Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The committee is considering the Australia's Foreign Relations (State and Territory Arrangements) Bill 2020 and a related bill and amendments (2) and (3) on sheet 1078, moved by Senator Rice. The question is that the amendments be agreed to.

Question negatived.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I ask that the Greens be recorded as voting in favour of those amendments.

Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

So noted.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

by leave—I move amendment (1) on sheet 1151 together with amendments (1) and (2) on sheet 1152:

(1) Page 62 (after line 25), after Division 2, insert:

Division 2A—Statement of reasons for decisions

51A Statements of reasons for decisions

Notice of decision must include statement of reasons etc.

(1) The notice that the Minister is required to give under this Act in relation to a decision by the Minister must contain:

(a) a statement of reasons for the decision in accordance with subsections (2) and (3); and

(b) information about the right to have the decision reviewed.

(2) The statement of reasons must include:

(a) if in making the decision the Minister is satisfied or not satisfied of a foreign relations matter, or has ceased to be satisfied of a foreign relations matter—an explanation of the basis on which the Minister reached that position and the particular foreign relations, foreign policy or other considerations involved; and

(b) if the Minister is required under section 51 to take the matters specified in subsection 51(2) into account in making the decision—an explanation of how those matters have been taken into account and have affected the decision made.

Note: See also section 25D of the Acts Interpretation Act 1901 for other rules about the contents of a statement of reasons.

(3) To avoid doubt, subsections (1) and (2) do not require information to be included in a statement of reasons if the Minister believes on reasonable grounds that disclosure of that information is or is likely to be protected by public interest immunity. However, if information is not included in a statement of reasons on that basis, the statement of reasons must:

(a) state that fact; and

(b) specify the particular grounds for the claim of public interest immunity, including the grounds on which it is considered that it is not in the public interest to disclose the information and the harm to the public interest that could result from the disclosure of information.

Definition of foreign relations matter

(4) For the purposes of this section, a foreign relations matter means a matter that relates to whether a particular action:

(a) would or would not adversely affect, or would be likely or unlikely to adversely affect, Australia's foreign relations; or

(b) would or would not be, or would be likely or unlikely to be, inconsistent with Australia's foreign policy; or

(c) adversely affects, or is likely to adversely affect, Australia's foreign relations; or

(d) is, or is likely to be, inconsistent with Australia's foreign policy.

(1) Schedule 1, page 3 (line 3), omit the heading.

(2) Schedule 1, item 1, page 3 (lines 4 to 7), to be opposed.

I just want to speak briefly to these. This morning we talked about judicial review, or the review associated with decisions made by the minister under this bill. The Senate has declined to include an AAT review process. So what these amendments together seek to do is to remove the prohibition in the bill for a review under the Administrative Decisions (Judicial Review) Act and to require the minister to provide reasons for a decision. I just want to talk very briefly about that. The Administrative Decisions (Judicial Review) Act does not permit a merits review, which I think is one of the things that the minister is seeking to avoid—a discussion about the merits of a particular policy decision. Section 5 of the Administrative Decisions (Judicial Review) Act sets out the sorts of questions that can be brought before a court in relation to a decision, and they are things like:

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

…   …   …

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision …

Those are just several of the questions that can be put before a court. They are questions of law, not going to the merits of any particular decision.

So this is trying to find the balance and not overload the AAT with matters that typically would be initiated by fairly significant litigants—shire councils, state governments or universities. The AAT is more of a place for individual litigants who want to take on the government in respect of a decision that has been made about them personally. That's typically what happens in the AAT. But this does bring the level up to a court. That in itself will filter out the number of applications likely to be made.

An important part of that review process is that the minister is required to provide a decision. Now, it's generally accepted in administrative decision-making that decision-makers who are required to write down and set out the reasons generally make a better decision. But there are other reasons why people should be provided with reasons. In these circumstances, the minister may make a decision about an organisation, and that organisation may, in a sense, be aggrieved by the minister's decision. They've got a no on something—they're being prohibited from doing something, or something has been overturned—and they never get to understand why. That's one of the reasons why administrative decisions normally are accompanied with reasons, and that's so that the aggrieved party can have a look at those reasons.

The third reason why it's important to have reasons made available—the first being so better decisions are made and the second being so the aggrieved party can see what the justification is—is that it actually provides a mechanism to initiate a judicial review of some sort. You can see what the minister has or has not done, and you can perhaps bring that to the attention of a court. The fourth reason is that in general, with any administrative decision, we like to see consistency in government. We like to see predictability in government. And if we have a number of decisions that are available for people to see, for people to understand and comprehend, then it allows others in the community to understand whether or not the actions they might be considering taking would fall foul of the minister's intent or not. So it is important to provide reasons, and it's for that reason I would encourage the Senate to vote for the amendments that I have put.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Just to clarify in relation to the AD(JR) Act, which we went through in part earlier today, the government does not support these amendments, one of the reasons for that being the requirement to provide reasons. We also believe that there is substantial overlap between the scope of judicial review under the AD(JR) Act and the Constitution itself. That is the common law which is already available, of course, and the grounds for judicial review under the Judiciary Act and the AD(JR) Act.

The government is of the view that judicial review remains available under the foreign relations bill, as we have already discussed, by the Federal Circuit Court, under the Judiciary Act, and by the High Court, under the Constitution. And, like the AD(JR) Act, these avenues of review do allow a court to do several things, including setting aside a decision that has been unlawfully made, requiring the performance of what a decision-maker has failed to perform, ceasing proceedings where a decision-maker has failed to exercise their powers properly, and granting an injunction to prevent or require certain actions. So we do think the judicial review mechanism in the bill is appropriate. There are comparable schemes which also exclude the AD(JR) Act review on the basis that those schemes are ones which involve complex political considerations. That includes the FIRB; it includes, as I said earlier, certain decisions under the Passports Act, extradition and prisoner transfer arrangements; and it includes a range of other decisions relating to intelligence and national security, to taxation, to corporations and to charities.

I don't think it is appropriate to replace the foreign minister as the decision-maker on foreign policy and foreign relations with a merits review. These are the remit of the federal government. They draw from federal government expertise. We oppose these amendments.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

The Greens will support this amendment on the issue of review. This amendment doesn't go as far as our amendment asking for a review and for the reasons to be provided, but it's certainly a step forward and an improvement on what's currently in the bill.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

I'm just going to explain what we're doing. I'm sure the whips are across it. The first question I am going to put is that item 1 of schedule 1 stand as printed. That is a reference back to amendment (1) on sheet 1152. These are being moved by Senator Patrick. The second part of that, after we've voted on that, will be amendment (2) on sheet 1151. The third piece that Senator Patrick has moved is amendment (1) on sheet 1151. So the question is that item 1 of schedule 1 stand as printed.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

Before I put the question, I'll just explain that we are dealing with amendment (1) on sheet 1151, as moved by Senator Patrick, and amendment (1) on sheet 1152. The question is that the amendments be agreed to.