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Thursday, 6 December 1973
Page: 2594


Senator GREENWOOD (Victoria) - This Bill gives effect to what must be accepted as a desirable objective. It seeks to promote law reform in the Commonwealth. There is a need for reform of the law and court procedures, for the simplification of legal methods and for greater efficiency in administration of the law. All States have law reform commissions or law reform bodies of one sort or another. Indeed, the Australian Capital Territory has a Law Reform Commission which was established in 1971.

This Bill establishes a Law Reform Commission and its functions may shortly be described as the Bill sets them out, namely, to review the laws of the Commonwealth or of the Territories with a view to systematic development and reform of the law. This objective is expressed to include modernisation of the law to bring it into accord with modern conditions, the elimination of defects in the law, the simplification of the law and the adoption of new or more effective methods for the administration of the law and the dispensation of justice. The Commission has a function of considering proposals for the making of new laws. It has a function of considering proposals relating to the consolidation or repeal of laws and I think that most acceptably it has the obligation to consider proposals for uniformity between territory and State laws.

I do not set out in detail the way in which the Commission is to function because I have some comments to make on that at a later stage. I want to look at this measure with 2 objectives: Firstly, the way in which a Law Reform Commission for the Commonwealth will fit into the pattern of law reform bodies throughout the country; and secondly, our belief that this Bill in its present form has objectionable features which ought to be cured. What I will comment by way of criticism of the measure is not to indicate that the Opposition will oppose it, but certainly at the Committee stage the Opposition will seek amendments to the Bill. Discussions have taken place informally between the Attorney-General (Senator Murphy) and representatives of the Opposition parties and I am happy to acknowledge that the Attorney-General has agreed to the amendments which have been put forward.

In terms of the context of law reform in Australia at any time existing legislation requires review. Expressions in legislation passed m an earlier day often reflect the quaintness of terminology of an earlier day and also the inappropriateness and lack of applicability of earlier concepts. There is always m the law at any stage the effect of piecemeal amendments and sometimes the philosophy and concepts of earlier legislation do not accord with modern conditions. In the Australian context, and I speak of the Australian context as distinct from the context of the States, there is not the same need for law reform activity because essentially the law of the Commonwealth of Australia is statute law passed by this Parliament. Law reform, as it has developed in Australia, has developed in the States because the handing down to the law of Australia of the laws of England has meant that there is still embodied in our law, not only as part of the statutes but also as part of the old concepts of common law and equity, many notions which are out of date. It is in that area that law reform commissions and law reform committees, on either a full time or a voluntary basis, have done much of their work.

A great deal of work still needs to be done in that area. But that is not the area in which law reform work in the Commonwealth of Australia would be done. That law reform work would be essentially in terms of the examination of statutes. I think it could fairly be argued that the reform of that type of statute law is essentially the work of departments, the work of the draftsmen and, above all, the work of the various governments which seek to give expression to political philosophies or to embody in new laws their concept of the public interest. That is the way in which changes have been made in the law in the past. I suspect that there will be changes of that character in the future. I mention one area of law in the Commonwealth which I think is greatly in need of re-examination and comprehensive change to make it accord with newer concepts. I refer to the Income Tax Assessment Acts. They are Acts which, over the years, have grown from a basic concept. They are now compendious, tremendously difficult to understand and, for all except those expert in dealing with taxation and financial matters, a labyrinthine mystery

But is that the area in which law reform commissions can do the most effective job? One might question whether it is. Is it the area in which any government can give the time, notwithstanding the instructions which may be given to departments or parliamentary draftsmen, to effect the changes which are really desired? One must have doubts as to whether it is the most appropriate method. I know that the previous Government established and the present Government is continuing the committee of inquiry which is examining the whole tax structure of this country. I trust that there will emerge from the recommendations of that committee completely new. tax legislation which takes account not only of income tax but also of other forms of taxation and that thereby we shall have some of the changes to which we are looking forward. But whether that is one of the matters in relation to which a law reform commission is the appropriate body must be a question of doubt. I notice that the Attorney-General is to have the power- I think it is a proper power for the AttorneyGeneral to have in this area- to indicate the matters which the Law Reform Commission is to examine. We will be suggesting in the course of the Committee stage of the debate that it should be broadened to enable the Commission itself to suggest to the Attorney-General matters which it should investigate. We will look with interest at the developing work of the Australian Law Reform Commission.

