Friday, 7 October 1983 The PRESIDENT (Senator the Hon. Douglas McClelland) took the chair at 9 a.m., and read prayers. The Clerk —Petitions have been lodged for presentation as follows: To the Honourable the President and the members of Senate in Parliament assembled. The petition of the undersigned students and staff of the University of Queensland respectfully showeth: (1) that in 1979 the Liberal Government introduced overseas student fees, (2) that those fees have been regularly increased since their introduction, (3) that the financial burden has caused hardship for overseas students studying here, who have limited earning capacity. We call on this government to review the decision taken to introduce tertiary fees for overseas students. And your petitioners as in duty bound will ever pray. by Senator Georges (from 24 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens respectfully showeth: That the Sex Discrimination Bill 1983 contains provisions inconsistent with principles of justice and equality which could be used to Undermine civil liberties and religious freedoms. Entrench abortion funding and render liable to action hospitals, doctors and nurses who conscientiously refuse to become involved in morally objectionable operations. Deny to parents their rights to insist that the school ''community'' provide an environment conducive to the development including the moral development of their children. Your petitioners humbly pray that the Senate, in Parliament assembled: should amend the Bill so as to prevent the possibility of its use in the manner stated above and urge, because of the importance to society of the principles involved, that a conscience vote on the Bill be permitted to all Members of Parliament. And your petitioners as in duty bound will ever pray. by Senator Archer (from 292 citizens). To the Honourable the President and Members of the Senate in the Parliament assembled. The petition of the undersigned citizens of Australia respectfully showeth: That the 1983 Budget imposition of the excise on grape spirit used in fortifying wine places at risk the future of the fortified wine industry in Australia. That the requirement to pay the excise within 7 days of the fortification occurring is inequitable. That the excise will be reflected in increased costs to the consumers of fortified wines of up to 100 per cent and consumer choice will be restricted. That this will cause reduced fortified wine sales which will result in reduced intake of grapes from grapegrowers. Your petitioners therefore humbly pray that the Federal Government will reconsider their previous decision and either withdraw this tax or modify its method of application and collection. And your petitioners as in duty bound will ever pray. by Senator Messner (from 269 citizens). To the Honourable the President and Members of the Senate in Parliament assembled. The Petition of the undersigned citizens of Australia respectfully showeth that whereas the Government of Australia has signed the United Nations Covenant on Civil and Political Rights which in Article 23 (1) states that 'The family is the natural and fundamental group unit of society and is entitled to the protection by society and the State'. And whereas the terms of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women would violate the above Article 23 (1). We humbly pray the Government to refrain from ratifying the Convention on the Elimination of All Forms of Discrimination Against Women; Believing that its implementation would result in- (1) Undue cost to the nation at this time. (2) 'The elimination of any stereotyped concept of roles of men and women at all levels' as described in Part 3 Article 10 (c), being a disruption of traditional parental roles, is likely to result in emotional disturbances of childhood. (3) The strong encouragements to mothers to join the workforce, with the provision of networks of creches and child care centres as outlined in Article 11 of the convention is likely to result in maternal deprivation and psychological disturbances among children with an increase in childhood psychiatric illnesses. (4) The sexual role changing as recommended in Part 3 Article 10 (c) is likely to contribute to further marriage insecurity and breakdown. And we pray you may be conscious of God's sovereign purpose for our Nation. And your petitioners as in duty bound will ever pray. by Senator Boswell (from 2,850 citizens). Petitions received. Senator MAGUIRE(South Australia) —At the request of Senator Georges, I give notice that, on the next day of sitting, he will move: That so much of the Standing Orders be suspended as would prevent such senators as are members of the Joint Statutory Committee of Public Accounts attending meetings of the Committee during sittings of the Senate on Wednesday, 12 October , and Wednesday, 19 October 1983. Senator BOSWELL(Queensland) —I give notice that, on the next day of sitting, I shall move: That the Senate- (1) Notes the dramatic development that has occurred in Queensland in a manner that has attracted people from all over Australia to that State; (2) notes the international reputation which has been developed that Expo '88 will be held in that State; and (3) notes that despite this progress, this new generation development and sophistication, standards have been retained which cherish a true regard for the family and other enduring aspects of Australian life which are threatened by the policies of the Australian Labor Party. Bills received from the House of Representatives. Motion (by Senator Grimes) agreed to: That so much of the Standing Orders be suspended as would prevent the questions with regard to the several stages for the passage through the Senate of the Bills being put in one motion at each stage and the consideration of such Bills together in the Committee of the Whole. Ordered that the Bills may be taken through all their stages without delay. Bills (on motion by Senator Grimes) read a first time. Second Readings Senator GRIMES(Tasmania-Minister for Social Security)(9.05) —I move: That the Bills be now read a second time. I seek leave to incorporate the second reading speeches in Hansard. Leave granted. The speeches read as follows- The purpose of this Bill is to increase the limits imposed by the Dairying Industry Research and Promotion Levy Act 1972 on the amount of levy which may be imposed, on the production and sale of whole milk and butter fat, for the purpose of promoting the sale of dairy products in Australia. The actual amount of levy imposed is set by regulation and is known as the operative rate. The proceeds of the levy are paid into the Dairy Produce Sales Promotion Fund from which the Australian Dairy Corporation draws funds for its domestic promotion activities. At present the Act provides that the operative rates of levy for promotion purposes may not exceed 12 cents per 100 litres of whole milk and $3 per 100 kg of butter fat. The operative rates are currently at those levels. Earlier this year the Australian Dairy Corporation and the Australian Dairy Farmers' Federation recommended that the maximum limits be increased to 24 cents per 100 L of whole milk produced and to $6 per 100 kg of butter fat produced. In doing so the Corporation and the Federation argued that with significant falls in returns on the export market and with every prospect of those returns continuing to fall, there should be much more active promotion of Australian dairy produce on the domestic market. The Corporation mentioned cheese as being a particularly suitable candidate for increased domestic sales if it were more extensively promoted. The Minister for Primary Industry (Mr Kerin) accepted the recommendations and on 17 June 1983 was pleased to announce the Government's decision to present legislation to increase the maximum rates at the earliest opportunity. The result is this Bill. Honourable senators may be interested to know that, since then, the Australian Dairy Corporation has, in accordance with sub-sections 13 ( 3) and (4) of the Act, recommended to the Minister, after consultation with the Australian Dairy Farmers' Federation, that the operative rates of levy for promotion purposes in respect of whole milk and butter fat be increased to 19 cents per 100 L produced and $4.75 per 100 kg produced respectively. On the assumption that the recommended operative rates apply on and from 1 November 1983, and based on present projected production figures for 1983-84, total income from the levy for 1983-84 would be in the order of $9.2m. By comparison, last year's income was $6.5m. The industry's view, as I understand it, is that the revenue from increased domestic sales resulting from greater promotion of dairy products will more than offset the cost of the levy to farmers. I stress that the industry itself has requested the increases in the maximum and operative levy rates. I also note that there are no Commonwealth contributions in respect of the levy for domestic promotional purposes and no financial implications in the Bill for the Commonwealth. As for the remaining clause of the Bill, the opportunity is being taken to correct an anomaly in the Act. Paragraph 9 (1) (a) of the Act refers to gallons while the remainder of the Act is in terms of litres. The Bill will correct this minor inconsistency. I commend the Bill to honourable senators. The purpose of this Bill is twofold. First, it corrects an anomalous situation whereby levy was not payable on the dairy product content of certain mixtures. Secondly, it provides that, under certain circumstances, levy may be refunded in respect of dairy products contained in other products that are exported, thus removing doubts about whether levy could be refunded in those circumstances. The Dairy Industry Stabilization Levy Act 1977 imposes a levy, with certain exceptions, on dairy products defined by the Act produced at a factory. The levy does not have to be paid until the products are sold and is payable by the proprietor of the factory at which the products were produced. The proceeds of the levy are used to finance a dairy produce price stabilization scheme whose purpose is to protect the domestic price structure for leviable products by providing manufacturers with equalized returns from their domestic and export sales of leviable products. The first of the proposed amendments will ensure the leviability of the buttermilk powder and whole milk powder content of certain products produced by the removal of water from a mixture of buttermilk or whole milk and one or more other substances. Under the revised definitions of buttermilk powder and whole milk powder inserted by clause 3 of the Bill the buttermilk powder or whole milk powder content of such products, provided it comprises at least 25 per cent of the product, will be subject to levy. The proposed amendment will correct the current anomaly that levy is paid when a mixture is made by combining ingredients in their dry state, but not paid on a similar mixture made by combining the ingredients in a liquid state and drying the resulting product. By virtue of sub-clause 3 (2) levy will only be imposed on these products on and from the first day of the month following the month on which the Act receives the Royal Assent. This limitation is necessary as levy payments are calculated on a calendar month basis. The Act presently provides for levy to be refunded on dairy products that are exported. If the levy were not refunded the export competitiveness of the products would be reduced. Under the Act as it stands, however, it is not possible to refund levy paid on dairy products that are mixed with other substances to produce other products that are exported. Clause 4 of the Bill will correct the situation. Honourable senators will realise, however, that, given the range of products that contain dairy products, it would not be feasible or realistic to provide for refunds of levy in every case. It was therefore considered desirable to place some limits on the circumstances in which a refund of levy will be available. Proposed sub-sections 6 (3A) and (3B) provide that a refund will be authorised where the percentage of dairy products contained in the product which is to be exported is not less than a percentage set by regulation. Regulations may be made to vary the minimum requirement, but they may not require there to be more than 75 per cent of dairy products in the product. The Act already requires that any regulation being made under this section must be made taking into account any recommendations of the Australian Dairy Corporation, after consultation with the Australian Dairy Industry Advisory Committee. The proposed sub-sections also provide that a refund will not be authorised unless the application for refund is made in respect of a consignment of 15 tonnes or more. The consignment may consist entirely of products containing at least the minimum percentage of dairy products or may also include ordinary dairy products. Sub-clause 4 (2) simply ensures that the amendments concerning refunds only apply prospectively. I commend the Bill to honourable senators. This Bill contains amendments to three Acts, the first of which is the Dairy Produce Act 1924. That Act establishes the Australian Dairy Corporation and also contains the legislative framework for the dairy products export return pooling scheme. The other Acts affected by the Bill are the Dairy Industry Stabilization Act 1977 and the Dairying Industry Research and Promotion Levy Collection Act 1972. These Acts contain the administrative procedures for collecting, disbursing and accounting for receipts under the Dairy Industry Stabilization Levy Act 1977 and the Dairying Industry Research and Promotion Levy Act 1972 respectively. I have explained the purposes of these Acts in my earlier second reading speeches on amendments to the Acts. The amendments to the Dairy Produce Act 1924 are intended to bring up to date the Corporation's powers over contracts for the carriage of dairy products by sea to places beyond Australia, to provide a legislative basis for the manner in which the Corporation administers certain provisions of the export return pooling scheme and to make other minor adjustments to the scheme, to require the Corporation to credit any surplus or debit any deficit incurred by it in respect of its export sales of dairy produce to accounts maintained under the export return pooling scheme, and to bring into line with current levels the penalties for offences under the Act. The first clause of note is clause 4. This clause substitutes a new section 19 dealing with conditions relating to contracts for the shipment of dairy produce overseas. Under the existing section 19 it was necessary either for the Corporation to determine conditions relating to contracts for the shipment of dairy produce or for such contracts to be made only by the Corporation on behalf of exporters. It recently came to attention that the Corporation had not approved any conditions, yet exporters were entering contracts directly, not through the Corporation. The Corporation indicated that it did not wish, at this stage, to involve itself in the making of shipping contracts. As the Corporation might, at a later date, need to be able to impose conditions, for example in relation to freight rates as part of an agreement with a shipping conference, it was decided that a revised section 19 providing the Corporation with discretionary powers in relation to shipping contracts should be inserted in the Act, rather than simply repealing the existing section 19. Accordingly, proposed sub-section 19 (1) provides that the Corporation may approve conditions relating to contracts for the carriage of dairy produce by sea to a place beyond Australia. Proposed paragraph 19 (2) (A) requires the Corporation to officially notify licensees (incidentally, all persons wishing to export prescribed dairy produce from Australia must be licensed to do so by the Corporation) of any such conditions. Proposed paragraph 19 (2) (B) requires licensees to comply with any such conditions while proposed sub-section 19 (3) makes failure to comply with the conditions grounds for revoking a licence to export dairy produce. Proposed sub-section 19 (4) makes it clear that failure to comply with conditions approved by the Corporation does not mean that a contract so made will be void or unenforceable. This is in direct contrast to the existing section 19 which provides as a sanction for failing to comply with conditions that such contracts are void. Such a sanction has proven not to be effective, and in any event, if relied upon, could have undesirable consequences for the international marketing of dairy products. The new sanction of cancellation of a licence is considered to be more appropriate and effective and is consistent with the approach taken in such provisions in other similar legislation. Clause 5 of the Bill is concerned with revisions of the export return pooling scheme established by section 20AB of the Act. New sub-sections (4AA) and (4AB) will require more detailed notification arrangements where the assessed export price or the minimum export price is fixed or varied. These prices are part of the mechanism by which the amount that is to be contributed by or paid to the exporter under the export return pooling scheme is determined. The amendments made to sub-section 20AB (5) by paragraphs 5 (B), (C) and (D) of the Bill will correct an anomaly which arises from the fact that the Act is silent as to pooling requirements at times when an export sale takes place at a price which obtains a return below the minimum return in circumstances where the minimum return exceeds the assessed return. As a result, it is presently possible for an exporter selling at the minimum price to receive a lower net, after contribution to pool, return than an exporter who sells below the minimum price. Current administratively desirable practices of the Australian Dairy Corporation in relation to the export return pooling scheme will be given legislative authority by the amendments effected by paragraph 5 (E) of the Bill. In essence the amendments will provide, in contrast to the existing legislation which is administratively unworkable, that exporters will receive direct the proceeds of their export sales and will then have to remit to the Corporation any required contribution to the export return pooling scheme. Proposed sub- section 20AB (8A) will facilitate the recovery from exporters of amounts which they are required to pay under the export return pooling scheme but which they have not forwarded to the Corporation at the required time. Honourable senators may be aware that the Corporation, acting pursuant to the power conferred on it by section 15 of the Dairy Produce Act 1924 to buy and sell dairy produce, is a significant trader in dairy products on the export market. Clause 6 inserts section 24A into the Act. This section will provide legislative authority for a current, appropriate, practice of the Corporation by requiring it to credit any surplus made by it in a particular financial year as a trader on the export market to accounts kept under the export return pooling scheme. Similarly the section will require the Corporation to debit any deficit incurred by it in a financial year as a trader on the export market to those accounts. The basic requirement will be to credit or debit amounts to pools maintained in the production year to which the exported product relates, that is , if product produced in 1981-82 is sold and exported in 1982-83, any surplus or deficit resulting from the export sale is to be credited to or debited from the appropriate 1981-82 product pool, not the 1982-83 pool. However, it may not always be appropriate or administratively feasible for the Corporation to carry out the transfer as required. For example, should a deficit occur on a sale of a product produced in 1981-82, but sold in 1983-84, at the time the deficit comes to light insufficient funds may remain in the 1981-82 pool to fully meet the deficit. A mechanism has therefore been included in proposed section 24A whereby the Minister may direct the Corporation to credit or debit surpluses or deficits to the most appropriate production year pool or pools. It should be noted that equity considerations may also influence any such directions as individual manufacturers may not contribute equally to the same export pools each year. Proposed sub-section 24A (7) provides that in making a decision on this matter the Minister may receive advice from the Corporation which in turn is required to consult with the Australian Dairy Industry Advisory Committee, the body established under the Dairy Produce Act 1924 to advise the Corporation in the performance of its functions or the exercise of its powers. Proposed sub-section 24A (6) provides for the Corporation to take into account amounts, if any, credited to the export pooling scheme as a result of its trading activities, the Corporation is regarded as an ordinary exporter for the purposes of the scheme and thus must contribute or receive payments accordingly, in ascertaining whether a surplus has been made by it or a deficit incurred. This provision does not affect costs which would normally be taken into account such as: Ordinary costs associated with exporting such as storage, insurance and shipping costs; and payments to producers in the nature of premiums in respect of dairy products which the Corporation purchases made pursuant to sub-section 20AB (4A). Clause 8 inserts a new section 8A into the Dairy Industry Stabilization Act 1977. The proposed section provides explicit legal standing for an already established procedure by requiring proprietors of factories who obtain a refund of levy to pass on the benefit to the exporter. The background to the provision is that the price paid for leviable dairy products takes into account the amount of levy payable on those products, including where the purchaser intends to export the products rather than sell them on the domestic market. Where a leviable product is sold on the export market it is appropriate to refund the levy and the person who is legally entitled to the refund is the person who has paid the levy. However, if exporters did not in turn receive the benefit of this amount they would be obliged to pass on the cost in their prices and the export competitiveness of the products concerned would be reduced accordingly. This amendment will ensure that this does not occur. The amendments to section 21 of the Dairy Industry Stabilization Act 1977 made by clause 10 and those to section 10 of the Dairying Industry Research and Promotion Levy Collection Act 1972 made by clause 15 insert a standard provision requiring warrants to contain a date on which they will cease to have effect and omit the offence of obstructing an officer in the course of his duty as the offence is adequately covered by section 76 of the Crimes Act 1914. Clauses 7, 12 and 17 provide for the revision, in accordance with current standards, of penalties for offences under the Dairy Produce Act 1924, the Dairy Industry Stabilization Act 1977 and the Dairying Industry Research and Promotion Levy Collection Act 1972 respectively. Clause 14 brings up to date section 7 of the Dairying Industry Research and Promotion Levy Collection Act 1972 by increasing the amount of penalty for late payment of levy that may be remitted by an authorised person from $10 to $100. Clause 16 provides that an appeal from a decision to refuse to remit an amount of penalty may be made to the Administrative Appeals Tribunal and inserts a provision requiring notice of appeal rights to be given at the time the original decision is notified. Clause 11 inserts a similar appeal provision in section 24A of the Dairy Industry Stabilization Act 1977, which will apply to section 6, the section in that Act dealing with penalty payments and their remission. It is worth noting that an appeal will lie not only from a decision of an authorised person, but also from a decision of the Minister, who is authorised to remit any amount of penalty. Clause 11 also inserts a notification of appeal rights provision in relation to the existing appeal mechanism applying to determination of production quotas under section 11A of the Dairy Industry Stabilization Act 1977 . I point out that the amendments contained in this Bill have no direct financial implications for the Commonwealth. The proposed section 24A of the Dairy Produce Act 1924 concerning the transfer of surpluses and deficits resulting from the Corporation's trading activities to relevant export pools will have implications for the dairy industry. It is not possible to quantify that impact as it will depend on future surpluses or deficits resulting from the Corporation's trading activities. I commend the Bill to honourable senators. Debate (on motion by Senator Collard) adjourned. Bill received from the House of Representatives. Ordered that the Bill may be taken through all its stages without delay. Bill (on motion by Senator Grimes) read a first time. Senator GRIMES(Tasmania-Minister for Social Security)(9.07) —I move: That the Bill be now read a second time. I seek leave to incorporate the second reading speech in Hansard. Leave granted. The speech read as follows- This Bill continues the practice developed during the last Parliament of introducing an omnibus Bill into each sittings of the Parliament to make a large number of non-contentious amendments. In introducing the omnibus Bill in the last sittings I informed the Senate of the criteria that had been approved for determining whether a proposed amendment might be included in such a Bill. The consequence of adopting those criteria is a rather shorter Bill on this occasion with less complicated provisions to consider. I commend the Bill to the Senate. The following supplementary statement explains in detail the changes to the various Acts which are to be made by this Bill, but does not include minor amendments of a drafting nature: Supplement to Second Reading Speech Administrative Appeals Tribunal Act 1975 The purpose of this amendment is to make it clear that part-time members of the AAT do not have the entitlement to a pension under the Judges Pensions Act 1968 which section 18 confers on presidential members of the AAT. Airports (Surface Traffic) Act 1960 The existing penalty for illegal parking at Commonwealth airports was set in 1976. That penalty is inadequate having regard to present day money levels and does not serve as a deterrent. Moreover, the present level of penalty no longer allows for economic recovery of the costs of pursuing unpaid parking infringement notices. Australia-Japan Foundation Act 1976 The purpose of the amendments is to provide standard provisions relating to disclosure of possible conflicts of interest by statutory officeholders. The amendments accord with the recommendations of the Bowen Committee of Inquiry Concerning Public Duty and Private Interest. A similar amendment has been proposed to the Australian Centre for International Agricultural Research Act 1982. Australian Broadcasting Corporation Act 1983 The first substantive amendment makes it clear that the Chairman of the Board of the Corporation ceases to hold office as Chairman if he ceases to hold office as a Director. The other substantive amendment requires the Principal Community Affairs Officer to inform a complainant of his decision made on the investigation of a complaint. Australian Capital Territory Supreme Court Act 1933 The proposed amendment is intended to remove restrictions (now contained in sub -section 35 (1) of the Australian Capital Territory Supreme Court Act) on the functions that may be conferred on the Registrar of the A.C.T. Supreme Court, and on the means by which such functions may be conferred. In particular, it will permit Ordinances to confer functions on the Registrar which are not in respect of proceedings pending in the Supreme Court. There are many instances where it is highly desirable for functions, related to the Court's responsibilities but not necessarily to pending proceedings, to be conferred on the Registrar. Australian Federal Police Act 1979 The proposed amendments to this Act are necessary to ensure consistency with the amendments made to section 36 of the Act by the Statute Law (Miscellaneous Provisions) Act (No. 1) 1983 to ensure that in the selection of members of the Australian Federal Police for promotion to a vacancy within a rank, and in cases where particular expertise or qualification is required, consideration may be given to an applicant's possession of those requirements. Broadcasting and Television Act 1942 The purpose of these amendments is to remove unnecessary conditions imposed on the application for a Community Television Aerial System licence, to improve certain administrative procedures of the Australian Broadcasting Tribunal and to remove unintended restrictions on test permits. Section 83 requires a licensee of a Community Television Aerial System (CTAS) to provide a detailed program undertaking at the grant or renewal of a licence. That requirement is unnecessary as CTAS licences only permit the retransmission of programs originated by other stations. The proposed amendment will remove that requirement and make the provisions of CTAS licences consistent with the analogous translator licences. Under sections 90J and 92F the Chairman of the Tribunal is required to personally undertake certain functions. The proposed amendments of sections 90J and 92F will permit the Chairman of the Australian Broadcasting Tribunal to delegate to other members of the tribunal his authority to accept an application for a share transaction. The amendment will also provide the Tribunal with the discretion to extend the deadline for lodgement with the Tribunal of an application for a change in ownership in the shareholdings of a licensee. The provision of a discretionary extension of the deadline is necessary as the existing time limit of 28 days has proved to short for persons acquiring shareholdings indirectly and places such persons in breach of the Act. Sub-section 126 (6) of the Act prohibits the holder of a permit for test transmissions from broadcasting or televising advertisements. The purpose of the proposed amendment is to allow the transmission of advertisements by permit holders in certain instances, including where a permit has been granted in relation to a proposed broadcasting translator station licence or a proposed television translator station licence. Commonwealth Legal Aid Act 1977 The Commonwealth Legal Aid Council ascertains and reviews the need for legal assistance in respect of Commonwealth matters and advises and makes recommendations to the Attorney-General on the most effective and economical means of satisfying that need. Community legal centres are involved in the provision of legal aid services, advice, referral and research. The Centres are staffed by both volunteer and salaried staff and are managed by members of the community in which they operate . In 1983, thirty-two Centres throughout Australia are receiving grants from the Government. The proposed amendment will make provision for the appointment of an additional member of the Commonwealth Legal Aid Council who is representative of community legal centres. Copyright Act 1968 The Bill includes provisions which amend the Copyright Act 1968 to rectify technical drafting defects which have come to light since the Copyright Act was amended in 1980. The most significant amendment is to s. 133 which contains penalty provisions for the offences of piracy of copyright material. The effect of the amendment is to make it clear that the penalty provisions apply to piracy of sound recordings , broadcasts and published editions. The application of these was rendered uncertain when special penalties were included in the 1980 amendments to deal with piracy of cinematograph films. Crimes Act 1914 Section 21AA of the Crimes Act 1914 deals with the power of courts when sentencing a Federal offender to take into account, in certain circumstances, other offences in respect of which an offender has admitted his guilt but not been sentenced. The section is being amended to bring it into line with recently amended provisions of the Judiciary Act 1903. A court will then be able to take into account indictable offences committed outside the jurisdiction if the court would have had power to sentence the offender in respect of that offence pursuant of section 68 of the Judiciary Act 1903. Economic Planning Advisory Council Act 1983 The Economic Planning Advisory Council, known as EPAC, was set up by the Government to continue the process of consultation and co-operation begun at the National Economic Summit in April this year. EPAC's central purpose is to provide independent, community-based advice to the Government on the broad conduct of economic policy, particularly in a medium and longer-term context. EPAC has at present a membership of seventeen, drawn from the Commonwealth and State Governments, industry, the union movement, local government and community groups. There is, however, no specific provision for the appointment of a member drawn from the small business sector. In view of the importance of that sector in the Australian economy, the Government believes that there would be great value in having on EPAC a member with special knowledge of the problems faced by small businesses. The proposed amendment would allow such an appointment to be made. Environment Protection (Northern Territory Supreme Court) Act 1978 This is a consequential amendment on the abolition by the Northern Territory Legislative Assembly in 1980 of the 'Territory Parks and Wildlife Commission' and its replacement with 'The Conservation Commission of the Northern Territory' . Evidence Act 1905 Section 4 of the Evidence Act provides that all courts shall take judicial notice of the official signature and seal of any person who holds, or has held, any office to which the Governor-General, by order published in the Gazette, declares the section to apply where the signature or seal purports to be attached or appended to an official document. The section also provides for judicial notice to be taken of the fact that such a person holds, or has held, the office concerned. It has been the practice to publish the Governor-General's orders from time to time as the need arises. It has also been the practice when making revised consolidated orders to revoke the previous consolidated order, except in relation to signatures or seals purporting to have been attached or appended before the date of the new order. There are doubts that the section does in fact authorise this procedure because it does not specifically provide for the making of orders for offices which have ceased to exist. It is also doubtful that an order made in relation to an office that ceases to exist after the making of the order, continues to operate. The amendments are designed to overcome these doubts. Section 6 of the Act provides for the admissibility in evidence in all courts of a copy or extract of a Commonwealth public book or document if it purports to be signed and certified as a true copy or extract by the officer in whose custody the original is entrusted. However, if that officer is served with a subpoena calling on him to produce the original, he must produce the original. The amendment will permit the officer to produce a certified copy or extract, in answer to a subpoena calling for production of the original, but enabling the court to require production of the original to be produced if it thinks fit. The amendment is designed to overcome administrative problems that have been caused when a court has custody of original records admitted in evidence. It will bring the Commonwealth Evidence Act into line with evidence laws of most of the States . The purpose of the proposed amendment to sub-section 7A (1) is to apply Part IIIA of the Act, which facilitates the admissibility of business records in proceedings in federal courts, to proceedings in courts of the Australian Capital Territory. Part IIIA was inserted in the Act in 1978 and is based on recommendations of the N.S.W. Law Reform Commission. Provisions dealing with this subject matter are to be found in most States in relation to proceedings in State Courts. It is highly desirable that parties to proceedings in Australian Capital Territory courts have the benefit of the provisions of Part IIIA of the Act. Federal Proceedings (Costs) Act 1981 The purpose of the amendment is to overcome inequities which now arise from the operation of the Act. The Act has a statutory limit on the amount payable for costs in respect of any one appeal. Where, as is usually the case, the costs of both parties in an appeal are covered by one certificate, the total costs normally exceed that limit. Usually, in such cases, the costs are apportioned on a pro- rata basis. Each party receives a part payment and of his cost and bears the balance of his costs of the appeal. This situation is aggravated where a new trial is ordered as a result of a successful appeal. For the purpose of the statutory limit a new trial is presently treated as part of the appeal. The one amount must therefore cover two proceedings. The proposed amendment provides that the prescribed maximum amount payable under the Act applies separately to each costs certificate granted in respect of an appeal, or of a new trial, rather than to the sum of all the costs certificates granted in respect of the appeal, including a new trial. Growth Centres (Financial Assistance) Act 1973 Land Commission (Financial Assistance) Act 1973 The insertion of a new sub-section 10 (5A) in these Acts will allow the Commonwealth and a State to vary, by agreement, the terms and conditions in relation to the repayment of loans made by the Commonwealth under the Acts. At present the only variation of a loan agreement allowable is in relation to the period of repayment of the loan-sub-section 10 (4). Judiciary Act 1903. There are a number of amendments to this Act. The first amendment inserts a new section 39B into the Act. Paragraph 75 (v) of the Constitution confers original jurisdiction on the High Court in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The High Court has a heavy workload and one way of reducing that workload would be to confer jurisdiction in paragraph 75 (v) matters on the Federal Court. The High Court cannot be divested of its jurisdiction in this area. Section 44 of this Act empowers the High Court to remit matters pending before it to any federal court, or court of a State or Territory where that court has jurisdiction in respect of the subject matter and the parties. The proposed amendment will not only confer jurisdiction so that proceedings under paragraph 75 (v) may be commenced in the Federal Court but will also allow the High Court to remit to the Federal Court matters commenced before it. The proposed amendment will also close in part a gap which has been left by section 9 of the Administrative Decisions (Judicial Review) Act 1977. Section 9 has had the effect of depriving State courts of some jurisdiction which those courts formerly possessed to review decisions and actions of officers of the Commonwealth. But the whole of the jurisdiction so taken away was not conferred on the Federal Court under that Act. As a consequence some parties who might formerly have obtained relief in a State court were confined to seeking relief only in the High Court. Following the amendment they will be able to seek relief also in the Federal Court. The Federal Court will not initially have jurisdiction under the proposed new legislation in relation to matters arising before the Conciliation and Arbitration Commission, the Public Service Arbitrator, the Coal Industry Tribunal or the Family Court of Australia. However, further consideration is being given to extending the capacity of the High Court to remit matters under section 44 in relation to these areas. Under section 40 of the Act, the Commonwealth and States are each able to apply for removal into the High Court, as of course, of a proceeding involving a constitutional issue. Under section 78A of the Act, the Commonwealth and the States are each able to intervene in such a proceeding. The Northern Territory also should have these rights which would be consistent with self-government. The proposed amendments of those sections will achieve that result. The purpose of the amendment to section 44 of the Act is to enable the High Court to remit part of any matter that is at any time pending in the Court to any federal, state or territory court that has jurisdiction with respect to the subject-matter and the parties. At present the High Court is only empowered to remit the whole matter. This is an unnecessary restriction on the Court's power, as the High Court should be able to remit any aspect of proceedings which can more appropriately be dealt with by another court, e.g. hearing evidence. The amendment has the support of the Chief Justice of the High Court. The proposed amendment of section 78B will achieve improved operation of that section of the Act, which provides for Commonwealth and State Attorneys-General to be given notice of proceedings in which a constitutional issue is involved with a view to their considering intervening in the proceedings or removing them into the High Court. It will also put the Northern Territory on an equal footing with the States as regards receipt of such notices. A new section 88 is to be inserted allowing the making of regulations necessary or convenient to be prescribed under the Act, the content and form of notices under section 78B, the practice and procedure for the giving of notice and specifying any affidavits that are necessary to be attached to section 78B. Law Officers Act 1964 The Law Officers Act is being amended to include a provision (section 16A), enabling the Solicitor-General to be paid in lieu of long leave. Commonwealth employees have had entitlement to long service leave since 1943 and the legislation provides for payment in lieu of taking long service leave. The provisions were revised in the Long Service Leave (Commonwealth Employees) Act 1976. Sub-section 10 (3) of that Act excludes from the operation of the Act holders of judicial office and the Solicitor-General. Since the 1960s judges have had, by administrative arrangement, entitlement to long leave and to payment in lieu where that leave was not taken. In 1979 payment in lieu of long leave was put on a statutory basis for High Court Justices and judges of federal courts. Unfortunately, at that time a similar provision for the Solicitor- General was not addressed, which only became apparent earlier this year when the Solicitor-General informed me of his intention to retire later this year. Under the 1968 amendments of the Law Officers Act 1964 the Solicitor-General has been entitled since that time to payment of pension in respect of his period of service on an equivalent basis to the entitlement for judges of federal courts. In 1980 the Solicitor-General's salary and allowances were increased to the same level as was paid to judges of the Federal Court of Australia. These movements in the Solicitor-General's entitlements demonstrate a clear intention to equate the Solicitor-General with the status of a judge of the Federal Court and the proposed amendment will give effect to that position in relation to payment in lieu of long leave. Sub-section 17 (2) of the Act is being amended to enable delegation of my powers and functions to officers of my Department other than the Secretary as at present. It will take a considerable load off my personal functions and also those of the Secretary in relation to many minor matters of administration which do not require my personal attention, or even the attention of the Secretary, e. g. the appointment under section 44A of the Trade Practices Act of a person to act as Deputy Registrar of the Trade Practices Tribunal whilst the Deputy Registrar is absent from duty. Law Reform Commission Act 1973 The proposed amendment of section 12 (3) of this Act will clarify that the Chairman may perform duties as a judge of the Federal Court notwithstanding that his office as Chairman is full-time. Meat Inspection Arrangements Act 1964 The transfer of the NSW Meat Inspection Service to the Commonwealth was effected on 1 July 1983 under the Meat Inspection Arrangements Act 1964. Under the arrangement meat inspectors previously employed by NSW were transferred to the Australian Public Service. Such transfers are now effected under the Public Service Act 1922, and the proposed amendments under consideration take account of that fact. The proposed amendment extending the application of the Act to the Northern Territory and Norfolk Island takes account of the fact that at some future date the Commonwealth may enter into such an arrangement with either Territory. Pig Industry Research Act 1971 and Pig Meat Promotion Act 1975 The purpose of the amendment to each Act is to include the changed name of the federal pig industry organisation, by substituting Australian Pork Producers' Federation for Australian Commercial Pig Producers' Federation. Nitrogenous Fertilizers Subsidy Act 1966 The purpose of the amendments is to update the anti-dumping provisions in the Act to reflect the corresponding provisions in the Customs Tariff (Anti-Dumping) Act 1975. In 1981 amendments were made to the Customs Tariff (Anti-Dumping) Act to change the anti-dumping criteria. Consequently, the anti-dumping provisions in the Nitrogenous Subsidy Act are in conflict with the provisions in the Customs Tariff (Anti-Dumping) Act. The amendment will remove the inconsistencies between the Acts. Overseas Telecommunications Act 1946 The proposed amendments to sections 13, 23 and 31 of the Act grant the Minister power with respect to certain matters which at present are exercised by the Governor-General. These powers are the appointment of Acting Commissioners, of the Chairman of the Promotions Appeal Board and the Chairman of the Disciplinary Appeal Board. It is felt that the nature of these powers makes them more suitable for exercise by the Minister. Since 1946 sub-section 75 (2) of the Act has imposed a requirement to consult with an advisory body comprised of representatives of all the British Commonwealth Governments, known as the Commonwealth Telecommunications Council, prior to certain action being taken by the Overseas Telecommunications Commission, e.g. changes in rates of services or discontinuance of services. These provisions were first enacted to enable the introduction of new international telecommunications arrangements between countries of the British Commonwealth. The requirement to consult the Council is being repealed by this Bill. A new arrangement for collaborative financial arrangements has been entered into under which there is neither common use by Commonwealth ''Partners' ' of one another's external telecommunications facilities, nor sharing of the operating expenses of those facilities. Patents Act 1952 The amendments to this Act remedy difficulties that have arisen under the recently expanded range of activities and services by the Patents Office. These involve the handling of international applications under the Patent Co-operation Treaty and the provision of more ready access to information contained in patents specifications. The Treaty now provides simplified procedures for obtaining patent protection in a number of different countries. Since its implementation in early 1980 a number of problems have arisen in Patent Office procedures, in the determination of priority dates and in the provision of searches and examination reports. These are overcome by amendments of section 58, 58C and 58F. To facilitate access to the valuable technical information contained in patents specifications, the amendments to section 35 require the preparation of an abstract. Royal Commissions Act 1902 The proposed amendments to the Royal Commissions Act permit a Royal Commission to communicate information or furnish evidence or a document acquired by it to another Royal Commission where it appears to the first Royal Commission that the information, evidence or document is relevant to the matters into which the second Royal Commission is authorised to inquire. Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 The Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 distinguishes the powers of presidential members of the Administrative Appeals Tribunal who are judges of the Federal Court of Australia from other presidential members. By virtue of section 40 of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 certain powers required to be exercised by a presidential member can only be exercised by a presidential member who is a Judge of the Federal Court. Included in this requirement is the jurisdiction of the Tribunal under section 66E of the Migration Act 1958. Following upon the recent recommendation of the Administrative Review Council that any presidential member should be able to constitute the Tribunal for the purposes of hearing applications for review under the Migration Act, the proposed amendment will now permit presidential members who are not necessarily Judges of the Federal Court to hear applications pursuant to the Migration Act. The President of the Tribunal is in agreement with this approach. Telecommunications Act 1975 The amendments relating to the appointment of an Acting Managing Director or part-time Commissioner do not involve any substantive changes but bring these provisions up to date in accordance with current drafting practice. The Bill introduces legislation which will lower the minimum retiring age for employees of Telecom Australia from age 60 to age 55 enabling staff to retire early, although with reduced superannuation entitlements. The legislation extends to staff of Telecom Australia early retirement conditions that are available to staff employed under the Public Service Act and the staff of prescribed authorities under the Commonwealth Employees (Re-deployment and Retirement) Act. Telecom Australia will be given the same flexibility with respect to meetings as those enjoyed by the Parliament House Construction Authority under its legislation. This means that in certain cases meetings will be able to be held and decisions made without all the members being physically present together. Debate (on motion by Senator Collard) adjourned. Consideration resumed from 6 September 1983. Proposed new clause 4BA. Senator HARRADINE(Tasmania)(9.08) — The Committee has reached the stage where, after a debate ranging over a period of six or eight weeks in this Parliament, it is concluding its consideration of amendments to the Family Law Amendment Bill. In all of that time not one of the amendments designed to give genuine legislative support to the institution of marriage has been adopted. The Government amendments on the other hand have, by and large, been directed at post divorce situations and to strengthening the powers of the Family Court of Australia. One aspect of the legislation-that relating to divorce by post, which was passed yesterday-has undermined, in the educative sense at least, support for the institution of marriage. My proposal attempts to provide an opportunity, and indeed an incentive, for persons who separate to have the benefit of marriage counselling, separately and together, at a very early stage. I have moved amendments to section 15 of the Principal Act which, if passed, would enable a notification to be lodged by a separating party with the Family Law Court. Upon receipt of that application the Principal Director of Court Counselling, within 14 days of the filing of the notice, will send a notice to each of the parties to the marriage calling them, separately, to an interview with the marriage counsellor and to a conference, together, with that marriage counsellor for the purpose of considering the legal , social and financial consequences of a dissolution of marriage and, in particular, the effects of a dissolution of the marriage on any children of the marriage. Having regard to the consequences and effects of such action, a reconciliation is then to be considered. I also propose amendments to section 44 which would in effect prevent the Family Law Court from hearing a subsequent application for dissolution of marriage unless one party to the marriage has filed a notice of separation and a period of not less than 12 months has lapsed since the filing of that notice and marriage counselling has taken place. Of course, I have included a provision that where in special circumstances the Court considers that this is not appropriate, those provisions will not need to be observed. Senator Missen's major objection appeared to be about special circumstances. Yesterday he apparently-- Senator Missen —That is a minor objection. Senator HARRADINE —He made a big deal about it yesterday. He apparently was not aware that we had already passed-- Senator Missen —I have not made a big deal of anything. Senator HARRADINE —He did not know that we had already adopted the proposition of the Attorney-General (Senator Gareth Evans). Senator Macklin —It was in the Act. Senator HARRADINE —Of course it was in the Act. Why did he make a big deal of it ? It was proven to be a red herring. Senator Missen —If you will listen for a moment, it was because of the fact-- Senator HARRADINE —Senator Missen will have his chance. He can get up and say-- The CHAIRMAN —Senator Harradine, please address your remarks through the Chair. Senator HARRADINE —That is the quality of the opposition to this amendment. The amendment seeks to do three things. It seeks to overcome the problems which were considered to be inherent in my previous amendment, which this replaces. They are listed in the document which I circulated. The success of my previous amendment was considered to be questionable given that it provided that counselling could take place after the application for dissolution had been filed. Of course, this amendment provides that counselling would take place as soon as possible after the separation. Arrangements for reconciliation counselling must be made within 14 days of the notification of the separation. The second problem with the previous amendment related to the fact that the possibility of reconciliation diminishes the longer a couple is separated. Quite obviously I have in this amendment catered for that objection. The third problem of my previous amendment was that it confused conciliation with reconciliation. Of course I have covered that problem because clearly this amendment refers to reconciliation. Mr Chairman, after this long period we have come to the situation where the Committee has this last opportunity of doing something practical about the real problems, of doing something practical to get reconciliation into the process. It is done against the backdrop of the new figures that have just been released by the Institute of Family Studies, which show that 40 per cent of new marriages will end in failure on 1982 divorce rate figures. The tragic divorce statistics and the problems of stress and anguish that are behind those statistics must be of concern to even the most hard-hearted. Last year the figures of divorce in Australia increased by 48,088. Children directly affected by divorce last year numbered over 53,000, bringing to almost 400,000 the number of children affected by divorce since the Family Law Act of 1975. These, for the most part, have been the unwilling characters in the divorce scene. In the words of the authenticated United States survey, which was reported in the Institute of Family Studies newsletter, more than three-quarters of the children opposed divorce very strongly and many refused to believe it. However, in addition to the cost of divorce in non-material terms, to those directly affected and to society as a whole there is also the cost to the taxpayer. The principal reason of opposition by the Attorney-General to this measure is on the ground of what it would cost. Apart from the enormous cost of the Federal Court of Australia apparatus-I have the documents here relating to Appropriation Bill (No. 1) 1983-84 and the estimates for the Attorney-General's Department-and apart from the enormous cost in Australian legal aid for these cases, let us look at the other costs to the community of divorce in Australia so that we can counterbalance the Attorney-General's opposition to this proposition on the grounds of cost. Since 1975 the number of divorcees receiving the widow's pension has increased by 174 per cent. In 1982, $717.4m was paid out in widow's pension and well over half of those receiving the widow's pension were divorcees or separated wives. Again, almost 70 per cent of those receiving the supporting parents benefit, at a cost in 1982 of $605.9m, are separated wives or de facto wives, which is an increase of more than 300 per cent since 1975. There are very few people in the community who would begrudge the payment of this money, particularly after all the tribulations many of those people have experienced, but the financial as well as other consequences of divorce must be realised. The Federal Government has made some comment about getting tough with maintenance collections, but that is not enough. It does not go to the heart of the problem. Some of us, over the long time that this debate has been ranging, have attempted to amend the Family Law Act to give genuine legislative support to the institution of marriage. After all, as I have mentioned previously, section 46 of the Marriage Act 1961 requires the authorised celebrant during the marriage ceremony to remind the couple of the: . . . solemn and binding nature of the relationship into which you are now about to enter. Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. It is a strange parliament indeed which gives lip service to the institution of marriage but refuses to give it genuine support. It is, after all, the basic institution of society. Not one member of the Government has chosen to consider this issue to be a conscience matter, and I will deal with that later. Senator Walters —Or any other amendment. Senator HARRADINE —No, that is not correct, I think. If cost is the only coherent argument put forward by the Government against this measure, it must be weighed against the enormous cost of divorce in material terms, let alone non- material terms. To those who have not been prepared to accept amendments which go to the heart of the matter, which attempt to give legislative support to the institution of marriage, I say that this is their opportunity to do so. Even those who are indissolubly wedded to the no fault divorce system should realise that this proposal for reconciliation counselling lends itself to a trial. As has been suggested, I think by Senator Walters, let it be a sunset trial if you like, but it is surely entitled to a trial. After all, if there is no fault divorce the notification of separation does not need to contain details of the problems of the marital breakdown. It gives the marriage counsellor a free chance, an opportunity to attempt reconciliation. After all, if we do it in a number of other matters such as industrial relations why not for the basic institution of marriage? Senator Chipp —Mr Chairman, I rise on a point of order. With great respect I say that you have an enormous responsibility today. Sixty senators or more have given up important appointments in their electorates and important meetings to have an additional sitting day for the Senate so that we can undertake and get through Government business. I did not interrupt the speech of Senator Harradine out of courtesy. However, if, simply because we are on air, we are to have honourable senators re-reading their second reading speeches on this matter throughout the course of the day, honourable senators who have spoken identically several times before on this Bill, using these amendments as an excuse to reiterate their views on marriage and divorce, I for one would be quite resentful of what I would regard as an abuse of the acquiesence of senators in sitting an additional day to assist the Government in the conduct of its business. Senator Harradine —Mr Chairman-- The CHAIRMAN —Senator Harradine, I do not need any assistance on this point of order. I am watching the proceedings closely. Senator Harradine's remarks were relevant to his amendment. I will, of course, rule out of order any tedious repetition or irrelevancy, but Senator Harradine's remarks were in order. Senator PETER BAUME(New South Wales)(9.24) —I have been following closely the debate on Senator Harradine's proposed amendment. I suppose that many honourable senators who have not supported Senator Harradine have nevertheless a very great interest in the preservation of marriage. Some of them are as concerned as Senator Harradine, but I think it is proper that we submit every proposed amendment to critical analysis because there may be problems with amendments. I am attracted to the idea of reconciliation counselling taking place between the time a marriage is in difficulty and the time it is dissolved. If we could move to encourage reconciliation and perhaps save even one marriage, even every now and then, society would be the winner. That is the point that Senator Harradine has been trying to make. I do not think that any honourable senator present would disagree with that. But it is correct that we examine some of the problems that the amendment seems to propose. The Attorney-General (Senator Gareth Evans) has raised some valid problems. I am concerned that the counselling should be mandatory. I am concerned about the logistic and resource problems mentioned by the Attorney-General. I am particularly concerned about the objections which the Attorney-General has reported from all the organisations which are involved in counselling. Senator Walters —That was on a previous amendment, though. Senator PETER BAUME —Perhaps the Attorney-General will answer that interjection. Senator Gareth Evans —The objections are to compulsion. Senator PETER BAUME —I am trying, in good will, to raise some of the things that would worry people who are interested in reconciliation but who are not necessarily convinced that what is being proposed will be either practicable or effective. I have one more concern which I do not believe has come out in the discussion so far. As I understand it, a person can file for dissolution of marriage 12 months after the couple has separated. Unless I am mistaken, Senator Harradine's amendment would have the effect of lengthening that period, because people would not be able to have a dissolution of marriage until 12 months after the counselling was complete. Senator Harradine —No. Senator PETER BAUME —As I read the amendment, it said that it was 12 months after people got the certificate to say that the reconciliation process had been in effect. Senator Harradine —No. Senator PETER BAUME —Some honourable senators are shaking their heads. Perhaps they will explain why that is not so. As I read the amendment as it was proposed , I thought that it would have the effect of prolonging the period for the couple. Senator CHANEY(Western Australia-Leader of the Opposition)(9.27) —I intervene only briefly and really because of the intervention of Senator Chipp. I just wish to say that one of the reasons that the Opposition agreed to sit extra time was that there were difficult items of legislation such as this which have always been very time consuming. Initially it was suggested that the whole of Fridays would be devoted to legislation of this sort, which tends to attract the interest of some honourable senators who have very passionate views on the subjects raised. For many of us who have a great interest in the subject matter of this legislation, the fact that others are putting the views that we believe need to be put is the reason why we are not intervening in the debate further. Indeed, on occasions Senator Harradine has put views which I think badly needed to be put in this place. Had he not put them, I might have felt constrained to enter into the debate more often myself. The last thing I want to say is that the significance of the item we are debating is very great. It is significant in a number of ways. We are trying to find the appropriate mechanism which will do most to minimise marital breakdown. That is a matter which is important not just in a narrow sense because of the personal interests of parties. The fact is that there are two significant groups of Australians living in poverty in 1983. They are drawn from the ranks of the unemployed and they are drawn from the ranks of single supporting parents, and the bulk of those come from broken marriages. So there are very great social implications in the area with which we are dealing. I am grateful to those honourable senators who are probing the different propositions which are being put forward in Committee debate. I doubt that we shall debate anything more important during this session. In response to Senator Chipp, I would just ask him to be tolerant of the views of those who see this matter as being of central importance to Australia in 1983. Senator GARETH EVANS(Victoria-Attorney-General)(9.29) —Given the emotions involved in a subject such as this, the debate has been conducted with a good degree of calm and constructive endeavour on all sides of the chamber. It is certainly not the Government's desire to cut short or terminate the debate in any way, even at this late stage. We would, however, share Senator Chipp's hope that we could avoid any further repetition of any arguments at this stage and that is a stricture that I apply to myself as much as to anyone else in the Chamber. Let me just quickly pull together the threads that seem to be left over. I think Senator Peter Baume's contribution stood on its own feet, quite irrespective of the misunderstanding that I think he was under in the latter part of his speech. He did, I think, misrepresent Senator Harradine's proposal to the extent that he suggested it would have implications for stretching out the time that would be needed to be taken before dissolution proceedings could be set in train. Senator Harradine's proposal, as I understand it, is simply this: After a notice of separation is filed, counselling must take place some time between then and when the notice of dissolution is filed, but cannot take place for 12 months after the notice of separation is filed. So as long as it is some time within that 12 months period, there is no stopping of the clock, as it were, before people can in fact set in train the dissolution proceedings. Maybe that will make unnecessary any further intervention in the debate by Senator Harradine, but I am not sure. As to Senator Harradine's contribution this morning, might I simply pull the answers together quickly by saying this: Although his amendment is manifestly well intentioned, and I sympathise profoundly with the objectives which lie behind it, the difficulty with it is that he is unable, in the nature of things, to provide any evidence that his proposal will produce any significant results by way of better reconciliations of marriages in the process of breaking down. Indeed, all the available evidence is very much to the opposite effect. The plain fact of the matter is that the experts, the marriage counselling organisations, some 20 organisations, with which we consulted specifically on this point-in the context, true, of the previous amendment-do not, any of them, wish to be involved in compulsory counselling of any kind. The only organisation that has stated a different view is the Catholic Family Welfare Bureau of Canberra and that is an organisation which has had not one single section 14 (6) referral from the court to give it an experience of a compulsory counselling situation. All the other organisations we consulted have had substantial experience of section 14 (6) compulsory counselling and say: 'It is all counter- productive. It does not help. For God's sake, do not vest us with this responsibility'. Similarly, the Family Court counsellors are wholly opposed to compulsory counselling of any kind, and they should know, just as the marriage counselling organisations should know. Compulsory counselling is, for all intents and purposes, generally and universally unacceptable to those who should know, and it is that element of compulsion which is exactly the same in Senator Harradine's amendment as in the existing section 14 (6) proposal. There are some differences, of course, in the two proposals and it may be that the requirement of counselling in a conference situation, with both parties present, which is a central feature of Senator Harradine's proposal, may make some small difference to the possibility of reconciliation. We do not know. There is simply no evidence available on this point. They are the possible benefits involved in this. On the other side of any equation that a government must apply are the costs when weighed against the benefits, in this case very dubious benefits, and here the costs are simply enormous. The reality of the matter is that, whether we like it or not, there are over 40,000 dissolutions taking place each year. The counselling involved for those, on a compulsory basis, if this amendment were to go through, would involve three sessions, on Senator Harradine's rule, for each one of those marriages. Thirty thousand counselling sessions would have to be arranged over and above those that are provided for at the moment. Our calculation-and I now have available a detailed breakdown which I did not have yesterday-shows that, if those counselling services were to be provided through the Family Court, the all up cost per annum, not just starting up costs but per annum, would be $26m. It may be less than that if the money were channelled to external organisations. But given the resources and everything else associated with doing it through the Family Court, that is what it would be. Weighed against the wholly speculative benefits, indeed the very dubious benefits, and on the evidence of the marriage counselling organisations, the likely counter- productivity, when it comes to benefits, that sort of cost simply cannot be justified as an experiment to see whether it would work. Might I suggest to Senator Harradine that we do have still in the legislation, as we know-and he can point to the inconsistency and I acknowledge it-a provision for compulsory counselling so far as young or short marriages are concerned, that is, the two year marriages. We have, in the course of this debate, amended slightly the situation that has been prevailing, to the extent that that counselling has to take place before filing rather than after it, as was previously the situation. It may be that as a result of that we will get some better experience of the way in which that kind of compulsory counselling works. Certainly we can keep this under review, and certainly we share the aspiration that anything we as a Government, as a society, can do to stop marriages breaking up ought to be done. But in all the circumstances that I have explained , the counter-productivity of compulsion combined with the cost and the resource factor makes this amendment simply unacceptable at this point. I hope, since I am really doing no more than repeating matters that have already been raised in this debate, that we can now proceed to a vote on the issue. Senator REID(Australian Capital Territory)(9.36) —I was in my room doing something else when I heard the Attorney-General (Senator Gareth Evans) start speaking. He said that he did not believe that this provision delayed the introduction of the dissolution proceedings. I believe the wording of the amendment in fact does mean that one cannot file for an application for dissolution until 12 months after the notice of separation is filed. Senator Gareth Evans —But the counselling itself does not delay it. I think that is the misapprehension under which Senator Peter Baume laboured. Senator REID —If one can get a divorce within 12 months from the date of separation, that significantly alters the thrust of the Family Law Act. To that extent Senator Peter Baume was absolutely correct in the proposition that he put forward and I think the way the Attorney-General expressed himself was misleading. This amendment, in fact, would be a very significant alteration to that aspect of the Act if it were to be included. I am basically in sympathy with what Senator Harradine is talking about. I believe that, even to the extent that compulsion is unacceptable, if it becomes the practice to seek counselling as soon as the crisis is recognised a reconciliation may be achieved in some cases. The separation may even be made a more civilised process than can occur now before people get to any form of counselling. We should try to get them to accept going to a counsellor to seek help at that point, because that is the point where help can be of benefit in making, as I say, even a separation more civilised and in stopping the fighting over children and access at a very early stage. To that extent I am very much in sympathy with what Senator Harradine says. Getting help should become a part of the community concept of marriage-we certainly get help if we have a toothache or appendicitis-but the concept of seeking help with our personal relationships is not well accepted. Paragraph (2) of the amendment proposes that a party to a marriage may file in the Family Court, but the next paragraph proposes that an application for dissolution shall not be filed for 12 months. I would like to support this, and say that the financial costs, if this measure is really worth while, have to be considered as a totally different thing. The way it is now I see as causing absolute chaos and litigation about when the document was filed and the meaning of it. People will have difficulty in understanding it. I am sure the lawyers will be delighted, because the 'may' in the one place and the ' shall' in the other will lead to litigation. Senator GARETH EVANS(Victoria-Attorney-General)(9.39) —Might I clarify any further wreckage I may have caused. I do not want to be unfair either to Senator Harradine in regard to his proposal or to Senator Peter Baume but the situation is that I think I was right in saying that the counselling process itself would not necessarily cause any delay because there is no requirement that time stop running until the counselling process is completed, which I suspect is what Senator Peter Baume thought the proposed section meant. I can understand that reading of it. It certainly does not do that but equally it is true that it introduces a new procedural step that has to be taken which does not exist at the moment, and that is the filing of a notice of separation. Certainly the 12 months needed to establish separation existing before one can file notice of dissolution only starts running from the filing of such a notice, and to the extent that that is a practical matter-people might not file the notice of separation the first time the suitcase is packed-that may mean considerably longer periods elapsing and a degree of confusion as to when time does start to run when it comes to the dissolution stage. But if someone filed the notice of separation at the time the suitcase was first packed it does not necessarily follow, of course, that there would be any additional time factor involved than is the case under the existing law because the 12 months would then start running from the first day of the separation. So in terms of the time implications, it does not necessarily add to it. I think there is some point in what Senator Reid said about the practical implications of this matter and, possibly, a degree of confusion, but I do not honestly think this is anything more than a red herring in the debate. I think the real issues are those that have been articulated by Senator Harradine and, hopefully, by me from the other point of view. Senator HARRADINE(Tasmania)(9.41) —I appreciate the support in principle given by Senator Margaret Reid. What she said is quite true; if it were to become known that reconciliation counselling is required it would become an acceptable part of the situation. I think Senator Reid said in those short words what perhaps I should have said in introducing this measure. However, she quibbles with the words 'may' and 'shall'. I do not know precisely what else one could have done. One cannot demand that persons who are separating file a notification of that fact with the Family Court of Australia. After all, they might be separating for a number of reasons. They may separate on a mutual understanding. Senator Chipp —They could separate without having a divorce. Senator HARRADINE —Yes, they could certainly do that. This avenue is open to somebody who may be very confused. It is also open to the other party of the marriage to file the application. But say, for example, the man shoots through on the wife. Very often that is the case. The wife does not know where the husband is, what his intentions are or whatever. The man might be confused. If it is understood very broadly throughout the community that this measure is available to the husband or wife a notification can be made. He may have in the back of his mind the thought that a dissolution of marriage might be sought at some future stage. He will then know that an application for dissolution cannot be filed until 12 months after the filing of a notice of separation. That is an incentive to him to file the notification in the Family Court. Of course, that is at the very early stages. If the marriage counsellor sees him and the wife separately and has discussions with them together, the marriage counsellor has a real chance of sorting out their confusion. As my amendment states, the counselling is with the parties, both separately and jointly, and in a conference. What will occur? The parties to the marriage will be given counselling to consider the legal, social and financial consequences of a dissolution of marriage and, in particular, the effects of a dissolution on any children of the marriage and, having regard to those consequences, consider a reconciliation. That will focus their minds on the facts of life. So many divorces occur because people drift into divorce. I am grateful to Senator Reid for raising the point that if it becomes public knowledge that this is the requirement under the law and that an application for dissolution of marriage cannot be filed until 12 months of the filing of the separation notice, required reconciliation counselling of the nature envisaged by my amendment will be accepted without any problems. The problem arises, it appears from the Attorney-General (Senator Gareth Evans), in regard to administration and cost of the matter. As Senator Reid said, let us not be concerned about that cost if it engenders a community response and attitude conclusive to success. Obviously, some major administrative problems would be involved. There would need to be recruitment and training of skilled counsellors . As has often been said, on the reconciliation side counselling by unskilled and inadequately motivated people is sometimes worse than no counselling at all. I acknowledge that to be a problem, but I come back to the objections that marriage guidance organisations or approved marriage counselling organisations have to my previous proposition. I did not know that I had at least one supporter for my previous proposition. I am glad to hear that. Senator Chipp —What do you have to say to that, because these people are in the field, are they not? They say it is not working. Senator HARRADINE —They said that my previous proposition- Senator Gareth Evans —The compulsion is the same. You have not mentioned the word 'compulsion' once. Senator HARRADINE —I will read what the psychological counselling section of the Attorney-General's Department said. Senator Gareth Evans —Who? Senator HARRADINE —The people who have been passing notes to the Attorney- General. I picked up the points they made. They said of my previous proposition that the major resistance to it was to its compulsion. They then went on in relation to clause 7 to explain: Almost without exception organisations were influenced by the complete failure of section 14 (6) referrals to produce reconciliation. This section applies to people who seek divorce with less than two years of marriage. The approved organisations which support the amendment had no experience with section 14 (6) referrals. Presumably, this is the question that the honourable senator is talking about. I had one supporter for my previous proposition, and presumably that is the organisation that did not have section 14 (6) referrals. This is the whole point : We are dealing with experience of section 14 (6) matters. Senator Gareth Evans —It is a compulsory counselling situation, the best analogy we have. Senator HARRADINE —This is the only thing you have. Section 14 (6) requires a compulsory interview not with both parties necessarily present but with either of the parties. The other aspect is that the counselling is after the application for a dissolution has been made. That comes into clause 6 of the document, which says: It is generally agreed that once a couple has filed for divorce it is too late for reconciliation. I agree that the longer a couple is separated, the harder it is to get reconciliation. Quite clearly, that objection was based on the fact that the previous proposition involved counselling after application for disallowance of marriage had been filed. My new amendment picks up that objection also. That is another reason I altered it. The counselling in my proposal now before the Senate will take place not only before the application for dissolution but also, typically, well before-nine to 12 months before. Senator Gareth Evans —You have picked up one objection, but ignored the central objection. Senator HARRADINE —The Attorney-General should be fair. He has said that there is a whole range of objections. The objections are based on experience under section 14 (6) and they were valid in regard to my last proposal. The measure that I have put forward is entirely distinct from section 14 (6) because of the reasons I have mentioned. Senator Chipp —Compulsion is still an essential part of your proposal. Senator HARRADINE —Oh, is that the problem? Compulsion is the nub of the problem , is it? Well, why did the Attorney-General earlier in this debate move a motion for compulsory reconciliation counselling for young married couples? If compulsion is the problem, why did he do that? He also picked up the objection that counselling may be too late if it is done after the application for dissolution of marriage has been filed. The only difference between the legislation now under section 14 (6) and the proposed new clause is that reconciliation counselling will be required before the application is made. My worry about that provision is that it does not pick up the other problems pointed out by marriage counselling organisations; that is, they will say that reconciliation counselling is more successful if one can get both parties together. In retrospect, I think the Attorney-General's amendment to clause 17 will not work because it does not pick up that problem. Will the Attorney- General come into the chamber after two years experience under this provision and say: 'Well, it will not work because it does not take account of what I have said'. Senator Gareth Evans —We can see how it works with a market of 500 cases a year and not commit ourselves to doing 50,000. Senator HARRADINE —It does not pick up the objections. The other point that was made by Senator Peter Baume-the question of the mandatory nature-has been dealt with. The Committee has already approved it. The Attorney-General voted for that . The objections from organisations are made of straw, because they were on my previous proposition. I have picked up all of the problems that have been raised . I admit that practical problems of cost and administration are involved, and those practical problems are real. Senator Peter Baume —Do you have any expressions of support for your new proposition from the counselling organisations? Senator HARRADINE —Yes. I have picked up all of their complaints. Senator Peter Baume —No, do you have expressions of support from them now? Senator HARRADINE —No, because I have not distributed my proposal to them. It was printed only on Tuesday of this week. I wrote to honourable senators about it. The final point that was made was that there are practical problems. I acknowledge that there are practical problems-manpower, or people power, problems, and so on. I acknowledge that that is a real problem. Between the time this matter is considered in this chamber and it is considered in the House of Representatives, let us consider how those administrative problems can be overcome. The Attorney-General should have a look at the problems. If there is some support for this proposal in principle, the Government should look at how the administrative problems can be overcome. I believe, as I said before, that if reconciliation processes are mandatory in a range of areas, from industrial relations to sex discrimination, and they work in those areas, why can they not work in this area of human relationships? I ask the Minister to release the members of his Party from their voting obligations on this Government Bill and allow them to have a conscience vote on the issue, so that a genuine vote can take place. Senator GARETH EVANS(Victoria-Attorney-General)(9.55) —There is no difficulty about any member of this chamber voting on a free vote basis on this matter. Senator TEAGUE(South Australia)(9.56) —I will try to be very brief. I support, in principle, Senator Harradine's amendment, as I did the original amendment, to strengthen provisions for reconciliation that Senator Harradine moved and we debated on 24 August. The dilemma before us is that most honourable senators do support bona fide attempts towards reconciliation when there are pressures making for difficulty in a marriage. There is provision in the Family Law Act for a judge of the Family Court of Australia at any stage to give consideration to the possibility of a reconciliation of the parties. However, in practice what we have seen in the last eight years is that this has amounted to an empty phrase in the law and there has been no real outcome in terms of reconciliation. One of the reasons for this is that, by the time the matter is before the Court, 12 months have elapsed and the difficulties and divisions between the separated parties have become entrenched. It is particularly inappropriate to have compulsory attempts at reconciliation at that very late stage. Senator Macklin —Not always. Senator TEAGUE —I do not want to be too distracted because I do not want to take up the time of the Senate. The dilemma is that there is a bona fide wish on the part of most honourable senators that there be attempts at reconciliation. There is provision for reconciliation in this general way in the Act, but in practice this does not come about. However, with regard to marriages that have lasted for less than two years there is, under section 14 (6) of the Act, a direct compulsory provision that the dissolution of a marriage cannot be considered if the parties have not been referred to a marriage counsellor approved by the Court. Senator Harradine's original amendment, which many of us supported in our remarks on 24 August, was to make the present provision for marriages of less than two years available to all marriages. The objection was then put-it has been repeated here today-that it is too late after 12 months have elapsed for that reconciliation process to work. Therefore Senator Harradine, I believe in very good faith, has put forward this week this revised amendment which would provide for notice of separation at an early stage of difficulty in a marriage and the immediate procedural step of reference to a marriage counsellor. I think that this is a genuine attempt to overcome the objection that the reconciliation process will be ineffective if the 12 months of entrenched separation has occurred before that reconciliation process starts. That is why I support, in principle, Senator Harradine's revised amendment. The objection to compulsory counselling is acknowledged, I think, by all of us; there will be more likelihood of reconciliation if there are not any elements of compulsion. However, that does not deny that there will be some benefits if there is a direct procedural step in considering the dissolution of a marriage. That is why I believe that encouragement for reconciliation will give more practical effect to the attempt by all of us in this debate to save marriages. My last remark has only to do with the cost. On behalf of the Government Senator Gareth Evans said that this amendment would cost the Government $26m. Senator Missen —Per annum. Senator TEAGUE —Per annum. If there are 40,000 dissolutions of marriage in any year, that means that the cost to the Government for each marriage dissolved will be $650. I do not know whether the cost of marriage counselling in respect of one marriage in difficulties would amount to $650 in one year. Senator Missen —That cost would include training the new counsellors, of course. Senator TEAGUE —Maybe that cost also involves training. I want us to consider what the net recurrent cost is, not the cost of setting up accommodation and the cost of the training of these marriage counsellors. I am very surprised at this costing of $26m. I would find it more reasonable if the figure was about one- sixth of that. I think that a professional marriage counsellor who charged $100 for even lengthy discussions with a couple who were separated or who were seeking marriage counselling would be of some real assistance. The main point I want to make about the cost, even if this