Foreign arrangements – Commonwealth notifications and approvals procedure

Audience

Department-wide

Purpose

This procedure outlines the Department of Education's (the department's) approach to complying with the Australian Government's Foreign Arrangements Scheme, and related requirements in the Queensland Cabinet Handbook.

Overview

The Foreign Arrangements Scheme has been introduced by the Australian Government through Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) (the Act). The Act seeks to ensure that arrangements between state or territory governments (and their entities) and foreign governments (and their entities) do not adversely affect Australia’s foreign relations and are not inconsistent with Australia’s foreign policy.

Foreign arrangements entered on or after 10 March 2021 must comply with the notification and approval processes set out in this procedure.

If at any time the Minister for Foreign Affairs considers that a foreign arrangement may adversely affect Australia’s foreign relations, or is contrary to Australia’s foreign policy, the Minister may make a declaration that the arrangement is invalid and unenforceable, required to be varied or terminated, or no longer in operation.

The requirements of the Act may apply where a school, regional office or central office business area seeks to enter a written arrangement with a foreign government entity (which may include foreign government departments or schools). This may include a wide range of written arrangements such as contractual agreements for the use of Queensland curriculum materials, sister school agreements, and arrangements relating to teacher or student exchanges.

The Federal Department of Foreign Affairs and Trade (DFAT) administers the Foreign Arrangements Scheme Online Portal (the portal) to facilitate the notifications required by the Act, to track progress of approvals, and to view outcomes or declarations for notified foreign arrangements.

Note that, in addition to the Foreign Arrangements Scheme requirements outlined in this procedure, entry into a written foreign arrangement must also comply with other relevant departmental policies, procedures and requirements. This may include (but may not be limited to):

• Code of Conduct and Standard of Practice
• Financial delegations
• Conflict of interest policy
• Appropriate and ethical use of public resources policy
• Enterprise risk management policy
• Purchasing and procurement procedure
• Gifts and benefits procedure
• Information asset and recordkeeping procedure.

Responsibilities

Departmental officers and school principals

• ensure there is appropriate level of authorisation to negotiate and enter an arrangement
• provide required information about the proposed arrangement to the divisional contact
• communicate with the relevant foreign entity to gather information required for notification and approval processes
• advise the relevant divisional contact of the proposed arrangement so notification and approval requirements can be met
• ensure copies of relevant arrangements are available for inclusion as required under the notification process.

Divisional contacts: A08 or above, nominated by the Assistant Director-General for their division

• liaise with relevant school/regional office/business area departmental staff to obtain information required to meet notification and approval processes
• conduct initial assessment of a proposed arrangement and obtain appropriate level of approval of assessment outcome (Assistant Director-General or above; or Executive Director in areas where an ED reports directly to the relevant Deputy Director-General)
• provide advice to relevant school/regional office/business area staff on whether a proposed arrangement is a foreign arrangement under the Act
• enter information required for notification and approval processes using the DFAT portal and maintain records in the department's record management system
• manage and share information received through the DFAT portal (such as the results of notification and approval processes) with relevant school/regional office/business area staff
• manage access to the DFAT portal by any other staff from their division
• inform the Department of the Premier and Cabinet (DPC) that an arrangement (including subsidiary arrangements) has been entered into, providing relevant details and a copy of the arrangement
• provide notifications to DPC about any adverse declarations or high-risk arrangements
• liaise with their Deputy Director-General and the relevant school/regional office/business area staff in the event that an arrangement:
  • has not met relevant notification and approval requirements; or
  • is declared by the Minister for Foreign Affairs to be contrary to Australia’s foreign policy or national interest.

Deputy Directors-General

• approve a divisional contact with appropriate skills, knowledge and capacity to provide advice and guidance about foreign arrangements
• following an adverse decision or declaration for a prospective or existing foreign arrangement, advise the divisional contact on the form and sign written communication (if any) to a foreign entity as required
• ensure the Director-General (and DPC as required) is kept informed of any issues requiring attention or action as a result of the Act.

Director-General

• ensure the Minister for Education (and DPC as required) is kept informed of any issues requiring attention or action as a result of the Act.

Policy, External Relations and International

• provide advice and guidance to divisional contacts on the operation of this procedure
• liaise with DPC and DFAT in relation to the broader operation of the Foreign Arrangements Scheme at a whole of department and whole of government level
• maintain master user access to the portal.

