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Thursday, 14 September 1972
Page: 843

Senator DURACK (Western Australia) - I am disappointed that the speech that we heard last night and again today from Senator James McClelland followed a pattern which has become rather familiar in speeches from the honourable senator when dealing with Bills which are in the charge of the Attorney-General (Senator Greenwood). It is a most serious matter that is before the Senate and, therefore, I should have thought that more of the honourable senator's time would have been better spent in dealing with the subject and the serious arguments that he says he intended to deliver, rather than spending so much time on what was really a personal attack on the Attorney-General in particular and on the Government in general. The allegation on the Government surprised me. I was not surprised at the attack on the Attorney-General because that seems to be the usual line of argument in a discussion of legal matters, not only from Senator James McClelland but also from the Opposition generally.

The attack that somehow or other the present situation is due to ineptitude on the part of the Government is very strange because one thing that certainly is clear in this problem is that it has existed since 1940 at least. If my political history is correct, for 8 years of that period regulations and ordinances - it being wartime there was a very great spate of regulations particularly - were promulgated by a Labor government. Many of them, if not all, would have offended the Seat of Government (Administration) Act in the same way as the Full Court of the Supreme Court of the Australian Capital Territory the day before yesterday held that the Trespass on Commonwealth Lands Ordinance 1972 breached the provisions of that Act. So any attempt to make cheap political capital at the expense of the present Government because of this unfortunate situation is completely misapplied and represents a complete misunderstanding of the reasons for the judgment and the history of the manner in which ordinances and regulations have been notified in the Commonwealth Gazette for more than 30 years. As I said, for 8 years of that period there was a Labor Government which would have been equally guilty, if any guilt can really be attributed to any government on a matter so technical as this.

Senator Webster - They are very quiet on that point.

Senator DURACK - They are very quiet, because there is no answer to it.

Senator Gair - You are underlining the hypocrisy of the whole thing.

Senator DURACK - It certainly reveals hypocrisy to a very considerable extent. I do not wish to minimise in any way the serious nature of legislation such as this which is before the Senate this afternoon. I agree that when Parliament is asked to pass legislation to validate laws which have been held to be ineffective, inoperative or invalid, we have a most anxious question presented to us. The Attorney-General, I think quite rightly, has pointed out on several occasions over the last 24 hours the distinction between legislation which is purely retrospective, retroactive or ex post facto - whatever big words one uses between legislation which is designedly and intentionally directed at creating a legal obligation in relation to a past situation and alter what was the legal result of that past situation. When the Parliament deliberately and intentionally does that there is a very clear breach of some fundamental constitutional issues.

This Bill is not of that order. It is a Bill to validate laws which everyone had thought for 30 years were valid and effective but which, because of a technicality discovered by the judges who constituted the Full Supreme Court of the Australian Capital Territory the other day, are deficient in a very technical fashion. There may be, in logic, a very fine line here. I am the first to concede the problem because I think it is enormously important that we as legislators should bear in mind that where we are concerned only with the validation of a law we are in fact dealing with past events and we are technically changing a legal situation. It is true that people who would have this technical defence available to them as a result of the legislation before us will no longer have that technical defence available to them. So I do believe that this is a matter which must be faced by us with great concern.

It is only in the most exceptional circumstances that we as a Parliament would be justified in passing legislation of this character. I frankly express my own general distaste for legislation of this character, but the fact remains that we are not political or legal theorists or academics; we are here charged with the responsibility of government; we are here charged with making at times very hard practical decisions. I suggest to the Senate that it is in that context that we should be facing up to these issues, not being concerned with what are pretty academic discussions of whether this BUI is retrospective or retroactive or offends some academic principle.

It is an unfortunate fact of life that sometimes governments and parliaments are faced with the sort of situation that confronts us in regard to this Bill this afternoon. There is nothing new about the problem. It is one which, as I have said, many governments and many parliaments have faced. In the short time that J have been in this Senate, this is the third occasion on which we have had to face the same situation. I have had previous experience of it as a member of a State parliament. I cannot remember the number of times but I certainly remember having to face the same situation on several occasions and being confronted with validating bills as a result of technicalities, technical faults, revealed largely, but not always, by legal decisions.

