FAQs have been developed to provide assistance to users in navigating the Foreign Arrangements Scheme. They are not intended to be comprehensive and should not be relied on as a definitive interpretation of the Foreign Arrangements Scheme. The responses provided are not intended as legal advice. Readers should rely on the substantive provisions of the Act as enacted by Parliament, and any applicable rules, in assessing their obligations and seek independent legal advice.

 

What does the Foreign Arrangements Scheme address?

The Foreign Arrangements Scheme deals with foreign arrangements. These are written arrangements, agreements, contracts, understandings or undertakings between State and Territory government entities and foreign government entities. They may be legally-binding or not legally‑binding.

It creates obligations in respect of both prospective arrangements and pre-existing arrangements. However, the requirement to notify the Minister of prospective arrangements has not yet commenced. It also deals with subsidiary arrangements entered into for the purposes of implementing a foreign arrangement.

The Scheme does not apply to arrangements by corporations or hospitals unless those arrangements are subsidiary arrangements.

When do I notify the Minister of a prospective arrangement?

Under the Foreign Arrangements Scheme, State and Territory Entities will be required to notify the Foreign Minister at various stages of the Foreign Arrangements process. Depending upon whether the prospective arrangement is a core foreign arrangement, or a non-core foreign arrangement, your obligations under the Scheme will differ.

The requirement to notify the Minister of prospective arrangements has not yet commenced. The Department of Foreign Affairs and Trade will provide further guidance on the notification process for prospective arrangements in due course.

Is my arrangement covered by the Scheme?

The Foreign Arrangements Scheme covers State/Territory entities, including:

  • State and Territory governments, departments and agencies (core State/Territory entities), and
  • local governments, and Australian public universities (non-core State/Territory entities).

The Foreign Arrangements Scheme also covers foreign entities, including:

  • foreign national governments, departments or agencies (core foreign entities), and
  • a province, state, self-governing territory, region, local council, municipality or other political subdivision of a foreign country (including its governments, departments, agencies), an authority of a foreign country established for a public purpose, and a foreign university that does not have institutional autonomy (non-core foreign entities).

If your arrangement is between a State/Territory entity and a foreign entity, it may be covered by the Scheme. For further information, see Fact Sheet 1 – Overview.

Detailed definitions of ‘State/Territory entities’ and ‘foreign entity’ are contained in Section 4 of the Act.

Is my arrangement a ‘core’ or ‘non-core’ arrangement?

The Foreign Arrangements Scheme differentiates between core foreign arrangements and non-core foreign arrangements.

A core foreign arrangement is an arrangement between a core State/Territory entity and a core foreign entity.

A non-core foreign arrangement is an arrangement between:

  • a core State/Territory entity and a non-core foreign entity
  • a non-core State/Territory entity and a core foreign entity, or
  • a non-core State/Territory entity and a non-core foreign entity.

Depending on if your arrangement is core or non-core, you will have different obligations under the Scheme.

Detailed definitions of ‘arrangement’, ‘core foreign arrangement’ and ‘non-core foreign arrangement’ are contained in Section 4 of the Act.

When do I have to notify the Minister?

For pre-existing core foreign arrangements, a State/Territory entity has until 10 March 2021 to notify the Minister.

For pre-existing non-core foreign arrangements, a State/Territory entity has until 10 June 2021 to notify the Minister.

What criteria does the Minister take into account?

When making a declaration under the Scheme, the Minister must take into account certain matters outlined under Section 51 of the Act

The Minister seeks advice from a range of sources in making a declaration, depending on the nature of the particular factual scenario before them.

How do I know what Australia’s foreign policy is?

Foreign policy and foreign relations are not static; they change over time dependent on a range of factors. The Foreign Arrangements Scheme has been developed recognising that foreign engagement demands nuanced information and oversight, often unavailable to the public.

The Department of Foreign Affairs and Trade website has a number of resources to help understand Australia’s foreign policy and foreign relations. If you need further guidance in relation to your specific arrangement please contact foreignarrangements@dfat.gov.au

Is my entity a ‘core State/Territory entity’?

The Foreign Arrangements Scheme differentiates between core foreign arrangements and non-core foreign arrangements.

A core foreign arrangement is an arrangement between a core State/Territory entity and a core foreign entity.

Under the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020, a core State/Territory entity is defined as:

  • a State or Territory;
  • the government of a State or Territory;
  • a Department or agency (however described) that is part of an entity covered by the above

A detailed definition of ‘core State/Territory entity’ is contained in Section 4 of the .

