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Wednesday, 3 December 2003
Page: 23651


Mr McCLELLAND (4:35 PM) —The opposition opposes amendments (1) to (5). It is interesting that these amendments arise, as the Attorney-General says, from what was said to be an original drafting error contained in the original legislation. As I understand that original provision, it is as currently appears in the bill as returned from the Senate. Lines 31 to 32, on page 16, seek to prevent retrospective operation of a legislative instrument. They say that if a legislative instrument is expressed to take effect from a time before it is registered, it will take effect from that time. What the government wants to insert is:

A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered ...

That circumstance obviously arises in respect of the recent situation of the Minasa Bone and the regulations excising islands off Northern Australia. We surmise that the amendment has more to do with enabling the government to undertake similar measures in terms of excising islands on a day, even though the rights may have materialised; for instance, as a result of a claim for asylum being made before the act of excision takes effect. We believe that is the motivation for the government replacing the reference to `time', which obviously could be a time during the course of a day, with the word `date'. We believe that the government should stand by its original wording.

As I have said, the amendments redraft the provisions of the Legislative Instruments Bill relating to that aspect of prejudicial retrospective commencement of legislative instruments. The reasons for the opposition not agreeing to these amendments were set out in the debate last night in the Senate, where we went through this issue in some detail. However, in essence, we believe that this is an instance of the government itself backsliding on its own legislation as originally drafted when it belatedly realised it was potentially in conflict with its course of action in respect of the Minasa Bone. Let me say again, from the point of view of cooperating with the passage of this legislation, we will not divide on it, but in my speech we have officially recorded our disappointment at what the government is seeking to do in this respect.