Senator LUDWIG (7:45 PM) —The opposition does not support government amendment (3). I suggest to the minister that the reasons advanced for this amendment are entirely disingenuous. The bill as printed provides that, where a legislative instrument is expressed to take effect from a time before it is registered and at such a time it would adversely affect the rights of a person, it has no effect until the time it is registered. The use of the word `time' in this instance is significant. The equivalent provision in section 48(2) of the Acts Interpretations Act 1901 uses the word `date', which, for those following the debate, is a different word to `time'. We do not think they are equal.

Clause 12(1) of the bill draws the distinction between the concepts of date and time, but in clause 12(2) the word `date' has been deliberately changed to the word `time'. I suggest that changing the word `date' to `time' is not merely a modernisation of drafting style, as the government have belatedly tried to suggest. I think they are trying to find a hook to explain it, but I think it is inexplicable. How can the government seriously claim that `time' is a more modern word than `date'? It is just not an argument that can be put in truth. The reality is that the change can only have resulted from a conscious decision to change the word—to claim otherwise is disingenuous.

It is clear that the government did not intend to import exactly the same mechanism into the Legislative Instruments Bill 2003 as currently exists in the Acts Interpretation Act. This is evident not only from the fact that they have changed the word `date' to `time' but also because the new mechanism is different in other respects. I will set out the difference for the minister, and he might be persuaded to abandon his amendment in this instance. For example, the new mechanism only renders an instrument inoperative until it is registered, instead of inoperative for all time, requiring the instrument to be remade, which was the position under the Acts Interpretation Act. There was a clear policy intention on the part of the government to alter the disallowance mechanism, and changing the word `date' to `time' formed part of that.

It is true that the Senate Regulations and Ordinances Committee, on which the government held the chair and had half the members, expressed a concern that, under the provisions drafted, the community and parliament may not be aware that the instrument did not have effect between the time the instrument was expressed to commence and the time of its registration and a person may be unaware of their right to seek a remedy during that particular period. In response, the office of the Attorney-General undertook to review the provision to ensure it did not diminish the protection currently afforded by the Acts Interpretation Act to members of the public. On this issue, the committee specifically recommended:

What we have is a system where that issue can at least be known to members of the public or those that are examining the database. That was what the committee recommended to address its concerns. However, the government's amendment does nothing of the sort. It does not follow from that point. If the government had genuinely intended to implement this recommendation, it could have easily done so in another way. There are other provisions in the bill which require information to be included in the register or require the Attorney-General to inform the parliament of various things. There is no reason why the government was prevented from doing that here.

These amendments were not circulated until 25 November—many weeks after the Melville Island affair. Clearly, what has happened is that the government has belatedly realised that its own decision to include the word `time' in this provision may conflict with its absurd policy of retrospectively slicing off islands every time it fails to detect a boat until it is within cooee of mainland Australia. This amendment is politically backsliding, and the Minister for Justice and Customs should be aware of that to save the government from embarrassment of its own making.

I say to the government in this instance: do not try to pull the wool over this chamber's eyes. You know that the provision is wrong. You know that the government amendment should not override what the Senate committee recommended and what it is currently in the legislative instruments bill. If you want to address the committee's concerns, then go back and draw up an amendment that faithfully implements the committee's recommendations, which I would suggest is easily done, and bring it back to the parliament so that we can have a look at it. But I do not think it is the case to argue that what you have is a reflection of the true position that the Senate committee would have otherwise had—or in fact would have arrived at—or that your amendment resolves their difficulty.

We will accept an amendment that is in line with the recommendation of the committee, however, if the government wishes to bring that back here. The government does hold a chair of that committee and half the members. Not even the government senators on the committee took issue with the use of the word `time'. But you did not only have government members on that committee; you had a lawyer and a number of submitters as well. If there was going to be an issue, I think it would have been picked up there.

The government should not try to change the true position through this mechanism. There was an issue. It needed to be picked up. The government need to redress it, but not in this way. It is not honest, I suggest, for the government to deal with it in this way. The government should not sacrifice the Legislative Instruments Bill 2003. They are not capable of admitting the position that they have backslided on. Melville Island raised an issue and the government went back, looked at the Legislative Instruments Bill 2003 and said, `Whoops! We had better fix it this way.' You try to construe the position that was put by the committee as an issue that needed to be addressed; it is a sleight of hand. It is transparent, and I think you should own up.