|
senate vote 2020-12-02#5
Edited by
mackay staff
on
2023-01-13 13:49:16
|
Title
Bills — Australia's Foreign Relations (State and Territory Arrangements) Bill 2020, Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020; in Committee- Australia's Foreign Relations (State and Territory Arrangements) Bill 2020 and another - in Committee - Reasons and review
Description
<p class="speaker">Penny Wong</p><p>We've had a discussion today about the review of decisions. I understand, just for clarity, the government has put forward legislation which enables a minister to make a decision under this bill to veto an agreement that an elected government has entered into without notice and without any reasons for a decision and without any capacity for review. The opposition, for the reasons outlined, doesn't believe that is appropriate. I place on record again that I have offered to the government, both at a staff level and at a principle level, to engage with them about the content—</p>-
- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2020-12-02.108.5) introduced by South Australian Senator [Penny Wong](https://theyvoteforyou.org.au/people/senate/sa/penny_wong) (Labor), which means they failed.
- ### What did these amendments do?
- These amendments would have increased transparency requirements. Senator Wong [explained that](https://www.openaustralia.org.au/senate/?gid=2020-12-02.108.5):
- > *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.*
- ### Motion text
- > *(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.*
<p class="speaker">Government Senators</p><p>Government senators interjecting—</p><p class="italic">The CHAIR: Order!</p> <p class="speaker">Penny Wong</p><p>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:</p><p class="italic">(1) Clause 50, page 60 (after line 7), after the paragraph beginning "The Minister must take into account", insert:</p><p class="italic">Decisions made by the Minister under this Act may be reviewed by the Administrative Appeals Tribunal.</p><p class="italic">(2) Page 62 (after line 25), after Division 2, insert:</p><p class="italic">Division 2A—Review of decisions</p><p class="italic">51A Review of decisions</p><p class="italic">(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:</p><p class="italic"> <i>Notice of decision must include statement of reasons etc.</i></p><p class="italic">(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:</p><p class="italic">(a) a statement of reasons for the decision in accordance with subsections (3) and (4); and</p><p class="italic">(b) information about the right to have the decision reviewed.</p><p class="italic">(3) The statement of reasons must include:</p><p class="italic">(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</p><p class="italic">(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.</p><p class="italic">Note: See also section 25D of the <i>Acts Interpretation Act 1901</i> for other rules about the contents of a statement of reasons.</p><p class="italic">(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:</p><p class="italic">(a) state that fact; and</p><p class="italic">(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.</p><p class="italic"> <i>Reviews by Security Division of the Tribunal</i></p><p class="italic">(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.</p><p class="italic">(6) The provisions of the <i>Administrative Appeals Tribunal Act 1975</i> apply in relation to an application for review of a reviewable decision referred to in subsection (1) with the modifications specified in the rules.</p><p class="italic"> <i>Definition of </i> <i>foreign relations matter</i></p><p class="italic">(7) For the purposes of this section, a <i>foreign relations matter</i> means a matter that relates to whether a particular action:</p><p class="italic">(a) would or would not adversely affect, or would be likely or unlikely to adversely affect, Australia's foreign relations; or</p><p class="italic">(b) would or would not be, or would be likely or unlikely to be, inconsistent with Australia's foreign policy; or</p><p class="italic">(c) adversely affects, or is likely to adversely affect, Australia's foreign relations; or</p><p class="italic">(d) is, or is likely to be, inconsistent with Australia's foreign policy.</p><p>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.</p><p>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:</p><p class="italic">… 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.</p><p>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.</p><p>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.</p><p>Government senators interjecting—</p><p>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—</p><p class="italic">Senator Rennick interjecting—</p><p>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.</p> <p class="speaker">Gerard Rennick</p><p>Haven't you got anything better to do?</p> <p class="speaker">Penny Wong</p><p>Yes, we have. We have a serious bill—</p> <p class="speaker">Gerard Rennick</p><p>Grow up, Senator Wong.</p><p class="italic">The CHAIR: Order!