Legal Services

• provide advice on the written foreign arrangement as requested and where relevant. This may include but is not limited to:
  • the form of the written arrangement
  • whether it is legally binding or not.

Process

See the Foreign Arrangement Scheme procedure flowchart for more information.

Image 1 – Process

1. Initial assessment

Determine application of the Act

• Prior to negotiating or entering a written arrangement (including agreements, contracts, understandings or undertakings, whether legally binding or not) with a foreign government entity, school/regional office/business area staff must seek advice from the relevant divisional contact:
  • schools and regional office staff should complete the ‘Details of prospective foreign arrangement’ template (including appropriate authorisation) and provide it to the Schools and Student Support divisional contact at SSD.Foreignarrangements@qed.qld.gov.au
  • central office business area staff should complete the ‘Details of prospective foreign arrangement’ template (including appropriate authorisation) and send it to their relevant divisional contact (see list at CM 23/910042 (DoE employees only)).
• The divisional contact will consider the information in the template and assess whether the proposed arrangement falls under the Act by considering the following factors:

Inclusion criteria

• Is the arrangement with a foreign government entity?
• Is the arrangement in writing?

Exclusion criteria

• Does the arrangement fall into any of the categories exempting it from notification requirements? This includes whether the arrangement:
  • solely deals with:
    • minor administrative or logistical matters (e.g. booking flights or accommodation, arranging visas for conferences);
    • child protection; or
    • sharing of information or resources for the management of a declared emergency in Australia (core arrangements); or
  • relates to minor variations that do not alter the substance of an existing arrangement that has already been notified (e.g. altering the number of students in a student exchange from 6 to 5).
• If the arrangement does not fall under the Act, the divisional contact will advise the school/regional office/business area they may proceed with establishing the arrangement without following the requirements of the Foreign Arrangements Scheme.
• Note that while exempt arrangements may proceed, they may still be subject to a declaration from the Minister for Foreign Affairs invalidating the relevant arrangement if they are considered contrary to Australia’s foreign policy.

Assess the prospective foreign arrangement

• The divisional contact will use the assessment section of the ‘Details of prospective foreign arrangement’ template to determine whether the arrangement is a core or non-core arrangement based on their assessment as to whether the relevant foreign entity is a national or sub-national foreign government entity.
  • Core arrangements are between the department and a foreign national government or its agencies/departments. Core arrangements are subject to special notification requirements because they are more likely to affect Australia’s foreign relations.
  • Non-core arrangements are between the department and sub-national governments (e.g. state, provincial, local) and their agencies and departments.
• If required, clarification may be sought from the DFAT Foreign Arrangements Taskforce via email at foreignarrangements@dfat.gov.au.
• The divisional contact will also assess whether, in the context of the Act, the arrangement involves a fiscal, legal, reputational or any other risk to Queensland that may require the Premier’s attention (refer to Step 3 in the assessment section of the ‘Details of prospective foreign arrangement’ template).
• This assessment will be a matter of judgement on a case-by-case basis and may include but not be limited to considerations such as:
  • whether the arrangement is likely to raise issues in terms of Australia's foreign relations or foreign policy;
  • whether the arrangement will be legally binding or not and, if so, the scale and extent of any legal obligations or risks (seek advice from Legal Services as required);
  • the scale of any financial obligations; or
  • whether an arrangement will expose Queensland students to content or material that is contrary to broader community values or expectations.
• The divisional contact will share the assessment with the school/regional office/business area staff proposing the arrangement and advise next steps:
  • if no risk identified, proceed with arrangement; or
  • if a risk is identified, the divisional contact will escalate the matter to the relevant Deputy Director-General to consider whether the prospective arrangement should proceed.
• If the prospective arrangement with an identified risk proceeds, the divisional contact will arrange through the appropriate authorisation processes for the Minister for Education to write to the Premier at the earliest opportunity, and provide information required by the Cabinet Handbook, Part 9.9.3 including information about the:
  • arrangement generally (including proposed parties, dates and scope)
  • significance of the arrangement to Queensland (including benefits and alignment with government’s strategic priorities)
  • risks to Queensland and appropriate mitigation or negotiation strategies to respond to these (including whether further approvals such as Cabinet consideration may be appropriate).
• Further advice on this step can be sought by emailing DPC at foreignarrangements@premiers.qld.gov.au.

