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OATHS BILL 2001 (No. 79)
Dr PATMORE (Bass - Minister for Justice and Industrial Relations - 2R) - Mr Deputy Speaker, I move -
That the bill be now read the second time.
Mr Deputy Speaker, this bill is part of the Evidence Bill 2001 legislative package. It retains those sections in the current Evidence Act which relate to the way in which affidavits, declarations and attestations are made and the appointment of commissioners for declarations. It also provides for the taking of evidence in this State for use in another jurisdiction. I commend the bill to the House.
Mr MICHAEL HODGMAN (Denison) - Mr Deputy Speaker, the Opposition will not be opposing this bill but my colleague, Mr Rene Hidding, does wish to make some comments in relation to it because I think you will find, Attorney, that under clause 12 the criteria to be used for appointing persons as commissioners for declarations is set out and, without stealing Mr Hidding's thunder, I think you will find that persons cannot be appointed as a commissioner for declarations now if they have passed 70 years of age.
Dr Patmore - Correct.
Mr MICHAEL HODGMAN - I am just setting the scene as I understand it because it was only raised with me by Mr Hidding this afternoon. The position, as I believe it to be, Mr Deputy Speaker, is that following the Federal referendum some years ago, judges in Australia can now only be appointed to 70 years of age, whereas previously they could be appointed for life.
Dr Patmore - Yes.
Mr MICHAEL HODGMAN - And now I think, I cannot remember who was the last one - Ashburner or Dunkley, I think, was the last one who was under the old appointments of judges, I am pretty certain. Is it magistrates, too, who can only go to 70?
Dr Patmore - Magistrates. And justices of the peace as well, I understand.
Mr MICHAEL HODGMAN - Is it? Well, I think Mr Hidding wants to raise it with you because his area does involve seniors and this may well constitute discrimination on the basis of age.
I might just say while I am on the subject, I got a bit of a surprise the other day, Attorney. I should draw to your attention a hotelier, who knows me well, who had to fill in his new application to the State Government for his keno licence, I think it was, and he asked if I could witness it. I said yes, and when I looked through it I was quite amazed I could witness it as a barrister but not as a member of parliament.
Dr Patmore - No, as a member of parliament you can issue it as a commissioner for declarations.
Mr MICHAEL HODGMAN - Thank you for that, I did not know that.
Dr Patmore - That's my understanding.
Mr MICHAEL HODGMAN - Well, in the list of occupations on the bottom, if you check with your Treasury people -
Dr Patmore - No, if it is allowed to be witnessed by a commissioner for declarations, you can sign it as a member of parliament.
Mr MICHAEL HODGMAN - Well, thank you. I did not know that. That clarifies that one, but I think Mr Hidding will put it more succinctly than I and I must confess when I had the briefing with Ms Rigby I was not aware of this point, and so there is not an ambush, if I can say, to you and to her. It was only raised with me. But Mr Hidding feels very strongly that it constitutes a discrimination on the grounds of age. I can speak on the other sections of the bill.
Dr Patmore - There is no need to wait. He is here now. I was going to wait till he arrived anyway.
Mr Hidding - My apologies.
Mr MICHAEL HODGMAN - No, it was not your fault, because we actually came on to it quicker that you expected. The Opposition supports the other parts of the bill, but I think Mr Hidding does have a valid contribution to make, and he has raised it with me and accordingly, Mr Speaker, I will not detain the House further on it. In fact I will resume my seat. I do not have anything further to say in the second reading debate.
Mr HIDDING (Lyons) - Mr Deputy Speaker, my concern relates to an area of responsibility I have in our party which is an interest in matters of policy on senior citizens. I have been doing quite some work on that, and I am particularly interested in the issue of discrimination on the basis of age since the Anti-Discrimination Amendment Bill was brought in by the Bacon Government. There have been some issues there from time to time where things have been tested. Indeed there is legislation before the House now to bring about a change because of various rulings. I intend to test the minister on this bill by an amendment to clause 12 which relates to commissioners for declarations. What has happened here is that the Government quite properly has restated the arrangements for commissioners for declarations and has lifted straight across from the Evidence Act 1910 the arrangements by which people can become and remain commissioners for declarations. But in so doing I believe they fall foul of their own Anti-Discrimination Act. In our body of legislation there are many matters which would fall foul of the Anti-Discrimination Act, but they are not before us. The Government has chosen to bring before us an act that brings about a change and a measure that ought to be tested against current and later legislation. Section 16 of the Anti-Discrimination Act clearly says that you cannot discriminate on the basis of age. That, obviously, given the ageing of the population, is quite a demographic phenomenon over the last few years; it was the case that 25 or 30 years ago, when you got to 70, your chances of living to 75 were not all that flash. But in this day and age, with better health and nutrition and, for us younger people, much less grog, there is a reasonable chance that people will lead a strong productive life well on past the time they are 70.
