Chapter One

Introduction and background

Reference to Committee of Privileges

1.1 On 2 October 1997, the following matter was referred to the Committee of Privileges on the motion of Senator Bolkus:

  1. Whether the Attorney-General (Mr Williams), or any other person, sought, by force or threat, or by other improper means, to influence the Australian Law Reform Commission, and/or its President, Mr Alan Rose, in respect of evidence to be given, namely the making of a submission, and/or the giving of evidence in person, to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, and whether the Attorney-General, or any other person, induced the Commission, or its President, to refrain from giving that evidence.
  2. Whether any contempt was committed in respect of this matter. [1]

Background to reference

1.2 On 30 September 1997, Senator Bolkus wrote to the President of the Senate, Senator the Hon. Margaret Reid, raising a matter of privilege relating to an allegation that the Attorney-General had sought to dissuade the Australian Law Reform Commission (ALRC) from presenting a submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Island Land Fund (NTC). [2]

1.3 In response to Senator Bolkus' letter, the President made a statement on 1 October, giving precedence to the matter of privilege. [3] In her statement, she noted three elements. First, while this was a case of a person who had been invited to give evidence before a committee but had not yet done so, improper interference with a witness can occur before that witness has given evidence. Second, although the Attorney-General has a statutory power to direct the ALRC as to the work it is to undertake, an otherwise lawful act can nonetheless constitute improper interference. Third, even if the ALRC did not have a statutory function of giving evidence to parliamentary committees, the question of interference with a witness does not depend on the nature of the evidence to be given or the power or ability of the witness to give it.

1.4 The President went on to point out that disputes about the facts of the matter were for the Committee of Privileges to determine if the matter was referred to it by the Senate. [4]

Conduct of inquiry

1.5 The Committee of Privileges first met on 23 October 1997 to consider the reference. Following consideration of the material then in its possession, the committee decided to write to:

  • Mr Warren Entsch MP, as Chairman of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund
  • The Hon. Daryl Williams AM, QC, MP, Attorney-General
  • Mr Alan Rose AO, President, Australian Law Reform Commission
  • Mr Normal Reaburn, Acting Secretary, Attorney-General's Department

1.6 As is customary, the committee also sought comment from Mr Harry Evans, Clerk of the Senate and, in this particular case, also from Mr Ian Harris, Clerk of the House of Representatives. The committee received replies from:

  • Mr Harry Evans [5]
  • Mr Alan Rose, enclosing a timeline and relevant documentation [6]
  • Mr Warren Entsch MP [7]
  • The Hon. Daryl Williams, stating that he did not wish to make a submission [8]
  • Mr Norman Reaburn [9]

Structure of report

1.7 The remainder of this chapter outlines the events that led ultimately to the reference of the present matter to the Committee of Privileges. It is based on the combined accounts of events given by Mr Entsch, Mr Reaburn and Mr Rose, and other officers of the Attorney-General's Department and the ALRC, supplemented as required by Hansard transcripts and other public documents, particularly documents provided on 2 October 1997 in response to an Order of the Senate. A volume of submissions, and of quoted documents which are not otherwise readily available, is tabled with this report.

1.8 Chapter Two discusses the matters to be determined, analyses the salient facts and reports the Committee of Privileges' finding and recommendations.

Events leading to reference

ALRC submission to Wik Task Force

1.9 On 3 July 1997, a form letter was sent from the Wik Task Force, within the Department of Prime Minister and Cabinet, to the ALRC seeking comments on the draft Native Title Amendment Bill. This letter was in response to an approach from the ALRC to the Wik Task Force asking to be placed on its mailing list. [10]

1.10 On 4 August 1997, the ALRC provided a submission to Senator Minchin, Parliamentary Secretary to the Prime Minister, which was acknowledged on Senator Minchin's behalf on the same day. The ALRC also forwarded a copy to the Department of Prime Minister and Cabinet. [11] The submission was critical of constitutional aspects of the draft legislation. The ALRC did not provide a copy to the Attorney-General.

1.11 On 28 August 1997, Mr Williams wrote the following letter to Mr Rose:

Dear Mr Rose,

It has been drawn to my attention that the Commission recently provided comments to the Wik Task Force on the Government's Native Title Amendment Bill 1997.

While I understand that the Commission's comments were provided in response to a generally issued invitation which accompanied all copies of the Bill, I note that the Commission's functions, as set out in Part 3 of the Australian Law Reform Commission Act 1996, are confined to matters referred to it by the Attorney-General. In my view therefore, it would have been appropriate for the Commission to have consulted me before providing comments to the government on a matter which is unrelated to any current Reference upon which the Commission is working.

I should therefore be grateful if you would ensure that you undertake consultation with me should such occasions arise again in the future.

Yours sincerely


1.12 This letter was later described by Mr Richard Moss, at that time Acting Deputy Secretary of Attorney-General's Department, as a “rap over the knuckles”. [13] Before the letter was sent there was some discussion within the Attorney-General's Department over the functions and powers of the ALRC. This is illustrated by a letter, e-mailed by Mr Moss on 26 August to Ms Cathy Lee [actually “Kathy Leigh”, then Acting Chief Adviser to the Attorney-General], extracts from which were quoted at a Senate Legal and Constitutional Legislation Committee hearing on 13 November 1997. [14] The relevant portions of the transcript are:

Senator BOLKUS--By electronic mail from you to Cathy Lee in the Attorney's office of 26 August, did you not state that `Notwithstanding the fact the invitation was a generally issued one, the commission could, nevertheless, reasonably claim that it had been invited to provide comments'?

Mr Moss--That relates to the submission that the commission made to the Wik task force. I thought you were asking me about the submission the commission made to the joint select committee.

Senator BOLKUS--In that same e-mail, did you state that, `Further, notwithstanding a strict view of its functions under the act, the commission has always been regarded as having some leeway in respect of law reform issues, i.e., it is quite frequently invited to make submissions to parliamentary committees on relevant subjects'?

Mr Moss--In as much as you are reading from the e-mail, Senator, obviously that is what I did say.

Senator BOLKUS--And that was your view, was it not, that the committee was frequently invited to make submissions and did so?

Mr Moss--The commission? That was my view, yes.

Senator BOLKUS--It was also your view that the commission should, on occasions such as these, consult with the AG and that it was quite improper for it not to do so?

Mr Moss--Yes, it was.

