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Thursday, 13 April 2000
Page: 14097


Senator GREIG (3:57 PM) —This bill, while entitled the Jurisdiction of Courts Legislation Amendment Bill 2000, really does fall short of the mark in terms of actually establishing additional jurisdictions for courts in Australia. As a hallmark of our federal democracy, the Constitution establishes a strict separation of powers. In simple terms, the separation of powers makes sure that those who make the laws, or at least the statutory version, do not have the responsibility of implementing or interpreting them. As far back as 1748, well before the arrival of European law in this land, Montesquieu had the following to say on the separation of powers:

There is no liberty if the judiciary power be not separated from the legislative and the executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything were the same man or the same body, whether of nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

More recently, and certainly in a more contemporary sense, in 1981 former High Court Justice and former Governor-General Sir Ninian Stephen said:

But within its own modest limits judicial independence conduces to the free society and it is within those limits that I confine myself tonight. If judicial independence is in itself far from a complete protection against absolutism in government it is nevertheless a sure touchstone of freedom under the law; where it exists absolutism has not yet established itself, and where it is absent absolutism is likely to have free rein.

The rule of law, another democratic tenet, requires that competent courts be the ultimate forum in which law and its effects are played out. From the outset, let me say that almost without exception the men and women who administer the judicial power of the Commonwealth and of the states are among the finest holders of judicial office in the world. There is a tendency to forget in this place, I think, that parliamentarians are not the only bastions of democracy. Equally, and at times more importantly, we depend for the preservation of our democratic system of government on the existence of the judicial arm of government.

It is important that we never forget these principles. However unlikely it may be in Australia, as a member of the global family Australian society is neither immune nor exempt from the strains that have occurred in countries with fewer democratic freedoms than we enjoy here. Having said that, and notwithstanding the importance of the judiciary and the common law in this country, the great bulk of law and the jurisdiction of the courts come from the statutes that we make and amend in this place. The Family Court is constituted by the Family Law Act 1975. The Federal Court is constituted under the Federal Court of Australia Act 1976, and the Federal Magistrates Service is constituted under a more recent act, one with which I am more familiar.

I have taken some time today to canvass these issues because, ultimately, they lead into the main topic I wish to address on this bill—that is, the absence of a comprehensive human rights jurisdiction in Australia. Only a week or two ago, the Australian public was subjected to what might best be described as a childish response from the Minister for Foreign Affairs, Mr Downer, when he stated that the Australian government was conducting a review into this nation's participation in the United Nations committee system. The capacity of governments to review their participation in international fora, rightly or wrongly—although my colleague Senator Vicki Bourne would argue `wrongly'—resides within the prerogative of the executive government. Human rights, however, are not the purview of any government.

It was by no means a coincidence that Mr Downer's comments came literally days after the Committee on the Elimination of Racial Discrimination was critical of Australia's record, particularly on indigenous issues. UN committees do not usually point the finger if there is nothing to point the finger at. Indigenous people have good cause to be alarmed, hurt or disappointed about recent events and statements. But they are not the only group in the community whose capacity to seek redress and recompense for injustice goes unheard and uncared for. A particular hotbed of discontent and frustration will always be the absence of a place for people to have their grievances respected and addressed. Enter the UN committees. Most Australians will be unaware that the United Nations human rights committees—and there are a few—are neither the first port of call nor an easy place to lodge a complaint. Take, for example, part 2, article 11(3) of the International Convention on the Elimination of All Forms of Racial Discrimination, which states:

The committee shall deal with a matter referred to it in accordance with paragraph 2 of this article after it has ascertained that all available domestic remedies have been invoked and exhausted in the case—

I emphasise the point here about them having to be `invoked and exhausted'—

in conformity with the generally recognised principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged.

This fact was conveniently omitted from Mr Downer's critical comments against the UN committee system. The point is that you can go to the United Nations only when and if you have exhausted all remedies here in Australia. The fact of the matter is that UN committees are the last port of call, not the first. We have the foreign minister, ably assisted by the minister for reconciliation, arguing that the last port for human rights complaints is not appropriate or is, at the very least, embarrassing. The simple fact of the matter is that there would be no recourse to the UN if Australia had done the right thing—as it is required to do under its treaties—and placed our own house in order in this regard.

