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PARLIAMENT—HEALTH INSURANCE AMENDMENT (REVIVAL OF TABLE ITEMS) BILL 2009—LEGAL ADVICE—ORDER FOR PRODUCTION OF DOCUMENT

Senator Cormann, pursuant to notice of motion not objected to as a formal motion, moved general business notice of motion no. 637—That the Senate—

 (a) Notes that:

 (1) the Minister for Health and Ageing told the House of Representatives on 29 October 2009, that the Government had legal advice that the Health Insurance Amendment (Revival of Table Items) Bill 2009 was unconstitutional, that it should not have been introduced in the Senate and had not been appropriately passed;

 (2) the Minister also told the House of Representatives that the Government was "happy to provide that legal advice" (9.59 am, 29/10/2009);


 (3) on 17 November the Senate ordered "that there be laid on the table by the Minister representing the Minister for Health and Ageing in the Senate, by no later than 5 pm on 17 November 2009, a copy of the legal advice referred to by the Minister on 29 October 2009, indicating that the Health Insurance Amendment (Revival of Table Items) Bill 2009 was unconstitutional" under section 53 of the Constitution;

 (4) in response, on 18 November the Minister for Health and Ageing tabled a letter stating that the legal advice would not be provided to the Senate on the grounds that it could "prejudice the Commonwealth's position in the event of future legal proceedings"; and

 (5) advice from the Clerk of the Senate makes it clear that section 53 of the Constitution is non-justiciable and "[t]herefore there cannot be any legal proceedings which might be prejudiced by disclosure of advice to the government on its interpretation of section 53".

 (b) Considers that release of a copy of the legal advice referred to by the Minister on 29 October 2009 is in the public interest.

  (c) Orders that there be laid on the table by the Minister representing the Minister for Health and Ageing in the Senate, by no later than noon on 24 November 2009, a copy of the legal advice referred to by the Minister on 29 October 2009, indicating that the Health Insurance Amendment (Revival of Table Items) Bill 2009 was unconstitutional.

Question put and passed.

Statement by leave: Senator O'Brien, by leave, made a statement relating to the motion.