The Australia’s Foreign Relations Act and Australia’s Relationship with International Law

Published date01 June 2023
AuthorGeorgina Clough
Date01 June 2023
Subject MatterArticles
Federal Law Review
2023, Vol. 51(2) 257281
© The Author(s) 2023
Article reuse guidelines:
DOI: 10.1177/0067205X231166158‌lr
The Australias Foreign Relations Act
and Australias Relationship with
International Law
Georgina Clough*
This article examines the consequences of the Australias 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
Australias 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 Australias 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 Chinas
Belt and Road initiative(the Belt and Road agreements).
The decision was not unexpected
and, in at least some ways, not especially controversial. The Commonwealth government is
responsible for managing Australias 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 authors PhD research, which is supported by an Australian Government Research Training Program
1. Minister for Foreign Affairs, Decisions Under Australias Foreign Arrangements Scheme(Media Release, 21 April
2021) <
government is the only Australian government to have signed on to the program.
relationship with China is one of its most important, and has become a particular source of
diff‌iculty for the Commonwealth since early 2020.
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 Commonwealths power to cancel agreements between Australian
subnational governments and foreign governments, as conferred by the Australias 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 Australias
relationship with China.
Other commentary has focused on the Foreign Relations Acts impact on
the balance of power between the Commonwealth and the states and territories.
It was introduced in
the midst of Australias 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 Commonwealths
relative powerlessness in the face of state and territory assertiveness: one that gives it a weapon to
politically bludgeon state premiers [it] doesnt like.
The aim of this article is to consider instead the consequences of the Foreign Relations Act for
international law and Australias 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).
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
worlds 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 VictoriasMeaninglessBelt 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) <
4. See, eg, Michelle Grattan, Morrison Government Quashes Victorias Belt and Road Deal with China,The Conversation
(Blog Post, 21 April 2021) <
5. See, eg, Paul Kelly, Sovereignty Rules with Flex of Constitutional MuscleThe Australian (online, 29 August
2020) <‌lex-of-constitutional-muscle/
6. Commonwealth, Parliamentary Debates, Senate, 30 November 2020, 6337 (Penny Wong, Shadow Minister for Foreign
7. Peter Hannam, ‘“Vandals: Victoria, Queensland Fume over Federal Climate Intervention,The Guardian (online,
29 November 2021) <
258 Federal Law Review 51(2)

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