Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share 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.