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senate vote 2019-07-25#8

Edited by mackay

on 2019-08-09 13:12:01

Title

  • Bills — Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019; in Committee
  • Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 - in Committee - Amendments

Description

  • <p class="speaker">Nick McKim</p>
  • <p>Minister, I'm going to ask the same question I did on numerous occasions before we broke. I'm just wondering if you've had an attempt to regroup and have a bit of a think about it and maybe consult with your advisers. The question is: in regard to judicial reviews of a decision made by the minister to issue a temporary exclusion order, are those judicial reviews able to be requested on the basis of the merits of the minister's decision?</p>
  • <p class="speaker">Linda Reynolds</p>
  • The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2019-07-25.103.4) (1) to (22), (24) to (38) and (40) that were introduced by NSW Senator [Kristina Keneally](https://theyvoteforyou.org.au/people/senate/nsw/kristina_keneally) (Labor), which means they failed.
  • Senator Keneally [explained that](https://www.openaustralia.org.au/senate/?gid=2019-07-25.103.4):
  • > *These amendments to the Counter-Terrorism (Temporary Exclusion Orders) Bill ensure that the bill conforms to the unanimous and bipartisan recommendations of the Labor and government members of the Parliamentary Joint Committee on Intelligence and Security.*
  • <p>In response, Senator McKim, I reiterate that a decision to make a TEO is subject to an administrative review by an independent reviewing authority. Secondly, it is subject to judicial review, which is not a review of its merits but of its legality. I was very clear that the decision is not subject to merits review. My exact answer was, and I'll reconfirm what I said then: I can confirm that it is subject to administrative review before it comes into force and, secondly, that it is subject to judicial review. I clarified this further earlier by stating that allowing merits review would lengthen the decision-making process and allow a person to return to Australia without adequate notice or control of their return. Again, I believe I was very clear that the decision is not subject to merits review.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>I just want to explore that a little bit more. It's pretty clear that the review authority, which is making an administrative review, doesn't review on the merits&#8212;I understand that to be what you said. Normally an administrative review can be appealed to a court, but, in doing so, it's normally explicitly stated in the acts that allow the referral that it is to be on a point of law only. This bill doesn't state that, so I'm wondering, when we get to the judicial stage, whether or not you can appeal on the basis of an error of law and also appeal on the basis of an error of fact?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Patrick, I really don't have anything further to add because I've answered your question, and, I believe, the answer to Senator McKim made those points very clear.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>This bill constrains the Federal Court from reviewing an issue on the basis of an error of fact?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>I've just reconfirmed with the relevant officials, who advise me that it does not constrain.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>There has been a little bit of confusion. I just want to make sure I fully understand what you've said&#8212;that, when a TEO decision is made, it gets immediately referred to a review authority, who makes a decision on the law only, but, when we get to a judicial review, you can have that review on both a point of law and an error of fact? I just want to make sure that's the summary of the situation.</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>I've just reconfirmed with officials that it is on a matter of law.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>For which review&#8212;the administrative review, or the judicial review? You've said different things here.</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>I haven't; I've been very consistent. As I've reconfirmed, it's for both&#8212;on a matter of law.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>A few minutes ago, Minister, you said that this bill does not constrain a court from reviewing a decision of the minister on a point of law or a point of fact. I just want to clarify: you're walking back from that? I'm not being hostile; I just want to get an understanding.</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Patrick, we are now going around the roundabout. I think I have been very clear, both to you and to Senator McKim: judicial review includes a review based on an error of law. This is consistent with the Constitution, and also the Judiciary Act. There are no changes to that. In fact, these provisions are consistent with other national security legislation.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>I just want to put this to you, and I mentioned this in my second reading speech. What about a circumstance where a person has gone to a function somewhere in Jordan and has, in some way, been photographed with someone who really is a bad egg and that link is then made up and provided to the minister? So the minister makes the decision&#8212;in good faith&#8212;on the basis of some intelligence that says there is an association, and that matter then gets referred to the review authority. We understand from the bill that at that point there is no representation from the person subject to the TEO. They're not in a position to explain the facts of the case, which are: 'I was there on one night. I don't know these people. I've never seen them before in my life.' Of course, that can't occur, as I understand it, at the administrative review stage by the reviewing authority.</p>
  • <p>What you've just said to me is that, when we get to a court, there's no way of remedying that error. That's a question of fact&#8212;that the minister has been presented with the fact that this particular person is associated with some really bad eggs. That's a question of fact. And what you're saying is that a court could never look at that. The person who's been denied procedural fairness because the act does that is not in a position to turn up to the court and say: 'Your Honour, there's a serious error of fact in this. I can show that I've spent all of my time assisting people in Jordan who are troubled. That's how I was spending my time there. I got caught out once being in a place where there were some bad eggs.' That's what you're effectively suggesting if a court can't examine an error of fact. Using that as an example, can you just confirm that is the case?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Patrick, I've gone through this. The law is very clear. You are now engaging on a very discursive path of a hypothetical, which is not appropriate for me to comment on, because it is a hypothetical.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>We are talking about laws that are prospective, that will occur in the future. The only thing you can ever apply to a prospective law is a reasonable circumstance that will be hypothetical. There is no other way you can tease out how an act will be applied. So to somehow suggest that I should give you an example that is not hypothetical is quite disturbing. We have to explore the way in which this act will work in the future, and if I call out a scenario and you say, 'Senator Patrick, that would never happen,' I accept that. But I'm giving you a reasonable example in trying to understand how, in the future, this act would apply in those sorts of circumstances. I seek an answer to the question please, Minister.</p>
  • <p class="speaker">Nick McKim</p>
  • <p>Frankly, that's actually not good enough, Minister. You've received a perfectly reasonable question from Senator Patrick. I'll just draw your attention to the fact that courts do look at the <i>Hansard</i> record of debates such as these to assist them with ruling on issues that come before them, because the courts try, in some circumstances, to understand the intent of the parliament in passing legislation. When legislation is drafted, not every circumstance is foreseeable or predictable. What Senator Patrick is trying to do here is his job&#8212;his job as a senator in this house of review and his job as a senator to tease out from you, Minister Reynolds, your intent in the drafting of this legislation and, ultimately, the intent of the parliament in passing this legislation. We're trying to help the courts here, and you are hindering us in that duty.</p>
  • <p>Senator Patrick has asked you a perfectly reasonable question about how this legislation may apply in a certain set of circumstances. You can call it 'hypothetical' all you like, but I actually don't accept that characterisation of it. The way I would describe Senator Patrick's question is that he is asking it in an attempt to inform the Senate and to inform future potential deliberations of the judiciary, and for you to simply sit there and not answer it is not only contemptuous of the Senate, it's contemptuous of our judiciary.</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator McKim, thank you very much for that almost hysterical response to my response to Senator Patrick. However, all I can do is again refer you to the bill. If you'd actually read the bill, section 14(5)(a) is a clear answer to that question. If the minister took an irrelevant consideration into account, that is a factor. Read the bill.</p>
  • <p class="speaker">Kristina Keneally</p>
  • <p>I seek leave to move items (1) to (40) on sheet 8710 together, noting that questions&#8212;</p>
  • <p class="speaker">Cory Bernardi</p>
  • <p>Just one moment, Senator Keneally. I've been advised to seek confirmation that you want to move (1) to (22), (24) to (38) and (40) by leave together. There are gaps in it&#8212;that's all.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>