Page 1732 - Week 06 - Tuesday, 6 June 2006
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tight timetable set by the harmonisation process and the busy lives of most people to whom the bill may be of interest seem to be reflected in the somewhat cobbled together appearance of the bill. This may mean that problems in the bill only become apparent over time. This is not an insoluble problem, but it does mean that all the relevant bodies need to be especially vigilant to ensure that the bill serves its intended purpose.
I am reassured by the support shown by the law society and the bar association for this bill. When researching this bill, my office heard misgivings from legal professionals regarding the multidisciplinary and incorporated legal practice provisions and the relatively weak mechanisms for ensuring that legal corporations do the right thing and take responsibility for the corporate culture that they engender and support.
A fish rots from the head is an apposite saying in this context. Law firms are experts at erecting and maintaining Chinese walls and arms-length relationships. It is part of their daily practice. But it also means that they are experts at maintaining the appearance of such practices, and this skill is increasingly called upon by governments more interested in outcomes and plausible deniability that procedural rigour or ministerial responsibility.
I turn now to some criticism highlighted in the committee’s report. The first criticism is one that I have echoed many times in this Assembly. In fact, I introduced a bill to help address the problem, but it was voted down. In a judgment last year, the ACT Chief Justice observed of an explanatory statement that, “consistent with the apparent purpose of such documents, it explained as little as possible”. I hope he had his tongue in his cheek when he said that but, as I have said before, merely repeating verbatim the actual working of a clause in the explanatory statement does nothing to assist interpretation. The purpose of an explanatory statement, Mr Speaker, is—surprise, surprise—to explain. Perhaps the new Attorney-General will be able to get his head around that one.
The committee report makes a strong point about the failure of explanatory memoranda to include any human rights discussion. We are left with a bland statement that this bill, and nearly every other bill presented to this Assembly, is compatible with human rights, but we are given no hint as to the reasoning applied or why that conclusion was reached. This is something that I have asked to be provided to this Assembly, or at least the scrutiny of bills committee, but I have been refused every time.
The draft report also draws attention to a very disturbing possibility that entry into intergovernmental agreements, such as the one driving these laws, could be used, deviously or otherwise, to justify a derogation from a right under the Human Rights Act. Where this occurs, it should be clearly spelt out in the explanatory statement, as should any provision that creates a strict liability offence. This bill creates 20-odd strict liability offences, but the explanatory statement makes no mention of the fact.
There are a number of other possible infringements of the Human Rights Act that are not raised in the explanatory statement. While I appreciate that the human rights office is stretched for resources, if this experiment in democratic evolution is to succeed, it is incumbent on that office and the government to engage in a dialogue about human rights, given that that is the model that we have adopted, and, where laws are proposed that amount to a prima facie breach of human rights, to explain why they have decided that such a breach will not occur in practice.
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