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Tuesday, 28 June 1994
Page: 2124


Senator VANSTONE (7.39 p.m.) —The coalition has three amendments that it wishes to move to this legislation.


Senator Bolkus —At this stage they have not been circulated.


Senator VANSTONE —I apologise to the minister. I think they are being circulated at this very moment. I seek leave to move those amendments together.

  Leave granted.


Senator VANSTONE —I move:

1.Clause 2, page 2, subclause (4), line 7, omit "Schedules 2, 4, 7 and 8", substitute "Schedules 2, 7 and 8".

2.Clause 2, page 2, after subclause (4), insert the following subclause:

"(4A) Schedule 4 commences on a day to be fixed by Proclamation, being a day after each House of the Parliament, by resolution, approved of regulations referred to in subsection 195(1) of the ASC Act, as amended by Schedule 4 of this Act.".

3.Schedule 4, page 35, item 19, omit the item substitute the following item:

  "19.  Subsection 194(4)

    Omit the subsection, substitute:

`(4) A person who appears at an inquiry is entitled to have another person present to assist the person and a person who so assists is entitled to address the Panel.'.".

Effectively, the first two clauses make schedule 4 dependent upon both houses of parliament having a shot at the regulations if they want to. That is a very loose way of putting it, but it is clear enough. It seems to us that that is a fair enough position to adopt, given that in clause 195 of the bill the government indicates that the division and regulations will equate with the rules of natural justice. All we want is a fair chance to see whether what the government says in clause 195(3) is put into practice; if it is not, we will get a chance to disallow the regulations and deal with them. If we are not happy with them, schedule 4 will not come into play.

  Yesterday, I expressed my amazement that a government that is so happy to march around the globe announcing the need for reliance on human rights is, at the same time, happy to cast aside the given right of all Australians to the rules of natural justice, unless they are ruled out. The minister was not present yesterday; Senator Crowley was present, but I did not receive an answer. It is amazing that the government is prepared to dispose of this right. As I understand Senator Spindler's position, there are rights of appeal and it can be fixed up. Is that fair?


Senator Spindler —That is correct.


Senator VANSTONE —What it amounts to is this: we need only have the rules of natural justice applying to somebody when we come to a High Court hearing. If we want to extrapolate the views put by the Democrats yesterday, we can forget the rules of natural justice at any hearing we like to mention until we get to the last because—


Senator Spindler —Not at all.


Senator VANSTONE —Senator Spindler disagrees, but he will get his chance. I know they do not apply here, but there are commercial reasons for it and they will apply at a later hearing. I am not saying that Senator Spindler feels they can be disposed of up to the High Court; I am saying that we can extrapolate his argument to that point. There is no rationale for choosing one point rather than another. As a very last resort, the rules of natural justice will be allowed to apply.

  Of course, the common understanding of those rules is that they permeate the way in which we live, and at every opportunity we will have them applied. It is not the common understanding that this parliament will take them away. I raised this matter yesterday, but I did not get a sufficient answer.

  The third amendment is an amendment to schedule 4 and inserts subsection 194(4). It reads:

A person who appears at an inquiry is entitled to have another person present to assist the person and a person who so assists is entitled to address the Panel.

That is not the situation as the legislation stands at the moment. As I understand it, the government is hoping to end up with a situation where the panel can decide whether someone will have another person addressing the panel on behalf of a person who is in themselves meant to be before the panel. Yesterday, I made the arguments as to why that is patently ridiculous.

  People who are very confident in their own field are not necessarily competent to speak on their own behalf in that field. That is why lawyers tell us `If you act for yourself you have a fool for a client'. That is why the first thing we are told when we leave law school is `Never act for yourself, never act for your family, and never act for your friends—not if you have any brains and you want to keep your family and keep your friends, and if you want to be happy with yourself'.

  We are not seeking to entitle just barristers and solicitors to speak on behalf of other people; we want to include accountants, financial advisers of any sort, merchant bankers, or whoever. It is so often the case that people who are very competent in their own field are not competent when they are put under question in their own field and when they do not understand the process of the adversarial system. Because they are under threat they lose the objectivity that makes them so good in their own field. These people might be very good in their own field where they call the shots and they are not called into question. However, when they are called into question that might be the one skill in which they are peculiarly lacking and they need someone else to speak on their own behalf.

  That is what those opposite, including he whom we call Bubbles but is otherwise called Senator Burns, who is so busy reading the paper—


Senator Burns —If you will say something interesting, I will listen.


Senator VANSTONE —He is more properly referred to as Senator Burns. Senator Burns can say what he likes. We are all ears; we are waiting for a drop of intelligence to come out of his mouth. Someone who has every capacity in another field may not have the capacity to represent himself because his own situation may be that in the area in which he operates he is not challenged by his peers. In other words, he is the head honcho in his field. When it is all called into question these people fall apart. It does not seem appropriate that those people are not entitled to have another person assisting them. I conclude—


Senator Burns —Without saying anything.


Senator VANSTONE —I cannot help it if people cannot comprehend English; that is not my problem. Next time I make a donation I will buy someone a dictionary. We say that these people are entitled to have that assistance. We would like to hear a very good argument from the Democrats and the government as to why people are not entitled to this assistance. If the government and the Democrats cannot make out a good case on this, they should not come into this chamber on a non-commercial matter and complain that commercial interests override everything and that they are not happy with it; for some reason they want some other principle to override commercial interests.

  If commercial interests are allowed to override the application of the principles of natural justice, then presumably the last gateway that should stand in the way of anything is lost. If those opposite are prepared to let that go, they should not come in here again pointing the finger to this side of the chamber and saying, `You people are all in favour of commercial interests.' Here is an example where we want the system to work. We want it to be manageable, effective and efficient, but not at the cost of putting aside the principles of natural justice.

  As I understand Senator Spindler's explanation, he says we can get it somewhere else at a later stage. In effect all he is saying is that we can bear the burden of losing it now and pick it up later—at some expense—and it suits us for commercial convenience at the moment to override it. I have not heard the government's explanation, but I will take some advice from the minister. It would seem appropriate to me, as an easy way to handle this, to vote on amendments 1 and 2 together, and amendment 3 separately.

  I am sorry that, while we are prepared to move amendments tonight that would put an obligation rather on this legislation to comply with the rules of natural justice rather than leaving it as an intention, we will not be doing so because we have been advised by the Democrats that they would not support such an amendment. We will therefore not be wasting the time of the Senate in moving that amendment but we will remember it.