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Friday, 6 December 1985
Page: 3157


Senator HAINES(1.17) —As Senator Durack has already pointed out, the intention of this Bill is to repeal sub-section 69 (3) of the Judiciary Act 1903-a sub-section which has been substantially unaltered since the passage of the original Act and which was, indeed, a useful provision at a time when there were few arrangements for legal aid. What appears to have happened is that, following the Maher case, the Government had a sudden rush of blood to the head and decided that it ought to do something about it fairly quickly. I suspect that it has grossly overreacted. I realise that the Government is not disputing that it does have some actions under Article 14.3 (d) of the International Covenant on Civil and Political Rights; but it is arguing that the existing legal aid system provides a more appropriate mechanism and that sub-section 69 (3), which I understand has recently been described by a member of the judiciary as an historical anachronism, can be disposed of, primarily because it is open to abuse by people who have been refused legal aid elsewhere, as, of course, happened in the case of Mr Maher.

I am not at all sure that the Government has justification for removing this section simply because of its concern at the opportunities for abuse. The problem in the Maher case arose less because sub-section 69 (3) was to be to be used than because there were significant deficiencies in bankruptcy law. Those deficiencies allow people such as Mr Maher to tie up their assets in such a way that, while they do not qualify for legal aid through the normal channels, they can use sub-section 69 (3) to become, essentially, technical bankrupts. It seems to me that changes should be made at that point-to the technical bankruptcy loophole-rather than at the sub-section 69 (3) end of the problem. We, therefore, are quite happy to support the concerns expressed by the Law Council of Australia with regard to the somewhat excessive nature of the solution proposed by the Government. The Law Institute of Victoria too has expressed to us and elsewhere its concerns. In addition, the Standing Committee for the Scrutiny of Bills, in its Alert Digest No. 11, expressed concern that an existing statutory right is being taken away-something that most legislatures are loth to accept unless there is a very good reason. Quite frankly, we do not believe that that reason exists in this case so the Australian Democrats, supporting the arguments raised by the Law Council of Australia and the Scrutiny of Bills Committee, support the amendment to be moved by Senator Durack which, essentially, retains the last resort provisions of sub-section 69 (3) for the appointment of defence counsel where appropriate.