</p> <p class="speaker">Penny Wong</p><p>Being told to grow up by Senator Rennick is one of the highlights of my career, I reckon! Look, I think that whatever people's views are on the BRI—and I've made my views clear—if we're serious about safeguarding Australia's sovereignty in the context of the sort of strategic and geopolitical environment that Australia is in, then there actually has to be a degree of unity and a degree of working together. My criticism of the federal government is that they have chosen to play this through the media for political purposes rather than actually trying to resolve it. As I said, at the same time they refuse to release their own secret BRI deals—and it's a pity Senator Rennick wasn't here to hear that—which Mr Ciobo entered into. The minister can exercise powers under this regime to cancel an arrangement without the need to provide reasons, without any notice and without the capacity for review, and people wouldn't even know what factors the minister took into account; only the minister would know that. So we've taken a responsible approach in drafting the amendments to ensure that the government's concerns are dealt with, including the need for sensitivity in publishing details of Australia's foreign policy.</p><p>I say to the government, if you want to deliver on what Mr Morrison promised in announcing this regime—transparency, leadership and alignment—you would accept these arrangements. The statement of reasons that we have drafted would include, whether, if in making the decisions, the minister is satisfied or not satisfied of a foreign relations matter or had ceased to be satisfied of a foreign relations matter, an explanation for the basis on which the minister reached that position and, in particular, foreign relations, foreign policy or other considerations involved and an explanation of how matters have been taken into account.</p><p>The minister raised earlier, as a justification for non-inclusion of national security sensitivities, I again make this point, that in recognition of national security sensitivities, this amendment does not—I repeat does not—require information to be included in a statement of reasons if disclosure of that information is, or is likely to be, protected by public interest immunity of which obviously national security grounds aren't a ground. The opposition has provided that the threshold for withholding information on the basis of a PII, public interest immunity, claim is that the minister believes on reasonable grounds that the information is subject to public interest immunity. I outline that because that is a very substantial protection of national security or other information that a minister reasonably believes should be excluded on the basis of public interest immunity.</p><p>The minister has said a number of times that she has put judicial review into the legislation. I make this point: judicial review of ministerial decisions has limited utility without a requirement for a minister to provide reasons for decision. It also limits the ability of Australian entities to comply with the legislation. These amendments establish a right of review of decisions under the act by the AAT. They require the minister to provide reasons to affected entities and for entities to have the capacity to appeal them. They insert a new clause in the bill, itemising decisions that would be reviewable. We have specified that the review function should be conferred on the security division of the AAT so that the procedural requirements for classified evidence apply. For the purposes of this clause, a foreign relations matter means a matter that relates to whether or not a particular action would or would not adversely affect, or would be likely or unlikely to adversely affect, Australian foreign relations, or be inconsistent with Australian foreign policy amongst other things, to summarise.</p><p>The minister has not been interested in engaging on this. These are very sensible amendments. It is a very substantial power. The Labor Party doesn't believe the minister should have this kind of untrammelled power to veto agreements that sovereign state governments and territory governments have entered into without at least providing reasons for the decisions and having some capacity to be accountable for them.</p> <p class="speaker">Marise Payne</p><p>I note that the government does not support these amendments for the reasons that have been ventilated at length in the discussion and the debate during the committee stage. I appreciate the matters that Senator Wong has raised but we believe they are covered within the provisions of the bill. We are very conscious of the decisions being made under this bill and the potential impact that they have in relation to bilateral relations in relation to disadvantaging Australia's position, including in bilateral and international fora or negotiations.</p><p>I do want to emphasise again, as I did in response to a previous discussion, that this is not by any means a secret, or secretive for that matter, process. The minister's decisions are made public through the register. They are open for all to see and to scrutinise. They are made on the basis of Australia's foreign policy, which is the purview of the Commonwealth government. It's determined by the minister in consultation and processes through the Prime Minister, the cabinet process, advice from the Department of Foreign Affairs and Trade. These decisions will be robust decisions, as I have said before. They will be made in the public interest and with the transparency and accountability that is appropriate in the context of the nature of those decisions.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
-
|