Commonwealth act

Australia’s Foreign Relations (State and Territory Arrangements) Act 2020

In ForceCTH

Jurisdiction

Commonwealth

Act Number

116 of 2020

Collection

act

Plain English Summary

8/10 complexity

This Act requires State and Territory governments, agencies and certain universities to notify the Commonwealth and—for many dealings with specified foreign countries, governments or public bodies—obtain the Minister’s approval before negotiating or entering agreements. Failure to comply can automatically render an arrangement invalid, unenforceable or not in operation. The stated object is to protect Australia’s foreign relations and ensure consistency with Australia’s foreign policy (s5); the Minister can also declare, vary or terminate existing or subsidiary arrangements and keep a public register.

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What it does

The Australia's Foreign Relations (State and Territory Arrangements) Act 2020 establishes a statutory framework designed to ensure that arrangements entered into by sub-national Australian entities with foreign entities conform to the foreign policy of the Commonwealth of Australia. Under section 5(1), the core object of the Act is to ensure that such arrangements do not adversely affect Australia's foreign relations and are not inconsistent with Australia's foreign policy. Mechanically, the Act creates a centralized registration, review, and veto regime administered by the Minister for Foreign Affairs. The Minister is empowered to approve or reject proposed arrangements, as well as to retrospectively declare existing arrangements invalid, unenforceable, or required to be varied or terminated.

The Act distinguishes between core foreign arrangements and non-core foreign arrangements, applying different levels of regulatory scrutiny to each. For core foreign arrangements, which involve high-level public entities such as State or Territory governments and foreign national governments, the Act imposes a strict prohibition on negotiating or entering into agreements without prior ministerial approval. For non-core arrangements, which typically involve municipal councils or public universities and their foreign counterparts, the Act mandates a notification process, allowing the Minister to intervene and issue prohibitive declarations if an arrangement is deemed inconsistent with Commonwealth interests.

To support this regulatory oversight, the Act establishes a Public Register of foreign arrangements, which must be maintained on the internet for public inspection under section 53. The Act also applies to subsidiary arrangements, which are agreements entered into under the auspices of a primary foreign arrangement, and to variations of existing arrangements. Through these mechanisms, the Commonwealth shifts decision-making authority regarding international engagements away from sub-national actors, imposing a centralized vetting process that prioritizes national foreign policy alignment over local, academic, or regional autonomy.

Current sections

Direct links to the current provisions in Australia’s Foreign Relations (State and Territory Arrangements) Act 2020.

Arrangements that purport to be legally binding under Australian law

30 Arrangements that purport to be legally binding under Australian law

Arrangements that are legally binding under foreign law

31 Arrangements that are legally binding under foreign law

Subdivision B—Effect on non‑legally binding arrangements

32 Arrangements that are not legally binding

Part 3—Entering non‑core foreign arrangements

33 Simplified outline of this Part

Division 2—Entering non‑core foreign arrangements

Subdivision A—Requirement to notify the Minister about proposals to enter non‑core foreign arrangements

Requirement to notify the Minister about proposals to enter non‑core foreign arrangements

34 Requirement to notify the Minister about proposals to enter non‑core foreign arrangements

Subdivision B—Declarations about negotiations or proposals to enter non‑core foreign arrangements

Declarations about negotiating non‑core foreign arrangements

35 Declarations about negotiating non‑core foreign arrangements

Declarations about proposals to enter non‑core foreign arrangements

36 Declarations about proposals to enter non‑core foreign arrangements

Subdivision C—Matters relating to declarations under this Part

Matters relating to declarations under this Part

37 Matters relating to declarations under this Part

Subdivision D—Requirement to notify the Minister about entering non‑core foreign arrangements

38 Requirement to notify the Minister about entering non‑core foreign arrangements

Part 4—The Minister’s powers to make declarations about foreign arrangements, and subsidiary arrangements, that are in operation

39 Simplified outline of this Part

Division 2—The Minister’s power to make declarations about foreign arrangements that are in operation

Subdivision A—When the Minister may make declarations about foreign arrangements

When the Minister may make declarations under this Division

40 When the Minister may make declarations under this Division

Subdivision B—Declarations about legally binding foreign arrangements

Foreign arrangements that are legally binding under Australian law

41 Foreign arrangements that are legally binding under Australian law

Foreign arrangements that are legally binding under foreign law

42 Foreign arrangements that are legally binding under foreign law

Subdivision C—Declarations about non‑legally binding foreign arrangements

43 Foreign arrangements that are not legally binding

44 Matters relating to declarations about foreign arrangements

Division 3—The Minister’s power to make declarations about subsidiary arrangements that are in operation

Subdivision A—When the Minister may make declarations about subsidiary arrangements

When the Minister may make declarations under this Division

45 When the Minister may make declarations under this Division

Subdivision B—Declarations about legally binding subsidiary arrangements

Subsidiary arrangements that are legally binding under Australian law

46 Subsidiary arrangements that are legally binding under Australian law

Subsidiary arrangements that are legally binding under foreign law

47 Subsidiary arrangements that are legally binding under foreign law

Subdivision C—Declarations about non‑legally binding subsidiary arrangements

48 Subsidiary arrangements that are not legally binding

49 Matters relating to declarations about subsidiary arrangements

Part 5—Other matters

50 Simplified outline of this Part

Division 2—Matters that the Minister must take into account when making declarations under this Act

51 Matters that the Minister must take into account

Division 3—Enforcement

52 Injunctions

Division 4—The Public Register

53 The Minister must keep a public register

Division 4A—Annual report

53A Annual report

Division 5—The rules

54 The rules

Division 6—The Australian National University

55 Application of this Act to the Australian National University

Division 7—Other matters

56 Delegation by the Minister

57 Compensation for acquisition of property

58 Requirements in relation to procedural fairness

59 Extraterritorial application and extension to external Territories

60 Crown to be bound

61 Concurrent operation with State and Territory laws

62 Approved forms

63 Approved ways of giving notices to the Minister

63A Review of operation of Act

64 Schedule 1

Schedule 1—Transitional requirements relating to pre‑existing foreign arrangements

Division 1—Simplified outline of this Schedule

1 Simplified outline of this Schedule

Division 2—Requirement to notify the Minister about pre‑existing foreign arrangements

2 Requirement to notify the Minister about pre‑existing foreign arrangements that are core foreign arrangements

3 Requirement to notify the Minister about pre‑existing foreign arrangements that are non‑core foreign arrangements

Division 3—Consequences for failing to notify the Minister about pre‑existing foreign arrangements that are core foreign arrangements

Subdivision A—Pre‑existing foreign arrangements that are legally binding

Arrangements that are legally binding under Australian law

4 Arrangements that are legally binding under Australian law

Arrangements that are legally binding under foreign law

5 Arrangements that are legally binding under foreign law

Subdivision B—Pre‑existing foreign arrangements that are not legally binding

Arrangements that are not legally binding

6 Arrangements that are not legally binding

Commonwealth Coat of Arms of Australia

Australia’s Foreign Relations (State and Territory Arrangements) Act 2020

No. 116, 2020

An Act to protect and manage Australia’s foreign relations, and for related purposes

[Assented to 10 December 2020]

The Parliament of Australia enacts:

Part 1

Preliminary

Part 1—Preliminary

Div 1

Preliminary matters

Division 1—Preliminary matters

Short title

1 Short title

This Act is the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020.

