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Thursday, 24 June 1999
Page: 7513


Mr McCLELLAND (11:04 AM) —The opposition supports the second reading of the bill, which is essentially non-controversial and, as the Attorney-General said in his second reading speech, by and large contains amendments of a minor policy nature, makes minor technical amendments to existing legislation and repeals spent provisions. The bill, as with the previous bill, is in the nature of omnibus legislation in the sense that there are 14 separate acts which are being amended by this one act and the term `omnibus' is used because those acts are riding as passengers on this one bill.

Schedule 1 proposes amendments to the Administrative Appeals Tribunal Act of 1975. The opposition supports the amendments, which are substantially based on recommendations of the Senate Legal and Constitutional Legislation Committee report, relating to the Administrative Review Council, which was handed down on 18 September 1996. That council was established in 1976 by the Fraser government under part V of the Administrative Appeals Tribunal Act 1975 as an expert body to provide advice on administrative law and administrative decision making. It is fair to say that Australia has developed perhaps the most sophisticated administrative appeals and review structure of any Western nation, and that is to be cherished. It is desirable that the recommendations of the Senate committee's report be implemented, and the Labor Party supports the amendments.

Interestingly, the 11th recommendation from the Senate committee report cannot be the subject of legislation. That recommendation stated:

The Committee recommends that the Government give an undertaking to respond to all Administrative Review Council project reports within 12 months of their delivery.

It is fair to say that the Australian community and members of parliament would expect the government to abide by that recommendation in practice. However, in its response to the Senate Legal and Constitutional Legislation Committee's report, the government indicated that it was not prepared to accept the recommendation. We would ask the government to revisit the matter because we think that the community generally would expect that a 12 months response time is reasonable and that the government should be expected to respond to project reports within that time.

Schedule 2 makes amendments to the Australian Law Reform Commission (Repeal, Transitional and Miscellaneous Provisions) Act 1996 which are of a technical nature and are supported by the opposition. Schedule 3 makes an amendment to the Australian Protective Services Act 1987 which provides that the director of the Protective Service may charge non-Commonwealth persons and bodies for services rendered. As members would be aware, the Australian Protective Service provides protective and custodial services primarily for Commonwealth purposes, as directed by the minister. Again, the opposition does not oppose the amendment. However, it notes that there is a potential constitutional issue as to whether there is any constitutional head of power contained in section 51 of the Constitution, or otherwise, to enable the Commonwealth to charge for such services.

For instance, in respect of recent legislation to corporatise the Australian Government Solicitor, the AGS was restricted in providing services for government bodies, being the Commonwealth, state and local government bodies, because the Attorney-General—correctly, we consider, at that time—determined that there was a constitutional impediment to the Australian Government Solicitor undertaking work on behalf of private corporations or citizens. By analogy, we say that reasoning is probably applicable in respect of schedule 3 of the bill.

Schedule 4 of the bill proposes an amendment to the Bankruptcy Legislation Amendment Act 1996, and it is designed to amend that act to correct what has been described as a minor drafting error contained in subsection 20J(2) which relates to the reasons for the Official Trustee in Bankruptcy holding money. I should say that the opposition is indebted to the researchers of the Parliamentary Library who undertook an extensive review of this bill and detected an error in the initial draft proposed by the government; hence the government has given the opposition notice that it will rectify the deficiency drawn to our attention and, in turn, to the government's attention.

Schedule 5 proposes an amendment to the Copyright Amendment Act 1989, but that proposal, as contained in the bill presently, before further amendment, fails to have regard to previous amendments made to the act in 1993 and 1998. But, again, as a result of useful Parliamentary Library research that error has been pointed out to the opposition and drawn to the government's attention. That fact has now been appreciated by the government, and schedule 5, I understand, will no longer proceed, with the government to move a further amendment to delete that schedule.

Schedule 6 corrects a minor drafting error in the Corporate Law Reform Act 1992, and is supported. Schedule 8 and schedule 9 amend the Federal Court of Australia Act 1976 and the High Court of Australia Act 1979 respectively to allow regulations to be made to increase the limit up to which courts can enter into contracts without obtaining the approval of the Attorney-General. Again, we say that that amendment is sensible and appropriate.

I would point out, however, that the explanatory memorandum may convey a mistaken impression. It suggests that the purpose of an amendment is to increase the number of Australian Capital Territory resident judges available to sit on the full court of the Federal Court of Australia when hearing appeals from the ACT Supreme Court. In fact, a reading of the bill tends to suggest that the contrary appears to be the case and that the actual purpose of item 1 of schedule 8 is to remove the requirements that an ACT resident judge should be included on a full court of the Federal Court of Australia when considering an appeal from the ACT Supreme Court. We appreciate there are administrative reasons for that amendment to ensure that justice is not delayed; however, it seems that it would be appropriate to correct the record and that apparently mistaken impression given in that respect by the explanatory memorandum.

Schedule 10 amends the Judges' Pensions Act 1968 to recognise prior judicial service as a judge of the Supreme Court of the ACT. Schedule 11 amends the Judiciary Act 1903 to exclude the conferral of criminal jurisdiction on the Federal Court and to clarify the power of state and territory judges to exercise summary jurisdiction for Commonwealth offences.

We do have some reservations about removing private prosecutions from the scope of the Federal Court—in particular, the court's ability to deal with those matters under its accrued jurisdiction. It has been pointed out, for example, that a civil action relating to the removal of Aboriginal children may also involve issues that could result in a private prosecution alleging genocide. That is one example. There are perhaps others. Indeed, there may be other areas in the industrial field where some federal action in an industrial dispute situation has an element of some state offence. There may be other areas in the Family Court area in respect of allegations of violence.

