Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary for Social Inclusion and the Voluntary Sector) Share this | Link to this | Hansard source

I table two supplementary explanatory memoranda relating to the government amendments to be moved to this bill. The memoranda were circulated in the chamber on 13 May and on 16 September 2009.

By leave, I move government amendments (1) to (29) on sheet PM308:

(1)    Schedule 1, item 2, page 11 (lines 4 and 5), omit “, or alternatively, order pre-trial disclosure (see section 23CD)”, substitute “order pre-trial disclosure (see subsection 23CD(1))”.

(2)    Schedule 1, item 2, page 11 (line 15), omit “section 23CD”, substitute “subsection 23CD(1)”.

(3)    Schedule 1, item 2, page 12 (line 1), omit the heading to section 23CD, substitute:

23CD  Pre-trial and ongoing disclosure

(4)    Schedule 1, item 2, page 12 (line 2), before “After”, insert “(1)”.

(5)    Schedule 1, item 2, page 12 (after line 19), at the end of section 23CD, add:

        (2)    The accused must give the following to the prosecutor as soon as practicable after the accused’s first pre-trial hearing before the Court in relation to the indictment:

             (a)    if at the trial the accused proposes to adduce supporting evidence of an alibi—notice of particulars, prepared in accordance with the Rules of Court, of that alibi;

             (b)    if at the trial the accused proposes to adduce supporting evidence that the accused was suffering from a mental impairment (within the meaning of section 7.3 of the Criminal Code)—notice of particulars, prepared in accordance with the Rules of Court, of that impairment.

Note:   A party may also be required to disclose additional information as a result of other laws (for example, subsection 44ZZRO(2) of the Trade Practices Act 1974).

(6)    Schedule 1, item 2, page 13 (line 33), before “The”, insert “(1)”.

(7)    Schedule 1, item 2, page 14 (line 5), omit “basis”, substitute “general basis”.

(8)    Schedule 1, item 2, page 14 (line 11), omit “basis”, substitute “general basis”.

(9)    Schedule 1, item 2, page 15 (lines 1 to 8), omit paragraphs 23CF(i) and (j).

(10)  Schedule 1, item 2, page 15 (after line 12), at the end of section 23CF, add:

        (2)    Paragraph (1)(a) and subparagraph (1)(b)(ii) do not require the accused to disclose details of the accused’s proposed defence.

(11)  Schedule 1, item 2, page 15 (line 23), omit “23CF(k)”, substitute “23CF(1)(k)”.

(12)  Schedule 1, item 2, page 16 (line 20), omit “section 23CD”, substitute “subsection 23CD(1)”.

(13)  Schedule 1, item 2, page 16 (line 23), omit “subsections (2) and (3)”, substitute “subsection (2)”.

(14)  Schedule 1, item 2, page 17 (line 3), omit “or”.

(15)  Schedule 1, item 2, page 17 (lines 4 to 6), omit paragraph 23CH(2)(f).

(16)  Schedule 1, item 2, page 17 (lines 12 to 14), omit subsection 23CH(3).

(17)  Schedule 1, item 2, page 18 (lines 18 and 19), omit “A copy or details of any information, document or other thing is not required to be given under an order under section 23CD”, substitute “Nothing in this Subdivision requires a copy or details of any information, document or other thing to be given”.

(18)  Schedule 1, item 2, page 20 (lines 1 to 34), omit section 23CL, substitute:

23CL  Effect on legal professional privilege and other privileges and duties etc.

Litigation privilege not an excuse for failing to comply with pre-trial disclosure requirements

        (1)    A party is not excused from disclosing material under this Subdivision on the basis of litigation privilege claimed by the party in relation to the material.

Note:   The party can still be excused from disclosing material on the basis of advice privilege (that is, privilege that would, if the material were evidence to be adduced in the Court, protect against a disclosure covered by section 118 of the Evidence Act 1995).

        (2)    This Subdivision does not otherwise:

             (a)    abrogate or affect the law relating to legal professional privilege; or

             (b)    amount to a waiver of legal professional privilege.

Note:   This means, for example, that legal professional privilege will apply for the trial.

Other privileges and duties unaffected

        (3)    This Subdivision does not abrogate or affect:

             (a)    the operation of the National Security Information (Criminal and Civil Proceedings) Act 2004; or

             (b)    the law relating to public interest immunity.

        (4)    This Subdivision does not abrogate or affect the law relating to any duty of a person investigating the accused to ensure that information and other things are disclosed to the prosecutor or the accused.

Definitions

        (5)    In this section:

legal professional privilege includes privilege (however described) under Division 1 of Part 3.10 of the Evidence Act 1995, or a similar law of a State or Territory.

litigation privilege means privilege (however described) that would, if the material were evidence to be adduced in the Court, protect against a disclosure covered by section 119 of the Evidence Act 1995.

(19)  Schedule 1, item 2, page 21 (lines 1 to 38), omit section 23CM, substitute:

23CM  Consequences of disclosure requirements

Orders to ensure non-compliance does not unfairly affect the other party

        (1)    The Court may make such orders as it thinks appropriate to ensure that:

             (a)    any failure by the prosecutor to comply with an order under subsection 23CD(1) does not cause unfairness to the accused; and

             (b)    any failure by the accused to comply with an order under subsection 23CD(1) does not prejudice the prosecutor’s ability to efficiently conduct the prosecution.

        (2)    However, the Court must not make an order under subsection (1) if it would result in an unfair trial.

Certain evidence cannot be adduced at trial unless there is earlier disclosure

        (3)    If the accused fails to comply with subsection 23CD(2) in relation to an alibi, the accused may only adduce evidence of the alibi with the leave of the Court.

        (4)    If the accused fails to comply with subsection 23CD(2) in relation to a mental impairment (within the meaning of section 7.3 of the Criminal Code), the accused may only adduce evidence that the accused was suffering from the impairment with the leave of the Court.

(20)  Schedule 1, item 2, page 22 (lines 4 and 5), omit “in accordance with an order under section 23CD”, substitute “under this Subdivision”.

(21)  Schedule 1, item 2, page 22 (line 12), omit “order under section 23CD was made”, substitute “entrusted person obtained the protected material”.

(22)  Schedule 1, item 2, page 23 (lines 2 and 3), omit “order under section 23CD was made”, substitute “entrusted person obtained the protected material”.

(23)  Schedule 1, item 2, page 23 (lines 10 and 11), omit “some or all of the material disclosed in accordance with an order under section 23CD”, substitute “any or all of the material disclosed under this Subdivision”.

