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Monday, 20 December 1993
Page: 5236


Senator VANSTONE —by leave—I thank the minister for what he has offered. Obviously, whatever the parliament gets to amplify the knowledge that is at hand for all parties is of some benefit. But I express some concern. When I put my initial questions to the minister about this matter, he was somewhat flippant and indicated that, as far as he was concerned, there was not much advice around about this matter. I am not trying to inflame the debate at all. However, Senator Evans wants consideration from this side for the difficulties he faces; so I am just asking him to have some consideration for senators on this side when we later get slightly different responses to answers he has given us. He has to consider what element of good or bad faith we might attribute to that.

  The minister says he will see whether he can put together some bits and pieces of advice. He says he wants to keep his advice to himself because it is in anticipation of litigation, which I quite understand. I think I have used the phrase, `This bill is a dead-set ringer for a High Court challenge'. It is no surprise to me at all that he does have advice—which is why I asked the question in the first place—and I was somewhat surprised previously to hear his answer that he did not.

  I just hope that some of the people who are supporting this bill consider what they will do if it is struck down. I put to Senator Evans that, if he is going to put together bits of the advice for us to look at, presumably in anticipation of litigation, he will not include the bits that create doubt. So what he gives us will be, quite frankly, less than balanced and perhaps not as useful as it might be.

  I understand how on plenty of occasions governments have said that they need to keep advice for a whole variety of reasons—and perhaps in anticipation of litigation is an accepted one. I do not think it is. But on this occasion, I put to the minister that he take back to his colleagues the view that, because this piece of legislation is so important—and as he says there is some urgency to get it through—they need to get it through and they need it to be valid. There is no point in getting it through and it not being valid. In fact, it would be just a disaster with the minister giving longer time for what he might call `the forces of darkness' to come out against this bill. That is what the government will do if it passes invalid legislation.

  On that basis, I would have thought that, if we want to sort these problems out and if the government is determined to have this particular response to Mabo No. 2 rather than another one, it is in the government's interest, in the interests of those who want this particular piece of legislation—I do not; I think there is another way to go—to put that advice on the table so we can see the problems.

  If the government is sure that this is the appropriate response, let us see the legal advice that the government has so that we on this side can make a judgment. I know that Senator Evans will say, `You've already made up your mind'. But what about letting some other constitutional experts—the wider legal profession—look at this and make an assessment as to whether we are raising clause 11 as some form of delay in the debate or whether there is a genuine fundamental problem with this bill. The government would be better to find that out sooner rather than later.