Page 3528 - Week 11 - Thursday, 19 September 2013

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Question resolved in the affirmative.

Bill agreed to in principle.

Detail stage

Bill, by leave, taken as a whole.

MR RATTENBURY (Molonglo) (4.56): by leave: I move amendments Nos 1 to 4 circulated in my name together [see schedule 2 at page 3541]. This is an area of some complexity. I have listened to Mr Barr’s comments quite carefully, and I think this is an area where it is perhaps lawyers at 20 paces. It is a tricky one because the scrutiny committee has raised an issue and Mr Barr has just outlined in some detail his views on why that is not the case. The advice I have is different advice, and that is the spirit in which I put these amendments up—that is, to take on board what the scrutiny committee have identified and seek to find a way through that.

The amendments are to change an existing section in the act and a proposed new section in the bill that essentially replicate those existing provisions in a new context. The issue the amendments address was raised by the scrutiny committee and concern an important legal principle. In Gypsy Jokers, a case arising from South Australia, High Court Justices Gummow, Hayne, Heydon and Kiefel accepted as a general proposition that legislation which purports to direct the courts as to the manner and outcome of the exercise of their jurisdiction is apt impermissibly to impair the character of the courts as independent and impartial tribunals. That is the issue at hand. It is not the role of this place to dictate the orders a court may make in a matter that comes before it.

In South Australia v Totani the High Court invalidated the South Australian legislation that provided that the court must on application by the commissioner make a control order against a person—the defendant—if the court is satisfied that the defendant is a member of a declared organisation. Members can see the similarity of the provision we are debating, because if a court is satisfied of X then it must do Y. The fact that the court has to be satisfied of slightly more elements which are procedural and factual in nature is of no consequence and the fact that merits review of the prerequisite steps is available is also completely beside the point.

Indeed, in Totani, Justice Hayne at paragraph 196 explicitly made the point that the availability of review of other steps in the process is not determinative and that the particular provision needed to be considered on the basis that the preceding steps had been validly executed. I make the observation that the response to the scrutiny committee, as I said, seems to be debatable. Clearly there is sufficient similarity with the South Australian provisions that were invalidated by the High Court to warrant a close consideration of this issue.

There are arguments as to why the provision could survive a challenge. Certainly Mr Barr has touched on some of those this afternoon. On the other hand, it is difficult to refute the claim that, under the provision, the court is required to act at the behest of

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