So what we have here in this bill is a measure whereby the Government is proposing to bring about a situation where a commissioner for declarations ceases to hold office on attaining the age of 70 years. It also says that you cannot appoint someone over the age of 70 years, but that is actually an act of commission, and I would be seeking to change that as well. But what is more important is that somebody who has served the State very well as a commissioner for declarations for a period of time, has never made a mistake, has always done the right thing, always sought an oath or an affirmation from people and has been very clear on how he or she has gone about the job, when that person turns 70 it is proposed by the Bacon Government that the system says, 'You are too old to continue with this job'. I understand what the Attorney is going to tell us about judges, about others in the system and about parity and all those sorts of matters. But the fact is, you have the legislation sitting there for a very good reason and you are bringing in a fresh measure. It is directly in contravention of your own act. Therefore, when we get to the committee stage I would seeking to amend clause 12 by omitting subclauses (2) and (3). We could actually vote against them. But just because it is a parcel, I would be seeking to omit subclauses (2) and (3), and in clause 12(4) delete the words 'has not attained the age of 70 years and' which would simply remove any reference in there at all from the hatchet falling when you are 70 years of age. I place that before the Attorney for his consideration and an explanation as to why this bill is not in contravention of their own legislation and, if he would not support our amendments, why not.
Dr PATMORE (Bass - Attorney-General) - Yes, I thank members for their contributions in relation to this. Quite clearly, the reasoning behind this is that you are quite right, it comes from the Evidence Act 1910. There are now age limits on judges and magistrates. I make no apology for that at all. There should be age limits on magistrates and judges. I think that the job that they do is far too important for any doubts whatsoever.
Having said that, I have no doubt that some of the honourable people that we have in the judging could go on and do a superb job.
Mr Hidding - What about members of parliament?
Dr PATMORE - I am dealing with judges and the public will make a decision in relation to that. They review that every three or four years. That is their choice. Certainly, in relation to judges and magistrates, I do.
Mr Michael Hodgman - Senator Strom Thurmond of the United States Senate is 97 and keeps topping the poll.
Dr PATMORE - He is and I met with the District Attorney of New York this year, and he was 82, I think.
Mr Michael Hodgman - Did you tell him that he was way too old?
Dr PATMORE - I actually insulted the assistant attorney by commenting to her that he seemed rather old for the job and very quickly realised that I should not have said that. But the point that they made there was that he is elected. He has done such a superb job, as I learned, that no-one was standing against him. He was doing the job and doing it superbly. But again that was a position that was of course subject to review; unlike if you are a judge or a magistrate where the decisions that you make, particularly in your interpretation of the laws of evidence, can result in whether or not a person has their liberty.
Mr Hidding - What about commissioners for declarations?
Dr PATMORE - The reason that I am aware of this is that I actually had this discussion with some justices. We have the same issue with justices. They raised a very good point, particularly with bench justices. We have quite a few justices, not that many commissioners of declarations. The point that we agreed on, was that you have a difficulty in that a lot of the justices are not free to do bench work until they retire. When they are, they do a good job too. The point was, why are we stopping these people at 70? We have them for five years, they do a great job and then you say they cannot do it. In fact, I am now reviewing that within the department.
Mr Michael Hodgman - You can sit on the bench but you cannot be admitted to declarations?
Dr PATMORE - No, you cannot sit on the bench after 70.
Mr Hidding - No, but you are reviewing that though?
Dr PATMORE - Commissioners for declarations come into that as well.
Mr Hidding - You can't ask us to pass legislation that is in contravention, especially as you admitted you're reviewing it.
Dr PATMORE - It is going to be because if you have the same rationale for the judges and the magistrates in the judicial system, the same rationale holds for the commissioners for declarations. It is too important.
Mr Hidding - Why didn't you build that into your Anti-Discrimination Act as an exception?
Dr PATMORE - So review it as you wish, move the amendment, but until such time as a review has been carried out in relation to this issue, I believe those age limits should stay.
Mr Michael Hodgman - How old are you, Attorney, as a matter of interest?
Dr PATMORE - I am 48.
I am not surprised by what you have said because that was the very discussion we had but it was on the justices. The review is we have to tread the line of how we allow these people to contribute when they are able to contribute. How can we do that when they are allowed to contribute, when we want them to contribute, yet at the same time how do we say to some, 'You've had a fair go. Time not to do any more work'? That was the discussion I had with the justices and this is an issue with the honorary justices association that we have to really look at. I would have to say I do not know the answer to that; I am open to suggestions.
Mr Hidding - But you are bringing in a measure -
Dr PATMORE - No, I am telling you the problems I have to deal with, the specific problems I have to deal with: how do we allow justices and commissioners to do that work? How do we say to some of them, 'It's time to stop'? I do not know and therein lies the problem. That is the crux of the discussions I have had with the justices: how do we work our way through it? I agree technically with you ; I have no doubt that some could do the job well into their eighties - no doubt at all. How do we have the cut-off point? It is not just a matter of saying, 'Oh yes, we shouldn't discriminate' - these people are making very important decisions.
Mr Hidding - Commissioners for declarations have to be sharp.
Dr PATMORE - That is right.
Mr Hidding - They've got to be sharp, there's no question. You have to ask the right questions in the right manner and all that.
Dr PATMORE - That is correct. How do we have a cut-off point? The same logic, as I said for the justice. It is a very good point, but how do we do it? In the absence of any decision as a firm recommendation being made to me, that is my rationale.
Bill read the second time.