Commencement

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

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. 10 December 2020
1. 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. 10 March 2021
1. Parts 4 and 5 and Schedule 1 The day this Act receives the Royal Assent. 10 December 2020

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Simplified outline of this Act

3 Simplified outline of this Act

Foreign arrangements

This Act deals with foreign arrangements. These are arrangements between particular kinds of State and Territory entities and particular kinds of foreign entities.

The kinds of State and Territory entities that are covered by this Act are the States and Territories themselves, their governments, Departments and agencies, as well as some other entities (see section 7 for the entities that are covered). Each of these entities is a “State/Territory entity”.

The kinds of foreign entities that are covered by this Act are foreign countries and the national governments, Departments and agencies of foreign countries; provinces, states or other political subdivisions of foreign countries and their corresponding governments, Departments and agencies; and some other entities (see section 8 for the entities that are covered). Each of these entities is a “foreign entity”.

A State/Territory entity is required to notify the Minister if the entity proposes to enter, or enters, a foreign arrangement.

There are additional requirements in Part 2 that apply just to core foreign arrangements. Core foreign arrangements are arrangements between a core State/Territory entity and a core foreign entity. Generally, these are principal State/Territory entities and foreign entities. (See subsections 10(3) and (4) for the entities that are covered.)

In some cases, additional requirements might apply to non‑core foreign arrangements. This depends on whether the Minister decides to make a declaration in relation to those arrangements. Certain conditions need to be satisfied before the Minister can make the declaration. Part 3 deals with these declarations.

The Minister may make a declaration that a foreign arrangement (whether or not a core foreign arrangement) is invalid and unenforceable, required to be varied or terminated, or not in operation (depending on the nature of the arrangement). Certain conditions need to be satisfied before the Minister can make the declaration. Part 4 deals with these declarations.

Subsidiary arrangements of foreign arrangements

This Act also applies in a more limited way to subsidiary arrangements of foreign arrangements. A subsidiary arrangement is an arrangement that is entered under the auspices of a foreign arrangement but is not itself a foreign arrangement.

The Minister may make a declaration that a subsidiary arrangement is invalid and unenforceable, required to be varied or terminated, or not in operation (depending on the nature of the arrangement). Part 4 deals with these declarations for subsidiary arrangements.

Variations of foreign arrangements

Generally, this Act applies to variations of arrangements in the same way as it applies to arrangements. For example, a State/Territory entity will be required to give a notice of a proposal to vary a foreign arrangement in the same way as it is required to give a notice of a proposal to enter a foreign arrangement.

Transitional requirements for pre‑existing foreign arrangements

A State/Territory entity that is party to a foreign arrangement that is in operation on the commencement day, or which comes into operation before the day on which Part 2 commences, must notify the Minister about the arrangement. Schedule 1 deals with these notification requirements.

4 Definitions

In this Act:

arrangement: see subsection 9(1).

Australia, when used in a geographical sense, includes the external Territories.

Australian law means a law of the Commonwealth, a State or a Territory.

Australia’s foreign policy: see subsection 5(2).

commencement day means the day section 1 commences.

core foreign arrangement: see subsection 10(2).

core foreign entity: see subsection 10(4).

core State/Territory entity: see subsection 10(3).

court means the High Court of Australia or the Federal Court of Australia.

exempt arrangement means an arrangement of a kind that is prescribed by the rules to be an exempt arrangement.

foreign arrangement: see subsection 6(2).

foreign country means any country that is outside Australia and the external Territories, whether or not it is an independent sovereign state.

foreign entity: see subsection 8(1).

foreign law means a law of a foreign country, or part of a foreign country.

gives effect to: a party to an arrangement gives effect to the arrangement if the party:

(a) gives effect to the arrangement in any way and to any extent, whether directly or indirectly; or

(b) takes any action for the purposes of implementing the arrangement (whether or not the arrangement contemplates that the action would be taken for those purposes), including, for example, the following action:

(i) participating in discussions, forums, exchanges, visits or other dealings contemplated by the arrangement;

(ii) promoting projects or other matters contemplated by the arrangement;

(iii) engaging in activities contemplated by the arrangement;

(iv) entering, or encouraging other entities to enter, other arrangements contemplated by the arrangement; or

(d) taking any action to terminate the arrangement; or

(e) taking any action to vary the arrangement in accordance with a requirement under this Act; or

(f) doing anything of a kind prescribed by the rules.

Paragraphs (a), (b) and (c) do not limit each other.

governing documents of a university: see subsection 8(4).

legally binding: see subsection 9(2).

negotiation of an arrangement means discussions or dealings between the proposed parties that are directed towards the making of the arrangement.

non‑core foreign arrangement means a foreign arrangement that is not a core foreign arrangement.

pre‑existing foreign arrangement: see subclause 2(2) of Schedule 1.

regulated Australian party to an arrangement means any of the following entities that are a party to the arrangement:

(a) a State/Territory entity;

(b) an individual who:

(i) is an Australian citizen; or

(ii) is a permanent Australian resident;

(d) a partnership or an association incorporated or formed under an Australian law;

(e) any other entity prescribed by the rules to be a regulated Australian party;

but does not include an entity prescribed by the rules as not being a regulated Australian party.

rules means rules made under subsection 54(1).

State/Territory entity: see section 7.

subsidiary arrangement: see subsection 12(1).

terminate an arrangement includes withdraw from the arrangement.

Territory means:

(a) the Australian Capital Territory; or

(b) the Northern Territory; or

this Act includes the rules.

under the auspices: see subsection 12(2).

variation of an arrangement: see subsection 13(2).

Div 2

Core provisions of this Act

Division 2—Core provisions of this Act

5 Object of this Act

(1) The object of this Act is to ensure that the Commonwealth is able to protect and manage Australia’s foreign relations by ensuring that any arrangement between a State/Territory entity and a foreign entity:

(a) does not, or is unlikely to, adversely affect Australia’s foreign relations; and

(b) is not, or is unlikely to be, inconsistent with Australia’s foreign policy.

(2) Australia’s foreign policy includes policy that the Minister is satisfied is the Commonwealth’s policy on matters that relate to:

(a) Australia’s foreign relations; or

(b) things outside Australia;

whether or not the policy:

(d) has been formulated, decided upon, or approved by any particular member or body of the Commonwealth.

6 Foreign arrangements

(1) For the purposes of achieving the objects of this Act, this Act has provisions that apply to foreign arrangements.

(2) A foreign arrangement is an arrangement between:

(a) a State/Territory entity; and

(b) a foreign entity;

whether or not other entities are also a party to the arrangement.

What are State/Territory entities?

