Marise Payne handed foreign relations veto powers, but final Senate hurdle remains

Federal parliament has handed Marise Payne the power to veto deals between the states, councils, universities and foreign governments.

Foreign Minister Marise Payne faces a final hurdle in the Senate in order to be able to use new foreign relations powers in the form she wants. Picture: Sean Davey

Federal parliament has handed Marise Payne the power to veto deals between the states, councils, universities and foreign governments, but the Foreign Minister still faces a fight from Labor and crossbenchers, who want affected parties to be able to challenge her decisions in court.

With just four parliamentary sitting days remaining for the year, the government is guaranteed at least one more legislative win when the Senate passes the COVID-19 welfare supplement extension to March 31.

While Labor and the Greens oppose the rate being cut from $250 to $150 per fortnight for ­welfare recipients, they will not block the extension because without it the rate drops to zero.

Three bills — making the cashless debit card trials permanent, merging the Family Court and the Federal Circuit Court and the ­establishment of a national commissioner for defence and veteran suicide prevention — either face defeat or require one more Senate crossbench vote to pass.

The Morrison government’s foreign relations laws, allowing the federal government to scrap agreements by sub-national governments and universities, have been split across two bills.

The substantive bill giving Senator Payne the veto powers, that can apply to future and retrospective deals such as the Victorian government’s Belt and Road Initiative agreement with China, has passed through both houses of parliament.

But a consequential amendments bill, which includes several reforms including changing the Administrative Decisions (Judicial Review) Act so that Senator Payne’s decisions under the foreign relations bill are not subject to court challenges, remains stuck in the parliament.

Government sources said the foreign relations powers would not work properly or in the way they wanted without the consequential amendments bill also ­becoming law. However, independent South Australian senator Rex Patrick successfully amended that bill so that the states, local councils and universities that have their foreign deals overturned can challenge Senator Payne’s decisions if they believe she misused her power, did not follow proper procedures or failed to consider evidence.

But whether the minister’s ­decision was right or wrong or was made in the national interest cannot be taken to court.

“Judicial review of the minister’s exercise of a power is extremely important and I will be voting to insist upon the amendment,” Senator Patrick said.

“If the amendment survives, then states, local councils and ­universities could challenge the minister’s decision on a question of law under the Administrative Decisions Judicial Review Act.

“If it fails, then judicial review still exists in the Federal Court and the High Court, but the grounds for seeking a judicial ­review are much more limited.”

Opposition foreign affairs spokeswoman Penny Wong said Senator Payne had not explained why Senator Patrick’s amendment would stand in the way of the operation of the foreign relations legislation.

“This bill gives unprecedented power to the Foreign Minister and Labor is of the view that there should be some oversight of the Minister’s decisions,” Senator Wong said.
“That’s why we were pleased the Senate supported our amendment to provide some parliamentary oversight and why we support Senator Patrick’s amendment. I have written to the Foreign Minister indicating I am open to discussing how we can work with the government in a bipartisan manner.”

If the consequential amendments bill does not pass parliament at all, the Administrative Decisions (Judicial Review) Act remains in its current form, having the same effect as Senator Patrick’s amendment.

Senator Payne did not respond to a request for comment by deadline.