Senator BOLKUS--But, at the end of the day, it was your view that, apart from the proposed letter which you e-mailed to the A-G's office, the A-G should not go any further to avoid running the risk of Alan Rose going public in claiming the AG was seeking to gag the committee?

Mr Moss--That is what I said in that e-mail, yes. I should again make clear that that related to the submission that the commission had already made to the Wik task force.

Senator BOLKUS--But in the next line you say, `In this context I do not think it was relevant to mention the L&C committee'--I presume this is the legal and cons committee--`review as suggested by the A-G.' Which committee were you referring to there, and which review?

Mr Moss--I honestly cannot remember. It was obviously something that the Attorney had said to me about a legal and constitutional legislation committee inquiry. It may have been in relation to the copyright bill, but I cannot be sure. I simply cannot recall, I am sorry.


Senator BOLKUS--Was this e-mail document actually tabled in response to the return to order?

Mr Moss--I understand not.

Senator BOLKUS--Why not?

Mr Moss--As I understand it, it was not covered by the Senate resolution.

Senator BOLKUS--How do you argue that? We are talking about `AG to AR re: Wik' comments on the file. We are talking about the role of the commission in producing advice to parliamentary committees.

Mr Moss--I have to say that I was not involved in the tabling in the Senate. I was, in fact, away at the time. But I assume that the reason is that the Senate resolution related to the question of the commission making a submission to the joint select committee of the parliament, whereas my e-mail related, as I have said before, to the commission's submission to the Wik task force, which is quite a separate issue.

Senator BOLKUS--What is the process here? When the return to order has to be responded to, documents, of course, are delivered to the minister's office?

Mr Moss--Mr Reaburn, was this particular document delivered to the minister's office?

Mr Reaburn--I think it was. I would have to check that, senator, in order to be absolutely certain. There was a wide range of documents that were looked at in the course of responding to the Senate return to order.

Senator BOLKUS--I would like you to take that on notice--as to whether this document was, in fact, sent to the minister's office. What I would also like is a schedule of any other documents that may have been sent to the minister's office which were subsequently not tabled in response to the return to order.

Mr Reaburn--Yes, I will take that on notice as well.

These outstanding questions were answered, as follows:

The Government has fully complied with the Resolution of the Senate on 1 October 1997 containing an order for the production of documents identified in the Resolution.

It is neither appropriate nor relevant to seek to identify documents which were not covered by the Resolution. [15]

The full e-mail is not on the public record.

1.13 On 4 September, Mr Rose replied to the Attorney-General's letter, offering an unqualified apology for not providing a copy of the Wik Task Force submission to the Attorney-General. Mr Rose went on to state that “the Commission's decision to contribute was made on the basis that many of the associated issues [with native title] have a real and continuing connection with matters dealt with in ALRC 31, the Commission's report on its aboriginal customary law reference and the particular regard which we must have to Australia's international obligations”. After dealing further with the Wik reference, he suggested that the Commission had “traditionally taken a broad view of what it has perceived to be its obligation to provide government and the Parliament with the benefit of the research and learning it has accumulated over an extended range of references”. He asserted that it had been “encouraged by governments and the Parliament to perform such a broad role”, [16] and concluded by requesting that they meet “at the earliest practicable time to clarify these issues ...”. [17]

1.14 No further contact appears to have been made on the subject between the Attorney-General and his department and the ALRC until 18 September. This contact is described in more detail below. [18]

ALRC proposed submission to NTC inquiry

1.15 Also on 4 September, the Native Title Amendment Bill 1997 was introduced into the House of Representatives which referred the bill, on the motion of the Attorney-General, to the NTC for consideration and report by 27 October 1997. [19]

1.16 On 12 September, the ALRC made an oral inquiry to the NTC secretariat about the details of the reference, which included the time-frame of the inquiry, when the matter was referred to the committee, the exact terms of reference, whether public hearings would be held and when the report would be finalised. [20] Later that day, the NTC secretariat faxed details of the inquiry to the Commission, extending an invitation to make a written submission and advising that “If the ALRC is seeking to appear at a public hearing, it should notify the Committee in writing as soon as possible, indicating briefly what issues it would wish to canvass”. [21] The inquiry was subsequently advertised in the national press, on 13 September and following days.

1.17 On 17 September 1997 a letter over Mr Rose's name, but signed by Dr David Kinley, was sent to the NTC advising that the “Commission would be pleased to be invited to present oral evidence to the committee in Canberra”. [22] The letter also canvassed various dates and advised the NTC about the principal issues that the Commission would raise in its submission. Also enclosed with this letter was the first page of the Commission's intended submission, which, the NTC was advised, “sets out the reasons for and the context within which the Commission makes its submission”. [23]

1.18 In response, the NTC secretariat issued an invitation for Mr Rose to attend a public hearing on 3 October. Although dated “17 September”, it appears from documents provided to this committee that this letter was in fact sent to the ALRC by facsimile at 3:57 p.m. on 18 September. [24]

1.19 Also on 18 September the ALRC sent by e-mail a draft submission, accompanied by a letter signed by Ms Stewart, of the ALRC to Ms Meiklejohn, Executive Assistant, Attorney-General's Department. Ms Stewart stated that it was the Commission's intention to send the final copy to the Department, before sending it to the NTC, on the morning of 22 September. [25] She also advised that the submission was “substantially the same as the one given to Senator Minchin on 4 August”.

1.20 Following receipt of the draft submission, Mr Moss rang the ALRC and in the absence of both Mr Rose and Dr Kinley who had primary carriage of the preparation of the submission, spoke to Mr Jeremy Campbell, Secretary of the ALRC. There are two versions of this telephone conversation, one by Mr Campbell and the other by Mr Moss.

1.21 The first is a contemporaneous note for file by Mr Campbell, dated 18 September:

Richard Moss called to express his concerns with the draft submission on Wik he has received today. He explained that he would normally have directed his call to either Alan Rose or to David Kinley, but neither is available (with Alan in Melbourne and David in a meeting until 4:00pm).

I agreed to check and confirm that it is indeed a new submission which the Commission has forwarded to the Attorney as a courtesy.

I confirmed with David Kinley that the submission forwarded to the Attorney was a new submission prepared for the Joint Parliamentary Committee on Native Title. David advised that it was a new submission which basically contained the same points as the previous submission to Senator Minchin's Wik Taskforce but with more supporting argument.