7 What are State/Territory entities?

A State/Territory entity is any of the following entities:

(a) a State or Territory;

(b) the government of a State or Territory;

(d) a body established for the purposes of local government by, or under a law of a State or a Territory;

(e) a university established by, or under, a law of a State or a Territory;

(f) an entity that is prescribed by the rules to be a State/Territory entity;

(g) a corporation that operates on a commercial basis; or

(h) a hospital; or

(i) an entity that is prescribed by the rules as not being a State/Territory entity.

Paragraphs (a) to (f) do not limit each other.

What are foreign entities?

8 What are foreign entities?

(1) A foreign entity is any of the following entities:

(a) a foreign country;

(b) the national government of a foreign country;

(d) a province, state, self‑governing territory, region, local council, municipality or other political subdivision (by whatever name known) of a foreign country;

(e) a local council, municipality or other political subdivision (by whatever name known) of an entity covered by paragraph (d);

(f) the government of an entity covered by paragraph (d) or (e);

(g) a Department or agency (however described) of an entity covered by paragraph (d), (e) or (f);

(h) an entity (other than a university) that:

(i) is an authority of an entity covered by paragraph (a), (b), (d), (e) or (f); and

(ii) is established for a public purpose;

(i) a university that:

(i) is located in a foreign country; and

(ii) does not have institutional autonomy (see subsection (2));

(j) an entity that is external to Australia and is prescribed by the rules to be a foreign entity;

(k) a corporation that operates on a commercial basis; or

(l) an entity that is prescribed by the rules as not being a foreign entity.

Paragraphs (a) to (j) do not limit each other.

(2) For the purposes of subparagraph (1)(i)(ii), a university does not have institutional autonomy if, and only if, a foreign government (whether or not the government of the country, or part of the country, in which the university is located) is in a position to exercise substantial control over the university.

(3) For the purposes of subsection (2), a foreign government is in a position to exercise substantial control over a university if, and only if, one or more of the following paragraphs are satisfied:

(a) a majority of the members of the university’s governing body are required, by a law or the university’s governing documents, to be members or part of (however described) the political party that forms the foreign government;

(b) education provided or research conducted at the university is required, by a law or the university’s governing documents, to adhere to, or be in service of, political principles or political doctrines of:

(i) the foreign government; or

(ii) the political party that forms the foreign government;

(c) the university’s academic staff are required, by a law or the university’s governing documents, to adhere to, or be in service of, political principles or political doctrines referred to in paragraph (b) in their teaching, research, discussions, publications or public commentary.

(4) The governing documents of a university are the constitution, rules or other official documents by which the university is constituted or according to which the university operates.

What is an arrangement?

9 What is an arrangement?

(1) An arrangement is any written arrangement, agreement, contract, understanding or undertaking:

(a) whether or not it is legally binding; and

(b) whether or not it is made in Australia; and

(2) An arrangement is legally binding if any of the provisions of the arrangement confer legal rights or impose legal obligations that are legally enforceable under an Australian law or a foreign law.

Core foreign arrangements

10 Core foreign arrangements

(1) For the purposes of achieving the objects of this Act, this Act has special provisions that apply to core foreign arrangements.

(2) A core foreign arrangement is an arrangement between:

(a) a core State/Territory entity; and

(b) a core foreign entity;

whether or not other entities are also a party to the arrangement.

Note: Core foreign arrangements are a particular subset of foreign arrangements. There are special requirements for them because they are more likely to affect Australia’s foreign relations. Part 2, in particular, has special rules about negotiating or entering core foreign arrangements.

(3) A core State/Territory entity is an entity covered by paragraph 7(a), (b) or (c) (even if the entity is also covered by paragraph 7(d), (e) or (f)).

(4) A core foreign entity is:

(a) an entity covered by paragraph 8(1)(a), (b) or (c) (even if the entity is also covered by paragraph 8(1)(d), (e), (f), (g), (h), (i) or (j)); or

(b) an entity that is external to Australia and is prescribed by the rules to be a core foreign entity;

but does not include a corporation that operates on a commercial basis.

Application of this Act to subsidiary arrangements

11 Application of this Act to subsidiary arrangements

For the purposes of achieving the objects of this Act, this Act also has provisions dealing with subsidiary arrangements of foreign arrangements.

What is a subsidiary arrangement?

12 What is a subsidiary arrangement?

(1) An arrangement is a subsidiary arrangement of a foreign arrangement if:

(a) the arrangement is entered under the auspices of the foreign arrangement; and

(b) the arrangement is not a foreign arrangement.

(2) An arrangement is entered under the auspices of a foreign arrangement if the arrangement is entered at the same time, or after, the foreign arrangement is entered, and:

(a) the arrangement is entered for the purposes of implementing the foreign arrangement, in any way and to any extent, whether directly or indirectly, and whether or not:

(i) the arrangement refers to the foreign arrangement; or

(ii) the foreign arrangement contemplates the arrangement, or arrangements of the same kind as the arrangement, being entered; or

(b) both of the following are satisfied:

(i) the foreign arrangement contemplates the arrangement, or arrangements of the same kind as the arrangement, being entered (including, for example, by encouraging or promoting the arrangement, or arrangements of that kind, to be entered);

(ii) the arrangement is entered as a consequence of the foreign arrangement, or of any actions taken under the foreign arrangement; or

Paragraphs (a), (b) and (c) do not limit each other.

(3) For the purposes of subsection (1), it does not matter whether the parties were aware, when entering the subsidiary arrangement, that the foreign arrangement:

(a) was entered in contravention of a provision of this Act; or

(b) was, because of the operation of a provision of this Act, invalid, unenforceable, not in operation, terminated, required to be terminated, or affected in any other way.

Application of this Act to variations of arrangements

13 Application of this Act to variations of arrangements

General application to variations of arrangements

(1) This Act applies in relation to a variation of an arrangement (whether the arrangement is made before, on or after the commencement day) in the same way it applies in relation to an arrangement.

Example: Sections 16 and 23 require a core State/Territory entity to notify the Minister about proposals to negotiate or enter a core foreign arrangement. Because of this subsection, if the entity proposes to negotiate a variation of a core foreign arrangement, or make a variation of a core foreign arrangement, then the entity is required to notify the Minister about that proposal.

(2) A variation of an arrangement is any written variation of an arrangement:

(a) whether or not it is legally binding; and

(b) whether or not it is made in Australia;

and includes the exercise of an option to extend the arrangement.

Additional application for subsidiary arrangements

(3) Without limiting subsection (1), this Act applies as if a reference to an arrangement that is entered under the auspices of a foreign arrangement includes a reference to the following:

(a) a variation of an arrangement that is made under the auspices of a foreign arrangement;

(b) an arrangement that is entered under the auspices of a variation of a foreign arrangement.

Exemptions

(4) Without limiting subsection (1), the rules may prescribe that variations of arrangements of a kind are exempt, even if the rules do not prescribe that arrangements of that kind are exempt.

