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senate vote 2020-12-03#1
Edited by
mackay staff
on
2022-10-22 14:58:03
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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 - in Committee - Procedural fairness
Description
<p class="speaker">Janet Rice</p><p>by leave—In respect of the Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020, I move amendments (4) and (5) on sheet 1078 together:</p><p class="italic">(4) Page 69 (after line 16), after clause 56, insert:</p><p class="italic">56A Guidelines</p><p class="italic">(1) The Minister must, by notifiable instrument, issue guidelines for the purposes of this Act.</p><p class="italic">(2) Without limiting subsection (1), the guidelines must outline the matters in relation to Australia's foreign policy which the Minister may consider when making a decision for the purposes of this Act.</p><p class="italic">(3) For the purposes of the performance of a function, the exercise of a power, or making of a decision under this Act, regard must be had to any guidelines issued by the Minister under this section.</p><p class="italic">(5) Page 69, after proposed clause 56A, insert:</p><p class="italic">56B Foreign Policy Statement</p><p class="italic">(1) The Minister must, by legislative instrument, make a statement (the <i>Foreign Policy Statement</i>) at least once each calendar year that outlines Australia's foreign policy for the purposes of this Act.</p><p class="italic">(2) The rules may prescribe other matters relating to the content or form of the Foreign Policy Statement.</p><p class="italic">(3) Regulations must not be made under paragraph 44(2) (b) of the <i>Legislation Act 2003</i> to exempt the instrument from disallowance.</p><p>I don't need to speak to the amendments. They cover the same issues that we covered at length yesterday about putting some more checks and balances in the bill, getting clarity and not having the same complete control and power that the minister would have. It's setting in place some guidelines for how decisions are going to be made and setting in place a definition of foreign policy. In the interests of time I won't speak any more about them because I think we canvassed in a lot of detail yesterday the issues they cover.</p> <p class="speaker">Penny Wong</p><p>The opposition will support amendment (4) but vote against amendment (5). Chair, I ask that you put them separately on that basis.</p><p class="italic">The CHAIR: I will put amendment (4) first. The question is that amendment (4) on sheet 1078 be agreed to.</p><p>Question negatived.</p><p class="italic">The CHAIR: I will now put the second part of that. The question is that amendment (5) on sheet 1078 be agreed to.</p><p>Question negatived.</p> <p class="speaker">Janet Rice</p><p>by leave—I ask that the votes of the Greens in favour of that amendment be recorded.</p><p class="italic">The CHAIR: Yes, we can do that.</p><p>In respect of the Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020, the Greens oppose clause 58 on sheet 1078 in the following terms:</p><p class="italic">(6) Clause 58, page 70 (lines 1 to 4), TO BE OPPOSED.</p><p>This is to remove a clause from the bill. At the moment, the bill says that the minister is not required to observe any requirements of procedural fairness in exercising a power or performing a function under this act. We think that it is pretty unreasonable. We think that basic legislative standards and common-law standards are that procedural fairness should be allowed. When these bills went to the Scrutiny of Bills Committee, the committee said:</p><p class="italic">The committee considers that the right to procedural fairness is a fundamental common law right and it expects that any limitation on this right be comprehensively justified…</p><p>The committee did not consider that the explanation in the explanatory memorandum as to why procedural fairness should be excluded was at all satisfactory, and we wrote to the minister. We received further information back from the minister and, certainly, having seen that letter, I do not see any further justification as to why procedural fairness should be excluded. The right to procedural fairness is based on two things. It requires that decision-makers aren't biased and do not appear to be biased, and that a person who may be adversely affected by a decision is given an adequate opportunity to put their case before the decision is made. I think these are two very, very basic requirements, and there is no reason why procedural fairness should be excluded in this legislation.</p> <p class="speaker">Marise Payne</p><p>In relation to Senator Rice's amendment, I understand that, in the normal course of events, issues—such as this one in relation to procedural fairness—are raised, but this is a different form of legislation. The inclusion of procedural fairness would require the disclosure to a state or territory entity, where there was a likelihood of an adverse decision, of the specific foreign policy matters considered which made the adverse decision likely. It is our view that it is not appropriate for sensitive decisions on foreign policy or foreign relations to be shared.</p><p>It's a well-established principle that information relating to Australia's international or foreign relations is not required to be released, and there are numerous examples of this: the Freedom of Information Act 1982 exempts documents affecting national security, defence or international relations; the Archives Act 1983 provides that access may be refused if releasing the information would damage Australia's security, defence or international relations; and under the Criminal Code there are offences for Commonwealth officers who cause harm to Australia's interests by communicating information that causes harm to Australia's interests, including information that harms or prejudices Australia's international relations. Public interest immunity considerations also include damage to Australia's international relations, particularly in instances where the information relates to exchanges between government officials.</p><p>It does not, in our view, make sense and it is damaging to Australia to reverse a longstanding principle in the context of these bills. If the sensitive foreign policy information were excluded from such disclosures, the opportunity for procedural fairness would actually not be meaningful. The exclusion of procedural fairness does not prevent state or territory entities from consulting DFAT in relation to arrangements or relevant policy considerations prior to a formal notification.</p> <p class="speaker">Penny Wong</p><p>For the reasons previously outlined, Labor will support the amendment.</p> <p class="speaker">Janet Rice</p><p>Minister, do you have any legal advice that suggests that in these bills the requirements of procedural fairness would require disclosing sensitive information?</p> <p class="speaker">Marise Payne</p><p>Senator Rice, we don't comment on legal advice of that nature in a discussion such as this, but I've been clear, I think, throughout the debate in relation to the sensitivity of the sorts of matters that these bills go to. The examples that I have just provided—from the FOI Act, from the Archives Act and from the Criminal Code—go to the seriousness of these issues. We are not talking about basic administrative decisions, Senator. We are talking about decisions in relation to foreign policy and foreign relations.</p> <p class="speaker">Janet Rice</p><p>Thank you, Minister; but do you have any legal advice? My understanding is that in the sort of legislation that you were talking about—and, indeed, in this legislation—you can have procedural fairness that does not require the disclosure of sensitive information. There was a discussion about this by the Australian Law Reform Commission that basically outlined that procedural fairness is still required, even where sensitive information is not disclosed.</p> <p class="speaker">Marise Payne</p><p>We have comprehensive legal advice on all aspects of the piece of legislation.</p><p class="italic">The CHAIR: The question is that clause 58 stand as printed.</p> -
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?gid=2020-12-03.12.1) "*that clause 58 stand as printed.*" In other words, they voted to keep that clause unchanged.
- ### Why did this vote take place?
- This vote took place after Victorian Senator [Janet Rice](https://theyvoteforyou.org.au/people/senate/victoria/janet_rice) (Greens) proposed that the clause be removed from the bill. She [explained that](https://www.openaustralia.org.au/senate/?gid=2020-12-03.6.1):
- > *At the moment, the bill says that the minister is not required to observe any requirements of procedural fairness in exercising a power or performing a function under this act. We think that it is pretty unreasonable.*
- ### What is Clause 58?
- > *58 Requirements in relation to procedural fairness*
- >
- >> *The Minister is not required to observe any requirements of procedural fairness in exercising a power or performing a function under this Act.*
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