I then rang Richard Moss back to advise him that it was a new submission. He was extremely agitated, advising that the Commission should know better than to prepare another submission on `such a controversial issue' when we were aware of the Attorney's views and that this one was even worse than the first [to the Wik Task Force] because it would become a public document.

He also asked if the `Commission had a death wish'. I was left in no doubt that he was referring to the continued existence of the Commission if it insisted on maintaining its position.

He argued strongly that the Commission was acting outside its statutory authority and dismissed out of hand my suggestions that the Act was capable of a much broader interpretation than he was giving it, and that the Commission was doing no more than continuing a twenty year tradition of commenting on issues within its area of expertise.

Richard Moss then asked if we would at least not put in the submission until the Attorney has had a chance to respond to the Commission's letter of 4 September. I then said `OK', he said `thanks' and hung up before I could go on to explain that that was not an undertaking I could give, but that I would pass on his views to the President.

I then rang Alan Rose in Melbourne and advised him of this call. [26]

1.22 Mr Moss' version of the conversation is contained in a letter to the editor of The Sydney Morning Herald, dated 5 December and published on 12 December. This letter was in response to an article in The Sydney Morning Herald by Mr Richard Ackland, which included several extracts from Mr Campbell's note for file received by Mr Ackland under the Freedom of Information Act. [27] While confirming as accurate parts of the account by Mr Campbell, Mr Moss disputed other aspects, and took issue with important elements of the Ackland article and Mr Campbell's account of the conversation:

In his article, “So much for denials” (Herald, December 5), Richard Ackland omits a number of important issues relating to the conversation between myself and the Australian Law Reform Commission secretary, Jeremy Campbell, and therefore misrepresents the context in which the conversation took place.

Contrary to Mr Campbell's account, I did not threaten the commission but suggested that if the commission made a submission of the kind proposed to the Parliamentary Joint Committee, it would clearly be acting outside its statutory functions and powers and that this was not only improper but also not in the commission's own interests.

Mr Ackland implies that I was “concerned with the actual content of the submission”. In fact, as I have said, my primary concerns were clearly focused on the question of the commission acting outside the functions and powers conferred on it by statute.

Mr Ackland neglects to include the fact that Mr Campbell agreed to my request that the Commission delay lodging its submission until the Attorney-General had responded more fully to its correspondence of September 4. This request constituted the main purpose of the call and is entirely consistent with the view that the decision on whether or not a submission should [be] made was one for the commission itself. [28]

1.23 On Friday, 19 September 1997, Mr Rose formally accepted the invitation from the NTC to present oral evidence. In this letter Mr Rose also indicated that the ALRC intended to have the submission delivered early the following week. He also confirmed the principal points that the Commission had indicated in its letter of 17 September that it intended to cover in its written submission, and advised that they would be raised in oral evidence if the NTC wished. [29]

1.24 In the meantime, also on 19 September, Mr Richard Moss prepared a ministerial briefing to the Attorney-General entitled Australian Law Reform Commission submissions on Native Title. [30] Mr Moss referred to one element of his conversation of 18 September with Mr Campbell as follows: “An officer of the Commission agreed to my request to delay lodging the submission until you [the Attorney-General] had had a chance to consider the issues and respond to Mr Rose's letter”. [But see second last para. of Mr Campbell's statement at para. 1.21 above.] The briefing, which included as attachments the draft ALRC submission to the NTC and a draft letter to Mr Rose, was sent electronically at 2:20 p.m. to Mr Hugh Funder, the Attorney-General's Chief of Staff, [31] so that it might “reach the AG as soon is feasible”. [32] Mr Moss noted that the draft submission had been received “at officer level” and “appears to have been sent purely for information”. [33] Mr Funder then spoke to the Prime Minister's staff, as outlined at para 1.49. The draft letter was not in the end sent to Mr Rose.

1.25 The purpose of the letter, as stated in the briefing note, was “to respond to a letter from the President of the ALRC, and to subsequent developments”. This refers to Mr Rose's letter of 4 September and the proposed ALRC submission to the NTC. The draft letter dealt with the arguments that the ALRC used to justify its submissions and appearances on native title, and reiterated the Attorney-General's views, first advanced in the 28 August letter to Mr Rose, concerning the functions and powers of the ALRC as set out in the ALRC Act. As well, the draft letter formally outlined the principles to be followed when the ALRC sought “to comment or to provide a submission to the Government, a Parliamentary Committee or the like”. [34]

1.26 In the briefing, Mr Moss suggested that “you [the Attorney-General] may wish to respond urgently to the Commission to prevent further submissions on this issue being provided without your prior approval” [emphasis in original]. Mr Moss considered that “it would be appropriate for you [the Attorney-General] urgently to request the Commission not to proceed with its proposed submission, without first seeking your approval”. He continued: view of the contents of the draft submission, it would seem appropriate also for you to indicate that your current inclination would be not to so approve because the issues canvassed in the draft are not directly connected to an existing reference or a past reference which is under active consideration by the Government. [35]

It is noteworthy that the proposal contained in the Attorney-General's letter of 28 August that the ALRC “consult” him before making a submission had been changed in the briefing to “prior approval”.

1.27 Mr Moss concluded by suggesting that the ALRC was not likely to accept such advice without further argument. Notwithstanding his accurate anticipation of the ALRC's reaction, Mr Moss nonetheless recommended that the submission to the NTC not be sent as it would be “likely to prove even more detrimental to progress with the Native Title Amendment Bill”. [36]

1.28 A feature of both the briefing note and the draft letter sent for the Attorney-General's signature was their failure to draw to the Attorney-General's attention the possible parliamentary privilege implications of any attempt to remind the ALRC of the Attorney-General's previous request to consult him, or otherwise to seek to influence a potential witness in respect of evidence before a committee of parliament.