Exceptions

(5) Subsections (1), (3) and (4) do not apply in:

(a) subsection (2); and

(b) subsection 9(1) (which is the definition of arrangement); and

Part 2

Negotiating and entering core foreign arrangements

Part 2—Negotiating and entering core foreign arrangements

Simplified outline of this Part

14 Simplified outline of this Part

A core State/Territory entity that proposes to negotiate or enter an arrangement with a core foreign entity must notify the Minister about that proposal. If the entity enters the arrangement, it must also notify the Minister about that.

A core State/Territory entity must not negotiate an arrangement with a core foreign entity without the Minister’s approval (see section 15). The entity also must not enter the arrangement without the Minister’s approval (see section 22).

The Minister must give approval if the Minister is satisfied that the proposed negotiation or arrangement:

(b) would not be, or would be unlikely to be, inconsistent with Australia’s foreign policy.

Otherwise, the Minister must refuse to give approval.

However, if the Minister does not make a decision within 30 days of being notified of the proposal to negotiate or enter the arrangement, then the Minister is taken to have given approval for the proposal.

If a core State/Territory entity enters an arrangement with a core foreign entity without the Minister’s approval, then the arrangement will be invalid and unenforceable, be required to be terminated, or not be in operation (depending on the nature of the arrangement). The entities will also be prohibited from giving effect to the arrangement and from holding out that they are able to give effect to the arrangement. These consequences will apply automatically and without the involvement of the Minister (see sections 30 to 32).

Subsidiary arrangements of the unlawfully entered arrangement may also be affected (see Division 3 of Part 4).

Division 2—Negotiating core foreign arrangements

Prohibition on negotiations without the Minister’s approval

15 Prohibition on negotiations without the Minister’s approval

(1) A core State/Territory entity must not negotiate an arrangement with a core foreign entity if the Minister’s approval under subsection 17(2) or 21(2) is not in force for the negotiation.

(2) Subsection (1) does not apply to an exempt arrangement.

Requirement to notify the Minister about negotiations

16 Requirement to notify the Minister about negotiations

(1) If a core State/Territory entity proposes to negotiate an arrangement with a core foreign entity, then it must give a notice to the Minister in accordance with the requirements in subsection (2).

Note: If the core State/Territory entity proposes to enter the arrangement, it is required to give the Minister another notice about that (see section 23).

(d) be accompanied by any documents prescribed by the rules; and

(e) be given in the approved way (if any).

The Minister’s decision about negotiations

17 The Minister’s decision about negotiations

Minister to make decision about negotiations

(1) If a core State/Territory entity gives the Minister a notice under subsection 16(1) about a proposal to negotiate an arrangement with a core foreign entity, then the Minister must, as soon as practicable, make a decision under this section about the proposal.

Note: However, if the Minister does not make a decision within 30 days of being given the notice, then, under subsection 21(2), the Minister is taken to have given approval for the negotiation proceeding. In addition, the Minister will no longer be able to make a decision under this section about the negotiation (see subsection 21(4)).

Approval decision

(2) If the Minister is satisfied that the proposed negotiation:

(b) would not be, or would be unlikely to be, inconsistent with Australia’s foreign policy;

then the Minister must give approval for the negotiation proceeding.

Note: The Minister must give the core State/Territory entity written notice of the approval decision (see subsection 18(1)).

Refusal decision

(3) Otherwise, the Minister must refuse to give approval for the negotiation proceeding.

Note: The Minister must give the core State/Territory entity written notice of the refusal decision (see section 20).

Revocation of approval decision

(4) The Minister may revoke an approval decision under subsection (2) if the Minister ceases to be satisfied of the matters on which the decision was made.

Note: The Minister must give the core State/Territory entity written notice of the revocation decision (see subsection 18(2)).

No revocation of refusal decision

(5) However, the Minister may not revoke a refusal decision under subsection (3).

Note: The Minister may make a new decision to give approval under this section if the core State/Territory entity gives the Minister a new notice under subsection 16(1).

Notices relating to the Minister’s approval under subsection 17(2)

18 Notices relating to the Minister’s approval under subsection 17(2)

Notice of approval decision

(1) If the Minister makes a decision under subsection 17(2) to give approval for a core State/Territory entity negotiating an arrangement with a core foreign entity, then the Minister must, as soon as practicable, give the core State/Territory entity a written notice under this subsection that states:

(a) that the Minister gives approval for the negotiation to proceed; and

(b) the day the approval comes into force.

Notice of decision to revoke approval decision

(2) If, under subsection 17(4), the Minister revokes the approval decision under subsection 17(2), the Minister must, as soon as practicable, give the core State/Territory entity a written notice that states:

(a) that the Minister’s approval is revoked; and

(b) the day the revocation comes into force; and

When the Minister’s approval under subsection 17(2) is in force

19 When the Minister’s approval under subsection 17(2) is in force

The Minister’s approval for a core State/Territory entity to negotiate an arrangement with a core foreign entity:

(a) comes into force on the day specified in the approval notice given under subsection 18(1); and

(b) if, under subsection 17(4), the Minister revokes the approval decision under subsection 17(2)—ceases to be in force on the day specified in the revocation notice given under subsection 18(2).

Notice of the Minister’s refusal under subsection 17(3)

20 Notice of the Minister’s refusal under subsection 17(3)

As soon as practicable after making a decision under subsection 17(3) to refuse to give approval for a core State/Territory entity to negotiate an arrangement with a core foreign entity, the Minister must give the core State/Territory entity a written notice of the decision.

When the Minister is taken to have given approval for negotiations

21 When the Minister is taken to have given approval for negotiations

(1) This section applies if:

(a) a core State/Territory entity gives the Minister a notice under subsection 16(1) about its proposal to negotiate an arrangement with a core foreign entity; and

(b) the Minister has not made a decision under subsection 17(2) or (3) within the 30‑day period that starts on the day the notice is given.

(2) The Minister is taken to have given approval under this subsection for the negotiation proceeding.

Note: The Minister’s approval under this subsection may not be revoked.

(3) The Minister’s approval under subsection (2) comes into force immediately after the end of the period referred to in paragraph (1)(b).

(4) The Minister may no longer make a decision under section 17 about the negotiation.

Div 3

Entering core foreign arrangements

Division 3—Entering core foreign arrangements

Prohibition on entering core foreign arrangements

22 Prohibition on entering core foreign arrangements

(1) A core State/Territory entity must not enter an arrangement with a core foreign entity if the Minister’s approval under subsection 24(2) or 28(2) is not in force in relation to the arrangement.

Note 1: If the State/Territory entity enters the arrangement without the Minister’s approval, then section 30, 31 or 32 automatically applies to the arrangement to make it invalid, unenforceable or not in operation, or to require the State/Territory entity to terminate it. Those sections also prohibit the parties from giving effect to the arrangement.

Note 2: Similar consequences may apply to any subsidiary arrangements of the arrangement (see sections 46 to 48).

(2) Subsection (1) does not apply to an exempt arrangement.

