Bills

Royal Commissions (Extraterritorial Application) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 September 2018.)

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (10:33): I continue my remarks from 5 September 2018 which, before seeking leave to continue, I commenced with, 'Further, it,' referring to the High Court, 'would have considered whether the commonwealth is impliedly immune from an exercise of the powers' conferred by sections10 and/or section 11 of the Royal Commissions Act 1917 (SA) on the basis that they modify or impair the executive power of the commonwealth or substantially interfere with or curtail the operation of the executives of the commonwealth.

These matters, as I have indicated, were to be tested in the High Court. However, given when the matter could be listed to be heard and its proximity to the completion date of the commission, the commissioner, Mr Walker, raised the utility of the proceedings with me. In the absence of any extension of time to complete his report, he withdrew the summonses. Given that the proceedings would have been heard in October at the earliest and that his report was due in February 2019, even a successful result in the proceedings could not have come to make the summonses useful.

Since those proceedings were discontinued, I was pleased to see, in correspondence provided by the commission, that the commonwealth and the Murray-Darling Basin Authority agreed to voluntarily participate in the commission's proceedings by providing written submissions and some additional supporting information. I am further advised this week that the material has been received, but the commonwealth has declined an invitation to be available for questions in respect of the documentation provided and/or to further assist the commission.

When this bill was introduced on 20 June this year, the deputy opposition leader said in her second reading speech, which she claimed was introduced urgently:

…following the commonwealth government and the Murray-Darling Basin Authority both seeking an injunction to prevent commonwealth officials from having to appear before the South Australian royal commission.

As I have said, the commonwealth and the authority recently agreed to participate in the commission's proceedings, and the proceedings have been discontinued. For those reasons alone, this bill does not need to be further considered. Indeed, for the matters I raised on 5 September, this bill was not effective in any way in remedying what the opposition claimed to be the ill when introducing this bill.

As to whether there needs to be broad legislative change, including giving the act extraterritorial effect, the government will consider changes in due course. After all, it is the Royal Commissions Act of 1917, and I think it is fair to say that it is in need of overhaul, but not in the content of the bill that is before us now. During the course of the operation of the commission and the opportunity I have had to meet with Mr Walker, he provided advice to me in respect of other inquiry legislation around the country—

The Hon. J.W. Weatherill: Have you apologised yet?

The SPEAKER: Order!

The Hon. V.A. CHAPMAN: —which he described as being more modern and effective. That material is under consideration by my office. We will, of course, look towards receiving the commissioner's report in due course and any recommendations he may have in relation to his terms of reference. I thank him, along the way, for his supportive advice on how we might look to modernise our royal commissions provision, which is sadly far behind the advance of some other jurisdictions in the country.

Time expired.

Dr CLOSE (Port Adelaide—Deputy Leader of the Opposition) (10:38): I will close the debate relatively briefly, but I would like to make a couple of points about this matter. The Attorney-General has indicated that this bill was unnecessary. Its entire purpose is to unfetter the Murray-Darling Basin Royal Commission so that it is able not only to receive material from the other states and from the commonwealth but to require witnesses to attend and answer questions. The Attorney-General has just now suggested that it is no longer necessary because the commonwealth has belatedly returned, in part, to its original position, which was that they would fully cooperate.

More recently, it has said, 'We will provide some material.' Providing material is not the same as providing witnesses. We have had an exercise in futility while waiting for this government to give permission to the royal commission to do the job it needs to do. High Court proceedings were in train to determine whether the royal commission was, without this legislation, able to summons witnesses and require information. The royal commission realised that it needed an extension of time if it was going to be able to make that occur. It therefore asked the government if it could have some more time so that it could say to the High Commission that what it was attempting to do was not frivolous and not a hypothetical situation and that, if the government did rule in the royal commission's favour, then it would be able to act on that.

According to the royal commission, that letter was misrepresented by the Attorney-General in public. After a toing and froing, it was made explicitly clear that this government would not give an extension to the royal commission, which means they were unable to proceed with the High Court matter, which means they were unable to issue summonses that required officials to attend. That is the sequence of events that occurred.

Because I only have a few minutes, I will not read all the letter from the royal commissioner to the Attorney-General following his initial letter and then following the public statement made by the Attorney-General, but I will read some highlights. He points out that he is afraid there has been some misunderstanding that should be cleared up:

My letter did not say that because I have not requested any extension of time within which to report that I am obliged to withdraw the summonses with the likely consequence of rendering the High Court proceedings moot.

To the contrary, my letter was written on the following basis. First, I issued the summonses because I considered I was empowered to do so and they were appropriate.

Second, although I can make what I hope would be a useful report without the benefit of the material and evidence sought by the summonses, I would much prefer to obtain that benefit. That material and evidence, I stress, is regarded by me as highly desirable to be considered by my Commission, in the interests of everyone, including South Australia and South Australians, affected by the Basin Plan.

This is not a matter of politics. This is not a matter of the government adjourning my bill until after the High Court matter is settled and then saying, 'She said it was urgent and it hasn't happened.' It was adjourned every single time on division because we required them to vote in the interests of their politics and not in the interests of South Australia and the River Murray. This letter makes it absolutely explicit that a Sydney royal commissioner is working harder on our water coming down the River Murray than this government is.

Members interjecting:

The SPEAKER: Order!

Dr CLOSE: The job of a government is to stand—

The Hon. V.A. Chapman: You haven't spoken to Bret Walker.

Dr CLOSE: Haven't I?

Mr Pederick interjecting:

The SPEAKER: Order! The member for Hammond is called to order.

Dr CLOSE: The job of a royal commissioner—

Mr Malinauskas interjecting:

The SPEAKER: Order, leader!

Dr CLOSE: —is to hear all the evidence—

Members interjecting:

The SPEAKER: Leader and member for Hammond!

Dr CLOSE: —and to ask people questions. There may be whistleblowers who would not otherwise choose to present evidence, who would come up with the evidence if they were required to.

Members interjecting:

The SPEAKER: Members will not interject.

Members interjecting:

The SPEAKER: Order, members!

Dr CLOSE: As the royal commissioner points out:

This is a decision for the Government and the Government alone. If you or those advising you choose to characterize my request to know the Government's position as a kind of request for an extension of time, so be it. It would be quite wrong for anyone to proceed on the false basis that I would withdraw the summonses simply because I have not formally asked for an extension of time…

Since reading your response and during my writing this reply, I have been informed of a public statement from your office about these matters. It is wrong, discourteous and inappropriate.

He ends the paragraph by saying, 'I am owed an apology.'

This is a New South Wales-based royal commissioner paying more attention to the law and more attention to the River Murray than this government.

Time expired.

The house divided on the second reading:

Ayes 19

Noes 26

Majority 7

Second reading thus negatived.