The Portal will automatically determine whether your entity is a core State/Territory entity and, if so, whether your arrangement is a core foreign arrangement.

Is my arrangement exempt?

Under the Foreign Arrangements Scheme, certain low-risk foreign arrangements have been exempted from the notification requirements in the Act through the Australia’s Foreign Relations (State and Territory Arrangements) Rules 2020.

These arrangements include:

  • core foreign arrangements that deal solely with the sharing of information or resources for the management of an emergency,
  • foreign arrangements dealing with minor administrative or logistical matters, such as booking flights or arranging visas for conferences.
  • and minor variations to existing arrangements, where they have already been notified to the Minister (such as changing the number of students in an exchange program from 6 to 5.)

Under the Act, the Minister may make further rules as they see fit.

If you are unclear if your arrangement is exempt from the Scheme, you should consider getting independent legal advice.

Is my arrangement legally binding?

Under the Foreign Arrangements Scheme your obligations may differ depending upon whether your arrangement is legally binding.

An arrangement is considered legally binding under the Scheme 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.

The Department of Foreign Affairs and Trade cannot provide advice on whether your arrangement is legally binding.

If in doubt, you may consider getting independent legal advice.

Is my arrangement a subsidiary arrangement?

The Foreign Arrangements Scheme is designed to capture both foreign arrangements and subsidiary arrangements. 

Under the Scheme, an arrangement is a subsidiary arrangement if the arrangement was entered under the auspices of the foreign arrangement and the arrangement is not itself a foreign arrangement. This means that an arrangement to which a State/Territory entity and a foreign entity is a party will always be considered a foreign arrangement even if it is itself entered under the auspices of another foreign arrangement.

A detailed definition of ‘subsidiary arrangement’ is contained in Section 4 of the Act.

Do I need to notify the Minister if a Commonwealth Agency is a party to my arrangement?

Yes, you are required to notify the Minister under the Scheme.

Under the Foreign Arrangements Scheme, you will be required to notify the Minister through the Portal if your arrangement is between a State/Territory entity and a foreign entity, irrespective of whether or not other entities are also a party to the arrangement.

You should contact other Australian government parties to the arrangement to inform them that you have provided notification under the Scheme.

If another State/Territory entity is also a party to an arrangement and has already notified the Minister, do I also need to notify the Minister of the arrangement?

Yes, each State/Territory entity that is party to an arrangement is required to notify the Minister of that arrangement under the Scheme.

You should contact other State/Territory entities that are parties to the arrangement to inform them that you have provided notification under the Scheme, but this does not affect their obligation to also notify the Minister.

Do I need to notify the Minister of a pre-existing arrangement?

Yes, under the Scheme it is a requirement to notify the Minister of any arrangements that are, or have been, in operation before the commencement of the Act. 

For pre-existing core foreign arrangements, a State/Territory entity has until 10 March 2021 to notify the Minister.

For pre-existing non-core foreign arrangements, a State/Territory entity has 10 June 2021 to notify the Minister.

How do I notify the Minister of a pre-existing arrangement?

You can notify the Minister of a pre-existing arrangement through the Portal.

Can the Minister require variation or termination of my arrangement?

Yes, under the Foreign Arrangements Scheme the Minister can require variation or termination of an arrangement if she or he is satisfied that the arrangement:

  • adversely affects, or is likely to adversely affect, Australia’s foreign relations; or
  • is, or is likely to be, inconsistent with Australia’s foreign policy.
Do I need to notify the Minister if I vary my arrangement?

Yes.

If the variation was at the request of the Minister, you will be required to upload materials to the Portal that demonstrate that you have complied with the Minister’s declaration to vary the arrangement.

If the variation was not at the request of the Minister, you will be required to notify the Minister of the variation through the Portal in the same way you are required to notify the Minister of a new arrangement. A detailed definition of variations of arrangements is at section 13(2)

Under the rules a variation of an arrangement might be exempt if you have given previous notice to the Minister under the Scheme and it is a minor variation that does not alter the substance of the arrangements (for example, a variation that alters the number of students involved in a student exchange under an arrangement from 6 to 5).

If you are unclear about your notification requirements, please contact the Foreign Arrangements Taskforce: foreignarrangements@dfat.gov.au

What happens if I do not submit information on my arrangement to the Minister?

For pre-existing core foreign arrangements, a State/Territory entity has until 10 March 2021 to notify the Minister.

