Explanatory Memorandum
(Circulated by authority of the Minister for Foreign Affairs, Senator the Honourable Marise Payne)Statement of compatibility with human rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020
9. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
10. This Bill makes necessary consequential amendments to support the implementation of the Australia's Foreign Relations (State and Territory Arrangements) Bill 2020 (the Foreign Relations Bill).
11. The Foreign Relations Bill will establish a legislative mechanism for the Minister, on behalf of the Commonwealth, to assess and manage the effect of arrangements between State/Territory entities and foreign entities on Australia's foreign relations and foreign policy.
12. Under that Bill, State/Territory entities cannot negotiate, enter, vary, or continue to give effect to arrangements with foreign entities where the Minister is satisfied that the relevant arrangement would adversely affect Australia's foreign relations or would be inconsistent with Australia's foreign policy.
13. Item 1 of this Bill amends the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) to list the Foreign Relations Bill as a law to which that Act does not apply. The effect of this will be that decisions made under the Foreign Relations Bill will not be subject to review under the ADJR Act.
14. Item 2 of the Bill amends the Foreign Acquisitions and Takeovers Act 1975 (the FATA) to ensure that protected information under that scheme can be shared for the purposes of the Foreign Relations Bill.
Human rights implications
15. The Bill engages the following rights and freedoms:
- a.
- the right to a fair hearing, and
- b.
- the prohibition on arbitrary interference with privacy.
16. It is well accepted that international human rights law obligations are owed to individuals only, and are not owed to non-natural persons, such as bodies corporate or bodies politic.
17. The Foreign Relations Bill primarily regulates the entry into, and continuation of, arrangements between state, territory and local government entities and foreign government entities, and does not generally affect the rights of individuals. In addition, as relevant protected information to be disclosed under the FATA would similarly relate to investments between such parties, this Bill only engages the above rights to the limited extent that they may affect individuals (as opposed to a body politic or body corporate), such as individuals who have entered into subsidiary arrangements (such as commercial contracts) under foreign arrangements that are covered by the scheme.
Right to a fair hearing
18. Article 14 of the ICCPR provides that all people are to be equal before courts and tribunals and that everyone, in the determination of rights and obligations in civil proceedings, is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
19. To the extent that an individual (as opposed to a body politic or body corporate) may be affected by a decision of the Minister under the Foreign Relations Bill, item 1 of this Bill which excludes judicial review under the ADJR Act, engages the right to a fair hearing.
20. The exclusion of judicial review under the ADJR Act is necessary as it reflects that decisions under the scheme established by the Foreign Relations Bill will be assessed on the basis of Australia's foreign relations and foreign policy. Accordingly, the opportunity for such decisions to be subject to judicial review should be reduced to preserve the Commonwealth Government's prerogative (exercised through the Minister) to determine Australia's foreign relations posture and foreign policy. Given the high political consequence of these decisions, as well as the impact such decisions have on Australia's relationship with other countries, Commonwealth-State relationships and national security, it is appropriate that the decisions are not subject to review under the ADJR Act.
21. However, individuals affected by a decision under the Foreign Relations Bill may still seek judicial review by the Federal Court and the Federal Circuit Court, under subsection 39B(1) of the Judiciary Act 1903, or by the High Court, under section 75(v) of the Constitution. This will ensure that affected individuals still have an avenue to challenge decisions that affect them.
The prohibition on arbitrary interference with privacy
22. Article 17 of the ICCPR establishes a prohibition on arbitrary or unlawful interference with privacy. The UN Human Rights Committee has not defined 'privacy'. It should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.
23. Item 2 of Schedule 1 of the Bill will amend the FATA such that a person may disclose information obtained under, in accordance with, or for the purposes of the FATA to the:
- a.
- Minister administering the Foreign Relations Bill (being the Minister for Foreign Affairs), and
- b.
- accountable authority of the Commonwealth entity that deals with the administration of the Foreign Relations Bill (being the Secretary of the Department of Foreign Affairs and Trade).
24. This recognises that a proposed arrangement that is subject to the requirements of the Foreign Relations Bill may also be subject to the requirements of the FATA. As such, it is necessary that the Minister and department responsible for administering the Foreign Relations Bill are able to receive in relation to the same negotiation or arrangement without contravening the FATA.
25. Item 2 of this Bill engages the prohibition on interference with privacy to the extent that the relevant protected information disclosed consists of personal information but is not arbitrary as it is reasonable in the circumstances.
26. Enabling information to be shared for the purposes of transactions simultaneously subject to two regimes is essential to the effective and efficient administration of the Foreign Relations Bill. The Minister needs access to all the relevant information upon which to base his or her decisions under the Foreign Relations Bill, and where the foreign party is simultaneously regulated by the FATA, this includes information obtained under that regime.
27. This ultimately ensures the legitimate objective of the Foreign Relations Bill, which is to enable the Minister to protect Australia's foreign relations by ensuring that arrangements between State/Territory entities and foreign entities are not inconsistent with Australia's foreign policy or adversely affect Australia's foreign relations. It is also in the interest of the parties regulated by each regime to have information shared efficiently and outcomes decided upon consistently.
28. Where a disclosure under subsection 122(1) of the FATA includes personal information, Australian Privacy Principle 6.2(b) authorises the disclosure as it is an Australian law authorising the disclosure of personal information. However, other Australian Privacy Principles continue to apply, in particular, Australian Privacy Principle 11.1, which requires that an Australian Privacy Principle entity must take reasonable steps to protect personal information from misuse, interference or loss, and from unauthorised access, modification or disclosure. Any personal information that is obtained under the FATA and shared for the purposes of the Foreign Relations Bill will be used only for the purposes of the administration of the Foreign Relations Bill, or for another lawful purpose. The information will not be published on the Register established by that Bill.
Conclusion
29. The Bill is compatible with human rights because to the extent that it may limit rights, those limitations are reasonable, necessary and proportionate.