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Wednesday, 19 October 1983
Page: 1895

Mr LIONEL BOWEN (Minister for Trade)(10.37) —I move:

That the Bill be now read a second time.

This Bill will enable Commonwealth and State governments to obtain advisory opinions on the validity of provisions of statutes and on certain other important constitutional questions. A proposed constitutional alteration to allow Commonwealth and State governments to obtain advisory opinions from the High Court of Australia on certain important questions of constitutional law was recommended by the Judicature Committee of the Australian Constitutional Convention in 1977. At about the same time and quite independently, the Senate Standing Committee on Constitutional and Legal Affairs compiled its report in favour of an advisory jurisdiction for the High Court.

When the Constitutional Convention met in Perth in 1978 it endorsed by 54 votes to 36 the Judicature Committee's recommendations. The Senate Committee's recommendation, which differed on points of detail, was not put to the vote but was circulated for the information of delegates. Following the Perth meeting, the Convention's Standing Committee-Standing Committee D-undertook a range of inquiries on matters referred to it by the Perth Convention. At Senator Durack's initiative it reactivated consideration of advisory opinions with a view to synthesizing, if possible, the recommendations of the Judicature Committee and those of the Senate Committee. Discussions took place between representatives of the two committees and agreement was reached on a revised proposal which slightly broadened the jurisdiction. The revised proposal was again considered by the Convention at its Adelaide meeting in April of this year and again was approved by a substantial majority, namely, 51 to 35. At both the Perth and the Adelaide conventions the advisory opinions proposal was-I am pleased to report- supported by Federal Liberal and National Party delegates. In moving the endorsement of the revised proposal at Adelaide, Senator Tate pointed out that an advisory jurisdiction is perfectly consistent with the exercise of judicial power and the independence of the judiciary. He said:

It needs to be emphasised from the outset that the proposal sought to confer on our highest tribunal a further dimension of judicial power, which it had disabled itself from exercising in 1927. We are not dealing with mere political advice or some adjunct to the executive of parliamentary functions, but with questions of law only, and that needs to be emphasised. We are dealing with questions of large and radical moment, undoubtedly, but nevertheless true questions of law, particularly, apt to be vested in the ultimate arbiter of constitutional issues. Indeed, the Judicial Committee of the Privy Council has stated that, in relation to a similar Canadian jurisdiction, it is a true exercise of judicial power and, indeed, the court of the Judicial Committee itself exercises such an advisory jurisdiction.

In the form in which it was introduced into the Senate, the Bill was based on the Adelaide Convention resolution. It still gives effect to that resolution in general terms except that the capacity to obtain an advisory opinion in respect of provisions of a Bill before the passage of the Bill through both Houses has now been removed.

The Arguments

The arguments in favour of and against advisory opinions have now been canvassed in some detail in the reports of the Senate Committee, of the Convention's Judicature Committee, and of Standing Committee D, as well as in the proceedings of the Perth and Adelaide conventions and, more recently, during the passage of the Bill through the Senate. In broad terms the arguments in favour are as follows:

Advisory opinions would save taxpayers expense and resources by enabling governments to check the constitutional validity of major proposals at an early stage;

by enabling rulings to be obtained at an early stage, advisory opinions would reduce the tendency for differing perceptions of major constitutional issues to develop into matters of political confrontation; and

advisory opinions would assist in the development of a more rational basis for the planning of major constitutional initiatives.

The arguments that have been put against advisory opinions can be broadly categorised as relating to, firstly, the independence of the judiciary. It is said that advisory opinions would make the High Court into an adjunct of government and sap its independence-

Mr Hodgman —Hear, hear!

Mr LIONEL BOWEN —secondly, the danger of overloading the Court-

Mr Hodgman —Hear, hear!

Mr LIONEL BOWEN —thirdly, the difficulty of giving an opinion in the absence of a concrete fact situation-

Mr Hodgman —Hear, hear!

Mr LIONEL BOWEN —fourthly, the uncertain status of advisory opinions-

Mr Hodgman —Hear, hear!

Mr LIONEL BOWEN —and fifthly, the availability of alternative means of adjudication such as the declaratory judgment.

Mr Hodgman —That is why the High Court is dead against it.

Mr LIONEL BOWEN —I note that the honourable member is against it on every issue. In relation to the fears expressed for the Court's independence and workload, the simple fact is that these fears have not been realised in Canada, where the Supreme Court has had an advisory jurisdiction for many years. Moreover, the careful limitation on the making of references that is contained in the Bill would, I believe, rule out any abuse of the process. Provision is also made for facts to be specified in some detail for the purpose of a reference and, where necessary, for references to be amended. So far as the status of advisory opinions is concerned, it is clear that governments would observe them as they observe other court rulings. It is true that advisory opinions would be subject to being overruled at a later date, but that is also true of any court decision.

The last argument is that other means-the declaratory judgment is usually instanced-are available for testing the validity of legislation. While it is true that the increasing readiness of the High Court to hear actions for a declaratory judgment, at the suit of the Commonwealth or State Attorney-General, has assisted good government, there are still occasions where such means are not available or are inappropriate. By way of example of the potential usefulness of an advisory jurisdiction I mention the lengthy time it took for the establishment of an effective Trade Practices Commission and the virtual paralysis for a year of the office of the Commissioner while the first legislation was under challenge. Even where the declaratory judgment procedure is available, there are advantages in being able to obtain a ruling without seeking it in the adversary system.

The Bill

It remains for me only to explain briefly those aspects of the Bill which I have not dealt with in outlining the arguments for and against it. References may be made on the validity of the provisions of any Act or of any Bill which is before the Parliament and on certain questions of great constitutional importance which have arisen or are likely to arise. References on Commonwealth matters are to be sought only by the Commonwealth and references on State matters are to be sought only by State governments. Provision is also made for the Northern Territory and any other self-governing Territory to avail itself of the procedure in relation to its own legislation and Territory constitutional questions.

During its passage through the Senate, amendments were made to the Bill to make clearer the Government's intention that references may be made on particular provisions of Acts or Bills and not only on entire Acts or Bills. The amendments will also ensure that the power of the administrator of a Territory to make a reference is limited to fully self-governing Territories. At the present time only the Northern Territory comes within this category. The Government also accepted an amendment moved by Senator Durack to make clearer the intention that the High Court should be able to hear argument from a person who, in its opinion , has sufficient interest in a question referred by the Commonwealth or by a State or self-governing Territory. An amendment by Senator Hill to narrow the jurisdiction by excluding from the jurisdiction Bills that are still under consideration by the Parliament was opposed by the Government but was nevertheless passed. The effect of that amendment is to require that a Bill be passed by both Houses and awaiting assent before it can be the subject of a reference. Although this represents a significant diminution of the utility of an advisory jurisdiction the proposal still represents, in the Government's view , a very worthwhile reform.


An advisory jurisdiction will not eliminate the need for judicial review. Nor will it reduce the responsibility of governments to act within the constraints of the Constitution. Used selectively, however, it should be effective in minimising unconstitutional legislation and in facilitating the proper development of major government initiatives. I commend the Bill to the House.

Debate (on motion by Mr Spender) adjourned.