ALGA seeking clarity on legislation to veto international accords

Last month, the Morrison Government said it would legislate to provide a Federal power of veto over arrangements between state and territory governments, local governments and universities and foreign governments.

This legislation will cover an estimated 500 sister city agreements between councils and their overseas counterparts – as well as the 135 agreements that state and territory governments have signed with some 30 foreign countries.

Where, in the opinion of the Minister for Foreign Affairs, such arrangements would adversely affect Australia’s foreign relations or are inconsistent with Australia’s foreign policy, he or she would declare they were invalid or not to be continued.

There has been no prior consultation with ALGA on this issue, and commentators have identified state government agreements (such as Victoria’s Belt and Roads agreement with China) and university agreements as issues likely to be of concern to the Commonwealth.

ALGA President David O’Loughlin has received a letter from the Prime Minister, Scott Morrison, on the issue foreshadowing contact from the Minister for Foreign Affairs, Marise Payne, and her Department.

The ALGA Secretariat has contacted Senator Payne’s office and subsequently spoken the officers in the Department of Foreign Affairs to clarify details of the new arrangements proposed by the Commonwealth is proposing. 

The legislation –  “Australia’s Foreign Relations (State and Territory Arrangements) Bill 2020” – was introduced into Parliament on Thursday 3 September. The Bill was subsequently referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee which will report back on 5 November 2020.     

As it stands, the Bill covers:

  • Core foreign arrangements (basically those between states and territories, state and territory governments and their departments or agencies, and foreign governments;
  • Non-core foreign arrangements (those between Australian local governments and public universities, and foreign national governments, foreign regional and local governments, and public universities); and
  • Subsidiary arrangements entered into under head agreements, including by regulated parties (and that extends to an association incorporated under an Australian law.   

Australian entities not covered include a corporation that operates on a commercial basis or a hospital. The Bill states that the Commonwealth is not intending to regulate purely commercial arrangements and the Explanatory memorandum states that state or territory-owned corporations operating commercially, such as water corporations and port authorities, are not covered by the Bill

For core arrangements (basically those between state governments and Foreign National Governments), Commonwealth approval is needed to enter into negotiations for an arrangement and also to enter into the arrangement itself. The Commonwealth has the power to issue a declaration vetoing the proposed arrangements.

For non-core arrangements (those involving Australian local governments), the Commonwealth must be notified before the arrangement is entered into. There is, however, no requirement to notify before negotiations.

The Commonwealth may issue a declaration at any time vetoing the arrangement (including before its finalised or signed) but may well not issue any declaration in which case the parties continue on with the arrangement in place until otherwise advised.  

For pre-existing core arrangements, the Australian party has three months to advise the Commonwealth of the arrangement.  For non-core arrangements the period is six months. Again, the Commonwealth can issue a declaration terminating the arrangement or requiring changes.

The Commonwealth must keep a public register of arrangements.