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Monday, 23 March 1987
Page: 1348

Mr HODGMAN(10.25) —Madam Speaker, because of a short but enforced absence from the House, and properly so, last week I did not have the opportunity to address the chamber on some matters in relation to legislation which has now passed this House and gone to the Senate. I am very clear that under the Standing Orders I shall not reflect on the vote in the House but I do want to raise some matters which I hope honourable senators in another place will look at when they come to deliberate and vote upon the Lemonthyme and Southern Forests Commission of Inquiry Bill 1987. I am very pleased to see that the honourable member for Bass (Mr Smith), who spoke in that debate, is present in the chamber. I want to speak about some of the legal aspects which I would hope the Senate would look at and carefully consider.

The first and fundamental question that needs to be looked at is whether the legislation is constitutional. From a legal point of view it is quite interesting. The Bill appears to be based on the foreign affairs power of the Constitution contained in section 51 placitum (xxix) and also the corporate power. My personal view is that, insofar as it does not relate to land which is currently on the World Heritage List and the Bill in fact relates to National Estate and private property, clearly in respect of that the legislation is unconstitutional. Secondly, in relation to either the corporate power or the export power, my view is that the legislation would be unconstitutional in relation to the taking of timber which is purely for domestic consumption or even interstate trade but not bound for export. So the first question I think the Senate, as the protector of the States, should look at is whether the legislation is constitutional. I am pleased to see the honourable member for Bass is nodding his head in agreement. If the Senate does not think the legislation is constitutional it should reject it or alternatively refer it to the appropriate Senate committee to ascertain, having taken proper legal advice, whether it is constitutional. The Senate carries out a most important role in relation to delegated and subordinate legislation. I encourage the Senate to look at the question of the constitutionality of Acts of this Parliament before it simply gives them the Senate imprimatur by passing them.

Thirdly, I ask whether the Senate will look very carefully at the right of entry upon private property contained in clause 14 of the Bill. The clause is extremely widely drawn and effectively would enable the right of forcible entry on to any private property anywhere in Tasmania which may contain forestry resources. A member of the commission of inquiry or another person who is authorised in writing for the purpose of this clause may do this. It gives the right to enter using such assistance and such force as is necessary to enter and inspect any private property in Tasmania. That is the widest power enforceable, I believe, of entry to private property I have seen in any legislation. Clause 17 needs to be looked at carefully. It radically and unjustly changes the law in relation to the granting of injunctions in a manner never before seen in Australia.

Fourthly, I suggest that the Senate look at the severe limitation of payment of compensation which, I believe, contravenes the Constitution. Fifthly, I refer to the denial of any compensation whatsoever to those who suffer loss or damage, including loss of employment in a secondary or tertiary capacity. Lastly, I point out that this legislation is not only most unconstitutional but it denies basic and fundamental Australian rights in a manner which I believe is totally unacceptable. I ask the Senate to look at it with a fine tooth comb. I have already asked the Law Council of Australia to do likewise. It should be rejected.

Madam SPEAKER —Order! The honourable member's time has expired.