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Wednesday, 17 November 1993
Page: 3052


Senator VANSTONE (5.30 p.m.) —If the minister would not mind, could I get a response on that at some later date; it is obviously just a passing interest. I note the minister's point that this was apparently a 4:3 decision; so he had something going for him. It does underscore the risk that we run on behalf of other people and the costs involved in putting through legislation that is risky in terms of its constitutionality when we could take longer and do it another way.

  I cannot help but mention the Taxation (Deficit Reduction) Bill in relation to advice from the chief parliamentary counsel; he was as sure as he had ever been on anything. Of course, on a few occasions the Senate has come to a different view—so has the High Court—from that of the chief parliamentary counsel. Nonetheless, there were so many people saying, `There is a risk in this'. This presents an example of where the government's own counsel was saying that there was a risk. The government proceeded anyway; it lost by only one; nonetheless it lost.

  There could have been a configuration of the Senate such that people were not of a mind to validate. For a wide range of people the commercial consequences of that are very serious. I wonder whether, in the end, we will have to find a more appropriate way of resolving what advice parliament—not the opposition—can have when there is any question as to constitutionality.

  I understand that the government is entitled to get legal advice as to the manner in which it might proceed, that it is entitled to shop around for a constitutional way to do what it wants to do. I have no problem with that. The government is entitled to do that and it is entitled, other than in particular circumstances, to keep that advice to itself.

  The Bankruptcy Act had to be done because none of us spotted that that was going to be unconstitutional. There has been a whole range of these things. The consequences, not just to have us back here but for the commercial community, are very expensive. I suspect that we might need to find a way—perhaps even by way of a particular category of advice that comes from the chief parliamentary counsel—to let parliament now know, not about the options the government has discarded, but about the option we are being asked to follow. In that way we will not have to do this sort of thing and run these sorts of risks. It seems to be a sensible option that someone innovative like the minister might like to take up.