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CO-OPERATIVE SCHEMES (ADMINISTRATIVE ACTIONS) BILL
Second reading.

The Hon. R.G. KERIN (Deputy Premier): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

The SPEAKER: Is leave granted?

Mr Lewis: No.

The SPEAKER: Leave is not granted.

The Hon. R.G. KERIN: This bill is part of a legislative response to the decision of the High Court in The Queen v. Hughes (2000) 171 ALR 155 and other related matters. The decision of the High Court in Hughes has cast doubt on the ability of Commonwealth authorities and officers to exercise powers and perform functions under State laws in relation to several intergovernmental legislative schemes. In Hughes, the High Court indicated that, where a state gave a commonwealth authority or officer a power to undertake a function under state law together with a duty to exercise the function, there must be a clear nexus between the exercise of the function and one or more of the legislative heads of power of the commonwealth parliament set out in the commonwealth constitution. Hughes also highlighted the need for the commonwealth parliament to authorise the conferral of duties, powers of functions by a state on commonwealth authorities or officers.

The object of this bill is to deal with doubts cast by the decision in Hughes on the ability of commonwealth authorities or officers to exercise powers and perform functions under state laws in relation to the following intergovernmental legislative schemes:

(a) the cooperative scheme for agricultural and veterinary chemicals; or

(b) the cooperative scheme for the National Crime Authority; or

(c) any other cooperative scheme to which the proposed act is applied by proclamation.

This bill ensures that functions or powers are not imposed on Commonwealth authorities and officers in connection with administrative actions under the schemes if their imposition would exceed the legislative powers of the state, and validates any such previous invalid administrative action.

The SPEAKER: Does the minister wish to insert the clauses?

The Hon. R.G. KERIN: Yes, sir. I seek leave to have the explanation of the clauses inserted in Hansard without my reading it.

The SPEAKER: Is leave granted?

Mr Lewis: No.

The SPEAKER: Leave is not granted.

The Hon. R.G. KERIN: The explanation of the clauses is as follows:

Clause 1: Short title.

Clause 2: Commencement.

These clauses are formal.

Clause 3: Definitions.

This clause defines certain words and expressions used in the proposed act. The expression invalid administrative action is defined as an administrative action taken by a commonwealth authority or officer pursuant to a function or power conferred under a cooperative scheme established by a relevant state act to which the proposed act applies, and that is invalid because its conferral on the commonwealth authority or officer is not supported by a head of power in the commonwealth constitution.

Clause 4: Co-operative schemes to which this act applies-relevant state acts.

This clause defines the relevant state acts to which the proposed act applies, namely, the Agricultural and Veterinary Chemicals (South Australia) Act 1994, the National Crime Authority (State Provisions) Act and any other state act declared by proclamation of the Governor. The clause enables the relevant commencement time for the validation under the proposed act to be declared by proclamation.

Clause 5: Administrative functions and powers conferred on commonwealth authorities and officers.

This clause ensures that a relevant state act is construed as not conferring a duty on a commonwealth authority or officer to perform a function or exercise a power if the conferral of the duty would be beyond the legislative power of the parliament of the state. In the case of the co-operative scheme for agricultural and veterinary chemicals, the clause complements the commonwealth Agricultural and Veterinary Chemicals Legislation Amendment Bill 2001 (which seeks to authorise the conferral of duties on commonwealth authorities and officers by state law to the fullest extent that is constitutionally possible).

Clause 6: Invalid administrative actions to which part applies.

This clause provides that the proposed part applies to previous invalid administrative action, namely, any such action taken or purportedly taken under a relevant state act before the commencement time in relation to that act (the relevant commencement time).

Clause 7: Operation of part.

This clause deals with the operation of the proposed part. Clause 7(1) provides that the proposed part extends to affect rights and liabilities that are or have been the subject of legal proceedings. Clause 7(2) provides that the proposed part does not affect rights and liabilities arising between parties to legal proceedings heard and finally determined before the relevant commencement time to the extent to which they arise from, or are affected by, an invalid administrative action.

Clause 8: legal effect of invalid administrative actions.

