A The States and Territories in International Relations

Australia’s Constitution does not provide an express power for either the Commonwealth or the states to manage Australia’s foreign affairs, enter into treaties or conduct diplomatic relations. This is because, at the time of federation in 1901, Australia was not an independent nation. The power to conduct Australia’s external affairs remained with the British imperial government, which, it was assumed, would manage those affairs on behalf of Australia.^{Footnote 26} Over time, the imperial government devolved its power to manage Australia’s foreign affairs to the Commonwealth, taking the position that the Commonwealth government was entitled to speak on behalf of the states. As Leslie Zines has explained, this was a policy decision on the part of the British government, which chose to ‘use the analogy of a fully sovereign state and rely on the central government for all communication’.^{Footnote 27} Nonetheless, it was ‘consistent with the political understandings, at the time of the calling of the constitutional conventions, that the colonies should be able to speak with one voice’.^{Footnote 28}

By at least the 1940s, it was settled that Australia had international legal personality and that the Commonwealth government could conduct Australia’s foreign affairs, including by entering into treaties, and sending and receiving diplomatic representatives.^{Footnote 29} The basis of the Commonwealth government’s ability to do so is the executive power conferred by section 61 of the Constitution.^{Footnote 30} Some have claimed that, at the time of federation, the colonies had accrued some amount of legal personality and prerogative power to manage their own external affairs and enter into treaties, which were subsequently retained by the states.^{Footnote 31} Others have doubted that the states ever had legal personality.^{Footnote 32} In any case, it now seems clear at least that only the Commonwealth has the power to enter into treaties and to conduct formal diplomatic relations, as recognised by international law.^{Footnote 33} Some comments from the High Court go further, and appear to suggest that the states have no power to deal with other countries at all.^{Footnote 34} However, the point has never been expressly determined.

In practice, the states and territories have long conducted their own foreign relations. The states have maintained representatives in the United Kingdom, in the form of Agents-General, since federation, as a continuation of earlier colonial practice.^{Footnote 35} They have also increasingly appointed representatives to other countries.^{Footnote 36} Many now have dozens of overseas offices run by agencies such as Global Victoria, Trade and Investment Queensland, and Invest NSW.^{Footnote 37} Their primary remit is the promotion of trade and investment ties with their major economic partners. All states and territories have international and regional engagement strategies focussed on the promotion of key industries, and cooperation on other matters such as tourism, education, and cultural exchange.^{Footnote 38} To further these strategies, they often enter into written arrangements with foreign government partners. Some of these arrangements are expressed in broad terms as umbrella agreements to cooperate on a range of matters and deepen ties between the two respective governments. In the parliamentary debates about the Foreign Relations Act, one member of Parliament referred to such an arrangement as coming ‘disturbingly close to constituting a separate ongoing foreign policy.’^{Footnote 39} Speaking about Queensland specifically, international relations expert and former Australian diplomat Carl Ungerer has suggested that the states should expressly develop their own foreign policies, in the face of the Commonwealth’s failure to adequately prosecute their interests overseas.^{Footnote 40}

While state and territory governments clearly have the ability to enter into contracts and contract-like arrangements in the exercise of their functions, including with other governments, no court has considered how those arrangements sit with the Commonwealth’s general responsibility for Australia’s external affairs. Moreover, such activities have gone largely uncontested by the Commonwealth. While these international activities are extensive, they rarely openly challenge the Commonwealth’s constitutional responsibility for conducting Australia’s external affairs or its foreign policy objectives. There have been some examples of disagreements between the Commonwealth and the states and territories on matters of foreign policy. For example, in 2021, the premier of Western Australia criticised the Commonwealth government’s handling of its diplomatic relationship with China, a country with which Western Australia has extensive trading ties.^{Footnote 41} However, for the most part, the international activities of the states and territories are conducted in parallel to those of the Commonwealth government and concern the interests of the relevant state or territory specifically.^{Footnote 42} Until very recently there has been no requirement that the Commonwealth approve these activities or the arrangements entered into by states and territories with foreign governments. That has now changed with the introduction of the Foreign Relations Act.

