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Wednesday, 14 August 1974
Page: 903


Senator GREENWOOD (Victoria3.9) -I move:

Leave out sub-clauses (1 ) and (2).

The clauses which the Committee has just accepted relate to various matters concerning the Commission, the powers of the Commission, its procedures, representation of the public, delegations, the staff of the Commission and its functions. Clause 29 gives to the AttorneyGeneral certain powers with respect to the Commission. The whole of clause 29 indicates that the Commission is to comply with the directions of the Attorney-General and the requirements of Parliament. It reads:

(1)   The Attorney-General may give directions to the Commission in connexion with the performance of its functions or the exercise of its powers under this Act other than its functions and powers under Part VII, and the Commission shall comply with any directions so given.

(2)   Any direction given to the Commission under subsection ( 1 ) shall be in writing and the Attorney-General shall cause a copy of the direction to be published in the Gazette as soon as practicable after the direction is given.

(3)   If either House of the Parliament or a Committee of either House, or of both Houses, of the Parliament requires the Commission to furnish to that House or Committee any information concerning the performance of the functions of the Commission under this Act, the Commission shall comply with the requirement.

If the proposal contained in the amendment were acceptable to the Committee it would mean that the only part of the clause which would remain is that dealing with the power of either House of the Parliament or a committee of either House or of both Houses to require information to be given concerning the performance of a function of the Commission under the Act. We object to the width of the power which is given to the Attorney-General and to the immensity of the scope for directions in the functioning of an independent body which is thereby given. We believe that the Parliament should determine whether or not there is to be an administrative departmental control of the functioning of a scheme of administration which the legislation establishes or whether it is to be left in the hands of an independent commission. We ought not to have the connection which is involved in the powers given to the Attorney-General. We ought to preserve the dichotomy between the political head and the independent body.

One can indicate that the functions of the Commission are very broad. Of course, Part VII is excluded. It relates to the granting of authorisations and clearances. Obviously it would be quite wrong for any political figure- a Minister or any other member of Parliament- to be able to say to the Commission: 'You shall give an authorisation to X and you shall not give an authorisation to Y'. I do not think that requires any justification. Quite properly, even on the view which the Attorney-General takes as to what should be the powers that he has over the Commission, he does not seek to include powers of that character. But when one considers the other powers of the Commission, I invite consideration to be given to the functions of the Commission which are set out in clause 28. If the Attorney-General is entitled to direct the areas in respect of which matters shall be made available to the public, then of course there is a selection not at the Commission's discretion but at the Attorney-General's discretion as to what shall be made public in particular areas. This is of great importance because if information which is scandalous information or of a defamatory nature is made public, the person concerned may well have no protection at all because it is given under the authority of an Act of Parliament. I believe that that is a matter which ought to be vested in the Commission which is having the day to day control of these matters.

When one considers clauses 155 and 156 of the Bill, to which we will give consideration in due course, which refer to the transitional provisions, one finds that enormous powers are given to the Commission. The Commission has the power to summon people before it and to require them to answer questions on any matter or questions relating to a matter that constitutes or may constitute a contravention of the Act. If the Commission has the power to summon people before it and to require them to answer questions and to be subjected to a penalty if they d o not answer questions, that is a power which ought to be circumscribed as much as possible.

A power is given in the Act to the Commission to require persons to furnish documents to any inspector who wants them. The inspector can ask for them just because the Commission or a member of the Commission wants them. If powers of that character are to be contained in the legislation they ought to be circumscribed. If the Commission wants them for a particular purpose then the Commission, as a body comprised of persons who know what their functions are, ought to take the responsibility for that decision. I do not believe it is proper that a Minister or an Attorney-General should have the power to direct the Commission as to how functions of that character should be performed. It leaves itself open for abuse or- this is probably more importantfor allegation of abuse. I believe it is far better for the Commission to be able to operate- as the whole scheme of the legislation contemplates- independently.

If one examines other provisions one finds that similar concern might be expressed. In clause 22 the Commission is empowered to decide whether it will have a private hearing. Normally, as I understand the legislation, the Commission is to conduct public hearings but in any case where it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Commission may direct that the hearing or a part of the hearing shall take place in private and it may give directions prohibiting or restricting the publication of evidence given before the Commission. If parties go before the Commission and satisfy the Commission with regard to those matters, I believe it is the Commission's decision which ought to be final. It is for reasons of that character that we believe -


Senator Murphy - If you read it you will find that the Attorney-General could not interfere with a decision as to whether matters should be heard in private.


Senator GREENWOOD - I am asking the Attorney-General to examine the width of the power. If he feels that these powers are too wide I accept his suggestion that he take this clause away and redraft it. I just ask him to consider the width of the provision. Clause 29 says:

The Attorney-General may give directions to the Commission in connexion with the performance of its functions or the exercise of its powers under this Act -


Senator Murphy - Other than -


Senator GREENWOOD - It continues: other than its functions and powers under Pan VII

Part VII relates to authorisations and clearances. The clause continues: and the Commission shall comply with any directions so given.

It seems to me that, quite apart from Part VII, there are other functions which the Commission has- for example, under clauses 28, 155 and 1 56- which are not part of Part VII at all. If the Attorney-General wants to take the clause away I suggest that we proceed in the harmony he earlier indicated and bring the clause back again later. We will move the amendment that these 2 clauses be deleted.







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