estimate is extremely exaggerated, is that that cost ought to be borne by the parties themselves and not by the Family Law Court or by the taxpayer. An analogy was made before with regard to workers compensation or other procedures that require a professional certificate. In those cases the professional costs are borne by the individual involved and not by the government. So I do not see this exaggerated cost as being an impediment to this amendment. Rather, the only argument that bears consideration is the degree of compulsion, which will undermine the effectiveness of the reconciliation process. I agree that there is some substance in that argument, but my conclusion is this: Let us have some practical outcome of all our attempts to see a reconciliation process that is effective and saves marriages. I support Senator Harradine's amendment and commend it to all honourable senators. Senator REID(Australian Capital Territory)(10.03) —Very briefly, I just wish to say that I think that if this amendment is agreed to by the Committee the clause will need some drafting attention before it becomes operative. I intend to support the amendment because I support the thrust of it. I think that paragraph 2A (b) sets up a litigious potential that ought to be looked at. If the amendment is accepted I believe that this clause ought to be looked at again, perhaps by one of the committees of the Senate, in terms of how it would operate . Perhaps now is not the time to be indulging in drafting on the run. Senator WALTERS(Tasmania)(10.04) —I rise very briefly. Senator Gareth Evans —Go on. Senator WALTERS —It is a pity Senator Gareth Evans looks pained, because I will only take two minutes. I take that two minutes because I want to raise my sunset clause aspect. It is about the only question he has not answered. Senator Macklin —He did last night. Senator WALTERS —He did not mention it last night. This could be an educative process. At the moment it is not the done thing to go to marriage guidance counsellors. People feel a bit ashamed about going. This is a pity. Every counsellor who came before the Joint Select Committee on the Family Law Act said the same thing. They said: 'We believe that we can do something for people if we can see them early enough'. I am well aware that one cannot legislate to get them early enough unless one legislates for guidance prior to marriage, which we should think about. The situation in future would be that one would not be able to get a divorce unless one seeks counselling. It would work down the line. I believe that in a few years people would be more readily able to face guidance counsellors as soon as the first problem arises in the marriage. It will be accepted in the early stages because it is compulsory. I believe that if the Attorney-General (Senator Gareth Evans) asked counsellors a question on this matter they would say the same as they did to the Joint Select Committee on the Family Law Act. Senator Zakharov —They do not. They say the opposite, in fact. Senator WALTERS —Senator Zakharov is not listening to the debate at all if that is what she is saying. What the counsellors have said to Senator Gareth Evans-I admit it-is that compulsion at a late stage is no good at all. But to the Committee they said: 'If only we could get these people early, if only we could get them at the first problem in the marriage, we believe we could do something about it'. I believe this compulsion is educative. In a few years time people will be going to the counsellor at an early stage in their marriage problems. Senator GARETH EVANS(Victoria-Attorney-General)(10.06) —I would hate Senator Walters to go unanswered in any respect in this debate. To the extent that it is desirable to have some kind of experiment to see whether compulsory counselling in some context may not work, might I suggest to her that we do have such an experiment with the revised section 14 (6). Although it is a different model, it is not the same model, at least on the issue of compulsion and on the issue of time-to the extent that it runs now at any time up to the point of filing for divorce rather than, as previously, having to be done only before the dissolution proceedings-we have some basis for getting further and better results as to how this kind of situation might work. I acknowledge all the points of difference Senator Harradine insists upon. An experiment involving an average of 500 or so divorces a year is one that is manageable in terms of governmental resources, as compared with one involving 40 ,000 divorces a year. We are talking about nearly $26m a year, whatever the figure is along the way. We just cannot afford to have an experiment of that kind. I hope that will be accepted by Senator Walters as the answer I am giving, whether or not she likes it. Senator WALTERS(Tasmania)(10.07) —I ask the Attorney-General (Senator Gareth Evans); Will he look at just those marriages that have children? That will reduce the 40,000 divorces considerably. He might be able to manage that sort of thing. Senator Gareth Evans —Just the marriages with children are 60 per cent of the total. Senator WALTERS —Well, it has cut it almost in half. Senator HARRADINE(Tasmania)(10.08) —I was not going to enter this debate again, but Senator Gareth Evans has forced me to do so. Senator Gareth Evans —I acknowledged all the differences. Senator HARRADINE —The honourable senator did not. Obviously he does not understand it. Do I have to go over all of his Department's documents? If he likes, I will read it word for word and show what the situation is. This document is the basis for the advice the honourable senator is being given on this matter. If the honourable senator is saying his amendments to proposed new section 44 (1B), relating to young marriages, are going to be a test of the efficiency of compulsory counselling of the type that I envisage, that is absolutely wrong and he knows it. In fact, his amendments are contrary to what is contained in the document prepared by the psychology and counselling section of his own Department. I will quote from page 3. The officer concerned says: This all suggests several conclusions that counselling is most likely to result in reconciliation if it takes place prior to, or immediately after separation. The fact is that I took that suggestion into account. The Attorney-General had not done so. His clause 17, proposed new section 44 (1B), does not pick up another matter referred to by marriage counselling organisations; that is, that both parties should attend counselling separately and together. His proposed new section does not require this. Therefore, there is no validity at all in the suggestion that counselling under his proposal will be the test of the issue; none whatsoever. Indeed on page 3 of that document, the author, Gerald Sanctuary , talks about the experience in Finland. If the Minister wants me to read what Gerald Sanctuary said I will take the time of the Senate to read it. Gerald Sanctuary is dealing with situations which are not no fault divorce situations, where there has already been talk of divorce. A person who is in this situation is already totting up the faults in the other party. This was the very type of situation said by proponents of the no fault divorce to militate against reconciliation. As I said before, anybody who supports the no fault divorce, and I am not, ought to support the proposition that I am putting forward. Question put: That the amendments (Senator Harradine's) be agreed to. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 18 Noes . . . . . . . . . . . 29 —— Majority . . . . . . . . . 11 —— Archer, B. R. Jessop, D. S. Boswell, R. L. D. Kilgariff, B. F. Carrick, Sir John Lajovic, M. E. Chaney, F. M. Lewis, A. W. R. Collard, S. J. Messner, A. J. Crichton-Browne, N. A. Reid, M. E. (Teller)Durack, P. D. Teague, B. C. Guilfoyle, Dame Margaret Townley, M. Harradine, B. Walters, M. S. Baume, Peter McClelland, DouglasBolkus, N. Macklin, M. J. Childs, B. K. Maguire, G. R. Chipp, D. L. Martin, K. J. Coates, J. Mason, C. V. J. Coleman, R. N. Missen, A. J. Colston, M. A. Ray, RobertCrowley, R. A. Reynolds, M. Evans, Gareth Richardson, G. F. Evans, Jack Robertson, E. A. (Teller)Gietzelt, A. T. Ryan, S. M. Grimes, D. J. Walsh, P. A. Haines, J. Withers, R. G. Hamer, D. J. Zakharov, A. O. Jones, G. N. Amendments negatived. Proposed new clause 16A. Senator MISSEN(Victoria)(10.17) —The Committee will recall that this matter related to a recommendation by the Family Law Council. I previously moved an amendment which was the draft that the Council had prepared and which was defective because it did not fit into the proposed new clause, as it was. Also, Senator Harradine made suggestions that its terms were not wide enough. This amendment relates to a specific desire to have conciliation among the principles that ought to be applied by the Family Court of Australia and other people affected. Reconciliation, which, of course, is covered under the present section 43, is covered in the general meaning of conciliation but the reverse does not apply. There certainly is no reference among the principles to conciliation. Of course we are concerned with conciliation. Perhaps I should say something about the history of this amendment. Since the last time we considered this amendment I have had the assistance of the staff of the Attorney-General (Senator Gareth Evans) and the parliamentary draftsmen. They have suggested that there should be a separate clause. My previous amendment did not fit very well in section 43. They have prepared proposed new section 43A. I will be moving the amendment standing in my name. It is actually not amendment No. (43). I will be withdrawing amendment No. (43) and moving amendment No. (44) which is the redraft of amendment No. (43). That is a proposed new separate clause which sets out certain procedures not only for the Court but also for other courts and any legal practitioner acting under the provisions of the Act or consulted by a person considering instituting proceedings. The new amendment states that the wide field of people involved in the administration of the Act shall: . . . have regard to the need to direct the attention of parties to such proceedings and persons considering such proceedings to- (a) the facilities provided by courts exercising jurisdiction under this Act for counselling to assist parties to marriages and children of marriages to adjust to the consequences of marital breakdown; and (b) the procedures available for the resolution by conciliation of matters arising in the proceedings. I put to the Committee that this is a practical and useful way of drawing attention to those facilities. I think part of the problem in the past in cases of breakdowns has been that a great deal of unnecessary trauma has occurred and there has been a lack of knowledge by parties of the counselling they can obtain . The drawing attention to and the use of those facilities means that people will know that they can have the voluntary use of those facilities. I think that particularly for children of the marriage a great deal of unnecessary hardship occurs because of the fact that very often in divorce proceedings the children are used, one person against the other, as a weapon. I believe that the amendment, as redrafted, is sufficiently wide to cover the field. It draws attention to the principles of conciliation which I think are much more likely to have practical operation in reconciliation. No matter what we might wish, at least we must recognise that much can be done to smooth the change and the creation of new families so that the innocent victims of a breakdown do not suffer unnecessarily. The CHAIRMAN —Is leave granted for Senator Missen to withdraw his amendment No. (43) and move as a substitute amendment No. (44)? There being no objection, leave is granted. Senator MISSEN —I move: (44) Page 12, after clause 16, insert the following new clause: '16A. After section 43 of the Principal Act the following section is inserted: ''43A. The Family Court and any other court exercising jurisdiction under this Act, and any legal practitioner acting in proceedings under this Act or consulted by a person who is considering instituting proceedings under this Act, shall have regard to the need to direct the attention of parties to such proceedings and persons considering such proceedings to- (a) the facilities provided by courts exercising jurisdiction under this Act for counselling to assist parties to marriages and children of marriages to adjust to the consequences of marital breakdown; and (b) the procedures available for the resolution by conciliation of matters arising in the proceedings.''.'. I thank the Attorney and his staff for the assistance they have given me. Senator HARRADINE(Tasmania)(10.21) -Let us be clear about what we have just done and what we are doing now. Senator Missen has just said that he believes it is more practical to concentrate on conciliation rather than reconciliation. Senator Missen —No, conciliation-reconciliation is already in the Act. Senator Gareth Evans —Section 43 of the Act deals with it. Senator HARRADINE —I know what is in the Act. I am about to tell Senator Missen what is in the Act. He did not know yesterday. Senator Missen —Is that so? Senator HARRADINE —He obviously did not know what was voted upon. This chamber has just rejected the proposal for reconciliation, a proposal which, on the experience of all other areas of human conflict, would certainly have had some chance of support and some chance of success. Now the concentration is being placed on divorce conciliation. In other words, the attitude is: 'Settle it quickly and no matter what, we will fix up the consequences'. It does not go to the heart of the problem. To add insult to injury, it is to be put in section 43 of the Act as a new section 43A. What does section 43 state? Senator Gareth Evans —It is a new section; it is not in the same section. Senator HARRADINE —It is a new section 43A. Senator Gareth Evans —Following section 43. Senator HARRADINE —Yes, it is to be section 43A. Section 43, entitled ' Principles to be applied by courts', states: 43. The Family Court shall, in the exercise of its jurisdiction under this Act or any other Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to- (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; (c) the need to protect the rights of children and to promote their welfare; and (d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage. The thrust of Senator Missen's amendment is away from reconciliation and towards divorce settlement conciliation. That is precisely the thrust of Senator Missen' s amendment. It is going into that very area in the legislation which was put up in 1975 as a sop to the people who feel very strongly about the institution of marriage. No other part of the legislation, as Senator Missen knows, contains the words 'the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life'. What does the Act then say? Section 48 provides that a marriage can be dissolved after 12 months separation. Then yesterday, the Senate voted that certain marriages could be dissolved by post. Now Senator Missen is attempting to put into that very section-- Senator Missen —We are not doing that. Senator HARRADINE —Senator Missen is doing that. Given his vote on the previous matter, that is what he is doing in this context. Having regard to what he did before by rejecting the attempts that have been made to provide a pattern of reconciliation, Senator Missen is attempting to change the thrust of this Act to ensure that the facilities of the courts and other areas are focused predominantly on divorce counselling. I believe that is a retrograde step. If it is going to be put in somewhere, do not put it in section 43. Senator Missen —It is not in section 43. Senator HARRADINE —It is in section 43. Senator Missen is proposing a new section 43A. It is in the area of section 43. Senator Missen's amendment proposes a new section 43A, as I have repeated time and again. The CHAIRMAN —Order! I point out, Senator Harradine, to avoid any further confusion, that if this proposed new section is passed it will become section 44 . It is proposed section 43A at the moment only for procedural reasons. Senator Gareth Evans —That is not true, unfortunately. We keep the same numbers. The CHAIRMAN —It would become a new and appropriate section in the Act. It would not have the same number. Senator HARRADINE —It is proposed section 43A. It would come immediately after section 43, which I have just read out. Am I right or wrong? That is the point I am making. It is in the scheme- Senator Gareth Evans —How would you like it put somewhere else in the Act? Would you be happy then? Senator HARRADINE —It would certainly be better placed elsewhere. I do not want it in at all, to be quite frank. I will deal with that in a moment. The Government could deal with it similarly to the way it is dealt with in New Zealand. It should consider that. I do not suggest that it should deal with it in that fashion but it should consider what is done in New Zealand. I will have a copy of the New Zealand legislation available shortly. Unfortunately, it has not yet come to hand. If we look at what is done in New Zealand we will be able to examine whether it is appropriate. Senator GARETH EVANS(Victoria-Attorney-General)(10.29) —I indicate that the Government's attitude is one of support for Senator Missen's amendment. We would take seriously the points that Senator Harradine is making were this to be the only reference in the legislation to conciliation or reconciliation, as the case may be. But, of course, it is not the only reference. It has to be read in the light of the other provisions as they presently stand. It has to be read in the light, first of all, of paragraph (d) of section 43-a different section, notwithstanding its proximity to the proposed form in which Senator Missen moved his amendment, and a section which stands in its own right as a separate and distinct obligation upon the Family Court. It states that in the exercise of its jurisdiction the Court shall have regard to: the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage. Right back in the very early part of the Act, section 14 (1), under the heading 'Part III-Counselling and Reconciliation', which is where one would naturally turn in the first instance to find out what the Act says about the matter, states: Where proceedings for a dissolution of marriage have been instituted . . . it is the duty of the Judge or magistrate constituting the court and of every legal practitioner representing a party to give consideration, from time to time, to the possibility of a reconciliation of the parties. Senator Harradine —That is a farce, and you know it. Senator GARETH EVANS —We are talking about what the spirit, the intention, the symbolic flavour, of the legislation is. If Senator Harradine's argument had any weight at all it was by reference to criteria of those kinds. The practical implementation of these matters is another question. Senator Harradine was talking about what emerges from the whole flavour of the construction and the content of the Act and its individual clauses. That is the truth of the matter. That is the nature of the point which he was making. By reference to those criteria which Senator Harradine was applying, the reality of the matter is that this little conciliation clause of Senator Missen' s is outnumbered two to one by reconciliation clauses elsewhere. It is clear that that is the primary thrust. Senator Missen's proposed new clause is there simply to make it clear that in the context of an irretrievable breakdown situation where the dissolution process is irrevocably under way, where the parties have filed for dissolution, very sensibly, the Court is directed to have regard to the possibilities of conciliation of the disputes coming before the Court rather than inexorably forcing the parties into a adversary fighting relationship and having their matters resolved down to the very last blow by the Court itself. It is a direction to the Court to employ, so far as is possible, dispute resolution mechanisms which do not involve the judges themselves, to go outside the Court to try to get a settlement of these matters where there is irreconcilable, irretrievable breakdown, without relying on the Court to arbitrate, determine, decide, adjudicate, every last matter in dispute between the parties. That is what the proposed new clause is all about. It stands separately and on its own feet. Senator Harradine knows that perfectly well. It would be tragic if the direction to have regard to reconciliation were to be removed entirely from the Act, leaving a direction of this kind. That would seriously undermine one of the basic objectives which we all share, and that is, to try to keep marriages together so far as is humanly possible. That is not the context in which this proposal was put forward. Senator Harradine knows that perfectly well. He has engaged in a last ditch debating point. As we all know, he is a splendid last minute debater. There is no substance whatsoever to the point that he has made. I urge the Committee to accept Senator Missen's amendment. Senator WALTERS(Tasmania)(10.33) —I pose the question: Would it be better if the proposed new clause were inserted in part III? Senator MISSEN(Victoria)(10.33) —No, we have placed in this part of the Bill principles to be applied by the courts. Obviously, this is another principle not presently included but which would be followed. If the Family Law Council thought that it was appropriate, it would be applied. The principles should go together and follow one another. Senator HARRADINE(Tasmania)(10.34) -That is the reason I opposed it. It is not a debating point. As Senator Missen said, this clause deals with the principles which should govern the Family Court. The principles which have been established are very high sounding ones. What are they? They are about the need to preserve and protect the institution of marriage; the need to give the widest possible protection and assistance to the family as the natural and fundamental group of society; the need to protect the rights of the children and promote their welfare, and the means available for assisting the parties to consider reconciliation or the improvement of their relationship to each other in their marriage. They are high sounding principles. The new clause would insert a so-called principle. It is not a principle at all ; it is a matter of practicality. Any solicitor worth his salt ought to be referring people to facilities which are available, and not only those provided by the courts. I notice Senator Missen's amendment refers to facilities provided by courts exercising jurisdiction under this Act for counselling to assist parties to marriages and children of marriages to adjust to the consequences of marital breakdown. It does not apply only to the Court. Why just say directed to the 'court exercising jurisdiction'? Senator Missen —Read (b). That covers the whole lot. Senator HARRADINE —No, it does not. It states 'procedures available for the resolution by conciliation of matters arising in the proceedings'. What about the welfare agencies, both voluntary and State? Senator GARETH EVANS(Victoria-Attorney-General)(10.36) —Senator Walters asked me a question and on looking at the structure of the Act, I think she probably has a point. Maybe Senator Harradine also has a point. I wonder whether Senator Missen might care to relocate the new section he has proposed. I suggest that it go after section 16 of the Act in Part III which deals with the procedures to be followed in respect of counselling in the context of both counselling and reconciliation. If that helps to meet the kind of objection, to the extent that it has any substance, that Senator Harradine raised, it is a section that stands on its own and I believe it would fit equally well there. In those circumstances perhaps, Mr Chairman, I could seek leave to move that Senator Missen's proposed new section be renumbered as 16A instead of 43A. The CHAIRMAN —It might be easier if Senator Missen sought leave to amend his amendment, if he is prepared to do so. Senator MISSEN(Victoria)(10.37) —I am quite happy to do that. It is a question of whether it should go ahead of the notice seeking counselling. Section 17 provides for the finishing of certain documents and so forth. It would seem to me that if it is to go into Part III it ought to be ahead of section 15. Senator Gareth Evans —After section 14. It could be 14A. Senator MISSEN —Yes. I would be happy to seek leave to move that the proposed new section be renumbered 14A. The CHAIRMAN —Is leave granted? Senator HARRADINE(Tasmania)(10.38) —I will have to oppose that. The CHAIRMAN —Are you refusing leave to amend the amendment, Senator Harradine, or do you want to oppose the revised amendment? Senator HARRADINE —I oppose the amendment. Proposed new section 14A is not appropriate. The CHAIRMAN —Is leave granted for Senator Missen to change his amendment? Senator WALTERS(Tasmania)(10.38) —Does it matter where the proposed section goes in Part III? I am also opposed to putting it in Part V but I would not mind it going in Part III as section 14A. If it will lead to conciliation in this Parliament, perhaps we could make it section 16A and put it further down the line. Senator MISSEN(Victoria)(10.38) —I am quite happy to make it 16A if it makes sweetness and light prevail in the Senate. The CHAIRMAN —Senator Missen, do you seek leave to amend your amendment No. (44) so as to make the proposed new section 16A? Senator Missen —Yes. The CHAIRMAN —Is leave granted to amend the amendment in that way? There being no objection, leave is granted. The question now is that Senator Missen's amendment, as amended, be agreed to. Senator HARRADINE(Tasmania)(10.39) —Could I ask the mover of the amendment or the Attorney-General what the word 'counselling' in sub-paragraph (a) means? Senator MISSEN(Victoria)(10.40) —I will have a go at that. I suggest that the wording is wide enough. I presume that Senator Harradine is worried that it may not include the private organisations and bodies. I would have thought that ' facilities provided by courts' would fundamentally include those people employed by the Family Court in its counselling service and would be wide enough to include also facilities for the Court to suggest that people obtain counselling from private organisations. If that is the worry he has I would have thought that that also comes within the general expression of (b) where procedures available for conciliation would cover all those sorts of bodies. Senator HARRADINE(Tasmania)(10.41) —That was one point, but the question really was: What is the meaning of counselling per se? Senator GARETH EVANS(Victoria-Attorney-General)(10.42) —I do not think there is any formal definition of counselling in the Act. It is simply a generic expression to refer to parties endeavouring to resolve the conflict between them by non-arbitral, non-adjudicative procedures of the many different kinds that are provided for in the Family Law Act. It is not a term of art as employed in this particular context. It is just giving content to the notion of dispute resolution by means other than judicial determination. I think in that context Senator Harradine would agree that it makes some sense. Senator HARRADINE(Tasmania)(10.43) —I assume that it extends to reconciliation counselling-- Senator Gareth Evans —Yes, certainly there is no question of that. Senator HARRADINE —For the purpose of debate on this matter in the House of Representatives could I just flag the fact-I will not bore the Committee with this at the moment-that members could look at the provisions relating to what is required of lawyers in the New Zealand situation? I have not made a deep study of that situation but something I read yesterday attracted me to some part of it . Proposed new clause, as amended, agreed to. Clause 25 (Powers of court in custodial proceedings). Senator WALTERS(Tasmania)(10.44) —If there is one thing we have learnt in this debate I suppose it is that politics is the art of the possible. As it was not possible for my previous amendment to be passed in this chamber I have, with the assistance of the officers of the Attorney-General's Department, had it rephrased. It has, in my opinion, been watered down. It is a watered down version of the recommendation from the Joint Select Committee on the Family Law Act. Nevertheless, even though it is a fall back position, it is better than nothing. My amendment relates to the extensions to the guidelines for judges to follow when they are making decisions on custody. I believe these guidelines are essential because parents facing arguments regarding custody should know what the judges take into consideration in coming up with their decisions. I believe that when the counsellors are counselling the parents and aiming to lessen the bitterness they, too, ought to know the guidelines that the judges must follow. If they do, there will be fewer applications for custody procedures, fewer appeals and less bitterness. We know from the hearings of the Committee on the Family Law Act that many judges have their own idiosyncracies and personal prejudices and that these are followed to a large degree when custody is being considered. We had a considerable amount of evidence in this regard. It is because of this that I believe these extra guidelines ought to be incorporated. I believe the Attorney- General is agreeing to and accepting this amendment of mine and I thank him for that. My original amendment contained the words 'conduct . . . of the parents', which had to be taken into consideration when either parent was given the sole custody rights of a child. The law courts did not like those words. The words ' the attitude to the child' have been substituted. As I say, while the amendment is watered down, I still believe it is better than nothing and I congratulate the Attorney- Senator Chipp —Attitude or capacity? Senator WALTERS —It has been watered down to 'the attitude to the child rather than the conduct of the parents'. I thank the Attorney for agreeing with my amendment, which I now move: (45) Page 17, proposed new sub-paragraph 64 (1) (ba) (iv) and (v), lines 1 to 5 , leave out the proposed sub-paragraphs, insert the following sub-paragraphs: ''(iv) the attitude to the child, and to the responsibilities and duties of parenthood, demonstrated by each parent of the child; (v) the capacity of each parent, or of any other person, to provide adequately for the needs of the child, including the emotional and intellectual needs of the child; (iv) any other fact or circumstance (including the education and upbringing of the child) that, in the opinion of the court, the welfare of the child requires to be taken into account; and''. Senator GARETH EVANS(Victoria-Attorney-General)(10.46) —Believe it or not, this is the very last clause of the Family Law Amendment Bill we are to consider. With a fine spirit of reconciliation, the Government accepts Senator Walters's amendment. The CHAIRMAN —That is good news, Senator Evans, but it is not the last clause. We still have clause 2 to deal with. Amendment agreed to. Clause, as amended, agreed to. The CHAIRMAN —My attention has been drawn to a slight confusion that has been caused by the acceptance of revised amendment (44) from Senator Missen. It comes at an inconvenient place in the amendment Bill. I seek leave of the Committee to amend it to read: 'Page 7, after clause 6, insert the following new clause:'. This is merely to get the amending Bill in a logical order. There being no objection, it is so ordered. Senator Gareth Evans —It will remain new section 43A of the parent Act; perhaps that ought to be said for clarity. I would not wish Senator Harradine to come racing into the chamber unnecessarily. The CHAIRMAN —Senator Harradine, this is purely a matter of putting a logical order into the amending Bill. There is no other motive or effect. Finally, we come to the question of amendments to a clause being considered and agreed to, for which, of course, leave will be required. Senator GARETH EVANS(Victoria-Attorney-General)(10.47) —No, Mr Chairman, that was only in relation to clause 2. I now withdraw the proposed amendment to clause 2 because it is another of these matters that were picked up in the Family Law Amendment (Legal Aid Costs) Bill. So there is nothing else we are debating, mercifully, in this Bill. Title agreed to. Bill, as amended, agreed to. The CHAIRMAN —The question is: That the Bill, as amended, be reported. Senator WALTERS(Tasmania)(10.47) —Mr Chairman, all I want to do is to congratulate the Attorney on the passage of the Bill. Senator CHIPP(Victoria-Leader of the Australian Democrats)(10.48) —Mr Chairman, I would like to congratulate you. In my experience in Parliament I have never known a Chairman of Committees to handle such a difficult, complex, possibly explosive piece of legislation as efficiently and diplomatically as you have. I want to place those remarks on the record. Senator GARETH EVANS(Victoria-Attorney-General)(10.49) —I thank Senator Walters for her remarks. I, in turn, thank all honourable senators for, by and large, their co-operation in what has manifestly been a very difficult Bill, but one on which we have managed to maintain a reasonably amicable atmosphere. Mr Chairman, I echo the remarks made by Senator Chipp regarding your chairmanship. It has been of outstanding quality and I would like that there were more of it in this place. Thank you. Bill reported with amendments; report adopted. Bill (on motion by Senator Gareth Evans) read a third time. Debate resumed from 1 June 1983, on motion by Senator Gareth Evans: That the Bill be now read a second time. Senator GARETH EVANS(Victoria-Attorney-General (10.49) —This Bill repeals Part III of the Migration Act 1958. This is necessary because the provisions of Part III have been transferred into the Family Law Act by the Family Law Amendment Bill. It ought not, as a result, require any debate. Question resolved in the affirmative. Bill read a second time, and passed through its remaining stages without amendment or debate. Debate resumed from 2 June 1983, on motion by Senator Gareth Evans: That the Bill be now read a second time. Senator GARETH EVANS(Victoria-Attorney-General) —Perhaps I may suggest, Mr President, that it would suit the convenience of the Senate were there to be a cognate debate of the Freedom of Information Amendment Bill 1983, the Archives Bill 1983 and the Copyright Amendment Bill 1983. The PRESIDENT —Is that course agreeable to you, Senator Durack? Senator Durack —Yes, I am agreeable to that. The PRESIDENT —Thank you. Senator DURACK(Western Australia)(10.51) —I propose to address my remarks to the Freedom of Information Amendment Bill. Senator Martin will speak later in relation to the Archives Bill. In confining myself to the amendment of the Freedom of Information Act, perhaps at the outset I may say that the Opposition believes that the proposals in the Bill make some useful and worthwhile amendments to the Act. The Opposition will support the Bill. The Freedom of Information Act came into operation on 1 December last year, after a very prolonged investigation of the proposal over a period of years before the first Bill was introduced into the Parliament by me in 1978. It was then the subject of very detailed consideration by the Senate Standing Committee on Constitutional and Legal Affairs, which produced a report recommending about 100 amendments to that legislation, and subsequently further debate in the Parliament, which gave effect to a considerable number of that Committee's recommendations but by no means to all of them. In particular, it did not give effect to the proposal of that Committee that there should be no conclusive certificates by Ministers under the Freedom of Information Act, and nor did it give effect to recommendations concerning a much wider role for the Ombudsman under that Act. In approaching the subject of freedom of information, the previous Government was concerned about the demand on the resources of the Public Service that would arise as a result of the legislation. It must be borne in mind that very new ground was being cultivated in this area. There was widespread concern as to what the impact would be. That occasioned more caution, perhaps, on the part of the previous Government than now seems to have been necessary. Some of the amendments proposed in this Bill involve matters which were not included in the original legislation simply because of concern about the resources that would be required to cope with them and, in particular, such amendments as deal with access to prior documents. The present Act does not apply to documents that came into existence before 1 December last year unless they relate to a person's personal affairs. The proposal in the Bill is to change that to apply to prior documents back to 1 December 1977, that is, five years prior to the commencement of the Act. That will apply generally, but of course the other provisions in relation to documents concerning a person's personal affairs are untouched. That has made a considerable extension in the right of access to documents and I think it is justified from the experience that has now been had with the Act since 1 December last year which, of course, is some 12 months. Another major amendment proposed here is the reduction in the time by which an agency must comply with a request. The present Act provides that it must do so within 60 days. This time is to be reduced to 45 days from 1 December 1984 and to 30 days from 1 December 1986. Another amendment which is useful but which may have been thought to have imposed considerable burdens on an agency is the amendment which alters the present provisions in the Act in relation to the furnishing of annual lists of manuals and publications issued by an agency for inspection or purchase. The amendment now requires that to be furnished quarterly, if possible, but at least annually. Any person who requests to inspect or purchase such a document must be notified of all other publications on similar subjects. I just detail those types of amendments which I believe are very important ones but ones about which there was never really any in principle objection. The concern was that there would be too great a demand on existing resources of departments, bearing in mind the time of financial restraint that we were in when this Act was being debated and the requirement, of course, for an unknown increase in the size of the Public Service in order to cope with the demands. An interesting thing that has occurred since the Act came into operation is the fact that the demand has proved to be nothing like the forecasts that were made by the Public Service, during the period that the Freedom of Information Act was being considered in the Parliament and by the previous Government. The statistics, which I think were first revealed in an answer by the Attorney- General (Senator Gareth Evans) to a question in the Senate in May this year, showed that, certainly for the first four months of the operation of the Act, there was a very much less demand than was ever anticipated. I refer the Senate to an answer given on 25 May by the Attorney-General which showed, as I said, that in December there were 716 applications; in January, 593; in February, 699; and in March, 780. In fact, the concentration of requests was in respect of certain departments such as the Department of Social Security, the Australian Taxation Office, the Department of Veterans' Affairs and the Department of Immigration and Ethnic Affairs. Many other agencies have not had any requests at all. It may have been thought that that was too early to make any judgments, the operation of the Act having commenced only on 1 December, but statistics provided at the Estimates committee hearings a few weeks ago take the Act's operation up to the end of June. They reveal a very similar pattern. The picture seems to be that applications are running at about 700 a month or a little more, with a projected yearly rate of about 9,500, say 10,000 to round it off. I have no doubt that as time goes on there will be greater awareness of the availability of information under the Act, and that is likely to encourage some more applications. I think it is fair to say that the concerns which were very much uppermost in the minds of the previous Government in bringing this Act into operation and in preparing for it, and which were based on the advice of the Public Service at that time, have not been realised, and that certainly justifies the extension of rights which this Bill contains. The other matter I should like to mention is the great success of the training programs that were conducted, and still are being conducted, by the Attorney- General's Department so that the Public Service generally could be properly instructed in the workings of the Act, the rights of people under the Act, and its obligations under the Act in complying with requests, and so on. Very complicated new procedures are required of the Public Service under the Act. Very extensive training programs were put in train under the leadership of officers from the Attorney-General's Department, starting as early as the end of 1981, I think. Certainly they were conducted very vigorously all through 1982 and they are continuing, but of course there is nothing like the same requirement because the reports that have come forward indicate that as far as the Public Service is concerned the Act is working smoothly. Indeed, an answer that Senator Gietzelt, the Minister for Veterans' Affairs, gave in the Senate a few weeks ago about the experience of his Department is a very good example of how well the Act is working and how the Public Service is approaching and administering it. These are all very satisfactory results, and I must say it is very pleasing that such important new rights which have been created under the Freedom of Information Act are being given full realisation and that the administration of the Act is working smoothly. So although there were, as I said, very considerable fears in the Public Service about the Act, in the event they do not seem to have been justified. Of course digesting the provisions of the Act has been a major operation, and perhaps the Public Service is to be congratulated as well for having so successfully adjusted to the Act and the new rights created by it. I want now to turn to some of the new policy considerations which are dealt with in the Bill before us. I shall refer to a statement, which the present Attorney-General made when he was in Opposition, in regard to freedom of information generally. Senator Gareth Evans —There are plenty of those. Senator DURACK —Yes. I think it is worth recalling that on 8 April 1981 Senator Evans said: . . . one of the recurring themes in the whole history of freedom of information around the world is the way in which, for obvious reasons, it tends to be espoused as a concept rather more passionately by oppositions out of office than by governments sitting in office. Senator Gareth Evans certainly was very conscious of that because during the election campaign one of his throwaway lines with which we and the public are familiar, which probably seemed a good idea at the time, was that anything he did would have to be in the first two weeks of office because he was sure that his colleagues would not agree to them after they had been in office longer than that period. This legislation has proved his point and his fears because the major criticism of the Freedom of Information Act that Senator Gareth Evans always made-by other senators as well, I must admit, on my own side of the chamber, but led by Senator Gareth Evans, the present Attorney-General when he was the shadow Attorney-General-was in relation to the conclusive certificates of Ministers. Of course, the other very firm statement that he made which was part of the policy promises of the present Government in the election campaign-it was made over and over again prior to that-I think can be summed up by saying that an incoming Labor Government would fully adopt all the significant recommendations of the report of the Senate Standing Committee on Constitutional and Legal Affairs. As I have said, I think the major recommendation, although there were many important ones, of the Senate Committee's report was that requirement for conclusive certificates to be removed from the Bill which ultimately became law, with the conclusive certificate remaining, albeit with some changes which enabled a review process of a ministerial decision by a document review tribunal , but left the final decision to the Minister. The Bill before us, as we might have expected in the light of what Senator Gareth Evans said and in the light of the views of the Senate Committee which he so strongly adopted, would have removed conclusive certificates. I