2. Negotiation

The following steps apply only to core foreign arrangements. For all other arrangements, proceed directly to Step 3.

• The divisional contact will seek approval to negotiate from the Minister for Foreign Affairs through the portal in accordance with the process outlined in the DFAT User Guide.
• The divisional contact will enter into the portal the following details, based on the information provided by the school/regional office/business area staff in the ‘Details of prospective foreign arrangement’ template:
  • title of the arrangement
  • parties to the arrangement
  • brief statement summarising the subject matter and effect of the arrangement
  • whether the arrangement is legally binding under an Australian or foreign law
  • whether there are any known or proposed subsidiary arrangements (outlined in Step 3 below)
  • required secondary contact details to be entered for all new arrangements created are as follows:
    • secondary contact name: Queensland Foreign Arrangements
    • secondary contact email: foreignarrangements@premiers.qld.gov.au
    • secondary contact phone: 07 3003 9188.
• The divisional contact will maintain a copy of the 'Details of prospective foreign arrangement' template in the department's record management system.  
• The school/regional office/business area staff proposing to enter an arrangement must wait for approval from the Minister for Foreign Affairs before commencing negotiations.
• The divisional contact will monitor the portal for the Minister for Foreign Affairs’ decision:
  • if approval to negotiate the arrangement is granted, the divisional contact will advise the school/regional office/business area staff they may commence negotiations and proceed to Step 3
  • if no decision is made within 30 calendar days, the Minister for Foreign Affairs is taken to have given approval to negotiate the arrangement. The divisional contact will advise the school/regional office/business area staff that it may commence negotiations and proceed to Step 3
  • if an adverse decision is made by the Minister for Foreign Affairs, proceed to Step 5.

3. Pre-entry

Core foreign arrangements

• Once an arrangement has been negotiated, the school/regional office/business area must provide a copy of the draft arrangement to the divisional contact, confirm the information previously provided in the ‘Details of prospective foreign arrangement’ template and whether there are any anticipated subsidiary arrangements.
• Using the information provided by the school/regional office/business area, the divisional contact will seek approval to enter the arrangement from the Minister for Foreign Affairs by making a notification via the portal, uploading a copy of the draft arrangement and providing relevant information as outlined below.
• The school/regional office/business area staff must wait for approval from the Minister for Foreign Affairs before entering the arrangement.
• The divisional contact will monitor the portal for the Minister for Foreign Affairs’ decision:
  • if approval to enter the arrangement is granted, the divisional contact will advise the school/regional office/business area staff that they may enter the arrangement and proceed to Step 4
  • if no decision is made within 30 calendar days, the Minister for Foreign Affairs is taken to have given approval to negotiate the arrangement. The divisional contact will advise the school/regional office/business area staff it may commence negotiations and proceed to Step 4
  • if an adverse decision is made by the Minister for Foreign Affairs, proceed to Step 5.

Non-core foreign arrangements

• Once an arrangement has been negotiated, the school/regional office/business area must provide a copy of the draft arrangement to the divisional contact, confirm the information previously provided in the ‘Details of prospective foreign arrangement’ template and whether there are any anticipated subsidiary arrangements.
• Using the information provided by the school/regional office/business area, the divisional contact will notify the Minister for Foreign Affairs of an intent to enter a foreign arrangement by making a notification via the portal, uploading a copy of the draft arrangement and providing relevant information as outlined below.
• The school/regional office/business area staff must not enter a foreign arrangement until the Minister for Foreign Affairs has been notified.
• Once the notification has been made, the divisional contact will advise the school/regional office/business area staff they may enter the arrangement and proceed to Step 4, noting that non-core arrangements do not require approval from the Minister for Foreign Affairs before they are entered. 
• If an adverse declaration is made by the Minister for Foreign Affairs, proceed to Step 5.

Subsidiary arrangements

• Subsidiary arrangements are arrangements entered into for the purposes of implementing the original foreign arrangement, or contemplated by and entered into because of the original arrangement.
• Subsidiary arrangements include arrangements between the department and an entity other than a foreign government entity (e.g. a private company).
• When making a notification about negotiating or entering an arrangement, divisional contacts will indicate whether the arrangement has or is expected to have any subsidiary arrangements.
• A proposed subsidiary arrangement may also arise after an arrangement is already in operation. In these cases, the subsidiary arrangement must be notified through the portal, entering information as outlined below and submitting as a notification of a subsidiary arrangement.
• A subsidiary arrangement may also be subject to adverse decisions or declarations, which would involve the process set out at Step 5.

