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Monday, 20 December 1993
Page: 5234

Senator VANSTONE —I seek leave to ask the minister a question—

Senator Gareth Evans —A serious question?

Senator VANSTONE —It is a serious question; all I can do is tell him that in advance.

Senator Gareth Evans —Can you look me straight in the eye and say that it is?

Senator VANSTONE —Yes, I can.

  Leave granted.

Senator VANSTONE —There has been a discussion this morning about clause 11. As the minister will recall; when this matter was first raised with him, the initial question put to him was whether he had sought any legal advice with respect to this matter. As I understand it, the minister made some remarks about not having checked the archives. But he clearly indicated that in recent times the government did not see a problem with the operation of clause 11 of the bill.

  Subsequent to that, because we on this side think there is a serious problem with clause 11, a number of matters were raised: whether it could be void due to uncertainty; its application vis-a-vis state laws; the mistakes that were made with the Racial Discrimination Act in terms of not understanding section 109; and that, despite the fact that the minister has raised some examples where the Commonwealth has adopted common law, as I understand it he was not able to raise an example of where the Commonwealth has adopted common law using the words of section 109, `the force of law of the Commonwealth'. That is a distinction I think we had some difficulty getting through. I am not trying to have this debate now; I am just trying to list for the minister the points that—

Senator Gareth Evans —You have just reminded me that I might have it ready to table.

Senator VANSTONE —The minister raised some examples where the common law is incorporated by definition or for convenience sake by using the law of the states, but not an example where it has been by section 109. Subsequently, another case has come to mind—I think it is called In re Uren—where the court held that a law has to be enacted for it to have the force of the law of the Commonwealth. The question is raised then whether that simple one line saying that we give the common law the force of law of the Commonwealth is enough because that may not enact the Commonwealth law. In re Uren—and I invite the Minister to have a look at it—might actually mean that we do have to codify in statute any law before it is able to overtake state laws.

  The minister obviously knows a lot more about this than I do because he has raised the question. There has been an ongoing debate about whether we can have state and federal common law. This particular case argued that, if we were to say that a body of Commonwealth common law existed, it would not be possible to use that under 109 to override a state statutory law.

  Clearly, a number of serious issues with respect to clause 11 have been raised. Accepting the fact that the minister either did not see those issues or think they have the importance we think they have, has he, subsequent to those matters being raised, sought some legal advice? Will he agree, prior to this matter coming back on, to give all members of the parliament the opportunity to see that legal advice well in advance so that, when we do come to clause 11, we will not just go through a rehash of `You think this; I think that' but we will use all the resources available to the parliament to inform ourselves as to the operation of clause 11?

  I ask that not just because it would be a sensible way to proceed with the debate—and obviously it would be more informed—but, as the minister presumably understands, if he loses on clause 11 in the High Court of Australia, he has lost the whole thing. So it is a vitally important and central aspect of this bill that was dealt with at some length—and then postponed. I would not want other senators to think that this was just some flippant constitutional issue. This goes to the very guts of the bill. This is similar to the regulations in the Australia Card—bingo, we lose those, we lose the whole bill. This matter is in the interests of the whole chamber. So I ask: has the minister sought legal advice? If he has not, will he, and will he share that legal advice with the parliament?