(24)  Schedule 1, item 2, page 27 (lines 8 to 20), omit section 23DG, substitute:

23DG  Jury roll for a jury district

        (1)    The Sheriff may prepare a written jury roll for a jury district.

        (2)    A jury roll prepared under subsection (1) is not a legislative instrument.

(25)  Schedule 1, item 2, page 32 (lines 1 to 6), omit subsection 23DM(2) (including the notes), substitute:

        (2)    The jury list consists of:

             (a)    the names and addresses; and

             (b)    if readily available to the Sheriff—the dates of birth and sex;

of persons that the Sheriff selects from the jury roll for the applicable jury district.

Note 1:  The jury list may be supplemented under subsection (5).

Note 2:  The Sheriff may remove a person’s name from the jury list under section 23DO.

(26)  Schedule 1, item 4, page 82 (line 16), omit “significant”, substitute “material”.

(27)  Schedule 1, item 4, page 82 (after line 30), after subsection 58DB(2), insert:

     (2A)    An accused applying for bail during indictable primary proceedings is entitled to be granted bail during the proceedings in relation to an offence against either of the following sections of the Trade Practices Act 1974:

             (a)    section 44ZZRF (making a contract etc. containing a cartel provision);

             (b)    section 44ZZRG (giving effect to a cartel provision);

unless the Court decides otherwise after considering the matters mentioned in subsection (2).

(28)  Schedule 1, item 4, page 83 (line 22) to page 84 (line 3), omit section 58DD, substitute:

58DD  Bail to be stayed pending appeal

        (1)    If:

             (a)    the Court makes a bail order; and

             (b)    the prosecutor requests the Court to stay the bail order pending appeal;

the bail order is stayed by force of this section for 48 hours.

        (2)    If a notice of appeal from the bail order is filed within that 48 hours, the stay of the bail order continues by force of this section until:

             (a)    the appeal is finally disposed of; or

             (b)    the prosecutor withdraws the appeal in accordance with the Rules of Court; or

             (c)    a Full Court orders, under this subsection, that the stay be set aside;

whichever happens first.

        (3)    If the prosecutor makes a request under paragraph (1)(b), the appeal from the making of the bail order must be dealt with as quickly as possible.

        (4)    If a bail order is stayed by force of this section, the Court must, by warrant of commitment, remand the accused in custody for the duration of the stay.

        (5)    A warrant of commitment under subsection (4) may be signed by any Judge, the Registrar or any Deputy Registrar, District Registrar or Deputy District Registrar of the Court.

(29)  Schedule 1, item 21, page 103 (line 2), omit “section 23CD”, substitute “subsection 23CD(1)”.

The government also opposes schedule 1 in the following terms:

(30)  Schedule 1, item 32, page 105 (lines 21 to 24), to be opposed.

I will speak briefly to these amendments so that we can understand what we have in front of us. There were several issues raised during the Senate inquiry into this bill, which the Attorney-General has taken into account in drafting these amendments. The particular issues, if I could work through them, are as follows. In response to recommendation 1 of the committee report, the proposed section 23CF would be amended to clarify that the accused is only required to give a general indication of their reasons for disputing the prosecution case against them and is not required to disclose the details of a proposed offence. This addresses the committee’s concern that there is no infringement of the traditional rights of the accused. It would ensure that the appropriate balance between the rights of the individual and the public interest by requiring a meaningful disclosure by the accused without disclosing the details of any proposed offence, other than alibi or mental impairment.

It is very important to have a robust and effective pre-trial regime, given that the Federal Court will be dealing with trials for serious cartel offences. These are going to be long and complicated trials which will severely tax the resources of the court, and of course the resilience of the jury. The Federal Court must be given the tools it needs to ensure, as far as possible, issues are addressed and resolved before the case goes to trial so the trial proceedings can concentrate on matters which are genuinely in dispute and not waste time and effort on matters which are not really contested. It is appropriate in this context to impose a requirement on an accused person to say what matters are in dispute and, in general terms, why they are in dispute. That is not an unreasonable step. The bill does not take the next step, which would be to require the accused to give particulars of their proposed defence. That would be a major change to long-recognised rights of accused persons. That does not form any part of this legislation.

The second substantive amendment responds to recommendation 2 of the committee report by amending proposed subsection 23L to clarify that there is no general removal of legal professional privilege. Such privilege is temporarily overridden, in limited circumstances, at the pre-trial stage. It clarifies the effect of an order of the court requiring the accused to disclose a limited range of documents, such as draft witness statements and expert reports, but not legal advice. This is a limited and focused change to the traditional rules dealing with legal professional privilege. It will avoid any risk that a party who is required to disclose a document in the course of the pre-trial proceedings will be able to refuse to disclose it on the technical grounds that the document was prepared for use in the proceedings and is accordingly covered by litigation privilege. That is an important measure designed to protect the effectiveness and the integrity of the pre-trial process. However, it really does no more than make it clear beyond doubt that, if there is a requirement on a party to disclose a document in the pre-trial process, that obligation overrides any technical claim based on litigation privilege. The provision will have a minimal impact on accused persons because of the limited nature of the material which an accused person can ever be required to disclose at the pre-trial stage. As the bill stands, the only material an accused can ever be ordered to disclose is a copy of any expert report the defence intends to rely on at trial and details of any defence based on alibi or mental impairment. Even then, an accused person will still be able to claim privilege over a document if the document contains legal advice and the document is covered by advice privilege. The bill also makes it clear that the fact that a document has been disclosed in the pre-trial process does not amount to a waiver of any privilege that may apply to it. An accused person will still be able to rely on litigation privilege in other proceedings or at the trial.

In responding to recommendation 3 of the committee report, the Attorney-General has sought an amendment to proposed section 23CM to clarify the consequences of non-compliance with disclosure requirements. The amendment provides a discretion for the court to make such orders as it thinks appropriate to ensure full compliance with any disclosure order. The court’s discretion must not be exercised if to do so would result in an unfair trial. If the accused fails to give notice of a proposed defence of alibi or mental impairment, evidence of such matters may only be adduced with leave of the court. The Attorney-General has not accepted the committee’s recommendation to allow comment by the trial judge of failure to comply with a disclosure order, as this may impact adversely on the accused. If the bill were changed as proposed it would be open to the judge or prosecutor to comment to the jury when an accused has failed to comply with a pre-trial obligation, and there would always be the risk that the comment could suggest that the accused failed to comply because of a consciousness of guilt.