again quote the words of Senator Gareth Evans in the Senate on 8 April 1981 in relation to the debate on the Bill which became the Freedom of Information Act: The main areas of the battleground clearly, in terms of the things that are out of the Bill but ought to be in it, are, for a start, those provisions recommended by the Senate Committee which would go to limit the practical effect of conclusive ministerial certificates, not least in the area of internal working documents-a description wide enough to include just about any piece of paper in government departments except that which comes in rolls . . . In the Senate on 29 May 1981 Senator Gareth Evans said: So long as ministerial discretion in any form is retained absolutely and conclusively to deny access to these documents without being subject to second guessing or review by anyone else, it is our view . . . that freedom of information legislation is simply not worth having unless we can ensure that documents of this kind come within its ambit, too. Senator Missen —There was nothing equivocal about that. Senator DURACK —There was nothing equivocal at all about that statement. Senator Gareth Evans —What a busy little research assistant you have. Senator DURACK —I did not need any research assistance on these matters. I have heard them spoken of by the Attorney-General so passionately in this chamber over a long period that they are engraved in my mind if not on my heart. The position, of course, is that the Bill before us, although it makes some procedural changes in the way conclusive certificates are dealt with, retains the principle of conclusive certificates of Ministers in broadly the areas provided by the Act, namely, in those very sensitive areas-I think that is the phrase Senator Gareth Evans used in his second reading speech when introducing this Bill-of defence, international relations and security. The availability of those documents to the public is conclusively described in the end by the Minister, and so it should be. That was always the argument of the previous Government, put by me when I had responsibility for the carriage of the Bill through the Parliament over that long period. We stuck to that principle and the Act contains that principle. This Bill acknowledges that principle and does not detract in essence from it. I think that is very important and I thoroughly support that, but I cannot help commenting on the very great reversal of attitude by members of this Government from that they adopted in opposition and in the election campaign and, of course, of the leadership of Senator Gareth Evans in promoting very heavy criticism of the existing legislation over such a long period. Now in government Senator Gareth Evans has fallen victim of his own warning, if we like to call it that, which I quoted earlier, that the concept of freedom of information seems to be more passionately espoused in opposition than in government. But, of course, the fact is that the previous Government pioneered this legislation, brought it into the Parliament, put it through the Parliament, put the Public Service in shape to cope with its administration, finally brought into operation on 1 December last year an Act which, by all the evidence we have had, as I referred to earlier, is working smoothly and successfully. Therefore, I do not think it is fair to say that the previous Government was in any way lukewarm about the concept of freedom of information. But this Government not only has certainly proved itself lukewarm, but also has positively rejected the centrepiece really of its own view of freedom of information, namely, that there should never be any conclusive certificates. This Bill, as I have said, does contain some changes in the way of handling conclusive certificates. It abolishes the special Document Review Tribunal which the existing Act contains and provides for the review of conclusive certificates to be done by the Administrative Appeals Tribunal. If the Tribunal makes a determination against the Minister, the Minister must, within 28 days, decide whether or not to revoke the certificate. If he does not revoke the certificate, he must lay before the Parliament written notice of his decision not to do so. Of course, the decision is his and his alone in the end. I think that particular provision about tabling the decision in Parliament is a good one. The present Act provides that the decision of the Minister must be made public, so there is certainly a pressure point on the Minister in the existing legislation. This is perhaps a useful development of that idea. The abolition of the Document Review Tribunal, although it will not be opposed by the Opposition, is a pity. The documents that are dealt with in these very sensitive areas are, as Senator Gareth Evans and the Government now acknowledge, of a character which demand a special tribunal to review a decision of a Minister. I think it needs to be a tribunal which comprises judges of the highest calibre, who command the highest respect. That was the reason why the previous Government provided for a special tribunal. I do not impugn in any way the high quality of the Administrative Appeals Tribunal. But the Tribunal is growing larger and larger, with gradations of deputy presidents, senior members and part time members. So it is not really a tribunal which can be identified as having a special role in this area. No doubt, however, the administration of it by the President of the Tribunal will ensure that judges or deputy presidents of the most suitable standing will deal with documents of such a sensitive character as the ones in question. As I have said, the Opposition supports this measure because it believes that it makes some worthwhile changes to the Act. In ordinary circumstances I would have believed it may be wiser to wait until the Act has been in operation for a year or two before any changes at all are made. But in light of the evidence that is indicated in the statistics to which I have referred, it seems that it is now appropriate to make the changes earlier than would otherwise have been expected. The most pleasing thing of all is the success of the operation of the Freedom of Information Act. As time goes on it will, of course, have even greater impact in providing the public with greater knowledge. Individuals may want to find out about information held about themselves. Indeed, information of any kind in government creates an important right which will be exercised more and more for the benefit of the community as a whole and for the benefit of public discussion on public affairs. It is all part and parcel of a great increase in individual rights in relation to government and the bureaucracy which was put forward by the previous Government. As I said the other day in this place, freedom of information must be looked at as part of a general package relating to the Commonwealth Ombudsman, the Administrative Appeals Tribunal, and the judicial review of administrative decisions. The result of this exercise which is now in successful operation has been to revolutionise the rights of the citizen in relation to the conduct of government. As I said, it is very pleasing to know that the freedom of information legislation is working so smoothly and successfully. Senator HAINES(South Australia)(11.19) —It is not my intention today to take up the time of the Senate in debating at length the history in this country of freedom of information, or even the need for it. I suggest that all that can be said about that has already been said again and again over the last decade-most of it, of course, by the present Attorney-General (Senator Gareth Evans). Of course, this raises a problem, since people such as the present Attorney-General have a tendency not unknown among academics and politicians to be carried away by their own rhetoric, and they are then faced with the problem at some later date of having their words come back to haunt them. This has certainly been the case with Senator Gareth Evans and the present Freedom of Information Amendment Bill by which the Government wishes to amend the Freedom of Information Act which was passed after considerable debate, and not some squabbling, under the previous Liberal Government. It may well be, as Senator Durack has pointed out, that, when in government, Ministers have rather an enthusiastic interest in restricting access to some types of documents-an interest they did not appear to have when they were holding shadow portfolios in opposition. Yesterday Senator Messner indicated that the converse of this is true in his impassioned plea for the release by the Minister for Social Security (Senator Grimes) of certain working documents that the Government apparently used in preparing its assets and income test policy and legislation. I refer anybody who is interested in pursuing that thought to yesterday's Hansard and also to Senator Grimes's equally impassioned rebuttal of Senator Messner's request. Senator Grimes stated what used to happen under the previous Government whenever Senator Chaney was asked to produce documents of a similar kind. This difference in which Ministers see things, depending on which side of the chamber they are on, no doubt explains the quaint disparity between the present Attorney-General's statement in May of this year when issuing the Australian Labor Party's law and justice policy and the contents of the Bill before us today. Senator Missen —Sometimes they get rolled in Cabinet, of course. Senator HAINES —That is the other possibility. To refresh the Attorney-General's memory and that of anybody else who is interested I will quote item 7.2 under the heading 'The Citizens and Government: Administrative Law'. The paper was put out by Senator Gareth Evans on 23 February this year in Melbourne. The words ' Rewrite the Freedom of Information Act 1982 to implement fully the principles of open government' are underlined. The Attorney-General went on to say: The Senate Standing Committe on Constitutional and Legal Affairs made over 100 recommendations regarding the proposed Freedom of Information legislation. The Attorney-General accepted only a few of them; some others were forced on him in the Senate. Labor-- said the Attorney-General a little earlier this year- will implement fully the outstanding recommendations of the Committee to ensure that freedom of information operates in practice as well as in name. One wonders, as Senator Durack has already pointed out, what has happened to those major areas of recommendation relating to conclusive certificates. On the other hand, it may be possible that since the last piece of legislation went through in a spirit of conciliation and co-operation the Attorney-General is sitting poised to accept Senator Missen's amendments to this area. I will wait and see. Of course, if it is a matter of being rolled, either in Caucus or in Cabinet, we will not see those amendments go through. Nevertheless, even with the amendments that are brought forward in this Bill, it does not do anything more than make a start on implementing the outstanding recommendations of the Senate Standing Committee on Constitutional and Legal Affairs as was promised by the Attorney-General in February of this year. It certainly does not provide open government in this country or full access to all but the most secret documents of government and bureaucratic operations. I accept that the legislation is an improvement. The Australian Democrats certainly intend supporting it wholeheartedly although with some regret that it does not go as far as we would like or as was promised. The Government's proposed amendments, for instance, will further limit exemptions but even so a substantial amount of information which is necessary for the proper understanding of matters of public interest will still remain outside the scope of the legislation and therefore not subject to right of access. The Library Association of Australia, among other organisations, has made submissions relating to the proposed changes to the freedom of information legislation. I refer to a number of comments it made in that submission. It stated: We wish to comment on three matters specifically: The Attorney-General himself has noted there has as yet been no move to abolish or to remove the powers which enable Ministers or permanent Heads of Departments to issue conclusive certificates declaring a document or documents to be exempt. This still leaves with Ministers and Departments substantial discretionary powers to withhold material . . . While some sections of the Liberal Opposition would certainly continue to support that, as Senator Durack indicated, Senator Missen agrees with us and with past comments of the Attorney-General that this should not continue. The Association went on to make the point that: The Bill contains no proposal to amend or delete S.36 ss 1 (a) which refers to the deliberative material which is prepared, used or consulted by agencies in the course of their work. The Association finished up by saying: We consider that unless the Act is further amended it will remain variable in scope, and inconsistent or haphazard in operation and application. Even with the proposed changes it is still doubtful how much information will be retrieved and identified by persons who have only average persistence and resources. The Library Association of Australia is not the only organisation concerned about omissions in the proposed Bill. The Public Interest Advocacy Centre in Victoria has also expressed concern, as have many other groups, about deficiencies in the present amending Bill. Like the Australian Democrats, it basically supports the proposed amendments, but does not believe that they go far enough. In particular, we commend the proposals in these areas: Firstly, they progressively shorten the time within which agencies are required to answer requests from the present 60 days to 40 days from 1 December 1984 and then to 30 days from 1 December 1986. Secondly, they extend the right of access to documents which have been in the possession of agencies since 1 December 1977, although I must add at this point that we believe that that period should go back a further 20 years, bringing it in line with the period under the Archives Bill. Thirdly, the Bill includes provisions enabling costs to be awarded to applicants in certain cases. As I have said before, and as others have said before me, some areas still need attention. Some of them are apparently administratively trivial but they are important to the public; for instance, addresses to which requests have to be sent. At the moment these are limited to addresses which are listed in the Commonwealth of Australia Gazette or in the Commonwealth Government Directory. There have been some problems, which I will refer to again during the Committee stage of the Bill, with people who are sending requests to agency addresses in the telephone book. Other problems relate to proceedings before the Ombudsman and the Administrative Appeals Tribunal, which again I will refer to when we get to the Committee stage. Suffice it to say at this point that we welcome the proposed Bill and the amendments as far as they go. However, we are disappointed that the Government did not see its way clear to meet its election promise or the election promise of its Attorney-General-I understand that they are not necessarily one and the same thing-in regard to freedom of information. We will be supporting Senator Missen's amendments as well as pursuing a number of our own, in the hope that the Government or the Opposition will support them. If our amendments and those of Senator Missen go through, along with some additional amendments that the Government is putting forward to its own Bill, I think there is some chance that genuine, open government will operate in Australia so that the concept of freedom of information becomes a force in this country rather than a farce. Senator MARTIN(Queensland)(11.29) — The Senate is debating cognately three Bills: The Freedom of Information Amendment Bill 1983, the Archives Bill 1983 and the Copyright Amendment Bill 1983. Earlier in this debate this morning Senator Durack, the shadow Attorney-General, responded on behalf of the Opposition on the Freedom of Information Amendment Bill. It is my responsibility this morning to outline the response of the Opposition on the Archives Bill and the Copyright Amendment Bill. I shall be brief. The original Archives Bill was introduced into the Senate by Senator Durack, when he was Attorney-General, in 1978. That Bill, the original Freedom of Information Bill and the Copyright Amendment Bill, were referred to the Senate Standing Committee on Education and the Arts and the Senate Standing Committee on Constitutional and Legal Affairs. Those committees held hearings, investigated the Bills and reported to the Senate. In 1981, Senator Durack reintroduced the Archives Bill in an amended form consequent on reports of the two Senate committees to which I have referred . That Bill was unfortunately not debated by the Senate and lapsed with the prorogation of Parliament earlier this year for the general election. We now have the Archives Bill mark 3, which is the Archives Bill 1983, introduced into the Senate earlier this year by the present Attorney-General ( Senator Gareth Evans). The Archives Bill is substantially the same as that introduced in 1981 by the previous Government, with some amendments. It provides for the proper disposition of records of Commonwealth agencies in an efficient and economical manner and in a manner that will facilitate their use. It should be borne in mind that in debate on the Archives Bill we are essentially talking about records that are more than 30 years old; the Freedom of Information Act and the amendments to that Bill refer to records that are basically less than 30 years old. So the Archives Bill complements the Freedom of Information Act with respect to the keeping of records and reasonable access to Commonwealth records. The Archives Bill also replaces what has been operating on a non-statutory basis for quite a number of years. We have, of course, had an Australian Archives, but this was not provided for under an Act. This Bill brings together all those things that are necessary for properly constituted archives and gives the Australian Archives a statutory basis. It also gives the Australia Archivist , Dr Neale, a statutory basis. I am sure Dr Neale will be relieved that there is a possibility that he will be legal under an Act of Parliament before his retirement, having acted in his present position for some time. There are some changes between the Archives Bill 1983 and the Archives Bill 1981 in relation to extension of coverage of records, access to records, disposal practices, charging for services and review of decisions. The Opposition supports all those changes. I would like to refer just briefly to the report of the Senate Standing Committee for the Scrutiny of Bills and a couple of issues that it raised. I shall raise these again briefly in Committee, but I think it is appropriate that I mention them now. The Scrutiny of Bills Committee report on the Archives Bill raised four matters. The Government has responded to two of those matters with proposed amendments to the Archives Bill that have been circulated by the Attorney-General. However, the Scrutiny of Bills Committee report does refer to the fact that in one of the important areas of change between the Archives Bill 1981 and the Archives Bill 1983, important details will be given effect to by regulation. One of the extensions of the Bill is an extension to cover the records of parliament and of the administrative records of courts. The Archives Bill provides that the details of that access and what will be made available are to be negotiated with the officers of the Parliament, the Speaker and the President , and with the relevant people in relation to court records. The Scrutiny of Bills Committee raised the point that this rather important change in access to records will be done by regulation. I accept and appreciate that this is a new area and it will be necessary for some quite extensive consultation and discussions, I would think, on just which records will be made available and how. However, I hope that when this process of consultation is completed we may see an amendment to what will be by then, I assume, the Archives Act, so that that important innovation will not be just left in regulations, but will come under the scope of the Act. The other point which the Scrutiny of Bills Committee quite properly made is a small one but it is, nevertheless, quite a proper point to make. There is provision that there could be a reduction of time available to the Australian Archives to respond to requests for information. The Bill presently provides that the Archives will have to notify an applicant of its decision within a maximum of 90 days. As the Scrutiny of Bills Committee has said, it is unlikely that anyone would find his or her civil liberties infringed if it were decided to reduce the period for response to a request from a member of the public. However, it is an important factor in the Bill. I am informed that it is hoped that it will be possible to reduce that time, after some experience of working with the Bill, to bring it closer to the Freedom of Information Act provisions. Time will tell what is possible there. I just reiterate what I said in relation to my previous point regarding regulations. Whilst I am sure that a reduction of time for response by the Archives would be welcomed, the Parliament would also welcome such a statutory reduction if it were a reduction and not done just under regulation. Regulation may be satisfactory initially, particularly if there were an experimental phase with the new period. I turn my attention briefly to the Copyright Amendment Bill and amendments made to the Copyright Act consequential upon provisions of the new Archives Bill. The provision, which is simple enough, provides for broadcasting and television organisations to deposit ephemeral records with the Archives. We are told that ephemeral records include videotape, cinematographic film and sound records. The amendments are supported by the Opposition. I take this opportunity to make a couple of quick comments on the provision that these ephemeral records may go to the Archives, subject of course to the consent of the Director-General of the Australian Archives, instead of to the National Library of Australia. The subject of film archives and their handling by the National Library has been a matter of quite some contention in recent and not so recent times. It is a matter that has been pursued at length in this chamber and specifically in Senate Estimates committees by Senator David Hamer and me. What is claimed to be a basically unsatisfactory handling of that particular form of ephemeral record has been detailed in this place. More recently, some criticism has been made outside the Parliament of the sound archives situation in Australia. The debate has recently been joined by the National Library and also the Government. I just hope that in the debate on the fate of the film archives we might have a little less confusion and alarmism than we have had in recent times. I welcome the fact that the National Library is responding to the subject of how it is handling film archives. However, I am not entirely satisfied with the answer the National Library has given. I understand that funds have been a problem in relation to the treatment of film archives. However, I am not persuaded that the National Library has given very much priority to the film archives in the past and to the subject of disposition of its funds. Whatever the outcome of the debate on whether film archives ought to remain with the National Library- whether they ought to go to some special statutory body of their own, which I must say I do not think is entirely necessary, or whether they might remain with the Library but be relocated in a city other than Canberra-I hope that it is a reasoned debate that pays attention to all the needs of the film archives. I certainly pay tribute to the National Library for its foresight in instituting both film archives and sound archives in the past. They are very important records for a nation to have. Demands for access to film archives have been sharpened in recent years with the growth-indeed the virtual explosion-of the film industry in Australia. They are archives of very particular significance and importance to the film industry, but not only the film industry . Other people also need access to them. When the dust has settled and the debate has resolved the issue one way or the other I hope that the solution will not be one of anyone's empire building being protected or of anyone's particular special interest being looked after at the expense of others. I hope that these very important archives can be sensibly handled. I pay tribute to the dedication that Dr Neale has brought to the general subject of archives in Australia. At Estimates committee hearings he has given us many a lecture on the needs of the Australian Archives. There is no excuse for anyone who has attended the hearings of the Estimates committee which handles the estimates for the Australian Archives not to have a very detailed knowledge of its operations. As I said, I pay tribute to the work Dr Neale has done for the Archives. I am sure that the dedication he has brought to the subject of the protection of Commonwealth records is a dedication he will lend also to the protection of the ephemeral records which will be judged to be properly part of the national Archives. Senator MISSEN(Victoria)(11.40) —I support the Freedom of Information Amendment Bill, the Archives Bill and the Copyright Amendment Bill. I am afraid that perhaps I will not purr quite as much as the last two speakers, who made complimentary remarks about the Freedom of Information Amendment Bill, a Bill which I find still very deficient. I think Senator Durack has reason to be pleased with the fact that, after the event, there is some justification for the views he expressed. It seems that the Government, at least at present, has come to a similar conclusion on conclusive certificates, although it may have tried to dress them up in a slightly different disguise. But I am afraid that this Bill is just an improvement on the existing law. It is part of a battle in a long fight. I am sure that fight will go on. I am confident that in the end many more of the recommendations of the Senate Standing Committee on Constitutional and Legal Affairs will be adopted. I find it strange not only that there are so few Australian Labor Party members of the Senate present today but also that, apparently, none of them, except the Attorney-General (Senator Gareth Evans), will be speaking on this Bill because there was a great deal of interest in this chamber when the previous Bill went through in 1980-81. It was very highly criticised by members of the Labor Party when in Opposition. It is surprising that they are not here today to praise the amendments coming forward which, I readily concede, are improvements on the existing law. I support the three Bills but I intend to devote all my time in this speech to the major Bill, the Freedom of Information Amendment Bill. Let me briefly recapitulate the situation. When the original Bill was before the Senate it was subjected to one of the most thorough and detailed examinations by a Senate committee ever under my chairmanship. Senator Gareth Evans was Deputy Chairman of that Committee and he did an enormous amount of work in connection with our investigation and recommendations. Only a limited number of those recommendations were adopted by the previous Government. Indeed, many negotiations went on to try to increase the extent to which the Committee's recommendations would be met. I remind the Senate that at that time I produced a document which I headed 'Seven Deadly Sins of Omission'. That document is a useful guide today to how far we have gone in improving freedom of information. The seven deadly sins which I said were not adequately dealt with in the original Bill and which were only partially cured related, firstly, to conclusive ministerial certificates. That remains a matter which, although disguised by a new dress, is still very much an abomination in this legislation. The second matter concerned the provisions with regard to existing government records and the extent to which they were to be disclosed. The government of the day was of the opinion that there would be extensive usage of the Act. Some of the witnesses before the Senate Committee were quite hysterical; they expected enormous usage of the Act. That expectation has been proved to be false. That leads me to amendments which the Government is proposing in this area covering documents up to five years old and which I think could go further. The third point I made related to the grounds of exemption of documents. Although we do not have much in the way of amendments from the Government, I think that in this area one must look at the Act in running. I have no doubt that today certain misuses are taking place with regard to the rather loosely worded exemptions. I think we will find that, when the Attorney-General's Department, the Commonwealth Ombudsman and other people report to the Parliament and when the committees of this Parliament look into the way in which the Act has operated over the first year or so, we will see that something certainly should be done to tighten up exemptions. But I do not think this is quite the t- -e for that to happen. The fourth of my deadly sins was in regard to the lack of provision for personal records. That was substantially improved by the previous Government and I think there is now a sensible provision in that area. The fifth deadly sin was the wide exemption for government agencies. We had undertakings that these were to be looked at over the years so that we could reduce the number of exemptions and partial exemptions. I think this is a matter of ongoing concern for the Parliament. The sixth was the Ombudsman's conciliatory counselling and monitoring roles in relation to freedom of information. A substantial number of amendments were proposed-I am again proposing them today-and were not taken up in the previous Act. The last was the secrecy provisions in existing legislation , which are also a part of unfinished business. So one should not go overboard in saying that the amendments before us today have taken us very far down the road to achieving some of the objectives which the Senate Committee was trying to achieve. There were negotiations with the Government at that time. A number of my colleagues in the then Government tried to come up with the best Bill that could possibly go through the Senate while that Government had a majority. We were, of course, very heavily abused by members of the then Opposition in this chamber and in the House of Representatives for our inability to stand up long enough to vote and for our generally weak-kneed attitude to questions of freedom of information. Perhaps the chickens are coming home to roost today. We must remind ourselves-I do not want to be tedious about this-that the previous Opposition had given very considerable undertakings to the Parliament; for example, Mr Lionel Bowen, MP, who was very strong on abusing me during the passage of the Bill, in speaking about what a Labor government would do, said: The amendments which have been moved in the Senate will be moved again in this House. Honourable senators will remember that there were some 80 amendments altogether on the list which a number of honourable senators on both sides of the chamber had originally drafted. Mr Lionel Bowen continued: They are not being moved for the sake of rhetoric or point scoring. We believe that all governments should pass legislation such as we have proposed. If it cannot be done by this Government it will be done by a Labor Government. The Government rushed the legislation through the Senate during the last session. It said it had gone so far and would go no further. That is still not far enough. Then he referred to my statement that the Bill was weak but that we hoped to improve it in 10 years time. I am hopeful that we will do it more quickly than that. In the course of the election campaign a very clear undertaking was given in the law and justice policy of the Australian Labor Party. It stated: Labor will implement fully the outstanding recommendations of the Senate Standing Committee on Constitutional and Legal Affairs to ensure that freedom of information operates in practice as well as in name. That was not a partial promise or part of the more important recommendations; it was an undertaking which no doubt a number of people in the community found acceptable. My criticism is not of the Attorney-General, who I think has fought strongly and consistently over the years in support of the Committee's recommendations. But, as has been pointed out by Senator Durack, the Attorney- General was somewhat aware of the difficulty that would arise if he could not proceed quickly. Senator Durack was a little kind to him because he did not quote the whole article in the Canberra Times of 5 June this year which stated that Senator Gareth Evans wryly commented during the election compaign that any government which intended to increase access to Government information had to do it in its first fortnight before it had any secrets to hide, otherwise it would never do it at all. In saying that, however, he was confidently asserting that he could do it. Unfortunately, that confidence has not proved to be justified. Unfortunately, the Sir Humphreys around the Government have succeeded in greatly limiting this legislation, particularly in the area of conclusive certificates and in the area of the Ombudsman's powers-matters which I will be raising today. The achievements of this new Bill which fairly must be put into perspective are that it does include the five-year-old documents and it will now be a useful expansion of the existing records of the Government. I think that is a valuable improvement. There are changes in the Bill in regard to Commonwealth-State documents, and those changes accord with the recommendations of the Senate Committee. I believe that they will be useful. Likewise, we had the somewhat tortuous progress of the public interest clauses. In the course of debate in this chamber I sought to have included a number of exemptions so that it would also have to be established that it was in the public interest that information be withheld. Those provisions went into the subsequent Victorian legislation adopted by the Thompson Government and are now contained in the present legislation which the Cain Government has adopted in Victoria. Now they are contained in the Bill before us and I welcome them very much. There are useful provisions in regard to costs in this amending Bill which I think will be helpful to people. The practicalities of the operation of freedom of information must be constantly kept in mind, for example, whether or not it will be used, whether the Bill is just a good looking document or one that has practical operation for people who have very little money. That, of course, has a relevance to the amendments I will be moving in respect of the use of the Ombudsman in this legislation. There are changes concerning the factual documents attached to Cabinet papers which will now be disclosed. So it will not be possible to hide documents by attaching them to files that happen to go before Cabinet. Improvements are foreshadowed in the Bill with respect to response times to applications. These are quite useful. Other provisions in the Bill that have not been mentioned relate to national security provisions, documents which have been obtained from foreign governments and documents which come from the Australian Security Intelligence Organisation and which are in the hands of other departments. I made a close study of the progress of freedom of information in the United States early this year and I talked to many people who are concerned. They are not concerned that the American Congress is likely greatly to ruin or weaken the Act but they are concerned about the action of the Administration in America, the presidential directives and the threats against public servants if they do not use their efforts against disclosure. There are considerable dangers to the American Act and the way in which it might operate. Whilst I think that the provisions in regard to national security are satisfactory, I warn the Government against going too much further in this direction if, as a result of the inquiries that are taking place at the moment, suggestions are made that the national security restrictions on freedom of information should be increased. There are also improvements in the administration of the Act, to which Senator Durack made reference, and I think they are to be welcomed. I come back to what I think are the two major disappointments. I believe that they are major disappointments despite the efforts of the Attorney-General. I refer to the failure to deal with the subject of conclusive certificates except in a merely casual and superficial way. When one looks at the debate on this subject in this chamber back in 1981 one finds the importance which the then Opposition, in the words of Senator Gareth Evans, placed on conclusive certificates. On 29 May 1981 the Committee had reached the stage where it was dealing with conclusive ministerial certificates, which is clearly one of the most central issues in this debate. Senator Gareth Evans suggested that certain clauses be debated together. In a number of areas he made it clear that this was a central issue, as it was, so far as getting rid of a power which a Minister has to make a declaration, and that is what a conclusive certificate is-being able to say that it was against the public interest for the document to be examined or for any applicant to have possession of it. There is no power to go beyond that. The Administrative Appeals Tribunal, which is a very respectable body, is now to have the power of recommendation, but that power is one which the Minister can immediately ignore and say: 'On my reading of it, it is not right'. The position, I think, is fairly sad. I wish to quote from an interesting submission which was made to the Attorney- General on 4 August 1983 by Susan Acutt, the Executive Director of the Library Association of Australia, which applauded the review of the legislation. In relation to this specific matter, the submission stated: The Attorney-General himself has noted there has as yet been no move to abolish or to remove the powers which enable Ministers or permanent Heads of Departments to issue conclusive certificates declaring a document or documents to be exempt. This still leaves with Ministers and Departments substantial discretionary powers to withhold material, even given the exercise of a public interest criterion, a principle which is always difficult to apply. Abolishing of the Special Documents Review Tribunal and the extension of the power of the Administrative Appeals Tribunal to allow for appeals concerning certificates are not sufficient, especially since the onus of substantiating an appeal will fall on those claiming that material should not be exempt. The Association made a major criticism of that lack in the legislation. It was one of the fundamental recommendations of the Senate Committee which is not being implemented. It has been suggested by Senator Tate in debates which have taken place in this chamber-I regret that he is not here today-that the Executive must not be the final arbiter in these matters. That is so. At present the Executive is the final arbiter on whether some embarrassing document, which may not suit it at all to disclose, is one that can be stopped from coming to public knowledge. I foreshadow that today I will move amendments in respect of conclusive certificates. I do not have any illusions; I do not expect the amendments to succeed. In the previous Parliament the then Opposition was not in favour, as was the then Government, of the conclusive certificate idea. The Government and Opposition have certainly not been convinced by me, but I trust I will have what support I can. The campaign will go on to remove this blot from the Act. I foreshadow that I will move amendments regarding a second area. I am much more encouraged to think that I will have more success in that area. The amendments concern the use of the Ombudsman under the Act. We know that the Ombudsman, in his present position, can play some useful role. What is proposed is a much wider role than he is given under the present Act. In regard to the role of the Ombudsman, Senator Gareth Evans made the same sorts of remarks when the matter was considered by us on 12 June 1981: In regard to the Ombudsman, these amendments are an absolutely central part of the Opposition's approach to this legislation . . . Debate interrupted. Senator GRIMES(Tasmania-Minister for Social Security) —I inform the Senate that Senator Button will be absent from the chamber today. I suggest that any questions which normally would be directed to him should be directed to me. Senator CHANEY —My question is addressed to the Attorney-General. Has he seen the reported comments of Professor Tony Vinson, the former head of the Corrective Services Commission of New South Wales about allegations of corruption in that State's prison system? In particular, I ask whether he has noted Professor Vinson's claim that the police told him that a judicial inquiry was needed and the professor's conclusion that the report from the current police investigation 'won't be worth the paper it apparently has yet to be written on because the police directly concerned told me that it could not be productive of the truth'? Does the Attorney-General agree that these views from a man who was once in charge of the New South Wales prison system indicate the need for an independent and public inquiry into allegations about the former early release system? Senator GARETH EVANS —I have not seen in any detail Professor Vinson's comment referred to by Senator Chaney but I have assumed the accuracy of Senator Chaney' s account of the general substance of it. I simply say to him that the quality of any New South Wales police investigation of the matters to which he refers is not something on which I am qualified to pass a judgment or would care to make a judgment or am equipped by my portfolio responsibilities to make a judgment. Senator CHILDS —Has the attention of the Minister for Resources and Energy been drawn to reported comments of the Queensland Liberal Party leader on State Government charges on the mining industry that 'charges are being levied without taking into account the industry's need for competitiveness' and that ' governments should share in the benefits of the good times and, as with companies and their employees, cut its cloth in bad times'? Can the Minister say whether these comments by the Queensland Liberal Party leader are consistent with the Commonwealth Government's approach to mineral taxation? Questions without Notice Senator WALSH —I did notice a report in yesterday's Australian Financial Review which I think is identical to both the general tone which Senator Childs has reported to the Senate and to the specific quotation he has given from the Queensland Liberal Party leader. I also note that the Queensland Liberal Party leader is reported to have said that for the benefit of the whole community the profit returns from the existing rail freight system should be released. I make two observations in reply to Senator Childs. Firstly, it shows or suggests a significant shift on the part of the Queensland Liberal Party towards the policy which is being advocated by the Australian Labor Party in Queensland and the Opposition Leader, Mr Wright. Second, of course, it is fully compatible with the view on resource industry taxation which the Australian Labor Party has held for six years and which is currently being pursued by this Government, directly with respect to crude oil and, hopefully, at some later stage, in respect of at least export quality coal. Given, however, that the Liberal Party in Queensland held the position of Treasurer in the Queensland Government for some 25 years, some people might suspect that the present Liberal Party leader is embarking upon an election stunt. But, if we give him the benefit of the doubt and assume that this is a genuine conversion and a genuine enlightenment on the part of the Queensland Liberal Party towards a more efficient and rational method of taxation of the resources industry, arising from a realisation of the considerable damage that the present system of levy-based or production-based taxation is inflicting on the Queensland mining industry, I certainly welcome it . The levy system based on production and taxes-both