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Saturday, 18 December 1993
Page: 5100


Senator BISHOP (10.30 a.m.) —Senator Gareth Evans has just made my point. When I first stood I said that clause 11 should fail because of its uncertainty. The common law is uncertain. Senator Alston made the point clearly; Senator Evans has just admitted it. It is unknown; it is uncertain, and we do not make laws for uncertainty. Senator Evans has deliberately used the words out of clause 109 to attempt to cover the field, to put in place unknown concepts and say that they have the force of law.

  The analogy that Senator Evans was drawing by saying that there is precedent where particular parts of the common law had been picked up and given statutory authority relates to very specific areas of law which in effect are codified by the statute. I will give Senator Evans an example. The concept of unconscionable conduct was given statutory force in the Trade Practices Act but that was not an attempt to say that all the common law of Australia shall be given the force of law because all the common law of Australia is unknown, even if Senator Evans tries to say as it applies to native title, because the things that apply to native title are far more than this particular piece of legislation.

  When I spoke earlier I gave the minister examples of how it can affect the operation of policing of the state, of bushfire protection legislation; there is the whole area of fisheries—


Senator Vanstone —The criminal code.


Senator BISHOP —As Senator Vanstone says, the criminal code. There are whole rafts of state legislation which are affected by native title and Senator Evans was trying to say that the common law shall have the force of law and, therefore, where it is in conflict with the state legislation, the state legislation will be struck down.


Senator Gareth Evans —Subject to clause 7.


Senator BISHOP —Subject to clause 7, which states:

  This Act is not intended to affect the operation of any law of a State or a Territory that is capable of operating concurrently with this Act.

Quite clearly, it is not capable of operating when clause 11 is enacted. That is the whole point.

  Then in the government's earlier submitted amendment, the government was trying to say that it would reserve the status of the state laws by allowing them to continue to operate despite clause 11. The government then suddenly woke up to the fact that that would not work because it was trying to amend the constitution; so the government is now desperately struggling to find a way to put something into this legislation that will, in effect, allow state legislation to remain effective.

  I am putting to Senator Evans that it cannot be done because of the words in clause 11. I would like to hear from Senator Evans an analysis and some opinions that tell him that if the government continues to use the words that are in clause 11 it can have another form of words that can in fact save the operation of state laws and, indeed, preserve our whole concept of federation.