2nd Dec 2020, 12:40 PM – Senate Australia's Foreign Relations (State and Territory Arrangements) Bill 2020 and another - in Committee - Reasons and review

The majority voted against amendments introduced by South Australian Senator Penny Wong (Labor), which means they failed.

What did these amendments do?

These amendments would have increased transparency requirements. Senator Wong explained that:

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.