covert like the railway charges to which Mr White is reported to have referred, and overt in the form of royalties even if they are not subject to ad hoc or even capricious change, as they frequently have been in Queensland-has done and is doing considerable damage to the mining industry. If this is a genuine conversion on behalf of the Queensland Liberal Party, I however do not hold out much hope that should there be a coalition government in Queensland after the election on 22 October the enlightenment of the Queensland Liberal Party would be reflected in the policies of that government. I do hope that the Federal Liberal Party as well as the Liberal Party in Queensland-giving Mr White the benefit of the doubt-will come to see the virtues of the type of alternative taxation system for resources industries which this Government, as I said earlier, is pursuing directly with respect to crude oil and hopefully, through the States, with respect to export quality coal. Senator DURACK —Is the Attorney-General aware of an interview on the AM program by Mr Fred Silvester, a former head of the Federal Bureau of Criminal Intelligence, concerning the general lack of resolution by governments in pursuing organised crime? Does the Attorney-General agree that the Federal Government has, to use Mr Silvester's words, been playing cat and mouse in its approach to organised crime? Has this view not been given added impetus by the Caucus decision to defer action on the national crimes authority which Senator Evans had been proposing? Senator GARETH EVANS —I did not have the benefit of hearing Fred Silvester's views of the world on AM this morning or any other morning, but I am prepared again to take Senator Durack's word for it that he did say something along the lines indicated. The situation is that there has been no lack of resolution by this Government in dealing with the question of organised crime, as is indicated not least by our continuation in existence of the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union, which has, as everyone is well aware, a rather splendid record-and splendidly embarrassing record, so far as the Opposition is concerned-in dealing with just that phenomenon. Senator Chipp —How much hard evidence? Senator GARETH EVANS —That is a matter that will become apparent in the courts as successive prosecutions wend their way to fruition. There is a further report recently to hand from the Costigan Commission the substance of which will not be made public simply because charges have been laid. We do have the special prosecutors Redlich and Gyles in the process of bringing many other matters before the courts. But it is a difficult and tricky process and I readily acknowledge the desirability and necessity for outfits of this kind to concentrate on gathering admissible evidence. But the proof of the pudding will be in the final resolution of those matters now coming before the courts. Equally, the Royal Commission of Inquiry into Drug Trafficking had its terms readily extended, at the request of His Honour Mr Justice Stewart, to deal with matters that he was concerned with and finish that particular investigation. Of course, he has since had new terms of reference given to him jointly by the Commonwealth Government and the New South Wales Government to deal with the matter of Nugan Hand, which does raise a very large number of detailed and very sensitive questions about organised criminal activity in this country. It is wholly desirable, in my view, and that of the Cabinet, that we proceed to get these sorts of institutions and mechanisms on foot in some more permanent, ongoing, co-ordinated and systematic fashion. We have not leapt into the immediate implementation of the previous Government's National Crimes Commission because there were many defects in the form of that legislation as it was finally enacted by this Parliament and because we wanted to respond systematically and sensitively to the very many concerns that were being expressed from within the legal profession and civil liberties organisations in particular about some of the more potentially alarming aspects of a permanent crime investigation body of that kind. I believe, as I have indicated, that we are very close to a resolution of this matter. It is only a matter of time, certainly this year, before something is on foot which will satisfy everyone in this respect, to the extent that it is possible to do so, and certainly will satisfy the States, which is a darn sight more than the previous Government was ever able to achieve in this area. Senator MAGUIRE —Does the Minister representing the Treasurer have information on increases in the number of unemployed persons in the State capitals? If so, have the unemployment increases been uniform between the capital cities? How does the increase in the jobless total in Adelaide compare with the average increase for all the State capitals? Senator WALSH —I think it is generally known that there has been a very big increase in unemployment over the last 12 months. In the 12 months ending August 1983 as compared to August 1982-they are the latest figures available- unemployment nationally increased by almost 50 per cent. In South Australia, which was the subject of Senator Maguire's question, the increase was very much less than that national increase. It was, in fact, just over 27 per cent as against almost 50 per cent nationally. At the other end of the scale-- Senator Chaney —From what base, though? Senator WALSH —From what it was in August 1982. In Queensland, for example, moving towards the other end of the scale, the unemployment rate increased by more than 60 per cent, which is more than double the national rate of increase and symptomatic of the general collapse of the Queensland economy which is retarding to a significant degree the national economic recovery. Senator Maguire also asked about the regional distribution of that unemployment figure and the same pattern applies. In metropolitan areas nationally the figure increased by 50 or 52 per cent. In Queensland, metropolitan unemployment went up by 65 per cent which is well above-- Senator Chaney —Mr President, I raise a point of order. The answer is quite misleading. The Minister is not giving the percentage base on which the increases occurred. My point of order is that the Minister in the past prided himself on his probity and I thought he would want to maintain it in government. Senator Lewis —I wish to speak to the point of order. Mr President, the question quite clearly directed the Minister's attention to the unemployment statistics in the state of South Australia, in particular the capital city of that State. The Minister is now ranging far and wide around Australia. I suggest, Mr President, that you direct the Minister to answer the question and not allow the Senate to be fed with irrelevant rubbish. Senator Grimes —I wish to speak to the point of order, Mr President. I believe that you will have to consider your position in Question Time in view of the frequency with which people like Senator Chaney take points of order because they do not like the answers to questions. There is absolutely no substance to Senator Lewis's point of order. Senator Walsh is quite clearly pointing out what everyone in this place knows, that is, that the highest unemployment rate in this country is in Queensland and that the highest rate of increase in unemployment is in Queensland. He is filling out the details very carefully and I think he should do so. I cannot see the relevance of either Senator Chaney's point of order or Senator Lewis's point of order. I think, really, that I am out of order in speaking in this way. The PRESIDENT —Order! There is no point of order. I call the Minister for Resources and Energy. Senator WALSH —Senator Maguire referred to variations between regions and capitals, and he specifically mentioned Adelaide. As I was saying, in Brisbane the number of unemployed has increased by 65 per cent over the last 12 months; in Adelaide it has increased by only 27 per cent, much less than half. In non- metropolitan areas the same pattern applies. In Queensland the non-metropolitan unemployment number has increased by 52 per cent, and in the non-metropolitan areas of South Australia it has risen by 28 per cent. Perhaps even more revealing of the degree to which the collapse of the Queensland economy and its continuing deterioration is retarding the national economic development is the ratio of applications for employment the registered unemployed, and the number of jobs actually available. In Queensland, where a year ago there were 21 applications for every job, now there are 83 applications for every job. Senator Chaney —I raise a point of order, Mr President. I suggest that the length of the Minister's answer shows clearly that he is debating the question. He is abusing Question Time. He is quoting selectively from statistics to try to demonstrate some political point for the Queensland election. The point of order is based on the Standing Orders, which require facts to be provided and that the question not be debated. Senator Grimes —I rise on that point of order, Mr President. For Senator Chaney to complain about the selective use of figures or about the length of an answer is a bit like Satan condemning sin, considering what he was like at Question Time. We are anxious to answer questions and to give information to honourable senators opposite. I am very concerned that so much of Question Time is being taken up by these frivolous points of order. The PRESIDENT —The Minister is still providing material in answer to the question posed by Senator Maguire, but I ask him to confine his answer as much as possible. Senator WALSH —Before I was interrupted again, I was drawing to the Senate's attention, in response to Senator Maguire's question, the fact that a year ago in Queensland there were 21 applications for every job that was available. That, of course, was not good. But in just that year, that figure has increased to 83- there are now 83 applications for every job available. In South Australia a year ago there were 50 applications for every job available, and that figure has increased marginally to 58. That demonstrates yet again the severity of the economic downturn, even the collapse, of the Queensland economy. The hoary old excuse used by the Government of Queensland for a high rate of unemployment over quite a long period has been that population has drifted up from the south. That has been the traditional excuse for a chronically high rate of unemployment in Queensland. In conclusion, I note that that hoary old traditional excuse provides no explanation for the enormous increase in the number of unemployed people in Queensland in the last year and the equally enormous relative decrease in the number of jobs available. That can be attributed only to the very serious and continuing deterioration of the Queensland economy, which is retarding the national economic recovery. Senator CHANEY —My question is addressed to the Minister representing the Treasurer. I refer the Minister to the Australian Bureau of Statistics figures for August 1983 and to the table in those statistics which refers to the capital city employment rates in Brisbane and in Adelaide. Is the Minister aware of the fact that the unemployment rate in the city of Brisbane in August 1983 was 9.3 per cent and that the unemployment rate in the city of Adelaide, to which he has been referring, was 11.5 per cent-in other words, unemployment in Adelaide was nearly 2 per cent higher than in Brisbane? Also, is the Minister aware that the participation rate in Brisbane is at least half a per cent higher than the participation rate in Adelaide? Does not the Minister agree that those figures show that he has been selectively quoting figures and distorting the situation for narrow political purposes to do with the Queensland election? Senator WALSH —I have some figures here which I think-I cannot be certain, because they are handwritten-have come from the same table as the table to which Senator Chaney referred. At least one of them is identical. I think Senator Chaney said that in August 1982-- Senator Chaney —1983. Senator WALSH —August 1983. I will give the figures. I am not trying to hide anything. In the metropolitan area of South Australia, which I think is the city of Adelaide-it may include one or two provincial towns but I think it is the city of Adelaide-a year ago the unemployment rate was 9 per cent. This has now risen to 11 1/2 per cent. That is an increase of just over 25 per cent. In Brisbane, however, a year ago the unemployment rate, it is true, was relatively low, at 5.8 per cent, somewhat below the national average. That figure has increased to 9.3 per cent, which is an increase of almost 60 per cent in the unemployment rate in the city of Brisbane in the last 12 months. What those figures, on which Senator Chaney has specifically invited me to comment, reveal, is that although in association with the general economic decline of the last 12 months, induced by the mismanagement of the previous Government and the discredited former Treasurer in particular, there has been some deterioration of the unemployment situation in the city of Adelaide, there has been an enormous deterioration of the unemployment situation in the city of Brisbane. Although nationally the decline can be attributed to a number of factors, the major one of which I have already mentioned, that is, the mismanagement of the discredited former Treasurer, those sorts of regional variations, I suggest, can be attributed substantially to the mismanagement or otherwise of State governments. What those factors show is that the Queensland economy has been managed very badly over the previous 12 months. As a final comment, it is correct that, until a year ago, the rate of unemployment in the city of Brisbane, and I think in the State of Queensland generally, was marginally below the national average. There was at that time quite substantial investment in resource projects and that provided a temporary boost, relative to the rest of the country, to the Queensland economy. That has now disappeared and the true nature of the Queensland economy and of the skill or otherwise of the Bjelke-Petersen Government at managing that economy are now being reflected. The State of Queensland is in a desperate and rapidly deteriorating economic position. Senator CHANEY —Mr President, I ask a supplementary question. I ask the Minister : Stripped of all of the rhetoric, is it not a fact that those figures show that unemployment is more than 20 per cent higher in the Labor-run city of Adelaide than it is in the National Party-run city of Brisbane? Senator WALSH —It is correct that, in round figures, the rate of unemployment in the city of Adelaide is 20 per cent higher than the prevailing rate of unemployment in Brisbane. It is also a fact that a year ago, when a Liberal government was in power in South Australia, the rate of unemployment in the city of Adelaide was more than 50 per cent higher than it was in the city of Brisbane . So the differential-since Senator Chaney seems to think that that is important -between the cities of Adelaide and Brisbane, which a year ago was more than 50 per cent under a Liberal government, after 12 months of Labor government in South Australia, has been brought down to 20 per cent. Senator COLSTON —Is the Attorney-General aware of a recent call by the Australian Press Council for the repeal of provisions in the Royal Commissions Act giving commissions the power to punish for contempt? In the light of the considerable controversy over this issue in recent times, will the Government review the Act in accordance with the call from the Australian Press Council? Senator GARETH EVANS —I have seen the reports of the Press Council statement on this matter. I think they should be looked at in a context which is not always fully appreciated, and that is that the powers of royal commissions to punish for contempt are more limited than those of the courts to the extent that the commission has itself power to punish for contempt, but only for wilful contempt in the face of the commission, and if the commissioner is a judge other kinds of cases of contempt can only be proceeded with in the ordinary courts by way of separate prosecutions. Having said that, it is still the case that there are wide-ranging powers of contempt in relation to royal commissions, that those have come under public attention and scrutiny in recent times and that there may well be a case for the review of those powers. I have always had something of a sympathy for the view that the law of contempt as it applies to commissions of inquiry ought to be rather narrower than it is and confined to contempts in the face of the court or involving wilful disruption. Indeed it may be recalled that I moved an amendment to that effect to the previous Government's National Crimes Commission Bill, in which a much more broad- ranging contempt power was proposed to be inserted. At this stage I can say no more than this: The whole matter of contempt not only of courts but also of tribunals and royal commissions has already been referred by me, on 7 April this year, to the Law Reform Commission for report. It will be recalled that that was in the aftermath of, among other things, the Gallagher case in the High Court, which raised again quite fundamental questions about the law of contempt as it applied in the courts. But equally the terms of reference of that reference to the Law Reform Commission were deliberately cast so as to be broad enough to include references to the law of contempt before tribunals generally. I will certainly ensure that the views of the Press Council are made known to the Law Reform Commission and I anticipate, with some keen interest, the report coming from the Commission, although given present resource difficulties and competing priorities it may be some time before that report is available. Senator MASON —My question also is directed to the Attorney-General. I ask the Attorney whether he has noted an article in the latest Newsweek, the issue of 10 October, saying: For better or worse, the Central Intelligence Agency is back in the business of covert action, with a global scope and intensity of resources unmatched since its hey-day 20 years ago. CIA support services are said in that article to include several banks in the United States of America and abroad. In view of that statement and repeated and continuing allegations of CIA involvement with the Nugan Hand Bank to carry out illegal and damaging acts to Australia and Australians, can the Attorney assure the Senate that the law will be strictly and universally applied to all foreign nationals, investigations held if breaches of Australian law are suspected, charges pressed and penalties imposed if the breaches are proved? While conceding the need and usefulness of legal co-operation between the CIA and the Australian Security Intelligence Organisation, I ask the Minister: Does machinery exist so that the Government will always know what that co-operation involves? Finally, can the Attorney assure us that the alleged security interests of any foreign country cannot be a justification or excuse for crimes committed in this country and that the staff of ASIO are or will be under instructions to recognise that policy? Senator GARETH EVANS —I have seen the article in Newsweek referred to by the honourable senator. As to the general part of his question, which he addressed in his conclusion, I can say this: It is very much part of the Government's policy to ensure that in accordance with international law no foreign intelligence organisations are allowed to conduct covert activities on Australian soil. So far as the earlier part of the question is concerned, relating specifically to the Nugan Hand issue and questions that have arisen from time to time in relation to that, the new letters patent that were issued to the Stewart Royal Commission of Inquiry into Drug Trafficking in March this year require the Royal Commission to investigate, among other matters, whether persons associated with the Nugan Hand group have carried out illegal activities in Australia. Should that or any other investigation reveal breaches of Commonwealth laws by anyone, I repeat anyone, the question of prosecution will be considered in the normal way without fear or favour, whoever, I repeat whoever, the possible offenders may be. Senator MASON —Mr President, I ask a supplementary question. I asked the Attorney-General whether the staff of ASIO are or will be under instructions to recognise that policy. Senator GARETH EVANS —The staff of ASIO are entirely familiar with that policy. Despite some rumours from some quarters to the contrary, the staff of ASIO are in the habit of observing both government policy and the law. Senator REYNOLDS —Can the Acting Minister for Health advise whether there has been an agreement with the Queensland Government to fund a national disease control program on a dollar for dollar basis for the control of mosquito borne diseases such as dengue fever and Australian encephalitis? As such agreements with Victoria, New South Wales, South Australia and Western Australia have already been announced, can the Minister advise when the Queensland agreement will be announced? This State is considerably at risk in regard to mosquito- borne diseases. Furthermore, can the Minister assure this chamber that this important health program will not join the queue of Federal initiatives to be delayed or shelved by an unco-operative Queensland Government? Senator GRIMES —Senator Reynolds has long taken an interest in the national disease control program. Senator Lewis —Since you gave her the question. Senator GRIMES —No, I did not give her the question. The honourable senator has it wrong again. If I had given her the question I would have the answer here on my desk. It is my understanding that, after considerable delay, agreement between Queensland and the Federal Government to establish the program to control mosquito-borne diseases has been reached. The details of and the reasons for that delay are, as I recall it, again related to the problem of getting the Queensland Government to co-operate with any Commonwealth initiative. I will get the exact details of the program for Senator Reynolds later. Senator LEWIS —I ask the Minister representing the Minister for Finance whether an arrangement by shareholders to liquidate a company to avoid taxation on the distribution of capital profits, such as that undertaken by Coomel Pty Ltd, constitutes an asset stripping operation similar to that envisaged by the legal parts of the bottom of the harbour schemes which the Government now seeks to tax ? Senator WALSH —I am not familiar with the details of the company to which Senator Lewis's question referred. I will pass that question on to the Minister for Finance for an answer. Senator Withers —You are familiar with Horgan's affairs. Senator WALSH —I do, however, know that it bears absolutely no similarity to the devices employed by the former chairman of the Liberal Party finance committee in Western Australia, Mr Denis Horgan, since Senator Withers reminded me of it, by which-this was published on the front page of the Sydney Morning Herald approximately one year ago-the Metro group of companies evaded $7m in taxation and for which, according to recent Press reports, a liability of more than $4m has already been assessed and sent out by the Commissioner of Taxation or the Deputy Commissioner of Taxation. There is absolutely no connection with the devices employed by Mr Horgan, and, I might add, by at least five other of the fifteen members of the Western Australian Liberal Party finance committee at that time. They used bottom of the harbour operators to appoint phony directors to sink these companies to the bottom of the harbour. As a result of legislation introduced by the last Liberal Government and supported by the then Opposition and some others, Mr Horgan's companies are currently receiving assessments for at least $4m of evaded tax. Senator Dame Margaret Guilfoyle —How do you know that? Senator WALSH —It has been in the Press. Are you another, like Senator Withers, who does not read the newspapers? The PRESIDENT —Order! The Minister will address his remarks through the Chair. Senator WALSH —I do not know whether Senator Dame Margaret Guilfoyle wishes to plead ignorance of these matters because she does not read the newspapers, but it has been commonly reported and I stipulated that earlier in answering the question. In conclusion, I leave this as an open question: Even if the fact that just about half the Western Australian Liberal Party's finance committee was up to its ears in bottom of the harbour tax operations-- Senator Chipp —Mr President, I take a point of order. Without taking sides, I think we are getting on to dangerous ground, upon which you should look carefully. Names are being mentioned by the Minister of people who are not in a position to defend themselves in this chamber. Also the name of a Minister is being shouted out by certain honourable senators on your left, that Minister not being a member of this chamber. I think that on a Friday morning we can allow tempers to come to the surface, but if you, Mr President, allow to continue this sort of name calling of people who are not in a position to defend themselves, with great respect, I suggest we could be establishing a fairly dangerous and undesirable precedent. Senator Chaney —Mr President, may I speak to the point of order? A quite simple question was put to the Minister. It related to comparing the nature of a sale or a distribution of capital profits through a liquidation with a dry Slutzkin, to use the common expression. I would simply say that not only have various names been thrown in, which has happened dozens of times in this chamber over the last year or so, but also the Minister is proceeding to debate the question again with very great enthusiasm without dealing with the substance of the question at all. So, I support the point of order raised by Senator Chipp but add that I think quite clearly there is a breach of the Standing Orders in that the question is not being addressed but is being debated. The PRESIDENT —I do not think there is a point of order at this stage. The Minister is still answering the question, but I suggest that he avoid a tendency to debate the matter, in accordance with standing order 100. There is another point and that is that some of these matters-I am not sure of this-may be before a court. I mention that matter before the Minister continues. Senator WALSH —I was just about to conclude. Even if the fact that almost half the Liberal Party's Western Australian finance committee at that stage had not been exposed as being involved in trading with bottom of the harbour dealers or in bottom of the harbour operations was not related to the failure of the then Government to prosecute in time, I certainly suggest that the failure of the Fraser Government to take legislative action against those operators until it could see itself staring down the barrel of a certain electoral defeat if it continued failing to take such action is related to the fact that so many senior people in the Liberal Party were directly associated with bottom of the harbour operations. Senator LEWIS —Mr President, I ask a supplementary question. In light of the last part of Senator Walsh's answer, I ask him: Is his Government considering taking legislative action against people who involve themselves in the distribution of capital profits through liquidation of a company? Senator WALSH —A Bill is currently before the Senate to do precisely that and to recover the personal taxation which was avoided or evaded through that sort of action. Senator Lewis will have the opportunity to vote for that Bill, I expect next week, if he believes such action should be taken, as will every other honourable senator on the other side of the chamber. Senator ROBERT RAY —Does the Minister representing the Treasurer recall that when Mr Jeff Kennett was elected Leader of the Opposition in Victoria he gave several interviews in which he indicated that he no longer participated in his previous private business? Does he also recall that the only connection between Mr Kennett and that company is that he is provided with a free Mercedes Benz every year? Will the Minister investigate whether the company allows as a tax deduction the provision of that car to an individual who contributes nothing to the firm? Senator WALSH —I am not able to confirm or deny the facts regarding Mr Kennett's declaration that he had absolutely no association with, or made no contribution to, his previous business or the disclosure that he was provided by that company with a Mercedes Benz car without charge. Knowing Senator Ray's meticulous attention to detail on such matters, I have little doubt that that is correct. Senator Gareth Evans —And to other matters as well. Senator WALSH —To that and other matters. I note Senator Ray's meticulous attention to detail and accuracy in general. As to the application of the Taxation Act to the set of circumstances which he outlined, I will not attempt to cite the relevant section of the Act, but there is a section in the Income Tax Assessment Act which refers to income in kind being derived from any source. In the general application of that section the free provision of a car by a firm to a person who had no employee relationship with that firm would either have to be assessed as income in the hands of the person receiving the free car or, alternatively, not be legitimately deductible against the income of the company providing that car. For clarification of that point I will refer the matter to the Treasurer, who I expect ultimately will refer it to the Commissioner of Taxation, and I will supply Senator Ray with an answer as soon as I am able to do so. Senator TOWNLEY —My question is directed to the Deputy Leader of the Government in the Senate. It relates to a statement made by Senator Button in the Senate on 22 September this year with regard to public duty and private interests of members of parliament, in which he said that he would refer to the Standing Orders Committee for consideration whether the registration system should be compulsory or voluntary. Is it the intention of the Government that the Standing Orders Committee should report on that matter before the Senate further considers the motion? Senator GRIMES —I do not recall the statement made on 22 September, but I am certainly aware that the matter of declaration of pecuniary interests will be discussed by the Standing Orders Committee. However, the Government has come down with a proposal, and the proposal has been put to the Senate. We will be debating the matter as soon as we can, at which time Senator Townley and other senators will be able to express their views as to whether such declarations should be voluntary, private or otherwise. It may be that at that stage Senator Townley will want to move that the matter be referred to the Standing Orders Committee. Senator TOWNLEY —I ask a supplementary question. Is it not a fact that the motion that has been moved by the Government provides that registration will be public and that it will be compulsory? Senator GRIMES —It is certainly Government policy and the Government's intention that such registration should be public-to the extent that the ministerial declarations have been made public-and compulsory. We do not believe that all the fine details of that type should be made public; but, to the extent that they are made public, they should be. However, that is a matter to be debated by the Senate and the House of Representatives-the Parliament as a whole-and we will see what comes out of that. Senator BOLKUS —Is the Minister for Social Security aware that there are problems in the St Kilda office of the Department of Social Security since the discovery that asbestos has been found in the building? Does the Minister consider that this is hazardous for staff or for the public visiting the office? Has the Administrative and Clerical Officers Association been consulted on behalf of its members? What action has been taken to ensure that proper safety standards for staff and visitors to the departmental office will apply? Senator GRIMES —I am aware that asbestos has been discovered in the St Kilda office of the Department of Social Security. A patch of the ceiling on the first floor of the building was damaged. The sealant had cracked and asbestos was discovered. It was found during the repair of the damage that asbestos had fallen into the working area. The particles that had fallen contained a mixture of vermiculite, asbestos and cement. At that time the staff in the office contacted the Assistant Secretary of the ACOA. They had a meeting of union members in the office at that time. The staff were granted short term leave to allow them to consult with management and State headquarters. Eventually they reaffirmed that they would not work under these circumstances. After considerable consultation the staff finally requested that arrangements be made to relocate all staff, and that happened. At the moment a team of experts is looking at the problem. They will totally clean the whole of the first floor of the building. The Department is seeking alternative accommodation but as the St Kilda area is one of high activity- particularly high unemployment-considerable efforts have had to be made to ensure that people in need are carefully looked after by the Department. The Department will ensure first of all that the staff are working in safe conditions and secondly that the clients of the Department are served well by the Department. Thirdly, in order to achieve both of these things, we will continue to consult with the ACOA and relative unions about this and other matters to ensure that everybody is happy. It is a difficult situation but unfortunately more and more asbestos is being found in particularly older buildings and it is creating-as everyone knows-a problem not only in Melbourne and St Kilda but also in Canberra and other places. Senator HAINES —I direct my question to the Minister for Education and Youth Affairs. I refer to yesterday's statement by the Special Minister of State concerning the Australian Electoral Office education and enrolment campaign. On page 7 of the statement the Minister said: To assist the department's relating to youth the Government has decided to undertake a research project which will thoroughly investigate the views and attitudes of youth on such matters as the education system, employment training opportunities, income support, employment expectations and government policies and programmes in these areas. Can the Minister inform me whether it is true that officers of her Department, working in the office of Youth Affairs, have not been informed of such a research project? Does the Minister agree that such a research project would be viewed by some young people as extreme cynicism, given that the report entitled 'Creating Tomorrow Today', prepared by the Youth Affairs Council of Australia and funded under the previous Government by Federal funds, has only just been launched and has not yet had time to be seriously considered by anyone? Senator RYAN —In response to the latter part of Senator Haines's question, the report 'Creating Tomorrow Today' is currently being considered by officers within my Department. It is also being considered by officers within departments that have a complementary role with regard to youth, such as the Department of Employment and Industrial Relations and the Department of Senator Don Grimes, the Minister for Social Security. That report was the result of extensive consultation carried out by officers of the Office of Youth Affairs in co- operation with the various voluntary organisations throughout Australia that represent and have participation by young people. It is an extremely useful document. Not only is it currently being considered within the Government but also will it provide the basis for the agenda and topics to be considered at the first ever meeting of Ministers involved with youth affairs, to be held towards the end of November. So, the usefulness of that report is not in doubt. Everything that report contains will find its way into Government thinking and policy, not only at the Federal level but also at the State level. However, I think that the exercise engaged in developing that report is different from the proposal to research youth attitudes, mainly in respect of youth attitudes to our parliamentary system, government policy and so on. One of the differences is that the report 'Creating Tomorrow Today' was concerned with the broadest possible consultation with youth about its circumstances, whereas the research that is currently being planned is much more specific and will research in a different way-not through broad based consultation but through a research project set up by a research organisation-specific attitudes in depth. So, I think that the results we will get from this specific research project will be different and will add to the picture of youth needs that we are starting to get through the activities of consultation with voluntary youth organisations. I have some more detailed information with regard to the particular research project to which Senator Haines's question referred, but I think that, rather than take the time of the Senate, I might pass that information to Senator Haines. If she wishes for further information, I will be happy to provide it to her. Senator HAINES —Mr President, I ask a supplementary question. I do not know what the supplementary information that the Minister has contains, but she certainly did not inform me whether officers of her Department in the Office of Youth Affairs have been informed of such a project. Nor did she say whether, if they have not been informed, it is because they will not be taking any part in it and that there was therefore no need to inform them. Senator RYAN —The honourable senator obviously has been misinformed. Not only are the officers of my Department aware of the proposed research project, but they have participated in discussions about what form it should take, in finding an appropriate research organisation to carry out the project and so on. That is the detailed information that I have here. But, as it would take some time to read out this information, I suggest that I make it available to Senator Haines. Senator ROBERTSON —I ask the Minister representing the Minister for Foreign Affairs: Is it a fact that the International Red Cross has suspended its humanitarian activities in East Timor because the Indonesians have refused delegates access to all villages requiring assistance? Is it also a fact that the Indonesians will not allow International Red Cross to visit detainees? If these are facts, will the Minister undertake to approach the Minister for Foreign Affairs and ask him to use his influence with the Indonesian Government to allow the International Red Cross to operate freely in East Timor? Senator GARETH EVANS —I have seen newspaper reports to the effect stated by Senator Robertson. The latest information from the Minister for Foreign Affairs that I have to hand on this question is dated 30 September, so it may be that something is out of date in the light of the events of the last few days. If that is so-and I will check the matter further-I will certainly let the honourable senator know. On the information available to me as at 30 September, I can say this: On 26 September the International Committee of the Red Cross representative in Jakarta denied media reports that the ICRC had been refused access to East Timor. He said that the ICRC still had access to the territory, although with significant restrictions of movement on the main island. He did, however, confirm that the ICRC had not yet resumed relief operations on the main island due to limitations on ICRC delegates imposed by the Indonesian authorities. He added that these matters were under negotiation in Jakata and that the ICRC was willing to resume its assistance program as soon as ICRC criteria were met. Meanwhile the Red Cross was continuing its food and medical program on Atauro Island where alleged Fretilin sympathisers are held. The Australian Government attaches importance to humanitarian assistance that the ICRC and other relief agencies have been able to extend to the people of East Timor for this reason: Australia has contributed a total of $6.2m towards the ICRC's operation in East Timor, including a grant of $1m in June this year. The Australia Government hopes that, as a result of the negotiations now taking place, the ICRC will be allowed not only to continue its relief operations on Atauro, its involvement in family reunions, mailing, tracing and protection activities, but also to extend its relief operations to the mainland of East Timor where necessary and to expand its program of visits to detention centres. The PRESIDENT —Order! Before Question Time continues, I think I should say something about the comments made earlier by Senator Chipp. Having in mind the expression by Senator Chipp, I remind the Senate that the exercise of the freedom of speech guaranteed to, and fundamental to the rights of, members of the House of Representatives and the Senate also carries with it considerable responsibility. I am fully aware that the Joint Committee on Parliamentary Privilege is considering the matter. I am also aware of expressions of public concern as to the use of the privilege as it sometimes relates to private citizens. As President of the Senate responsible for the conduct of the chamber, I ask all honourable senators on both sides of the House to keep in mind the proper propriety of proceedings at all times. I also point out, in fairness to those who are anxious to ask questions, that a large number of supplementary questions have been asked today. I ask that honourable senators respect the rights of other senators when asking supplementary questions. Senator CHANEY —Mr President, my rising again in no way implies any disagreement with the earlier part of your comments. I am sorry to take yet another question. I ask the Minister representing the Treasurer whether he is aware that Queensland has, for a long time, had a National-Liberal Party Coalition Government. Does he agree that in the State of Queensland population growth has been well above the national average for many years and that Queensland has become a magnet for people from the other States? Does he agree that the growth in population in Queens- land has arisen from both a higher birth rate and a strong migration flow from all other States? Does he agree that over the last three years there has been a very substantial creation of new jobs in Queensland , whereas there has been a loss of jobs in the States of New South Wales, Victoria and South Australia? Is he aware that Queensland has a rate of unemployment which is well below the national average and which is well below the level of unemployment which is suffered in the Labor State of South Australia, in the Labor State of New South Wales and in the Labor ruled State of Western Australia? Bearing in mind all of these obvious advantages which are enjoyed by Queensland and the disadvantages which are suffered by those States which have Labor governments, does he agree that the misuse of statistics that he indulged in in the earlier part of Question Time was a real abuse of this Question Time? Senator WALSH —I am well aware of the fact that the traditional excuse for unemployment in Queensland is both the interstate migration and the high birth- rate-the high rate of population growth in Queensland. Without reflecting on whatever validity that excuse may at some time or other have had, it certainly does not account for the massive increase in unemployment of 65 per cent-well above the national average, more than double the increase in South Australia- which has occurred in Queensland in the last 12 months. It may have accounted for unemployment to some extent in the past in the State of Queensland. It cannot possibly account for the enormous increase that has occurred in the last year. Sitting suspended from 12.59 to 2 p.m. Debate resumed. Senator MISSEN(Victoria)(2.00) —Before debate on the Freedom of Information Amendment Bill, the Archives Bill and the Copyright Amendment Bill was interrupted at noon, I had spoken on what the Freedom of Information Amendment Bill does. I had expressed very grave disappointment that the Government had seen fit to abandon its election undertakings to implement the whole of the report of the Senate Standing Committee on Constitutional and Legal Affairs on freedom of information and that it had proceeded only some distance in expanding on provisions in the Freedom of Information Act Bill. I welcomed the extent to which the Government had gone in so