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Wednesday, 5 April 2000
Page: 15324

Mr WILLIAMS (Attorney-General) (6:34 PM) — I thank members who have contributed to the debate on the Jurisdiction of Courts Legislation Amendment Bill 2000—the members for Barton, Curtin, Lowe, Chifley, Denison and Lalor. I would like to pick up a few key points. I thank the member for Barton for his acknowledgment of the importance of this bill in the aftermath of the High Court's decision in re Wakim. As was noted, it is very important to ensure that the Federal Court remains the principal forum for review of Commonwealth officers and authorities even when acting under cooperative legislative schemes.

The member for Barton has suggested that the bill may be problematic in that it amends the Australian Sports Drug Agency Act to permit the conferral of powers and functions on the Federal Court. However, the provisions in question are designed to permit the conferral of powers and functions on members of the Federal Court acting in a personal capacity and, on that basis, it would not run up against any constitutional problem. That is, they would be persona designata, not judges. The member for Barton has also suggested that certain civil aviation legislation and therapeutic goods legislation should have been included among the changes made by the bill. I am grateful for the suggestion; however, I am advised that such changes were considered unnecessary. Nevertheless, I will confirm that this is so in the immediate future.

The member for Barton also suggested that it was unfortunate that the bill would in some cases permit a state or territory court to retain jurisdiction over a judicial review matter where a related matter is before the court. However, this is necessary to avoid splitting proceedings where the substantive matter must remain in the state or territory court as a result of re Wakim. As to the suggestion that item 67 of the bill removes an entitlement to legal aid, I am advised that the amendment would maintain the status quo in that persons who would not have been able to seek assistance under state arrangements would not be given access to assistance simply as a result of the technical changes made by the bill.

On the matter of amendments foreshadowed in relation to schedule 2 of the bill, I am aware the opposition has a range of amendments and I will deal with them when I get to them. More generally, there were references to the Hughes matter which is currently before the High Court. The government is very conscious of the potential significance of this matter and is giving careful consideration to the options to deal with the various possible outcomes, including among these a referral of power under section 51(xxxvii) of the Constitution. As to the referendum option, I would simply say that, given the complexity and expense of a referendum on these matters even if conducted as part of an election, the government is unlikely to support that option.

As I indicated in my second reading speech, the Commonwealth cannot legislate to restore all the elements of the cross-vesting arrangements—a point acknowledged by other speakers tonight—but it has taken significant steps in the bill to reinstate Federal Court jurisdiction lost as a result of the decision in re Wakim. It has also taken steps to rule out the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies. The member for Barton, both yesterday and in this debate, raised this bill in connection with the debates surrounding mandatory sentencing laws in Western Australia, the Northern Territory and the Australian Capital Territory.

Mr McClelland —Not Western Australia.

Mr WILLIAMS —All right—in connection with debate surrounding mandatory sentencing laws in the Northern Territory. Reference has just been made to the same subject by the member for `Layla'—I say it that way now that she is not here. The connection is a tenuous one, and of no particular significance. The Commonwealth parliament has constitutional power to make laws which override laws of the Northern Territory—and, for that matter, the Australian Capital Territory. The Euthanasia Laws Act 1997 was such a law. It is technically true to say that in certain respects the bill would also override Northern Territory and ACT laws. The point, however, is that both jurisdictions were consulted on the bill as it was being prepared and had no objections. The drafting process involved consultation with all the states, the Northern Territory and the ACT. The overriding in this case is also of a very technical and limited nature.

Modifications of the Commonwealth AD(JR) and AAT acts to cover Commonwealth officers and authorities acting under state laws are necessary as a result of the High Court's decision in re Wakim. In the interests of national uniformity and consistency of operation, the same modifications were also adopted in relation to the territories, even though re Wakim did not invalidate the current arrangements for Commonwealth officers and authorities acting under territory laws. The explanatory memorandum of the bill makes this clear. The overriding occurs only to the extent that current Northern Territory and ACT laws applying the Commonwealth administrative laws and conferring jurisdiction on the Federal Court would have continued to be effective.

The opposition is proposing a second reading amendment. The government will oppose that second reading amendment. In paragraph (1) of the amendment reference is made to re Wakim in the form of noting it. In paragraph (2) the proposal is a recognition that the:

... Commonwealth has a leadership role in consultation with the States and Territories to achieve a long term solution ...

I can assure the House that that is in fact already in train. Paragraph (3):

... calls on the government to urgently obtain an appropriate referral of power ... to ensure that co-operative and cross-vesting schemes are based on a valid exercise of Commonwealth power ...

We are assiduously working to achieve that. We do not need a second reading amendment to encourage us. Paragraph (4) refers to the possibility of a referendum, to which I have already referred. Paragraph (5) notes the alleged overriding of specified laws of the Northern Territory and the ACT, to which I have also made extensive reference. I commend the bill to the House.

Amendment negatived.

Original question resolved in the affirmative.

Bill read a second time.