Senator GARETH EVANS (Minister for Foreign Affairs) (9.47 a.m.) —The first point is that Mr Orr's letter is not to hand at the moment but it can be obtained and circulated. We will do that. The second point is that I am advised—and we are checking this now—that the expression `adopting some area of common law' as Commonwealth law does have explicit statutory precedence in various places, including in the Crimes Act. We will seek to find an example of some such clause and give it to you in a moment.

  The third matter is about the advice. There is a misunderstanding about the nature of the process involved in drafting legislation of this kind. Those opposite seem to work on the assumption that there are formal written advices prepared in the Attorney-General's Department or elsewhere and which lie behind consideration of each clause. If something is settled and understood doctrine, theoretically and conceptually sound, the notion of picking up a subject area that is otherwise within the Commonwealth's competence and giving it statutory force simply by it being described as `an area of common law'—and if there are precedents for this, it is part of the practice of the Commonwealth over a long period and has not previously been the subject of challenge or assumed difficulty—is not the sort of thing on which we would seek formal written advice. There may be some oral discussion about it.

Senator Vanstone —Are you saying there has been none?

Senator GARETH EVANS —Without going back and checking the archives—that is very detailed—no-one can recall any advice being specifically written on this subject simply because there is no need to in an area in which, for all the reasons I have described, there is no reason to assume there is a constitutional problem. What matters is that the race powers have sufficient vitality to enable the Commonwealth to legislate generally for this area of native title. That is the theory that underlies the whole of this legislation. This is just one other application of that general theory.