Page 3213 - Week 11 - Thursday, 13 September 1990
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Having effectively had common cause on parliamentary intention, there are differing legal views as to whether the clear words of section 65 - the clear grammatical phrase - which refer to the effect of incurring a charge, or the object of incurring a charge, can be read down. It is a clearly accepted principle of law that a rule which leads to an absurdity may be read down. That again is common ground in the two legal views - - -
Mr Collaery: Like the bias rule yesterday.
MR CONNOLLY: The Attorney-General may think this amusing, but he should consult his own law officer's opinion and, indeed, any authorities on this point. It is clear law, almost trite law, that a legislative provision which leads to an absurdity may be read down. The views differ as to whether section 65 may be read down. In Mr Sorbello's opinion on the specific legislative provision that he was commenting on there, he felt that it could not be read down.
We now seem to have reached a position where any private members' Bill is being struck down without an opinion being circulated. The view of the Opposition in that debate when we put on record our difference with that legal opinion, and the view remains today, is that this is a matter of such fundamental importance - the Chief Minister's remarks bear out the fundamental importance of this point - that it is an appropriate matter on which senior counsel's opinion should be sought.
Mr Speaker, what we are considering is the future of all private members' legislation in this parliament. It is, in my view - - -
Mr Collaery: That is what the Chief Minister said.
MR CONNOLLY: As indeed the Chief Minister acknowledged. I would submit that it is not appropriate that we act on what is a disputed legal view. This Opposition has repeatedly said that this is a matter of such importance that we ought to go to senior counsel, we ought to go to a very experienced queen's counsel who practises in the field of public law and who is familiar and experienced with the way superior courts interpret constitutional provisions, because section 65 is a constitutional provision. We ought not to leave it to the Government Law Office. It would be put in the very difficult position for any law officer serving the Executive Government of prescribing the powers of the parliament. We ought to go to senior counsel on this point. And, as we ought to go to senior counsel on this point, we ought not to be throwing Bills out until we have a clear opinion from senior counsel.
If Mr Collaery is of the firm view that this is in dispute, the appropriate course is to leave this resolution that Mr Collaery has moved on the table and to adjourn the debate until we have a clear opinion from senior experienced
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