The final amendments, in relation to bail—relating to schedule 1, item 4—respond to recommendations 6 and 7 of the committee report, where section 58DA of the bill will be amended to clarify the test for a further application for bail by replacing the word ‘significant’ with the word ‘material’. Those words are generally synonymous, but the amendment will avoid any doubt about the intention under the bill. The Attorney-General also proposes to make it very clear that there is a presumption in favour of bail in relation to a serious cartel offence.

I will briefly touch on recommendations 4 and 5 of the committee report. Recommendations 4 and 5 have not been accepted. Recommendation 4 would mean that the court would only be able to receive additional evidence on appeal if the evidence was ‘fresh’ in the sense that it was not available at the trial. The problem is that there are situations where an appeal court should properly receive evidence that could have been led at the trial. An extreme example is where a convicted person argues that the defence counsel was incompetent and failed to call evidence that should have been called at the trial. So the recommendation would actually reduce the appeal rights that have traditionally been available to a convicted person.

Recommendation 5 of the committee would have meant that a party who wanted to appeal against an interim ruling made by a trial judge would be able to apply to the full court for leave to appeal. At present a party can only appeal against an interim ruling if they get leave from the judge who made the ruling. An appeal against an interim ruling has the potential to either delay or fragment the trial process. The current provision is designed to ensure that appeals are only ever brought against interim rulings in exceptional cases where the judge who made the rulings is satisfied that there is a proper basis for the issues to be tested on appeal. That recommendation would have given scope for a well-resourced defendant to delay a trial by making repeated applications for leave to appeal against rulings made in the course of the trial.

In relation to amendments (24) and (25), the first of these amendments will clarify the process of preparing jury roles and lists to avoid an argument that the bill assumes that certain regulations will be made before they have been approved. The second amendment is consequential and provides that alternative sources of information can be used if the regulations are not made. This is another issue that came to light when the bill was reviewed following the committee’s report.

Amendment (8) will make it clear that the prosecution does not have the power to give the court directions if a bail order is stayed pending appeal. This is another issue that came to light during the committee’s considerations. It would not be appropriate for the prosecution to give directions to a judge, and the bill will be amended to make it clear that the provisions do not have that effect.

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

I indicate on behalf of the opposition that the amendments moved by the government, as I mentioned in my second reading speech, are improvements to the legislation. They follow deliberations of the Senate committee and they have the opposition’s support.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendments moved by minister, numbered (1) to (29) on sheet PM308, by leave, be agreed to.

Question agreed to.

The Temporary Chairman:

The question now is that item 32 of schedule 1 stand as printed.

Question negatived.

Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary for Social Inclusion and the Voluntary Sector) Share this | Link to this | Hansard source

I move government amendment (1) on sheet CJ208:

(1)    Schedule 1, item 3, page 56 (lines 5 to 29), omit subsections 30AE(4) and (5), substitute:

        (4)    In relation to criminal appeal proceedings, a single Judge (sitting in Chambers or in open court) or a Full Court may:

             (a)    join or remove a party to an appeal to the Court; or

             (b)    make an order by consent disposing of an appeal to the Court; or

             (c)    make an order that an appeal to the Court be dismissed for want of prosecution; or

             (d)    make an order that an appeal to the Court be dismissed for:

                   (i)    failure to comply with a direction of the Court; or

                  (ii)    failure of the appellant to attend a hearing relating to the appeal; or

             (e)    vary or set aside an order under paragraph (c) or (d); or

              (f)    give directions about the conduct of an appeal to the Court, including directions about:

                   (i)    the use of written submissions; and

                  (ii)    limiting the time for oral argument.

     (4A)    An application for the exercise of a power mentioned in subsection (4) must be heard and determined by a single Judge unless:

             (a)    a Judge directs that the application be heard and determined by a Full Court; or

             (b)    the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.

        (5)    The Rules of Court may make provision enabling an application of the kind mentioned in subsection (2), (3) or (4A) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.

This amendment will make it very clear that the court can make interlocutory orders of its own motion in criminal appeal cases. The change was requested by the court in order to avoid any scope for doubt about the extent of the court’s powers to manage the conduct of criminal appeals.

Question agreed to.

On sheet CJ208, the government opposes items 60-63 in the following terms:

(2)    Schedule 1, items 60 to 63, page 110 (lines 6 to 27), to be opposed.

This amendment will remove an item which is no longer required in this bill. The item dealt with civil procedures before the court. A bill has subsequently been developed which deals comprehensively with civil procedures before the court. This bill is currently before parliament: Access to Justice (Civil Litigation Reforms) Amendment Bill 2009.

The Temporary Chairman:

The question now is that items 60 to 63 of schedule 1 stand as printed.

Question negatived.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (1) on sheet 5932:

(1)    Schedule 1, page 112 (after line 23), after item 74, insert:

74A  At the end of section 34

Add:

        (3)    The Governor-General shall cause at least one Registry in each State to be staffed on a full-time basis and the complement of staff in each such Registry to include a full-time Registrar.

In moving this amendment, I have taken out the comma and the word ‘for’. The effect of this amendment is to ensure that the intention of the court to remove the registrar from the Tasmanian office would be effectively disallowed. However, I begin by asking the government about the Federal Court of Australia Act 1976. I draw the government’s attention to division 3, clause 18N: ‘Personnel other than the Registrar’. Subclause (1) says:

In addition to the Registrar, there are the following officers of the Court:

(a)

a District Registrar of the Court for each District Registry ...

I ask the government if it has legal advice that that section does not require a registrar to be kept in Hobart.

Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary for Social Inclusion and the Voluntary Sector) Share this | Link to this | Hansard source

We have indicated that we are not supporting the Greens amendment. I addressed those issues when I spoke to Senator Abetz’s second reading amendment. In relation to Senator Brown’s specific question, I am advised that the registrar of the Victorian registry will hold the dual role of registrar for the Victorian and Tasmanian registers.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

That may well be tested because the legislation requires a district registrar of the court for each district registry. The clear intent of this legislation is that there be a registrar for the district registry and that it will not be somewhere else—a role carried out by somebody else. That said, the amendment I have brought forward addresses the position where the Chief Justice of the Federal Court and the court have decided to remove the registrar from the registry in Hobart to, we are told, save potentially $200,000, leaving Tasmania with the only Federal Court registry which does not have a registrar. I earlier indicated the importance of that job. In fact, the minister in her submission corroborated my point by her assertion that the court in Hobart was functioning above par in terms of service to the legal community and, indeed, its clients.

