Senate debates

Tuesday, 8 December 2020


Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020; Consideration of House of Representatives Message

12:20 pm

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

The committee is considering message No. 301 from the House of Representatives relating to Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020.

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

I move:

That the committee does not insist on its amendments to which the House of Representatives has disagreed.

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

I'm very disappointed at the proposal for us to not insist on our amendments. It does make you wonder what the point of the Senate is. What's the point of the debate we had last week? What's the point of the amendments that were agreed in this place last week? We spent an extended period of time last week, as people will recall, debating these amendments in this place, and debating the main bill that they accompanied. I think that it was very appropriate, given the significance of the bill, for us to have spent that time debating the bill and the amendments.

As I said in my speeches then, we agree that, wherever foreign interference or actions that aren't in our interests are occurring, these are serious problems that need to be addressed. Where we disagree is with the approach the Liberal Party has taken. After a lot of debate, we had two amendments that got through—two amendments amongst many. It was an absolutely minimal number of amendments to this very significant bill. It is very appropriate for the Senate as a house of review to decide that there were some changes—just a tiny bit of extra checks and balances—that should be put in place on this far-reaching bill.

This bill is incredibly far reaching. It has been rushed through. It didn't have an exposure draft. It was basically being used as political cover when the Prime Minister was feeling very vulnerable on a very different issue with the terrible Commonwealth response to COVID in aged-care settings. It had no exposure draft. It had no regulation impact statement. The key stakeholders—including universities and local governments—raised significant concerns about the lack of consultation. We heard last week, at length, how consultation did not occur until after the bill was introduced in the House. So we made some very minor amendments to this bill. As Greens, we thought that there were a lot more changes that needed to be put in place to improve the checks and balances on the power that this bill gives to the foreign minister.

The bill leaves key terms undefined. It gives the foreign minister enormous discretion in overriding a very wide range of amendments, even retrospectively. There are no guidelines set out in the legislation as to what the minister needs to consider when deciding whether to intervene in an arrangement. There's no commitment to procedural fairness, which involves not being biased, giving the person or entity affected a hearing before an action is taken, and providing reasons for undertaking that action. As we noted in the debate last week, procedural fairness does not necessarily involve providing reasons if there are national security concerns. The whole argument, we were told last week, was that we couldn't have procedural fairness because it might impact on our national security, and that is a furphy.

Essentially, it's clear that the approach that has been taken by this government is designed to cut off all avenues of legal appeal. In doing so, it gives massively too much power to the minister. It throws away the essential checks and balances that should be there in such far-reaching legislation. And all the government can say is basically: 'Just trust us. We won't be doing it in that overarching too-powerful way. Don't worry. There will be notes. There will be frameworks. There's a task force.' But it's not in the legislation, so it's not guaranteed. It's not locked in. It is giving too much power to the minister.

Fundamentally, we believe that addressing foreign interference necessarily should involve working collaboratively with stakeholders around the country, including the state and territory governments, including the universities, and including local councillors and other bodies. We believe that this bill should have been developed with a very different process and it should have provided much, much stronger oversight and transparency. In that debate, only two amendments were successful in getting through the Senate, and yet we're now being asked to not insist upon one of them, which the House rejected. That amendment, requiring judicial review, is only a marginal improvement on a bad piece of legislation, but it is an important improvement and the Senate absolutely should be insisting on that amendment.

I want to conclude by noting that this whole piece of legislation does nothing to address an underlying and fundamental cause of potential foreign interference and influence and corruption and actions occurring that aren't in our national interest, and that's money. It does nothing towards getting money out of politics, which is what we need to do if we're going to get serious about decisions being made on their merits and not on who is holding the purse strings. We need to bring in a federal ICAC if we want to find out who is corruptly and improperly influencing whom. We need to fund universities properly if we want them to question the wisdom of entering into memorandums of understanding with foreign governments and universities. Frankly, there is so much more that this government could be doing to address these very important issues. This legislation does not do this, and not insisting on this one amendment makes a bad piece of legislation even worse.

12:26 pm

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

I thank Senator Birmingham for agreeing to deal with the message today after my absence yesterday. Can I first go to the objectives of the bill. I would make the point that I have, on behalf of the Labor Party, consistently indicated, from the day the bill was announced without notice to us and without any indication to us, that we would back the objectives of the bill. The substantive bill, the Australia's Foreign Relations (State and Territory Arrangements) Bill 2020, has actually already passed the parliament with the opposition's support. There seems to be a bit of confusion amongst the minister's colleagues about the status of the substantive bill. I think this is the first time I've seen a government actually claim one of its bills hasn't passed the parliament when it has. I do question the Morrison government's motivation for that misleading of some in the public arena in suggesting that the bill hasn't passed. The scheme has passed and the minister has the power. The question here is whether or not there should be some oversight of the minister's decisions. We think that view was reflected in the sensible substantive amendments that Labor moved and in our support of the amendment moved by Senator Patrick. The application of the AD(JR) Act to a decision under this bill would really do no more than provide a clearer pathway for organisations that wanted to review the legality of a decision by the government. It makes things clearer and simpler, and that's really it.

