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Wednesday, 27 June 2012
Page: 4748


Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (18:25): I move opposition amendment (1) on sheet 7252:

(1) Schedule 1, item 2, page 5 (after line 15), at the end of Division 3B, add:

32F Sunset provision

   This Division ceases to have effect on 1 January 2013.

I am not going to repeat the observations I made in my speech in the second reading debate in which I foreshadowed this amendment. Suffice to say that the effect of this amendment would be to sunset the operative provisions of the act to 31 December this year. The opposition propose this amendment for reasons that have been recited by me and indeed Senator Wright in the contribution she just made: given the significance and complexity of the High Court's decision and the very large range of programs, many hundreds of programs, which are potentially affected by it, and given my lack of confidence in the legal effectiveness of this bill to repair the constitutional gap that the High Court identified last week—a view I share with Professor Anne Twomey, Professor of Constitutional Law at the University of Sydney—it seems to me to be a prudent and appropriate course for the parliament and, in particular, for the government to have an opportunity to take more thorough advice on the effect of the High Court's decision and to consider which of the many programs set out in the proposed regulation require a specific statutory foundation. That can be done in the spring sitting of parliament. So, according to the opposition's amendment, this temporary solution would operate for some six months into the future. As I say, we have doubts about its efficacy, but for the time being it is the best the government has been able to come up with, and we do want to assist the government and indeed future governments in dealing with the problem the High Court has identified.

Can I respond quickly to Senator Wong's observation in closing the second reading debate. Senator Wong has told me that the government has advice that, if the legislation were to be sunsetted, no contract could be validly entered into which involved obligations that would take effect beyond the sunsetting period. That is not, in my view, correct advice. It is inconsistent with the decision in the Bardolph case, which I referred to before. The minister's rejoinder to me in her response—and, in fairness to Senator Wong, she is not the author of that rejoinder—is inaccurate and reflects a lack of understanding of the principle at work. I might also say, Minister Wong, that your observation that the extent to which the executive power to spend is limited by the section 51 heads of legislative power is unsettled is also wrong. In fact, that is the very issue that was resolved in the Pape case and the very issue that lay at the heart of the High Court's decision last week in the Williams case. Indeed, the proposition that you say was unsettled was in fact a proposition advanced by the Commonwealth of Australia in argument in the Williams case as being a settled proposition of constitutional law. I do not know who is advising the government in relation to this matter and I do not mean any disrespect to officers, but the advice that has been relied upon in the Senate is, to those who have read the case and studied it and studied the arguments in it, demonstrably wrong. The opposition is confident that the sunsetting of this legislation is the appropriate course and will not put at risk any Commonwealth contractual obligations which might extend beyond the sunsetting period and will not put at risk any of the programs, including the chaplaincy program, which are the subject of the bill.

To anticipate, I also say that the opposition does not support the Greens amendment. Let me explain why. The Greens amendment, as I understand it, contains two elements. The first of them is unnecessary because that is what the bill itself does, whether sunsetted or not sunsetted. The second element of the amend­ment, which requires specific legislative support for identified Commonwealth programs—that is the law already. That is the law the High Court confirmed last week in the Williams case. One does not need to write into a statute a proposition of constitutional law that the High Court has lately declared to be the case. Any future government, whether it be a Liberal-National Party government or a Labor-Greens government, will be bound by the same legal principles as the High Court announced in the Williams case. The extra words that you propose, Senator Wright—if I may say so with respect—are unnecessary, because the High Court has told us that the law is consistent with the statutory words that you propose to include. For those reasons the opposition will not support the Greens amendments. For the reasons I earlier recited, the opposition thinks that the objective that you, Senator Wright, and your colleagues in the Greens party are trying to achieve is best achieved by the sunsetting measure which is the subject of my amendment. For the reasons I have explained, any advice that to sunset this clause would put contractual obligations or payment obligations at risk is simply wrong.