Variations to foreign arrangements

• A variation of an existing foreign arrangement is any written variation of the arrangement whether or not it is legally binding and may include substantive amendments to the scope, deliverables or timeframes of the arrangement.
• The process outlined above for notifications applies to a variation of an arrangement in the same way it applies to a prospective core or non-core arrangement, i.e. Step 1, Step 2, Step 3 and Step 4.
• A variation may also be subject to adverse decisions or declarations, which would involve the process set out at Step 5.

Information for pre-entry notification

• When making a notification that the department intends to enter an arrangement, divisional contacts will enter details based on the information provided by the school/regional office/business area in the ‘Details of prospective foreign arrangement’ template and upload a copy of the draft arrangement.
• Details will be the same as those that would be entered for an approval to negotiate an agreement (outlined in Step 2 above).
• In addition, the portal allows users to upload information to support a range of listed matters (the Act, s51(2) considerations) which the Minister for Foreign Affairs may take into account when considering whether to make an adverse declaration. These considerations include whether an adverse declaration would:
  • have significant financial consequences for Queensland
  • affect completion of an existing project delivered under the arrangement (this consideration is particularly relevant for variations to existing arrangements).
• The importance of these matters will depend on the nature and operation of the arrangement. The divisional contact will work with school/regional office/business area staff to determine what, if any, information should be provided in relation to each of these matters (refer to Step 3 in the Assessment section of the ‘Details of prospective foreign arrangement’ template).
• The portal also allows users to request that no information or limited information (i.e. only the title of the arrangement, parties, and date the arrangement is entered) about the arrangement be included on the Public Register published on DFAT's website based on specified criteria which include arrangements that are:
  • commercially sensitive
  • Cabinet-in-Confidence
  • the subject of legal professional privilege
  • protected by public interest immunity (i.e. where disclosure would be prejudicial to the public interest)
  • likely to affect national security.
• The importance of these criteria will also depend on the nature and operation of the arrangement. The divisional contact will work with school/regional office/business area staff as required, to determine whether any of these criteria may apply.

4. Entering a foreign arrangement

• Once a core or non-core foreign arrangement has been entered into (i.e. when both parties have signed the written arrangement), the divisional contact must be advised as soon as practicable and provided a copy of the signed arrangement.
• The divisional contact will maintain a copy of the signed arrangement in the department's records management system.
• Divisional contacts must notify the Minister for Foreign Affairs via the portal within 14 calendar days of the department entering the arrangement (from the date of the last signature), including the information set out below, and upload a signed copy of the arrangement.
• Divisional contacts must also inform DPC via email at foreignarrangements@premiers.qld.gov.au that an arrangement (including subsidiary arrangement) has been entered into. A copy of the arrangement must be provided along with the title of the arrangement, parties to the arrangement, commencement and end dates, country of the foreign entity and whether it is a core, non-core or subsidiary arrangement.
• If the Minister for Education is a signatory to the arrangement, the divisional contact will arrange for the Minister for Education to inform the Premier in line with the requirements in the Cabinet Handbook, Part 9.9.3.

Information for post-entry notification

• When making a notification that the department has entered an arrangement, divisional contacts will enter relevant details based on the information provided by the school/regional office/business area in the ‘Details of prospective foreign arrangement’ template and upload a copy of the signed arrangement.
• Relevant details will be the same as those entered for an approval to negotiate an agreement (outlined in Step 2 above), together with the day the arrangement was entered and the duration of the arrangement.

5. Adverse decisions or declarations about foreign arrangements

Prospective foreign arrangements

• If approval to negotiate or enter a core foreign arrangement, or enter a non-core foreign arrangement, is refused, the divisional contact will:
  • advise the school/regional office/business area staff they must not negotiate or enter the arrangement
  • inform DPC via email at foreignarrangements@premiers.qld.gov.au that an adverse declaration has been made
  • liaise with their Deputy Director-General to determine appropriate arrangements for contacting the relevant foreign entity
  • arrange for the Minister for Education to inform the Premier in line the requirements in the Cabinet Handbook, Part 9.9.4.   

