George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I move opposition amendment (1) on sheet 7252:

(1) Schedule 1, item 2, page 5 (after line 15), at the end of Division 3B, add:

32F Sunset provision

  This Division ceases to have effect on 1 January 2013.

I am not going to repeat the observations I made in my speech in the second reading debate in which I foreshadowed this amendment. Suffice to say that the effect of this amendment would be to sunset the operative provisions of the act to 31 December this year. The opposition propose this amendment for reasons that have been recited by me and indeed Senator Wright in the contribution she just made: given the significance and complexity of the High Court's decision and the very large range of programs, many hundreds of programs, which are potentially affected by it, and given my lack of confidence in the legal effectiveness of this bill to repair the constitutional gap that the High Court identified last week—a view I share with Professor Anne Twomey, Professor of Constitutional Law at the University of Sydney—it seems to me to be a prudent and appropriate course for the parliament and, in particular, for the government to have an opportunity to take more thorough advice on the effect of the High Court's decision and to consider which of the many programs set out in the proposed regulation require a specific statutory foundation. That can be done in the spring sitting of parliament. So, according to the opposition's amendment, this temporary solution would operate for some six months into the future. As I say, we have doubts about its efficacy, but for the time being it is the best the government has been able to come up with, and we do want to assist the government and indeed future governments in dealing with the problem the High Court has identified.

Can I respond quickly to Senator Wong's observation in closing the second reading debate. Senator Wong has told me that the government has advice that, if the legislation were to be sunsetted, no contract could be validly entered into which involved obligations that would take effect beyond the sunsetting period. That is not, in my view, correct advice. It is inconsistent with the decision in the Bardolph case, which I referred to before. The minister's rejoinder to me in her response—and, in fairness to Senator Wong, she is not the author of that rejoinder—is inaccurate and reflects a lack of understanding of the principle at work. I might also say, Minister Wong, that your observation that the extent to which the executive power to spend is limited by the section 51 heads of legislative power is unsettled is also wrong. In fact, that is the very issue that was resolved in the Pape case and the very issue that lay at the heart of the High Court's decision last week in the Williams case. Indeed, the proposition that you say was unsettled was in fact a proposition advanced by the Commonwealth of Australia in argument in the Williams case as being a settled proposition of constitutional law. I do not know who is advising the government in relation to this matter and I do not mean any disrespect to officers, but the advice that has been relied upon in the Senate is, to those who have read the case and studied it and studied the arguments in it, demonstrably wrong. The opposition is confident that the sunsetting of this legislation is the appropriate course and will not put at risk any Commonwealth contractual obligations which might extend beyond the sunsetting period and will not put at risk any of the programs, including the chaplaincy program, which are the subject of the bill.

To anticipate, I also say that the opposition does not support the Greens amendment. Let me explain why. The Greens amendment, as I understand it, contains two elements. The first of them is unnecessary because that is what the bill itself does, whether sunsetted or not sunsetted. The second element of the amendment, which requires specific legislative support for identified Commonwealth programs—that is the law already. That is the law the High Court confirmed last week in the Williams case. One does not need to write into a statute a proposition of constitutional law that the High Court has lately declared to be the case. Any future government, whether it be a Liberal-National Party government or a Labor-Greens government, will be bound by the same legal principles as the High Court announced in the Williams case. The extra words that you propose, Senator Wright—if I may say so with respect—are unnecessary, because the High Court has told us that the law is consistent with the statutory words that you propose to include. For those reasons the opposition will not support the Greens amendments. For the reasons I earlier recited, the opposition thinks that the objective that you, Senator Wright, and your colleagues in the Greens party are trying to achieve is best achieved by the sunsetting measure which is the subject of my amendment. For the reasons I have explained, any advice that to sunset this clause would put contractual obligations or payment obligations at risk is simply wrong.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

As I foreshadowed in my second reading speech, the Greens do not support the amendment proposed by the opposition, because our advice is that the sunset clause would potentially prohibit the making of ongoing contractual arrangements that would take effect beyond the end of the year. This would have an adverse effect on existing programs, potentially curtailing their ability to continue their activities and functions beyond the next six months. Notwithstanding the assurances of Senator Brandis and the coalition that his legal advice is right and the legal advice provided to the Greens is wrong, I am not satisfied it is appropriate to take a risk on that. One of the reasons this legislation has been introduced into the parliament is to create certainty in a climate where there is a great deal of uncertainty about the continued funding of some of these programs. The Greens are not willing to take the risk of an outcome whereby the government's ability to enter into, under existing programs, further contracts that would go beyond the end of the year is jeopardised. For that reason the Greens will not be supporting the opposition amendment.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

I acknowledge to the Greens that this is an element of law far beyond my capabilities, but I suspect the legal advice they are talking about is the same legal advice the government has been given. With no disrespect to the government advisors, their legal advice is not always the very best. Senator Brandis has had a very distinguished legal career and he is a Senior Counsel.