Withdrawal of ALRC from NTC inquiry

1.29 Available documents indicate that discussions took place between the Attorney-General and Mr Reaburn, as Acting Secretary to the Attorney-General's Department, on Monday, 22 September 1997, concerning the proposed submission. Mr Reaburn stated that he suggested to the Attorney-General that he (NR) speak to Mr Rose and the Attorney agreed. [37] Mr Reaburn telephoned Mr Rose on 23 September and 24 September. The ALRC's decision to withdraw from the NTC proceedings was made following these two telephone conversations, of which there are four different records:

  • background briefing to the Attorney-General, written by Mr Reaburn on 29 September 1997, which established that the telephone conversations had taken place on 23 and 24 September 1997, tabled in the Senate on 2 October 1997 and quoted below;
  • first version of a file note, written by Mr Reaburn, which was sent to Mr Hugh Funder in the Attorney-General's office by e-mail on 29 September 1997 at 4:48 p.m., tabled in the Senate on 2 October 1997. This refers only to the 23 September 1997 telephone conversation and is not reproduced because its contents are subsumed by the second version;
  • second version of file note, written by Mr Reaburn, sent to Mr Funder in the Attorney-General's office by e-mail on 29 September 1997 at 5:07 p.m., which refers to both the 23 and 24 September 1997 telephone conversations. This document, Note of a conversation with Alan Rose on 23 September 1997, was released by the Attorney-General under cover of a press statement on 1 October 1997; it was tabled in the Senate on 2 October 1997; in the House of Representatives on 20 October 1997; and is quoted in full below; and
  • Telephone conversations between Norman Reaburn and Alan Rose on 23 and 24 September, written by Mr Rose, attached to a letter to the Attorney-General of 3 November 1997 [38] disputing the contents of the note for file included in the tabled documents of 2 October 1997 and also quoted in full below.

1.30 The briefing note to the Attorney-General and the file notes appear to have been prepared as a result of a front page article in The Sydney Morning Herald on 29 September. This article alleged that the Government had suppressed a submission from the ALRC to the NTC inquiry by forbidding the Commission putting it before the NTC. [39] In an additional article in the same edition, The Herald suggested that, in the ALRC's opinion, Australia would be taken to the United Nations for breaches of its international human rights obligations. [40]

1.31 The Attorney-General's office contacted the Attorney-General's Department in a series of urgent e-mails, [41] requesting a suggested reply to a Possible Parliamentary Question (including words for the Prime Minister); advice on the statutory powers of the Australian Law Reform Commission; advice on a possible breach of parliamentary privilege and advice for the office of the Minister for Foreign Affairs on Australia's international obligations.

1.32 In his initial background briefing to the Attorney-General on the morning of 29 September 1997, Mr Reaburn provided this account of his conversation with Mr Rose:

I spoke to Mr Rose on 23 September, and again on 24 September. I advised him of your view about the extent of the Commission's functions, and your reactions to the issue. In the course of the first conversation, Mr Rose canvassed the implications of not proceeding with the submission, and in our second conversation, we spoke only of possible methods of handling the fact that the Commission's not proceeding with the submission would become public. [42]

1.33 Later the same day, Mr Reaburn sent a fuller account of his conversation with Mr Rose, the second version of which, incorporating a brief paragraph referring to the call of 24 September, is as follows:

Note for file:

Note of a conversation with Alan Rose on 23 September 1997

I began by asking AR what was the matter, what was niggling him. He responded to that with a lengthy statement of complaint about the Department and the way in which it dealt with the ALRC. His complaints centred on lack of responsiveness and delays. I discussed with him the possibility that regular meetings between he and I might help resolve some of these issues and that we could discuss and propose procedures that could help to minimise any potential areas of difficulty. For example, I asked him if he had received a copy of the recent submission on references. When he said he had not, I undertook to send him one and told him that in future the Commission would receive drafts of such submissions for possible comment before they were sent to the Attorney. We agreed to have the first of our meetings on 3 October 1997.

I spoke with him about the submission to the PJC on Native Title. I reminded him of the exchange of correspondence that had already occurred between the Attorney and he [AG's letter of 29 [sic] August, AR's letter of 4 September]. I told him that the Attorney regarded the justification for making the submission to the Wik Task Force as intellectually untenable. I told him that he was “at a cross-roads” — the Commission could go forward with the submission to the PJC and he would receive an “unhappy letter” from the Attorney. Or they could not go forward, and he would not receive any letter — instead he and I could sit down and try to work out a set of ground rules relating to submissions which would satisfy all the parties. AR expressed concern that I might wish to suggest that the Commission should be limited to only making submissions on matters relating to current references. I told him that it was not my wish to be so restrictive.

I then suggested to AR that he think about what I had said to him and that I would call him later in the day. In fact, I was not able to speak to him until the following day, when he indicated to me that the Commission would not be going ahead with its submission.

Conversation was generally quiet and friendly. [43]

1.34 On 3 November, in an attachment to a letter to the Attorney-General, Mr Rose disputed the contents of Mr Reaburn's 29 September record of the September conversations. Mr Rose wrote:


  • In regard to Mr Reaburn's note for file included in the tabled documents of 2 October I have a number of comments:
  • there were conversations on 23 and 24 September. I was in Canberra on 23 and Sydney on 24 September
  • with respect to the complaints I made to Mr Reaburn, he asked specifically whether these were about the Attorney-General or the Department, to which I responded it was the Department with whose communication performance the ALRC had difficulties
  • on 23 September in response to the choice offered to the ALRC with respect to its proposed submission to the Joint Parliament Committee on Native Title, as recorded in the second paragraph of Mr Reaburn's note for file, I responded, in addition to what he has recorded, that I saw difficulties in not making the submission. The Joint Parliament Committee had already fixed a time for the ALRC's appearance and was expecting a submission, something would therefore need to be said to them. Without giving Mr Reaburn an answer to the choice he was putting to me, I asked that he inform the Attorney-General of the content of our conversation. Mr Reaburn said that he would do this and phone me back
  • on 24 September Mr Reaburn telephoned to inform me that the Attorney-General wished to make peace and was prepared to consider a set of guidelines which we might draw up. In responding to the alternative that the ALRC hold its draft written submission to the Joint Parliament Committee, I asked what Mr Reaburn or the Attorney-General proposed to say to the Committee. Mr Reaburn said he did not know and asked what the ALRC thought. I said that we would have to let the Committee know that we would not now be appearing. In response to any query from the Committee I said that we would say that we had provided advice on Wik to the Government and the Committee might seek access to that from the Attorney-General. I mentioned in addition that of course the Committee might compel us to appear.
  • I agreed with Mr Reaburn that the ALRC would let the Committee know in writing and that we might discuss the proposed guidelines over lunch on Friday 3 October. [44]

1.35 Again, it is noteworthy that neither Mr Reaburn's account of the conversations, nor Mr Rose's, adverted to the parliamentary privilege implications of withdrawing from the NTC process.