Existing foreign arrangements

At any time, the Minister for Foreign Affairs may make a declaration that a foreign arrangement or subsidiary arrangement that is in operation (including an arrangement that is exempt from notification requirements) is contrary to Australia’s foreign policy and must be varied or terminated, or is invalid/unenforceable or not in operation.

• Divisional contacts will regularly monitor the portal and the contact email address attached to their portal user profile for declarations by the Minister for Foreign Affairs about a foreign arrangement entered into by the department.
• If an adverse decision or declaration is made about any arrangement, the divisional contact will:
  • contact the school/regional office/business area staff, provide a copy of the declaration, and advise that they must comply with the declaration and its effect
  • inform DPC via email at foreignarrangements@premiers.qld.gov.au that an adverse declaration has been made about an arrangement
  • liaise with their Deputy-Director General to determine appropriate arrangements for writing to the relevant foreign entity to advise that a declaration of the Minister for Foreign Affairs is in force in relation to the arrangement. This written advice must include:
    • a copy of the declaration
    • the specific subsection of the Act under which the declaration was made, and its effect
    • any other information required by the declaration.
• Arrange for the Minister for Education to write to the Premier to notify of the adverse decision or declaration, and advise of the consequences and any appropriate mitigation in line with the requirements in the Cabinet Handbook, Part 9.9.4. 
• Once this has occurred, the divisional contact will make a notification as soon as practicable, via the portal to the Minister for Foreign Affairs that the department has complied with the declaration.
• Declarations about original arrangements may have the same or a similar effect on any subsidiary arrangements. The divisional contact will advise the school/regional office/business area of any such declaration and its effect on the subsidiary arrangement.

6. Failure to follow Foreign Arrangement Scheme requirements

• If a core arrangement is entered without following the required notification and approval processes or in contravention of a decision or declaration, the divisional contact will notify the school/regional office/business area staff that:
  • the arrangement is automatically invalid/unenforceable under the Act
  • the parties to the arrangement must not act as though the arrangement is valid/enforceable
  • the divisional contact will liaise with their Deputy Director-General to determine what form of written communication and signature level is required with the relevant foreign entity to advise that the arrangement did not meet notification or approval requirements including;
    • if the arrangement was legally binding under Australian law that under section 30 of the Act the arrangement is, and is taken to have always been, invalid and unenforceable
    • if the arrangement was legally binding under foreign law that under section 31 of the Act the arrangement must be terminated in accordance with the foreign law
    • if the arrangement is not legally binding that under section 32 of the Act the arrangement is not, and is taken never to have been, in operation.
  • this action must occur within 14 calendar days of when the school/regional office/business area staff or a divisional contact becomes aware of the issue or when the Minister for Foreign Affairs provides advice to this effect.
• The divisional contact will then as soon as practicable notify the Minister for Foreign Affairs via the portal that the department has taken the steps required in response to a failure to meet approval requirements and upload a copy of the relevant correspondence.
• If a non-core arrangement is entered without following the required notification and approval processes or in contravention of a declaration, the divisional contact will notify the school/regional office/business area staff that the Minister for Foreign Affairs may declare the arrangement:
  • invalid or unenforceable under the Act
  • required to be terminated
  • not in operation (depending on the nature of the arrangement).
• The divisional contact will liaise with their Deputy Director-General to determine what form of written communication and signature level is required with the relevant foreign entity. 

Definitions

Detailed definitions of additional terms are contained in the Act.

Legislation

• Australia's Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) 
• Australia's Foreign Relations (State and Territory Arrangements) Rules 2020 
• Commonwealth of Australia Constitution Act (The Constitution) 

Delegations/Authorisations

• Nil

Other resources

• Divisional contact list (CM 21/492358) (DoE employees only)  
• Legislative compliance policy  
• Cabinet Handbook (Part 9.9)  
• Foreign Arrangements Scheme Fact sheets 
• Foreign Arrangements Scheme FAQs  
• Foreign Arrangements Scheme Online Portal 
• Foreign Arrangements Scheme Online Portal User Guide for State and Territory Entities  
• Foreign Arrangements Scheme website 
• Queensland Public Service Conduct of Conduct  

Superseded versions

Previous seven years shown. Minor version updates not included.

Nil