I am simply urging the Greens to take note of the good legal advice that Senator Brandis is offering for free. I suggest, with no disrespect to whoever is advising the government, that Senator Brandis's advice—and he has briefly explained the nature of it—should be followed. We all want the same thing, but the coalition are concerned that we do not get into this same problem again. There are elements of this bill which must make the Greens, as they make us, very nervous—some of the very wide powers that are being given to the government in the rushed through approach to dealing with this issue.

I did not intend to take part in this debate, but I think the Greens are on the same track as us. For some reason, however, the government has been able to convince them by putting forward some advice. I just think that, if we do not want to be back here within the next six months, amending this bill yet again—as we do with most of the legislation this government ram through the parliament—it is better to pass the opposition amendment today and then have another look at it within the next six months. If we are all happy with it in six months—there is nothing political about this; we are trying to help the government get to the conclusion we all want. It is just a procedural thing. Our suggestion of a sunset clause would, I think, help the whole chamber, the whole government and the whole of Australia get to where we all want to go.

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

I draw the attention of the chamber to the fact that the government's track record in relation to this whole issue and the implications of the Pape decision by the High Court do not instil a lot of confidence in the way the government handles these matters. The government told us for months that it was very confident about the legal sustainability of its Malaysia people-swap deal and then the High Court threw it out. The Pape decision was some years ago now. Senator Wong is the minister who was at the table during the Senate Finance and Public Administration Legislation Committee's estimates hearings. I asked questions of the Minister for Finance and Deregulation and the Secretary of the Department of Finance and Deregulation about the checks and balances that are in place to make sure that, when the Commonwealth goes into new areas of expenditure, there are appropriate heads of power—so that the new areas of expenditure are consistent with the Commonwealth's constitutional powers to expend taxpayers' money.

This Labor government has done nothing since the Pape decision to make sure it has its house in order. Now we have this legislation before us. We understand the need to facilitate speedy passage and we are doing that. But we have before us legislation which, quite frankly, some very eminent constitutional lawyers, including Professor Anne Twomey, have expressed serious concerns about. We are offering an opportunity here to say, 'Okay, let us have the quick fix, but let us have the opportunity to revisit this in a more considered fashion.' The sunset clause amendment moved by our colleague the shadow Attorney-General, himself a very eminent and senior lawyer in Australia—a Senior Counsel, as Senator Macdonald has observed—has provided an opportunity to resolve this.

I thought it important to place on record that the performance of the finance minister, in particular, and the finance department in dealing with these issues since the Pape decision has not given us a lot of confidence that the government is properly dealing with these matters. There are of course serious issues with this bill as well.

The CHAIRMAN: The question is that opposition amendment (1) on sheet 7252 be agreed to.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

We now move to the Australian Greens amendments, to be moved by Senator Wright.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Australian Greens amendments (1) to (3) on sheet 7251 together:

(1) Schedule 1, item 2, page 3 (line 26), omit "the regulations", substitute "an Act, or the regulations if those regulations are made before 1 January 2013".

(2) Schedule 1, item 2, page 3 (line 28), omit "the regulations", substitute "an Act, or the regulations if those regulations are made before 1 January 2013".

(3) Schedule 1, item 2, page 3 (lines 29 and 30), omit "the regulations", substitute "an Act, or the regulations if those regulations are made before 1 January 2013".

As I indicated in my speech on the second reading, these amendments are designed to ensure that, from 1 January 2013, any new program must be established in legislation. Initially, this will set the bar appropriately high, consistent with the principles enunciated by the High Court, and then allow time for all interested parties to consider carefully what regime should be instituted for future programs. In such a way we can work together to achieve an appropriate considered response which will have effect in the future, enshrining an appropriate degree of parliamentary scrutiny of executive spending of public money.

The CHAIRMAN: The question is that Australian Greens amendments (1) to (3) on sheet 7251 be agreed to.

Bill agreed to.

Bill reported without amendment; report adopted.