We find that a review team was established by the court to look at what were called, rather pejoratively, the three lesser courts in Hobart, Canberra and Darwin. Of course, the ACT and the Northern Territory are territories, not states, but the ACT’s functions of the registrar have been transferred to Sydney and those of Darwin to Adelaide. What is interesting is that the review undertaken by the court, which looked at the so-called ‘smaller’ registries—that is the term—in Tasmania, the Northern Territory and the Australian Capital Territory, was undertaken, as it turns out, by Michael Wall, the New South Wales district registrar, Sydney being the recipient of the functions transferred from Canberra; by Sia Lagos, the Victorian district registrar, and Victoria will receive the registrar’s duties from Hobart; and by Patricia Christie, the South Australian district registrar, and South Australia will receive the duties from the Northern Territory. A coincidence? Yes, perhaps, but what I submit here is that it is nevertheless interesting that the district registrars from the three recipient courts were those who were asked to look at this matter. The district registrar from Hobart was not asked to participate and nor were the district registrars from Queensland or Western Australia.

Four options were put up and the third option was recommended and then accepted by the court. If you look at the third option, it says:

Option 3 is therefore the review team’s preferred model. This option would see all small registries managed by a local Registry Manager (formerly the DCS) and all legal work undertaken by staff in the relevant parent registry. Savings aside, advantages of this arrangement for legal work include the capacity to draw on a greater number of staff and a wider range of skills and expertise. Similarly problems associated with staff absences or planned and unplanned leave are minimised. The arrangement is also consistent with the more contemporary approaches to management structure given that it eliminates a layer of management and achieves a flatter organisational structure. In the longer term it will facilitate a more team-based approach to the management of smaller registries (acknowledging that this already occurs to some extent already). One cost associated with the model would be increased travel costs, resulting from the need for legal staff and the [district registrar] from the parent registry to visit as required.

As a Tasmanian, I find that when you analyse that statement it is saying: we will have a flatter structure administered from Melbourne which flattens Hobart into the structure, and what we will save on the swings we will lose on the roundabouts because there will be increased travel costs.

Indeed, the review team went on to say it:

… understands that, should option 3 be adopted, the [Administrative Appeals Tribunal’s] Registrar/CEO has indicated that the [Administrative Appeals Tribunal] legal/case conferencing work would most likely be undertaken by the [Administrative Appeals Tribunal] in Melbourne—

that is, the work from Tasmania. What we have is a dismantling of very important court and tribunal functions in Tasmania, and I predict more will come if this is permitted to occur. It is a very serious derogation of the court’s responsibility to have a registrar as well as a registry in each of the states. It should not and cannot be allowed to proceed.

I would add, and my colleague Senator Milne will have something to say about this, that this is absolutely opposed by the legal community in Tasmania and, the more that is heard about it, by the Tasmanian community itself. That it will save money is, I think, a false premise. It will actually add to the expense of people travelling to Melbourne and back where they do not have to do that at the moment. It will cause disruption and create costs of all sorts, which come when you have to do business in another state capital rather than within your own state.

The government itself says that the court is working and facilitating the work for citizens at an above-par rate in Hobart and, curiously enough, seems to think that is an argument for dismantling it and transferring its functions to Melbourne.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

That will then improve the figures.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

And, of course, wreck the great service that is being done in Hobart. That is what will happen. It is hogwash.

Now that Senator Abetz is here, and I know he has had an important other matter to attend to, I again appeal to my Tasmanian colleagues to again consider supporting this amendment, because we are not going to get this opportunity for a long time to come. This bill has been before the parliament for 10 months. There is no argument for delay by the government—I do not accept the argument that if this amendment were to be passed it will go to the House and then the two houses of parliament will have to come to an agreement on it. My prediction is that the government will very quickly concede to keeping the registrar in Hobart because it is such a piffling amount that we are dealing with here and it is such an unimportant matter in terms of financial outcomes. Of course, the amendment does not add any impost to the current functioning of the court, and therefore the Senate is quite entitled to make it.

Senator Barnett indicated that there were other bills coming down the line. I do not think the government is going to see those bills come into this place this year or this side of the next federal election. It has taken 10 months for this bill to get to where it is. The two supplementary memoranda accompanying the changes to the bill were moved in this place in May. May, June, July, August, September: that is four months delay.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Be careful; that’s against standing orders!

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Yes, I am being very discreet, Senator Abetz, in pointing out that it was four months since those two supplementary memoranda came before the Senate. The government is saying, ‘You can’t have this amendment because it will delay by a day’—because that is all it would take—‘this amendment going to the other place and being accepted.’

I say to Senator Abetz and the coalition that the government, if it succeeds in having this amendment turned down today, is simply going to be encouraged in its determination to get rid of the registrar in Hobart and to have the registrar go to Melbourne. Next thing, they will be closing the registry—that requires simply a change of legislation—and I do not think that process should be encouraged at all. This is the opportunity to save the registrar’s position in Hobart. I hope the coalition will again come to support this.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I indicate to the Senate that a lot of what Senator Brown says is absolutely accurate. The decision by the government to go along with the Federal Court bureaucrats in downgrading the Hobart registry of the Federal Court is completely unacceptable and, in the long run, will clearly not improve the administration of justice. Nor will it assist in saving the moneys that are claimed.

Indeed, it is interesting to note that the Federal Court had over $1 million to spend on rejuvenating one of its courtrooms in Hobart but it does not have enough money to have a fully-fledged registrar! It is like running a hospital and having all the latest equipment but not having any doctors in it. One has to wonder how those decisions and priorities were determined.

One has to wonder how the government has gone along with the Federal Court’s decision-making in relation to the Hobart registry, given that the Hobart registry has the best figures—in relation to determination of matters, conclusion of matters et cetera—of any registry in Australia. We were told by His Honour Chief Justice Black, in his letter in response to the original motion that Senator Brown and I cosponsored in this place, that the figures in Tasmania would actually improve rather than get worse as a result of getting rid of a full-time registrar. That is illogical, with great respect. It does not seem—I have to be careful because I have respect for judicial officers, especially a Chief Justice—that that sort of thought process has the necessary ingredient of logic within it.

