Thursday, 25 July 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019; In Committee
Minister Reynolds, in your speech concluding the second reading debate you quite rightly pointed out that there are opportunities to review ministerial decisions in the context of this legislation. Can you firstly clarify that those opportunities do not extend to reviews of the merits of the minister's decision? Secondly, can you confirm that they are limited to the making of a TEO and not other aspects of this legislation—for example, varying the provisions of a TEO?
Perhaps you didn't hear my question. The question specifically was: can you confirm that the judicial review is limited to matters of law and is not a merits review—in other words, that it is not possible to challenge the decision of a minister to issue a temporary exclusion order based on the merits of his or her decision, as opposed to challenging it on the question of whether or not the minister has lawfully made that decision?
I can play this game all day, Minister. We can sit here till the cows come home, as far as I'm concerned, so I'll just ask the question again and I hope you can actually answer it, rather than answering a completely different question that, with respect, you weren't asked. Is the decision of a minister to issue a temporary exclusion order able to be reviewed judicially based on the merits of the minister's decision—yes or no?
I'm sorry, Senator McKim, that you didn't actually understand the legislation or my, I think, very clear enunciation of it, but the answer is yes, and I'll explain why. Allowing merits review would lengthen the decision-making process and could enable a person to return to Australia without adequate notice or control of their return. So—
Minister, you have just informed this chamber that the judicial review can consider the merits of the minister's decision. I think you've actually said the wrong word. I invite you to correct the record. The question is: is the minister's decision able to be appealed in the courts based on the merits of the minister's decision? You have just answered, 'Yes.' I invite you to reconsider that answer.
Senator McKim, I have nothing more to add. I have been factually correct, and there's nothing more to add. You can keep ping-ponging this backwards and forwards, but I've made a very clear enunciation of the requirement.
I just want to untangle this a bit. Perhaps there's some confusion. It's clear that, when the minister makes a TEO, it's passed pretty much on the same day to a reviewing authority, which is not a court. My question firstly is: in that initial stage, where the reviewing authority looks at it, can the reviewing authority look at it on the basis of the merits? And, secondly, can you confirm that there is an option available to someone to seek judicial review in the Federal Court or the High Court in respect of the TEO, irrespective of the review by the reviewing authority?
Again, my answer is the same as it was to Senator McKim. If your question is, 'Can the reviewing authority review the length or conditions of a TEO?' they can. The administrative review is of the lawfulness of the minister's decision. That is done by the reviewing authority before it becomes lawful.
Just restricting the question to the reviewing authority—not a judicial review—I'll try and tease this out a bit with an example. The minister is presented with some information by ASIO that suggests that someone is a security risk or someone might be involved in terrorist activities if they were to return to Australia. On the basis of that advice from ASIO, the minister makes a decision. The question is: when the decision is then handed to the reviewing authority, is the reviewing authority able to look at those same reasons and perhaps overturn the decision on the basis of something that he or she thinks is flawed?
Senator Patrick, I think the EM and the bill itself are actually very clear on that answer. In case you haven't had the opportunity to read the EM and the accompanying material, I'll tell you what the test for the reviewing officer considers. The reviewing authority decides if any of the following apply: it was an improper exercise of the power to make the TEO, the decision was induced or affected by fraud, or, if the decision was made under section 10(2)(a), whether the minister could have formed the required state of mind based on the information considered by the minister. So, again, it is quite comprehensive and freely available for your perusal in the EM and other documents.
So none of those items you mentioned in the provisions go to the merits of what's actually on the advice? In some sense, the act is silent; it says what can be considered. I'm trying to work out whether the reviewing authority is prohibited from considering some of the content of the advice—whether or not there is a discretion of the reviewing authority to look at that advice and come to a different conclusion from the minister.
Senator Patrick, again, to be really clear: I have just gone through what the administrative review takes into consideration, but all decisions under the bill are judicially reviewable, and that includes merits based review for the judicial review.
I understand that there's a further process where you can refer a decision to the Federal Court. I'm just restricting my questions to the review that takes place by the reviewing authority, typically within the same day as the minister's decision, and whether or not that reviewing authority has a discretion—because the act is silent on this—to look at the advice that ASIO had provided the minister and come to a different conclusion from the minister.
