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Tuesday, 1 February 1994
Page: 70

Mr MELHAM (9.22 p.m.) —On a personal level, I certainly embrace a lot of the things that the honourable member for Tangney (Mr Williams) has said in speaking to the Crimes (Search Warrants and Powers of Arrest) Amendment Bill. Unfortunately, on 17 November 1993, when this bill was first introduced into the House I was representing the parliament on a parliamentary delegation to the Middle East so I did not have an opportunity to see the bill before it was presented to the House. Those are just the facts of life.

  Some of the points that the honourable member for Tangney made are valid. I do not know whether we are going to be able to accommodate him in relation to this bill. In view of his final words, the government has basically been given the opportunity to refer the bill to a committee of this House, otherwise it will go to a committee of the Senate. In this instance, I believe that the House of Representatives committee is better qualified to look at this bill. I say that on the basis that the House of Representatives committee contains practitioners in the field, both past and present, and a former Attorney-General. That is not derogating from my good friend Senator Barney Cooney. The problem with the Senate committee is that it really is overworked.

  I was party to a Procedure Committee report that was tabled in the House prior to Christmas. It was envisaged in that report that members of this House and committees of this House would take on work such as this. I can speak only from a personal point of view. Obviously, if the government does not embrace the amendment from the opposition I will vote with the government. I certainly encourage the Minister for Justice (Mr Kerr), who is at the table, that this is an ideal opportunity. The points that the honourable member for Tangney made are valid.

  When I arrived back from overseas I did not have a chance to read all my correspondence. However, I was recently asked to speak in relation to this matter. The correspondence over my desk includes correspondence from the acting senior public defender for New South Wales, Martin Sides QC, for whom I have enormous respect. He has written a four-page letter to the Attorney-General (Mr Lavarch) which was passed on to the Minister for Justice. The Minister for Justice, being his usual diligent self, has responded in 4 1/2 pages to him. I have not had a chance to meticulously go through the arguments; there are differences of opinion. Mr Sides raised serious concerns in relation to the bill which the Minister for Justice certainly attempted to answer.

  I also have correspondence from Beverley Schurr, a solicitor in New South Wales, who is involved with the New South Wales Council for Civil Liberties. She raises a number of concerns with the bill from a civil libertarian point of view. I made some inquiries today and was advised that Ian Barker QC of the New South Wales bar has been charged by the New South Wales Bar Association to look at this legislation. Unfortunately, he has just come back from a stint of holidays, so he has not had adequate time to have a look at it.

  The problem is that this is far-reaching legislation. There are members of the community, members of the bar in various states—solicitors and practitioners—who can bring forward some opinions and views that can enrich the legislation that we bring before the House. I know that part of the amendments that have been brought before the parliament this evening results directly from a letter written by Mr Sides QC. The government has taken on board one of the concerns that he raised in his letter.

  My difficulty is this: I have a healthy cynicism and a deep suspicion of the bureaucracy; in particular, in recent times, the Attorney-General's Department, although I have enormous respect for it. But it appears to me, as someone who has practised in the criminal law field, representing accused persons for over a decade before coming into the parliament, that a culture is developing—and it is happening in New South Wales more so than at a federal level—which really is all one way.

  There is a mentality in the community, a growing conservative populist opinion, which is being expressed by the New South Wales conservative government. The legislation that continually comes before the House is legislation that appears to erode the rights of the accused or the rights of the individual, all in the name of securing convictions. That is fine; I do not have a problem with that. My problem is that we as members of parliament are given a raft of papers shortly before a committee hearing; we are expected to digest them properly and then to participate in debate and to vote. That is just a nonsense. That is why I believe that we, as a House of Representatives, need to start taking our committee system a little bit more seriously. It is not until legislation is produced in the parliament that we can properly scrutinise it.   I have a network, and I do not apologise for this. When legislation comes before the parliament that I can release into the community, I do so. I seek advice so that I can test the advice that is coming from a particular department. I have discovered that there is a limited circle within which the Attorney-General's Department and other departments seem to go for advice. We as representatives of the community need to make sure that we are getting balanced advice, not only from the Australian Federal Police and the union that covers the Australian Federal Police but also from civil liberties organisations, from bar associations, from law societies, or whatever.