Requirement to notify the Minister before entering core foreign arrangements

23 Requirement to notify the Minister before entering core foreign arrangements

(1) If a core State/Territory entity proposes to enter an arrangement with a core foreign entity, then it must give a notice to the Minister in accordance with subsection (2) before entering the arrangement.

Note: If the core State/Territory entity enters the arrangement, it is required to give the Minister another notice about that (see section 29).

(d) specify the day it is proposed to enter the arrangement; and

(e) include any information prescribed by the rules; and

(f) be accompanied by any documents prescribed by the rules; and

(g) be given in the approved way (if any).

The Minister’s decision about proposals to enter core foreign arrangements

24 The Minister’s decision about proposals to enter core foreign arrangements

Minister must make decision about proposal

(1) If a core State/Territory entity gives the Minister a notice under subsection 23(1) about its proposal to enter an arrangement with a core foreign entity, then the Minister must, as soon as practicable, make a decision under this section about the proposed arrangement.

Note: However, if the Minister does not make a decision within 30 days of being given the notice, then, under subsection 28(2), the Minister is taken to have given approval for the core State/Territory to enter the proposed arrangement. In addition, the Minister will no longer be able to make a decision under this section about the proposed arrangement (see subsection 28(4)).

Approval decision

(2) If the Minister is satisfied that the proposed arrangement:

(b) would not be, or would be unlikely to be, inconsistent with Australia’s foreign policy;

then the Minister must give approval for the core State/Territory entity to enter the arrangement as proposed.

Note: The Minister must give the core State/Territory entity a written notice of the approval decision (see subsection 25(1)).

Refusal decision

(3) Otherwise, the Minister must refuse to give approval for the core State/Territory entity entering the arrangement.

Note: The Minister must give the core State/Territory entity a written notice of the refusal decision (see section 27).

Revocation of approval decision

(4) The Minister may revoke a decision under subsection (2) if the Minister ceases to be satisfied of the matters on which the decision was made.

Note: The Minister must give the core State/Territory entity a written notice of the revocation decision (see subsection 25(2)).

(5) However, the Minister may not revoke a decision under subsection (2) after the core State/Territory entity enters the arrangement.

Note: However, if after the arrangement is entered, the Minister is no longer satisfied of the matters referred to in subsection (2), the Minister may make a declaration under Part 4 about the arrangement (see section 40).

No revocation of refusal decision

(6) The Minister may not revoke a refusal decision under subsection (3).

Note: The Minister may make a new decision to give approval under this section if the core State/Territory entity gives the Minister a new notice under subsection 23(1).

Notices relating to the Minister’s approval under subsection 24(2)

25 Notices relating to the Minister’s approval under subsection 24(2)

Notice of approval decision

(1) If the Minister makes a decision under subsection 24(2) to give approval for a core State/Territory entity entering an arrangement with a core foreign entity, then the Minister must, as soon as practicable, give the core State/Territory entity a written notice under this subsection that states:

(a) that the Minister gives approval for the core State/Territory entity entering the arrangement; and

(b) the day the approval comes into force.

Notice of revocation of approval decision

(2) If, under subsection 24(4), the Minister revokes an approval decision under subsection 24(2), the Minister must, as soon as practicable, give the core State/Territory entity a written notice that states:

(a) that the Minister’s approval is revoked; and

(b) the day the revocation comes into force; and

When the Minister’s approval under subsection 24(2) is in force

26 When the Minister’s approval under subsection 24(2) is in force

The Minister’s approval for a core State/Territory entity entering an arrangement with a core foreign entity:

(a) comes into force on the day specified in the approval notice given under subsection 25(1); and

(b) if, under subsection 24(4), the Minister revokes the decision under subsection 24(2)—ceases to be in force on the day specified in the revocation notice given under subsection 25(2).

Notice of the Minister’s refusal under subsection 24(3)

27 Notice of the Minister’s refusal under subsection 24(3)

As soon as practicable after making a decision under subsection 24(3) to refuse to give approval for a core State/Territory entity entering an arrangement with a core foreign entity, the Minister must give the core State/Territory a written notice that states:

(a) the Minister’s decision; and

(b) if the Minister considers that changes could be made to the arrangement that could allow the Minister to give approval for the core State/Territory entity entering an arrangement with the core foreign entity—the Minister’s recommended changes.

Note: If the core State/Territory entity agrees to the Minister’s recommended changes, the entity could decide to give a new notice under subsection 23(1) for a new arrangement with the core foreign entity that incorporates those changes.

When the Minister is taken to have given approval for proposals to enter core foreign arrangements

28 When the Minister is taken to have given approval for proposals to enter core foreign arrangements

(1) This section applies if:

(a) a core State/Territory entity gives the Minister a notice under subsection 23(1) about its proposal to enter an arrangement with a core foreign entity; and

(b) the Minister has not made a decision under subsection 24(2) or (3) within the 30‑day period that starts on the day the notice is given.

(2) The Minister is taken to have given approval under this subsection for the core State/Territory entity to enter the arrangement as proposed.

Note: The Minister’s approval under this subsection may not be revoked.

(3) The Minister’s approval under subsection (2) comes into force immediately after the end of the period referred to in paragraph (1)(b).

(4) The Minister may no longer make a decision under section 24 about the proposed arrangement.

Requirement to notify the Minister about entering core foreign arrangements

29 Requirement to notify the Minister about entering core foreign arrangements

(1) If a core State/Territory entity enters an arrangement with a core foreign entity, then the State/Territory entity must, within 14 days or such longer period prescribed by the rules, give a notice to the Minister in accordance with subsection (2).

(b) be accompanied by a copy of the arrangement; and

(d) be accompanied by any other documents prescribed by the rules.

Div 4

Consequences of unlawfully entering core foreign arrangements

Division 4—Consequences of unlawfully entering core foreign arrangements

Subdivision A—Effect on legally binding arrangements

30 Arrangements that purport to be legally binding under Australian law

(a) a core State/Territory entity enters an arrangement with a core foreign entity in contravention of subsection 22(1); and

(b) the arrangement purports to be legally binding under an Australian law;

(2) The arrangement is, and is taken to have always been, invalid and unenforceable.

(i) this section applies to the arrangement; and

(ii) the arrangement is, and is taken to have always been, invalid and unenforceable; and

(b) as soon as practicable after it has complied with paragraph (a), notify the Minister, in writing, of its compliance with that paragraph.

(4) The core State/Territory entity must not, at any time:

(5) The core foreign entity must not, from the time it is notified under subsection (3) that this section applies to the arrangement:

31 Arrangements that are legally binding under foreign law

(a) a core State/Territory entity enters an arrangement with a core foreign entity in contravention of subsection 22(1); and

(b) the arrangement is legally binding under a foreign law;

(2) After entering the arrangement, the core State/Territory entity must:

(a) within 14 days, or such longer period (if any) prescribed by the rules:

(i) notify the core foreign entity that this section applies to the arrangement; and

(ii) take steps to terminate the arrangement in accordance with the foreign law; and

(b) as soon as practicable after it has complied with paragraph (a), notify the Minister, in writing, of its compliance with that paragraph.

