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Thursday, 5 May 1994
Page: 288

Senator VANSTONE (10.05 a.m.) —I understand that we are not going to proceed further than the second reading stage of this bill today. That is a good thing, because the Australian Democrats have some concerns with one of the acts that is going to be amended by this bill, as do we. If it is possible to resolve those concerns and fix the problem in this chamber, that would obviously be more sensible than going on a wing and a prayer that the government would take any notice of suggestions made after the bill leaves this chamber, since the government has the numbers in the House of Representatives and has not displayed a great capacity to take notice of alternative views in that place. I do not want to say much this morning on the basis of that understanding and I ask Senator Faulkner to indicate whether it is correct that we will only go to the second reading stage on this bill and will postpone the committee stage so that we can try to resolve some concerns.

Senator Faulkner —It is my understanding that we are going through to the completion of the second reading debate.

Senator VANSTONE —I thank Senator Faulkner. The Law and Justice Legislation Amendment Bill amends seven acts and all but one, for us at least, are non-contentious. It amends the Acts Interpretation Act 1901 to enable a delegation to a class of offices to catch offices created after the instrument of delegation was made. We have had no adverse comment in relation to consultations we have had in that respect.

  There are amendments to the Cheques and Payment Orders Act 1986. I understand that these amendments have been requested by the Australian Payments Clearing Association—APCA—and that they implement different procedures for internal and external presentments. Apparently there has been the capacity to have electronic presentments for some time, but there has been some confusion as to what the law was if a transaction was happening intra-bank as opposed to between banks. It is all a bit complicated for me. In any event, we are happy with those amendments and, therefore, happy to support that aspect of the bill.

  There is an amendment to the Family Law Act 1975 which simply corrects a subsection numbering error in the act. There are amendments to the Federal Court of Australia Act 1976, which are a little more complicated than those to the Family Law Act. They broaden the power of a single judge to make interlocutory or consent orders in relation to pending appeals. They allow evidence to be obtained by video link, telephone or other appropriate means. If the witness is present in Australia, the evidence must be sworn. There is the opportunity in very limited circumstances for evidence overseas not to be sworn, and power is given to enable rules of court to be made dealing with the way evidence is given in this regard.

  It also gives the Federal Court the ability to make rules allowing the court to amend documents in a proceeding even if that would have the effect of raising a new cause of action that would, if the proceedings in relation to it were commenced at the time of the amendment, be out of time. The ability of the Federal Court to make such rules was questioned by Justice Toohey in a 1992 decision. The amendments overcome those doubts and bring the Federal Court in line with most other Australian jurisdictions. There are also amendments to the Judiciary Act 1903. The act presently provides that when the full court of the High Court delivers a judgment, at least two justices must be present. This bill will change that to ensure that a judgment can be delivered by one judge.

  Those five acts come within the Attorney-General portfolio. There are then the two that come within the Justice portfolio, the first being the Financial Transaction Reports Act, dealing with what is now called Austrac, which used to be the Cash Transaction Reports Agency. That change enables the director of Austrac to have the powers of a departmental secretary under the Public Service Act 1992 as far as the act relates to Austrac, as if that branch were a separate department of the Australian Public Service. We do not object to that change.

  I move then to the one that is contentious, that is, the change to the Freedom of Information Act. As I understand it, this bill tries to undo something which we did a while ago but which we have now found is all too onerous and is not working and so would like to get rid of. But it does raise certain concerns. As I understand it, some time ago changes were made to ensure that consultation had to take place with persons about whom information had been sought. That has become a very onerous task, and the government now sees that it needs to be changed so that consultation has to take place only where the person to whom the information relates could reasonably claim or contend that the documents were exempt.

  It is not that anyone wants to leave a situation where there is an unnecessary work burden that the government may claim in some way has not provided the benefit it was expected to provide, but our concern is that people should be entitled to know when information about them held by government departments is being released. We are not satisfied at the moment as to what impact this change will have on that. I understand that is pretty much the same concern that the Democrats have, and we would be happy to listen to the ministerial response or to sort it out at a later time if there is some reasonable way of not leaving the government with an unnecessary burden but at the same time giving people the opportunity to realise that someone has made a request and may be reading about himself or herself in one capacity or another on the front page of the daily papers the following day. That would seem to be a sensible way.

  Whether we can find a path that accommodates both of those needs remains to be seen. I am pleased that the government has been sensible enough to say that it will discontinue the process of this bill at the second reading stage so that we get an opportunity in this place to see whether the concerns that we and the Democrats have can be reasonably accommodated.