Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

On behalf of the House of Representatives Standing Committee on Legal and Constitutional Affairs, I present the report of the committee entitled Harmonisation of legal systems within Australia and between Australia and New Zealand, together with the minutes of proceedings.

Ordered that the report be made a parliamentary paper

I thank the House. On 7 February 2005 the Attorney-General asked the committee to inquire into and report on the lack of harmonisation within Australia’s legal system and between the legal systems of Australia and New Zealand, with particular reference to those differences having an impact on trade and commerce. The work of the committee on the harmonisation inquiry was unavoidably suspended from June 2005 to March 2006 due to two other urgent inquiries, which the committee conducted in succession: an inquiry into the exposure draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 and an inquiry into technological protection measures exceptions. I would like to thank those who contributed evidence to the harmonisation inquiry for their patience while work on the inquiry was suspended.

The committee was very interested to examine as part of its inquiry the issue of harmonisation between Australia and New Zealand. Australia and New Zealand have a uniquely close and abiding relationship, and it is a relationship that continues to grow closer over time. Over the course of the inquiry, the committee came to the view that this relationship, particularly in the globalised environment that now exists, should perhaps be closer still. Accordingly, the committee has recommended that the Australian parliament invite the parliament of New Zealand to establish a trans-Tasman committee for the purpose of monitoring and reporting on ongoing harmonisation of the two legal systems. This trans-Tasman committee would also explore further options of mutual benefit to the Australia-New Zealand relationship, including the possibility of closer association or even political union.

The committee has also made a number of other recommendations regarding harmonisation between Australia and New Zealand in particular areas. The committee has recommended, for example, that a common currency should be pursued and that harmonisation of the two telecommunications regulation frameworks should be proposed by the Australian government. Other areas where the committee has recommended harmonisation be pursued between Australia and New Zealand include ministerial councils, banking regulation and consumer contracts.

In terms of harmonisation within Australia, the committee examined a number of specific areas under the terms of reference, including the statute of limitations, legal procedures, partnership laws, service of legal proceedings, evidence law and standards of products. The committee also examined a broad range of other areas that were raised in the evidence, such as power of attorney, real estate, personal property securities, the not-for-profit sector and the science industry.

In some areas raised in the evidence, the committee was encouraged to see that harmonisation is already being progressed across the Australian jurisdictions—for example, in personal property securities law. In many other areas, however, it was clear to the committee that more needs to be done. The committee has recommended therefore that the government progress harmonisation in a number of areas, such as mutual recognition of power of attorney instruments, consumer protection legislation, regulation of the not-for-profit sector, statutes of limitation, evidence law and the model Criminal Code. Importantly, at the constitutional level the committee has also recommended that the government progress an amendment to the Australian Constitution in order to overcome limitations to cooperative legislative schemes between the Commonwealth and the states. In all, a total of 27 recommendations are made by the committee in its report.

It is important to note that, since the committee commenced its inquiry in early 2005, there have been significant national developments regarding regulatory harmonisation in Australia. The Council of Australian Governments, for example, has agreed to reduce the regulatory burden imposed by governments across Australia and to identify further reforms regarding regulatory consistency, duplication and overlap. In addition, the recent report of the Taskforce on Reducing the Regulatory Burden on Business identified regulatory overlap and inconsistency as a prominent issue for business, and the government has agreed to recommendations of the task force in this regard.

The committee supports these developments and envisages that its own recommendations will assist the Commonwealth, states and territories by highlighting specific areas of concern that require further harmonisation. The committee believes that its work will make a positive contribution to the progressive streamlining and simplification of regulatory frameworks in Australia and also to the Australia-New Zealand relationship.

I would like to thank all of those who in writing or in person were able to provide their views on legal harmonisation to the committee. The committee appreciated both the quality and the quantity of evidence received from a range of groups and individuals in relation to this technical, complex and wide-ranging inquiry. I would also like to thank the staff of the committee secretariat for their work on the inquiry, particularly the committee secretary, Ms Cheryl Scarlett, and the inquiry secretary, Dr Nicholas Horne. I would also like to thank members of the committee. (Time expired)

John Murphy (Lowe, Australian Labor Party, Parliamentary Secretary to the Leader of the Opposition) Share this | Link to this | Hansard source

Before dealing with the substance of this report, I would like to congratulate the members of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Mr Michael Ferguson, Kay Hull, Duncan Kerr, Daryl Melham, Sophie Mirabella, Nicola Roxon, Patrick Secker, David Tollner and Mr Malcolm Turnbull—albeit he was only on the inquiry for a few days—and particularly the chairman, the member for Fisher, Mr Peter Slipper, for his very great management of this committee and this inquiry. These members brought a wealth of experience to this inquiry from a suitably broad range of backgrounds, and I am grateful for the valuable insight that each has provided on this and many other reports.

