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Government prepares to abandon Aboriginal preamble

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CHRIS MILES, Shadow Minister for Aboriginal Affairs

PETER REITH, Shadow Attorney-General



The Government today moved away from its commitment to the Preamble for the proposed Aboriginal and Torres Strait Island Commission, Mr. Chris Miles, Shadow Minister for Aboriginal Affairs, said today. .

1 As the law in this area is unclear, it was inevitable that the Government would have to abandon the Preamble - a major plank in its proposed legislation,* he said.

The Minister's statement in the House today confirms responses to a number of FOI applications lodged by Shadow Attorney-General, Peter Reith. These responses have suggested that there legal difficulties of high sensitivity with the proposed Preamble. The

backdown comes only three months after the announcement was made with great fanfare last December.

At the time of the announcement, Mr. Hand said that the Preamble would 1 break new ground1 and was 1 both significant and historic1. Neither the Minister nor the Prime Minister, who was closely associated with the proposal, have bothered to explain why the backdown has occurred so soon after its announcement.

Additionally, claims made by the Minister for Aboriginal Affairs and the Prime Minister in the Parliament on December 10, 1987 have been thrown into doubt by the results of the FOI applications.

On December 10, .1987 the Minister for Aboriginal Affairs announced his proposal for a preamble to the Aboriginal and Torres Strait Islanders Commission Bill. On the same day the Minister and the Prime Minister were asked to comment on the

implications of and/or legal consequences of the proposed preamble. Mr Hand said that he had had "no specific advice of a legal nature" on the proposal and the Prime Minister said "I have not received any advice in the area..."

Mr Reith then lodged an FOI application with Mr Hand seeking all documents on the subject of the implications of and/or legal consequences of the proposed preamble with the expectation that he would be advised no such documents existed. It was therefore of some surprise to find that documents of that nature existed


but are exempt from.FOI. In other words, contrary to the statements made by the Minister and the Prime Minister to the House in December, it is clear that some legal advice had at that stage been made available to the Government on the issue.

The seven page letter response to Mr Keith's FOI application from the Department of Prime Minister and Cabinet states that there are four documents "on the subject of the implications of and/or legal consequences of a preamble in similar terms to that which was announced" on December.10, 1987. Document 1 is a Cabinet

submission which was considered by Cabinet on December 7, 1987. Paragraphs 4 and 5 of the submission include some very general statements by the Minister about his proposal for a preamble. Attachment E of the submission (containing co-ordination comments) includes "expressions of view and comments upon the Minister's proposals".

Document No. 2 is a re-type of paragraph 1 of page 28, Attachment E. Document 3 is a briefing note from the Department of Prime Minister and Cabinet on the submission. Document 4 is a letter from Mr Hand to the Prime Minister dated October 29, 1987 and

includes the Cabinet submission and in particular paragraphs 4 and 5 which contain general statements about a preamble. The submission contained with the letter is substantially similar to the final Cabinet submission.

An FOI application to the Attorney-General confirms the advice from the Department of Prime Minister and Cabinet of the existence of documents on the legal issues arising out of the Cabinet submission.

The Attorney-General has advised that he has six documents "on the subject of the implications of and/or legal consequences of, a preamble in similar terms to that which was announced in the House of Representatives on Thursday December 10, 1987." Document No. 1 is the Cabinet submission and corrigendum. Document NO. 2 was prepared by a senior officer of the Attorney-General’s.Department (Mr P.F. McDonald) and was given in

the officer's professional capacity as a legal adviser. The Attorney-General has claimed that it is exempt and has stated that "disclosure of the document would be contrary to the public interest because the document deals with issues currently of high

sensitivity and which are still under consideration by the Government." The document also bears an annotation which was prepared after Mr Keith's FOI request in January but which is on the subject of the preamble. Document No. 3 contains extracts

from the draft Cabinet submission and comments in relation to those extracts prepared by a legally qualified member of the . Attorney-General's Department. Document No. 4 is a summary of the Cabinet submission. Document No. 5 "records views of a

legal nature previously orally expressed by counsel." The document is a facsimile memorandum dated December 7, 1987 from Mr P. F. McDonald (Attorney-General1s Department) to Mr D. Graham, Q. C. Document No. 6 is "hand written notes" made by a member of the Cabinet. .

The Attorney-General has also noted the existence of a seventh document which was a memorandum of advice dated January 19, 1988


by Mr D. Graham, Q.C. and Mr A. Robertson of Counsel.

The FOI application to the Minister for Aboriginal Affairs has been met with determined resistance. The matter is subject to an appeal in the Administrative Appeals Tribunal which will be heard in April. The Department has however advised that there are documents in existence on the implications or consequences of matters in the preamble announced in the House of Representatives

on December 10, 1987. The Department advised that "the only documents of this kind are the comments of relevant Departments including the Attorney-General* s Department which were made available to Ministers as part of the normal processes of Cabinet."

There are two questions in this matter. Firstly, what advice was made available to Cabinet when it considered the proposal for the preamble? It is obvious that there was a flurry of activity on December 7, 1987 when this matter was considered in Cabinet. There was a fax to the Melbourne Q.C. which has since been

followed up by a second opinion from the same barrister. The Attorney-General has described the matter as being of "high sensitivity". The Australian public is entitled to know the possible legal ramifications of the proposal being put forward by

the Commonwealth and the reasons for the government's decision to drop the proposal.

Secondly, it is quite clear that the Cabinet submission put forward by Mr Hand included co-ordination comments from the Attorney-General1s Department. Mr Hawke received a copy of that submission at the end of October. He has claimed that he had no

advice "in the area" and Mr Hand has claimed that he has had "no specific advice of a legal nature.1 That is hard to believe in view of the fact that the comments we now know he did have, were prepared by a legally qualified member of the Attorney-General's Department on the issue of the legal implications of the preamble. It is obvious also that the rush to obtain Mr Graham, Q.C.'s opinion must have been precipitated by developments either at or just prior to the Cabinet meeting. The credibility of Mr Hawke and Mr Hand is at stake on both counts and they should make

a full explanation of their roles in this matter. Further the Attorney-General should table the Q.C.'s opinion.

For information: Peter Reith (062) 72 6540 (059) 79 3188

Chris Miles (062) 727672

17 March 1988