This clause provides that every invalid administrative action to which the proposed part applies has (and is deemed always to have had) the same force and effect as it would have had if it had been taken by a duly authorised state authority or officer of the state. The clause does not in terms validate administrative actions taken by commonwealth authorities and officers, but rather attaches to the actions retrospectively the same force and effect as would have ensued had the actions been taken by state authorities and officers (a similar distinction was drawn in The Queen v. Humby, ex parte Rooney (1973) 129 CLR 231).

Clause 9: Rights and liabilities declared in certain cases.

This clause complements clause 8 and does not affect the generality of clause 8. The clause declares that the rights and liabilities of all persons are (and always have been) for all purposes the same as if every invalid administrative action to which the proposed part applies had been taken by a duly authorised state authority or officer of the state.

Clause 10: This part to apply to administrative actions as purportedly in force from time to time.

This clause ensures that the proposed part does not reinstate administrative actions that, since the action was taken, have been affected by another action or process. For example, if a decision has been altered on review, the proposed part does not reinstate the decision in its original form. The proposed part applies to the decision as it is affected by later actions from time to time.

Clause 11: Act binds Crown.

This clause provides that the proposed act binds the Crown.

Clause 12: Corresponding authorities or officers.

This clause provides that it is immaterial for the purposes of the proposed act that a commonwealth authority or officer does not have a counterpart in the state, or that the powers and functions of state authorities or officers do not correspond to the powers and functions of commonwealth authorities or officers.

Clause 13: Act not to give rise to liability against the state.

This clause provides that the proposed act does not give rise to any liability against the state.

Clause 14: Regulations.

This clause empowers the making of regulations for the purposes of the proposed act.

Mr ATKINSON (Spence): The bill tries to rescue state-commonwealth cross-vesting arrangements whereby the public servants of one government could act with the authority of the other. These schemes were put in doubt last year by the High Court in R v. Hughes. That case was a challenge to the authority of the commonwealth Director of Public Prosecutions to prosecute breaches of the Corporations Law. Section 45 of the Corporations Law stated that an offence against a provision of the state act is to be deemed an offence against the equivalent commonwealth provision. Thus the commonwealth DPP prosecutes for breach of the state act (in the case of Hughes, the Western Australian act). The prosecution was upheld on the ground that the transactions the subject of the prosecution were partly overseas and, therefore, within the `trade and commerce with other countries' head of commonwealth power. Although the prosecution was upheld, the reasoning of the court cast doubt on the validity of parts of the Corporations Law thought to be resting on commonwealth constitutional authority.

This doubt spread to cooperative schemes other than the Corporations Law. The Attorney-General puts it this way:

The court indicated that, where a State gave a Commonwealth authority or officer a power to undertake a function under State law, together with a duty to exercise that function, there must be a clear nexus between the exercise of the function and one or more of the legislative heads of power of the Commonwealth Parliament set out in the Commonwealth Constitution.

The bill before us tries to rescue the agricultural and veterinary chemical scheme (AGVET scheme) and the National Crime Authority scheme. All states are enacting similar legislation to validate potentially invalid actions of commonwealth officers in the past. The bill deems actions or decisions of commonwealth authorities or officers already taken under the scheme to have the same force and effect under state law as they would have had had they been made or done by an authorised state body or officer under state law. The bill allows the state government to proclaim the legislation as applicable to other laws. The opposition supports the bill.

An honourable member interjecting:

Mr LEWIS (Hammond): No. This is bloody retrospective legislation; it is as simple as that. What they want to do is make legal what was illegal yesterday. They want to screw the poor sods who thought the law was different from the way the bureaucrats wanted it to be. By bureaucrats I mean policeman of one kind or another, or regulators-call them what you like. The end result is that we do not know what citizens may have done, or what they were coerced into doing at the time it was unlawful. It would be a good idea if the High Court were to stick to this kind of decision making where it interprets the law literally-the black law, as I think the member for Spence-

An honourable member interjecting:

Mr LEWIS: The black letter of the law, as the member for Spence has described it in previous remarks made today on another matter. That is what the courts are there to do. They are not there to legislate. They are not there to presume that parliament is stupid. They are not there to determine what parliament might have decided and written into the statute books if parliament were like minded to themselves. They have never participated in the electoral process. They have never known the discipline which that imposes on a person who seeks to be elected to the parliament and upon being elected seeks to exercise their responsibilities delegated to them by the electors in the electorate. They have never known, then, how to measure the rate of change or the direction of change in that innate way. They do not understand the benefits to society of having a legislative chamber make those changes rather than a secluded unaccountable small group of individuals who may be brilliant in every respect academically and brilliant in every respect in understanding what they think ought to be so but that does not mean that it should be so, because they are not accountable.