It is of great importance so far as this debate is concerned that we should have regard to our recent experiences in this matter. It is very interesting to consider the attitude of the Australian Labor Party on recent occasions in the Senate. As I have said, today Senator James McClelland has placed firmly his opposition to this legislation on a very high principle, namely, that it is changing and affecting established legal rights or obligations, and the legal character of past events. At an earlier stage this afternoon during debate on one of the various procedural motions that we dealt with, Senator Byrne referred to a situation which arose some months ago when the Senate disallowed an ordinance relating to evidence and the fact - it was very interesting as he recited it - that the Leader of the Opposition, Senator Murphy, introduced a holding Bill to deal with a very similar type of situation to the one facing us now.

However, I have particularly in mind a Bill to validate a whole host of orders and decrees that had been made under the Matrimonial Causes Act over a period of some 10 years or more by registrars or masters of Supreme Courts throughout Australia. As a result of 2 decisions of the High Court of Australia last year it appeared that if not all, at least a great many of such orders were invalid. I would have thought from what members of the Opposition said, here today and last night, that in those circumstances they would have found themselves in the most delicate and difficult situation. Many people had been subjected to penal provisions as a result of the enforcement of these orders. Many people would have been put in gaol for non-compliance with such orders, all of which had been found to be invalid by the High Court of Australia.

What did the Government do? Naturally, in this situation, a responsible government would have acted in the way that this Government and this Attorney-General acted and have brought in a validating Bill. Such a Bill came before the Senate and the motion for its second reading was debated in this place on 11th November 1971, not 12 months ago. When the second reading debate resumed on that day, Senator Wheeldon spoke on behalf of the Australian Labor Party. It is very interesting to note that Senator Wheeldon was the only speaker for the Opposition in that second reading debate. Senator Murphy, who spoke today in such resounding terms about the abrogation of these great rights, did not speak in that debate. Neither did Senator James McClelland who is so outraged about the Attorney-General and his attitude. Neither of those 2 gentlemen bothered even to speak in this Senate on this vitally important subject, as we understand it now. I am pleased to say that I spoke in that debate and expressed, as I have expressed it today, my distaste for this type of legislation and the necessity for it. However, it is very interesting to note that the only member of the Labor Opposition who spoke in the debate on that Bill which presented exactly the same issue as this Bill does, was Senator Wheeldon. What did Senator Wheeldon say? He said:

This Bill is designed merely to rectify the situation and to ensure that those persons who would otherwise be adversely affected by the lack of validity of the proceedings shall be protected.

It was designed merely to do that. Well, that is all that this Bill is to do. It is merely to rectify a situation which has been thrown into complete doubt and disarray over a period of 30 years.

Senator Cavanagh - This is not the same thing.

Senator DURACK - Senator Cavanagh, I have listened' to what further words have been said on behalf of your Party.

Senator Cavanagh - I am concerned about what you are doing now. This Bill convicts people.

Senator DURACK - Well, the previous Bill was validating a situation in which many men had been put in gaol. They would have had rights to claim damages for having been put in gaol over a period of many years. That is what that Bill did. There is no argument about it, no matter what you might say now.

Senator Webster - Did Senator Cavanagh protest on that day?

Senator DURACK - He said nothing at all. That was a very fundamental question, exactly as this is. There cannot be the slightest distinction. Senator Wheeldon went on to say:

The Australian Labor Party is not opposing the Bill. Indeed, the Party does not have a position on the matter at all.

The Australian Labor Party 'does not have a position on the matter'. Senator Wheeldon also said:

In any event, I doubt whether any member would feel that his conscience constrained him to vote against the validating of decrees which have been made already under the existing Act.

Quite rightly, and in full justice to him, Senator Wheeldon believed that no member of the Australian Labor Party felt that his conscience extended to being concerned about such a matter. Therefore it is very strange that the consciences of so many members of the Australian Labor Party have suddenly become so tender in a period of a few months. I wonder, Senator Webster, why that would be so?

Senator Webster - Do you think it could be political?