B Background to the Foreign Relations Act

The Commonwealth government announced its intention to enact legislation regulating arrangements between Australian subnational governments and public universities, and foreign governments and foreign universities, in August 2020.^{Footnote 43} The overarching purpose of the legislation, as described by the Prime Minister at the time of its introduction into the Commonwealth Parliament, is to ensure that arrangements entered into by states, territories, local governments, and universities, are consistent with Australia’s foreign policy.^{Footnote 44} The Australia’s Foreign Relations (State and Territory Arrangements) Bill (the ‘Bill’)^{Footnote 45} was introduced into the Parliament on 3 September 2020, was passed by both houses on 3 December 2020, and commenced on 10 December 2020.^{Footnote 46}

The legislation was influenced by a number of contemporary Australian political and geopolitical factors. In one sense, it is the latest in a series of legislative and administrative measures taken since 2017 to address foreign interference and improper foreign influence in Australian politics and society. These measures include the Foreign Influence Transparency Scheme (the ‘FITS’),^{Footnote 47} the Security of Critical Infrastructure Act 2018 (Cth), and amendments to the foreign investment review framework requiring the assessment of certain proposed investments on national security grounds.^{Footnote 48} Both government and non-government members of Parliament and senators described the Foreign Relations Act as part of a suite of legislation designed to protect Australia’s ‘national security and sovereignty’ by targeting foreign interference and improper foreign influence.^{Footnote 49} The particular kind of foreign interference that it targets is that ‘of any nation that would seek to undermine Australian foreign affairs position by dealing with subnational governments’.^{Footnote 50} One government member of Parliament described the Act as necessary to counter the ‘divide and conquer tactics of foreign powers’, to ensure that ‘our own people don’t recklessly or naively give foreign governments the keys to the country’.^{Footnote 51}

The legislation must also be understood in the context of Australia’s relationship with China. The subject of China dominated debate in Parliament,^{Footnote 52} has been a feature of most media and expert commentary on the legislation,^{Footnote 53} and was a central topic of the Senate Foreign Affairs, Defence and Trade Legislation Committee’s (‘Senate Foreign Affairs Committee’) inquiry into the Bill.^{Footnote 54} Despite the Commonwealth government’s claim that the Act is ‘country agnostic’ and ‘agreement agnostic’,^{Footnote 55} the Belt and Road agreements were widely assumed to be its intended targets.^{Footnote 56} The FITS was established following sustained media coverage of alleged instances of Chinese interference in Australian politics,^{Footnote 57} and a report commissioned by the Commonwealth government into Chinese influence activities in Australia.^{Footnote 58} Prime Minister Malcolm Turnbull said that the measures were not targeted solely at China.^{Footnote 59} Nonetheless, both the Australian government and others drew a clear link between the scheme and allegations of Chinese interference.^{Footnote 60}

The Bill was also introduced into the Parliament in the midst of the COVID-19 pandemic, the response to which in Australia has concentrated attention on relations between the Commonwealth and state and territory governments. On one view, Australia’s response to the pandemic has been characterised by a relatively high level of coordination between the Commonwealth and state and territory governments.^{Footnote 61} However, it also created and exposed tensions in inter-governmental relations. Some notable examples were the decision of some state and territory leaders to impose border closures in respect of their own states and territories despite Commonwealth opposition;^{Footnote 62} the Commonwealth government’s sustained criticism of the lockdown measures imposed by particular states;^{Footnote 63} and state government criticism of the Commonwealth’s management of its vaccination program.^{Footnote 64} State and territory governments and leaders attained a level of political and popular relevance that has challenged traditional federal dynamics, as power ostensibly shifted away from the centre.^{Footnote 65} At the same time, despite its early leadership, the Commonwealth was either forced, or chose, to adopt a relatively passive role in managing the crisis.^{Footnote 66} The Foreign Relations Act, introduced only 6 months into the pandemic response, gave the Commonwealth the ability to assert itself on subject matter fairly firmly within its constitutional and political remit.