If we can do so much more with less, why doesn’t he try it at the Melbourne registry, the Sydney registry, the Adelaide registry, the Perth registry? Cut the registries to part-time and see if that improves the figures! Clearly, and with great respect, it was an argument without merit. I will be as neutral as I possibly can. Methinks the chances are that some bureaucrat within the Federal Court system wrote the letter and His Honour unfortunately placed his signature at the foot of the letter. But when the people of Tasmania are served up this sort of diet of nonsense—I will use that pejorative term—then you will not get their support in relation to that decision.

The issue that we as a coalition are confronted with—and I hear the merit of Senator Brown’s argument; he and I have been, and I dare say will continue to be, on the same page in relation to this issue—and which exercises our minds is the nearly manic approach of Labor in relation to this proposed amendment. What we have been promised by Labor and the Attorney-General is that if this amendment—worthy as it is—gets carried, Labor will simply delay the introduction of the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill. And this bill is vital, as I understand it from the shadow Attorney-General, to ensure that we have the necessary regime in place to deal with the criminalisation of cartel behaviour under the Trade Practices Act.

We as a coalition, taking an Australia-wide view, have to make a determination as to whether it would be appropriate to delay this particular piece of legislation in our quite justified pursuit of getting justice for the Federal Court registry in Hobart. We have come to the reluctant conclusion that, chances are, getting the criminal jurisdiction under way for cartel type behaviours under the Trade Practices Act should not be delayed. Can I say to the Attorney-General and to the senator, the parliamentary secretary representing the Attorney-General in this place: it does not crown the Attorney with any glory to say that he would be delaying the introduction of this criminal jurisdiction on the basis of I think at most a $200,000 saving in the Hobart registry. To say that he would continually bounce the legislation between the two chambers and not allow it to be resolved for months on end I think shows an attitude which is now becoming more and more apparent from this Labor government—that is, absolute arrogance.

However, I am informed, and I am willing to take the government—I don’t know why—on face value in relation to this, that there is the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 coming up as non-controversial legislation tomorrow. So we do have the legislation before us. We believe on balance that that legislation is the better vehicle for moving an amendment, given the quite inexplicable, dogged attitude by the Attorney-General. Of course that will necessitate that piece of legislation being taken out of the non-controversial list, but hopefully we should be able to debate it within the next sitting period before Christmas and actually have the amendment dealt with on that occasion.

If Senator Brown were to move the amendment he has moved today again in that legislation he can be assured of coalition support. That would then guarantee its passage. So the issue is whether we delay the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 today or wait for a month. We believe it could have been dealt with today, but due to Labor’s dogged approach on this, which defies logic—just as the explanation provided by the Federal Court to this Senate defied logic—we have come to the reluctant position that we will not be supporting Senator Brown’s amendment on this occasion.

I have explained the position of the coalition to the president of the Tasmanian Law Society during the course of this afternoon. Whilst it would be fair to say he would wish the amendment to be carried today, he does understand the reasoning and the rationale. He, of course, also understands the reasoning and rationale of the coalition in maintaining its support for a full registry facility in Hobart and our commitment to either move our own amendment or, if indeed, Senator Brown were to move an amendment to the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009, that we would support such an amendment.

The decision by the Federal Court, supported by the Attorney-General, in this quiet dogged manner I do not think covers the Attorney-General with glory. It does him no credit and it will see the diminution of justice services in Tasmania for no actual savings at all. I can assure the Federal Court and the government that this matter will be pursued further at estimates. I am sure we will see cost blowouts—unless, of course, they are able to hide certain figures with airfares and other things, because I cannot see how at the end of the day Labor will be able to justify this decision and the Federal Court will not be able to justify the decision.

To sum up for those listening in and wondering what this might all be about, the Federal Court determined to set up a committee to determine whether or not smaller registries could possibly be amalgamated into larger registries. Surprise, surprise, the Melbourne registrar was on the committee, and guess what? There was no recommendation that staff savings should be made in Melbourne. Somehow, strangely, staff savings could be made in Hobart, because there was an oversupply! When I asked at Senate estimates last time, ‘Doesn’t it indicate an oversupply of staff in the Melbourne registry if Melbourne staff can handle all the work being generated out of the Hobart registry?’, I was given this bizarre response: ‘Well, no.’ Their arguments simply do not stack up. Either there is a surplus of workforce in the Melbourne registry that can then take over the work generated in Hobart or there is not. If there is not that surplus of workforce, surely it must mean and dictate that they will have to appoint extra staff in Melbourne to replace those that have been set aside in Hobart. That is the logic. It is pretty basic logic. What has happened in the past is, yes, there may have been a bit of a surplus capacity in Hobart, but that was very usefully used to assist the Melbourne registry at times of shortage, and therefore it balanced out exceptionally well. That is what we were told at estimates.

To now turn it around and suggest that we can somehow justify this change, courtesy of a Melbourne official sitting on a review which will increase his empire, is, I must say, not a good reflection by a body that supposedly administers justice. One would have thought that a body like that might actually understand that there is a substantial conflict of interest in having somebody preside or being part and parcel of such a review when the reviewer may be the beneficiary of a large empire. For all those reasons the Federal Court decision was wrong, the Chief Justice’s attempted justification is wrong, and the Attorney-General’s denial of the Senate’s approach on this is wrong. We as the coalition will fight to ensure that full Federal Court registry facilities are maintained in Hobart. We will seek to do that through the next piece of legislation which we have been advised by the government will be coming up before us very shortly.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I note with interest that Senator Abetz has just said that the government has not covered itself in glory with this decision. I would agree with that. Certainly the Tasmanian Labor senators, Senators Sherry, O’Brien, Polley, Carol Brown and Bilyk, ought to be in here defending Tasmania’s right to have what it ought to have under the Federal Court of Australia Act 1976—that is, not only a registry office but a registrar as well. I would note that Senator Abetz has not covered himself in glory, either, with the disingenuous reason he has given for not supporting an amendment which would actually ‘require’ the government to maintain the registrar, not just ‘call on’ the government to do so. He knows as well as everyone else in this Senate that that will not result in anything other than the government saying no. I notice that Senator Abetz said that he was prepared to take the government at face value. He has been taking people at face value pretty often recently. It blew up in his face quite badly the last time he took someone at face value. I would suggest that he consider it a bit more carefully when he says he will take the government at face value.

Does anyone in this Senate seriously believe that, if an amendment were to be passed in the Senate which would require the government to uphold the sentiment behind the Federal Court of Australia Act 1976, they would come back here after going to the House of Representatives and hold up critical legislation for four months, over a sum of $200,000? Of course not. It is absolutely disingenuous to say that the coalition will support this amendment if it is brought forward in another bill, because that bill will not be considered before Christmas—long after, if this process continues as it is currently going, the position in Hobart has gone.