Senator DURACK - Well, I hesitate to make personal attacks on members of the Opposition but I think there is reason for us to conclude that there may be some political element in the Opposition so forcibly put by Senator Murphy and Senator James McClelland against this Bill this afternoon. That is one example - an outstanding and very recent example - of a validating Bill being introduced and passed with the support of all members of the Senate. It was passed for eminently practical reasons, no matter whether it may have breached - I do not think there can be any doubt about that - technical adherence to the principles about retrospectivity of legislation.

Senator Cavanagh - You are not concerned about that matter.

Senator DURACK - Of course I am concerned. I am very concerned about legislation of this type, but that is not the issue on which we have to determine the matter. We have to determine the issues on the practical problems that are presented in a situation of this kind. Each case has to be decided upon its merits. I have indicated to members of the Opposition that in recent months they have supported a Bill in exactly the same terms.

Senator Cavanagh - There was no similarity between the 2 Bills.

Senator DURACK - There was, but I could talk until I was blue in the face endeavouring to convince Senator Cavanagh that the matters were similar. I have already given my reasons. I am sure that they will commend themselves to open minded members of the Senate. There are many other precedents where, because of the practical exigencies of the situation, parliament has been required to pass legislation validating matters which have dealt with past events - not only the Bill which I have mentioned but also a Bill I can recall being introduced only a few weeks ago by the Tasmanian Government to validate the operations being undertaken by that Government in regard to Lake Pedder. Legal doubts had arisen about the validity of the Government's action in regard to filling Lake Pedder and the works that the Government was undertaking. Legal actions were commenced or were sought to be commenced by citizens because of alleged technical breaches. Before a court decision could be given the Tasmanian Labor Government introduced and passed through the Parliament a Bill to validate what had been done.

About 12 months ago in Western Australia, shortly after the Labor Government took office, it introduced and passed through the Parliament in the course of one day a Bill not just to validate but to deprive entirely a mining entrepreneur of the legal rights which he was claiming against that Government in respect of prospecting areas in the Pilbara. A gentleman by the name of Lang Hancock was claiming the rights against the Government in respect of areas on which he had spent millions of dollars prospecting. He had commenced action to have his rights declared by the Supreme Court and the

Labor Government of Western Australia swept them away in less than 24 hours. It deprived him of his rights. In the face of these instances and attitudes of the Labor Party to this type of legislation, how hollow and hypocritical is the stand which has been taken this afternoon by Senator Murphy and Senator James McClelland in relation to the Bill.

I have indicated my concern and distaste at this sort of legislation. I will take a little time to express the reasons why I support the Bill and why I believe that it is absolutely vital that the Bill should be passed by the Senate and the Parliament as soon as possible. I hope that Labor senators will at least do me the justice of listening to my reasons, even when I state that I am prepared to concede that undoubtedly as a result of the legislation there will be changes in the legal position in which some people may find themselves. The Bill validates ordinances and regulations. Let us not forget that it validates regulations as well as ordinances. Perhaps the Bill is even more important as far as regulations are concerned. It validates ordinances and regulations which have been made by the Commonwealth Government for more than 30 years. Under the various ordinances and regulations a multitude of rights will have been created, duties and obligations will have been imposed and penalties will have been imposed. If counsel for people who have been charged had thought of this highly technical argument which commended itself to the judges of the Supreme Court recently, their clients would have been acquitted. They would not have suffered any penalty. I suppose fines totalling hundreds of thousands of dollars have been paid over the 30 years.

There have been impositions on people, and there have been rights given to people. When the Attorney-General introduced the Bill he indicated some of the Ordinances under which people have acquired and have had the benefit of many important rights, financial and otherwise. I think the ordinance relating to workers compensation was one that was mentioned. If that is invalid all the moneys which have been received and all the moneys which have been paid over the 20 or 30 years in which the ordinance has been in operation would not have been rightly paid or rightly received. The situation is not a simple one in which a few people who may have been arrested in front of Parliament House on 20th and 23rd July and whose cases have not yet been heard will be affected by the legislation. The people affected will be those people who have been charged and perhaps dealt with by the courts over a period of 30 years. If we do not want to take the argument as far as that, we might consider the position of people in the Australian Capital Territory who have been charged with breaches of other ordinances and other regulations which occurred on 20th and 23rd July and since those dates. No doubt there have been many arrests under the motor traffic ordinances. No doubt there are many charges of drunken driving or dangerous driving which perhaps have not yet been dealt with. There may well be other more serious offences. If there are to be distinctions in regard to the people for whom the Labor Opposition has such solitude-

Senator Georges - Who is making the distinction?

