Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Friday, 19 October 1984
Page: 2046


Senator MACKLIN(10.02) —I move:

10. Page 17, sub-clause 36 (1), line 19, leave out 'or continued'.

11. Page 17, sub-clause 36 (2), line 31, leave out 'or continued'.

12. Page 18, sub-clause 37 (1), line 16, leave out 'or continued'.

13. Page 18, sub-clause 37 (2), line 20, leave out 'or continued'.

14. Page 18, sub-clause 37 (3), line 29, leave out 'or continued'.

The purpose of the amendments is to delete at the relevant places the words 'or continued'. The first amendment relates to sub-clause (1) of clause 36, which states:

No action or other proceeding shall be instituted or continued in any court . . .

This is a matter of some difficulty; There is legal advice supporting both sides . As I understand the Standing Orders, the Minister for Social Security (Senator Grimes) is unable to give us a legal opinion in relation to it. I am sure he will not do so because he will abide by the Standing Orders. Therefore, we need to be very careful in what we do. There is an unusual retrospective element involved in this clause and it involves the issue of salvation Jane. I do not want to rehearse again the debate we had at the second reading stage. I simply say that the Bill will actually remove the effects of the perpetual injunction which was won fairly in the High Court of Australia and in the Supreme Court of South Australia. I will not rehearse the value of the matter or the fact that there will be an inquiry into it. I accept the word of the Minister for Primary Industry (Mr Kerin) that there will be an inquiry I am quite sure that the Government will not use the emergency powers which are available to it on this. We have just discovered we cannot attach a public inquiry to it. That is all right. I am not worried about that. It just seems to me that in future one could certainly agree that this is the method to be applied.

However, let us look back on the extant case, the only case. Despite the disclaimer by the Minister at the table, Senator Grimes, that case probably provided the impetus to get this Bill on. The clause as it stands would disadvantage the small business people who banded together to take an action to the Supreme Court and the High Court, initially at great expense to themselves, but of course they were awarded costs against the Commonwealth when they won that action. I believe that is the only case. I do not know whether the Minister has a list of others; the advice I received from the Minister's office prior to this debate was that that is the only one which would come under 'or continued'; in other words, that is the only action we are talking about when we say 'or continued'.

I believe that that unusual retrospective element ought not to be allowed. I hope that we will have the support of the National Party and the Liberal Party on this matter because when dealing with other Bills in the past they have always been very strongly against retrospectivity. I am sure this will be the case again, even though these provisions do not affect a large number of people. They affect only a small number of people-small business people who are just trying to earn a living. These people should be excluded. The relevant clauses of the Bill should be written as follows: 'No action or proceedings shall be instituted . . .' The phrase 'or continued', which has caused so much controversy, should be omitted and the Bill would then not affect the people who fairly won a perpetual injunction in the High Court and the Supreme Court of South Australia.