I note with interest the minister’s response. It demonstrates that she and the government know full well that they are acting contrary to what the law intended. As Senator Bob Brown pointed out, section 34 of the Federal Court of Australia Act requires the establishment of a registry in each state. Section 18N requires that there be a district registrar for every district registry. Therefore it is very clear. The sentiment of the act says you have not only the registry but the registrar. The minister’s response was, ‘That is why we are now going to title the registrar in Victoria as the registrar of Victoria and the registrar of Tasmania.’ So the letter of the law will be fulfilled in that the registry will have a registrar. But in my view it is a complete sleight of hand. You know exactly what you are doing if you suddenly declare the registrar in Victoria to be the registrar of Tasmania and the registrar of Victoria in order. You know that this would be tested under the law otherwise, and that is why you have suddenly put in that position. I would like to know whether the registrar of Victoria and Tasmania is going to get a pay rise, because he or she will now be a registrar for two jurisdictions and not one. I will be interested to know about that.

The second thing I would like to know about is the claim that the saving will be $200,000. I would like to know what the cost of providing the same services from Victoria is calculated to be. If the government is making a decision to do this and take away the registrar’s position from Tasmania, I would like to know what the cost associated with providing those services from Victoria will be. I would think that in the end it will actually be in excess of $200,000.

But actually this is more an issue of principle than money, because Tasmania is a state of the Commonwealth. We are part of the Federation. We are the only state whose registrar the government and these Labor senators from Tasmania in the states’ house of this parliament are prepared to ditch. It would be wrong, as the Law Society of Tasmania has pointed out, in principle for a federal institution not to have an effective presence in each state capital of the Federation. That is the view of the Tasmanian law society. It is the view of the Tasmanian Greens senators. It is the view of the coalition senators as well, except that the coalition wants to express it as a request and not as an insistence in this federal parliament. It is a matter that should be insisted upon because we are part of this Federation.

I heard earlier this idea of the parent registry, as opposed to the child registry. So now, instead of Tasmania being an equal part of the Federation, Victoria becomes the parent and Tasmania becomes the child, the subset of Victoria. It is a flatter administrative structure to get rid of a registrar in Tasmania. I am sure there would be people who think that it would be a flatter administrative structure to get rid of Tasmania as a state altogether. That would be the logical step, if you are going to follow this principle that the government wants to embark upon, which would take away what is an effective presence in a state capital for a federal institution. That is the reality of what the government has decided to do here, and it is wrong.

Equally, the legal profession in Tasmania were not consulted about this decision, and that is again a sleight on the legal profession in Tasmania. As my colleague Senator Bob Brown pointed out earlier, if we end up in a situation where the Administrative Appeals Tribunal also moves its operations to Victoria then we will to see a huge amount of cost incurred by other people having to go to Victoria when they should be able to have their matters heard in their home state.

This decision is wrong. It is wrong and it appears to me that, as the Law Society has also pointed out, the review is superficial and deeply flawed. It did not consult the relevant stakeholders. It contains little analysis and there are no figures to support either the $200,000 saving or what the costs of providing the same service from Victoria will be. It is clear that the minister must tell us that if she is insisting that this is some sort of cost-saving matter. I think you should also recognise that a previous review recommended the retention of the Tasmanian registry of the Federal Court in its current form. That review was a much more thorough assessment and actually included consultation with the appropriate stakeholders. So I think it is entirely appropriate that we deal with the matter now, before the position is removed from Tasmania. It will be much harder after the position has gone to have it restored to its current form. I think it is critical that we go down the path of supporting this amendment now.

Senator Abetz earlier this week moved an amendment, which I supported, in relation to $3 billion of taxpayers’ money for a big subsidy to the car manufacturers. That went down to the lower house, and there was no consideration there about worrying whether or not the government would be held up in its legislative program. Apparently Senator Abetz thought that it was worth taking a stand on getting transparency around grants to General Motors Holden, Ford and Toyota, but he does not think it is worth taking a stand against the government when it comes to actually protecting this position in Tasmania. He knows as well as we know that this matter will not come back before the parliament for us to have an opportunity to move on an amendment before Christmas, and by then it will all be too late.

Let us get real here. This is the opportunity for the coalition to support the Greens to get this dealt with in the House of Representatives. If the government choose to hold up critical reform of the Federal Court because they want to deny Tasmania a full-time registrar, let them explain that to the legal profession around Australia and to the people of Australia, who will not buy that for a minute. This is a cost-saving measure that the government are just racing through. Worse still, it is an affront to the fundamental principle that Tasmania is a state of the Federation and that it has, as a matter of principle, the right to an effective presence. We are a state of the Federation and we should have an effective presence of a court registrar such as the one we currently have. I am just appalled by the way the government has chosen to get around the interpretation of section 18N. Suddenly naming the registrar in Victoria as the registrar for Tasmania, and therefore saying the registry has its own registrar, is a sleight of hand and people will see it as such.

I would urge the coalition to rethink its position of just ‘calling on’ the government to do something rather than forcing this back to the House of Representatives and getting this resolved tomorrow, because in reality that is what the government would do. I am really surprised that someone who has been in the Senate as long as Senator Abetz has could fall for the face value explanation that the government has given him. But then we have seen evidence of that in recent times on other matters.

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

I will not detain the Senate for very long, but following the contribution that has just fallen from Senator Milne I do feel that I ought to rise and come to the defence of my friend Senator Abetz. The remarks made about him by Senator Milne were inaccurate and, I am sorry to say, very, very ignorant. Let us remind ourselves of what the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 before the Senate is concerned with. The bill before the Senate is concerned to invest the Federal Court of Australia with a criminal jurisdiction so as to enable it to deal with criminal prosecutions arising from serious cartel behaviour under the Trade Practices Act. Anyone, particularly people in Tasmania who may be listening to the broadcast, might be forgiven for thinking that this was a bill to deprive the Federal Court of its Tasmanian registrar. It is nothing to do with that.

Paradoxically, notwithstanding the intemperate nature of the language that has fallen from Senator Milne, in fact Senator Milne agrees with the coalition’s position. Senator Milne may or may not be aware that there was a second reading amendment carried on the voices a little earlier on in this debate, calling for what Senator Abetz—not you, Senator Milne, but Senator Abetz—has led the charge on all year: to prevail upon the government to rescind its decision to close the Tasmanian registry of the Federal Court of Australia. If the government does change its position, that will be as a result of the advocacy of one senator—not you, Senator Milne, but Senator Eric Abetz.