Over the history of the development of the Judaeo-Christian law the derivative which we have of it from the British law in this country, the envy of so many other societies, has produced the institutional mechanism by which law is made. Mr Speaker, as I am sure you are aware, it has been found throughout our history that the judges of what is the law are not the appropriate people to make the law. Having said that-and none of them asked me to say it, so it is a gratuitous remark on my part-I then put that into the equation of what parliament has or has not done and the way in which a citizen should be entitled to believe that the law as they understand it is the law which must govern their action in the way in which they do things day to day, the way in which they relate to one another or their other corporate instrumentalities to the surroundings in which they live, be they other people or physical objects or the wider ecosystems of which they are also a part.

It is not fair to retrospectively change the law thereby enabling bureaucrats to say, `Aha! Got you now!' when yesterday they were not unlawful steps, actions or decisions taken by the citizen at the time. Let me illustrate the point I am making by referring explicitly to that proposition by drawing attention to clause 9- `The rights and liabilities declared in certain cases.' I guess you would have to start at clause 8 and it goes on into clause 10; maybe that is the right place to start. Clause 10(1) provides:

The purpose of this section is to ensure that this part operates to give to an invalid administrative action that has subsequently been affected by another action or process no greater effect than it would have had if the administrative action, or any other relevant administrative action, had not been invalid on constitutional grounds ( arising from the circumstances referred to in paragraphs (a) and (b) of the definition of `invalid administrative action' act in section 3).

If one looks at clause 3 one sees that `invalid administrative action' means:

. . . an administrative action of a commonwealth authority-

as the member for Spence pointed out-

or an officer of the commonwealth taken, or purportedly taken-

(a) pursuant to a function or power conferred, or purportedly conferred, by or under a relevant state act (the relevant function or power); and

(b) in circumstances where the relevant function or power could not have been conferred on the authority or officer by a law of the commonwealth.

That is saying that what they decided they wanted to do yesterday, and did as commonwealth and state public servants of one kind or another which was invalid, is now going to be made valid. Well, I cannot cop that. I do not see why we should ignore the principle that we have always understood was sound, that is, that retrospective legislation is wrong. What someone did yesterday, if it was lawful to do it, ought not to be made unlawful by changes made to the law today or tomorrow. No-one, if that is the way we set out to govern a society, I state again with emphasis, will be safe. If we can do it for one piece of legislation then, God knows, where do we draw the line? I do not know, and I am sure that no other citizen will know.

I want now to make some further remarks-as I did earlier in the day-about dealing with legislation on the run in this manner. Just because this bill has gone through another place and the debate is there does not necessarily mean that it will be in the best interests of the citizens of South Australia. It has not been on the Notice Paper in this House. I do not take my riding instructions from the other House: I take my riding instructions from the people I represent in Hammond and the associated interested citizens and organisations whose activities will have a bearing on the welfare, benefits or disbenefits that will affect the people of Hammond as a consequence of changing or not changing the law.

That is my brief and that is what the constitution says about me as a person with the delegated authority to be here. They are not talking about Peter Lewis: they are talking about someone from among their ranks to whom they delegate their authority to make law on their behalf and to question government about the way its decisions are affecting them.

Mr Atkinson: Should the honourable member not refer to himself by his electorate?

Mr LEWIS: No. If the honourable member looks in Erskine May he will see that I am not compelled to because I am not a person here, though I happen to be an individual, and I may refer to myself by whatever term I choose. In making these remarks, then, I am saying that it is not reasonable for us to ignore the standing orders which we have adopted from other parliaments and which we have built up over more than a century. Indeed, it is close now to a century and a half of parliamentary practice, and we are just wiping those standing orders aside so that we can rush these bills through in the last week of this session of the parliament. This is one of them.

