Page 1351 - Week 05 - Thursday, 31 May 2007
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Clause 98.
DR FOSKEY (Molonglo) (6.08): I move amendment No 7 circulated in my name. [see schedule 2 at page 1362].
The amendments to clause 98G and clause 129 (2) are presented in an abundance of caution and serve as much as a direction to decision makers as they prescribe actual behaviours. They spell out that decisions made under these clauses must be made on reasonable grounds.
It is a feature of administrative law that all administrative decisions must be based on reasonable grounds, but the level of reasonability is that of the so-called Wednesbury unreasonableness test, and case law indicates that that level is very low indeed. The standard description of the test is “a decision so unreasonable that no reasonable person could possibly make it”. What may appear to be unreasonable to a vast majority of people can easily be found to be reasonable by a court or tribunal if there are even tenuous grounds for it and it is argued by a brace of expensive senior counsel.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services) (6.09): The government will agree to this amendment. Reasonable grounds are usually added where a power itself is articulated. Clause 98 of the bill is about things the chief executive needs to consider when exercising powers in part 9 (3) regarding the monitoring of detainees.
In administrative law there is a common law presumption that all administrative decisions must be rationally connected to the power being exercised. The Human Rights Act 2004 also required public servants to apply an interpretation and exercise any powers in a manner consistent with human rights. As noted in the explanatory statement to the government’s bill, clause 98 requires the application of the human rights principle of proportionality. Proportionality requires that the exercise of powers must be necessary and rationally connected to the objective, least restrictive in order to accomplish the object, and not have a disproportionately severe effect on the person to whom it applies. The government is of the view that clause 98 requires a proportionate decision to be made which must inherently be reasonable. The government is prepared to agree to the amendment, as it has the same effect as the clause currently stands.
Amendment agreed to.
Clause 98, as amended, agreed to.
Clauses 99 to 128, by leave, taken together and agreed to.
Clause 129.
DR FOSKEY (Molonglo) (6.11): I move amendment No 8 circulated in my name [see schedule 2 at page 1362].
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