doing. I pointed out the two salient features about which the Attorney-General, Senator Gareth Evans, and other spokesmen, particularly spokesmen such as Mr Lionel Bowen and Dr Blewett in the other place, had been so vigorous-namely, the abolition of conclusive certificates which stand as a blot on the present law of freedom of information in this country and the failure to take up the powers which were hoped to be given to the Commonwealth Ombudsman. These were gross failures of the election undertakings of the Government which were clearly expressed. I certainly intend to move amendments-the same amendments which Senator Gareth Evans moved some two years ago-during the Committee stage. I know that some of my amendments will not succeed because the present Opposition has not changed its past view on conclusive certificates but I believe that there is a reasonable hope that some of my amendments will succeed. I hope that the Government will then have a good hard look at the problems which these amendments raise and that it will go back to its initial good intentions. I point out that, when the debate took place on the Bill in the House of Representatives two years ago on 23 February, Dr Neal Blewett-who is now a Minister-after pointing out for the benefit of the then Opposition that, if better access to freedom of information was given it would improve political debate and would help to keep Ministers on their toes, had this to say about political principle: However, I hope that we are supporting the improvements to this Bill not simply for that reason but also because we do consider that the needs of Parliament and the community can both be served by more effective freedom of information legislation than is offered by the Government in this Bill. Let me say that in the not too distant future when we are in Government I hope that we will be able to remember that principle because, as I have suggested tonight, one of the great temptations is the fears that governments have that somehow they will lose authority by giving information, a form of power, to a wider audience. We know now that that principle has not been sustained. We know indeed that the community is not to be given the facilities, in particular the facilities for the working of the Ombudsman in the monitoring role, examining the legislation, helping people and appearing to represent them if necessary for them on matters of principle if they are involved in testing the refusal to give information. These are not the principles which, although espoused by one of the leading spokesmen of the then Opposition, the present Government will maintain. Unfortunately this new Government has lost authority because it is not willing to share that information with the community. I do not propose to go into any more detail about the amendments which I will move subsequently. But I say this about one question which I think arises: It is often said by spokesmen that somehow ministerial responsibility can be interfered with by the Freedom of Information Act. That argument took place when the original Bill was before us. Those who opposed the Bill, particularly the public servants, were very ready to maintain that somehow the Westminster system would be damaged. I want to read from an article which is relevant certainly to one amendment which I do not think will have great support but which I stand by. I refer to an article by Professor John D. McManus on freedom of information in Canada, where freedom of information has taken interesting turns. Perhaps Canada in some ways is now slightly behind Australia. Speaking about the argument, he said: The essence of the argument made on this point in the Green Paper and, indeed, by many federal and provincial spokesmen before and since, was that judicial review of decisions to deny access to government records would be inconsistent with the constitutional convention of ministerial responsibility. This was, and remains, an interesting exercise in political rhetoric. Although there appears to be no merit whatsoever in the claim of inconsistency, governments have attempted to defend their tradition of refusing inconvenient disclosures under the guise of preserving our Parliamentary heritage. The constitutional reality, however, is that the convention of ministerial responsibility has nothing to do with the tradition of non-disclosure. On the contrary, the convention asserts that Ministers of the Crown are responsible individually and collectively to the Legislature for the administration of the executive branch of government. The historical significance of a principle rendering the Ministers of the Crown accountable to the Legislature is obvious: it is also obvious, of course, that with the rise of political parties and acceptance of the principle of party solidarity, the accountability of the Cabinet to the Legislature is more a matter of form than substance. Thus, more cynical observers argue that ' ministerial responsibility' is a shopworn constitutional myth and that one of the very compelling arguments in favour of freedom of information laws in parliamentary jurisdictions is that it would restore a measure of that very kind of accountability that was originally secured by the convention of ministerial responsibility. I believe that puts the argument very well. It is relevant to the continuance and insistence by the Government and, unfortunately, most of my colleagues on this side, in regard to leaving the conclusive certificates entirely in the hands of a ministerial decision. It also applies to one other amendment which I shall move, but which I do not think will be successful at this time, to enable the Ombudsman to look into ministerial acts as well. I will separate that from the other amendments relating to the Ombudsman's powers. I believe, as I have for many years, that there is no sound basis for the removal in general terms of the Ombudsman's powers to look into ministerial decisions and certainly not in relation to freedom of information and the disclosure of documents. I trust that the amendments I will move will test the Government. If some are carried I think that will test the Government even more as to whether it can get back to a genuine spirit of co-operation in this matter. I want to say finally in this speech on the second reading debate that I believe we are now in a process of examination of the workings of the Act. I recognise that the Australian Democrats have a number of amendments which I think have a relatively small compass and which are probably quite justified but , on the other hand, I think there is a difficulty. In my amendments I have taken only two of the major areas where the Government has palpably fallen down in its obligations. I have no doubt that when we examine the operation of this Act at the end of a year or so we will find that public servants have overused, misused and tended to rely on the vagueness of some of the exemptions. I hope that all these matters will then go before committees of the Senate and that those committees will do a fresh examination to see how the Act is working and come up with recommendations. Irrespective of whether some of my amendments and those of the Democrats succeed in being passed today-I welcome the fact that they are being put before the Parliament today-I trust that these matters will be considered very carefully by those who examine the operations of the Act and have the facts before them as presented in the reports of the Attorney-General's Department, the Ombudsman and the other departments. Those reports will be available to Parliament to see how all the workings of the Act are operating. Members of the public have suggested a number of improvements to other matters contained in the Bill. I referred before to the statements by the Library Association of Australia which has taken a consistent, very considerable and useful interest in the operation and the formation of the Bill. I referred earlier to a point made in its submission. It is this: Another point of contention is the classification of exempt documents (Ss.11.12 ). Once documents are declared exempt they remain so until they may become available under the open access provisions of the Archives Act 1983. As before, we submit that the legislation should make provision for periodic review of exempt documents (to enable their release before 30 years has elapsed), or for a different classification when their exemption is first decided. In contradistinction to the United States of America, where there are some provisions for the review of classifications, I am afraid that we have not got that far here. We are now likely to have refusals that will stand on the record in regard to documents that ought to be released in, say, five, six or 10 years time and not be reviewed. I trust that this whole matter of the classification of documents will be one of the things that are looked at early by this Government. I hope it will look also at the existing secrecy provisions which are immense in number and inconsistent in nature and which the Senate Committee report pointed out needed considerable review. I trust also that the Government will be proceeding with the idea of indexing Government documents so that it will be easier for people to know what records are held in government. With the use of computers and other machines, I trust that, in the future, the availability of government documents will be made easier for the public. It is all very much a matter of how this legislation operates. It is disappointing in a sense that the Act has so far not had a very great acceptance and that not many people have used it. I trust that the people of Australia will take a greater interest in it and make good use of it in the future. I support the Bills. Senator REID(Australian Capital Territory)(2.12) —The explanatory memorandum to the Archives Bill refers to the role of the Australian Archives in: identifying and physically preserving records of administrative, community, cultural or educational value. On the same page it refers to material in the custody of certain institutions being in general terms outside the scope of the legislation. In this regard it refers to the National Library of Australia. It is to do with some of the cultural records of the country, perhaps presently in the possession of the National Library that I wish to comment. The Library has certainly honoured its charter and commitment in that it has collected quite large quantities of film, records and tape. It is in relation to the preservation of these that I wish to address myself today. It is not necessary to go through all the newspaper cuttings, articles and speeches of recent times about this part of the National Library. An article in the Bulletin only recently referred to the crisis at the archives. To spend time today arguing about whether the National Library has spent adequate resources on this section of its activities probably does not get us anywhere. The Library says that it has not had sufficient funds to allocate more than it has to the preservation of these articles, and government clearly has not heard the call to identify the need and give more moneys to it. I wonder whether it is necessary to devise a system whereby funding is made available directly for the purpose of preserving film records, tapes and other precious records so that it does not get confused in the Library's funds with the supply and preservation of books and other things. I am particularly glad to have the opportunity to raise the matter today because of the article in this morning's Canberra Times, headed 'Library to consider disciplining archivist'. It refers to a letter which Mr Peter Burgis, a sound archivist at the Library, sent to the Prime Minister (Mr Hawke) in which he publicly criticised the state of the Library's sound recording collection. Mr Burgis is also the Australian Capital Territory Branch President of the International Association of Sound Archivists. He is eminent in his field and I think we should hear from him and know what he thinks about the state of the collection and what should be done about it. I appreciate, of course, the role of a public servant in not criticising his employer and I agree with that as a principle, but this is a grey area and a difficult one, and I would be disappointed indeed if the National Library Council took any form of disciplinary action. Rather, it should hear Mr Burgis as somebody who has something to say on something about which all Australians should be concerned and to which all Australians should want to see a solution found. The fact is that many precious records of our history have been lost because they have not been stored properly and have not been preserved. The Library, luckily, now has many records. Jim Davidson, the ABC Dance Band leader, in his will gave his whole record collection to the National Library. When I was last at the Library the collection had not been classified, properly numbered and identified. A lot of work has to be done. It is very clear indeed that sufficient resources are not being allocated for the purpose of properly classifying and preserving all these records. The Library can quite properly say that it has increased its funding. In a Press statement it indicated that its funding had increased by 172 per cent and that is true. But it depends, of course, from what base one starts in determining whether it is an adequate sum. As I said, I think that to spend time arguing about that aspect is pointless. We need solutions to the problem. Some people suggest that the responsibility for film and sound archives should be taken away from the National Library and given to a special institution. There is certainly a lot to be said for that suggestion. There is some suggestion that the costs of doing so, administratively, are out of proportion to the size of the operation and that maybe under the management of the Library is still the appropriate place for it to be. I think it is necessary for the funding to be separately identified so that there cannot be confusion about what funds are in fact available. Records exist that ought to be available to people. I have been involved with the Print Handicapped Radio of the Australian Capital Territory organisation in Canberra. It is particularly interested in seeking from the Library copies of old radio plays so that they can be played on its radio system for people who are interested in hearing them. That organisation has offered to help with the copying but it has not been able to get the material it wants because the Library does not have available the necessary resources. A letter which was written by the Chairman of the Council of the National Library to Mrs Jill Southwell, Secretary of the Print Handicapped Radio of the Australian Capital Territory organisation, dated 9 February 1983 stated: I have received your letter . . . dealing with difficulties experienced by Print Handicapped Radio Stations in obtaining access to material in the Sound Recording Collection of the National Library. The letter went on to state: As you will know from previous discussion and correspondence, the establishment and development of the Sound Recording Collection is a matter in which the National Library Council has taken a close interest, as indeed it also has in the provision of services to the Handicapped. The Council recognises that much needs to be done in both these areas of service. However, it is confident that, not only is the Library making the best possible headway within its present resource, but the Library is also putting every effort into obtaining the additional resources which would enable the services to be developed more speedily. The thrust of the letter is that the Library certainly believes that it is doing the best it can but it does not have the resources to deal adequately with the matter. The same group took up the matter with the Commonwealth Ombudsman and received a letter from the Ombudsman dated 23 August 1983 which, in part, says: Oral advice provided by the Principal Librarian has confirmed the earlier advice to you by both the Department of Home Affairs and Environment and the National Library Council that the main barrier to access is the Library's inability, in terms of staff and equipment, to service PHR's request. The evidence is that what Mr Burgis says is right-more resources are needed. He is crying out for help, in a sense, to ensure that adequate resources are made available. The Library itself, in a Press statement dated 18 September, when referring to the facilities, said that this is in spite of the fact that a disproportionate amount of recent increases in the Library's total budget is being spent on the film archives in preference to other sections of the Library. It goes on to justify and explain the amount that has been spent, but it is all too little for what needs to be done. We have an obligation to those generations who will follow us to see that we do better than we have done in the past. There has been some argument about the siting of the Archive. My view is that it should have a separate building in Canberra and that it should have the proper sound recording studios where copies can be made of these precious records. I use the word 'records' in the widest sense. It should have a shop from which copies of songs and speeches can be sold. I do not think there would be a tourist coming to Canberra who would not be interested in seeing and buying some of these things so as to have as a memento of the occasion. The Library also has old gramophone records and so on that could be displayed. It could be a magnificent centre. The real benefit of that would be that it would encourage other people to donate their collections and the records which they have in their possession to this institution. Perhaps the Library should continue to deal with the administrative side of this-perhaps not. What we do not want to do is increase the bureaucratic costs of running it. We want the moneys that are available to be used for the purpose of preservation. There has been some discussion about whether the Archive should be located in Sydney or Melbourne. The mere fact that there is discussion about that makes it quite clear that it should stay in Canberra, the national capital. All things of this nature should be here. I could quote from many articles today-I would like to do so-but I think many people are aware of them. Today I wish to say to the National Library Council: Listen to Mr Burgis. Do not criticise him for what he has said. Co-operate with government in seeing that the very best endeavour is put into preserving these treasures so that future generations can have them. I think that by 1988 there will be a lot of interest in the material we have. I rather fear that if we are not careful it will not have been classified and will not be available for people at that time. Senator HAMER(Victoria)(2.22) —I want to deal with the Copyright Amendment Bill which, I think, is extremely ill timed. It is not, I think, a piece of this Government's legislation. It has been in the machine for some considerable time. It has come to us, in my view, at a peculiarly inappropriate time. The Bill seeks to amend the Copyright Act to provide for delivery by broadcasting and television organisations of so-called ephemeral records to the Australian Archives. At present such ephemeral records are given to the National Library to be held by the National Film Archive. The question of the future of the National Film Archive is a matter for current consideration by the Government. It seems most peculiar, to put it mildly, that at this very time the Government should be pushing through legislation which removes some part-admittedly a small part-of the material that goes to the National Film Archive and gives it to a different organisation. To make quite clear what we are talking about, I should explain that an ephemeral record-that includes a videotape, a film or a sound record-is a record made by a radio or television broadcaster for the sole purpose of broadcasting a copyright work or recording. Of course, they can broadcast it, with permission, but it must be destroyed within a year unless it is turned over to a proper archive. Before the record can be accepted by the Australian Archives it must be classified as being of exceptional documentary character. I only want to refer to films and videotapes. If they are truly of an exceptional documentary character, I cannot understand why they are to be taken away from the National Film Archive and given to the Australian Archives. That seems to me a peculiar step. Ultimately it may be shown to be justified after a full investigation of the future of the National Film Archive, but I believe that is improbable. Certainly this should not be done in advance of that study and those decisions. I believe Australia can afford only one properly endowed national film archive. Even if it were possible to afford more, the importance of having a single focus for Australia's film heritage-this situation applies in other countries-is obvious. I do not dispute for a moment that the Australian Archives has a right- it is proper for it to have such a right-to have records in film form when dealing with records as such. When one is dealing with creative or documentary films, whether made by film or television companies, whether they are on tape or film, they are all part of our film culture and should be in a single archive which by its very nature must be the National Film Archive. I know this is under study by the Government at the moment. I merely wish to make some remarks about how this should be set up to guide the Government's faltering steps in the right direction. It seems that there is some confusion about where it is going. I do not think anyone these days would dispute the importance of a proper national film archive. We have been very neglectful of our extraordinary cultural heritage in the past. I give one example: Australia's first great film maker, Raymond Longford, made 27 feature films. Only four of them have survived in the national archive. We must tackle these problems of preserving our heritage. Our present National Film Archive as part of the National Library has great problems. It has poor access for people who want to use it. It is very badly underfunded which, of course, contributes to the poor access. It is poorly catalogued and it is not keeping pace with the necessity to transfer on to modern stock the old nitrate stock which is deteriorating very fast. We have an urgent need to preserve and give proper access to this vital part of our national heritage. I believe it is now time that the National Film Archive should be separate from the National Library. This relationship was largely accidental. The Library took on the various tasks when no one else was willing or able to do them and as part of its role it has not only a library but also a film archive and a sound archive, which Senator Reid was talking about a moment ago, and a painting collection. The question is whether these are still appropriate for the National Library or whether they should be hived off to more responsive bodies. I do not believe that the National Library is an appropriate setting for the National Film Archive. I do not believe the management of the Library has understood or will understand the nature and needs of a National Film Archive, nor is it reasonable to expect it to do so. There should be a commitment by this Government, as soon as practicable, to make the National Film Archive a separate statutory body, at the latest by 1986. Of course, it will take time because of the heavy reliance on the present infrastructure of the National Library. In the meantime, the National Film Archive should be given an operational charter in the form, I suggest, of a Cabinet resolution, with its own governing board, representative of the film and television community and with executive power. It should be attached administratively either to the Department of Home Affairs and Environment or to the Australian Film Commission. That is a matter of organisational structure on which I do not express an opinion. Obviously, it should be studied, but they seem to me to be the only two possible short term options. As I said earlier, the National Film Archive has been grossly understaffed. The present staff of nine should be increased over the next three years at least four-fold with, of course, appropriate regradings and restructuring. I give, as an example only, typical figures but the budget should be increased to at least $1.5m next year and probably $3m a year by 1985-86. That is the sort of order of expense which is necessary if we are to preserve this vital part of our national heritage. I suggest that this National Film Archive, when set up as an independent body, should have a one-line budget with power and incentive to generate income through revenue, sponsors and donations. The question of location is a very difficult one. I heard Senator Reid rather naturally speak strongly in favour of a continuation of residence in Canberra. The problem with Canberra, as far as the film community is concerned, is that it is neither accessible nor, I submit, appropriate. There will be deep problems deciding between Sydney and Melbourne but one of the first tasks of the new board of the National Film Archive should be to work out where the headquarters should be and how adequate access can be provided in other centres. The role of the new National Film Archive-it would be the first body whose prime task would be as a film archive, not a sideline film archive-should be the co-ordinating body in Australia. It should be built up as a centre of preservation expertise. It should maintain comprehensive records of Australian productions and archival holdings generally. It should have a mandate to preserve a comprehensive range of Australian film and television productions. It must have the power to resolve overlaps with other archival bodies to bring about greater co-ordination and standardisation, and, of course, it should represent Australia internationally in its field. As a means to this, I suggest this new NFA board should promulgate for wide discussion on selection, acquisition preservation, access and other operational policies. I hope that with staff increases it will be able to lift the present restrictions on access by next year. I do not think it would be appropriate for it to have its own cinematheque outlet. That would be expensive and in my view unwarranted. An organisation with which I am associated, the Australian Film Institute, is willing, able and appropriate to perform this role in consultation with the Film Archive. I mention gently that I suspect the advice going to the Minister for Home Affairs and Environment (Mr Cohen) will come exclusively from the National Library of Australia and, not surprisingly, it will fight very strongly and very understandably to retain this part of its empire, even at a time when empire creation is becoming unfashionable and possibly inappropriate. I strongly suggest that the Minister get alternative advice from the Australian Film Commission, which cannot give it to him unless he asks for it. I think the Minister has the responsibility to look at all sides of this and not to stick with the status quo. It may be that if and when we set up this new independent National Film Archive-which we will have to do eventually, and the sooner the better-the problem of the sound archive might be solved by associating it with the Film Archive, but I express no opinion on that. I think that is one matter the Minister should look at. As I have said, I think it is the Government's vital role and urgent task to see that there is proper preservation of and access to this vital part of our culture. I think that the Bill-it could be reversed later on but that would make it even more futile-which would pre-empt part of the access collection of the National Film Archive, should be deferred and considered again when the Government has decided what its policy is towards the National Film Archive. Senator GARETH EVANS(Victoria-Attorney-General)(2.33) —in reply-I thank honourable senators for their contribution to this debate and forgive them for all the point-scoring in which they have inevitably engaged. I can assure them that in their shoes I would have been even more vitriolic under the circumstances. I could hardly do anything else. On any view the Freedom of Information Amendment Bill is a major reforming measure in its own right, even though it does come only a year or so after the passage of the parent Freedom of Information Act. It picks up something like eleven major recommendations of the Senate Standing Committee on Constitutional and Legal Affairs, made in its much referred to report, together with a considerable number of other changes to reflect the experience that has already been gleaned in the few short months of operation of the legislation. The affirmation that this Bill amounts to is a very substantial one of commitment by the present Government to the principles of freedom of information . It is an affirmation that we have already made perfectly clear by the very many administrative arrangements we have continued to put into place to make the freedom of information legislation more effective since we have come into office . It is an affirmation that we have also made very publicly by our direction as an executive government back in May that the Act be administered from that date as though the present legislation were already in effect, notwithstanding that it was not anticipated that the legislation would be dealt with by this Parliament until well into the Budget session. It may be overlooked in some of the Committee stage debate to follow-certainly it was largely overlooked in the second reading debate so far-that the Bill contains many significant improvements to the parent legislation. It will allow the public a greater right to access for a start to prior documents. Senator Durack was kind enough to acknowledge this, and I appreciate his doing so. It is significant that no time barriers will now apply where an individual seeks access to his own records. It is significant that other records, generally up to five years old, will now be brought within the Act. It is significant that a document older than five years, although this was essentially the subject matter of the previous legislation, will also now be more readily, or at least as readily, available as before to the extent that it can be shown that access to it is reasonably necessary to a proper understanding of one of the documents that is now primarily available. There is a larger class of those by virtue of the amendments in this Act. It is significant that we are recasting the administrative procedures so as to vest the more sensitive areas of jurisdiction in the Administrative Appeals Tribunal itself rather than in any separate, specialist, rather idiosyncratic little documents review tribunal that was the subject matter of the last Government's legislation. It is particularly significant in this respect that, even though conclusive ministerial certificates remain, Ministers will be positively required under this Bill, if they are not going to accept the recommendatory decision of the Adminstrative Appeals Tribunal in an area of confidential information, to table in the Parliament statements of reasons for not accepting the recommendation in question. This is a way of ensuring a greater focus and a greater degree of accountability on those Ministers who may be minded cavalierly to ignore the recommendations of the Administrative Appeals Tribunal which should have every considerable political effect. It is significant again that a new public interest test will apply to the exemption of documents affecting the financial or property interests of the Commonwealth, to documents concerning tests, examinations and audits, the review of agency functions and the management interests of the Commonwealth. It is significant that that new public interest test will also apply to claims that a Commonwealth-State document is exempt which up until now has not been subject to a similar constraint of that kind, a recommendation that was very strongly put by the Senate Standing Committee on Constitutional and Legal Affairs. It is significant, and should be satisfying to the States that otherwise might be upset about the extension of the force of the legislation in this respect, that States will now have a formal right of appeal to the Administrative Appeals Tribunal against decisions that their documents be disclosed. It is significant that the legislation is being strengthened to make it clear that purely factual documents from the Cabinet and Executive Council area are exempt. There is more than just a nudge in that direction, as was the case in the parent legislation. We now have clear statutory language to ensure it. It is particularly significant, finally, that there be a provision now explicitly made for a progressive reduction in the time for compliance by departments and agencies with the freedom of information legislation requests from the present 60 days to a target of 30 days by 1 December 1986. I hope that when one goes quickly through a recitation of some of the major provisions of that kind it will be appreciated that what we are doing here is more than simply tidying up one or two loose ends. We are significantly extending the scope and the reach of the freedom of information legislation because as a government we are very much committed to effective access to government information. That much said, I have to acknowledge, I suppose, that it is inevitable that I should have been accused, as I was by so many speakers in this debate, of a degree of hypocrisy, given that the legislation, as I have outlined it, falls short in some equally significant respects of recommendations of the Constitutional and Legal Affairs Committee. I think they are only two of the seven deadly sins referred to by Senator Missen still left standing in respect of which penance has to be paid by those of us who supported changes of this kind. But those two areas, of conclusive certificates and a greater role for the Ombudsman, are ones in respect of which the Government has decided that, at least at this stage, it is not appropriate to make further extensions of the reach of the Freedom of Information Act. To the extent that there can be quoted against me, as there were by, I think, almost every speaker who rose to his or her feet, contrary statements by me in times in the more distant and the more recent past, I guess that I simply have to bear that with such fortitude as I can command. I offer, I suppose, a couple of factors in mitigation. One is that I had a fairly clear-eyed perception as to the likely prospects of some of these measures in opposition, as Senator Durack has been kind enough, for one, to remind me; and I do not think it can be said, as another speaker suggested, that I was carried away by my own rhetoric. I may well have been carried away by my own optimism and aspirations, because there is often in government a gap between the aspirations of individual Ministers and the achievements that they can chalk up. Senator Chaney —I thought it was just youthful enthusiasm. Senator GARETH EVANS —It is certainly not youthful any more, and it is becoming rapidly less enthusiastic. But I cannot entirely forebear from making the rather churlish observation that I made at the second reading stage-that at least in the case of the present Government there is both aspiration and achievement of some significant kind, albeit that the gap between the two may on occasion remain visible. I suppose that the other point that might well be made by some of my colleagues, if not by myself, is that I am hard enough to live with at the best of times; if I did not get a knockback occasionally, I would be quite impossible. So I appreciate those members of this Senate who have contributed, in that respect, to making me a better and warmer human being, if not Attorney- General. Having taken in this respect the major steps that we have in further liberalising the legislation, we look forward not to resting on our laurels. They are, as I have been trying to indicate, very considerable laurels in this legislation. We regard freedom of information legislation as properly a dynamic instrument not just of government policy but rather of the democratic process itself. We shall keep this legislation closely under review and we shall certainly be happy to encourage and to accommodate the full-scale review of the legislation by the Senate Standing Committee on Constitutional and Legal Affairs , which is anticipated for 1985, three years after the commencement of the legislation. It is wholly proper that this sort of legislation be subjected to very close review and approached continually by governments with a broad and open mind as to what it might accomplish in improving the quality of government. That is the commitment we maintain to this legislation. I come to the other Bills in the package before us. The Archives Bill is a very major piece of reforming legislation in its own right-so major that it has been in the pipeline since 1978, I think, with successive governments or successive Ministers in charge of it, in one way or another, neglecting its passage. That is unfortunate, because it is important and it has been important for a long time that the Australian Archives be put on a proper statutory basis and that the law covering the control and management of archives be carefully co- ordinated with the law covering freedom of information. That is what is accomplished by this Bill. It is an important piece of legislation. I am glad to note that it has not been opposed in any way as to its basic principles by Senator Martin, on behalf of the Opposition, or by any other speaker. To the extent that particular matters of detail have arisen in the course of discussion , as they have particularly in the context of the National Film Archive question , and to the extent that questions of legislative significance arise they can perhaps be dealt with at the Committee stage. Finally, in regard to the Copyright Amendment Bill, I did not understand any speaker to have any fundamental objections to the basic principles of this piece of remedial legislation, to the extent that it was involved in tidying up particular things that had gone wrong or needed attention in the past. Problems were raised by Senator Hamer about the implications of this legislation for the current public controversy about the National Film Archive. I think perhaps there has been a little misunderstanding about the effect of the Copyright Amendment Bill. It is certainly designed to enable, as the second reading and the Bill itself make clear, broadcasting and television organisations to deposit with the Australian Archives rather than the National Library so-called ephemeral records for Berne Convention Copyright purposes, and that clearly is of some symbolic significance at least, particularly given the circumstances of the current dispute. But it will also have been noticed that the second reading speech makes it clear that we are talking here basically only about fundamental legal relationships, not necessarily about the de facto care and management of such records. It is in fact proposed, so far as this Bill is concerned, that material so lodged with the Archives will be lodged in turn by the Archives, for the moment anyway, with the National Library of Australia, where they will be kept together with similar material from a variety of other sources. None of this is to foreclose the ongoing debate or review about the proper role of the National Film Archive, whether it should be moved out of the National Library and become part of the Australian Archives or whether it should be established as a separate statutory instrumentality in its own right and, if so, where in turn it should physically be located. Clearly, as Senator Hamer has said, the current disputation about the National Film Archive has rather overtaken this itself rather archival Bill which has been around for a considerable number of years, I believe, and has been overtaken by recent events . A major review is currently taking place under the direction of the Government involving, in particular, the Department of Home Affairs and Environment, but other elements of the Executive Government as well. In the event that that review produces recommendations for legislative changes that are different from those accomplished in this piece of really consequential legislation, of course there will be separate legislation at a future time. Nothing in this legislation is to be regarded as, I repeat, foreclosing that debate. I think with those remarks I can welcome the advent of the Committee stage, which I hope, given the time, can be rather expeditiously dispatched so that we can complete the debate on these Bills by the time we adjourn this afternoon. Question resolved in the affirmative. Bill read a second time. Clauses 1 to 3-by leave-taken together, and agreed to. Clause 4 (Exemption of certain bodies). Senator HAINES(South Australia)(3.48) —The Government's amendment to section 7 of the principal Act extends the exemption relating to security organisations to documents which have originated with or been received from those organisations. It would seem to me that the ultimate effect of that could well be, for some reasons which range from the tenuous to the pragmatic, that other agencies or individuals would ensure exemption of a document that they do not want released, but which would otherwise be released under the Act, by sending it first to one of the mentioned security organisations. I would suggest that if the words ' originated with or' are removed and replaced with the words 'relevant to the work of and' this potential escape route can be removed. Therefore, I move: (1) Page 3, clause 4, proposed new sub-section 7 (2A), line 19, after 'or', insert 'is relevant to the work of'. I hope the Attorney-General will not tell me that 'originated with' is quite satisfactory, because I would suggest that heaven only knows from which murky depths some of the documents that finish up in the hands of our security agencies emanate. Senator GARETH EVANS(Victoria-Attorney-General)(2.50) —Mr Chairman- Senator Haines —You could just say yes; that would do. Senator GARETH EVANS —I am just concerned about whether the particular terms of the amendment as drafted do not in fact widen the exemption rather than narrow it. I am having some regard paid to that particular question right now. I understand that Senator Haines does not want to achieve that particular result but rather wants to narrow the scope of the exemption. Senator Peter Baume —Do you need to put it aside for 10 minutes? Senator GARETH EVANS —I would appreciate the postponement of this clause in order to enable that particular drafting matter to be looked at. One of the difficulties we have had, with the greatest respect to the Australian Democrats, is that the amendments have been coming at us from a variety of directions up until half an hour ago, and this amendment has not really been properly absorbed . I move: That the clause be postponed. Question resolved in the affirmative. Clauses 5 and 6-by leave-taken together, and agreed to. Clause 7 (Part not to apply to certain documents). Senator GARETH EVANS(Victoria-Attorney-General)(2.51) —I move: Page 4, clause 7, line 25, insert 'unless the document contains information relating to the personal affairs of a person (including a deceased person) and ' of that Act'. This amendment is designed largely to remedy a technical defect which has appeared after further consideration of the relationship between the freedom of information legislation and the Archives Bill. It is designed to ensure that an applicant will not have to go to an agency to seek a document that is available under the FOI legislation and as well to the Australian Archives to seek a document that would otherwise be available only under the archives legislation. It is a one stop shopping proposal to accommodate situations of overlap between the potential operation of the two pieces of legislation and as such I believe can be supported without demur. Senator Durack —I do not have a list of the amendments. Senator GARETH EVANS —I understand they have been printed and circulated. Senator Missen —I do not have them, either. Senator GARETH EVANS —I am puzzled by that because I understand the supplementary memorandum and a printed document of amendments with the new clauses to be moved on behalf of the Government were circulated; so I apologise if there are any difficulties. The amendment I have moved is amendment No. 1 on the consolidated sheet of Government amendments. I believe the language in that amendment has the effect I have indicated. Amendment agreed to. Senator HAINES(South Australia)(2.58) —Clause 7 provides access to