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Friday, 30 March 1984
Page: 965


Senator GARETH EVANS (Attorney-General)(10.12) —I appreciate the force of Senator Durack's comments and I do so particularly against the background of knowing how much thought and consideration he has personally given this issue over the last few years. I treat anything he says in this area, if not always in some others, with a great deal of respect. In fact I am quite sympathetic to the idea of developing more extensive explanatory memorandums as the primary vehicle through which additional or supplementary material can be conveyed to the courts simply because, more than anything else, of the accessibility argument so far as legal advisers and others are concerned.

There are examples of this kind of approach to the drafting of explanatory memorandums now in the pipeline. The best example I can think of is the explanatory memorandum we are now writing for the Australian Bill of Rights which may not see public light for some considerable time. It is an example of a very discursive explanatory memorandum designed to give a great deal of guidance to the courts as to what is intended by some rather innovative drafting. The explanatory memorandums as they are presently drafted are remarkably useless documents in the sense that they often merely repeat, very often in language just as obscure to the layman as the original legal text, stuff which is perfectly apparent from the face of the Bill rather than adding in any way to one's comprehension of it.

Where I have reservations and where I think I disagree with Senator Durack at the moment, although I will certainly give it more thought, is in the idea of Parliament formally endorsing the explanatory memorandum. It seems to me that one then gets into an almost infinite regress situation where if Parliament is endorsing it, it will want to satisfy itself about every word in it and we will almost have the potential for Committee stage debates on the text of the explanatory memorandum. I am not sure that we have fully thought our way through the implications of that development. Certainly it is something I am happy to keep very much in the forefront of my mind as experience develops in relation to this particular legislation and I look forward to continuing constructive bipartisan consultations in doing so.