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Tuesday, 28 June 1994
Page: 2128

Senator BOLKUS (Minister for Immigration and Ethnic Affairs and Minister Assisting the Prime Minister for Multicultural Affairs) (7.59 p.m.) —There are probably two or three points that need to be responded to, but given the previous debate on this matter I am not sure that I need go through them at length. Senator Spindler is right: if these amendments fail, the regulations can still be disallowed by the Senate. It is obvious that in such circumstances the government would have to negotiate with the other parties to ensure that a set of regulations reasonable to them were able to get through to this place. That is the way in which the Senate normally operates.

  I turn to the natural justice aspect. Under amended subsection 195(3) we now have a clear statement of the government's intention that the panel's obligation is to accord to parties natural justice, and that that obligation will be met where the procedural requirements set out in division 3 of part 10 of the ASC act and in the regulations are followed in the course of an inquiry. Basically, the government is proposing a system clarifying, for both the tribunal and the parties appearing before the tribunal, a step-by-step procedure which the panel is to adopt in order to ensure that all parties receive a fair hearing. In that context, and in the context of the regulations, I am advised that draft regulations have already been made available to the opposition for its consideration and, if they have not been made available to the Democrats, we can ensure that that takes place as well.

  The other point before us concerned representation before the panel. The government's motivation here is pretty clearly understood and has long been well known. Under the existing provisions governing procedures the panel cannot work effectively; the Titan Hills case demonstrated that. There have been problems with the amount of time taken up in legal argument before the panel by legal advisers.

  The government's intention and the effect of the procedures that are now being proposed is not to prevent parties from having proper legal advice; that is totally possible and probably preferred. The rationale for the changes is that the panel will have discretion and flexibility to make an assessment of who can appear before it. It will not be precluded from allowing an adviser to get up and address it on a particular matter at its discretion. That sort of flexibility is desired. As the debate has already canvassed, in circumstances where injustice takes place, there is of course judicial review under the ADJR. I think the package of provisions in this case present for the parliament a more balanced approach, and one that recognises natural justice but also the need for flexibility.