(3) The core State/Territory entity must not, at any time:

(b) hold out, or conduct itself on the basis, that it can give effect to the arrangement.

(4) The core foreign entity must not, from the time it is notified under subsection (2) that this section applies to the arrangement:

(b) hold out in Australia, or conduct itself in Australia on the basis, that it can give effect to the arrangement.

Subdivision B—Effect on non‑legally binding arrangements

Arrangements that are not legally binding

32 Arrangements that are not legally binding

(a) a core State/Territory entity enters an arrangement with a core foreign entity in contravention of subsection 22(1); and

(b) the arrangement is not legally binding;

(2) The arrangement is not, and is taken never to have been, in operation.

(3) After entering the arrangement, the core State/Territory entity must:

(i) this section applies to the arrangement; and

(ii) the arrangement is not, and is taken never to have been, in operation; and

(b) as soon as practicable after it has complied with paragraph (a), notify the Minister, in writing, of its compliance with that paragraph.

(4) The core State/Territory entity must not, at any time:

(5) The core foreign entity must not, from the time it is notified under subsection (3) that this section applies to the arrangement:

Part 3

Entering non‑core foreign arrangements

Part 3—Entering non‑core foreign arrangements

Simplified outline of this Part

33 Simplified outline of this Part

A State/Territory entity that proposes to enter a non‑core arrangement must notify the Minister about that proposal. If the entity enters the arrangement, it must also notify the Minister about that.

The Minister may make a declaration prohibiting a State/Territory entity from negotiating or entering a non‑core arrangement. Broadly, the Minister may only make such a declaration if the Minister is satisfied that the negotiation or arrangement:

(a) would adversely affect, or would be likely to adversely affect, Australia’s foreign relations; or

(b) would be, or would be likely to be, inconsistent with Australia’s foreign policy.

There are particular matters that the Minister must take into account when making a decision to make a declaration (see section 51).

If a State/Territory entity enters a non‑core arrangement with a foreign entity in contravention of a declaration by the Minister, then that will be a ground on which the Minister may make a declaration under Part 4 about the arrangement (which could result in the arrangement being invalid and unenforceable, required to be terminated, or not in operation (depending on the nature of the arrangement).

Subsidiary arrangements of the unlawfully entered arrangement may also be affected (see Division 3 of Part 4).

Division 2—Entering non‑core foreign arrangements

Subdivision A—Requirement to notify the Minister about proposals to enter non‑core foreign arrangements

34 Requirement to notify the Minister about proposals to enter non‑core foreign arrangements

(a) a State/Territory entity proposes to enter an arrangement with a foreign entity; and

(b) the arrangement is a non‑core foreign arrangement;

then it must give a notice to the Minister in accordance with subsection (2).

Note: If the State/Territory entity enters the arrangement, it is required to give the Minister another notice about that (see section 38).

(d) include any information prescribed by the rules; and

(e) be accompanied by any documents prescribed by the rules; and

(f) be given in the approved way (if any); and

(g) be given in the period (if any) prescribed by the rules.

Subdivision B—Declarations about negotiations or proposals to enter non‑core foreign arrangements

35 Declarations about negotiating non‑core foreign arrangements

(1) The Minister may make a declaration under subsection (2) if:

(a) the Minister becomes aware that a State/Territory entity proposes to negotiate, or is negotiating, an arrangement with a foreign entity; and

(b) the arrangement is a non‑core foreign arrangement; and

(c) if the State/Territory entity is proposing to negotiate the arrangement—the Minister is satisfied that the proposed negotiation:

(i) would adversely affect, or would be likely to adversely affect, Australia’s foreign relations; or

(ii) would be, or would be likely to be, inconsistent with Australia’s foreign policy; and

(d) if the State/Territory entity is negotiating the arrangement—the Minister is satisfied that the negotiation:

(ii) is, or is likely to be, inconsistent with Australia’s foreign policy.

Note 1: The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) (see section 51).

Note 2: Section 37 deals with general matters about the declaration (such as revocation and giving notice to the State/Territory entity).

Declaration not to negotiate

(2) The Minister may make a written declaration that the State/Territory entity must not start, or continue, to negotiate the arrangement.

(3) The State/Territory entity must comply with the declaration.

(4) A declaration made under subsection (2) is not a legislative instrument.

36 Declarations about proposals to enter non‑core foreign arrangements

(1) The Minister may make a declaration under subsection (2) if:

(a) a State/Territory entity proposes to enter an arrangement with a foreign entity (whether or not notice of the proposal has been given to the Minister under section 34); and

(b) the arrangement is a non‑core foreign arrangement; and

(i) would adversely affect, or would be likely to adversely affect, Australia’s foreign relations; or

(ii) would be, or would be likely to be, inconsistent with Australia’s foreign policy.

Note 1: The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) (see section 51).

Note 2: Section 37 deals with general matters about the declaration (such as revocation and giving notice to the State/Territory entity).

Declaration not to enter arrangement

(2) The Minister may make a written declaration that the State/Territory entity must not enter the arrangement.

(3) The State/Territory entity must comply with the declaration.

Note 1: If the State/Territory entity enters the arrangement in contravention of the declaration, then the Minister may make a declaration under section 41, 42 or 43 in relation to the arrangement. If the Minister does so, then, to the extent specified in the declaration, the arrangement will become invalid, unenforceable or not in operation, or be required to be varied or terminated. The declaration may also prohibit the State/Territory entity and foreign entity from giving effect to the arrangement or from holding out that they are able to give effect to the arrangement.

Note 2: In addition, the Minister may make a similar declaration in relation to any subsidiary arrangements of the arrangement (see sections 46 to 48).

(4) A declaration made under subsection (2) is not a legislative instrument.

Subdivision C—Matters relating to declarations under this Part

37 Matters relating to declarations under this Part

(1) This section applies if the Minister makes a declaration under subsection 35(2) or 36(2) in relation to negotiations or proposals to enter an arrangement between a State/Territory entity and a foreign entity.

Revoking declarations

(3) The Minister may revoke the declaration if the Minister ceases to be satisfied of the matters on which the declaration was made.

(4) The Minister must, as soon as practicable after making the declaration, give the State/Territory entity a written notice under this subsection that:

(5) If, under subsection (3), the Minister revokes the declaration, then the Minister must, as soon as practicable, give the State/Territory entity a written notice that states that the declaration is revoked.

Subdivision D—Requirement to notify the Minister about entering non‑core foreign arrangements

Requirement to notify the Minister about entering non‑core foreign arrangements

38 Requirement to notify the Minister about entering non‑core foreign arrangements

(a) a State/Territory entity enters an arrangement with a foreign entity; and

(b) the arrangement is a non‑core foreign arrangement;

then the State/Territory entity must, within 14 days or such longer period prescribed by the rules, give a notice to the Minister in accordance with subsection (2).

(b) be accompanied by a copy of the arrangement; and

(d) be accompanied by any documents prescribed by the rules.