Senator DURACK - That is what the amendment does. The amendment moved by Senator James McClelland is concerned only with persons charged with offences arising out of incidents outside Parliament House on Thursday, 20th July 1972, and Sunday, 23rd July 1972, where those charges or incidents arose out of or are related to the purport of notification in the Gazette of the Trespass on Commonwealth Lands Ordinance. Those people are the only ones about whom the Opposition is expressing any concern. It is making fish of one and fowl of hundreds. Surely it would be the greatest mockery of parliament and the greatest affront to those affected by the Bill if we were to add a qualification of that kind to the general matter of validation of ordinances and regulations. The validation will go back over a period of more than 30 years.

I believe that when Parliament is faced with a practical problem which has dimensions such as this problem has it is a matter simply of making a common sense judgment as to the fairest way of handling the situation. As I have said, the Bill that has been brought forward by the AttorneyGeneral commends itself to me as being the only practical and sensible way of dealing with a situation such as the one that has been presented to us by these events. It is a situation which has arisen from a decision of a court. Frankly, I can only say that the, decision was one which surprised me. It is certainly a decision which I think any lawyer - I do not know what would be the views of a layman - would concede was based on a most technical ground. Opposition senators have talked about the ineptitude and so forth of the Government. I wonder whether they have read the reasons given by the judges of the Full Court of the Supreme Court of the Australian Capital Territory for their decision. I think it is most unlikely that anybody could have foreseen such technical objections not only as submissions to a Supreme Court by counsel, but also as finding favour with judges of a Supreme Court.

I think the very technical nature of the fault that has been found with these ordinances and these regulations and the manner of their notification, as well as the practical problems I have already outlined, is a highly important consideration for the Senate. What has been said to be at fault with the Trespass on Commonwealth Lands Ordinance? It has nothing to do with the making of the ordinance by the Government or the content of the ordinance. All of these matters of substance were strenuously challenged by counsel and dealt with by the judges of the Full Court. What the judges found was that the Seat of Government (Administration) Act provides that before an ordinance can be effective or operative the fact that it has been made must be notified in the Government Gazette and the place where copies of it can be obtained must be indicated. There is, of course, good reason for this.

One could be forgiven for thinking that perhaps the Government failed to put a notice in the Gazette. But that was not the position. A very full notice was in fact but in the Gazette. It was headed 'Notification of the Making of Ordinances'. I do not know how there could be any doubt whatever in the mind of anybody about that indicating that an ordinance has been made. In the schedule underneath the notice is a description of the ordinance. There was no finding that there was an inadequacy in the description of the ordinance or the reference number of the ordi nance. But 2 of the Supreme Court judges held that the title 'Notification of the Making of Ordinances' did not indicate that an ordinance had been made. I am glad to note from his reaction that Senator Byrne is as bewildered as I am that that heading of that notice in the Gazette is not as clear as day to everybody that an ordinance has been made. I do not want to impugn any more than is necessary the reasoning of the judges of the Full Court. All I want to say is that they arrived at a decision which it must be conceded was based on highly technical grounds and which, to most people, was highly surprising. This is the basis on which Senator James McClelland came into this chamber and, with all the panache that he has in making sanctimonious criticism of the Attorney-General and the Government, accused the Government of ineptitude. The other reason found by one of the judges was that the notification in the Gazette that copies could be purchased through the mail from the Assistant Director of the Australian Government Publishing Service at a Post Office box number in Canberra or over the counter from the AGPS Book Centre in Canberra did not satisfy the requirement that there must be an indication of the place where the ordinance could be obtained or purchased.

Senator Cavanagh - I should think so.

