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Wednesday, 4 November 1992
Page: 2631


Mr LAVARCH (10.05 p.m.) —We have just heard the honourable member for Higgins (Mr Costello) at his most indignant best in this debate on the Law and Justice Amendment Bill (No. 4). He came into the House and assailed us with his best private school manner about the faults which are manifest by the need for this very legislation. The first five minutes or so of his contribution was his strident attack against sloppy draftsmanship in various Acts which the Parliament has considered, the need to subsequently amend them, and the contribution to this by the use of the guillotine.

  In some aspects I agree with the honourable member. It is obviously not desirable that important legislation should have time limits on the process of its debate. But the indignation is a little hollow. The guillotine is a device which has been used by both sides of parliament and, of course, has a very colourful history indeed. But it is hardly valid to claim that this Government has invented the device or is the only government using it.


Mr Costello —You perfected it, though.


Mr LAVARCH —I do not believe we have perfected it at all, but it has been used. I do not believe it is the primary role of this Parliament—although it is a role—to be going through, clause by clause, and picking on particular drafting aspects of legislation. I would have thought the Parliament has a role a bit beyond that in terms of debate about policy considerations.

  The honourable member went on and cited a long-winded section of the Privacy Act, saying, `18N(1)(bg)—this is incredible. It is hardly plain English drafting. How can the ordinary person hope to understand it?'. I have some sympathy with that view. In fact, the Legal and Constitutional Affairs Committee is currently conducting an inquiry into plain English drafting. I just find it a little hypocritical that this honourable member from the Victorian Liberal Party comes in here and says that plain English drafting is what we need, and that this is a bad example, when his colleagues in Victoria have just abolished the Victorian Law Reform Commission which, I think, is the pre-eminent body that Australia has had in recent years arguing the case for plain English drafting.

  We have in Victoria the body which, Australia-wide, has been championing the cause so that we do not get the gobbledegook sections, but have laws written in simple English that ordinary people can understand. What do the Victorian colleagues in the Party which the honourable member for Higgins represents do? They abolish the very body that has been championing the cause of plain English drafting. I do not know what that means in Victoria, but in Queensland it smacks just a little of hypocrisy.

  I suggest that the honourable member for Higgins, as he is now a strong convert to, and advocate of, law which ordinary Australians can understand, should have a word with his recently elected colleagues in Victoria. He should suggest that the axing of the Law Reform Commission may be a somewhat short-sighted measure; that it is not going to save us money in the long run; and if we can get simpler laws which people can understand that will be an enormous cost saving for this country. Abolishing the Law Reform Commission to save a million and a half dollars is a rather short-sighted measure, when that Commission has estimated that at least $100m a year can be saved if we adopt a genuine process of plain English drafting.

  The honourable member for Higgins went on in his indignant manner to raise particular matters in this Bill. One point that he went on about was the amendments to the Federal Court Act regarding representative actions. He suggested that, again, the Government had got it wrong in its drafting by not having provisions which adequately covered the awarding of costs against persons added to a class in a representative action.

  I do not think it is fair to say that that is some sort of drafting mistake on the part of the Government. I think the situation at that stage was that the Government was relying on well-established precedents of many superior court decisions about the awarding of damages in representative actions. It was the understanding of the operation of the law at the time which led to the provisions being drafted in that way.

  It is an insult to the Commonwealth draftsman that he did not know the law and that it was a simple drafting mistake. It was not a drafting mistake. Subsequent to the passing of the Act, there have been decisions both in Victoria and in the High Court which have thrown doubt on these issues and have resulted in the need for the amendment. To say that that amendment was the result of sloppy drafting is a gross misrepresentation. It is an amendment resulting from a High Court decision and a Victorian Supreme Court decision which changed what was understood, at the time the Act was passed, about the provision of awarding costs in these circumstances. As a result of those court decisions the law is being changed. It has nothing to do whatsoever with the provision of drafting. I take issue with the honourable member on that point.

  Most of the amendments are of a minor nature. It may well be that in the first place some of the amendments were caused by sloppy drafting. I am not going to pretend that mistakes are not made. Unlike the honourable member for Higgins, some people are actually human and do make mistakes from time to time. Most of the amendments are necessitated by changing circumstances and the need to keep legislation up to date.

  We heard the honourable member go on at some length about the Privacy Act. It was a very important piece of legislation. It was a new Act which covered areas which had previously not been regulated in Australia. Obviously, the Act has been subject to changes over time as the provisions have worked their way through in practice. I do not believe it is unreasonable to expect the Government to respond to problems as they arise and amend the law accordingly. Given that time allowed for this debate is short, I will leave it at that. I hope the honourable member for Higgins will carry through on his strong support of plain English drafting and bemoan, as I do, the axing of the Victorian Law Reform Commission.