Part 4

The Minister’s powers to make declarations about foreign arrangements, and subsidiary arrangements, that are in operation

Part 4—The Minister’s powers to make declarations about foreign arrangements, and subsidiary arrangements, that are in operation

Simplified outline of this Part

39 Simplified outline of this Part

Declarations in relation to foreign arrangements

Under this Part, the Minister may make a declaration that a foreign arrangement between a State/Territory entity and a foreign entity is invalid and unenforceable, required to be varied or terminated, or not in operation (depending on the nature of the arrangement), to the extent specified in the declaration. If the Minister makes such a declaration, the entities will also be prohibited from giving effect to the arrangement and from holding out that they are able to give effect to the arrangement, to the extent specified in the declaration.

There are 2 situations in which the Minister may make the declaration. The first is where the Minister is satisfied that the arrangement:

(a) adversely affects, or is likely to adversely affect, Australia’s foreign relations; or

(b) is, or is likely to be, inconsistent with Australia’s foreign policy.

The second is where the arrangement was entered in contravention of a declaration made by the Minister under Part 3 (which is about non‑core arrangements).

There are particular matters that the Minister must take into account when making a decision to make a declaration about a foreign arrangement (see section 51).

Declarations in relation to subsidiary arrangements

Under this Part, the Minister may also make a declaration that a subsidiary arrangement of a foreign arrangement is invalid and unenforceable, required to be varied or terminated, or not in operation (depending on the nature of the subsidiary arrangement), to the extent specified in the declaration. If the Minister makes such a declaration, the parties to the subsidiary arrangement will be prohibited from giving effect to the arrangement and from holding out that they are able to give effect to the arrangement, to the extent specified in the declaration.

Two conditions must be satisfied before the Minister may make such a declaration in relation to a subsidiary arrangement.

The first is that any of the following apply to the foreign arrangement:

(a) the Minister has made a declaration that the foreign arrangement is invalid and unenforceable, required to be varied or terminated, or not in operation (depending on the nature of the foreign arrangement);

(b) the foreign arrangement was entered in contravention of subsection 22(1) or 36(3);

The second is that the Minister is satisfied that the subsidiary arrangement:

(a) adversely affects, or is likely to adversely affect, Australia’s foreign relations; or

(b) is, or is likely to be, inconsistent with Australia’s foreign policy.

There are particular matters that the Minister must take into account when making a decision to make a declaration about a subsidiary arrangement (see section 51).

Division 2—The Minister’s power to make declarations about foreign arrangements that are in operation

Subdivision A—When the Minister may make declarations about foreign arrangements

40 When the Minister may make declarations under this Division

(1) The Minister may make a declaration under this Division in relation to an arrangement between a State/Territory entity and a foreign entity if:

(a) the Minister is satisfied that the arrangement:

(ii) is, or is likely to be, inconsistent with Australia’s foreign policy; or

(b) the State/Territory entity entered the arrangement in contravention of subsection 36(3).

Note: The Minister must take into account certain matters when making a decision to make a declaration under this Division (see section 51).

Matters that are not relevant

(2) The Minister may make the declaration, irrespective of whether:

(a) the arrangement was entered before or after the commencement day; or

(b) the Minister previously decided:

(i) not to make a declaration under this Division in relation to the arrangement; or

(ii) to make a different declaration under this Division in relation to the arrangement; or

(c) if the arrangement is a core foreign arrangement—the Minister gave approval under subsection 24(2) or 28(2) for the core State/Territory entity to enter the arrangement; or

(d) if the arrangement is a non‑core foreign arrangement—the Minister did not make a declaration under subsection 36(2) prohibiting a State/Territory entity entering the arrangement.

Subdivision B—Declarations about legally binding foreign arrangements

41 Foreign arrangements that are legally binding under Australian law

(1) The Minister may make a declaration under subsection (2) or (3) in relation to an arrangement between a State/Territory entity and a foreign entity if:

(b) apart from the declaration, the arrangement would be legally binding under an Australian law.

Note 1: The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) or (3) (see section 51).

Note 2: Section 44 deals with general matters about the declaration (such as revocation and giving notice to the State/Territory entity).

Declaration that arrangement is invalid and unenforceable

(a) the arrangement:

(i) is invalid and unenforceable to the specified extent and from the specified day; or

(ii) if the arrangement was entered in contravention of subsection 36(3)—is, and is taken to have always been, invalid and unenforceable to the specified extent; and

(b) the State/Territory entity must, within the specified period, notify the foreign entity that:

(ii) the arrangement is invalid and unenforceable, to the specified extent;

(c) the State/Territory entity must, as soon as practicable after complying with paragraph (b), notify the Minister, in writing, of its compliance with that paragraph; and

(iii) hold out, or conduct itself on the basis, that the arrangement is valid or enforceable; and

(iii) hold out in Australia, or conduct itself in Australia on the basis, that the arrangement is valid or enforceable.

(b) the State/Territory entity must, in accordance with any specified requirements, vary or terminate the arrangement; and

(c) the State/Territory entity must, as soon as practicable after complying with paragraph (a) or (b), notify the Minister, in writing, of its compliance with that paragraph; and

(4) The State/Territory entity must comply with the declaration to the extent that it applies to the entity.

(5) The foreign entity must comply with the declaration:

(a) if it has been a given a copy of the declaration as required by paragraph (2)(b) or (3)(a); and

(6) For the purposes of paragraph (3)(b), the declaration may require that the arrangement be varied or terminated:

(a) in accordance with the Australian law; or

42 Foreign arrangements that are legally binding under foreign law

(1) The Minister may make a declaration under subsection (2) in relation to an arrangement between a State/Territory entity and a foreign entity if:

(b) the arrangement is legally binding under a foreign law.

Note 1: The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) (see section 51).

Note 2: Section 44 deals with general matters about the declaration (such as revocation and giving notice to the State/Territory entity).

(b) the State/Territory entity must, in accordance with any specified requirements, vary or terminate the arrangement; and

(c) the State/Territory entity must, as soon as practicable after complying with paragraph (a) or (b), notify the Minister, in writing, of its compliance with that paragraph; and

(3) The State/Territory entity must comply with the declaration to the extent that it applies to the entity.

(4) The foreign entity must comply with the declaration:

(a) if it has been a given a copy of the declaration as required by paragraph (2)(a); and

(5) For the purposes of paragraph (2)(b), the declaration may require that the arrangement be varied or terminated:

(a) in accordance with the foreign law; or

(6) A declaration made under subsection (2) is not a legislative instrument.

Subdivision C—Declarations about non‑legally binding foreign arrangements

Foreign arrangements that are not legally binding

43 Foreign arrangements that are not legally binding

(1) The Minister may make a declaration under subsection (2) or (3) in relation to an arrangement between a State/Territory entity and a foreign entity if:

(b) the arrangement is not legally binding.

Note 1: The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) or (3) (see section 51).

Note 2: Section 44 deals with general matters about the declaration (such as revocation and giving notice to the State/Territory entity).

