12
then this clause applies to the arrangement.
13
(2) The arrangement is invalid and unenforceable after the
14
contravention.
15
(3) The core State/Territory entity must:
16
(a) within 14 days, or such longer period (if any) prescribed by
17
the rules, notify the core foreign entity that:
18
(i) this clause applies to the arrangement; and
19
(ii) the arrangement is invalid and unenforceable; and
20
(b) as soon as practicable after it has complied with
21
paragraph (a), notify the Minister, in writing, of its
22
compliance with that paragraph.
23
(4) The core State/Territory entity must not, at any time after the
24
contravention:
25
(a) give effect to the arrangement; or
26
(b) hold out, or conduct itself on the basis, that:
27
(i) it can give effect to the arrangement; or
28
(ii) the arrangement is valid or enforceable.
29
Transitional requirements relating to pre-existing foreign arrangements
Schedule 1
Consequences for failing to notify the Minister about pre-existing foreign arrangements
that are core foreign arrangements
Division 3
Clause 5
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
75
(5) The core foreign entity must not, from the time it is notified under
1
subclause (3) that this clause applies to the arrangement:
2
(a) give effect to the arrangement in Australia; or
3
(b) hold out in Australia, or conduct itself in Australia on the
4
basis, that:
5
(i) it can give effect to the arrangement; or
6
(ii) the arrangement is valid or enforceable.
7
(6) This clause does not apply to an exempt arrangement.
8
5 Arrangements that are legally binding under foreign law
9
(1) If:
10
(a) a core State/Territory entity contravenes paragraph 2(3)(a) in
11
relation to a pre-existing foreign arrangement between the
12
State/Territory entity and a core foreign entity; and
13
(b) the arrangement is legally binding under a foreign law;
14
then this clause applies to the arrangement.
15
(2) The core State/Territory entity must:
16
(a) within 14 days, or such longer period (if any) prescribed by
17
the rules:
18
(i) notify the core foreign entity that this clause applies to
19
the arrangement; and
20
(ii) take steps to terminate the arrangement in accordance
21
with the foreign law; and
22
(b) as soon as practicable after it has complied with
23
paragraph (a), notify the Minister, in writing, of its
24
compliance with that paragraph.
25
(3) The core State/Territory entity must not, at any time after the
26
contravention:
27
(a) give effect to the arrangement; or
28
(b) hold out, or conduct itself on the basis, that it can give effect
29
to the arrangement.
30
Schedule 1
Transitional requirements relating to pre-existing foreign arrangements
Division 3
Consequences for failing to notify the Minister about pre-existing foreign
arrangements that are core foreign arrangements
Clause 6
76
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
No. , 2020
(4) The core foreign entity must not, from the time it is notified under
1
subclause (2) that this clause applies to the arrangement:
2
(a) give effect to the arrangement in Australia; or
3
(b) hold out in Australia, or conduct itself in Australia on the
4
basis, that it can give effect to the arrangement.
5
(5) This clause does not apply to an exempt arrangement.
6
Subdivision B--Pre-existing foreign arrangements that are not
7
legally binding
8
6 Arrangements that are not legally binding
9
(1) If:
10
(a) a core State/Territory entity contravenes paragraph 2(3)(a) in
11
relation to an arrangement between the State/Territory entity
12
and a core foreign entity; and
13
(b) the arrangement is not legally binding;
14
then this clause applies to the arrangement.
15
(2) The arrangement is not in operation after the contravention.
16
(3) The core State/Territory entity must:
17
(a) within 14 days, or such longer period (if any) prescribed by
18
the rules, notify the core foreign entity that:
19
(i) this clause applies to the arrangement; and
20
(ii) the arrangement is not in operation; and
21
(b) as soon as practicable after it has complied with
22
paragraph (a), notify the Minister, in writing, of its
23
compliance with that paragraph.
24
(4) The core State/Territory entity must not, at any time after the
25
contravention:
26
(a) give effect to the arrangement; or
27
(b) hold out, or conduct itself on the basis, that:
28
(i) it can give effect to the arrangement; or
29
(ii) the arrangement is in operation.
30
Transitional requirements relating to pre-existing foreign arrangements
Schedule 1
Consequences for failing to notify the Minister about pre-existing foreign arrangements
that are core foreign arrangements
Division 3
Clause 6
No. , 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill
2020
77
(5) The core foreign entity must not, from the time it is notified under
1
subclause (3) that this clause applies to the arrangement:
2
(a) give effect to the arrangement in Australia; or
3
(b) hold out in Australia, or conduct itself in Australia on the
4
basis, that:
5
(i) it can give effect to the arrangement; or
6
(ii) the arrangement is in operation.
7
(6) This clause does not apply to an exempt arrangement
8
9