House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Foreign Affairs, Senator the Honourable Marise Payne)

Schedule 1 - Amendments

Administrative Decisions (Judicial Review) Act 1977

Item 1 At the end of Schedule 1

36. Item 1 provides that judicial review under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) is not available for decisions under the Foreign Relations Bill.

37. Item 1 inserts new paragraph (zh) into Schedule 1 of the ADJR Act. Schedule 1 of the ADJR Act sets out classes of decisions which are excluded from review under that Act.

38. As such, the effect of new paragraph (zh) is that the ADJR Act does not apply to decisions under the Foreign Relations Bill, and therefore judicial review of such decisions is not available under that Act.

39. The Minister's decision-making powers under the Foreign Relations Bill, and determination of whether an arrangement with a foreign entity adversely affects Australia's foreign relations or is inconsistent with Australia's foreign policy, involve considerations within the Commonwealth's remit and discretion. The determination of these matters are at the prerogative of the Commonwealth executive government and the Minister's consideration as to whether these elements are satisfied is not appropriate for judicial adjudication under the ADJR Act.

40. As such, the exclusion of judicial review under the ADJR Act for these decisions recognises that decisions relating to sensitive governmental matters, such as whether an arrangement between a State or Territory and a foreign entity is consistent with Australia's foreign relations and foreign policy, are not suitable for judicial review.

41. This exclusion is similar to the exclusion of ADJR review from comparable legislation which relates to matters of foreign relations and the national interest, including decisions under the Foreign Acquisitions and Takeovers Act 1977 (the FATA).

42. In addition, as the Foreign Relations Bill predominately regulates the conduct of State and Territory governments, and other non-natural persons, the exclusion of judicial review under the ADJR Act will not unduly trespass on personal rights and liberties.

43. Although new paragraph (zh) will exclude judicial review under the ADJR Act for decisions under the Foreign Relations Bill, persons affected by a decision under that 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. These avenues will ensure that affected persons have an avenue to seek review of decisions that affect them.

Foreign Acquisitions and Takeovers Act 1975

Item 2 After paragraph 122(1)(a)

44. Item 2 ensures that persons may share information obtained under the FATA with the Minister and Secretary of the Department for the purposes of the Foreign Relations Bill.

45. Subsection 122(1) of the FATA prescribes a list of Acts in relation to which a person may disclose protected information (within the meaning of section 120 of that Act) to the Minister, or accountable authority administering the listed Act, for the purposes of administering that Act.

46. Item 2 inserts new paragraph (aa) into subsection 122(1) of the FATA, which adds the Foreign Relations Bill to the list of prescribed laws in subsection 122(1). This amendment will have the effect of ensuring that a person may disclose protected information under the FATA to relevant persons for the purpose of administering the Foreign Relations Bill.

47. This amendment ensures that information can be shared with the Minister responsible for the Foreign Relations Bill or the accountable authority of a Commonwealth entity that deals with the administration of that Bill. The accountable authority for the purposes of the Foreign Relations Bill is the Secretary of the Department responsible for the administration of the Bill (pursuant to section 12 of the Public Governance, Performance and Accountability Act 2013), being the Department of Foreign Affairs and Trade.

48. Appropriate sharing of protected information will ensure the Minister responsible for the Foreign Relations Bill can properly administer that Bill (once enacted).

49. This amendment recognises that arrangements considered under the Foreign Relations Bill may overlap with, or intersect with, investments required to be screened under the FATA. The criteria set out in FATA relate to national interest-this is the test for the Treasurer to apply when considering a proposed investment under the FATA. Although this differs from the criteria set out in the Foreign Relations Bill, which relate to adverse effect on Australia's foreign relations and consistency with Australia's foreign policy, there is a level of intersection between the two tests and a given arrangement may be subject to approval under both regimes depending on the nature of the arrangement.

50. Therefore, ensuring that the Minister, and the Department, are able to access this protected information will ensure a consistent and whole-of-government approach to Australia's national interest and foreign relations across these pieces of legislation. This information sharing will also support an aligned Commonwealth position in relation to particular arrangements, to the extent necessary given the different legislative tests.

Item 3 Application of item 2

51. Item 3 provides for the application of item 2 relating to information sharing under the FATA.

52. Item 3 provides that the amendment made by item 2 applies, after its commencement, in relation to protected information obtained before, on or after the commencement of that item.

53. In accordance with section 2, item 2 will commence at the same time as section 1 of the Foreign Relations Bill. Accordingly, protected information disclosed under the FATA by virtue of the amendment to subsection 122(1) may include information obtained before, on or after the commencement of the Foreign Relations Bill.

54. This provision ensures that information under the FATA may be shared in relation to the Foreign Relations Bill regardless of when that information was obtained. This recognises that information obtained prior to the commencement of the Foreign Relations Bill may be relevant to the Minister's decision-making powers under that Bill-in particular, in relation to declarations regarding arrangements that are already in operation, which includes pre-existing arrangements, under Part 4 of that Bill.