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

I have raised with the government via multiple channels—staff, office to office, leader to leader—a willingness to engage with the substance of changes to this. We've had no reply from the government until recently, which I think is disappointing, as I have said before. By leave—I move opposition amendments circulated in my name on sheet 1114:

(1) Clause 50, page 60 (after line 7), after the paragraph beginning "The Minister must take into account", insert:

Decisions made by the Minister under this Act may be reviewed by the Administrative Appeals Tribunal.

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

Division 2A—Review of decisions

51A Review of decisions

(1) Applications may be made to the Administrative Appeals Tribunal for review of a reviewable decision referred to in column 1 of the following table:

Notice of decision must include statement of reasons etc.

(2) The notice that is required to be given in relation to a reviewable decision referred to in column 1 of the table in subsection (1), under the provision referred to in column 2 of the table, must contain:

(a) a statement of reasons for the decision in accordance with subsections (3) and (4); and

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

(3) 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.

(4) To avoid doubt, subsections (2) and (3) 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.

Reviews by Security Division of the Tribunal

(5) The power of the Administrative Appeals Tribunal to review a reviewable decision referred to in subsection (1) may be exercised by the Tribunal only in the Security Division of the Tribunal.

(6) The provisions of the Administrative Appeals Tribunal Act 1975 apply in relation to an application for review of a reviewable decision referred to in subsection (1) with the modifications specified in the rules.

Definition of foreign relations matter

(7) 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.

I again underline that the bill does not require the minister to provide any reasons for a decision and does not allow for any process of review or appeal by affected entities of ministerial decisions. The bill excludes procedural fairness, the operation of the Administrative Decisions (Judicial Review) Act and any form of merits review.

I note that when Mr Morrison announced this legislation he claimed that the legislation would 'provide a transparency' around all of those arrangements and it would:

… ensure ultimately a greater awareness of the federal foreign policy settings that we are seeking the alignment of and the support of and the cooperation with of governments and government related entities right across Australia.

The problem is that a regime that provides no transparency of the minister's decision, no notice of the minister's decision, no requirement for the federal government to advise affected entities of its foreign policy settings and no guidance to ensure the alignment of governments and government related bodies right across Australia is not a scheme that provides the sort of transparency and enables the alignment of which the Prime Minister spoke. If the government wants to deliver on this promise it should provide guidance, and when the entities get it wrong they should explain why. That is, over time, the only way we can ensure the sort of alignment that is necessary at this time.

I also make the point that without procedural fairness, without a requirement to provide reasons and without capacity for review, this is a discretion that sits solely with the minister. There is no requirement to explain what Australia's foreign policy is and no requirement to explain how an arrangement is inconsistent with foreign policy. Now, I don't doubt the motivations of this minister. I've been critical of her performance, but I don't doubt her motivations. But any minister may make decisions with regard to all kinds of matters under this legislation, given the broad discretion given to the minister under the bill. For example, it's not unimaginable that a federal government of one political persuasion might take issue with an arrangement that is beneficial to a state or territory government of another political persuasion, and we have seen that in the way in which the government here has chosen to attack Premier Andrews through the media without actually sitting down and having a chat.

Government senators interjecting—

I'm just looking to see who was moaning. Well, I just think that when it comes to foreign policy, how about not doing it through the newspapers? If you're really serious about safeguarding Australia's national interests, why don't you sit down—

Senator Rennick interjecting—

Well, you can come in here. If you want to join the debate, I'm very happy for you to, Senator. Why don't you come over here and have the guts to stand up? They won't let him—ha! Oh dear. I always offer Senator Rennick leave to speak, but he never takes me up on it.