This, of course, is the chief deficiency in the bill presently before the Senate. None of those pressing issues are presently contained in this bill, despite the urgency of these matters. There appears to be no great will within the ranks of much of the government to address them. It is stated that the primary purpose of this bill is as a response to the High Court's recent invalidation of cross-vesting schemes in the Wakim case, and it contains a series of measures which: firstly, repeal provisions which contemplate the conferral of state jurisdiction on federal courts, now known or assumed to be invalid; secondly, restore the availability of federal administrative law proceedings for decisions taken by Commonwealth officials under state law as part of cooperative legislative schemes; thirdly, provide, in relation to the Corporations Law and certain other cooperative schemes, for the vesting of jurisdiction in, and the transfer of proceedings between, state, territory and federal courts within constitutional limits; fourthly, provide generally for the cross-vesting of certain proceedings involving decisions by Commonwealth officials under state law; and, finally, preserve the Federal Court's exclusive jurisdiction in relation to proceedings under the competition codes and price exploitation codes of the territories, but not under the state codes.

The first question to be asked, then, is: given the seriousness of the destructive effect of Wakim's case on cross-vesting and cooperative legislative schemes, is the bill an adequate Commonwealth response? Large issues remain, for the moment, unaddressed. A related question is whether the bill tackles all of the cooperative schemes imperilled by the Wakim case. For example, do the national codes in areas such as agriculture, veterinary chemicals and civil aviation carriers' liability also require attention? I note, however, some acknowledgment of this from the government in the form of their amendments before us. The Democrats support these. Clearly, however, the technical issues involved are highly complex, cross a number of areas of public policy and, most importantly, entail intergovernmental negotiations, which can be notoriously difficult. It is also questionable whether federal legal aid should be denied in certain review proceedings under the NCA Act now that they have been recast as matters of federal law. It seems unlikely that legal aid would be available at the state level if the provisions in this bill become law. I would appreciate government clarification on this point.

A separate purpose of the bill is to restrict the ability to challenge pre-trial decisions taken by Commonwealth officials in the criminal justice process and to do so retrospectively. Let me state from the outset that the Australian Democrats always view retrospective application, particularly as it applies to criminal jurisdictions, as wrong. That is to say, our starting position for these matters is to ensure that people who are apprised of the law should be subject to the law as the law stands. But, so as not to give Senator Vanstone a free kick on this issue of retrospectivity, let me put on the record firmly that, in terms of addressing crimes against humanity, a matter which I and the Australian Democrats look favourably upon, we take a different view. I note that in the public debate that has occurred to date on my anti-genocide bill, Senator Vanstone has ruled out government support for any retrospective application of that bill. It is interesting to note, therefore, that the government does not always necessarily take the view that all crimes and all legal matters should not have a retrospective application.

This bill is a clear example of where the government sees the need for retrospectivity. It is an area which primarily relates to white-collar crime in the big end of town. I sincerely hope that the government's mind is not closed on this point. I would be incredulous to learn that—and I daresay it would be immoral if—the Australian government is of the view that only white-collar criminals ought to be treated with retrospectivity and therefore are more important, in terms of applying retrospectivity, than those people who perpetuate genocide and crimes against humanity. I signal the importance of these issues here because, when we come to debate human rights provisions down the track, or my anti-genocide bill, some clarity from the government on this matter will, I think, be warranted. The ultimate question is whether this government sees economics or people as being more important. I suspect that answer will be evident in the coming months as the government deals with its present difficulties with human rights jurisdictions.

This is not one of those instances where the Australian Democrats see retrospectivity as being appropriate. For the record, the Australian Democrats have considered the amendments of the opposition and consider them to be worthy of merit. I indicate now, however, that the Democrats will be supporting the opposition amendments, as circulated, that have previously been moved in the House of Representatives and again here today in the Senate. I also indicate that, if the amendments are not acceptable and do not gain the support of the Senate, the Australian Democrats would be very unlikely to support the passage of this bill through the Senate.