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Tuesday, 9 May 2000
Page: 16085


Mr McCLELLAND (5:34 PM) —I move:

That Senate amendments Nos 2, 4 and 7 be amended as follows:

(1) Senate amendment (2) (proposed new subsection 9A(1B)) of the Administrative Decisions (Judicial Review) Act 1977):

Omit “the Crown”, substitute “the prosecutor”.

(2) Senate amendment (4) (proposed new subsection 51AA(2B)) of the Corporations Act 1989):

Omit “the Crown”, substitute “the prosecutor”.

(3) Senate amendment (7) (proposed new subsection 39B(1CB) of the Judiciary Act 1903):

Omit “the Crown”, substitute “the prosecutor”.

These amendments are simple amendments. They replace in amendments Nos 2, 4 and 7 a reference to the Crown with the phrase `the prosecutor'. This change to our previous amendments has been necessitated by advice that we have received in good faith from the Attorney-General's office that the reference to the Crown is inappropriate. We accept that advice and accept that it has been provided to us in good faith. The reason that reference to the Crown is inappropriate is that in many prosecutions it will not be the Crown that is the prosecutor; rather the Crown would likely come into the fray only when there has actually been someone committed for trial. For that reason we accept the advice of the Crown law officers that the appropriate phrase is `the prosecutor'. Hence we seek to amend the amendments by deleting reference to the Crown and inserting in place the term `the prosecutor'.

I should take this opportunity while there are a few minutes left—and I understand this will likely be the last contribution in this House on the bill—to say that we welcome the efforts that the Attorney-General has made and is continuing to make in seeking the reference of appropriate powers from the states to overcome constitutional complications which have arisen in respect of the application of a number of cross-vesting schemes which are covered by the Jurisdiction of Courts Legislation Amendment Bill 2000. We note, however, that the focus of the Attorney seems to be on the Corporations Law area. As this bill demonstrates, there are certainly many, many other areas where cooperative schemes between the federal government and the state governments are important. For instance, one which is highly topical is the power of the ACCC to implement the price exploitation codes. Last week's decision of the High Court of Australia in Hughes v. the Queen left entirely unanswered the questions—and, indeed, probably will cause some further problems on the horizon—in the area of these cooperative schemes, in particular the ability of Commonwealth officers to administer and enforce these schemes insofar as the powers exercised by the Commonwealth officers arise from state based legislation. So all these schemes that are covered in this legislation are still open to challenge.

We indicate to the Attorney for the record—and I think it is appropriate that we do so—that if he cannot obtain appropriate references of power from the states to make these cooperative schemes effective to overcome the constitutional limitations we will lend our support to a referendum. I think it is fair to say that corporate Australia regards these matters as being of the utmost importance and, indeed, as having the potential to significantly impede economic development. It might be, for instance, that an appropriate amendment to our Constitution would be to insert a part specifically dealing with cooperative schemes. That could clarify the power of the Federal Court to deal with matters arising under these schemes and, indeed, clarify the power of Commonwealth officers to administer and enforce these schemes. In no way would that derogate from states' rights; indeed, it would give effect to the intention and desires of the states who have entered freely into these cooperative schemes. So we put that out there as a matter which we regard as having the utmost importance, as one suggestion of a way to address what is looking to be literally a situation where these important areas of our Constitution will seize up. We note, and we will support, the Attorney in his seeking appropriate references, but I anticipate that it will become necessary to do more. Our suggestion is on the record as an option which the Attorney might pursue.

Question resolved in the affirmative.

Amendments, as amended, agreed to.

Sitting suspended from 5.40 p.m. to 7.30 p.m.