The Act also applies to arrangements entered into by Australian public universities. The Commonwealth government has demonstrated particular concern about the risk of foreign interference in the university sector. However, the justification that has been given for the Foreign Relations Act as an addition to existing schemes targeting foreign influence is a separate need to ensure consistency of foreign policy across all levels of government.^{Footnote 67} While public universities are constituted under the laws of the states and territories, they are not governmental entities. There was some suggestion in the testimony heard by the Senate Foreign Affairs Committee that the decision to include public universities in the ambit of the Foreign Relations Act was made after the scheme, originally meant to regulate subnational entities, was first conceived. While DFAT met with state and territory governments in the lead up to the Bill’s introduction to Parliament to discuss arrangements of concern, no consultation occurred with universities.^{Footnote 68} During questioning in Senate Estimates, DFAT representatives said that, when they were first advised of the Bill, its scope envisaged subnational government entities.^{Footnote 69} They were unable to give a precise date at which the decision to include universities within the scope of the Bill was made.^{Footnote 70} In any case, while the Foreign Relations Act’s application to universities raises a number of particular issues, relating, for example, to academic freedom and the relationship between the government and the higher education sector, it will not be the focus of this article.

C Overview of the Foreign Relations Act

The Foreign Relations Act creates a legislative regime that applies to all written arrangements between, on the one hand, Australian state, territory and local governments, and public universities (‘state and territory entities’), and, on the other, foreign governments — both national and subnational — and foreign universities lacking ‘institutional autonomy’ (‘foreign arrangements’).^{Footnote 71} It has three main areas of operation. First, it requires all state and territory entities to notify the Commonwealth Minister for Foreign Affairs and Trade (‘the Minister’) before they enter into a foreign arrangement. In the case of arrangements between state and territory governments and foreign national governments specifically (‘core foreign arrangements’), the state or territory government must also notify the Minister before it commences negotiating such an arrangement.^{Footnote 72} The Minister must give approval before a state or territory government can commence negotiating a ‘core foreign arrangement’,^{Footnote 73} and again before it can enter into the arrangement.^{Footnote 74} In all other cases, the Minister does not have to give express approval, but can prohibit negotiation of, or entry into, an arrangement.^{Footnote 75} Second, it required all state and territory entities to notify the Minister of any foreign arrangements already in effect at the time that the Act entered into force by a prescribed deadline in 2021.^{Footnote 76} The Minister is required to list all arrangements of which they have been notified on a public register.^{Footnote 77} At the time of writing, that register listed nearly 3800 arrangements. Third, the Minister can make a declaration in respect of any arrangement that is already in force, rendering the arrangement invalid, not in operation, or requiring its termination.^{Footnote 78} The Minister can exercise this power even if they have previously approved the arrangement, or decided not to prohibit it.^{Footnote 79} This was the power used to declare the Belt and Road agreements to be no longer in operation.

The Foreign Relations Act does not prohibit any particular type of foreign arrangements. In fact, there was some indication in the parliamentary debates about the Bill that the legislation is intended to facilitate, rather than limit, the cultivation by subnational governments of relations with foreign governments. The Second Reading Speech refers to the ‘important contributions that state, territory and local government entities make to advancing Australia’s foreign policy’, which are a ‘useful and productive part of Australia’s huge breadth of international engagement’.^{Footnote 80} It refers to the potential for the Commonwealth to ‘leverage these relationships to further our national objectives in our international engagements’.^{Footnote 81} According to the Explanatory Memorandum, the Foreign Relations Act is not intended to ‘prohibit, restrict or discourage State/Territory entities from engaging with foreign governments’, but is actually designed to ‘support the States and Territories in undertaking effective, appropriate and informed international engagement’.^{Footnote 82} It describes the Foreign Relations Act principally as a ‘legislative scheme for Commonwealth engagement’ with state and territory foreign arrangements.^{Footnote 83}

