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Tuesday, 1 December 2015
Page: 9515

Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (21:26): I have read Professor Craven's article. I have read a lot of commentary on this bill by a number of constitutional lawyers, some of whom have opined that it would not survive a constitutional challenge and others of whom have expressed the view that it would. But the point I would make to you is that the article that you quote was published on 30 June. Since 30 June this bill has undergone very considerable change and, I might say, very significant narrowing in order to address the very point that Professor Craven made about an earlier iteration of the bill—that is, in order to ensure that it does not effect, either de jure or de facto, a vesting of judicial power in a minister. That is the whole point of these amendments, because, if it did effect a vesting of judicial power in a minister, that would be what lawyers call a chapter 3 problem—a problem of the kind explained by the High Court in the 1950s in the boilermakers case and lots of subsequent authority. So, the whole architecture of this bill is designed by using the principle of renunciation by conduct rather than ministerial determination in the event that section 33AA or 35 were to be involved. The whole point of the architecture of the bill is to avoid that very problem.