I think it is necessary also to recognise that in the Australian context, the Commonwealth context, there has been an adoption of many of the concepts which are derived from our essentially English heritage. With the movement of England into the European Economic Community undoubtedly there will be some changes and departures which will lead to the development of an even more distinctive body of Australian law than there has been in the past. Likewise with the development of an Australian national sentiment there is a need for Australian laws to reflect Australian conditions and aspirations as expressed by the political parties in the Parliament. Thirdly there is, of course, always a need- this was an area on which I think the Attorney-General concentrated in his second reading speech- for the laws to be responsive to the needs of society. I repeat that this can be expressed through the work of law reform commissions or in the legislation which a government enacts through the Parliament. Law reform reports, of course, have the advantage that they can be informative because they reflect the state of the work which has been put into the examinations by persons who are equipped for the task. They can, by their research background, provide material for public debate and consideration. Particularly where the work has been done in non:political and noncontroversial areas they can win an acceptance which might not otherwise be won if proposals have emanated from a government which may be alleged to have a partisan objective in the presentation of such proposals. Those are areas in which we hope that the Law Reform Commission will perform constructive work.

I have noted that the law reform work of the, I think, 7 law reform commissions or law reform bodies which exist throughout Australia has been performed essentially in the area of private law- the rights of citizens as between themselves. The area of public law, of course, has a greater political content. Yet it is essentially the area of public law in which the Commonwealth has legislated. May I say that what I hope will emerge in due course is not a proliferation of law reform commissions- because this Law Reform Commission will be, I think, the eighth law reform commission to be established in Australiabut one national law reform commission which will co-ordinate the work of the existing law reform commissions and which will possibly, by the quality of its work and the manner in which it operates, tend to reduce the number of existing law reform bodies and to ensure that the work which is done is of such a character that it can be used by both the Commonwealth and the

States in appropriate areas of interest. That is, of course, the objective to which many persons who have written in the learned journals on this subject in recent years have looked forward.

I do not know whether the Attorney-General took this matter to the Standing Committee of Attorneys-General with a view to ascertaining whether co-operation could result in some national body being established with the concurrence of the States which would have coordinated the work which is being done by different individuals in different States and which necessarily involves a great deal of duplication. I am sure that there would be initial pressures which would resist such a proposal. But I do feel that it is an area in which, if the desire can be manifested and the determination expressed, and if a willingness to give and take is evident, some national body of the character I have in mind could emerge. It is something which I commend to the Attorney-General as a fruitful field of endeavour.

Having said those things in the context of the law reform position in Austrafia- it does not of necessity in any way acknowledge the vast volume of writing which has occurred in recent times- I turn to the provisions of this Bill. It is a Bill which, as I have said, on the face of it gives expression to a desirable objective. But it is a Bill which has in its present terms, as I have said- I am happy to acknowledge that the AttorneyGeneral is prepared to see them removed in the course of the Committee stage of the debatesome provisions which we regard as frightening. The Bill enables the appointment of a Law Reform Commission. That Commission, in the discharge of its functions, will have certain powers. It is the width of those powers, the scope of those powers and the purposes to which they are to be put which is positively frightening. The Attorney-General will recall that some 60 years ago both the High Court and the Privy Council entertained much argument in a case in which the Attorney-General of the Commonwealth was the active participant and in which it was sought to justify the act of a royal commission in this country which had wide powers that could have enabled it to move into virtually any and every area throughout Australia. As the Privy Council said in its judgment, the Commonwealth has no general power over the liberty of the subject. What I found frightening in this Bill was the enormous power and scope which its provisions gave to the Commission to intrude into the ordinary activities of citizens of this country.