Nonetheless, if the aim of the Foreign Relations Act is to ensure collaboration between national and subnational entities, it is unclear that it has been drafted in a way that will necessarily achieve this. Although the Minister must report annually on steps taken to engage with subnational entities^{Footnote 84} — a provision added to the Bill by amendment proposed by the opposition^{Footnote 85} — there is no requirement or process established in the Foreign Relations Act for regular consultation between subnational governments and the Commonwealth. In particular, there is no specific obligation for the Minister to engage with a state or territory entity before making a decision in respect of an arrangement to which it is a party. A dedicated taskforce has been established within DFAT to oversee the scheme, including to engage with the entities to which the Foreign Relations Act applies.^{Footnote 86} However, the level of engagement to be conducted remains formally within the discretion of the Minister under the provisions of the Foreign Relations Act.

Some proposals for the management of subnational foreign relations in other jurisdictions have adopted a more institutionalised approach to consultation. For example, a Bill introduced into the United States Congress in 2019 proposed the establishment of an Office of Subnational Diplomacy, to support the states in undertaking foreign relations of their own in a way compatible with national foreign policy objectives.^{Footnote 87} Although part of the Office’s role would be to align subnational priorities with foreign policy goals, it would not have a federal veto right over subnational arrangements. Instead, the Bill establishes an institutional framework within which consultation on such matters can occur. The proposal does not deny the security concerns created by the decentralisation of diplomacy, including with respect to subnational engagement with China.^{Footnote 88} In fact, as with the Australian legislation, there is a strong indication that the Bill is intended above all to deal with Chinese influence at the subnational level.^{Footnote 89} However, the proposed solution is to increase the capacity of subnational governments to confront these concerns, including by embedding federal experts within those subnational entities to advise them on such issues.^{Footnote 90} While the Bill is still before Congress, in October 2022, the United States Department of State appointed its first Special Representative for Subnational Diplomacy to integrate local concerns into national foreign policy and foster the diplomatic activities of subnational governments.^{Footnote 91}

There are other aspects of the Foreign Relations Act that state and territory entities have suggested are more likely to limit than facilitate subnational foreign relations. First, the Foreign Relations Act applies to any written arrangement between the relevant entities, whether or not it is legally binding, and whatever its subject matter.^{Footnote 92} This could include memoranda of understanding, strategic partnerships, and even email exchanges,^{Footnote 93} meaning the requirements of the legislation will apply to virtually all conduct involving state and territory entities and foreign governments. Second, the test against which the Minister is to consider each arrangement asks whether the arrangement would adversely affect Australia’s foreign relations or be inconsistent with Australia’s foreign policy.^{Footnote 94} The term ‘Australia’s foreign relations’ is not defined, and the term ‘Australia’s foreign policy’ is defined so broadly that, according to one Senate committee, it essentially gives the Minister an ‘unfettered discretionary power.’^{Footnote 95} The only requirement is that the Minister be satisfied that the relevant policy is the Commonwealth’s policy on Australia’s foreign relations or things outside Australia.^{Footnote 96} The policy does not need to be written or publicly available, and does not need to be formulated, decided upon or approved by any member or body of the Commonwealth.^{Footnote 97} Some state and territory entities have pointed out that this definition gives the Minister a wide-ranging discretion in their assessment of foreign arrangements that cannot be tested against any meaningful criteria.^{Footnote 98}

Finally, the Foreign Relations Act does not provide for merits review of any decisions made under it, and such decisions are excluded from judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).^{Footnote 99} While certain constitutionally-entrenched rights to judicial review are preserved,^{Footnote 100} the Minister is not required to observe any requirements of procedural fairness in making decisions under the Foreign Relations Act.^{Footnote 101} This means that there is no requirement that the Minister put to the relevant state and territory entity any matter they propose to rely on in making their decision, or provide reasons for their decision.^{Footnote 102} In practice, this might significantly curtail the ability of a person or entity subject to an adverse decision to seek judicial review of that decision, or to learn about factors likely to influence the exercise of the Minister’s powers under the Foreign Relations Act.