If you fail to notify the Minister within this timeframe the core foreign arrangement will be deemed invalid and unenforceable (if legally binding under Australian law), not in operation (if not legally binding) or required to be terminated (if legally binding under foreign law). You will have 14 days to then notify the foreign entity of the consequence of your failure to notify the Minister of the core arrangement. After you have notified the foreign entity you must, as soon as practicable notify the Minister via the Portal of your compliance.

For pre-existing non-core foreign arrangements, a State/Territory has until 10 June 2021 to notify the Minister. 

If you fail to notify the Minister of a non-core arrangement, the Minister may issue a declaration requiring the termination of that arrangement.

The Minister requested that I terminate my arrangement. Do I need to notify anyone that it has been terminated?

Yes.

Under the Scheme, if the Minister requests that you terminate your arrangement, you must notify any foreign entities that are party to the arrangement of that fact.

Once you have terminated that arrangement, you must notify the Minister in writing, as soon as practicable, that you have complied with the declaration.

Where can I learn more information about the Scheme?

If you would like to know more about the Scheme, you can read the material included on the ‘Resources’ tab on the website.

The Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 is publicly available.

What is the Public Register?

The public register is a public record of foreign arrangements, and the Minister’s decisions about them, that can be accessed on the website.

Will sensitive information be included on the Public Register?

No.

The information that will be included on the register will be:

  • the title of the arrangement
  • the parties to the arrangement
  • whether any decisions were made by the minister in relation to the arrangement and the dates of those decisions
  • any information prescribed by the rules.

The register does not include information that is commercially sensitive, would disclose any information prepared for or discussed in the Cabinet of a state or territory, is the subject of legal professional privilege, is protected by public interest immunity or affects national security.

Can I apply to have my information removed from the Public Register?

If you believe that sensitive information has been added to the public register by mistake, please contact the Foreign Arrangements Taskforce:  foreignarrangements@dfat.gov.au

Can I omit information from the Register?

When an entity gives notice on the Portal, it should include all relevant information about the arrangement.

The register will not include information that the Minister is satisfied is commercially sensitive, would disclose any information prepared for or discussed in the Cabinet of a state or territory, is the subject of legal professional privilege, is protected by public interest immunity or affects national security.

Entities should identify information that meet these criteria, if they wish for it to be omitted from the Public Register.

Who can provide notice of an arrangement?

Any representative of a State/Territory entity can provide notice of an arrangement under the Scheme. The legislation does not prescribe that information must be notified by a key person. However, you should ensure you have the authority of your organisation to make a notification before doing so.

The Department of Foreign Affairs and Trade encourages entities to consider an appropriate organisational contact to provide notice of arrangements.

The Department of Foreign Affairs and Trade may contact the entity for further information.

What if my arrangement has multiple parties?

You must provide information of all parties to the arrangement when providing notice.

The Department of Foreign Affairs and Trade encourages entities to contact all relevant Australian parties to the arrangement before notifying, including other State and Territory entities.  

Can I delete an Arrangement?

No.

If you have registered an arrangement in error, please contact the Foreign Arrangements Taskforce: foreignarrangements@dfat.gov.au

I am encountering an error with the Portal. Who do I contact?

Please contact the Department of Foreign Affairs and Trade Salesforce Support team: Salesforce@dfat.gov.au

The Portal is requesting supporting materials. Are there restrictions on the size of attachments?

Supporting attachments can be up to 2GB.

What documents do I need to upload to the Portal?

You must upload a copy of the foreign arrangement, and any other information you need in support of your notification, including in relation to s51(2) of the Act.

Can I save and return to my entry?

Once you have entered details of an arrangement, you can save your entry and return to it later. 

Are there costs involved with the Portal?

No. There are no costs involved with registering an arrangement under the Scheme.

I have forgotten my log-in details.

Your username will be your registered email address. If you have forgotten your password, you can reset it by clicking the Forgot Your Password link on the Foreign Arrangements Scheme Portal log in page.

Is the Portal secure?

Yes.

When you access the Portal using a supported web browser, Transport Layer Security (TLS) technology protects your information using both server authentication and data encryption. When you log in, you will see a small lock icon at the beginning of the address URL, indicating that a secure connection has been established.

Can an entity have multiple log-ons?

Yes.

An entity can have multiple log-ons, however the Department of Foreign Affairs and Trade encourages entities to consider nominating an appropriate organisational contact to notify the Minister of arrangements.