We think that these things have to be looked at more carefully. The recent decision of the High Court re Wakim: ex parte McNally, which casts doubt on the cross-vesting arrangements, suggests that section 32 of the Federal Court of Australia Act 1976 could be a very important section in overcoming the fragmentation of state and federal issues. We would urge the government to hasten slowly in this area. On the one hand, there are arguments that a judge receiving an application under section 32 of the Federal Court of Australia Act, and being asked to exercise his discretion to join a private criminal prosecution, would consider as a matter of discretion that it would be difficult to differentiate between the civil onus of proof applying in the civil matter and the criminal onus of proof applying in the criminal proceedings. Hence there would be a strong argument, I would anticipate, that joinder of such proceedings would not be appropriate.

Equally, a defendant in those proceedings may well say, `The defendant opposes any joinder of criminal proceedings to civil proceedings on the basis that it could compel the defendant to incriminate themselves in respect of criminal proceedings.' Indeed, it is frequently the case that a defendant to a civil action also facing criminal consequences will invariably request that the civil proceedings be deferred until after the criminal action takes its course, for those reasons of self-incrimination.

There may be sound reasons why criminal proceedings should not be joined to civil proceedings, but these are issues that we need to think through more carefully, particularly in light of the Wakim case. I should say that the Labor Party will be examining those issues more carefully between our consenting to the second reading motion and the matters being considered in the Senate. It may well be that, having regard to those more complex considerations we would like to go through, the government, in order to expedite the balance of the bill through the Senate, would consider at the present time removing that aspect from item 11 of the bill. We would point out to the government that that is something we would appreciate, and, from the government's point of view, it would expedite the passage of the balance of the bill. Of course, any removal of that aspect of item 9 would be entirely without prejudice to the government's ability to reintroduce that for further consideration and debate at a subsequent time.

Schedule 12 amends the Jury Exemption Act 1965 to update certain references. Schedules 13 and 14 amend the Law and Justice Legislation Amendment Act 1997 and the Marriage Act 1961 to correct minor drafting and technical errors. I also note that schedule 15 will now be deleted. It had been considered that an error existed in the Telecommunications (Interception) Act 1979, but again, substantially as a result of library research, it has now been realised that the error may already have been corrected by item 16 of schedule 1 to the Telecommunications (Interception) and Listening Device Amendment Act 1977, which commenced operation on 11 November 1997. I should say that I think that the professional and skilled work done by the library in this instance demonstrates the service that it provides to members of parliament generally. It is certainly a very important aspect of the opposition's task in reviewing legislation when we do not have the resources of government departments. I think that in this instance it showed that the resources spent on the library are well served and the respect that it has gained from both sides of the House is justified.

It is proposed in schedule 16 to amend the Workplace Relations and Other Legislation Amendment Act 1996 to correct a previous misdescription of amendments and to correct a technical anomaly. While I could spend a considerable amount of time discussing each of the amendments proposed in the bill, there are only a few concluding comments I propose to make.

I note that the government is proposing amendments to rectify, in particular, deficiencies in drafting. These amendments are substantially non-controversial and are supported by the Labor Party in so far as, as we have said, the government needs to reconsider that part of schedule 11 with respect to the amendment to section 39B(1A) of the Judiciary Act 1903, because that could be a controversial issue in the Senate, and also to correct the record in respect of item 1 of schedule 8. Again, we would like to see those matters addressed before the bill is debated in the Senate.

There is only one other substantive issue that I wish to comment on and that is reforms of the Administrative Review Council. Firstly, on behalf of the Labor Party, I want to thank the Senate Legal and Constitutional References Committee for its role in reviewing the legislation which governs the operation of the ARC. I am pleased to see that the government has accepted its recommendations in full with the exception of recommendation 11. Secondly, I wish to thank the ARC for more than 20 years of work it has done in reviewing and reforming Australia's world-leading system of administrative law. As I noted earlier, it was a body established under the Fraser Liberal government, but it has served well for that period of 20 years.

Finally, I note that the government is proposing to introduce reforms to the administrative law system in, I anticipate, the spring sitting of parliament. I have to say that there is much apprehension not only on our side of politics but also, I sense, in the community about these reforms because, unlike the recommendations of the ARC in its Better decisions report, it is feared that the government means to wind back the opportunities for ordinary Australians to obtain administrative review. As the government puts the finishing touches to that bill, I would urge it not to go down that path of winding back the tremendous system that we have developed. If it does, it will meet with heavy resistance from the Labor Party, the community and, it is to be expected, the legal profession generally.

I make these comments not as a threat but in the hope that the government will realise the errors of its ways and will accept an administrative law system in large part established, as I have indicated, by its predecessor Liberal government, the Fraser government. That system should not be dismantled in the name of so-called efficiency. These are important rights that ordinary Australians have, and the parliament should be enhancing and improving these rights rather than winding them back.

Constructively, I note that the use of this omnibus legislation to correct a myriad minor deficiencies that inevitably arise in legislation and to implement non-controversial reforms was a practice commenced by the previous Labor government. It not only is a sensible and practical method of legislating but also places an even tougher burden on those crosschecking that the proposed amendments have their intended effect.

It is a pity that the public do not get to see this aspect of parliament's role in cooperatively going through legislation to make sure that it properly serves its purpose. It is a sure sign that, despite our combative moments, the parliament is committed to getting on with the job of making Australia's laws modern and more effective. Subject to the comments that I have already made, the bulk of the amendments proposed in this bill are welcomed by the Labor Party and, accordingly, we support the second reading motion.