A The Trade and Investment Activities of States and Territories

The Commonwealth parliamentary debates make clear that the activities of subnational governments most expected to attract the exercise of the Minister’s powers under the Act are those relating to the protection and fulfilment of their economic interests. By reference predominantly to the Belt and Road agreements, the debates demonstrate that an overarching purpose of the legislation is to ensure that the foreign trade and investment activities of states and territories do not invite foreign interference, or affect Australia’s strategic concerns and interests.^{Footnote 106} A number of politicians drew a distinction between the economic interests of states and territories and the sovereign interests of Australia as a nation, and argued that the justification for the legislation lay in the fact that ‘sovereignty can and should outweigh money’.^{Footnote 107} These comments cast the activities of the states and territories as those of private economic actors. One opposition member of Parliament likened the global activities of subnational governments to those of ‘tech companies’, the ‘Fortune 500’ and ‘independent entrepreneurs’, comparing subnational governments such as states and territories to corporations such as Apple.^{Footnote 108} The limited contribution that subnational governments made to the debate similarly indicates that their trade and investment activities were front of mind when considering the Foreign Relations Act’s application. In its submission to the Senate Foreign Affairs Committee inquiry into the legislation, the New South Wales government supported the general intent of the legislation, but called for some amendments to reflect the fact that international arrangements are key to securing its economic prosperity, and should not produce unintended economic consequences.^{Footnote 109} The submission of the government of the Northern Territory also described its foreign arrangements as a ‘bedrock to advancing trade and investment opportunities for Territory businesses’.^{Footnote 110} The Victorian government’s response to the declaration made in respect of the Belt and Road agreements stated simply that ‘Victoria will continue to work hard to deliver jobs, trade and economic opportunities for our state’.^{Footnote 111}

Even if the application of the Foreign Relations Act was limited to agreements of this kind, it is artificial to imagine that a clear distinction can be drawn between the trade and investment activities of state and territory governments and the nation’s international law obligations. As the range of matters subject to international legal regulation expands, so too does the potential for their overlap with matters traditionally within the domain of subnational governments. Moreover, some work considers explicitly the possibility that subnational governments, particularly cities, will act contrary to international norms and standards in their quest to establish overseas commercial ties and attract investment in the form of foreign capital: a regulatory ‘race to the bottom’ occasioned by jurisdictional competition.^{Footnote 112} This is particularly important given that subnational governments, unlike private economic actors, are assimilated to the central government for the purposes of state responsibility.^{Footnote 113} If a state or territory government acts contrary to international law, it is Australia that will be held internationally responsible.^{Footnote 114} For example, in 2013 the World Trade Organization (‘WTO’) Appellate Body upheld an earlier Panel ruling that the government of Ontario’s renewable energy feed-in-tariff program breached Canada’s obligations under certain of the WTO agreements.^{Footnote 115} State and territory governments have caused Australia to breach its international obligations in the past by their legislation.^{Footnote 116}

Where a state’s legislation places Australia in breach of international law, section 109 of the Constitution ensures that legislation enacted by the Commonwealth on the relevant subject will prevail over the state legislation to the extent of any inconsistency.^{Footnote 117} However, no equivalent constitutional provision ensures the ability of the Commonwealth to take similar steps with respect to unlegislated state arrangements with foreign governments that might similarly implicate Australia’s international obligations. It was unclear in debates about the Foreign Relations Act whether such a use was envisaged for the legislation. One submission to the Senate Foreign Affairs Committee’s inquiry into the legislation raised the possibility that a Commonwealth government committed to a zero emissions target could use the legislation to prohibit any arrangement that might contribute to increased greenhouse gas emissions.^{Footnote 118} This might be significant given that many of the foreign activities of at least certain states relate to the promotion and development of their resources sectors. For instance, the Public Register lists a 2011 arrangement between the Western Australian government and China, the first memorandum of cooperation signed by China’s National Development and Reform Commission with a subnational government, committing the governments to, among other things, encouraging Chinese companies to engage in resource exploration and development in Western Australia and investing in infrastructure required for resource development.^{Footnote 119} The arrangement was expressly identified by the Western Australian government as one that might be subject to a declaration under the Foreign Relations Act.^{Footnote 120} Another example of such an agreement is a 2011 memorandum of understanding between the government of Queensland and the Japan Bank for International Cooperation (‘JBIC’) intended to facilitate JBIC support of the business activities of Japanese companies in Queensland’s resource sector.^{Footnote 121}

