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Wednesday, 25 August 1999
Page: 7674

Senator BOLKUS (10:58 AM) —I am responding to Senator Troeth's response to Senator Harradine. I think it is worth doing that at this part of the debate before my colleague Senator Forshaw responds to Senator Greig. I think getting and obtaining legal advice is a bit like making sausages: the advice you get is dependent on what you put into the system. I think we find that with the Australian Government Solicitor's advice with respect to the disallowance mechanisms which the opposition is moving in this legislation. As a clear indication of that, paragraph 10 of the AGS advice refers very clearly to interpretations given by the minister. The minister providing the so-called facts on which the advice is given is none other than Wilson Tuckey. Paragraph 10 of the advice says:

At the outset it should be stressed that the operation of the proposed amendments of the definition of RFA or regional forest agreement and a number of other provisions of the bill is not clear. The interpretation that you have suggested is one that is open. However, I think that a court may have difficulty in giving the proposed amendment of the definition of RFA or regional forest agreement that effect, or indeed any effect.

So we have here a situation where the minister, Wilson Tuckey, has presented certain facts to the AGS and they have made their determination on the basis of those facts. I think that is probably a hazardous course for lawyers to take, but it seems to have happened here.

The fact that it is a hazardous course I think is emphasised by an earlier paragraph in that advice, where the solicitor makes this sort of comment:

The bill, if amended as proposed, would then confer on the houses of parliament an unlimited discretion whether to permit the Minister to enter into any particular RFA. In these circumstances, it is likely that the bill would be regarded by the High Court as authorising the giving of preference to one region over another contrary to section 99.

Let us go to the first point. The bill, if amended as proposed, does not confer upon the minister unlimited discretion whether to enter into a particular RFA. The bill before amendment and, in fact, the arrangements before we even have a bill or an act are such that the objectives of the national forest policy have always dictated, or are supposed to have dictated, the outcome. They are supposed to have been the platform on which the minister enters into an RFA. That is the case before the legislation and that would be the case after the legislation. That is where the consistency in the system will prevail. That is something that the advisers have not taken into account at all: the relevance of the broader structure of policy, which influenced the previous Labor government and now is supposed to influence—to the extent that it does it is basically a token effort—ministers of the federal government. The discretion is not unlimited. The discretion is in many senses bound by the other parts of the legislation. As I say, there is consistency between that and what has existed before this legislation, which is the national forest policy and agreement between the Commonwealth and the states.

Let us put that aside for a moment. The statement says that, were the houses of parliament to exercise a capacity to disallow, that in itself would be regarded by the High Court as authorising the giving of preference to one region over another and as a consequence be contrary to section 99. That statement in itself is so bland and general and is spread so wide that it is almost ridiculous. But if that were the case, if the parliament giving itself the authority to disallow were to lead immediately to a situation where we were authorising action contrary to section 99, then the amendments to the government's native title legislation, the amendments which give the Senate and the House of Representatives the authority to disallow any alternative to the right to negotiate, the amendment to section 43A which gives this parliament in its discretion, exercising as it wishes, the authority to disallow a state based regime alternative to the right to negotiate, also could be determined, on this rationale by these lawyers, as authorising the giving of preference to one region over another contrary to section 99. State after state will bowl up its right to negotiate and we will make an assessment on whatever criteria motivate senators here.

You might say, `Well, in respect of section 43A there are certain considerations that a minister needs to take into account.' Those considerations do not go to discrimination between states; they go to the acceptable level of protection for indigenous Australians and others in the alternatives to the right to negotiate process. You have the same thing here in respect of the national forest policy. So it is a very long bow to draw and a very broad and general point that these advisers are making. They may have been misled by a lack of full and complete information from the minister. Without being ungracious to Mr Tuckey, that would not surprise me. But I think it is somewhat over the top for the legal advisers to say that, were houses of parliament to reserve for themselves unlimited discretion whether to permit the minister to enter into any particular RFA, to use their words, the High Court would directly see this as an action authorising or giving a preference. I think that is something that really stretches the law of credibility and the bounds of acceptance.

Senator Troeth, I know what you have been given. It is something that Mr Tuckey put out earlier this week to try and derail the process. Can I say to him that this is consistent with his continued acts of irresponsibility in this debate. Can I say to the Australian Government Solicitor that maybe they ought to take a broader view of this. Maybe they ought to go and look at some of the extraneous material that would be quite relevant and also look at some of the policy settings for this, and then compare this with the alternative to the right to negotiate regime in the native title legislation. Perhaps then they could tone down the general and aggressive nature of their advice.