  A massive bureaucracy has now built up. As the honourable member for Tangney quite rightly says, a lot of the people in the community who are charged with really scrutinising or making submissions are doing so in a voluntary capacity. Beverley Schurr, for instance, has for over 15 years that I can recall, in her association with the New South Wales Council of Civil Liberties, continually kept a watching brief in relation to these matters. Alarm bells start to ring when I get five pages from her expressing some concerns. I think we as legislators need to test the advice we are getting from the respective departments and from the advisers and subject it to scrutiny.

  The unfortunate thing with this piece of legislation is that it has come at a very awkward time, as the honourable member for Tangney quite rightly says. It came at the same time as the Mabo legislation was being debated and our attention, quite rightly, was diverted to that legislation. There has also been the holiday period.

  The problem we have here is that if we do send it through the House of Representatives it will get stuck in a Senate committee. It is about time the House started taking its committees seriously. One thing the Senate has got right is that it has established a committee system. Quite frankly, I think it sends too much legislation to committees but at least it sends it and bills do get scrutinised.

  There is an imbalance, because I do not happen to agree with some of those Senate committee reports. I think, quite rightly or wrongly, the prime force behind them is the office of the Clerk of the Senate. I place on record that I do not have much respect for what I regard as some political views that are being pushed through Senate committee reports. I think this House should start looking at bills in its own way.

  I do not need an interpretation from the Clerk of the Senate about section 53 or section 55 of the constitution. I do not even need to have a look at it to find out where he is coming from. He is plainly on the record, so it is about time this House started to use the office of the Clerk of the House of Representatives through its own committee system.

  I am quite proud of the fact that I am Chairman of the House of Representatives Standing Committee on Legal and Constitutional Affairs. There is a bit of self-interest here, but when we look at this committee we see that it comprises a former Attorney-General and a number of former ministers as well as, from an opposition point of view, the shadow Attorney-General, a QC in his own right, not appointed because he happened to be the shadow Attorney-General or whatever but quite properly as a well-regarded member of the Western Australian bar. We also have the old warhorse, the right honourable member for New England (Mr Sinclair), who does enrich that committee. I regard it as probably the premier committee in the parliament.

  It is about time legislation such as this was sent to a House of Representatives committee. That might not be appropriate tonight and I accept that because of the late nature of the amendment. I am interested to hear what the Minister for Justice, who is at the table, says in reply, but this is a classic piece of legislation to demonstrate my point. If we are not going to refer this, then it is about time we started looking at doing it and setting in train a procedure whereby we do refer bills to House of Representatives committees so that we can use the resources of the Clerk of the House of Representatives.

  I am trying to be honest with the House. I will obviously support the minister at the table and the government's position in relation to this legislation, but from a personal point of view I cannot give my personal stamp of approval to this legislation—I do not think there is anyone in this House who has had more experience in criminal matters—because I have not had, for good reason or bad, the opportunity to properly scrutinise this. I have not addressed my mind to it, so I am not going to stand up before the House and give the legislation the stamp of approval.

  I do have enormous respect for the minister at the table. We share a different view at times in relation to what we regard as appropriate legislation. I tend to be a little more conservative than the minister at the table in relation to some matters, and vice versa. If it is possible for our committee to have a look at it, I encourage the minister to send it to us. There is not much more I have to say, but I do take on board the manner in which the honourable member for Tangney has spoken tonight. He is trying to engender a constructive element into the debate.

  This is very important legislation. It is legislation that does impinge on the liberty and rights of the subject. When we look at a couple of instances in New South Wales of recent times—the Gundy and the Brennan cases jump to mind quite readily—of police arrest and entering and searching houses that went badly wrong, I think we as a federal parliament need to be very cautious. We can never be cautious enough in relation to this type of legislation.

  I happen to believe that we should be standardising legislation around the nation and that it should be the federal parliament that acts basically as the measure. Our legislation should be able to be easily picked up by each of the respective state parliaments. It is not good enough that at the moment we have a situation in relation to a lot of the criminal law within the Commonwealth that it really depends on which state people reside in as to their rights. This legislation is important because it purports to set the standard for Australia. I think other states may well pick it up, although there might be some marginal differences at the edges.

  Without being treacherous or traitorous, if the minister at the table can accommodate the amendment of the honourable member for Tangney I would urge him to do so. If he cannot, obviously the sorts of contributions that I have made tonight will unfortunately have to be looked at and visited in the other place.