I do want to go to the point of how the government and this minister have chosen to deal with this bill. We have repeatedly offered to engage with the government in relation to this bill. To my mind—and this is what I would say to this chamber—this is one of the problems with the way in which this government seeks to handle certain issues of foreign policy. It doesn't know how to be bipartisan in the national interest. We get the announcement; we make clear our position; the minister doesn't talk to the opposition. On this legislation we invited conversations. The minister still hasn't spoken to me—not once. We provided the government with our amendments ahead of them being circulated. We provided the government again with a letter after the amendments were voted on here in the chamber saying: 'If you've got an issue, come back to us. We'd like to discuss a way through.' I got a text from the minister and some staff consultation which suggested it was simply a matter of principle. Can I just say that I think a minister in this portfolio ought to have the political maturity to engage the other party of government when it comes to these sorts of pieces of legislation. I register my disappointment that the minister consistently refused to do so. I find it mystifying, frankly.

I understand that Senator Lambie is changing her position. Senator Lambie is always very upfront with me. I knew we had her last time and now I know we don't have her, so thank you to her. She's not one of those in this place about whom you die wondering. I appreciate her clarity with me around that.

I think it's pretty clear the Senate won't be insisting on this. Labor will continue to insist on the amendment, given what we've previously indicated and the failure by government, really, to offer any substantial reason as to why this is such a dreadful proposition to have in the application of the act. So we will continue to support the amendment that Senator Patrick moved, which was identical to an opposition amendment, to ensure the bill was not excluded.

12:30 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

I just want to make a very short contribution to make sure the Senate understands that the amendment that was passed last time does not seek to enable judicial review on the merits of the minister's decision, not as to whether or not he or she has made an erroneous decision on the balance of national security. It's about the housekeeping associated with any decisions. The grounds for seeking review under the Administrative Decisions (Judicial Review) Act include 'that procedures that were required by law to be observed in connection with the making of the decision were not observed' and 'that the person who purported to make the decision did not have jurisdiction to make the decision'. Another ground might be 'that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made'. These are the sorts of things that this amendment seeks to ensure. It doesn't seek to question the minister's judgement on the balance of national security. It simply seeks to ask: When the decision was made, were all the right things done? Was it the right person? Did they have at least some evidence before them, as opposed to making a decision without evidence? That's all this amendment seeks to do. It's very reasonable, and I will also join with the Labor Party in insisting on the amendment.

12:31 pm

Photo of Marise PayneMarise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | | Hansard source

Just briefly, for the record, let me note—because I don't think it was clear for the vast majority of Senator Rice's speech—that two amendments were passed through the Senate and, when the bill was considered in the House of Representatives, one of those was accepted and continues as part of the bill; the other was not.

The amendment which was accepted was for the minister to make an annual report to the Senate on the implementation of the bill and for that matter to be referred to the Senate Foreign Affairs Defence and Trade Legislation Committee by Senate resolution of continuing effect. So the procedures of that committee to examine the implementation of the Australia's foreign relations bill and the decisions made by the minister will continue; that amendment was clearly accepted. We have not accepted the amendment in relation to the application of the Administrative Decisions (Judicial Review) Act for the many reasons I cited last week, and I want to thank Senator Patrick particularly for his engagement on this matter.

In relation to consultations, I would advise the chamber once again that the Department of Foreign Affairs and Trade conducted over 60 consultations across state, territory and local governments and universities as well. The bill does include a number of important transparency, scrutiny and accountability provisions. For the first time, there will be a register of all such arrangements. The decisions that are made by the foreign minister will be included on that register. There is an ability to claim judicial review of the decisions of the foreign minister. As I've said, there's now an annual report to parliament—an opposition amendment which was agreed by the government in the House of Representatives. The rules that the foreign minister makes are disallowable by the parliament. We incorporated, by our own amendment in the House of Representatives, a review of the scheme after three years.

I would note, as I said to the chamber in committee last week, that the factors in section 51 that are to be taken into account form a clear and open part of the minister's consideration. The scheme contemplates—and, it could be argued, in fact mandates—increased consultation with the Department of Foreign Affairs and Trade on its expertise on foreign policy and foreign relations. There is also the availability of compensation for acquisition otherwise than on just terms.

Underneath all of that, as the foundations of the bill, I would remind the committee that the scope of the bill and the level of the obligations for the entities covered by the bill are carefully calibrated for the risk that may attach to foreign arrangements that they may make. But also remember the point we have made repeatedly that, of course, these arrangements are often beneficial and welcome and in the vast majority of cases will continue unaffected. It is important, I believe, to remember that this bill proposes a framework that carefully balances accountability, timeliness of decisions, administrative burdens and statutory frameworks.

As I said earlier, the government believes that the committee should not insist on its amendments to which the House of Representatives has disagreed.

The CHAIR: The question is that the committee does not insist on its amendments to which the House of Representatives has disagreed.