1.36 On the afternoon of 24 September, Dr Kinley called the NTC secretariat to advise that, contrary to its acceptance on 19 September 1997, the ALRC wished to withdraw from the NTC inquiry. [45] Following the telephone call from Dr Kinley, Mr Rose advised the NTC by facsimile that the ALRC wished to withdraw from the hearing of 3 October and would not be making a written submission. [46] No reasons were provided in the letter. Mr Peter Grundy, Secretary of the NTC, stated that, during the telephone conversation of 24 September 1997, he did not ask the Commission for an explanation of the reasons for withdrawing from the hearing on 3 October 1997. [47]A submission provided by the Northern Land Council, dated 6 October 1997, was subsequently received by the NTC. This contained an attachment at Appendix 3, Comments on the Native Title Amendment Bill 1997, which purported to be an ALRC document of 19 pages dated 22 September 1997. [48] While this was commonly referred to as the ALRC's “submission”, it was not a submission to the NTC by the ALRC. Mr Rose later acknowledged before the Senate Legal and Constitutional Legislation Committee that the “comments” were in fact the proposed ALRC submission to the NTC. [49] The committee does not know how the Northern Land Council came into possession of the ALRC submission.

Advice to Attorney-General

1.37 1.38 As noted earlier, [50] the activities of the ALRC and the actions by the Attorney-General and his officials in respect of those activities emerged into the public domain on 29 September 1997, as a result of articles in The Sydney Morning Herald querying the propriety of the actions of the Attorney-General and his officials, and the functions and powers of the ALRC. It appears from the documents that only at this stage did the attention of both the Attorney-General and his officers, and the ALRC, turn to parliamentary privilege and possible contempt.In addition to the briefing of 29 September provided by Mr Reaburn, on 1 October 1997 the Chief General Counsel, Mr Henry Burmester, provided the opinions the Attorney-General had sought on 29 September on parliamentary privilege and on the functions and powers of the ALRC. [51] They were made public by the Attorney-General as an attachment to a press release on that day and were subsequently tabled in the Senate on 2 October and in the House of Representatives on 20 October 1997. The opinion on the functions and powers of the ALRC is discussed later in this chapter.

1.39 1.40 The opinion on parliamentary privilege addressed the question whether action taken by the Attorney-General could constitute an offence under the Parliamentary Privileges Act 1987. In Mr Burmester's view, no action taken by the Attorney-General in relation to the Commission's proposal that it make a submission to the NTC constituted an offence under the Privileges Act. In the opinion, he advised in part: [52]

...the well established view of the Attorney-General's Department, with which I agree, is that the Minister has a role in administering bodies of that kind [statutory bodies] even where the body has a very high degree of independence conferred up it by statute.

...In the present circumstances, the Attorney-General simply fulfilled his responsibility to act in relation to the Commission when, in his view, it was not acting in accordance with the ALRC Act. The Acting Secretary's action can amount to no more than the provision of assistance to the Attorney-General in fulfilling that responsibility. Accordingly, in my view there is no reasonable basis for arguing that either the Attorney-General or the Acting Secretary engaged in conduct of a nature which is proscribed by section 12 of the Privileges Act.

1.41 Mr Burmester also commented on two advices of Mr Harry Evans, Clerk of the Senate, dated 29 September 1997, concerning interference with potential witnesses before Parliamentary committees. [53] These advices, in general terms, had been sought from Mr Evans by the Leader of the Opposition in the Senate. [54] The Clerk's views are outlined and discussed in Chapter Two, in the context of advice sought and received by the Committee of Privileges.

1.42 Mr Burmester agreed with Mr Evans “that conduct which is lawful can nevertheless constitute an `improper means' of influencing a witness for the purposes of section 12 of the Privileges Act”. He added:

However, the conduct referred to ... was not merely lawful but was directed at discharging the Attorney-General's constitutional duties to ensure that a statutory authority was acting within the powers conferred upon it by the Parliament. [55]

1.43 He therefore suggested that there was “no basis in the information ... for characterising the conduct of the Attorney-General or the Acting Secretary as a `threat' or other `improper means' of influencing a person within the meaning of section 12 of the Privileges Act. It also follows that there could be no contempt of either House of the Parliament in these circumstances”. [56]

Further communications between ALRC and NTC

1.44 On 30 September, Dr Kinley of the ALRC approached the NTC to seek information about the possibility of an inquiry being conducted into the ALRC, as a potential witness before a parliamentary committee, being improperly interfered with. The NTC secretariat responded by faxing copies of the Resolutions on Parliamentary Privilege agreed to by the Senate on 25 February 1988. [57] Dr Kinley stated that “Mr Grundy [on 30 September] encouraged the Commission to consider writing to the committee setting out the reasons for its withdrawal from giving evidence...”. This file note was signed and annotated: “This recollection is constructed from attached file note and conversation (recorded at the time – 30/9/97) and was written by me on 31/10/97”. [58]

1.45 On the evening of 30 September, the NTC held a private meeting at which the committee considered a motion to re-invite the ALRC to the public hearing to be held on 3 October; that motion was not agreed to. [59] The matter of privilege, raised by Senator Bolkus earlier the same day, was referred to this committee on 2 October.

Further communications between ALRC and Attorney-General

1.46 Both Houses of Parliament adjourned for a fortnight on 2 October. On resumption of sittings on 20 October, the Attorney-General tabled in the House of Representatives documents which had been the subject of the Senate's Return to Order of 2 October. On 3 November 1997 Mr Rose wrote to the Attorney-General in response to the tablings. In addition to contesting Mr Reaburn's account of the telephone calls of 23 and 24 September, [60] Mr Rose advised the Attorney-General that he had a different interpretation as to whether the Commission sought to invite itself to make a written submission to the NTC and also listed a chronology of the ALRC's dealings with native title matters, dating back to September 1993. He provided the Attorney-General with copies of documents held by the ALRC which had not been tabled either in the House of Representatives or in response to the Senate Return to Order of 2 October 1997. [61] Mr Rose also provided these documents to the Committee of Privileges in response to its invitation to make comments on the reference.

1.47 On 13 November 1997, Mr Rose again wrote to the Attorney-General noting that he had not received a reply to his letter of 4 September. He further noted the opinions produced by the Chief General Counsel released on 1 October 1997 and tabled in the Senate on 2 October [62] and attached a comment, dated 12 November, detailing the Commission's interpretation of its functions and powers and responding to the advice of the Chief General Counsel. [63] The comment is discussed below.