I would also like to pay tribute to the committee secretariat, including the committee secretaries, Ms Joanne Towner and Ms Cheryl Scarlett; the inquiry secretary, Dr Nicholas Horne; the research officers, Ms Emily Howie and Mr Thomas Wood; and the administrative officers, Ms Kate Tremble and Ms Jazmine De Roza. Their work is highly regarded. That they are able to produce the very high standard of work that they do in often difficult circumstances is a real tribute to them.

The report, Harmonisation of legal systems within Australia and between Australia and New Zealand, deals with the fundamental tenet of reducing or eliminating inconsistencies between the numerous legal systems that have resulted from our system of federalism. There can be no doubt that the consequences of federalism have included cases of duplicity and complexity. Numerous submissions were provided to the committee detailing absurd situations resulting from a lack of legal harmonisation in Australia. While many may be found in this report, there is one example which deserves special attention. As the report states:

A power of attorney granted by an individual in New South Wales (and probably other States) will not be valid in the Australian Capital Territory. Thus an individual who grants an enduring power of attorney in NSW, relocates to the ACT, and suffers a loss of capacity to make a new grant will not be covered by the NSW power of attorney.

Suffice it to say that wider publicity of this fact could have the potential to surprise a great number of individuals who have taken the trouble to make a grant. This example draws attention to the fact that the operation of the law may have the power to adversely impact the most vulnerable members of our community at a time when those members most need its support.

Understandably, many would not understand the wider implications of the lack of harmonisation in Australia’s legal systems, nor could we expect them to. I have been left in absolutely no doubt that the difficulties or uncertainties that arise from regulatory inconsistencies across jurisdictions may result in unacceptable impacts on ordinary Australians.

There can also be no doubt that the difficulties and uncertainties which result from inconsistencies across jurisdictions may also adversely impact on profit and non-profit organisations. The lack of harmonisation in some areas of law may increase regulatory costs, increase uncertainty and increase comparative disadvantages. The scourge of red tape is ever-present for businesses and not-for-profit groups, without the added burdens that arise from a lack of legal harmonisation. While harmonisation can increase the potential for growth in industry, trade and business, it is also seen as a boon by the Fundraising Institute, the peak national body for the not-for-profit fundraising sector in Australia, which has raised the high compliance costs of its members.

The benefits of harmonisation in specific contexts are readily apparent if we look at the alternatives that would present themselves in current cooperative models. Individual corporations jurisdictions across the states and territories would be an unmitigated disaster for the increasing numbers of corporations that have expanded vertically, horizontally and geographically. Suffice it to say that the national economic interest demands a national Corporations Law scheme rather than an unwieldy set-up. We recognised this in the early 1990s.

While I am broadly supportive of a greater harmonisation of legal systems, I would not be so if harmonisation were to be used as a guise to extend the Commonwealth’s regulatory reach by stealth. Regrettably, many may feel some degree of cynicism towards this report in the light of the government’s use of the corporations power to move into state business in a major way through its Work Choices legislation. That is why I say this: unified goals should not be an end in themselves, and the costs of unification should always be balanced against the benefits.

That is why I am happy to support this report’s approach of looking at matters on a case-by-case basis and the need to carefully evaluate the need for, and costs and disadvantages of, harmonisation in each area of law. This much is apparent from the report’s recommendations, which call for an investigation into greater harmonisation in banking regulation frameworks, succession law, debt collection, civil debt recovery, stamp duty, partnership laws, consumer protection, electrical product safety, hazardous substance reporting— (Time expired)

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The time allotted for statements on this report has expired. Does the member for Fisher wish to move a motion in connection with the report to enable it to be debated on a later occasion?

I move:

That the House take note of the report.

In accordance with standing order 39, the debate is adjourned. Resumption of the debate will be made an order of the day for a later hour this day.