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Wednesday, 6 June 1984
Page: 2671


Senator GARETH EVANS (Attorney-General)(8.17) —The Government opposes the amendment essentially for the reasons articulated by Senator Macklin. We appreciate the force of what Senator Durack and Senator Hill say, at least to the extent that it is wholly desirable that somebody who is conducting a hearing have a close familiarity with legal concepts and their application in practical situations. I do not know whether that needs to be taken to the point that a person has to be an enrolled legal practitioner as distinct perhaps from somebody who has merely had extensive legal training at some time in the past, or somebody who has had extensive police experience without ever having been enrolled as a legal practitioner; or whether it should extend to exclude a former parliamentarian with many years' experience on the Senate Standing Committee on Regulations and Ordinances, and the Senate Standing Committee for the Scrutiny of Bills, and in debates of this kind, where we engage in logic- chopping that would make the practitioners in Owen Dixon Chambers feel positively envious. It is a matter for argument whether it needs to exclude any of those categories of people. I do not believe it likely, as a practical, commonsense matter, that the Authority will allocate to the conduct of the hearing somebody who is wholly unfamiliar with and ill at ease with legal concepts-not the least because there is every chance that mistakes will be made, and that the Authority will be embarrassed by redress being sought through judicial review proceedings of the kind provided for in the Bill. But then again , because there is that sanction available of judicial review-and there are plenty of checks and balances even with the removal of some of those that have occurred in the course of this debate-there are enough checks and balances to guarantee that any really significant mistakes that are made in the jurisdiction of the Authority will be able to be technically redressed. I think that will operate as a sufficient disincentive in practice to getting someone into a hearing situation who may be ill-equipped to handle it. So as a practical matter I do not think we need worry about the absence of a constraint of the kind the Opposition proposes. I believe the terms of the constraint it is seeking to impose are too tight and too narrow.

It has to be remembered as the bottom line in all this that we are not talking about the conduct of judicial proceedings. We are talking about simply an extension of an investigative mode. It is not quite so crucial under those circumstances that there be someone conducting those hearings who is totally familiar with all the esoteric impedimenta of the conduct of judicial or quasi- judicial proceedings. It is just not crucial in the same way as it would be if we were establishing a court or a more obviously judicial body. While not wishing in any way to denigrate the Opposition amendment that has come forward because I think it has a solid foundation in commonsense, I believe it is unnecessarily restrictive. The Government will join with the Democrats in opposing it.