Possible involvement of Prime Minister's office

1.48 On 29 September 1997, as a result of a question from the Leader of the Opposition, the Hon Kim Beazley MP, to the Prime Minister, the Hon John Howard MP about the ALRC, Mr Howard stated that he was not aware of the ALRC matter until The Sydney Morning Herald article of that day, [64] when Mr Williams first mentioned the matter to the Prime Minister. [65]

1.49 On 30 September 1997, Mr Howard added to his previous answer, stating to the House of Representatives that on 19 September Mr Funder, from the Attorney-General's office, spoke to Mr Howard's principal private secretary and one of the Prime Minister's senior advisers, about the ALRC submission. However, none of the Prime Minister's staff spoke with the Attorney-General, staff of the Attorney-General's Department or staff at the ALRC. The Prime Minister added that “no action was taken by staff in [his] office in relation to whether or not the ALRC's proposed presentation of the submission to the joint parliamentary committee should proceed”. [66]

1.50 The Prime Minister further clarified this information on 1 and 2 October, when he stated that he had been sent a “seven-page minute paper” in August, which included a brief comment on concerns about the ALRC submission to the Wik Task Force, and that this fact had been drawn to his attention only on 1 October. [67]

Summary of relevant events

1.51 The key events from this account that led to the present reference are:

Key Events
4 August: ALRC makes submission to Wik Task Force following its own approach to the Task Force seeking information on making a formal submission.
28 August: Letter from Attorney-General, the Hon. Daryl Williams, AM QC to Mr Alan Rose, President of ALRC, setting out Attorney-General's interpretation of functions of ALRC, saying that the submission to Wik Task Force was unrelated to any of ALRC's current references and requesting ALRC to consult Attorney-General before the Commission makes submissions in the future that are unrelated to current references.
4 September: Response to Attorney-General from Mr Rose, disputing Attorney-General's interpretation of functions of ALRC and Attorney-General's view that ALRC's submission to Wik Task Force was unrelated to any current reference;

Native Title Amendment Bill 1997 referred to NTC.

12 September: ALRC approaches NTC secretariat; NTC secretariat sends invitation to provide submission, and asks whether ALRC seeks to appear before NTC.
17 September: ALRC writes to Secretary of NTC confirming that ALRC would be pleased to be invited to present oral evidence to Committee. The same letter canvasses various dates and outlines issues that ALRC intends to raise in submission.
18 September: Draft submission from ALRC to NTC is sent to Attorney-General's Department;

After receipt of draft submission, a conversation occurs between Mr Moss, Acting Deputy Secretary of Attorney-General's Department, and Mr Campbell, Secretary of ALRC;

NTC issues a formal invitation to ALRC to present oral evidence. This invitation is contained in a letter dated 17 September but sent by facsimile on 18 September.

19 September (Friday) Mr Rose writes to NTC Secretary accepting NTC invitation to present oral evidence.

Mr Moss sends briefing note to Attorney-General and draft letter from Attorney-General to Mr Rose, concerning submissions from ALRC and setting out basis upon which the ALRC should make submissions in future.

22 September (Monday): Mr Reaburn confers with Attorney-General. Mr Reaburn undertakes to convey Attorney-General's views to Mr Rose.
23 September: Mr Reaburn telephones Mr Rose.
24 September: Mr Reaburn telephones Mr Rose again;

ALRC withdraws from NTC inquiry.

29 September: Dispute between Attorney-General and ALRC concerning the Commission's submission and appearance before NTC emerges into the public forum for the first time.
30 September: ALRC contacts NTC regarding its withdrawal from NTC inquiry and issue of parliamentary privilege.

Functions and powers of ALRC

1.52 As is clear from this account, a primary element in this reference has been the differing perceptions of the functions and powers of the ALRC. The next section of this chapter begins by reciting the relevant portions of the ALRC Act 1996 and outlining the involvement that the ALRC has had with issues affecting Aboriginal Australians. It then goes on to outline the views of the functions of the ALRC as contained in the submissions from the Attorney-General, the Acting Secretary to the Attorney-General's Department, Mr Reaburn, the Chief General Counsel, Mr Burmester and the ALRC. It concludes with a summary of Mr Reaburn's submission to the committee.

Provisions of Australian Law Reform Commission Act 1996

1.53 The Australian Law Reform Commission is an independent statutory authority which was originally established as the Law Reform Commission, under the Law Reform Commission Act 1973. This legislation was superseded by the Australian Law Reform Commission Act 1996 which came into effect on 11 November 1996 and prescribes the ALRC's functions, as follows:

  1. The Commission's Functions
  2. The Commission has the following functions in relation to matters referred to it by the Attorney-General:
    1. to review Commonwealth laws relevant to those matters for the purposes of systematically developing and reforming the law, particularly by:
      1. bringing the law into line with current conditions and ensuring that it meets current needs; and
      2. removing defects in the law; and
      3. simplifying the law; and
      4. adopting new or more effective methods for administering the law and dispensing justice; and
      5. providing improved access to justice;
    2. to consider proposals for making or consolidating Commonwealth laws about those matters;
    3. to consider proposals for the repeal of obsolete or unnecessary laws about those matters;
    4. to consider proposals for uniformity between State and Territory laws about those matters;
    5. to consider proposals for complementary Commonwealth, State and Territory laws about those matters.
  3. It is a function of the Commission to report to the Attorney-General on the results of any review or consideration it carries out under subsection (1), and to include in the report any recommendations it wants to make.

1.54 In addition, the Act, at section 26, states that:

26. Commission to comply with certain requirements and directions

  1. If a House of the Parliament, or a Parliamentary Committee, requires the Commission to give it any information about the performance of the Commission's functions, or the exercise of its powers, the Commission must comply with the requirement.
  2. The information that may be required under subsection (1) includes information about the Commission's expenditure or proposed expenditure.
  3. The Commission must comply with a direction of the Attorney-General under subsection 20(3) or 22(2).

These directions are:

20. Reference to the Commission:

20(3) The Attorney-General may give the Commission directions about the order in which it is to deal with references.

22. Interim reports:

22(2) The Attorney-General may, before the Commission makes its report on a reference, direct it to make an interim report to the Attorney-General on its work on the reference.