It is the government's wish to have the legislation before it rises on Thursday and it does not give us, as ordinary members in this place, the opportunity to examine properly such legislation. This legislation affects the kinds of people I represent because they are involved in primary industry as much as anyone can be in any part of this state. It is a very diverse kind of primary industry, involving the use of so many agricultural and veterinary chemicals. Cooperatives, as we have them, are to be found in Hammond, even if they are not to be found in Peake or Spence.

I know that the minister is a man with previous experience in this industry and I bet, sir, that if he were still in that industry today he would be disturbed by the decision of a parliament simply to set aside standing orders and ram through a piece of legislation which the majority of members in this place, I am sure, do not understand, merely because it is convenient for the government to do it in this manner when the government knew ruddy well that it could have sat the House earlier and longer during this session to obtain this legislation. We have never done it like this before and I wonder how many more bills of this kind we will get this week.

It is silly of us to do it because it brings us into further contempt from the people whom we represent. That is not just contempt for each of us as individuals but, more particularly, it is a contempt for the institution to which we belong: that we, as the individual members of it, choose to abuse the heritage given to us by past experience and the other parliaments from which we have derived.

Mr Atkinson interjecting:

Mr LEWIS: In this case, obviously, there were citizens and corporate interests- not so very big corporate interests at that (they were cooperatives)-who believed that it was unlawful to be so treated.

Mr Atkinson: They might be wrong and they might not be.

Mr LEWIS: They thought they were being unlawfully treated.

Mr Atkinson: You don't know that until it's decided.

Mr LEWIS: This bill makes the actions that the High Court found to be unlawful retrospectively lawful.

Mr Atkinson: It might.

Mr LEWIS: It does. That is what the minister hopes it does: that is what he said in his second reading explanation, and that is what I recall the member for Spence saying at the outset of his remarks.

Mr Atkinson: I am sure he said it with great conviction.

Mr LEWIS: Not as great a conviction as the honourable member's, although I think that the honourable member's was a detached conviction in that he was frank about the fact that it was fixing something which was discovered as being wrong and which needed, therefore, in the honourable member's opinion, to be fixed. I do not know whom this will adversely affect. Administrative actions may have been taken against the cooperative in my electorate about which I have had no opportunity to consult, because we have suspended standing orders today to ram through this legislation.

Mr Atkinson: Quite true.

Mr LEWIS: That is what I am really cross about. It is what some people over a beer would say that they are PO'd about. That is why I therefore took the trouble to place on the record-and for the benefit of other members-the seriousness of the precedent we set not just by passing this legislation and making retrospectively lawful acts taken yesterday by these administrative officers that were unlawful: we have suspended standing orders here to enable us to do it and prevent me from being able to do my job in representing the people in Hammond.

If the member for Spence wants to jump into bed with the government on that deal, I say that party expediency of the ALP and the Liberal Party comes ahead of the public interest and the public good. I thought that the ALP in this instance, especially the member for Spence, would have agreed with the contrary view- the one that I am expressing-that it is not good enough for the government to patch up its mess by suspending standing orders and to say, `Oh, stuff it, it doesn't really matter.'

The Hon. R.G. KERIN (Deputy Premier): In respect of many of the comments made by the member for Hammond, I point out that the honourable member refers to cooperatives in his area and the agricultural and veterinary chemicals but these are not cooperatives as in businesses: this bill refers to the uniform nature of the way the states work together with respect to such organisations as the NRA and the National Crime Authority.

So, we are actually talking about a different thing. This is strictly not retrospective validation; the bill requires the commonwealth authorities officers' actions to be regarded in the same light as with their corresponding state authorities to overcome unforeseen problems with these uniform schemes across the states. If the actions would have been invalid if taken by state bodies, the activities will still be invalid. It is about uniformity. I thank members for their contributions and once again wish the bill a speedy passage.

Bill read a second time and taken through committee without amendment.

The Hon. R.G. KERIN (Deputy Premier): I move:

That this bill be now read a third time.

Mr ATKINSON (Spence): I think it is appropriate that I respond to some of the remarks made by the member for Hammond, who is critical of the opposition for cooperating with the government in moving through the House of Assembly bills that have only just arrived here from another place. Because this is the last sitting week of parliament for, I think, eight weeks, the opposition has cooperated to expedite government business by responding immediately to a minister's second reading explanation which, notionally, we have only just heard. So, one might think that the opposition are speed readers to be able to respond to such bills, but, of course, the truth of the matter is that I keep in my office a Legislative Council bill file; I read the Hansard of the other place; and I try to keep abreast of bills moving through the other place.

