Page 4758 - Week 15 - Thursday, 21 November 1991
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force disclosure, an obvious inconsistency issue would arise between a law of the Commonwealth forbidding disclosure and a law of this Territory purporting to authorise disclosure.
Members would be aware that the constitutional provision under our self-government Act is that, where there is an inconsistency between a Territory law and a Commonwealth law, the Commonwealth law prevails. It is somewhat stronger than even the general constitutional provision for the States. So, there would be some doubt as to whether we would have the power to do it. In any event, and absent that legal doubt, I would still say that we should not do it. For us to assert this far greater power than is given to any other State, or than is claimed by any other State parliament or by the Federal Parliament, would seem somewhat presumptuous for a small jurisdiction such as the Territory.
I stress that the remarks Mr Collaery was quoting in the earlier debate - the remarks of Mr Justice Phillips, who then was chair of the NCA and subsequently assumed the chief justiceship of Victoria, and the remarks of numerous members of the Federal Parliament, including members of the Federal Parliamentary Liberal Party - were addressed to the potential amendment to the Commonwealth law directed to the Commonwealth joint parliamentary committee's powers. It is a parliamentary committee of somewhat unique stature in that it is recognised in the Commonwealth Act that sets up the NCA. I would have some sympathy with expanding its powers and I would have some sympathy if its powers are expanded to give the States and Territories, who are also party to this scheme, a greater degree of accountability. But I think it is wrong for the Territory to assert that in advance of the general agreement across the Commonwealth and the States and Territories.
The NCA is a body supported by all the governments of Australia. Its governing body is the intergovernmental committee, which comprises Ministers of every government in Australia and of which, when we pass this law, the ACT will be a full member. That is the forum to resolve these secrecy issues, rather than trying to pass a law in this Territory which, even if it were valid - and I have doubts as to whether it would be valid - in my view would be wrong and presumptuous.
That essentially was the argument put when we last raised the issue. Mr Stefaniak then spoke to the issue and Mr Humphries formally moved the adjournment. Mr Stefaniak said that the Liberal Party had some sympathy with Mr Collaery's views but wanted to take its counsel, wanted to have a good think about this. As a result, I did have discussions with Mr Stefaniak.
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