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Tuesday, 15 March 2005
Page: 86

Senator ELLISON (Minister for Justice and Customs) (6:20 PM) —Opposition amendment (2) seeks to put into effect recommendation 3 of the Senate committee report. I might just refer to that again. It states:

Recommendation 3

2.63  The Committee recommends that proposed subsection 23(9)(a) be amended, in order to provide guidance as to the circumstances under which the president should exercise the power to remove a member, and reconstitute a tribunal, ‘in the interests of justice’ ...

‘In the interests of justice’ is a crucial phrase here. Of course, the government has accepted recommendation 3 and, in government amendment (5), the government seeks to put into effect that recommendation. The government acknowledges what the opposition is endeavouring to do in its amendment but prefers its own amendment, for a number of reasons. In the debate on opposition amendment (2), I might refer also to the arguments for government amendment (5) in order to shorten the debate.

Firstly, opposition amendment (2) provides more prescription or direction than we believe recommendation 3 sought. Unlike the government’s proposed amendment, the opposition’s draft includes a list of factors which is exclusive, technical and, we believe, more difficult to follow. The difference between the two amendments is not just in length, when you see the opposition’s amendment on one side as opposed to the government’s. However, we do believe that the opposition’s list may not cover all the potential circumstances and may so risk leaving the president unable to act when it would be appropriate to do so.

As the Administrative Review Council and the tribunal have acknowledged, if there are specific criteria there is a risk they will not be sufficiently flexible to deal with particular circumstances that could arise. The Administrative Review Council has also acknowledged that expressions such as ‘in the interests of justice’ are only workable if they are stated in fairly broad terms—which we believe the government has done. ‘In the interests of justice’ is not a new expression; it is contained in a range of acts, generally to do with the exercise of a court’s power to transfer proceedings. The expression may encompass a diverse range of circumstances. For that and other reasons, the government believes it is best to keep that expression in broader terms.

The opposition has argued long and hard for retention of the requirement that the president should be a Federal Court judge. The government has agreed to retain that requirement. Surely it follows that if all the arguments for keeping this requirement are true then a Federal Court judge can exercise his power without a legislative straitjacket.

The government’s amendment, on the other hand, does not provide that legislative straitjacket. The government believes that, when you take into account the views of the Administrative Review Council and the tribunal and the fact that ‘in the interests of justice’ has been incorporated in other legislation, the amendment is more in the vein of ‘guidance’, which is referred to in recommendation 3 of the report of the Senate Legal and Constitutional Committee. The government’s proposed amendment states:

In determining whether a direction covered by subsection (9) or (11) is in the interests of justice, the President must have regard to the objective of proceedings that are conducted in a manner that is fair, just, economical, informal and quick.

The government is looking at the objectives there. The opposition amendment is more prescriptive and exhaustive. For those reasons, the government appreciates what the opposition is endeavouring to do but prefers the drafting of its own amendment (5).

Senator Ludwig —Has the term ‘in the interests of justice’ been judicially considered? I imagine it would have been.

Senator ELLISON —Without any evidence to back me up, I imagine it would have been. I am shooting the breeze a bit, but I would be amazed if it has not been. We can take that on notice and provide some examples to the committee—I might not be able to get that to the committee immediately—but I would be very surprised if that term has not been taken into consideration in the course of legal proceedings.