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Tuesday, 21 December 1993
Page: 5426

Senator ALSTON (Deputy Leader of the Opposition) (3.46 p.m.) —Let me suggest to the minister how it should be. In the first instance one should seek to encourage, wherever possible, the right decision. The government is seeking to encourage the court in this instance to do whatever it thinks is fair, reasonable and just. The unsuccessful litigant is then put to the time, trouble and expense of going to appeal. I would have thought that is entirely the wrong way to proceed.

  I will just give an example of what I think is offensive about clause 79(a)(v). When subparagraphs (i) to (v) state

(i)   the Court; or

(ii)   another court; or

(iii)   the NNTT; or

(iv)   a recognised State/Territory body; or

(v)   any other person or body

that effectively covers the field. But if one referred to `any proceedings before any person or body', I bet everyone else would have said, `That is outrageous because it is cast far too wide'.

  The government has tried to give this a veneer of respectability by nominating all the formal courts and tribunals. Under the line, in effect, it has then come up with this catch-all phrase which the minister is unable to indicate is designed to facilitate access to any particular person or body; it is just an omnibus clause. That is one classic example. It encourages the court to draw conclusions of fact that it thinks proper, not which are proper or which might objectively be regarded as proper. It is effectively encouraging it to do anything it likes.

  Paragraph (c) uses the words `adopt any recommendation, finding, decision or judgment'. Again, that involves not just fact; it can involve opinion or anything one likes that one might want to call in aid. I suggest to the minister that the end result of it is that the government is loading the decision in favour of those who do not want to have regard to the formalities and rules of evidence to the point where it is much more likely an incorrect decision will be made.

  An unsuccessful litigant cannot afford to go on in every case. I suggest that the government is weighting the scales of justice very unfairly in one direction. If that is the case, I would like the minister to at least have the courage to say so.