Senator DURACK - Senator Cavanagh said that he should think so. I wonder whether he would have thought of any such proposition before having read this judgment.

Senator Georges - Because he did not think of it does not make it any the less wrong now.

Senator DURACK - The Opposition is accusing the Government or its officers of ineptitude, yet this is something of which nobody would have thought, least of all Senator Georges.

Senator Cavanagh - If I want one from where can I get it?

Senator DURACK - If Senator Cavanagh wants one he can apply to the Assistant Director of the Australian Government Publishing Service at the box number listed or he can get it over the counter from the AGPS Book Centre in Canberra. Is Senator Cavanagh so unintelligent that he would not be able to twig on to the fact, after having already seen 'Australian Government Publishing Service' in clear print, that the initials 'AGPS' refer to the Australian Government Publishing Services?

Senator Cavanagh - I live 1,000 miles away from Canberra.

Senator DURACK - That has nothing to do with the decision. If Senator Cavanagh reads the decision he will understand that it was argued that the letters AGPS do not indicate the place where copies of the ordinance may be obtained, despite the fact that the address given is 'AGPS Book Centre, Canberra'. The meaning of the letters AGPS is clearly spelt out in the line above as being the Australian Government Publishing Services. That is an indication of the extreme technicality of the reasoning of the Supreme Court. But that was the decision of the Supreme Court.

Senator Georges - Is the honourable senator questioning it?

Senator DURACK - Yes, I am questioning it. 1 am entitled to question it. I do not want to impugn the legal ability or reasoning of the judges concerned, but I do want to point out that their decision was a highly technical one and one which nobody had thought of putting forward previously, despite the fact that some fairly competent counsel have practised in the Supreme Court of the Australian Capital Territory over the years. This applies not only to legislation of the Australian Capital Territory but also to all regulations throughout Australia. It is a point that has escaped the attention of every Queen's Counsel in Australia for 32 years.

Senator Withers - And the Regulations and Ordinances Committee, of which Senator Cavanagh is a member.

Senator DURACK - And the Regulations and Ordinances Committee, yes. All I am doing is pointing up the highly technical nature of the decision of the Supreme Court that the legislation is invalid. That is a highly relevant matter at a time when we have been asked, as a Parliament, to validate ordinances which have breached.

Unfortunately in the practical affairs of government it is inevitable that situations of this type will arise from time to time. When they do it is incumbent upon the Parliament and the responsible Govern ment to bring forward reasonable legislation to cope with them. It seems to me that there is no alternative but to take this action in a situation where the rights and obligations of thousands of people have been affected over a period of 30 years or more. People have acted on the assumption that these laws were correct. Rights and obligations of citizens have been the subject of a multitude of legal decisions. People have been subjected to penalties or have benefited by the payment of moneys. In other words they have enjoyed rights as well as obligations under countless ordinances and regulations. Therefore, the clear obligation of this Parliament is to render certain what has, on a very technical matter, been thrown into uncertainty.

The ACTING DEPUTY PRESIDENT (Senator Wood) - I call Senator Keeffe.

Senator Byrne - Mr Acting Deputy President-

The ACTING DEPUTY PRESIDENT - No, I am sorry, the call will go to Senator Byrne.

Senator Keeffe - I thought that I was listed as the next speaker.

The ACTING DEPUTY PRESIDENT - Yes, you are but an honourable senator from another Party rose. Senator James McClelland has spoken from the honourable senator's party.

Senator Keeffe - I regret your attitude, Mr Acting Deputy President.

The ACTING DEPUTY PRESIDENT - Senator Keeffe says that he regrets my attitude. I resent that remark. I am trying to be fair. Senator James McClelland has spoken on behalf of the Australian Labor Party and Senator Durack has spoken on behalf of the Government. It is quite true, Senator Keeffe, that you are on the list of speakers. When Senator Byrne stood on behalf of the Australian Democratic Labor Party I thought it right that an honourable senator from that Party should speak. I do not know what honourable senators intend to do until they stand. I want honourable senators to realise that when I am in the chair there is no personal animosity towards any honourable senators when I call an honourable senator. I call Senator Byrne.

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