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Thursday, 19 February 1987
Page: 237


Senator DURACK(11.08) —I want to return to the mainstream argument on this matter. I do not agree with Senator Coleman; I believe that the debate that has taken place between Senator Vallentine, Senator MacGibbon and others has been totally relevant to the matter, but it is not the mainstream element in the amendment. The amendment inserts in the legislation a provision which makes it quite clear that this Bill and all the international instruments with which it deals will not apply to our defence arrangements and in particular to those arrangements with allies who are nuclear armed. As those allies do not wish to confirm or deny that nuclear arms are being carried on their warships or on their aircraft when they come into Australia, this Bill could potentially have a very serious effect on those defence arrangements.

That is why I wanted the point made clearly in the legislation itself that this is not the case. I want it to be clear that the legislation does not apply to that situation, that it cannot be successfully argued that it could apply. I am pleased that Senator Evans has acknowledged on behalf of the Government that that is the case. Not only is it not intended that the legislation should apply to those defence arrangements, but also as a matter of law it will not apply to them. The Minister quoted some legal argument to that effect. I am in agreement with the legal arguments that Senator Evans has advanced. I have worked in courts and watched their processes for a long time and in recent years have done so from the vantage point of this place. I have seen a whole lot of legal doctrines which I thought were pretty secure go by the board both at the lowest and highest levels of the courts. I have already made some reference to this.

Although I cannot say that I feel nervous that such a thing might happen in this case the fact is, as I said earlier, that this is a very complicated piece of legislation. One does not know in what courts it will arise or the quality of the judge or magistrate who will be asked to interpret it. One thing that is perfectly clear from this debate-it is crystal clear-is that the people who are so vehemently opposed to our present defence arrangements, like Senator Vallentine and Senator Sanders, represent a small group in the community which is hell bent on taking every step possible to upset these arrangements. If such people cannot upset the arrangements by the ordinary process of parliamentary government and so on they are likely to do so through other means such as through the courts. They will take every step they can through the legal system. I am concerned that they may well succeed at least to some extent.

The purpose of my amendment is to make it absolutely crystal clear and beyond doubt to any judicial officer who may be called upon to interpret this legislation that as a matter of law it does not apply to defence arrangements-moreover it was never intended to apply to them. The fact that the Government, through Senator Evans, has confirmed all that, is some comfort for the future and hopefully will add to the strength of the otherwise powerful legal arguments that would be advanced in courts by the Government if the eventuality that I fear did occur. I still believe that it would be wise for this Parliament to make its own view crystal clear. That is why I have moved the amendments on behalf of the Opposition and that is why I propose to persist with them even though the Government does not think it is necessary.

Question put:

That the amendments (Senator Durack's) be agreed to.