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

I will endeavour, with the advice of officials, to provide you with a response on some of those issues. Let me start by saying that the grounds for judicial review in the AD(JR) Act of course largely mirror the common law. We see substantial overlap between the scope of judicial review under the Judiciary Act and the Constitution—that is common law, which is already available—and the grounds for judicial review under the AD(JR) Act. So, there's not a great deal of meaningful difference between the nature or prospects of success of applications for review under either avenue.

A key difference—and you adverted to this in your comments—is the requirement to provide reasons for a decision. The government is of the view that the provision of reasons would have the potential to adversely affect Australia's foreign relations by potentially disclosing Australia's foreign policy or position on the sensitive issue which is in question, in the context of the arrangement that is being examined. It has the potential to damage bilateral relationships and to disadvantage Australia's interests in international fora and negotiations. I do think that the provision of reasons in that context in these circumstances would defeat the object of the bill, which is to protect and to manage Australia's foreign relations.

I also want to emphasise that judicial review does remain available under the bill by the Federal Circuit Court under section 39B of the Judiciary Act 1903 and by the High Court under section 75(v) of the Constitution. And, like the ADJR, these avenues of review do allow a court to do several things, including setting aside a decision which has been made unlawfully, requiring the performance of a duty that a decision-maker has failed to perform, ceasing proceedings where a decision-maker has failed to exercise their powers properly, and also to grant an injunction that can prevent or require certain actions.

I think and the government thinks that 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 they involve complex political considerations. There are a couple of examples of that that I think are useful for the chamber to be aware of—for example, decisions under the FIRB regime, because those decisions are exclusively a matter of government policy and the ADJR judicial review could result, in that case, in public disclosure of classified and commercially confidential material. Certain decisions under the Australian Passports Act fall into that category, which is also an act I deal with, as well as extradition and prison transfer arrangements and a range of decisions which relate to intelligence and national security, and some in relation to taxation, corporations and charities.

These are issues that we have considered; they're issues that we have examined in the context of the development of the legislation, and they are the determinations that we've come to.