Senator Patrick, I once again say the answer is that what that review considers is very clearly spelled out in the legislation and in the EM. But, in relation to the exclusion of the ADJR Act review, this is necessary, as I have said a couple of times already, due to the need for speed in relation to this. So the further judicial review by the Federal Court or the High Court can take a merits based approach and also consider the decision of the administrative review, giving regard to the broader circumstances that you're talking about.
Minister, the explanatory memorandum says:
Subsection 27 provides that the Administrative Decisions (Judicial Review) Act 1977 does not apply to decisions made under the provisions of the Bill.
You have rightly pointed out that judicial review of the TEO decision and the review authority's consideration is available under section 75(v) of the Constitution and section 39B of the Judiciary Act. Could you please outline for the Senate what difference there is between an appeal taken under the Administrative Decisions (Judicial Review) Act and consideration of a review under the Constitution or the Judiciary Act. What is the difference between the two opportunities, one of which is not provided for in this legislation and one of which is?
Senator McKim, all I can do is repeat yet again what I've already said: the exclusion of the ADJR Act review is necessary in the circumstances to deal with the expedited requirement for these TEOs in certain circumstances. We believe this has got the right balance between the need for expedition but also the right for judicial review.
Just to confirm: Minister, your very clear advice to the Senate—and I'm not talking about the administrative review here; I'm talking about the judicial review, which is in our courts as opposed to in the administration. I'm asking you to once again confirm that the judicial review opportunities that are available, according to the paperwork attached to this bill under section 75(v) of the Constitution and 39B of the Judiciary Act, do provide for a merits review of an appeal based on the merits of the minister's decision. I think we need to be really clear about this, so I hope my question is clear. I'll say it again while I know your advisors are communicating with you. My question is: under the judicial review opportunities available under section 75(v) of the Constitution and section 39B of the Judiciary Act, is it possible under both of those provisions or either of those provisions to ask the courts to review the minister's decision based on the merits of that decision, as opposed to based on the question of whether or not the minister has obeyed the law in making that decision?
Senator McKim, thank you very much for asking the same question now about six times in a row. If you're wondering about the constitutionality of the circumstance, what I can confirm is this: under the Judiciary Act and the Constitution, it allows for judicial review relating to the legality of the TEO. I cannot be clearer than that—again.
Yes, thank you. So you have confirmed that it allows for a review based on the legality of the decision. I understand that but that is not my question. Does it provide for a review based on the merits of the minister's decision? Yes or no, Minister? Yes or no? You keep getting up and saying that it provides for a review based on the legality of the decision. There is no question in my mind and I presume in the minds of any other senator about that. The question in my mind is: do those provisions in section 75(v) of the Constitution and/or section 39B of the Judiciary Act provide for an appeal against the minister's decision based on the merits of the minister's decision, as opposed to the legality of the minister's decision? Could you please just say yes or no to that question?
Listening to this debate today, I have pulled out the Constitution and I'm going to read section 75(v), which is the original jurisdiction of the High Court. In reference to the TEO, the minister makes a decision based on what has been presented to him by the individual departments. He then makes a TEO against these people who may wish at some time to come back to Australia. In doing so—the minister may clarify this if I'm incorrect in my assessment—the minister will actually sign off on the names put before him and, once he has done that, then the reviewing officer, which is usually a retired judge or a former judge of the AAT, will actually have a look at it to make sure that the legalities are adhered to.
Senator McKim, 75(v) of the Constitution has absolutely nothing to do with it because it is in reference to the High Court. Section 75(v) states:
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
This has got nothing to do with the High Court, and section 75(v) should never come into this debate here, so I think this is a long bow that the Greens are drawing here. So, Minister, please correct me if I'm incorrect in my assessment.
It's like pulling teeth in here. I invite the Australian people to look at and listen to the way this minister is performing and the contempt with which she's treating this chamber. Simple question: can the courts do a merits review—yes or no?
The CHAIR: It being 11.45, we will report.