prior documents up to five years old. As I indicated in my speech at the second reading stage, the Australian Democrats believe that access should be extended to general documents up to 25 years old. Certainly we will support the Government's amendment. I think, in 1981, Senator Gareth Evans in debate on the original Freedom of Information Bill, said he thought that five years access should be the first thing introduced and that this should then be progressively dropped back. I can see no reason for not starting at 25 years, and so move amendment No. 2, standing in my name: (2) Page 4, clause 7, paragraph (b), line 26, leave out '5', insert '25'. Senator GARETH EVANS(Victoria-Attorney-General)(2.55) —This amendment is simply unacceptable to the Government, although I appreciate the sentiment which lies behind it. It is consistent with the ultimate aspiration we have in relation to freedom of information legislation, that is, that it extend all the way back to documents created up to 30 years ago, thus creating a direct continuum between FOI legislation and archives legislation which basically comes into operation at a date 30 years prior to its enactment. But for the moment it is simply impracticable. I make no objection on behalf of the Government to the principle underlying this amendment, but simply to its impracticality. I am reinforced in that respect by the language of the report of the Senate Standing Committee on Constitutional and Legal Affairs which committed itself to a gradual phasing-in of documents. I shall read from the relevant passage at page 172 which states: In our view it is appropriate that access to documents up to five years old at the time of proclamation should commence one year after proclamation. It would then be possible, after a further specified period of time had elapsed and agencies had made the necessary administrative adjustments, to phase in access to, say, documents aged six to ten years at the time of proclamation. By a gradual process, it would be possible eventually to overcome the gap between documents to which access could be granted under the Freedom of Information Bill as presently drafted . . . and those in the open access period under the Archives Bill . . . That is the aspiration that I think all of us would share, that is, to move towards that gradual phase-in. I believe we are getting there with the present amendment. By the time of the review in three years time by the Constitutional and Legal Affairs Committee we will be in a better position to make some overall judgments about the practicability and demands upon resources of opening the matter right up in the way that has been suggested. We will certainly keep the amendment in mind for that time. Amendment negatived. Clause, as amended, agreed to. Clauses 8 and 9-by leave-taken together, and agreed to. Clause 10 (Time within which formal requests to be decided). Senator HAINES(South Australia)(2.57) —Clause 10 relates to the time within which formal requests are to be decided. I move: (3) Page 5, clause 10, after paragraph (a), insert the following new paragraph: ''(ab) by inserting in sub-section (1) 'that the request has been received, as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, and' after 'notified';''. Some problems have been raised in regard to people not receiving notification of requests. It would seem fairly simple to request an agency to issue, within 14 days or as soon as possible before that time, receipt of that request. I do not think that is an unreasonable amendment to move to the legislation. Senator Durack —I have not seen it. Senator GARETH EVANS(Victoria-Attorney-General)(3.00) —I saw it only about five minutes ago, so I understand the difficulty the honourable senator is suffering. Much to the surprise of the Australian Democrats I believe this is an amendment which the Government can accommodate. I only hope that something of a quid pro quo emerges over the next 20 minutes or so in relation to other more vexed matters. It seems a reasonable requirement that agencies should simply respond with a formal acknowledgment to a request being submitted in order that the submitter knows at least where he or she stands. I indicate acceptance of that amendment. Amendment agreed to. Senator HAINES(South Australia)(3.01) —I want to raise with the Attorney- General a matter relating to the addresses to which a request would be sent. The clause limits addresses to those specified in a notice published in the Commonwealth of Australia Gazette or the address last specified in the Commonwealth Government Directory. While I am aware that not all agencies keep their addresses current in the various State telephone books, I wonder whether for the ease of the general public that could not be made an alternative. It is often a lot easier for ordinary individuals to have access to a telephone book than to either the Gazette or the Commonwealth Government Directory. If the agency concerned has its address in a State telephone book, it may be of some assistance to members of the public to have that as a third alternative. Senator GARETH EVANS(Victoria-Attorney-General)(3.02) —The basic difficulty about that is two-fold. Firstly, addresses change. Whereas those changes can be rapidly notified in the Commonwealth of Australia Gazette, by definition it takes a year for the telephone book to represent the new reality. A more practical point even than that, I guess, is that it is terribly important for the effective administration of the freedom of information legislation that all material requested be channelled through central reference points, at least so far as each agency or department is concerned. To take an example, the official receivers within my jurisdiction have offices identified in telephone books in all sorts of places around Australia, not just the capital cities. It would make , I am told, something of an administrative nightmare if a request could satisfy the formalities of the Act by simply going to whatever office happened to have a visible identification in a telephone book. Of course, the telephone book will remain the first point of access for most people to find out what to do and, of course, it is important that those departments and agency regional locations be instructed how to handle requests and how to pass requests on when they are made to them either orally or in writing. That is being done under the existing administration of the Act. But we are talking here about the legal formalities which are involved to ensure the proper administration of the Act, and it is for that reason that the rather more formal requirement of the Gazette notification is preferred by the Government. Senator HAINES(South Australia)(3.04) —I raised the question because we had been contacted by people who said that in some cases requests had been forwarded to an address taken from a telephone directory and the agency which ultimately received them had taken the view that the requests were not properly made under section 19 and, therefore, felt that the time limit of 60 days was not applicable simply because they did not go through the required channels, even though they reached the agency. Perhaps some direction from the Attorney-General would obviate the problem. Senator GARETH EVANS(Victoria-Attorney-General)(3.05) —The answer to that is for us to do what we are doing, that is, to exhort agencies not to take crummy technical points of that kind. To create a situation in which anything that was in the telephone book for the time being could count as the official formal channel of receipt-particularly, again, when one considers a department such as the Department of Social Security-would, I suspect, create many more problems for the rational administration of this legislation-- Senator Haines —I can see that point. I am just asking you to try to do something to stop the niggling angle. Senator GARETH EVANS —That will be done. Clause, as amended, agreed to. Clauses 11 and 12-by leave-taken together, and agreed to. Clause 13 (Reasons and other particulars of decisions to be given). Senator HAINES(South Australia)(3.06) —Section 14 of the principal Act, under the heading 'Access to Documents apart from Act' states: Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so. It has been drawn to our attention that some agencies do not seem to be aware of this fact and that an amendment in the appropriate place, which is at clause 13 of the Bill, would be suitable. Clause 13 is headed 'Reasons and other particulars of decisions to be given'. We suggest that after sub-clause (c) paragraph (iii) the following paragraph should be inserted: (iv) the reason why access cannot be given, otherwise than as required by this Act, That would solve the problem. It would ensure that some public education was pursued so that members of the public were aware of the fact that Ministers and agencies may disclose documents which are listed as exempt under the Act, and it may place some added constraints on refusal-minded agencies or Ministers. Senator GARETH EVANS(Victoria-Attorney-General)(3.07) —The difficulty we are having-maybe it is only a difficulty I am having-is understanding why such an amendment should be necessary. I ask that this clause be postponed for a moment so that I can gain a slightly more coherent understanding of what might be the practical problems of this otherwise particularly reasonable-sounding proposal. I am sure there are some. I move: That clause 13 be postponed. Question resolved in the affirmative. Clauses 14 and 15-by leave-taken together, and agreed to. Clause 16 (Documents affecting national security, defence or international relations). Senator MISSEN(Victoria)(3.08) —This is the stage at which my amendments commence. I will seek leave to move the amendments in three different sections. I think it would save the time of the Senate if I did so. The amendments which are shown on my list as (1), (2), (3), (4) and (6) all relate to conclusive certificates and are based on the same principle and argument, and they could be dealt with in one segment. Amendment (5), of which I have given notice, is an extensive one with regard to the Commonwealth Ombudsman's powers. At this stage I will not seek to move the part of it which would create new sections 52E (2) and 52F. Proposed new section 52E (2) relates to the matters under the Ombudsman Act where the Attorney-General gives a certificate. It is perhaps similar to the conclusive certificates. Proposed new section 52F relates to the power of the Ombudsman to look at actions of Ministers. Those two sections of amendment (5) do not have the general support of my colleagues. I will seek leave to move them as a separate amendment at the end. The only matter on which, if necessary, I would press for a division is the rest of amendment (5) relating to the Ombudsman's powers. I seek leave to move the amendments in those three segments. The CHAIRMAN —We may get confused as there are also Government amendments to the same clauses. I think it would be acceptable to the Committee if the honourable senator spoke to the amendments simultaneously but I think he should move them separately as we come to the appropriate clause. Senator MISSEN —Can we have separate votes on the amendments? The CHAIRMAN —Separate votes will be taken as we come to the various clauses. At the moment the only clause before the Committee is clause 16. The difficulty with moving the other amendments to the other clauses is that there are other amendments to the same clauses. Senator MISSEN —I only want to save the time of the Senate. That course would take more time. Senator GARETH EVANS(Victoria-Attorney-General)(3.11) —On reflection I urge Senator Missen to adopt the course proposed by the Chairman. I think there are only two issues that we need to debate. They relate to conclusive certificates and the Ombudsman. Maybe we should have two separate debates about those two matters and then put separately to the vote each one of the matters that Senator Missen is proposing. The Clerks, at least, will not be in quite the frenzy that they might otherwise be in recording for the Journals of the Senate what we have done. At the same time, we will know what we are debating without the need for further technical complication. The CHAIRMAN —The Committee has effectively agreed that Senator Missen may be wide-ranging when speaking on several of his amendments. At the moment the only amendment the honourable senator is formally moving is his amendment to clause 16. Senator MISSEN(Victoria)(3.12) —I move: (1) Page 8, clause 16, line 12, leave out ''sub-section (1)'', insert ''sub- sections (1), (2) and (3)''. The remarks I make on this amendment apply equally to my amendments Nos (2), (3) , (4) and (6). I think I can abbreviate the discussion even more by saying that I have already spoken at the second reading stage of the debate on the question of conclusive certificates and why the Senate Standing Committee on Constitutional and Legal Affairs recommended that they should be abolished and why it is strongly felt throughout the community that we should get rid of them. The Attorney-General (Senator Gareth Evans), when shadow Attorney-General, was in a considerable hurry when this debate came on in 1981 and therefore very succinctly summarised the argument. I think that if I read it very briefly it will help. On 29 May 1981 he said this about conclusive certificates: All those amendments are consistent with the general recommendations of the Senate Standing Committee on Constitutional and Legal Affairs that there be no absolute discretion vested in Ministers to deny access to any class of documents however sensitive, on the face of it, those documents might be. . . . . Putting all that together, which is a necessarily complex business that I am trying-- he said he was in a great hurry- . . . the net result of our amendments is that for a series of four classes of documents-defence and national security documents, Commonwealth and State documents, Cabinet and Executive Council documents, and internal working documents-we want to remove the conclusive discretion to deny access to those kinds of documents which is vested in the Minister as the Bill now stands and to give the Administrative Appeals Tribunal a power to review the claims made. We want special provisions built into the review procedures for the Administrative Appeals Tribunal to ensure that in the case of especially sensitive classes of those documents-notably the Cabinet ones, the Executive Council ones and the national security ones-it is a judicial member who makes the decision and the confidentiality of the process is preserved while the decision is in the process of being made. In a nutshell, so far as I can say, that is a description of what this very complex sequence of amendments is all about and what they seek to achieve. The amendments embody the substance of a very substantial chunk of chapters 15, 16, 17 and 18 of the Senate Standing Committee's report. Obviously they are amendments which go to an absolutely central and fundamental area of this whole question of freedom of information. I adopt in their entirety the Attorney- General's very succinct remarks and urge honourable senators to support the amendment. Senator GARETH EVANS(Victoria-Attorney-General)(3.14) —This is my hair shirt provision. I oppose the proposed amendment. The Government has not totally abandoned the idea of abolishing the system of conclusive certificates but we regard it as premature to do so at present. I say, by way of faint counter-reply , that the transfer of the jurisdiction of the Documents Review Tribunal to the Administrative Appeals Tribunal, together, in particular, with the specific statutory requirement now that Ministers table in the Parliament reasons for not accepting the recommendation of the AAT-if that is what they do-will go some way towards meeting concerns about the certificate system as it was established under the 1982 Act. Beyond that, and beyond saying that of course we will keep this matter under close review-no doubt we will anticipate another barrage on the subject from the Senate Standing Committee on Constitutional and Legal Affairs, whoever it is constituted by, in the next review-there is very little more that I can say. Amendment negatived. Clause agreed to. Clause 17 (Documents affecting relations with States). Amendment (by Senator Missen) negatived: (2) Pages 8 and 9, clause 17, proposed new sub-sections 33A (2) and (3), line 38 (page 8) to line 7 (page 9), leave out the proposed sub-sections. Clause agreed to. Clause 18 (Cabinet documents). Senator GARETH EVANS(Victoria-Attorney-General)(3.16) —I move: (2) Page 9, clause 18, lines 28 to 31 (inclusive), leave out 'any document ( other than a document that is an official record of the Cabinet or a copy of, or of part of, such an official record or that contains an extract from such an official record) by reason only of purely factual material contained in the document', substitute 'a document (in this sub-section referred to as a ' relevant document') that is referred to in paragraph (1) (a), or that is referred to in paragraph (1) (b) or (c) and is a copy of, or of part of, or contains an extract from, a document that is referred to in paragraph (1) (a), to the extent that the relevant document contains purely factual material'. The Government has an amendment to clause 18. Its purpose is really to tidy up a drafting problem in the originally proposed amendments to these Executive Council and Cabinet documents. These are found in clauses 18 and 19. The objective of clauses 18 and 19 of the Bill as originally drafted was to exclude from Cabinet and Executive Council document exemptions documents of a purely factual nature. But because all documents submitted to the Cabinet or Executive Council become official records of the Cabinet or Executive Council, the amendments in the Bill do not as originally drafted achieve this result. The amendments here have been drafted to achieve what was always the intention, namely, that material of a purely factual nature submitted to Cabinet or Executive Council should not be covered by the Cabinet document or Executive Council document exemptions unless disclosure would involve the disclosure of any deliberation or decision of the Cabinet or deliberation or advice of the Executive Council not otherwise officially announced. I hope that with that explanation it will be appreciated that this is an essentially technical amendment and ought not, as a result, generate controversy. Amendment agreed to. Clause, as amended, agreed to. Proposed new clause 18A. Amendment (by Senator Missen) negatived: (3) Page 9, after clause 18, insert the following new clause: '18A. Section 34 of the Principal Act is amended by omitting sub-sections (2), (3), (4) and (5).' . Clause 19 (Executive Council documents). Senator GARETH EVANS(Victoria-Attorney-General)(3.18) —In substance this amendment is exactly the same as the one I previously moved. This one relates to Executive Council rather than Cabinet, which was the subject matter of clause 18 . I move: (3) Pages 9 and 10, clause 19, lines 39, 40 and 41 on page 9, and lines 1 and 2 on page 10, leave out 'any document (other than a document that is an official record of the Executive Council or a copy of, or of part of, such an official record or that contains an extract from such an official record) by reason only of purely factual material contained in the document', substitute 'a document ( in this sub-section referred to as a 'relevant document') that is referred to in paragraph (1) (a), or that is referred to in paragraph (1) (b) or (c) and is a copy of, or of part of, or contains an extract from, a document that is referred to in paragraph (1) (a), to the extent that the relevant document contains purely factual material'. Amendment agreed to. Clause, as amended, agreed to. Proposed new clauses 19A and 19B. Amendment (by Senator Missen) proposed: (4) Page 10, after clause 19, insert the following new clauses: '19A. Section 35 of the Principal Act is amended by omitting sub-sections (2), (3), (4) and (5 ). '19B. Section 36 of the Principal Act is amended by omitting sub-sections (3) and (4).'. Senator GARETH EVANS(Victoria-Attorney-General)(3.21) —For the same reasons as stated previously, I indicate opposition to the amendment. Amendment negatived. Clauses 20 to 22-by leave-taken together, and agreed to. Proposed new clause 22A (Documents containing material obtained in confidence). Senator GARETH EVANS(Victoria-Attorney-General)(3.21) —I move: (4) Page 10, after clause 22 insert the following new clause:Documents containing material obtained in confidence '22A. Section 45 of the Principal Act is amended by adding at the end thereof the following sub-section: ''(2) Sub-section (1) does not apply to any document to the disclosure of which paragraph 36 (1) (a) applies or would apply, but for the operation of sub- section 36 (2), (5)or (6), being a document prepared by a Minister, a member of the staff of a Minister, or an officer or employee of an agency, in the course of his duties, or by a prescribed authority in the performance of its functions, for purposes relating to the affairs of an agency or a Department of State.''.'. Proposed new clause 22A is to amend the section 45 breach of confidence provision in the Act to make it clear that it does not apply to something which is more properly described as an internal working document. The section 45 exemption in the Act is for those documents disclosure of which would amount to a breach of confidence. It was originally anticipated that that exemption would really apply only to documents the disclosure of which would give rise to something in the nature of a legal action for breach of confidence covering situations, for example, such as where there are contractual obligations of confidence. There are other examples, such as referees' reports, medical reports from outside practitioners, correspondence between constituents and Ministers, Aboriginal tribal secrets communicated to officers of the Department of Aboriginal Affairs, plans for the formation of a new trade union communicated to the Department of Employment and Industrial Relations. Those are examples where arguably there is real confidentiality involved such as might give rise to a legal action for breach of confidence. What has been happening is that in at least one recent case the Administrative Appeals Tribunal has given a much more adventurous scope to the operation of section 45. It has said, in effect, that it is applicable to communications between public servants within the confines of a ministerial department, or as between departments, simply because there is something confidential in character about those communications. That was never the intention. The intention that was always accepted by both sides-Government and Opposition at all stages-was that in those situations the section 36 internal working documents exemption should be the governing clause. What is proposed here is to make it absolutely clear that that is so. I recommend it accordingly to the Committee. Proposed new clause agreed to. Clauses 23 and 24-by leave-taken together, and agreed to. Proposed new clause 24A (Review of requests for amendments). Senator GARETH EVANS(Victoria-Attorney-General)(3.23) —I move: (5) Page 11, after clause 24 insert the following new clause: Review of requests for amendments '24A. (1) Section 51 of the Principal Act is amended by inserting before paragraph (1) (a) the following new paragraph: '(aa) section 54 has effect as if all the words in sub-section (1 of that section after ''agency'' (second occurring) and before ''the applicant'' (second occurring) were omitted;'. ''(2) Section 51 of the Principal Act is amended by omitting paragraph (1) (c) and substituting the following paragraph: '(c) paragraph 56 (1) (b) has effect as if ''relevant period, in relation to that request, for the purposes of section 19'' were omitted and ''period of 30 days'' were substituted;'.'. This is essentially to apply internal review procedures to decisions refusing to amend a record made under Part V of the Act. It is an area of deficiency in the legislation that has again shown up in its practical working over the last few months. We believe it ought to be remedied in this way. Again, unless any questions are directed to me, I commend the clause accordingly to the Committee. Proposed new clause agreed to. Proposed new clause 24B. Senator MISSEN(Victoria)(3.24) —The amendments I will move now are the substantial amendments in respect of the role of the Ombudsman, with a new Part to be included. I will be moving amendment (5) in my name, with the exception of two parts which I will excise from it, namely, proposed new section 52E (2), which I explained before relates to a different subject, and also proposed new section 52F, which relates to an investigation by the Ombudsman of action taken by Ministers. I will seek leave subsequently to move those two provisions as a separate amendment. I therefore move: (5) Page 11, after clause 24, insert the following new clause: ''24B. The Principal Act is amended by inserting after Part V the following Part: PART VA-ROLE OF THE OMBUDSMANInterpretation '52A. In this Part- (a) a reference to the taking of action has the same meaning as it has for the purposes of the Ombudsman Act 1976; and (b) action shall be deemed to have been taken by an agency in the circumstances in which it would be deemed to be so taken for the purposes of the Ombudsman Act 1976. Complaints to Ombudsman '52B. (1) Subject to this Act, a person may complain to the Ombudsman concerning action taken by an agency or by a Minister in the exercise of powers or the performances of functions under this Act. '(2) Notwithstanding anything contained in this Act or in sub-section 6 (3) of the Ombudsman Act 1976 but subject to sub-section 6 (2) of that Act, the exercise of the powers of the Ombudsman under the Ombudsman Act 1976 in respect of matters arising under this Act is not precluded or restricted by reason of the rights conferred on persons by this Act to make applications to the Tribunal . '(3) Where a complaint is made to the Ombudsman under the Ombudsman Act 1976 concerning action taken by an agency in the exercise of powers or the performance of functions under this Act, an application to the Tribunal for a review of the decision shall not be made before the Ombudsman has informed the applicant of the result of the complaint in accordance with section 12 of the Ombudsman Act 1976. '(4) Notwithstanding anything contained in the Ombudsman Act 1976, a report under that Act to a complainant in respect of a complaint arising out of a request under this Act shall not contain information of the kind referred to in sub-section 25 (1) of this Act. Ombudsman shall designate a Deputy Ombudsman for freedom of information matters '52C. (1) The Ombudsman shall, by notice published in the Gazette, designate a Deputy Ombudsman as the Deputy Ombudsman for freedom of information matters. '(2) In relation to any action taken by a Minister or an agency in the exercise of any power or the performance of any function conferred by this Act, the Deputy Ombudsman for freedom of information matters has all the powers, and may exercise all the functions, of the Commonwealth Ombudsman under the Ombudsman Act 1976, other than the power of the Commonwealth Ombudsman to report to the Parliament under section 17 or 19 of that Act. '(3) Nothing in this section prevents the exercise of a power or the performance of a function by the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to action of the kind referred to in sub-section (2). '(4) In this section, a reference to the Ombudsman Act 1976 shall be construed- (a) unless paragraph (b) applies-as a reference to that Act as modified in the manner provided in sections 52A and 52B of this Act; or (b) in relation to a complaint concerning action taken by a Minister-as a conference to the Ombudsman Act 1976 as modified and adapted in accordance with the regulations made under section 52F. Reports made by the Ombudsman '52D. (1) Where, in the course of an investigation by the Ombudsman in relation to action taken by an agency in the exercise of powers or the performance of functions under this Act- (a) the Ombudsman has referred evidence concerning an officer to a Minister or to a principal officer under sub-section 8 (10) of the Ombudsman Act 1976; and (b) that officer is employed under the Public Service Act 1922, the Ombudsman shall furnish a copy of that evidence to the Public Service Board. '(2) Where, after an investigation by the Ombudsman in relation to action taken by a Department in the exercise of powers or the performance of functions under this Act, a report is made to the Department by the Ombudsman under sub-section 15 (2) of the Ombudsman Act 1976, the Ombudsman shall furnish a copy of the report to the Public Service Board. '(3) Each annual report required to be submitted to the Minister by the Ombudsman under paragraph 19 (1) (a) of the Ombudsman Act 1976, and each additional report submitted to the Minister by the Ombudsman under sub-section 19 (2) of that Act- (a) shall include a report on the operations of the Ombudsman during the year, or the part of a year, to which the report relates with respect to complaints made to the Ombudsman or investigations commenced or completed by the Ombudsman concerning action taken by agencies or by a Minister in the exercise of powers or the performance of functions conferred by this Act; and (b) may include- (i) such observations as the Ombudsman sees fit to make concerning the operation of this Act during the year, or the part of a year, to which the report relates; and (ii) such recommendations as the Ombudsman sees fit to make concerning ways in which public access to documents of agencies or to official documents of Ministers might be better secured. Documents of agencies claimed to be exempt under sections 33, 34, 35 or 36 '52E. (1) Where- (a) the Ombudsman has commenced an investigation of a decision made under this Act not to grant a request for access to a document; and (b) a certificate is furnished to the Ombudsman under paragraph 9 (3) (a), (c) or (d) of the Ombudsman Act 1976 in relation to that investigation, the certificate shall not be taken to affect the right of the Ombudsman to seek from any person the reasons for any decision made under this Act that the document is an exempt document or to require any person to furnish any information or to answer any questions concerning that decision. Ombudsman may represent persons in proceedings before the Tribunal '52G. (1) The Ombudsman may represent, or arrange for another person to represent, any person who makes application to the Tribunal, under section 55 of this Act, for review of a decision, not being a decision made under sections 27 and 28 of this Act in the proceedings before the Tribunal pursuant to that application, if the Ombudsman is of the opinion, in all the circumstances of the case, that it is reasonable for him to do so. '(2) Without limiting the generality of the matters to which the Ombudsman may have regard in deciding whether to represent an applicant in proceedings before the Tribunal under section 55, the Ombudsman shall have regard to- (a) the importance of the principle involved in the matter under review; (b) the likelihood that the proceedings will establish a precedent in future proceedings; (c) the financial means of the applicant; (d) the applicant's prospect of success; and (e) the reasonableness of the decision under review.'.''. The CHAIRMAN —Is the Attorney-General clear what the amendment is? Senator Gareth Evans —Yes, surprisingly enough. Senator MISSEN —I have already explained in the second reading debate why it is considered that the recommendations covered in detail in the report of the Senate Standing Committee on Constitutional and Legal Affairs relating to the use of the Ombudsman should be expanded. Despite the lack of success on a previous occasion when I quoted lovingly from the statements of the Attorney- General (Senator Gareth Evans) in an earlier debate, I will do so again in the hope that this time I will be more successful. If it does not persuade the Attorney-General I hope it will help to persuade others. But when the shadow Attorney-General, as he then was, was speaking on 12 June 1981 he mentioned that the ordinary functions of the Ombudsman-investigation, conciliation and report- would be useful in respect of freedom of information. He went on to describe in a concise way the amendments which I am now moving and which are the same amendments as he then moved. He said: The Senate Committee's recommendations which are now embodied in this first group of proposed amendments go much further than that. They contemplate a significantly expanded role for the Ombudsman, a central role in the actual on- the-ground practical administration of the whole Act. There are five elements in these proposals. Briefly, they are as follows: . . . . The first element in the proposal is the creation of a separate administrative unit within the Ombudsman's office and the creation of a deputy Ombudsman for freedom of information. The second element in the proposal is the extension of the Ombudsman's ordinary function of investigation and conciliation to enable him to investigate as well ministerial decisions. I point out that that is not in the amendment that I have moved. He went on: The third element in the proposed equation is the giving to the Ombudsman of a role as general counsel for applicants appearing on their behalf before the Administrative Appeals Tribunal. The fourth element in the equation gives the Ombudsman a specific role as adviser to departments and agencies to assist them in working out the scope and extent of their obligations under the Bill. The fifth and last element in the proposal gives to the Ombudsman a specific power to monitor and criticise the way in which the legislation is operating and to report to the Parliament. The whole range of functions, both executive and legislative, that I have outlined is not able to be conducted by him, as at present. It is our belief that they ought to be. Then, during the course of that debate, Senator Gareth Evans placed in the record a certain statement which is very useful in regard to the administrative implications of freedom of information for the Ombudsman. I will not read it but I refer honourable senators to pages 3248 and 3249 of the Senate Hansard of 12 June 1981. He came to the conclusion that the Ombudsman would well be able to cover these powers and that it would not be a strain. It appears as though facts have since indicated that the very much smaller call on the need for the Freedom of Information Act and, consequently, the need for the Ombudsman to be involved gives strength to those judgments which he then made. I believe that it is terribly important in regard to the use of this Act that the Ombudsman be used as much as possible in the conciliating role but also where there are questions of principle arising and where there are matters where it is necessary to test before the Administrative Appeals Tribunal the refusals by a Minister or a department to make disclosure of a document. These matters ought to be properly dealt with and counsel may need to be employed. The Ombudsman himself or most likely counsel would then appear and make these representations. People would therefore not give up and matters would not be left to be decided at some later stage. I believe that each of these actions as far as the Ombudsman is concerned will be useful facilities. I trust that they will have the support of the Committee and that they will be carried. Senator DURACK(Western Australia)(3.30) —When these proposals were made in the debate on the Freedom of Information Bill which ultimately became the Freedom of Information Act and in response to the report of the Senate Standing Committee on Constitutional and Legal Affairs which recommended this expanded role for the Commonwealth Ombudsman in freedom of information matters, the previous Government took the view, and I expressed the view in the then debate, that the whole role of the Ombudsman and review of the role of the Ombudsman was being looked at by-I think it was at the time-the Administrative Review Council. We said that any extension of the role as envisaged in these amendments should await the conclusion of that review. That review has now come and gone. In fact, extensive amendments to the Ombudsman Act went through the Senate earlier this week. But this matter of his role in freedom of information matters has still been left in abeyance. I indicate that I am in support of Senator Missen's objective through these amendments of expanding the role of the Ombudsman in regard to the agencies but I am not in support of expanding it to include the role of the Minister. Senator Missen has, in the first place, left aside moving an amendment to clause 52F which specifically relates to investigations by the Ombudsman of actions taken by Ministers. But his first amendment to create proposed new section 52B includes Ministers as well as agencies. I understand that he wants to have the two issues dealt with separately. For that reason I think the Opposition will support the extension of the role of the Ombudsman to cover agencies but not Ministers. But Senator Missen does not seem to have completely achieved that in the amendment he has moved, unless he has some other explanation he can offer to me. Proposed new section 52B refers to complaints to the Ombudsman and states: Subject to this Act, a person may complain to the Ombudsman concerning action taken by an agency or by a Minister in the exercise of powers or the performance of functions under this Act. It would seem to me that, despite the fact that Senator Missen has not moved an amendment specifically relating to investigation by the Ombudsman of actions of Ministers, he in fact has included it in the general amendment creating proposed new section 52B. Indeed, there is a further reference to the Minister in proposed new section 52C. I indicate that the Opposition will support the amendment without those words included. I could move to amend the amendment or perhaps we had better wait to hear what the response of the Attorney-General ( Senator Gareth Evans) will be before we start moving anything. Senator GARETH EVANS(Victoria-Attorney-General)(3.33) —My position is simply that the Government has made a clear decision that it does not want the Commonwealth Ombudsman to be given a role in this area. Clearly, one of the reasons for that response has been concern about the Ombudsman having a role in relation to ministerial decisions. To the extent that the language of this clause is gutted and filleted of all references to Ministers, there is a better chance that, in the ultimate course of events, any amendment by the Senate could be accommodated. I had thought that that was what was being achieved by Senator Missen's amendment. If Senator Durack thinks he can add some finesse to Senator Missen's amendment-- Senator Durack —A bit more gutting and filleting is what I am seeking. Senator GARETH EVANS —A little more gutting and filleting-although I certainly cannot say now that I accept it, it may be that some further consideration could be given in another place as to whether it might not be acceptable in that filleted form. I have to say that there is concern about the Ombudsman being given a general counsel role. There is concern about the Ombudsman being given an explicit statutory, monitoring and reviewing role in this area. Although this is not something that the Government would wish to reject outright once and for all as an appropriate way of doing things, it is something that we would regard as premature and more properly the subject of consideration in the review in 1985. Beyond that, there is little more that I can say. Anything else I say is likely to be taken down and used in evidence against me, given what I have put on the record in the past about this clause. I think I can clearly and succinctly state the Government's position in the terms I have used. If Senator Durack wishes formally to move an amendment or to encourage Senator Missen to amend his motion by removing the offensive references to Ministers, I will leave it to the Opposition side of the chamber to do so; but I am afraid it will not make any difference to my acceptance today of the results of their labours. Senator MISSEN(Victoria)(3.36) —I must say that I took a different view from the Attorney-General on this matter when my amendment was circulated. However, I agree on reflection that it appears that what I have proposed is inconsistent. Therefore, I seek leave to remove from my amendment, in proposed new section 52B (1) the words 'or by a Minister' and to remove paragraph (b) of proposed section 52C (4), which states: In relation to a complaint concerning action taken by a Minister . . . I will leave the second matter as part of the other amendment that I will move formally later. The CHAIRMAN —Senator Missen, do you wish to make any amendment to the first line of proposed new section 52C (2)? Do you wish the words 'by a Minister' to come out of that line? Senator MISSEN —I seek leave to remove those words as well, yes. The CHAIRMAN —Is leave granted for Senator Missen to make those three amendments to his original amendment? There being no objection, leave is granted. The amendment is amended accordingly. Senator DURACK(Western Australia)(3.37) —In that satisfactory situation, the Opposition will support Senator Missen's amendment. I believe that the Ombudsman could have a useful role of a wider character in relation to freedom of information matters. Senator Gareth Evans —Did you get rolled in Cabinet too? Senator DURACK —No, I did not, actually. As I have said, this was not a matter on which the previous Government took a decision one way or the other. We said that the matter could await the review of the Ombudsman Act generally. I have greater freedom of action now than I had in government. This is certainly a very extensive and novel addition to the Ombudsman's role. It would, of course, require further resources to be given to him-perhaps quite considerable resources-because instead of simply concerning himself with administration he will be concerning himself with the decisions that are being made by agencies under the Freedom of Information Act. Such decisions, of course, can be the subject of appeal to the Administrative Appeals Tribunal. The existing Act makes it clear that an appeal to the Administrative Appeals Tribunal would not entirely preclude the Ombudsman from looking at a matter as a matter of maladministration. As I understand these amendments, they are designed to provide that the Ombudsman should endeavour to conciliate with the agencies to persuade them to change their decisions. In that respect it may well be a more satisfactory, cheaper and speedier method of resolving differences than for the applicant to have to proceed to the Administrative Appeals Tribunal. I can see that there is some merit in this proposal. I hope that the Government will be able to find the resources for it. I can understand that there may be a problem in that regard. In principle, the Opposition supports the amendment. Senator HAINES(South Australia)(3.40) -For the record, the Australian Democrats also support the amendment. Amendment agreed to. Clauses 25 to 28-by leave-taken together, and agreed to. Clause 29 (Powers of Tribunal). Senator MISSEN(Victoria)(3.41) —I seek the guidance of the Chair. Parts of the amendment, particularly in regard to Ministers and my new proposed clause 24B, were not actually moved. I want to seek leave formally to move that part of my amendment in regard to Ministers so that it is on the record because that has not been moved. The CHAIRMAN —We have passed by that. I think it would be easier if we finished the Bill and then Senator Missen sought leave to go back to clause 24 and move his amendment. In the meantime Senator Missen has amendment No. (6) to move to clause 29. Does Senator Missen wish to move that amendment? Amendment (by Senator Missen) negatived: (6) Pages 11 and 12, clause 29, line 32 (page 11) to line 32 (page 12), leave out the clause, insert the following new clauses: '29. Section 58 of the Principal Act is amended- (a) by omitting sub-section (1) and substituting the following sub-section: ''(1) Subject to sub-section (2) and to section 58A, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request that is applicable to the document and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.''; (b) by omitting sub-sections (3), (4) and (5); (c) by adding after sub-section (6) the following sub-sections: '(7) Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 33, 34, 35 or 36- (a) the Tribunal shall be constituted by the President or a Deputy President of the Tribunal alone; and (b) in relation to any part of the proceedings that concern the question of whether the document is an exempt document under section 33, 34, 35 or 36, the person making application under this section for a review of the decision shall give his evidence by affidavit only and shall not be entitled to have access to the evidence given in support of the decision. '(8) A decision not to provide access to a document that is framed in such a manner as neither to confirm nor to deny the existence of the document shall be taken, for the purposes of a review in pursuance of this section, to be a decision to refuse to provide access to that document notwithstanding that the existence of the document is not acknowledged and if the Tribunal, upon such a review, affirms the decision under review, the decision of the Tribunal affirming the decision under review may be so framed as neither to confirm nor to deny the existence of the document.'