May I illustrate what I have in mind. The Commission has a power to investigate any

Commonwealth law and any proposals of the Attorney-General of the day for the making of new laws. In the course of this investigation the Commission is to have very wide powers, not merely facilitatory powers but compulsory powers to an extraordinary degree. It is to have an inquisitorial function of virtually unlimited extent. Moreover, the Commission was not left to the determination by itself alone of how it would perform its functions. It is expressly required in the terms of the Bill to comply with- and I use the words of sub-clause ( 1 ) of clause 8:

.   . any directions of the Attorney-General in connection with the performance of its functions or the exercise of its powers under this Act.

I may say that as a result of discussions with the Attorney-General outside the chamber that he seeks to promote a ministerial control. But a ministerial control of that character is a control which tells the Commission with all these powers how to act.


Senator Murphy - But not in regard to the formulation of its reports or recommendations.


Senator GREENWOOD - I agree. I expressly acknowledge that the provision excludes the recommendations and report-making functions of the Commission. But in the ordinary way in which the Commission gets its information and exercises its powers it is under the obligation to submit to what the Attorney-General directs. I offer to the Attorney-General the suggestion that if that type of ministerial control is desired to be exercised it is appropriate that it be exercised in the departmental area where the AttorneyGeneral has the requisite authority. But the very nature of a commission is to give to some statutory body an independence of ministerial control. If we are to have established commissions which are subject to ministerial control, one might ask: What is the purpose in establishing commissions; why not use the functions of the department? I regret that this provision is to be found in any legislation because to me it is the antithesis of what ought to be the obligation of a commission when it is established by Parliament to use its own judgment in the way it carries out its function.

One looks further at what the Commission may do. The Commission may inform itself in such manner as it thinks fit. It may conduct public or private hearings. It is not bound by the rules of evidence. It may administer an oath or affirmation. It may summon any person in this country to appear and to give evidence and to produce documents. It may retain in its possession any documents placed before it. A person summoned to appear is liable to be fined if he does not appear. A person summoned to appear is liable to be fined if he does not answer questions put to him or produce the documents required by the Commission. Moreover, members of the Commission are protected against defamation actions. Transcripts of proceedings may be published and no action may be taken' by any person who may be named or defamed in the course of proceedings. Absolute privilege is, in effect, conferred upon the Commission's proceedings. The proceedings of the Commission are not judicial proceedings but witnesses are declared to be subject to the same liabilities as witnesses in proceedings in the High Court. The question therefore arises whether a member of the Commission can deal with a witness for alleged contempt. I am happy, as I have said, that these provisions will be removed for their scope is positively alarming in terms of what are the traditional functions of a law reform body.


Senator Byrne - They are going out, Senator.


Senator GREENWOOD - I acknowledge that.


Senator Byrne - It is only an academic exercise.


Senator GREENWOOD - I will say something on that aspect in a moment. There is no provision entitling persons summoned to appear before the Commission to be represented by counsel or by a solicitor. Some of the problems which inquisitorial activities of Senate Select Committees have encountered do not appear to have been resolved or attempted to be resolved. There is potential in this field for drastic interference with the rights of citizens with insufficient justification. What is proposed in the terms of the Bill as they are at the moment is a mammoth inquisition able to be directed by the AttorneyGeneral if he so chooses and able to roam at large in any area of prospective Commonwealth law making- and, having regard to the scope of Commonwealth power as envisaged by the Prime Minister (Mr Whitlam) and his AttorneyGeneral, that is virtually the whole range of law making in Australia.

