The Australia’s Foreign Relations Act and Australia’s Relationship with International Law
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/0067205X231166158 |
| Author | Georgina Clough |
| Date | 01 June 2023 |
| Subject Matter | Articles |
Article
Federal Law Review
2023, Vol. 51(2) 257–281
© The Author(s) 2023
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DOI: 10.1177/0067205X231166158
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The Australia’s Foreign Relations Act
and Australia’s Relationship with
International Law
Georgina Clough*
Abstract
This article examines the consequences of the Australia’s Foreign Relations (State and Territory
Arrangements) Act 2020 (Cth) (‘Foreign Relations Act’) for international law. It argues that the
arrangements entered into by state, territory and local governments to which the Foreign Relations
Act applies can be relevant to international law in three ways. First, they may relate indirectly to
Australia’s international legal obligations. Second, they may be a means by which Austral ian
subnational governments claim a role for themselves in governance on global issues. Third, as an
exercise of diplomacy, they influence the relations Australia maintains with other nations and the
way in which it participates in the international system. As the states and territories in particular
become more assertive, including on international issues such as climate change, giving the
Commonwealth complete control over such arrangements may impact Australia’s relationship with
international law.
Accepted 12 May 2022
I Introduction
In April 2021, the Commonwealth government cancelled two memoranda of understanding
between the Victorian state government and the Chinese government with respect to China’s
‘Belt and Road initiative’(the ‘Belt and Road agreements’).
1
The decision was not unexpected
and, in at least some ways, not especially controversial. The Commonwealth government is
responsible for managing Australia’s foreign policy and foreign relations. The Belt and Road
initiative has caused controversy both within Australia and globally, and the Victorian
* PhD candidate, Melbourne Law School. The author thanks Professor Margaret Young and Judge Hilary Charlesworth for
their comments on earlier versions of this article, and the two anonymous reviewers for their suggestions. This work
draws on the author’s PhD research, which is supported by an Australian Government Research Training Program
Scholarship.
1. Minister for Foreign Affairs, ‘Decisions Under Australia’s Foreign Arrangements Scheme’(Media Release, 21 April
2021) <https://www.foreignminister.gov.au/minister/marise-payne/media-release/decisions-under-australias-foreign-arrangements-
scheme>.
government is the only Australian government to have signed on to the program.
2
Australia’s
relationship with China is one of its most important, and has become a particular source of
difficulty for the Commonwealth since early 2020.
3
A decision about whether Australia should
participate in a scheme such as the Belt and Road initiative might reasonably be one expected to
be made at the national level. Nonetheless, the decision was significant in at least one r espect. It
was the first exercise of the Commonwealth’s power to cancel agreements between Australian
subnational governments and foreign governments, as conferred by the Australia’s Foreign
Relations (State and Territory Arrangements) Act 2020 (Cth) (‘Foreign Relations Act’).
Australian subnational governments, state and territory governments in particular, have long
maintained relations of their own with foreign governments. The Foreign Relations Act gives the
Commonwealth, for the first time, comprehensive control over those relations. The Foreign Re-
lations Act has attracted a good amount of attention, much of it specifically about Australia’s
relationship with China.
4
Other commentary has focused on the Foreign Relations Act’s impact on
the balance of power between the Commonwealth and the states and territories.
5
It was introduced in
the midst of Australia’s COVID-19 pandemic response, which has both caused and exposed
tensions in the relationship between the Commonwealth government and state and territory
governments. For some, the Foreign Relations Act was a clear response to the Commonwealth’s
relative powerlessness in the face of state and territory assertiveness: one that gives it a ‘weapon to
politically bludgeon state premiers [it] doesn’t like.’
6
The aim of this article is to consider instead the consequences of the Foreign Relations Act for
international law and Australia’s relationship with the international legal system. A connection
between the Foreign Relations Act and international law has not been considered in any detail to
date, and is perhaps better demonstrated by another incident. In November 2021, it was reported that
the Department of Foreign Affairs and Trade (‘DFAT’), acting under the Foreign Relations Act,had
instructed five state and territory governments to withdraw their signatures to a memorandum of
understanding authored by the ‘Under2 coalition’(the ‘Under2 memorandum’).
7
The
Under2 coalition is a global network of subnational governments committed to action on climate
change. The Under2 memorandum states the intention of these governments to ‘accelerate the
world’s response to climate change and provide a model for broader international cooperation
2. See Scott Moore, ‘Competition with China Goes Subnational’,The Diplomat (Blog Post, 14 March 2020) <https://thediplomat.
com/2020/03/competition-with-china-goes-subnational/>;Michael Clarke, ‘Why Scrap Victoria’s“Meaningless”Belt and Road
Deal? Because it Sends a Powerful Message to Beijing’,The Conversation (Blog Post, 22 April 2021)<https://theconversation.
com/why-scrap-victorias-meaningless-be lt-and-road-deal-because-it-sends-a-powerful-message-to-beijing-159536>.
3. See, eg, Linda Jaivin, ‘Middle-Power Might: A Plan for Dealing with China’(2021) 11 (February) Australian Foreign
Affairs 71; Natasha Kassam, ‘Great Expectations: The Unraveling of the Australia-China Relationship’,Brookings
(Article, 20 July 2020) <https://www.brookings.edu/articles/great-expectations-the-unraveling-of-the-australia-china-
relationship/>.
4. See, eg, Michelle Grattan, ‘Morrison Government Quashes Victoria’s Belt and Road Deal with China’,The Conversation
(Blog Post, 21 April 2021) <https://theconversation.com/morrison-government-quashes-victorias-belt-and-road-deal-
with-china-159480>.
5. See, eg, Paul Kelly, ‘Sovereignty Rules with Flex of Constitutional Muscle’The Australian (online, 29 August
2020) <https://www.theaustralian.com.au/inquirer/china-deal-sovereignty-rules-with-the-flex-of-constitutional-muscle/
news-story/62d74e738265f519b80b236b9b7d115e>.
6. Commonwealth, Parliamentary Debates, Senate, 30 November 2020, 6337 (Penny Wong, Shadow Minister for Foreign
Affairs).
7. Peter Hannam, ‘“Vandals”: Victoria, Queensland Fume over Federal Climate Intervention’,The Guardian (online,
29 November 2021) <https://www.theguardian.com/australia-news/2021/nov/29/vandals-victoria-queensland-fume-
over-federal-climate-intervention>.
258 Federal Law Review 51(2)
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