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Wednesday, 1 September 1993
Page: 789


Senator COONEY (4.30 p.m.) —I present the report of the Standing Committee on Legal and Constitutional Affairs on the cost of justice entitled Checks and Imbalances.

  Ordered that the report be printed.


Senator COONEY —by leave—I move:

  That the Senate take note of the report.

This report of the Standing Committee on Legal and Constitutional Affairs deals with the cost of justice in the context of the part played in the legal system by parliament, the executive parliament and the ministry. In the course of looking at that, it deals with the relationship that exists between the parliament and the executive. It says, amongst other things—I will not go deeply into it—that that relationship between the executive and parliament must be looked at to make sense of it in terms of the party system, because it is through the party system that the executive, on the one hand, or the shadow executive, on the other, play their part.

  As it says at the beginning, this report was prepared prior to 30 June this year. Paragraph 1.20 of the report states:

In the Commonwealth sphere, Government is formed on the basis of the support of a majority of members of a single House of Parliament—the House of Representatives. A particular party gains government at a democratic election when a majority of the members elected to the House of Representatives are chosen from that particular party. Australian voters by and large vote for the party rather than the candidate as an individual. Hence the party which gains the majority and forms government has an extraordinary capacity to influence and discipline its members. Its members are also keen in their own right to see their party maintain executive power. Consequently the Executive has, with rare exceptions, been able to impose its will on the House of Representatives.

The final sentence of that paragraph states:

However, the Executive has not always had such success in controlling the Senate.

We are looking at an example of that—and it might not be an unreasonable one—in the present situation in this place. The report goes on to say:

The processes used by the Executive, the Party Room from which it is drawn, and the Parliamentary Committees of that Party, to prepare and refine legislation are of great importance to the fairness, efficiency and cost of the legal system. It is right and proper that those processes should, as far as practicable, be open to public scrutiny.

I think the way this place works and the effect that has on legislation can be better understood if the party system is seen in the light that it casts. The committee went on to recommend that more support should be given by government—I use the word `government' in the sense of the executive and parliament—to the party system in parliament. I think that legislation would be much improved if the committees of the parties, as distinct from the parliament, could be given more support and more resources. Oftentimes the executive of any particular party has the ability to put legislation before the party room but the party room has insufficient resources to deal with that legislation as well as it might.

  The report also says that the parliamentary system—even though the executive has such a vital influence, and properly so, on our system—needs to be strengthened. There is a quote in the report from Mr Justice Brennan of the High Court of Australia—taken not from one of his judgments but from a speech he gave at the 1990 Blackburn memorial lecture—in which he dealt with that point.

  A reading of the report will show that parliament would work better by being given more resources. I do not necessarily mean that money and personnel should be given simply to a particular party or parliamentary committee. I mean that the level of the ability of the personnel made available to the parties in parliamentary committees should be as high as possible. I hasten to add that I do not mean by that statement that the people who look after our committees and look after us in parliament are not of outstanding ability. All I am saying is that there should perhaps be more of them.

  I go on to deal with the selection of judges which has been of some interest in recent times. The point to be made here is that the judges themselves have received some criticism, but it is the executive that appoints the judges. Paragraphs 128 and 129 of the report state:

  It is an unquestioned principle that judges should be independent. It is essential that those who go to court have confidence in the independence of their judges from governmental, political or other community pressures. In addition, it is essential that litigants see those who judge them or their cases as having acted impartially, fairly, courteously and competently.

  It is similarly an unquestioned principle that judges ought to be highly competent. These are matters for the Executive, which bears sole responsibility for the appointment of judges.

That is so. Under the Commonwealth constitution it is for the Governor-General in Council to appoint judges. In effect, that means that it is for the executive, and in particular the Attorney-General, to appoint judges. The committee believes that even though that is the process set down in the constitution, it would be consistent with that position for the process by which judges are appointed to be made more open than is presently the case. That is one of its recommendations.

  The report deals with primary and subordinate legislation and makes points that have been made before. They have been made before because they are true. Legislation, whether from parliament or from some body that makes subordinate legislation, ought to be clear to the people who have to obey it. After all, if we are going to obey the law it is something of an advantage to know what the law says.