I illustrate what can occur. An AttorneyGeneral may desire to have a law enacted relating, say, to control of the media. He is empowered to refer to the Commission such a proposal and to require the Commission to consider the making of such a law. The Commission, of course, may call before it any person from whom it can become informed. It may call proprietors, sub-editors, journalists- anyone it feels can help it- or as it may be directed by the AttorneyGeneral of the day to call them. The Commission may ask questions and require the production of documents which, without reasonable excuse, the person called before the Commission shall not fail to answer or produce. There is no limit, except relevance, to the Commission's powers if it considers, or if the Attorney-General has directed, that the documents be produced or the questions answered. The defence of 'reasonable excuse' which is expressly available to a person objecting to answer or to produce is uncertain, meaningless and in practical terms of little protection.

I give another example. If the AttorneyGeneral considers that there should be an amendment, say, to the electoral laws to limit or control donations to political parties- there have been suggestions about this from time to time this year- there is no bar to the Commission being directed or itself deciding to seek details of the donations to political parties and to require the evidence to be placed before it. The Commission may call for documents, books, writings and keep them for such time as it considers reasonable. The Commission may call directors, union secretaries and anybody else to whom it seeks to direct questions. What 'reasonable excuse', having regard to the tremendous width of the Commission's powers, can such people offer to refuse to produce books and papers or to answer questions? Their only course, if they wish to refuse, is to hope that subsequently a court will uphold their refusal. Who knows how the words reasonable excuse ' will be interpreted?

It would appear from an examination of clause 36 of the Bill that the only time a refusal is reasonable excuse is when the question or request for production is irrelevant to the type of inquiry. When these powers are read with the ministerial powers which are contained in clause 8 they are positively frightening. If one examines the Law Reform Commission Bill of the Australian Capital Territory, the projected law reform Bill in Victoria and other law reform Bills throughout the Commonwealth one finds that none has the scope or width of powers contained in this legislation. I repeat that I am glad that the Attorney-General is to remove them, after we had discussions as to what are the Opposition's objections to a measure which otherwise has our support.

I advert to what Senator Byrne said by way of interjection a short time ago. He was associated with the discussions that we had. The honourable senator suggested that this was a mere academic statement on matters which are now to be taken out of the Bill. I do not regard it as an academic statement at all. I believe that if we are not alert to measures of this character then by default we allow them to be accepted and to become part of the law of this country. I say to the Attorney-General that when we find similar provisions to these in his Racial Discrimination Bill and in his Human Rights Bill- provisions which give this tremendous inquisitorial power to commissions to interfere with the rights of ordinary citizens- this is the forum and this is the Parliament in which a voice must be raised to object to that sort of thing being done. It is interesting to be expressing strongly held views on the liberty of the subject to a Senate of 60 members when only 7 senators are present. On other occasions I have expressed the view that in 23 years of Liberal-Country Party Government the cause of liberty in this country was not in any way sullied. We are a free country and the rights and freedoms of citizens here are as well preserved and as well protected as they are in any country. But one of the problems of the absence of assaults on or challenges to essential liberties is that people become careless about their existence. They fail to appreciate the challenges that are made to freedoms when they occur.

I say to the Attorney-General that a power given to a commission of individuals- notwithstanding the desirable objective of the appointment of that commission- to enable it to call any person in the country to appear before it, to require persons to answer questions about virtually any subject at all and to produce whatever documents, books, writings and papers they have, is comparable to the powers which were used by the Secretaries of State in the 18th century and which John Wilkes was able to challenge so forcefully through the courts. Battles which were won a long time ago have to be fought again if we are to preserve essential individual rights. I regret the right of the Commission to inquire and to exercise the compulsory powers which are contained in" this Bdi- and shortly to be removed from the Bill- should be finding their way into other legislation. They have no place in the law of this country.

Having said those things, I acknowledge the desirable objectives which this legislation is designed to achieve. When the Commission is established I hope it has a role which is constructive and productive. I do not believe that it needs those powers which were sought to be given to it to enable it to perform its role in a worthwhile and useful way. The Opposition will not oppose the second reading of the Bill but we acknowledge that amendments will be moved in the course of the Committee debate.







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