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

I was going to ask some questions—obviously, when we move these amendments, which are further down the list, I'll make more detailed remarks—but I have to submit or suggest that I think the answers by the minister to Senator Patrick's reasonable questions really did not hold water.

Firstly, I think that comes down to the view that one takes about the extent to which executive government actually ought to be accountable. There is a very significant power in this legislation; it's a power to veto agreements across many entities. I understand why the government want to do it. I've been critical of the process and I've been critical of the way in which they failed to consult, and of the political timetable around the announcement. But I understand the reasons for it. I also think they should get out of the habit of trying to bash the Victorian Premier through the media and perhaps sit down with him and try to resolve these issues.

But, leaving that aside, I understand the reasons for the federal government wanting this power. However, it seems to the opposition that, as a matter of principle, you don't give executive government a power, except in very important circumstances, that has no accountability, or so little accountability. I would have thought that that would have been something that those on that side would actually have thought about. The Labor Party has been very careful in drawing up amendments. We've asked the minister's office on a number of occasions to provide feedback if they don't like our amendments. We were hoping for some bipartisan engagement on this. But do you know what we're asking for in the amendments on sheet 1114 that Senator Patrick has been speaking to? Firstly, we're asking for notice of a decision so that if, surprise, surprise, the bureaucrats get it wrong—an amazing proposition—people would be able to say, 'Actually, it's the wrong agreement,' or, 'That's not the right point,' or, 'You've got this fact wrong.'

Secondly, we're asking for a statement of reasons, which I think is pretty reasonable. Thirdly, we ask that there be protections:

To avoid doubt, subsections (2) and (3) do not require information to be included … if the Minister believes on reasonable grounds that disclosure of that information is or is likely to be protected by public interest immunity.

I think it's absolutely absurd that the minister came in here and airily said in a generalised way, 'We don't want any requirement to give reasons or to give notice to make sure the decisions are right, because it will affect our foreign relations.' Even under the terms of our amendments—and we're open to a discussion about how to protect the sorts of issues the minister is describing—you have the capacity to exclude content on the basis of public interest immunity, which clearly includes some of the issues to which you're referring. The minister brings up that classic argument: 'It's too secret' or 'It's too risky'. There's nothing in this bill to stop the exercise of what is a quite substantive power.

Let's talk about the BRI in Victoria, which has been the subject of Senator Paterson's petition and lots of media coverage. Leaving aside the politics of that, if the federal government decide that they want to cancel an agreement that an elected state government has undertaken, I don't think it's that unreasonable to say that we probably should have some reasons for the decision. As Senator Patrick correctly pointed out and reminded me, we also referred this legislation to the security division of the tribunal. We do this for far more sensitive issues. I was on the PJCIS for many years. I'm quite pleased that I'm no longer on the PJCIS, given the workload. But there are many areas, as this minister knows, particularly from her previous portfolio, where highly classified decisions are made. These decisions are protected by the principles that we have in a liberal democracy that you don't allow executive power to go completely unchecked or without accountability and the issue of confidentiality or national security is resolved by the way in which legal rights have been drafted.

I think the reality is that you don't want to have to give reasons for decisions, and I don't quite understand that. I understand that Mr Newnham's role is to give you very conservative advice, but if one is actually trying to explain to various entities why certain things are problematic, the guidance that comes from that process is important. As I said at the outset of the debate, what we want is our sovereignty to be resilient. Resilience doesn't just come from a minister in Canberra having a power of veto. It comes from people understanding and institutions understanding what they should do and what they shouldn't do. This situation, where there's not a requirement to provide reasons and there's not really any effective capacity for review—we all understand the parameters of judicial review—I don't think provides the best outcome. I don't think it furthers the national interest that the bill is supposedly about. I've got plenty of material I can go to, but I did want to respond to the minister's point there. There are some substantive questions. Why have there been no review rights included? Why did you exclude review rights? Why did you exclude the requirement to provide reasons to people whose agreements you were cancelling? I don't think those questions have been answered adequately.