  Also, legislation should be as succinct as possible and only made when it is needed. There is a tendency for parliamentarians to get up and either pass or propose legislation as a means of exhibiting the trade that we are in. I suppose everyone is subject to some problems with his trade. Lawyers like to go to court and doctors like to go to the operating theatre because that is what they do. I think parliamentarians like to legislate—and a good thing too—but perhaps we sometimes—


Senator West —If we ever get to legislation!


Senator COONEY —That is right; that is a very good point. It is always worth while asking whether we are legislating at a proper level and at a proper rate.


Senator Sherry —Very slow.


Senator COONEY —It is very slow, but that is the process of the Senate.


Senator Panizza —Democratic process.


Senator COONEY —Senator Panizza says that that is the democratic process and that is true. On the other hand, Senator Panizza would not want to use the statement that it is a democrat process to hold up legislation that is essential to the welfare of the country. It would be a bad thing, in my view, if legislation that was needed for the country was not passed and the country suffered as a result. For example, if the country suffered because of not getting the budget through, whilst the democratic process was operating, the good people of Australia might say, `Have all these great people in the Senate over the other side, such as Senator Patterson'—these people who they know love them so much—


Senator Patterson —Depends which budget they are trying to put through.


Senator COONEY —They might say that Senator Patterson might be not adjusting the proper balance in refusing to pass legislation which is needed to see that things are properly run and properly done for Australia.


Senator Sherry —They will change their attitude if they ever get back into government.


Senator COONEY —That is right. We cannot argue with that. It is clear that the way things look from the government benches is different from the way things look from the opposition benches. That is a matter of balance. I am wandering from my point.


Senator Sherry —You are doing very well; you are still on track.


Senator Chris Evans —It is a very interesting contribution nonetheless.


Senator COONEY —I thank Senator Evans. The next point I want to raise is court fees and charges. Senator Spindler dissented on this and he will no doubt address the chamber at a later time. In my view, courts should be available to all parties and people should not be penalised by way of costs when they want to use the courts. In my view, it is a fundamental obligation of government to provide courts. Again, I use the word `government' in the wider sense. People, whether they be corporations, trade unions, medical associations or anybody else should have access to the courts and should not be penalised at different rates for using them.

  I will leave it at that, except to thank all the members of the committee who contributed to this report. Their names are set out on the frontispiece of the report. I pay tribute to Senator Vanstone, the deputy chair, who did a great deal of work and showed a great deal of patience, which is in contrast to the way she sometimes acts in this chamber. May I say that when she does not show patience, it is only in the best interests of the people.


Senator Patterson —It is warranted.


Senator COONEY —Well put, Senator Patterson. Senator Chris Evans, who is on my left, will make a great contribution to this committee. We should pay special tribute to Senator Giles because she was a magnificent senator and her departure is a great loss to this chamber. Fortunately, Senator Chris Evans, in a different way, has made up for our considerable loss. Senator Kemp—

  Opposition senators interjecting


Senator COONEY —I am saying some nice things about Senator Kemp. Can everybody restrain themselves while I say something nice about Senator Kemp? He has left the committee. I say publicly that I am a bit disappointed that Senator Kemp has left this committee; he should not have done so.


Senator Sherry —Are you sure about that?


Senator COONEY —Yes, I am. I publicly thank him for the work he did; it was great. Senator Julian McGauran was on the committee for a fortnight and made an outstanding contribution. I should not pass over Jim McKiernan without paying tribute to him. Senator Graham Maguire has left; again that is a loss not only to this committee but to the chamber. When Senator O'Chee is here—tremendous. Senator Reynolds has become a member of the committee and is doing a great deal of good work for us. Senator Sid Spindler is not here, but I thank him. Last but not least is Senator Peter Walsh, who had plenty to say as a member of this committee.


Senator Patterson —I bet he did.


Senator COONEY —Senator Patterson is right; he had a great deal to say. I also thank the committee secretary, Paul Griffiths—


Senator Patterson —You had a lot of members on that committee.


Senator COONEY —Yes, they come and go. Whenever they come they do great jobs and whenever they go we thank them. I thank the research staff—James Warmenhoven, Virginia Buring who has been with us since 12 July 1993, and Paul Palisi. I thank the executive assistant, Angela Misic, who has also come and is about to go.


Senator West —Does this say something for your chairing, Barney?


Senator COONEY —It might say something about my chairing. I think Senator Vanstone will make the point that this is a very important report. I would like to hear everybody in this chamber say a word on it—not now, later on. I thank members of the committee and I thank the executive.