Mr WILLIAMS (Attorney-General and Minister for Justice)(6.06 p.m.) —in reply—I propose to wind up this debate fairly briefly. The debate concludes without the opposition having a position in relation to the bill at all, except that the member for Banks (Mr Melham) has indicated, speaking for the opposition, that it will not be opposed in this House. He indicated that the opposition intended to refer it to, I presume, the Senate Legal and Constitutional Legislation Committee for what I understand he referred to as `reconsideration'.

This reveals yet again the inability of the opposition to adopt a position for the purpose of debates in the House of Representatives on legislation in the Attorney-General's portfolio. I have previously commented on this and speculated on whether it is indolence on the part of the shadow minister, Senator Bolkus. We might go a bit further and invite the question whether it is incompetence or even negligence on the part of that shadow minister. It puts the member for Banks in the invidious position of time after time having to come into this House and say: `We will not oppose it here but we do not know what is going to happen in the Senate.' It is really pathetic. It may even raise a question as to the ability of the Leader of the Opposition (Mr Beazley) to control his shadow ministers in the Senate.

When the member for Banks indicated that he was not opposing the bill in this House, he nevertheless went on to lay the groundwork for not supporting the bill in the other House with a number of his arguments. It is interesting that he was followed by the member for Barton (Mr McClelland) and the member for Reid (Mr Laurie Ferguson), who effectively supported the bill. It puts back bench members of the opposition in a difficult position. They do not know what the opposition's position is. The member for Reid, who is a shadow minister, is in the position of saying that he supports the bill, although his fellow shadow minister responsible for the bill does not have a position on it.

The bill is in a form which is substantially similar to that introduced by the previous government in 1995. One can suggest, without the appearance of any countervailing argument, that what the opposition is now doing is just plain political opportunism. The opposition would like to be politically obstructive but it is not really sure how to do it. It does not really have any arguments as to how it might be done at this stage but it hopes that the Senate committee will find some and construct some bullets for the shadow minister in the Senate to fire.

It is consistent with a long line of actions by the opposition of saying one thing in government and another in opposition. It is saying one thing in this House and then possibly, probably, another thing in the other chamber. The member—

Mr Martin Ferguson —The others were non-core promises, were they?

Mr DEPUTY SPEAKER (Hon. G.H. Adams) —Order! The honourable member for Batman.

Mr WILLIAMS —The member for Banks asserted that things have changed.

Mr Martin Ferguson —Don't laugh. Even he can't look at me.

Mr WILLIAMS —With an expression like that on the face of the member for Batman, it is very hard to hold a straight face. The member for Banks asserts that things have changed since the previous government considered the other issue. He weakly asserted that the Chief General Counsel's legal advice to the previous government was faulty. The legal advice may or may not have been influential with some members of the govern ment, but one thing I am quite convinced of—it would have had no effect whatever on the opinion of the former Minister for Foreign Affairs. He would have formed his own view. He did form his own view, and he has expressed his own view on a number of occasions. He gave a speech to an international treaties conference which, from memory, was at the ANU on 4 September 1995.

Mr Martin Ferguson —He was actually in Australia at the time?

Mr WILLIAMS —He was in Australia. He said:

The court's decision raised a fundamental question about our system of parliamentary law making in Australia. Should the parliament be bypassed to allow treaties to have a direct effect in Australian law, the government is firmly of the view that this is not an appropriate development and that the role of changing Australian law to conform with treaty obligations should remain with the democratically elected parliaments of this country.

He continued:

The joint statement which the Attorney-General and I published on 10 May 1999 and the Administrative Decisions (Effective International Instruments) Bill 1995 were designed to make that `contrary intention' clear in the way that the High Court itself allowed for. Our concern in making the statement and in introducing the bill was simply to preserve the role of parliament in changing Australian law.

That view was not an ephemeral one. The then Minister for Foreign Affairs, the now member for Holt (Mr Gareth Evans) and Deputy Leader of the Opposition, spoke again on the same subject at a conference in Melbourne on `Mason and Beyond'. The then Senator Evans said:

My lack of enthusiasm for Teoh is not especially a function of my lack of appreciation of how it has narrowed the gap between international and domestic law. Rather, it is a function of my belief that Teoh creates a decision making environment that is unworkable in practice and that it goes further than the court was compelled to go by any legal principle, or should have gone, in upsetting the present balance between the executive, legislature and judiciary. The pre-Teoh balance was a delicate one, to be sure, but nonetheless one perfectly attractive in theory and workable in practice.

No doubt the member for Banks regards the then Minister for Foreign Affairs as a criminal for adopting that point of view, but his part ner in crime was the then Attorney-General. The then Attorney-General's view was reflected in what he said at the time. But he has spoken about it since as well. The former Attorney-General, the former member for Dickson, said in a speech in October 1996:

The decision was taken . . . principally because of a fear that by blurring the distinction between parliamentary and executive functions in altering domestic law based on international standards would ultimately result in introduction of parliamentary approval prior to ratification by the executive rather than parliamentary action after ratification.