ALRC and indigenous issues

1.55 The matters which are central to this dispute are difficult to resolve, involving two competing principles. On the one hand, there is, as the Chief General Counsel has advised, [68] a duty imposed on a minister and his departmental officers to ensure that an organisation for which that minister has statutory responsibility acts lawfully. On the other, as has been pointed out by the Clerk of the Senate and acknowledged by the Chief General Counsel, an act which is otherwise lawful can nonetheless constitute a contempt. [69]

1.56 Resolution of such a dilemma is even more difficult if, as in the present case, there is a dispute between the two parties as to the scope of the legislative authority governing the operation of the statutory body. Specifically, the argument between the Attorney-General and his officers and the ALRC concerned the statutory basis upon which the ALRC could have a continuing interest in issues affecting indigenous Australians.The ALRC had considered issues that relate to indigenous Australians on a previous occasion. Report ALRC 31, tabled on 12 June 1986, arose from a reference on the recognition of Aboriginal customary law. According to Mr Rose in the letter he sent on 4 September to the Attorney-General, responding to the Attorney-General's letter of 28 August, ALRC 31 is still under consideration by the Government. [70]In addition, Mr Rose suggested that a current reference on equality before the law provided a statutory foundation for making submissions on Native Title, and that another current reference on the adversarial system of civil litigation also provided a foundation for a consideration of Native Title because that reference would involve “examining first instance tribunal decision making powers, including those of the Native Title Tribunal”. [71]

1.57 1.58 1.59 It appears, however, that the ALRC had requested a reference specifically on the issue of Native Title on two occasions, the first under the previous government, and again in February 1997, under the present government. According to the Attorney-General, on both occasions the request was declined. [72]

Views of Attorney-General on ALRC's functions and powers

1.60 As indicated above, the Attorney-General has consistently maintained that the actions taken by him and his officials with regard to the ALRC submission to, and appearance before, the NTC were based on the view that the ALRC has only such functions and powers as were set out in the Australian Law Reform Commission Act 1996. The ALRC was therefore entitled to make submissions to inquiries only after first consulting the Attorney-General and only on matters upon which the Commission had an active, direct reference, given to the ALRC by the Attorney-General. This view, put forward in the Attorney-General's letter to the ALRC of 28 August 1997, [73] was reiterated in a letter to the ALRC from the Attorney-General on 28 October 1997 concerning an invitation to the ALRC to make a submission to the WA Legislative Council Select Committee on Native Title Rights in Western Australia . [74] The circumstances leading to this second response were as follows.

1.61 On 21 October 1997 the ALRC received an invitation from the Western Australian committee to make a submission. On 24 October 1997, Dr David Kinley of the ALRC wrote to the Attorney-General's office, seeking advice from the office as to what the ALRC's response might be. [75] The Attorney-General replied on 28 October, reiterating his comments of 28 August that the Commission's functions are confined to matters referred to it by the Attorney-General. He noted that the select committee's terms of reference were not the subject of any reference by him or by any of his predecessors and observed that:

the commission is not empowered under its Act, therefore, to make a submission on that subject to the Select Committee or any other body.

The Attorney-General concluded:

If the Commission were to make a submission it would, in my view, be doing so without proper authority. However, as you may be aware, the Australian Law Reform Commission Act 1996 does not provide for the Attorney-General to direct the Commission. [76]

1.62 Following receipt of this letter, the ALRC responded to the Western Australian Committee, nominally declining to make a submission. It did, however, include with its response a copy of its submission to the Senate Legal and Constitutional Legislation Committee on the constitutionality of the Native Title Amendment Bill 1997, and a copy of the relevant Hansard transcript of the Commission's oral evidence to the Senate committee on 24 October 1997. [77]

Views of Chief General Counsel and Acting Secretary of Attorney-General's Department on ALRC's functions and powers

1.63 In his opinion of 1 October, Mr Burmester supported the Attorney-General's views on the ALRC's functions and powers, for the following reasons:

  1. The Commission has such functions and powers as are conferred on it by the ALRC Act 1996.
  2. At no stage did the Attorney-General refer to the ALRC a matter related to the Native Title Amendment Bill 1997.
  3. The reference on customary law and the reference on equality before the law, which had been used by the ALRC as a basis to justify making a submission in the Native Title Bill, have each been the subject of a final report. When this occurs the reference is spent and the Commission is functus officio. Consequently, those references are spent. The Commission cannot, therefore, rely upon them as providing a foundation upon which to base a submission.
  4. In any case, Mr Burmester noted that subsection 10(1) of the Australian Law Reform Commission (Repeal, Transitional and Miscellaneous) Act 1996 provides that:
  5. 10(1) A reference by the Attorney-General to the LRC under the LRC Act that had not been finally dealt with by the LRC immediately before the commencement time continues to have effect after that time as if it had been made to the ALRC under the ALRC Act.

    Because the customary law and equality before the law references were finally dealt with by the LRC before the LRC was reconstituted as the ALRC, “[t]he clear inference to be made from subsection 10(1) of the Transitional Act is that those references do not operate in relation to the Commission as it is now established”. [78]

  6. The terms of reference for the ALRC review of the adversarial system of litigation concerns the system as it stands at present. The terms of the reference given to the ALRC are not concerned with the Commonwealth's power to enact the Native Title Bill or with the effect the Bill will have if it is enacted. Consequently, there is no nexus between the reference and the proposed legislation. As a result this reference does not provide a power to make comments on the Native Title Amendment Bill 1997.
  7. Mr Burmester concluded that, as a result, the ALRC had no power to make a submission to the NTC, although he observed that “this does not mean, however, that a Parliamentary Committee could not summons a member of the Commission to appear before it or require the presentation of documents in the possession of the Commission”. [79]

This latter observation accords with the views expressed by the President of the Senate when giving precedence to the matter of privilege.

1.64 The Chief General Counsel's opinion of the functions of the ALRC was also shared by the then Acting Secretary of the Attorney-General's Department, Mr Reaburn. [80] In response to an invitation from this committee to make a submission, Mr Reaburn submitted that the requirement imposed on the Commission by the provisions of the ALRC Act circumscribed the power of the ALRC to make a submission to a parliamentary committee, confining the ALRC to “matters referred to it by the Attorney-General”. To support this claim, Mr Reaburn referred to the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs 1996 inquiry, on which the amended Act was based, which, according to Mr Reaburn, specifically rejected proposals to include matters referred to the Commission by parliamentary committees, or a self-referencing power. [81]

ALRC's response to Chief General Counsel's opinion

1.65 Mr Rose responded formally to Mr Burmester's arguments in a letter of 13 November to the Attorney-General, which enclosed comment on the ALRC's interpretation of its functions and powers and responded to the Chief General Counsel's advice. The comment noted that Mr Burmester's opinion:

... relies for its conclusions on the taking of the narrowest and most literal interpretation possible of the language of the Australian Law Reform Commission Act 1996 ...

