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Wednesday, 6 June 1984
Page: 2602


Senator CHIPP (Leader of the Australian Democrats)(11.39) —I agree with Senator Hill that the amendment moved by the Attorney-General is a vast improvement on the original Bill, which was totally unacceptable. The Senate Standing Committee on Constitutional and Legal Affairs found that way also in its recommendations 42 (a) and (b) which state:

42. (a) Clause 16 should be amended so as to make it clear that, in furnishing guidelines or giving directions to the Authority, the Minister is precluded from so doing in relation to a particular case.

Those are the offending words as far as the Opposition is concerned. It continues:

(b) Sub-clause (3) of clause 16 should be amended so as to require the Minister to table a copy of the directions or guidelines in the Parliament within 15 sitting days of their publication in the Gazette (paragraph 8.30).

As I understand it, the Government has complied with all the contents of that recommendation, with the exception of the guidelines and directions in relation to a particular case. I am pleased that the Attorney agreed to accept Senator Durack's amendment. His amendment and the ensuing debate on it will be recorded in Hansard and those who study this matter can look at the whole debate and the significance of Senator Durack's amendment in the context of the Bill.

We are talking about a very important principle which, unfortunately, covers a not very important set of circumstances. The set of circumstances that is envisaged-I can sympathise with the Attorney-General-is the Authority embarking on lunatic escapades and the Federal Attorney, or the Federal Parliament, having absolutely no say in that. This is not a matter of principle; it is a matter of management. To cover this situation the Attorney has put a matter of some deep principle into the legislation, namely, giving the Attorney power, with some limitations, to intervene in terms of giving guidelines or directions. We will support the Attorney's amendment because we are satisfied that it complies with the recommendations of the Senate Committee, except with regard to the particular case. We are satisfied, after looking at it, that the safeguards against naked political intervention by the Attorney are so many and so adequate as to allay fears that the provision would be abused. Proposed new sub-clause ( 1A) states:

The Minister shall not, without the approval of a resolution passed at a meeting of the Inter-Governmental Committee, being a resolution in favour of which all the members of the Committee present at the meeting have voted, give any directions or furnish any guidelines to the Authority under sub-section (1) with respect to particular cases.

I ask the Attorney whether it is possible for him to put the words 'in favour' in another part of that sub-clause to satisfy the point made by Senator Lewis. While I agree with the Attorney that it is almost clear, there is room for ambiguity.


Senator Durack —The words 'in favour' are there.


Senator CHIPP —To answer Senator Durack, through you, Mr Chairman, Senator Lewis suggested that because the words 'in favour' are where they are there is room for ambiguity. I am inclined to agree with Senator Lewis. The Attorney offered to put the words 'in favour' in another part of that sentence to make the meaning totally without ambiguity. I ask the Attorney to give consideration to that while the debate takes place.

Proposed new sub-clause (1A) is followed by proposed new sub-clause (2). Let us assume that the Authority embarks on some lunatic fringe activity. Let us assume it is mechanically desirable for it to be precluded from doing so or to be given a direction not to do so. I agree with the speakers from the Liberal Party of Australia who say that it is unthinkable, as the original Bill provided, for a Federal Attorney to have unfettered power to say: 'Listen, stop going in that direction; go in another direction'. That is unthinkable. As I and the Democrats see it, the amendment does place restrictions on the naked power of the Minister . He has to get the unanimous agreement of all members of the IGC present at the meeting for the direction or the guideline to be given to the Authority.


Senator Durack —Not all members of it, though.


Senator CHIPP —All members who are present at the meeting. There has to be a quorum. All members have to agree; it has to be unanimous. I can see the thrust of Senator Durack's interjection. I did consider such a situation, but one would have to be fairly suspicious or paranoid to think that someone would cook up a meeting and arrange it so that the people who did not attend were the ones who were going to vote against and only those who would vote for would be present. I acknowledge that what Senator Durack says is possible, but one would have to be pretty devious--


Senator Crichton-Browne —Governor-General Kerr could give you an example.


Senator CHIPP —I do not know whether Senator Crichton-Browne is being very helpful to me or anybody else. Firstly, there has to be unanimous agreement by all the people at the meeting; secondly, it has to be published in the Commonwealth of Australia Gazette, as the Committee recommended; thirdly, it has to be presented to both Houses of Parliament; and, fourthly, the State Minister involved has to agree. They are four fairly formidable thresholds over which the Federal Attorney-General of the day has to step before he can do what he wishes to do.

I now refer to the scenario envisaged by Senator Durack and put, quite properly and accurately, by Senators Lewis, Sir John Carrick and Hill. The scenario involves a conspiracy between State Ministers and the Federal Attorney-General of the day when the Authority is properly investigating organised crime in a particular State. The State Minister then goes to the Federal Attorney and says: 'Tell these people to lay off'. Those very real fears have been expressed by the Liberal Party. What kind of odium would that attract? First of all, the request has to get through a unanimous vote of the IGC and then it goes immediately into the Gazette. Every policeman engaged in the case would immediately go to the newspapers to alert them of the facts. The matter would be in the headlines of newspapers. After being published in the Gazette the matter would be brought before the Parliament. Can one imagine the furore in the Parliament and the odium that would attach? On balance and in conclusion, I see the worries of the Opposition, but I believe this power to restrain the Authority must exist somewhere, and that power must reside in the Executive and in the Parliament. As I said, it is unfortunate that such a deep matter of principle has to be involved in such a fairly simple mechanical matter. For those reasons we support the Government.