Declaration that arrangement is not in operation

(a) the arrangement:

(i) is not in operation, to the specified extent and from the specified day; or

(ii) if the arrangement was entered in contravention of subsection 36(3)—is not, and is taken never to have been, in operation to the specified extent; and

(b) the State/Territory entity must, within the specified period notify the foreign entity that:

(ii) the arrangement is not in operation, to the specified extent;

(c) the State/Territory entity must, as soon as practicable after complying with paragraph (b), notify the Minister, in writing, of its compliance with that paragraph; and

(iii) hold out, or conduct itself on the basis, that the arrangement is in operation; and

(iii) hold out in Australia, or conduct itself in Australia on the basis, that the arrangement is in operation.

(b) the State/Territory entity must, in accordance with any specified requirements, vary or terminate the arrangement; and

(c) the State/Territory entity must, as soon as practicable after complying with paragraph (a) or (b), notify the Minister, in writing, of its compliance with that paragraph; and

(4) The State/Territory entity must comply with the declaration to the extent that it applies to the entity.

(5) The foreign entity must comply with the declaration:

(a) if it has been a given a copy of the declaration as required by paragraph (2)(b) or (3)(a); and

(6) For the purposes of paragraph (3)(b), the declaration may require that the arrangement be varied or terminated:

(a) in accordance with any variation or termination clause of the arrangement; or

Matters relating to declarations about foreign arrangements

44 Matters relating to declarations about foreign arrangements

(1) This section applies if the Minister makes a declaration under subsection 41(2) or (3), 42(2) or 43(2) or (3) in relation to an arrangement between a State/Territory entity and a foreign entity.

Revoking declaration

(3) The Minister may revoke the declaration if the Minister ceases to be satisfied of the matters on which the declaration was made.

(4) However, the Minister may not revoke the declaration if it has already come into force.

(5) If the Minister revokes the declaration, then the Minister must revoke any declaration made under subsection 46(2) or (3), 47(2) or 48(2) or (3) in relation to a subsidiary arrangement of the arrangement.

(6) The Minister must, as soon as practicable after making the declaration, give the State/Territory entity a written notice under this subsection that:

(7) If, under subsection (3), the Minister revokes the declaration, then the Minister must, as soon as practicable, give the State/Territory entity a written notice that states that the declaration is revoked.

Division 3—The Minister’s power to make declarations about subsidiary arrangements that are in operation

Subdivision A—When the Minister may make declarations about subsidiary arrangements

45 When the Minister may make declarations under this Division

(1) The Minister may make a declaration under this Division in relation to a subsidiary arrangement of a foreign arrangement if:

(a) any of the following apply to the foreign arrangement:

(i) a declaration is in force under subsection 41(2) or (3), 42(2) or 43(2) or (3) in relation to the foreign arrangement;

(ii) the foreign arrangement was entered in contravention of subsection 22(1) or 36(3);

(iii) clause 4, 5 or 6 of Schedule 1 applies to the foreign arrangement; and

(b) the Minister is satisfied that the subsidiary arrangement:

(ii) is, or is likely to be, inconsistent with Australia’s foreign policy.

Note: The Minister must take into account certain matters when making a decision to make a declaration under this Division (see section 51).

Matters that are not relevant

(2) The Minister may make the declaration, irrespective of whether:

(a) the subsidiary arrangement was entered before or after the commencement day; or

(b) the Minister previously decided:

(i) not to make a declaration under this Division in relation to the subsidiary arrangement; or

(ii) to make a different declaration under this Division in relation to the subsidiary arrangement.

Subdivision B—Declarations about legally binding subsidiary arrangements

46 Subsidiary arrangements that are legally binding under Australian law

(1) The Minister may make a declaration under subsection (2) or (3) in relation to a subsidiary arrangement of a foreign arrangement if:

(b) apart from the declaration, the subsidiary arrangement would be legally binding under an Australian law.

Note 1: The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) or (3) (see section 51).

Note 2: Section 49 deals with general matters about the declaration (such as revocation and giving notice to the parties).

Declaration that arrangement is invalid and unenforceable

(a) the subsidiary arrangement:

(i) is invalid and unenforceable to the specified extent and from the specified day; or

(ii) if the foreign arrangement was entered in contravention of subsection 22(1) or 36(3)—is, and is taken to have always been, invalid and unenforceable to the specified extent; and

(b) each party to the subsidiary arrangement that is a regulated Australian party must not, to the specified extent and from the specified day:

(iii) hold out, or conduct itself on the basis, that the arrangement is valid or enforceable; and

(iii) hold out in Australia, or conduct itself in Australia on the basis, that the arrangement is valid or enforceable.

(ii) as soon as practicable after complying with subparagraph (i), notify the Minister, in writing, of its compliance with that subparagraph; and

(b) each party to the subsidiary arrangement that is a regulated Australian party must not, to the specified extent and from the specified day:

(4) Each party to the subsidiary arrangement must comply with the declaration:

(5) For the purposes of paragraph (3)(a), the declaration may require that the subsidiary arrangement be varied or terminated:

(a) in accordance with the Australian law; or

(6) The Minister may make a declaration under subsection (2) or (3) only to the extent that the subsidiary arrangement was entered under the auspices of the foreign arrangement.

47 Subsidiary arrangements that are legally binding under foreign law

(1) The Minister may make a declaration under subsection (2) in relation to a subsidiary arrangement of a foreign arrangement if:

(b) the subsidiary arrangement is legally binding under a foreign law.

Note 1: The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) (see section 51).

Note 2: Section 49 deals with general matters about the declaration (such as revocation and giving notice to the parties).

(ii) as soon as practicable after complying with subparagraph (i), notify the Minister, in writing, of its compliance with that subparagraph; and

(b) each party to the subsidiary arrangement that is a regulated Australian party must not, to the specified extent and from the specified day:

(3) Each party to the subsidiary arrangement must comply with the declaration:

(4) For the purposes of paragraph (2)(a), the declaration may require that the subsidiary arrangement be varied or terminated:

(a) in accordance with the foreign law; or

(5) The Minister may make a declaration under subsection (2) only to the extent that the subsidiary arrangement was entered under the auspices of the foreign arrangement.

(6) A declaration made under subsection (2) is not a legislative instrument.

Subdivision C—Declarations about non‑legally binding subsidiary arrangements

Subsidiary arrangements that are not legally binding

48 Subsidiary arrangements that are not legally binding

(1) The Minister may make a declaration under subsection (2) or (3) in relation to an arrangement if:

(b) the subsidiary arrangement is not legally binding.

Note 1: The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) or (3) (see section 51).

Note 2: Section 49 deals with general matters about the declaration (such as revocation and giving notice to the parties).

Declaration that arrangement is not in operation

(a) the subsidiary arrangement:

(i) is not in operation, to the specified extent and from the specified day; or

(ii) if the foreign arrangement was entered in contravention of subsection 22(1) or 36(3)—is not, and is taken never to have been, in operation to the specified extent; and