There is nothing in either of these arrangements that contravenes Australia’s international obligations. However, the Commonwealth government made a net zero emissions commitment as part of Australia’s ‘nationally determined contribution’ to the aims of the Paris Agreement in 2021.^{Footnote 122} There is growing doubt that continuing exploitation of fossil fuel resources is consistent with the achievement of such an outcome.^{Footnote 123} The assessment of ‘Australia’s foreign policy’ and ‘Australia’s foreign relations’ under the Foreign Relations Act may involve consideration of Australia’s international legal obligations, but the legislation itself does not require that it do so. Without more extensive definitions of the term, more substantial advice from the Minister, and more transparent information about the operation of the Foreign Relations Act, it is not possible to know.

B Transnational Governance Networks

The provisions of the Foreign Relations Act may also apply to foreign arrangements by which state and territory governments engage directly with international norms and international legal regimes. One example of such an arrangement is the Under2 memorandum described earlier. The basis for the Minister’s decision with respect to the Under2 memorandum was apparently a failure to notify the Commonwealth of the arrangement, to which the state and territory governments were already signatories at the time of the Foreign Relations Act’s entry into force, rather than a ruling on its content. It appears from the Public Register that approval was subsequently given for at least some states to re-enter the arrangement.^{Footnote 124} Nonetheless, the incident demonstrates that the Foreign Relations Act applies to arrangements that allow subnational governments to engage explicitly with international law norms and standards, potentially in ways that challenge or openly oppose the position of the Commonwealth government. In contrast to the Victorian government’s muted response to the cancellation of the Belt and Road agreements, the Victorian Minister for Energy, Environment and Climate Change labelled the decision with respect to the Under2 memorandum ‘egregious’ and called those responsible ‘vandals.’^{Footnote 125}

Networks such as the Under2 coalition give subnational governments the opportunity to play a role in global governance and engage directly with international norms. The number of such networks is rapidly growing. The most studied of these are city networks, which Michele Acuto and Steve Rayner have defined as ‘formalized organizations with cities as their main members and characterized by reciprocal and established patterns of communication, policy-making and exchange.’^{Footnote 126} One estimation in 2016 suggested that there might be 200 city networks globally.^{Footnote 127} Another in 2018 put the number at over 300.^{Footnote 128} They range in size from small local or regional networks to global networks with thousands of members.^{Footnote 129} Australian local governments, for example, are members of the World Organization of Cities and Local Governments (‘UCLG’), ICLEI — Local Governments for Sustainability, and the C40 Cities Climate Leadership Group. City networks have gained prominence most notably due to their activism on climate change, but they deal with a range of subjects, including sustainability, migration, poverty, gender and inequality, energy, economic issues, public health and peacebuilding.^{Footnote 130} Some are specialised, but many work across a variety of topics, functioning as a general forum for policy development.^{Footnote 131} Such networks can provide practical assistance to subnational law and policymakers, in the sense of information and expertise sharing. However, they can also play a policy development or regime building role. Their output often takes the form of non-legally binding written instruments, such as declarations, action plans and compacts.^{Footnote 132} Such arrangements, as is now apparent, would fall under the Foreign Relations Act.

