Page 1063 - Week 03 - Thursday, 26 February 2009
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grounds to make a decision, the amendments that I will move later in this debate will ensure that the argument cannot be put that, by including the requirement that magistrates act on reasonable grounds in another section of the act, the Assembly intended to remove or water down this requirement in sections 40(a)(iii) and 40(c)(v).
It may be thought that all administrative decisions must be based on reasonable grounds and that a jurisdictional error will occur if a decision maker makes a decision on unreasonable grounds. This is the so-called Wednesbury unreasonable test, which is the benchmark for testing whether a decision is so unreasonable that no reasonable person could have made it. The Wednesbury standard is a particularly difficult ground of appeal to approve, as a decision has to be truly mind-bogglingly ridiculous before a court will find that a decision is invalid due to a lack of reason.
The powers under these proposed sections are very serious and concern arrest and removal orders. It is important to ensure that anyone wishing to challenge the exercise of these powers does not run up against government lawyers claiming that the standard of reasonableness required for their exercise is in any way less than that required under other sections of this act.
It is most likely that these amendments are unnecessary, and I hope they are. However, as I said, it is best to err on the side of extreme caution in this matter. When there is ambiguity as to the correct interpretation of the statute, a court may look at extrinsic materials such as speeches by the government in this Assembly. In this light, we must bear in mind that this government was happy to support the test laid down by the majority of the High Court in the McKinnon FOI case, as we discussed the last time this chamber sat and debated that point. In this case, a decision which was truly mind-bogglingly ridiculous and apparently contrary to the spirit of the act under which it was made was held to be a valid exercise of power because the merest shred of a rational process was discovered within it.
In these circumstances, until we hear a convincing repudiation of such an approach by this government, there could be a danger that a court looking for guidance in how to interpret this legislation may be guided by the government’s speeches, such as those supporting the reasoning in McKinnon, as examples on how reasonable this government intends the decision must be in order to satisfy an unstated reasonableness test.
In these circumstances I think it would be prudent to follow the advice of the scrutiny of bills committee and, as I flagged, I will be moving an amendment to insert a reasonableness test into the foreshadowed provisions when we come to this detailed stage of the bill. But at this point in time, the Greens will be supporting in principle today’s bill put forward by the minister.
MR HANSON (Molonglo) (11.40): Madam Deputy Speaker, I speak to the motion in support of the splitting of the bill as proposed by Mrs Dunne, and I do that because of all the issues that she has raised and also because of those that have been raised by Mr Rattenbury. He has certainly identified that serious mistakes have been made. He notes that they were illegal, and I think that it is very clear to us now that they were. He notes also that the decision maker was the Attorney-General in this case, and that
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