That was his view after he left parliament. What has changed since the Labor government brought in a bill? Very little has been changed.

There was an argument put by the previous government that there would be a flood of cases and administrative decision making would be brought to ruin because of the High Court decision. In opposition, I said that was not right, and I have been proven to have been right. What has happened?

I am told that a legal database search of AustLII in September last year revealed that there were approximately 120 references to the Teoh case in decided cases of courts and tribunals. At that time, very few of those cases actually involved an issue about the Teoh principle. The cases revolved, in the main, around other issues and the Teoh case was simply cited.

A search of the AustLII database in June this year revealed there were approximately 250 references to the Teoh case in decided cases of courts and tribunals. I am not able to suggest how many of those cases actually involved an issue relating to the Teoh principle, but I think that indicates there is sufficient attention being focused on the Teoh case that it cannot be ignored.

Let us leave that issue aside. That was one of two reasons given by the previous government for their action. The real reason given by both the previous government and this government for their positions in relation to the legislation is the preservation of the role of parliament in relation to the effect of treaties within Australia.

Reference was made by the member for Banks to academic criticism, and I understand that the member for Fisher (Mr Slipper) has effectively answered the recent criticism of Professor Margaret Allars of the University of Sydney. In the views reportedly attributed to her in a recent article in the Sydney Morning Herald, I think it was, there is no reason to justify believing that the act will not have effect according to its terms.

The further point made by the member for Banks as a basis for the possibility that the opposition in the Senate would not support the bill—not just that he would not support the bill—was that the recent treaty making reforms by the current government make the bill unnecessary.

Mr Melham —They were your words. That is what you said in the last parliament.

Mr WILLIAMS —The member for Banks would do well to have detailed regard to the effect of those treaty making reforms. The treaty making processes were badly in need of reform. They were neglected under the previous government, and the executive government in effect rode roughshod over the parliament. That is no longer the case.

However, the principal likely effect of the Teoh decision as it stands is with respect to human rights treaties which have been entered into. Those treaties were entered into in some cases many years ago and were not entered into under the processes that now pertain. In many cases, those treaties have not been incorporated in their terms into domestic law. Some have been scheduled to the Human Rights and Equal Opportunity Commission Act, but that does not make them part of domestic law. So despite the commendable treaty making process reforms that have been put in place by the previous government, there is still a significant potential effect of the Teoh decision, if left unchanged, on existing human rights treaties.

The member for Banks has put personal views. I take it also that the members for Reid, Barton and Melbourne (Mr Tanner) were expressing personal views—some of which were consistent with the views of the member for Banks, but largely they were inconsistent. The real fact is that the opposi tion just does not know what to do. It really has not got any position at all, and it is reflected in the all-over-the-place views expressed in the debate. The member for Fisher expressed amazement that the member for Banks, as a shadow minister, expressed personal views and not the views of his party.

Mr Melham —The party hasn't locked in on this yet.

Mr WILLIAMS —You have just confirmed the point I was going to make—the party does not have a view. It does not have a cohesive view. It would like help in the formation of views on the subject of legislation that was introduced by the previous government, when it was in government.

The member for Barton made a balanced contribution which was commended by the member for Groom (Mr Taylor), and I commend him for that. In relation to legislation in the Attorney-General's portfolio, the member for Barton has made balanced contributions on a number of occasions.

The member for Groom, who is the chairman of the Joint Standing Committee on Treaties, has a great interest in the subject. He correctly noted the objectives of the bill as well as pointing to the about-face by the opposition on this matter in not giving unequivocal support for the bill. He, too, referred to the vehement comments by the now Deputy Leader of the Opposition in favour of the action to set aside the Teoh doctrine. He also noted the history and importance of the government's treaty making reforms—something which he has, in effect, benefited and contributed to in his role as chairman of the Joint Standing Committee on Treaties.

The member for Reid supported the bill, and it is noteworthy that he shares the government's concern to restore the proper role of parliament in relation to treaty making. It is not necessarily a view shared by all members of his family. He obviously takes seriously the government's concern about maintaining the proper role of parliament in enacting legislation to give effect to treaties.

The member for O'Connor (Mr Tuckey) made a robust contribution to the debate, which is not unusual for him. The unaccept able treaty processes of the previous government underlay his comments. This bill complements those new treaty processes by highlighting the role of parliament in relation to the domestic effect of treaties entered into by the executive. It is noteworthy that the member for O'Connor is an active member of the Joint Standing Committee on Treaties.

The member for Melbourne speculated about what he regards as the true motivation for introducing the legislation. In this regard, his contribution was out of line and way off the mark. As I have indicated, the primary motivation for the legislation is one that is shared by this government and the previous government. `Our concern in making the statement and introducing the bill was simply to preserve the role of parliament in changing Australian law.' That is a quotation; those are the words of the Deputy Leader of the Opposition.

I also thank the member for Dickson for his contribution to the debate, which was in support of the bill. I commend the bill to the House.

Question resolved in the affirmative.

Bill read a second time