Be that as it may, we are seized with a bill about cartel criminal jurisdiction. The government has pointed out to the opposition—and, notwithstanding that, I yield to no-one, Senator Milne, in my criticism of the lack of trust one can place in the assurances of Mr Kevin Rudd and some of his ministers—and, yes, nevertheless grown-up political parties actually do deal with one another. I have received through my office an assurance from the Attorney-General, Mr McClelland, whom I regard as a very honourable person, that the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009, which is currently on the Notice Paper—and which is in fact listed for debate tomorrow in the noncontroversial items of business—if it becomes a vehicle for dealing with this issue, can be removed from the noncontroversial items and brought back onto the Notice Paper very soon, certainly in the next sitting week of the Senate. I have received an assurance to that effect through his officers. My officers have received an assurance from the Attorney-General’s officers that that will happen, and I see the parliamentary secretary representing him in this chamber nodding in confirmation that that is so.

Let me say on behalf of the opposition that I accept that assurance. It is as plain as anything can be that the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009, which is a bill of a general rather than a specialist character, is a much more suitable vehicle for an amendment of the kind that the Greens wish to make to the current bill and can be the subject of such an amendment at the time. I suspect it will not be being moved by you, Senator Milne; it will be being moved by Senator Abetz.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

It will be too late.

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

It will not be too late, Senator Milne, so you are wrong about that as well. In fact, I cannot think of a single thing you have said in your extraordinary contribution which was factually accurate. Let me summarise the coalition’s position. We believe firmly that the Tasmanian registry of the Federal Court should not be closed and that the registrar’s responsibilities should not be taken over by the Victorian registrar of the court. We are prepared to move to amend the appropriate legislation—that is, the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009—to ensure that that position has statutory sanction. We look for your support, Senator Milne, and the support of the crossbenchers when we do that. We accept the assurance of the Attorney-General through his officers that that legislation, currently listed as soon as tomorrow on the Senate Notice Paper, will be dealt with very shortly. As I said before, it will have to be removed from the non-controversial area of the Notice Paper, but it will be placed back on the Notice Paper certainly not later than the next sitting week of the parliament. Contrary to your assertion, that will not be too late to effect a statutory reversal of that decision. The coalition is not prepared to delay the legislation currently before the chamber, which invests the Federal Court with criminal jurisdiction to deal with serious cartel offences, in order to achieve that outcome; nor is it necessary to do so. That is the coalition’s position. I thank the Attorney-General for his assurance, which we accept. We will move the appropriate amendment to the appropriate bill when it comes before the chamber shortly.

Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary for Social Inclusion and the Voluntary Sector) Share this | Link to this | Hansard source

I thank Senator Brandis for those comments and I concur totally that the problem we have had with this debate on the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 is that it is seeking to amend, in a very inappropriate way, the important legislation that relates to cartel behaviour and empowers the Federal Court to exercise the criminal cartel jurisdiction that will be given under the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008.

I do accept that this is an issue of great passion for the Tasmanian senators, and I respect their right to come and argue the case. However, this is not the piece of legislation in which to add such a clumsy amendment—and I say that respectfully. It does not fit here. I remind everyone who is listening and who has participated in this debate that it has long been a principle accepted by both sides of politics that federal courts are self-administering.

Senator Milne asked me some questions about cost savings. They are not questions that I can answer for you. They are questions that you should ask the Federal Court in estimates, and I anticipate that that will be the case. That is where the kind of discussion and information that you are seeking will be best presented. I thank everyone for their contributions to this debate and I commend the bill to the Senate.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I ask Senator Stephens, who has just sat down, whether it is true that the event celebrating the end of the registrar in Hobart has just concluded, that the registrar will not be there from now on and that the events of the court removing the registrar from Hobart are moving ahead of the parliamentary events here today and over the last several months. If that is so, it is a matter that should have been reported by the government. I think there needs to be a little bit better information coming to the Senate about the matter.

I just want to take Senator Stephens to task for her statement that this is a clumsy amendment. The amendment is sharp, it is direct, it says exactly what we mean it to say and it would, if passed, have the effect of retaining the registrar in Hobart. If Senator Stephens meant that it is clumsy to attach it to this particular legislation, let me inform the senator that that is the right and proper process in the Senate in government business. The alternative is to wait for private members’ time by introducing separate legislation. As Senator Stephens and her colleagues know very well, that is to consign it to the dustbin of total inaction because there is no way a private member’s bill would be brought to a debate and vote in this Senate before the next election. If we are to get proper action to save the registrar’s office in Hobart, there is no alternative but for us to amend a piece of legislation, as we are moving to amend this piece of legislation, tonight. It is the right and proper thing to do. It is not clumsy. It is time-honoured proper process.

The opposition has said that it deals with other members, including the Hon. Attorney-General, for whom I have a great deal of admiration, as do the rest of the Greens. The difference is that in the race to get something done about this we are not faltering near the finish line. We are putting forward an amendment which would come into effect tomorrow, which is appropriate seeing the district registrar had his last day today, to ensure that that office is kept.

Senator Milne is absolutely correct. In terms of amending another piece of legislation which Senator Brandis says may come up in coming weeks, I remind Senator Brandis there are only three weeks left of sittings on the Senate calendar. The legislation to which he refers will be reported upon by the committee in the Senate tomorrow and may or may not be in the non-controversial section later in the day. I have asked my staff to prepare an amendment for that piece of legislation in the sad anticipation that the coalition is not going to support the Greens amendment to save the registrar tonight, through this legislation.

I ask Senator Brandis: does he have an assurance from the Attorney-General that, amended in the way we anticipate—that is, to save the registrar—the Access to Justice (Civil Litigation Reforms) Amendment Bill will be dealt with in the Senate and the House before the next three weeks of sittings are exhausted? I ask Senator Stephens: on behalf of the government, will she give the Senate an assurance that that piece of legislation, with the intended amendment, will be dealt with by the Senate and by the House and passed into law before the end of the year?

We are all aware in here that there is one week of sitting in October and two weeks of sitting in November, and we are also all aware of the pressure of the legislative list. There are 20 or 30 pieces of legislation on the list as well, and that is not taking into account the return of the emissions trading scheme legislation, which is highly contentious and may well, of itself, take up many days of debate. I want to hear from the government—

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

Senator Brandis interjecting—

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I will not sit down, Senator Brandis—

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

You asked a question.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Yes, I have asked a question. I have asked a number of questions, and the proper procedure is for them to be answered when I sit down. But that will not be at your injunction; that will be when I am finished and not before.

