Page 2437 - Week 09 - Tuesday, 6 August 1991
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Mr Jensen: The Clinical Waste Bill.
MR COLLAERY: The Clinical Waste Bill, Mr Jensen reminds me. I believe that the enterprise that Mr Connolly is continuing through the Attorney-General's Law Reform Committee is worthy and should continue. But we should, as a legislature, remember one thing about the Bropho decision. I think it is aptly summarised by Starke, of queen's counsel, in the Australian Law Journal issue of September 1990, volume 64, where he says, at page 527:
Whether the Court should have so decided may well be a moot question. The result can, not unfairly, be described as pure legislation, as distinct from what the late Justice Holmes of the United States Supreme Court characterised as "interstitial" judicial law-making. Such a fundamental change in a long established principle of statutory construction should, it may cogently be urged, have been effected, if at all, by amendment of the various Commonwealth and State Acts Interpretation Acts, in the same way as important amendments thereto have been made in recent years.
If I may interpolate, I think this legislature should understand that this was judicial law-making in a classic sense. It pre-empted the activities of the States and Territories Attorneys group in bringing about uniform legislation and, of course, we are all saddened to hear that Queensland and Tasmania are going to go their own way and set forth a very strict test.
Mr Speaker, the decision to attend to the former presumption, if you can use that term, that legislatures would have intended to bind themselves, is worthy; but I believe that Mr Connolly should have secured from his Law Office a considered statement that could have been put down on the floor of the chamber. I respect and acknowledge that he has probably constructed the statement himself. It is his own work. Well, fair enough; but it did leave the non-lawyers of this chamber floundering a bit. I think it is incumbent upon the lawyers in the chamber, when they speak about these things that are complex, to put a document before them.
Ms Follett: No, it did not. I understood it. Speak for yourself.
MR COLLAERY: The Chief Minister indicates that I am being patronising. Well, so be it. The fact is that this was a very complex decision and Mr Connolly has dealt with it in very short terms. Mr Speaker, we support the direction that the Law Office continues to go in.
Sitting suspended from 5.18 to 8.00 pm
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