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Wednesday, 8 December 1976


Mr NEIL (St George) -The House is debating the Foreign Proceedings (Prohibition of Certain Evidence) Amendment Bill 1976. The

Government has moved amendments today which are designed to deal with objections raised and discussed, to some extent in this House but also in the Senate, on a more comprehensive basis a few weeks ago. It is proper for the House to consider the whole matter of emergency legislation because we have not had the most satisfactory passing of this Act and amendment through the parliamentary process. Section 4 (2), which is to be deleted, has been referred to by the honourable member for Kingsford-Smith (Mr Lionel Bowen). He said that it had questionable validity. He did not stress the fact that it was also a repugnant section which gave the AttorneyGeneral (Mr Ellicott) an extraordinary power that could have almost no limits within this general field. I congratulate the AttorneyGeneral on being prepared to have that subsection removed, not only because of the doubts which surrounded it, but also because of its intrinsic repugnance.

The other amendments contained in the Bill are designed to enable principally the Parliament to have a greater say in the event of an order being made. There may be a disallowance of an order and it is proper that this Parliament should be given the opportunity to disallow orders which may be made in the future in circumstances that are totally beyond the range of our present vision into the future. We do not know in what circumstances this type of legislation could be used. We only know that there was an emergency situation relating to the Westinghouse litigation. I shall say one thing about the amendment proposed by the honourable member for Kingsford-Smith. Obviously, if he is concerned about the practicalities of the situation, as he has indicated, 30 June 1977 cannot be a sound date at all. The likelihood is that the House will not be sitting. If the Act were to expire and if an emergency situation were to arise it obviously would not be possible for legislation to be passed because, as I understand it, the House is due to rise in early June and the Budget session will not start again until August. Even if the amendment were agreed to a potentially dangerous situation could arise, and I am using the word 'dangerous' in the context of the Act, namely, an unforeseen emergency. I suggest that if the honourable member wants to press on with this amendment he ought to give some consideration to that very serious practical problem. Senator Durack in the other place pointed out that the Act would only apply where 'jurisdiction of a foreign tribunal is purported to be exercised outside the ambit of international law or comity of nations or where the Australian national interest is at stake'.

This could be the only basis on which an order should be made. That was the only basis on which there ought to have been emergency legislation. I suggest to the House that it should look at ways in which emergency legislation la the future can be dealt with. I would have thought that where there is complex legislation, such as this Bill even though it is only short, and where there is complex litigation which involves many parties and spans many countries, once the Opposition agreed in principle to the urgency and to allow the Bills to go through, it might be better if Opposition and Government supporters sat down together and hammered out a number of these points before the Bill came into the House. Government supporters were not aware of the full context of the Bill. Some were and some were not. Opposition members may or may not have been fully aware of the context. Despite disquiet the Bill was passed through this House and through the Senate even though a number of honourable members raised serious doubts about aspects of the legislation. But everyone accepted that it was emergency legislation. I am not entirely impressed with the argument that it was emergency legislation which it was necessary to pass on the night of 18 November. Why it could not have come in the day before, or the week before, or the week after, I am not certain. I am a little concerned that in future we should try to devise, albeit informal, mechanisms to enable emergency legislation to go through the Houses without a preponderance of members of Parliament being in the dark about the full ramifications of the Bill.

The debate on 18 November supplanted the debate on the White Paper on Defence. Despite the arguments for an emergency hearing, I think it was most unfortunate that the time of the House had to be taken to displant an extremely important debate. The White Paper on defence calls for the most wide-ranging debate in the community on an extremely important topic which the White Paper points out is the first priority or first duty of the Government, namely, the security of the nation. On the night of 18 November the debate on the White Paper had been launched. The radio broadcast was carrying that debate to the widest possible section of the community which was prepared to listen to it. The debate was stopped half-way through and this legislation was brought in. It has now had to be brought back again with a number of important amendments. The defence debate was shoved over and eventually a few hours will be found for it I think today. It is to be disposed of at the very end of the sitting without the community being able to listen to the broadcast of the proceedings. I think that is most unfortunate.

This leads me to the suggestion that we should do everything possible to obtain clarification of the practical procedures which are to be adopted by the House in passing emergency legislation. Another matter raised by the honourable member for Kingsford-Smith related to the Privy Council. I think the British legislation should cover that. If it does not, we are probably thrown back- as this legislation stands- to, paradoxically, an English amendment. As the honourable member knows, the Privy Council sits as a court of appeals from the States. It is entitled to do that and it is the ultimate court of appeal from those courts.


Mr Kevin Cairns (LILLEY, QUEENSLAND) - What about defence?


Mr NEIL -I will not repeat my speech on defence although, no doubt, the honourable member for Lilley would like to hear it again. I stress the importance of looking at emergency legislation from, firstly, the point of view of the forms of the House and, secondly, the need to avoid repugnant sections such as section 4(2) which slipped through.







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