I understand that the member for Hammond is a stickler for parliamentary propriety. On principle, he is quite right that these bills ought to be adjourned after the relevant minister's second reading explanation and considered in a subsequent week. But these are bills the passage of which I am well aware; the opposition is across these bills; the parliamentary Labor Party has considered the bills and reached positions on them; and, in order to help the government, given that we are going away for eight weeks, the opposition is cooperating in passing these bills. Although it is somewhat irregular, and I admit the member for Hammond's point, I do not think there is a great deal of harm in our doing it.

Mr LEWIS (Hammond): With the third reading straight out, I, too, will speak about the way in which the bill comes out of committee, because it did not go into committee. The misunderstanding that I had of the intended meaning of `cooperatives' arises from the very fact that I cannot afford the time to read everything that goes on in the Legislative Council, given that it changes from the time that it arrives there to the time that it passes there-and there is no bloody point until they have actually passed it. We only got the message here earlier today; it is not on the Notice Paper ; and I am not told that it is going to happen. We ought not to see parliament as something for the convenience of the party organisations because that will affect our ability to legislate on behalf of people.

I suppose one of the reasons I am standing here as an Independent is that I believe that, indeed, parties exercise far greater power that is never intended to be exercised in that manner in the process that is involved. I am not disparaging the member for Spence but he needs-as I think he does-to remember that he is here representing not the Labor Party but his constituents in Spence.

Mr Atkinson: That is quite true. How do you think I would go as an Independent?

Mr LEWIS: Probably better than you think you might.

Mr Atkinson interjecting:

Mr LEWIS: Maybe so.

Mr Atkinson interjecting:

Mr LEWIS: In good humour, I accept what the member implies, but it does not alter my view of the situation. The minister and the government are expecting me to agree to accept legislation and pass it on the same day without the chance to read and understand it and without their having told me that it was their intention to do so until I sit down in here at question time and see these things, and I cannot find numbers for them. I do not know what that means or what they address. Hence, my concern and reservations, as expressed, about not only the legislation retrospectively fixing (and I use that word advisedly) but making lawful acts that were unlawful acts by the administrative officers acts so that they can avoid the embarrassment of being told that what they did was wrong, and doing it in such a way as we have done it and which denies me the chance to go through and understand it and make more constructive comment upon it than perhaps I have already.

Mr HANNA (Mitchell): I join with the member for Spence in rejecting the assertions of the member for Hammond that there is anything unparliamentary or wrong about the cooperation between the Labor Party and the Liberal Party on the passage of legislation this evening. It is absolutely correct that all members have the opportunity to inspect the Notice Paper for the other place and, in respect of these Attorney-General's bills, read the second reading contributions that have been given before today. If the member for Hammond has not done that, he really has to look to his own research, especially in the final week of the session.

Indeed, it is not that the public would think that some party machination is letting them down when Labor and Liberal agree on the passage of legislation, as we have done tonight. On the contrary, they applaud us when we cooperate rather than bicker-as they see on the TV news which shows question time. In fact, the member for Hammond is quite wrong in that. If the public were crowding out the gallery, they would be condemning the member for Hammond-and not the rest of us-for holding up proceedings rather than getting on with things in a sensible and cooperative approach.

The Hon. R.G. KERIN (Deputy Premier): I would like to point out that a couple of times today the assertion has been made that there was no notification that this bill would be dealt with today. I do understand that the member for Hammond was away until a day or two ago and that he has had a fair bit to do since then.

Mr Lewis: Representing the parliament.

The Hon. R.G. KERIN: That is true. I would just like to defend my staff member who sends out the program, because I have checked and the two members who have complained about not knowing about the program and what was to be debated were emailed on Friday. I understand the member for Hammond's position, but it is not the fault of the person who sends out the program. I have checked, and they did as they were supposed to, and emails were sent to the two members who complained about that today. I cannot ask for any more of my staff members.

Bill read a third time and passed.