. '29A. After section 58 of the Principal Act the following section is inserted: Review of decision in respect of documents claimed to be exempt under sections 33, 35 and 36. '58A. (1) Sub-section 58 (1) of this Act does not apply to any proceedings before the Tribunal, or to that part of the proceedings, to which this section applies. '(2) Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 33, the powers of the Tribunal shall extend only to deciding whether there are grounds on which an agency or a Minister, as the case may be, could decide that disclosure of the document could reasonably be expected to cause damage to- (a) the security of the Commonwealth; (b) the defence of the Commonwealth; or (c) the international relations of the Commonwealth. '(3) Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 35 or 36, the powers of the Tribunal shall extend only to deciding whether the document is a document of the type referred to in section 35 or 36, as the case may be.'.''. Senator GARETH EVANS(Victoria-Attorney-General)(3.43) —I move: (6) Page 12, clause 29, at the end of the clause add the following new sub- clause: ''(2) Section 58 of the Principal Act is amended by adding at the end thereof the following sub-section: '(7) Where- (a) application is or has been made to the Administrative Appeals Tribunal for review of a decision refusing to grant a person access to a document in accordance with a request; and (b) the agency to which or the Minister to whom the request was made- (i) has given to the applicant a notice under this Act of the decision, being a notice that does not include a statement (in whatever terms expressed) to the effect that access to the document is being refused for the reason that, by virtue of the operation of sub-section 12 (2) or of that sub-section as modified by regulations in pursuance of sub-section 12 (3), the applicant is not entitled to access to that document; or (ii) informs or has informed the Tribunal, either before or in the course of the proceeding for the review of the decision, that the agency or the Minister, as the case requires, does not intend, or does not any longer intend, to refuse access to the document for the reason referred to in sub-paragraph (i), then, for the purposes of the review by the Tribunal of that decision, this Act has effect as if sub-section 12 (2), or that sub-section as so modified, as the case requires, had not been enacted.'.''. This amendment would add a new sub-clause (2) to clause 29. It amends section 58 of the parent Act in such a way as to empower the Administrative Appeals Tribunal to give access to prior documents, that is, those created now before five years old in the case of non-personal documents-where the decision-maker does not rely on the prior document ground of refusal. The point is best explained by reference to the decision of the Administrative Appeals Tribunal which has prompted this amendment, that is, in the case of Witherford and the Department of Foreign Affairs. The Tribunal in that case held that the Freedom of Information Act does not enable the Tribunal to order that an applicant be given access to a document which is a prior document. This is so even where the Minister or the agency in possession of the document, acting in accordance with Government policy on the administration of the Act in accordance with the spirit of it rather than the strict letter, places no reliance on the fact that the document is a prior document under section 12 (2) of the present Act. It often happens that an agency, in other words, will not want to take the ground that the document is a prior document but will want to take some other ground or to exempt a part of a document on some ground but is otherwise prepared to release the document. We have a situation where the Administrative Appeals Tribunal so far has thrown up its hands and said that once the document is in the prior document zone it is not empowered to resolve controversies of that kind and order, against the agencies wishes, the release of the document because of the inapplicability of the particular other exemption that is relied on. This clause makes it possible for that kind of an exercise to be undertaken by the Tribunal. The Government believes that that is consistent with the intention lying behind the way the Act should operate and be administered. That particular technical barrier to rationality which the Administrative Appeals Tribunal has perceived should be torn down. That is the effect of this amendment . I hope it attracts the support of the Committee. Amendment agreed to. Clause, as amended, agreed to. Clauses 30 to 42-by leave-taken together, and agreed to. Postponed clause 4 (Exemption of certain bodies). Senator GARETH EVANS(Victoria-Attorney-General)(3.46) —The effect of Senator Haines's amendment, if it is put into plain language, is to add to the clause governing the Australian Security Intelligence Organisation and other intelligence organisations and exemptions in relation to them, certain words so that the whole clause would read: An agency is exempt from the operation of this Act in relation to a document that has originated with-- Senator Haines's words would add 'is relevant to the work of'- or has been received from, the Australian Secret Intelligence Service, the Australian Security Intelligence Organization or the Office of National Assessments, or the Defence Signals Directorate or the Joint Intelligence Organization of the Department of Defence. On the face of it there is nothing terribly worrying about Senator Haines's amendment, because it explicitly confines the exemption material to documents which are squarely relevant to the work of the particular agency from which it emerges. As such, one would think that is the rationale of the clause. However, I think it has to be said that the language which she has chosen has a potentially wider reach than that. It may be that a document has been in the possession of ASIO, for example, and is not relevant to the work of ASIO in any immediate sense but rather has come into ASIO's hands from one of its sister or brother organisations-I am not sure of the sex of intelligence organisations; perhaps I should say one of its fellow services-and as such may, on a technical reading of it, be outside the scope of this clause. In addition, I have the further difficulty, which I am sure Senator Haines, being a legislator of great experience, will appreciate, that on a matter as sensitive as security legislation I simply could not accept an amendment of this kind on the run without going back to Cabinet for consideration of whether there is anything of really substantive significance in it, such that it could not be accommodated. Under the circumstances I have to reject it outright now but we will give further consideration to it between now and its appearance in the other place. In the event that we cannot get the language right I undertake to do my best, under the powers available to me as the Minister in charge of the administration of the Freedom of Information Act, to ensure that some instruction, undertaking or directive is given to the security organisations to ensure that they rely on this exemption only in circumstances where the document in question is a genuine security document and not simply take advantage of the clause because of the technical width of the language in question. I see the point which Senator Haines is trying to get at. I suspect I will have difficulties in accommodating her with that precise language, but I am happy to do my best, as the Minister in charge, to ensure that the Act is administered in the spirit she obviously intends. I hope that will be satisfactory. Senator HAINES(South Australia)(3.49) -What I really wanted to stop by the amendment was the sort of pass the parcel approach from a non-exempt agency to an exempt agency and back again. Secure in the knowledge that I will get no support at all from the Opposition on this amendment, I do not have much choice but to accept the assurance of the Attorney-General (Senator Gareth Evans) that the amendment will be looked at in the future. I do not know whether it is not substantive through the Statute Law (Miscellaneous Provisions) Bill or as a future amendment to this Bill. But I certainly accept the assurance of the Attorney-General that the Government will have a closer look at it. The CHAIRMAN —Senator Haines, do you wish to proceed with your amendment or do you wish to seek leave to withdraw it? Senator DURACK(Western Australia)(3.50) —Before my opportunity to speak on Senator Haines's amendment disappears by her withdrawing it, I would like to make one comment on it. Certainly I support the Attorney's response to it but I would be a little concerned if he were persuaded at some stage to accept some amendment in this form. As I recall it, this provision was actually an omission from the original Act. There should have been some provision of this sort in the original Act. The point is that the intelligence bodies mentioned here are exempt agencies from the Act and therefore nobody can get access to their documents, irrespective of whether they are in fact relevant to the person's work. The agencies themselves are exempt. Senator Gareth Evans —Maybe it should not be as absolute as that. Senator DURACK —If there is another whole new policy about that, that may be a different matter. But so long as the present Act applies, to talk about the documents being relevant to the work of the agencies is not apposite. It is simply a question of whether, as stated in this clause, the documents originated with, or had been received from, the agencies mentioned. That follows through the consistency of the policy of their exemption. Whether that is a policy that will be reviewed is another matter. I do not think we can tinker around with the present policy by making a qualification in relation to it, such as this amendment. The CHAIRMAN —Senator Haines, do you wish to seek leave to withdraw your amendment? Senator HAINES(South Australia)(3.52) —Yes, Mr Chairman; but, before I do so, I say that I think Senator Durack has misunderstood what I was trying to do. However, having received an assurance from the Attorney-General (Senator Gareth Evans), I seek leave to withdraw my amendment. Amendment-by leave-withdrawn. Clause agreed to. Postponed clause 13 (Reasons and other particulars of decisions to be given). Senator GARETH EVANS(Victoria-Attorney-General)(3.53) —What I propose to do is to suggest to Senator Haines an alternative form of words and location for her amendment and then to reject it anyway. But I want at least to try to put it in a form whereby we have something which is a bit more sensible, with respect, in terms of drafting, to debate. I suggest that what she is trying to achieve would be better achieved, as I understand it, by putting in parent section 26 (1) (a), at the end of that paragraph, the following words 'including reasons why access is not given otherwise than as required by this Act' so that the whole of 26 (1) (a) would then read: state the findings on any material questions of fact, referring to the material on which those findings were based, and state the reasons for the decision, including reasons why access is not given otherwise than as required by this Act . As I understand it, what Senator Haines is trying to do is simply to ensure that where an agency relies on a particular formal exemption under the Act it should nonetheless also be required to state to an applicant what additional reasons it relies on for not producing the document anyway, given the policy of the Act which is to vest a residual discretion in the agency to produce the document even though there may be some formal exemption rules applicable. That is what I understand Senator Haines wants to do and that is where she ought to be doing it . Why can I not accept it? The main reason, to be quite frank about it, is the sensistivity and delicacy of a proposition of this kind so far as other departments and agencies are concerned. To accept something like this on the run , which would require manifestly an extra work load for the departments and agencies in question, is not something that I am authorised or able to do. Moreover I think there may be a sense in which the whole amendment is unnecessary because it seems to me that, on a proper reading of section 26 (1) ( a), in the overwhelming majority of cases an agency ought to be required to state any of those additional discretionary reasons anyway in order for it to be a complete statement of reasons within the meaning of 26 (1) (a). Again, if Senator Haines is prepared to accept my undertaking, in the powers available to me with directions and guidelines and so on, to make it clear to agencies in the documentation we send out that it is not good enough simply to state the basic ground of the exemption on which they are relying but that they really ought also, in keeping with the spirit of the Act, to make it clear why they nonetheless cannot make a discretionary grant of the document anyway, I would really prefer to leave it on that basis. Again, putting it in terms that if in two years time the Senate Committee reviewing this believes that the lack of compliance with this sort of direction or request is such that there ought to be a statutory safeguard, we could then look at it at that time. On that basis I ask that Senator Haines perhaps consider withdrawing the redrafted amendment I have suggested to her. Senator HAINES(South Australia)(3.56) —I think that having had success with one out of four amendments and assurances on two I will not waste the time of the Committee by shuffling the amendment and putting it in the words that the Attorney-General (Senator Gareth Evans) proposed it should be put in in my name, or whatever it was he said over there. I simply seek leave to withdraw amendment (4) moved in my name and assure the Attorney-General that I will still be around in three years' time to wave that piece of Hansard under his nose. Amendment-by leave-withdrawn. Clause agreed to. The CHAIRMAN —We have one remaining matter. Senator Missen has some remainders from his filleted amendment (5). By my record they refer to reference to a Minister in proposed new section 52B (1), 52C (2) and the excision of 52C (4) (b ), 52 E (2) and 52 F. Senator Missen —And also the two that I did not move in the first place. The CHAIRMAN —I have included those two. Senator MISSEN(Victoria)(4.57) —No, I did not move them. The excisions are relevant to the whole matter, but the investigation by the Commonwealth Ombudsman of action taken by Ministers comes under proposed new clause 52F and also sub-section (2) of proposed new section 52E. I formally seek leave to move all those excisions as a separate amendment. I do not propose to take it further than that. Leave granted. Senator MISSEN —I move: After section 52E (1), insert the following: '(2) Notwithstanding paragraph 9 (3) (b) of the Ombudsman Act 1976, the Attorney-General is not empowered to furnish to the Ombudsman a certificate under that paragraph in relation to an investigation commenced by the Ombudsman into a decision made under this Act not to grant a request for access to a document in accordance with a request. Investigation by the Ombudsman of action taken by Ministers. '52F. (1) The Minister administering this Act shall cause to be made by the date of commencement of this Part regulations that make provision for the modification and adaptation of the provisions of the Ombudsman Act 1976 so as to enable complaints concerning action taken by Ministers under this Act to be made to the Ombudsman and dealt with by him in a manner substantially similar to the manner in which complaints concerning action taken by agencies under this Act are made to the Ombudsman and dealt with by him. '(2) Where a complaint concerning action taken by a Minister under this Act is made to the Ombudsman under the Ombudsman Act 1976 as modified and adapted in accordance with regulations made under sub-section (1), sub-section 5 (2) of the Ombudsman Act 1976 shall not be taken to prevent the investigation of the complaint. '(3) Where a complaint concerning action taken by a Minister under this Act is made to the Ombudsman under the Ombudsman Act 1976 as modified and adapted in accordance with regulations made under sub-section (1), sub-section 6 (3) of the Ombudsman Act 1976 shall not be taken to prevent the investigation of the complaint in a case where the complainant has not exercised a right to have that action reviewed under section 55 of this Act. Senator GARETH EVANS(Victoria-Attorney-General)(4.58) —Senator Missen's amendments are opposed by the Government, I think for the reasons he has anticipated himself-the even more controversial bits of his Ombudsman proposal- and for that reason they are just not acceptable at this stage. However, again, I say that the Government is happy to keep this matter under review, as no doubt the Committee will. Amendments negatived. Title agreed to. Bill, as amended, agreed to. Bill reported with amendments; report adopted. Bill (on motion by Senator Gareth Evans) read a third time. Debate resumed from 2 June 1983, on motion by Senator Gareth Evans: That the Bill be now read a second time. Question resolved in the affirmative. Bill read a second time. The Bill. Senator GARETH EVANS(Victoria-Attorney-General)(4.01) —Mr Chairman, four amendments have been circulated by the Government. They relate to clauses 6, 36, 43 and 44 respectively. I believe they are all essentially technical in character, or at least uncontroversial, and perhaps I can move them accordingly and respond to any questions any honourable senator might have in relation to those clauses. I move: (1) Page 7, clause 6, after sub-clause (2) insert the following new sub-clause: '(3) Where an arrangement entered into by the Archives to accept the custody of records from a person other than a Commonwealth institution relates to a Commonwealth record, then, to the extent that that arrangement, in so far as it relates to such a record, is inconsistent with a provision of Part V, that provision shall prevail.'. (2) Page 22, clause 36, after sub-clause (4) insert the following new sub- clause: '(5) The reference in sub-section (4) to copyright owned by a Commonwealth institution shall not be taken to extend to copyright owned by the Australian Broadcasting Corporation or the Special Broadcasting Service in a work or other subject matter forming part of its program material.'. (3) Page 26, clause 43, after paragraph (b) insert the following paragraphs: '(aa) a decision refusing to grant to the applicant access to the record on the ground that the record has been withheld from public access pending examination of the record under section 35; '(ab) a decision refusing to grant to the applicant access to the record on the ground that a determination has been made under section 37 that the record is to be withheld from public access or refusing to grant to the applicant access to the record otherwise than on specified conditions determined under that section. '. (4) Page 27, clause 44, after sub-clause (1) insert the following new sub- clause: '(1A) Where an applicant makes an application under section 43 in respect of a decision of the kind referred to in paragraph (1) (ab) of that section, the Tribunal has power to grant access to the record to which the application relates, or to grant access to that record on particular conditions, notwithstanding any determination made by the Director-General under section 37 in relation to that record.'. Senator MARTIN(Queensland)(4.02) —I rise briefly to refer to some part of my speech at the second reading stage. Amendment (3) in the name of the Attorney- General (Senator Gareth Evans) picks up certain criticisms that were made of the Bill by the Senate Standing Committee for the Scrutiny of Bills and the Opposition, as I indicated, supports that amendment. I just reiterate to the Attorney, since he did not reply to the point when he closed the second reading debate, comments in relation to clauses 20 and 21 and clause 40 (4) by the Scrutiny of Bills Committee-matters that were raised in relation to what the Committee thought might be undue delegation of powers. Clauses 20 and 21 relate to matters of information relative to the Parliament and the courts and the Bill provides that these matters will be dealt with by regulation. I indicated in my speech that we appreciate that quite some detailed negotiations have to take place to effect the innovation that the Government wants to have in the area of parliamentary and court records. However, I reiterate the request that, as soon as possible, whatever determination is made become an amendment to what will by then be the Archives Act rather than that these arrangements should be left in regulations. On the second point, the matter of clause 40 (4), there is reference to the shortening of time that the Australian Archives has to respond to a request for information. At present it is 90 days. These is an allowance, by regulation, that that period of 90 days might be shortened. If, after experience of the working of the new Act, the time is shortened from 90 days-if the shortened time is found to be practical-I would like the Attorney-General to give an undertaking that the Act will be amended accordingly so that this is not done just by regulation. These sorts of amendments are, of course, fairly common in statutory law. We get amendments in omnibus form from time to time. I seek from the Attorney an indication that the Government is alert to that request and will accede to it as soon as possible. Senator GARETH EVANS(Victoria-Attorney-General)(4.04) —The answer is yes on both accounts. The only reason it is proposed to do this by way of regulation is simply because of the complexity of the task and the desire not to delay further what has already been an inordinately long delay in getting the Archives Bill on foot while we solve the rather complex question about the interrelationship of the Archives rules with the special circumstances of the Parliament. Similar considerations apply with respect to the other matter that Senator Martin has raised. I certainly give an undertaking that we believe that it is appropriate that these rules ultimately be put in statutory form. We will proceed as quickly as possible to produce that result. Amendments agreed to. Bill, as amended, agreed to. Bill reported with amendments; report adopted. Bill (on motion by Senator Gareth Evans) read a third time. Consideration resumed from 2 June 1983, on motion by Senator Gareth Evans: That the Bill be now read a second time. Question resolved in the affirmative. Bill read a second time, and passed through its remaining stages without amendment or debate. Northern Territory Criminal Code-Funding of Job Scheme for the Handicapped Motion (by Senator Gareth Evans) proposed: That the Senate do now adjourn. Senator KILGARIFF(Northern Territory)(4.7) —I shall be very brief as this Friday has been an extra sitting day for the Senate and there is the arrangement that the Senate will rise early to enable honourable senators to return to their homes interstate, that is, some of them, those who can, fortunately, travel. There are some documents, Mr President, that I should like incorporated in Hansard. I have referred them to the Government Whip, who has perused them and given his consent. I refer firstly to an article in the Australian of 10 September, in the Northern Territory section of the 'Focus on the Nation' page, the section which gives reports from the various States to the Australian. It was headed 'Trouble brewing over criminal code'. The article said: The unseemly haste to pass the Territory's new criminal code, as well as extraordinary powers given by other hasty new legislation . . . The article went on to say: Mr Everingham promised extensive community input on the new code . . . The plain truth of the matter is that this reporting is very misrepresenting and misinforming. I find it amazing for a paper such as the Australian to produce such an article. Usually the Australian, the national paper, is very open-minded and is extremely good in its reporting. The fact of the matter is that, over the two years since this legislation was brought into the Northern Territory Legislative Assembly in 1981, there have been six drafts. There has been considerable community input, discussions with townspeople and with officers of the Department of Law. Aboriginal communities have been brought into the matter. Overall, through community input, many drafts were produced, until the seventh draft was passed in the Legislative Assembly, with amendments, in August. There was no input from Aboriginal legal aid organisations, which was unfortunate. There was an input from the Northern Territory Law Society, but that was a week before the Bill was passed. It had been invited on many occasions. I seek leave to incorporate in Hansard the article headed 'Trouble brewing over the criminal code', and a letter from the Chief Minister for the Northern Territory telexed to the Australian on 14 September 1983. I must say that the editor of the Australian received it but did not print it. Leave granted. The documents read as follows- TROUBLE BREWING OVER CRIMINAL CODENorthern Territory Jack Ellis The unseemly haste to pass the Territory's new criminal code, as well as extraordinary powers given by other hasty new legislation to racing and gaming police, threaten to split the ruling Country Liberal Party. Despite denials from the hierarchy, senior party officials are known to be furious at the Government's actions, claiming ministers are out of touch with popular feeling. Chief Minister, Paul Everingham, has little time for anyone meddling in his Government's affairs and has no doubt given his detractors his usual blunt reply . But with elections less than 10 months away and some turmoil in the party over pre-selections, even the high-flying Mr Everingham cannot dismiss the rumblings lightly. Mr Everingham promised extensive community input on the new code, the subject of considerable controversy, with earlier drafts being withdrawn. Instead, it was rushed through in a single Legislative Assembly sitting. Already there are rumors of meetings between Government and the Law Society to correct mistakes which should have been sorted out in the House. Issues in the code such as the removal of the right to make an unsworn statement from the dock and removal of drunkenness as a defence in court actions were not fully debated. In the same sitting, the Government amended racing and gaming legislation to give gaming inspectors the power to enter private homes without a warrant and with force if necessary. Reasonable suspicion is now the only ground necessary to invade a private dwelling. One of the justifications for the move is that liquor inspectors and grain marketing inspectors already have such powers. While remaining officially silent, police are upset and angry at the wide ranging powers being given to people they see as untrained and not subjected to extensively screening. Police must seek a warrant before entering premises. Mr Everingham appears to see it as part of his job to make the unpopular decisions in the interests of his Territory. But some of his party officials believe these are the decisions of a man out of touch with the electorate. They fear that keeping the ALP on the opposition benches for a further four years may not be as easy as many believed earlier this year. The Editor, The Saturday Australian, Had your Northern Territory correspondent Jack Ellis been writing a company prospectus rather than a column for your edition of 10th September, he could well have found himself charged with fraud under Section 234 of the Northern Territory Criminal Code. He wrote 'Mr Everingham promised extensive community input on the new Code . . . instead it was rushed through in a single Legislative Assembly Sitting.' Three further relevant points were made by correspondent Ellis: 1. Rumours of meetings with the N.T. Law Society to correct mistakes which should have been sorted out in the House. 2. No debate on removal of accused's right to make unsworn statements from the dock. 3. Removal of drunkenness as a defence in Court actions. Because the Code is a very important Law in which the public should have confidence I respond as follows: The first draft criminal code was tabled by me in the Northern Territory Legislative Assembly in March 1981. Since then, in an exhaustive process of public consultation the Territory Attorney-General (until November 1982 myself and latterly Jim Robertson) has held public seminars, consulted with community groups, spoken to individuals, clubs, associations and corporations. As a result , six drafts of the Code were tabled or introduced into the Assembly with numerous amendments over the period. Since June 1982 the drafts have followed largely the same format and have followed closely the Queensland Criminal Code. The seventh and final 'draft code' was introduced in the August sittings of the N.T. Legislative Assembly. It naturally contained changes, some as a result of public comment, and also contained a large number of technical amendments, many of a minor nature. For the sake of convenience and with the agreement of the Assembly, a new Bill (Serial 332) was introduced. This new Bill incorporated all of the proposed amendments contained in what would have been the amendment schedule of withdrawn Bill. Like the Bill Serial 332 which passed all stages during the August sittings, this amendment schedule would have likewise passed through the Assembly. This approach was taken to avoid the difficult and time-consuming task of dealing with the very large number of technical amendments. It is important to note that most of the amendments not of a technical nature stemmed directly from comments received from the Leader of the Opposition in the debate on the Code introduced in March. This then is how the Code was 'Rushed through in a single legislative Assembly Sitting.' As to 'rumours of meetings with the Law Society etc' Jim Robertson and I have made numerous public and private requests of the N.T. Law Society to comment on the Code as far back as March 1981. The Law Society (which to be fair, is not large) had not found itself able to do so. The Government a year or so ago arranged meetings between Law Society representatives and Government legal consultants such as Des Sturgess and Robin O'Regan (both prominent criminal lawyers in Queensland) who were involved in drafting the Code, to attempt to gain some input. It was not until a week before the August sittings that any written comment from the Law Society was received by Government. Following this, the Attorney-General met with representatives of the Law Society at their request to hear their views. The Territory Government welcomes representations of this nature and hopes the Law Society and the Territory Bar will take more interest in future in the formulation of laws, especially important documents such as the Code. No submissions were received from any Aboriginal Legal Aid Service although they were involved in the seminars. Then we come to the claim that important issues were not fully debated. The first draft Code in 1981 made no provision for an unsworn statement from the Dock. Provisions relating to the effect on criminal liability of voluntary and involuntary intoxication were first brought to public notice in the draft Code tabled in March 1981. Indeed the provisions relating to intoxication are considerably watered down during the consultative process, as compared to the first draft, where intoxication was no defence at all. There have been debates and statements on the code in the Legislative Assembly on August 1981, November 1981, June 1982, August 1982, March 1983, May 1983 and August 1983. On unsworn statements from the Dock I refer you to the comments of Justice Beach of the Victorian Supreme Court reported in ''The Age'' of 30 August 1983: 'What I do say is that serious consideration should be given to the abolition of unsworn statements. If an accused person wants to present evidence to a Jury, he should be required to do so in a manner that enables his account of any allegation he makes to be tested by cross-examination'. As to intoxication, 80% of all violent crime in the Territory is alcohol related, and there is too much crime in the Territory, as reflected by our prison population. I refer you to the article on page 3 of the Australian on July 28, 1980, headlined 'Go West for Crime-Go North for Jail'. The article reads in part ''the rate of imprisonment in the Northern Territory is three times higher than the national average, according to a survey released yesterday. '. . . the results of the survey were published in the latest issue of ' Reporter', a journal of the Australian Institute of Criminology.' The N.T. Government, whilst committed to education and rehabilitation through the Alcohol and Drugs Bureau, is firmly resolved to deter people from abusing alcohol, especially where it leads to tragedy through violence. The Northern Territory Criminal Code is the most substantial effort at Criminal Law Reform undertaken in Australia in half a century. It incorporates much of today's more liberal attitudes. For instance, the term rape has been erased from the statute books. A victim of sexual assault will not be cross-examined on previous sexual history, except with leave of the court. Homosexuality between consenting adult males in private is no longer an offence. The Code, in facing up to modern day problems includes a section on terrorism which of course is controversial, but has been commended for consideration by other States by the New South Wales Law Society Criminal Law Committee sitting as a committee of the Law Council of Australia, which said: 'We know of no other state which has legislation covering a similar area. In principle, these provisions do not seem inappropriate and it may well be that this area is deserving of consideration by other states'. I also refer to the advances in relation to provocation, duress, coercion and diminished responsibility and in many instances these provisions extend what is the current law in the Territory and for that matter, Australia. I would venture to say that consultative exercises in law-making undertaken in the Territory on the Code and notably also on our Liquor Legislation go far beyond similar efforts elsewhere. Last week's column contains other material of a political nature. No member of my Party, let alone its hierarchy, has spoken to me of the Criminal Code for months. As a conversational topic it was exhausted long ago. No representations were received by me or the responsible Minister on any section of the Gaming Bill from any member of the CLP. Your correspondent is a former ALP candidate in Territory Legislative Assembly elections. As he points out, such elections are once again just around the corner. Could it be that not only politicians can be less than objective? Whilst Mr Ellis' statements will not wash in the Territory where people are only too well aware of the consultation that has gone on, I thought in the interests of accuracy and your wider readership to point out a few easily verifiable facts. Yours sincerely, PAUL EVERINGHAM Senator KILGARIFF —This prompted a question in the Senate, which was answered by the Attorney-General (Senator Gareth Evans) on 21 September 1983. I should think , knowing the Attorney-General, that because of the misinformation that had been given to him he was rather startled into making a statement, I believe that a perusal of the file I have given him will throw a different light on the situation. There is a letter from the Chief Minister dated 23 September to the Attorney-General stating the facts of the situation. It suggests that an officer of the Department of Law in the Northern Territory, Mr Sturgess, be made available to brief the Attorney-General. I hope that the Attorney-General will accept that offer in an endeavour to have the situation straightened out completely. There is also a paper by the Chief Minister on the criminal code. I believe this information is important in order to give a clear indication of what this matter is all about. In conclusion, might I say that over the last two years this matter has been given a great deal of airing in the community by officers of the Department of Law and there has been tremendous community input. I believe that the time has come for a review of the criminal code of the Northern Territory. The Northern Territory is still a type of frontier state. It has special problems that perhaps other States of Australia do not experience. I believe that this law will need some amendment over a period, as it is fairly extensive, but at least it is a code which should be received in good grace by the community, not only of the Northern Territory but of Australia as a whole. I seek leave to table the papers I have just briefly described, the letters and the paper on the criminal code. Leave granted. Senator REID(Australian Capital Territory)(4.12) —I refer to an article in today's Canberra Times headed 'Funding cuts stop job scheme for handicapped' which relates to cuts under the work independence program. The program has operated in the Australian Capital Territory since November 1981 and has been run by the Koomarri Industries group of the Handicapped Citizens Association in the Australian Capital Territory, at Fyshwick. Some 34 handicapped people have been trained under the program to the present time, 80 per cent of whom have obtained jobs in the community. The question really is: Is it a fact that this program will have to be discontinued? The program director has been dismissed by Koomarri because of lack of funds. Many people in this community are concerned about the program. It is an obviously successful program for the handicapped. Is the Minister for Social Security (Senator Grimes) aware of what has happened? The Minister was undertaking a review of income support services for the disabled. I wonder whether he did initiate an inquiry into this program before cutting off the funds and whether something can be done to re-establish it, as it is clearly a successful program in the Australian Capital Territory that ought to be allowed to continue. Senator GARETH EVANS(Victoria-Attorney-General)(4.14) —in reply-The matters raised by Senator Kilgariff deserve a substantive reply and I propose to make one on the subject at some appropriate time in the next week or two, when I and my departmental officers have completed the review we are presently undertaking of the Northern Territory criminal code. It is appropriate, I believe, that the Commonwealth monitor closely what is going on in the Territory in this respect, notwithstanding the self-government Act under which the Territory now operates. There is a residual constitutional responsibility, of course, still vested in the Commonwealth and also a residual legislative responsibility under the terms of the self-government Act. We will be looking very closely at what our responsibilities might be in relation to this piece of legislation. I assure Senator Kilgariff that I was not startled into my answer in the Senate the other day. I have been familiar for quite a long time with what has been proposed with respect to the Northern Territory criminal code, although I was not familiar with the detail of the final version of the draft as it went through the Assembly. I was familiar enough, nonetheless, with the general concepts that seem to have been evident throughout the history of the drafting of this matter to be concerned at some of the reporting I had seen about the particular provisions of the code and I can assure the honourable senator that I retain that concern at this stage although I do not think this is the appropriate occasion to say anything more about that. I have received correspondence from Mr Everingham, the Chief Minister of the Territory, relating to this and offering me the services of departmental officers, in particular Mr Sturgess, the Queensland barrister who has been most closely associated with the drafting of this, and that is certainly an offer I will take up, one way or the other, before going public again on this matter. I think that is only fair to all concerned. I cannot put a precise time limit on it. I know the degree of anxiety this is causing in the Territory and it is certainly a matter that I regard as demanding attention on my part with a degree of urgency and it will be a matter of days rather than weeks, but just when I cannot say at this stage. As to the matter raised by Senator Reid in regard to funding cuts in the particular scheme for the disabled to which she referred, I will draw that matter to the attention of the appropriate Minister. I am never quite sure, with the Australian Capital Territory, just who the Minister is-whether it is the functional Minister or the geographical Minister or some combination of the two- but I will endeavour to secure a response for her at the earliest possible date. Question resolved in the affirmative. Senate adjourned at 4.17 p.m. The following papers were presented: Australian National University Act-Statute-No. 169-Parking and Traffic Statute. Seat of Government (Administration) Act-Determinations made under the following Ordinances-Adoption of Children Architects Building and Services Flammable Liquids Lakes Lotteries (2) Machine Nature Conservation Racecourses Real Property Registration of Births, Deaths and Marriages Registration of Deeds Sale of Motor Vehicles Scaffolding and Lifts Pounds Water Rates The following answer to a question was circulated: Question No. 339 Senator Peter Rae asked the Minister representing the Minister for Science and Technology, upon notice, on 7 September 1983: (1) Did the Minister for Science and Technology instruct the Commonwealth Scientific and Industrial Research Organisation on how to allocate its Budget funds. (2) Did this instruction take the form of a direction; if so; (a) under what power was it given; and (b) was it made known to the Parliament by the Minister; and, if not, why not. (3) What form did the instruction take if it was not in the form of a direction and upon what basis did the Minister interfere with this statutory authority. (4) In what manner are CSIRO's Budget funds for 1983-84 to be allocated. Senator Ryan —The Minister for Science and Technology has provided the following answers to the honourable senator's questions: (1) Yes. (2) On 28 July 1983 the Minister for Science and Technology gave a formal direction to CSIRO and on 16 August he made a formal request by letter about the expenditure of funds. (a) The direction was given by the Minister for Science and Technology in the exercise of his powers as Minister having portfolio responsibility for the Commonwealth Scientific and Industrial Research Organisation to give a direction to the Executive, under Section 13 of the Science and Industry Research Act 1949 . (b) This direction will be reported to the Parliament in CSIRO's 1983-84 annual report in accordance with the requirement of Section 57 of the Science and Industry Research Act 1949. The direction has not been formally advised to the Parliament; it has been widely publicised by way of a Budget media release. (3) The formal request of 16 August 1983 was made by letter directed to the Chairman of CSIRO. It requested CSIRO to ensure that $23.4m was allocated to a package of programs in specific key technology areas. The request was made by the Minister in the exercise of his powers as set out in the answer to 2 (a). (4) On the passage of the Appropriation bills, C.S.I.R.O.'s budget appropriation will be expended in accordance with estimates of expenditure approved by the Minister for Science and Technology under Section 49 of the Science and Industry Research Act 1949. These estimates will accord with the explanatory notes provided by C.S.I.R.O. to assist the Senate in its examination of the Organisation's estimates.