Subnational governance networks can directly influence international institutions and the development of international law. For example, the UCLG successfully lobbied for the inclusion of sustainable development goal 11 on ‘Sustainable Cities and Human Settlements’.^{Footnote 133} The UCLG also influenced the drafting of the Global Compact on Migration adopted by the United Nations General Assembly in 2018.^{Footnote 134} Michele Acuto has described how this influence is the result of both top-down processes and subnational governments’ own initiative.^{Footnote 135} International organisations such as the United Nations and the World Bank, and regional organisations such as the European Union, increasingly address themselves to subnational governments, on occasion making room at the table for their participation in traditionally nation state-centric fora.^{Footnote 136} For example, the United Nations has partnered with ICLEI — Local Governments for Sustainability in its work on sustainability issues.^{Footnote 137} Helmut Aust has argued that, by entering into non-binding agreements with the World Bank, the C40 Cities Climate Leadership Group is able to influence the standards that are adopted by the World Bank in its agreements with other entities.^{Footnote 138} At the same time, subnational governments actively seek to assert their role by adopting policy frameworks meant to influence existing international regimes.^{Footnote 139} Governance networks are often the vehicle by which such a role is established.

Governance networks can also shape international law and policy-making indirectly, by allowing for the development of norms and standards on a range of global issues from the ‘bottom-up’.^{Footnote 140} Janet Levin and Hari Osofsky have described the process of bottom-up lawmaking as one in which a community of diverse actors ‘coalesce around shared, on-the-ground experiences and perceived self-interests’, that, over time, assume normative significance and harden into law.^{Footnote 141} Governance networks provide a forum for these norms and standards to be diffused horizontally, amongst their members.^{Footnote 142} Through the networks’ interactions with national governments, international organisations and other entities, those norms can then ultimately be diffused upwards, to influence international policy-making.^{Footnote 143} In this way, governance networks not only provide a forum for the sharing of information and expertise, and a vehicle for lobbying and the exertion of influence, but they also play a ‘jurisgenerative role,’^{Footnote 144} allowing subnational governments to function as part of a ‘norm-generating community’.^{Footnote 145} They provide a space for the concretisation of standards developing at the subnational level, and facilitate their translation to the international level. Such an understanding of the role of governance networks is consistent with theoretical approaches to international law and lawmaking that consider more generally how non-state, sub-state and supra-state actors make normative contributions to the corpus of international law even while acting outside international law’s formal structures and processes.^{Footnote 146}

While most contemporary work on the subject of governance networks is about cities and local governments, the same principles can be applied to networks involving regional or sub-federal governments. Australian states and territories are part of governance networks, such as the Under2 coalition, and the Network of Regional Governments for Sustainable Development.^{Footnote 147} Moreover, they are active participants in these networks. For example, a number of Australian states and territories sit on the Under2 coalition steering group.^{Footnote 148} New South Wales, South Australia and the Australian Capital Territory have announced the formation of a net zero emissions policy forum for subnational governments, an initiative supported by the Under2 coalition, which is intended to attract a global membership.^{Footnote 149} If the states and territories continue to seek a more pronounced role in governance on issues such as climate change, engaging with other governments and with international institutions may become an essential tool by which they do so. Notably, state and territory governments signed a series of instruments and declarations concluded in connection with the 26^th Conference of the Parties to the United Nations Framework Convention on Climate Change^{Footnote 150} (‘COP26’) in 2021. These included a ‘Declaration on Accelerating the Transition to 100% Emission Cars and Vans’ signed by the governments of Victoria, New South Wales, Tasmania,^{Footnote 151} South Australia and the ACT;^{Footnote 152} a ‘Global Coal to Clean Power Transition Statement’ signed by the ACT government;^{Footnote 153} and the ‘Further, Faster, Together: Under2 Leaders Action’ declaration, signed by the NSW government.^{Footnote 154} At the time of writing, the latter two were listed as ‘not in operation’ on the Public Register.

It is unclear the extent to which the Foreign Relations Act will limit subnational foreign activity, and thereby the opportunities for such engagement. The Foreign Relations Act does not prohibit foreign arrangements of any particular kind. However, subnational governments have raised concerns that the broad nature of the Minister’s discretion under the Foreign Relations Act, the vague definitions of its operative provisions, the lack of any review rights, and the administrative burden created by the scheme may have a chilling effect on subnational foreign engagement.^{Footnote 155} If this proves true, the Foreign Relations Act could become, whether deliberately or inadvertently, a means of limiting the ability of Australian subnational governments to engage with international law.