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Saturday, 18 December 1993
Page: 5100


Senator GARETH EVANS (Minister for Foreign Affairs) (10.29 a.m.) —It must be the meaning of section 80 of the Judiciary Act and section 4 of the Crimes Act that the common law, as picked up and applied, has the force of the law of the Commonwealth. Otherwise any exercise by a court or anyone else of the authority conferred by these sections would be contestable, would be challengeable, because it would not be a proper exercise of judicial authority or the other authority conferred by this clause. The effect of these provisions must be to treat the common law, whatever it is, as here defined and picked up, as having the force of the Commonwealth law.


Senator Bishop —`Whatever it is'. That is the acid test.


Senator GARETH EVANS —Senator Alston has said that the common law, by definition, is variable. So whatever the common law is at any given time has to be a matter for scrutiny and judgment at that particular time. That is why I used the phrase `whatever it is' because it is variable in content. But whatever its content may be at a particular time, it is picked up and applied and has the force of Commonwealth law under the relevant provision of the Crimes Act, under the relevant provision of the Judiciary Act, and that will be the effect of it under clause 11 of this bill.