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Tuesday, 28 June 1994
Page: 2129

Senator BOLKUS (Minister for Immigration and Ethnic Affairs and Minister Assisting the Prime Minister for Multicultural Affairs) (8.07 p.m.) —The mechanism under the legislation is that, for an order to be enforceable, the panel would have to go to the Federal Court for an enforceability order. That protection is already in the machinery of the legislation. Under the constitution, Senator Harradine is right, there is separation of powers. The separation is tackled within this legislation by empowering access to the Federal Court and for the Federal Court to make orders that are then enforceable. That is the answer to the second part of Senator Harradine's question.

  The first part goes very much to the point I was making earlier. There have been enormous problems under existing provisions governing the operation of the panel and its procedures. The experience has been that, because of the continual raising of technical legal matters, the panel has been very clearly frustrated in its operation. The experience, for instance, in the Titan Hills case was that the amount of time taken up in legal argument before the panel by legal advisers was endless, the matter was pursued to other courts as well and, at the end of the day, we had a very frustrating process which did not in any way accommodate not just the justice interests but also the interests of the parties involved in the process—at least, the working of the marketplace in the process.

  So the government's position has been to allow for some flexibility to be imparted into the machinery of operation here to allow for people to be represented but subject to the discretion of the panel. That is to be coupled with the fact that any enforceable order has to come from the Federal Court, that this machinery is also subject to review under the ADJR, which gives further protection, and also to the natural justice provisions that we discussed earlier in the context of these amendments.

  The problem really is that, unless one allows some sort of flexibility like that proposed here, one will finish up with the stunted processes we had in the Titan Hills case, which would do no-one any good at all. So Senator Harradine should keep in mind not just these provisions but also the fact that the provisions are part of a general framework of operation which does allow for external judicial review but also has within it obligations of natural justice and, at the end of the day, the ultimate protection in that any enforcement has to come from the Federal Court.