Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Tuesday, 30 September 1997
Page: 7200

Senator COONAN(3.22 p.m.) —The thrust of this attack seems to be that the Australian Law Reform Commission should be making comments on matters that are not the subject of a reference, which I must say is a novel way to look at it; that the Australian Law Reform Commission can exceed its power, it can run around and make a submission to any committee it likes and it can do so with impunity; that it can talk on any topic it likes, anything that takes its fancy, and can use up the resources that it is supposed to be using for the references it does have in deciding what it might rather do; and that it can go around without a reference and just exceed its power. Had the Attorney-General, Mr Williams, been aware a little earlier that the commission was making a practice of making submissions to committees on matters for which it did not have a reference, I am quite certain that he would have had something more to say about that. Clearly, he took the matter up when he said that he also expressed concerns in relation to the commission making submissions on matters such as copyright, for which there is no current reference.

The issue here is not the content of this submission. It is not the content that is in issue, nor is it the fact that the commission has gone and, off its own bat, decided that it should make references on other topics. The issue is what power it has to do it. The issue is whether it should be making submissions to inquiries and committees on subject matters that just take its fancy from time to time.

If one comes back to the Clerk of the Senate's letter one sees a very interesting distinction, and that is in a subsequent letter dated 29 September from the clerk to Senator Faulkner. The letter said:

It has been revealed by answer to a question in the Senate that the Attorney-General suggested or directed that the Commission not make a submission to the joint committee because the Commission does not have a current relevant reference and that the government wishes that the Commission confine itself to the subjects of its references.

A lot has been said here today and I do not need to repeat the fact that it is patently obvious that if you give someone a false assumption on which to write an advice you get the wrong advice. The letter goes on to say:

It appears from public comments by the President of the Commission that it was indicated that the government might give a direction to restrict the activities of the Commission if the Attorney-General's suggestion or direction was not heeded.

How could anyone take that as a threat? What you are saying here is that if the commission does not observe its terms of reference and if it does not do what it is constituted and set up to do then, by gee, you will restrict its activities; you will do something about it. That is the Attorney-General's duty.

It is absolute nonsense not to have made that distinction. It is patently dishonest not to have made that distinction and to have asked the clerk to comment when the assumption is entirely fallacious and is also totally mischievous. This is a total and utter beat-up of something that everyone knows is where the commission is simply exceeding its powers. The Attorney-General has, of course, categorically denied that there is any threat and his statement has actually been agreed with by Mr Rose, the president of the commission. Apparently Mr Rose does not think that he has been threatened, Mr Williams says that he was not threatened, so who on earth thinks he was threatened?

It is ultimately a matter for the commission to decide whether or not to comment on the native title bill. I suppose it is a matter for the commission to decide whether it is going to carry out its proper function and attend to the references and matters that it has in front of it or whether it is going to go completely outside its powers and try and comment upon something else.

The Attorney-General has asserted, and it is absolutely correct, that he has at all times acted in accordance with his duties as the minister with the portfolio responsibilities for the commission. He said—and indeed he would have been remiss and would have failed in his duty if he had not made it known—to the commission that it should only act within the powers conferred on it by the parliament. Everyone is going on here about the powers of the parliament. One has to always act within power and I am absolutely astounded that anyone with an ounce of legal nous could think that somebody should act without power and make submissions about it to this place or to some properly constituted Senate committee. It beggars believe that that could be contended. (Time expired)