If the Attorney-General was of a mind to ensure that the anticipated amendment to save the registrar’s position in Hobart would be guaranteed, why not accept this amendment tonight and get it through tomorrow? The government has made it clear it does not and will not support the retention of the registrar’s position in Hobart. It has the upper hand in all respects, in the timing and in the order of legislation before this place. The opportunity we have is to reverse the decision to abolish the registrar’s position in Hobart.

Finally, because I know the government and the opposition want to respond, Senator Stephens has said a number of times that this parliament must not interfere with the court—wrong. The Federal Court of Australia Act 1976 established the court. This parliament established the court. This parliament established the position of registrar in each of the regional offices and established the registries. It is this parliament’s power and responsibility to ensure that the law is clear and is carried out. The spirit of that law, and, I submit, the letter of it, is that the registrar should be kept in Hobart.

I believe the court is breaching the spirit of that law by abolishing the position of registrar in Hobart without seeking an amendment through this parliament, without coming to government and getting this act amended. That would be the proper way to do it. It is being done extramurally, outside the parliament, by Justice Black and the court, and that is not acceptable. That is not what the act says, not what it intended and not what we should submit to. The proper process is through this parliament and the proper way of ensuring that that is carried out is by supporting this Greens amendment here and now.

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

Although I do not think it is really for shadow ministers to be responding to questions from crossbench senators, given the way this debate has developed, I will respond to Senator Brown’s question to me. As I indicated earlier, the opposition does accept the assurance through the officers of the Attorney-General that the Access to Justice (Civil Litigation Reforms) Amendment Bill, which is the appropriate vehicle for this amendment, will be dealt with by the Senate before the end of the year. It does, as I explained before, have to come off the non-controversial list for tomorrow, but I do accept the assurance that it will be relisted with priority, and I imagine that that would mean not tomorrow but in the next sitting week.

As to the subsequent fate of the bill in the other place, that of course is a matter for the government, and only the government can control that, just as only the government can control the fate of this bill in the other place, Senator Brown. But, notwithstanding that you are a rather hostile ally on this, I do welcome you to the banner of Senator Eric Abetz in your campaign to save the position of the registrar of the Federal Court in Hobart. It is with that end in view that the opposition has accepted the assurance given to us through the Attorney-General’s staff.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

How unsatisfactory was that! The opposition has accepted the Attorney-General’s assurance that the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009—another bill, not the one we are amending tonight—will be dealt with in the parliament in the coming three weeks. But there is no assurance whatsoever that, once this bill has the amendment that I have brought forward here tonight attached to it, it will be passed into law this year. That is the difference. What we are asking here, because—

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

Well, ask the government.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The coalition and the Greens have the ability to ensure that the registrar’s position in Hobart is saved.

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

How could we do that? This bill will not be amended against the government’s wishes in the House of Representatives, Senator Brown.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Brandis, you say that this bill will not be amended against the wishes in the House of Representatives—

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

Unless the government cooperates.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Unless the government cooperates.

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

So what you said is wrong.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

You should leave this to somebody who has got much more experience in strategy than you have.

Opposition Senators:

Opposition senators interjecting—

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The opposition senators laugh, but this is a serious matter. If the government and the Attorney-General say they will brook no amendment to this piece of legislation, they will hold it off, resulting in the grave consequences of that process that you yourselves have outlined. So how is it that you can meekly go along and accept an assurance that another piece of legislation, the access to justice bill, will be passed? It is equally important; it delivers justice to Australians. The second reading speech quoted Dickens, that people who have money have the power, and that bill is to redress that imbalance. This bill is very important for the delivery of justice and it deals with the Federal Court. What are the opposition going to say if there is an amendment there to save the registrar being lost from Hobart and the government says, ‘This is hugely important legislation but we will hold it up if you persist with that amendment’? It is the same thing as they are saying to you tonight, and I—

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

But we have received an assurance that it will be dealt with by the government.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

You have received an assurance that the bill will pass with the amendment—

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

Senator Brandis interjecting—

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The only way they can do that, Senator, is if the coalition backs off on the amendment. Have you received an assurance that it will pass the parliament with the amendment?

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

It will be dealt with promptly in the Senate.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

It will be dealt with?

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

Promptly in the Senate.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

So you have got no assurance at all, because that does not deal with it going back to the House and then being held up.

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

It is the same position as this bill.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Yes, exactly, Senator Brandis. He says it is the same position as this one.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

Order! Just a moment, Senator Brown. Perhaps you gentlemen would conduct yourselves in the manner in which the standing orders require in relation to this matter. Thank you, Senator Brown.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Chair, I think you are indicating that Senator Brandis should not be interrupting my delivery here, and I agree with you.

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

Mr Temporary Chairman, on a point of order: I know that Senator Bob Brown wants to talk this out so that he might bluff some people in Tasmania with his disingenuous rhetoric. I was responding to questions being put to me by Senator Brown. I thought that in the flexibility of the committee stage debate it would facilitate the process for me to respond immediately to questions being put to me by Senator Brown. But I suppose it is emblematic of his disingenuousness on this issue that he would then call me disorderly for responding to the questions he put to me.

The Temporary Chairman:

Senator Brandis, I am sure the Senate appreciates your willingness to assist, but there is no point of order. Senator Bob Brown.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

You are right again, Chair. The position is that Senator Brandis should answer questions, if he sees them as questions being put to him, in his own turn. That is what the standing orders require. And I do not want a lecture from Senator Brandis, putting down the people of Tasmania; I will not stand for it. This is an important matter. This is about the rights of Tasmanians to have a registrar. My information is that that position ended today, so it is absolutely incumbent upon the opposition to support this amendment now. It is just unacceptable that that is not happening.

I again ask the parliamentary secretary: will she give an assurance that the government will deal with the other bill, which has a similar amendment, and see that bill pass the parliament before the end of this year, if that alternative option is taken up?

Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary for Social Inclusion and the Voluntary Sector) Share this | Link to this | Hansard source

There are several questions that Senator Bob Brown has just asked me. I can say no more about the other piece of legislation except that this afternoon there were assurances given to the opposition that that piece of legislation, which is due to be debated tomorrow, will be dealt with expeditiously and promptly within the Senate.

Progress reported.