Specifically, the comment suggested that the functus officio doctrine “has limited application to administrative functions and only where, on the true construction of a relevant statute, there is no further function under the Act for the authorised person to perform”. [82] It continued:

Section 26(1) of the ALRC Act gives no temporal limitation to the assistance which the Commission is to give to Parliament about the performance of its functions or the exercise of its powers. [83]

1.66 The comment also challenged the Chief General Counsel's view that the Transitional Act rendered the ALRC powerless to exercise any powers in relation to references on which it had reported before the commencement of the ALRC Act. It observed that Mr Burmester's conclusion depended on inferring an intention on the part of Parliament to limit the exercise of powers under the new Act to references still in train at the time of commencement of the ALRC Act. It suggested that the relevant section should be read as “facilitative in nature so as to ensure that references in train would not need to be renewed”. [84]

1.67 The comment also rejected the argument that there was no nexus between the terms of the reference dealing with the adversarial system of justice and the proposed submission from the ALRC to the NTC, stating that such a conclusion could proceed only from “the narrowest of readings of the terms of the reference”. [85]

1.68 The comment then observed that:

The ALRC has over many years made a number of submissions to committees of the parliament, mostly in response to requests from those committees. Since July 1993 the Commission has made 103 such submissions, as well as provided oral evidence before numerous Parliamentary Committees. Until we received the Attorney-General's letter of 28 August 1997 no one has ever questioned this practice. [86]

Mr Reaburn's remaining submissions

1.69 In addition to providing comment on the functions and powers of the ALRC, Mr Reaburn provided an analysis of his telephone conversations of 23 and 24 September with Mr Rose. He stated that their purpose was:

... to encourage and to seek to persuade the Commission to conform to its statutory role and functions under the Australian Law Reform Commission Act 1996. Therefore, my conversations with Mr Rose were conducted as a matter of public duty and could not reasonably be regarded as improper in any sense. [87]

He stated, too, that the same rationale of public duty applied to the conversation of 18 September 1997 between Mr Moss and Mr Campbell. [88]

1.70 He then went on to deal with the questions of privilege and possible contempt. After suggesting that the actions of himself and other officers of the Attorney-General's Department, including Mr Moss, could not be construed as improper Mr Reaburn concluded his submission by suggesting that:

In the present case, none of the relevant conduct by myself or any of my Departmental officers had any intent to interfere with the work of the relevant Senate Committee nor the ability of Mr Rose or the ALRC to appear as witnesses before it. Nor was it inherently likely to interfere with that work or the ability of Mr Rose to appear as a witness. As the Australian Law Reform Commission Act contains no power for the Attorney-General to give general directions to the Commission, a matter of which both Mr Moss and I were at all times keenly aware, there was no possibility inherent in any of our conversations with Commission officers of an ability to direct or compel, simply the possibility that through a discussion of our view of the Commission's area of authority we might persuade Commission officers to a similar view. The ability of the Committee to receive evidence from the ALRC was not impaired, if it were to choose to seek it....The decision of the ALRC not to appear was made on their own account and was not the result of any direction nor as the result of and improper conduct within the meaning of the Senate's resolution on privileges. [89]


[1] Journals of the Senate, 2 October 1997, p. 2611.

[2] Submissions and Documents, p. 10.

[3] ibid., pp. 3-4.

[4] ibid.

[5] . Submissions and Documents, pp. 18-21.

[6] ibid., pp. 22-106.

[7] ibid., pp. 107-119.

[8] ibid., p. 120.

[9] ibid., p. 121-125.

[10] ibid., pp. 15-17.

[11] ibid., p. 71.

[12] ibid., p. 27.

[13] ibid., p. 141.

[14] Legal and Constitutional Legislation Committee Hansard, 13 November 1997, pp. L&C 110-111.

[15] Legal and Constitutional Legislation Committee additional information volume 2, Attorney-General's portfolio, March 1998, p. 208.

[16] Submissions and Documents, p. 28.

[17] ibid., p. 29.

[18] Report, paras. 1.20-1.22.

[19] House of Representatives, Votes and Proceedings, 4 September 1997, No. 109, p. 1960.

[20] Submissions and Documents, p. 31.

[21] ibid., pp. 33-34.

[22] ibid., pp. 37-38, and 113-115.

[23] ibid., pp. 113-115.

[24] ibid., p. 35.

[25] ibid., p. 43.

[26] ibid., p. 44.

[27] ibid., p. 155.

[28] The Sydney Morning Herald, 12 December 1997, Letters to the Editor.

[29] Submissions and Documents, p. 45.

[30] ibid., pp. 143-145.

[31] ibid., p. 142.

[32] ibid.

[33] ibid., p. 144.

[34] ibid., p. 146.

[35] ibid., p. 145.

[36] ibid.

[37] Legal and Constitutional Legislation Committee Hansard, 13 November 1997, pp. L&C 108-121.

[38] Submissions and Documents, p. 60.

[39] "Blow to Howard on Wik report", The Sydney Morning Herald, 29 September 1997, p 1.

[40] "Wik law may see Australia taken before UN", The Sydney Morning Herald, 29 September 1997, p 2.

[41] Submissions and Documents, pp. 148-154.

[42] Senate Return to Order 2 October 1997, document 8, page 3.

[43] Submissions and Documents, p. 151.

[44] ibid., p.98.

[45] ibid., pp. 92-93.

[46] ibid.

[47] ibid., p. 111.

[48] Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Island Land Fund, Submission No. AB1358, Mr Ron Levy, Solicitor, Northern Land Council, plus attachments.

[49] Legal and Constitutional Legislation Committee Hansard, 24 October 1997, p. 322.

[50] Report, para. 1.30.

[51] Submissions and Documents, pp. 127-136.

[52] ibid., pp. 130, 131, paras. 10 & 12.

[53] ibid., p. 131, para. 13.

[54] ibid., pp. 5-9.

[55] ibid, p. 131, para. 13.

[56] ibid.

[57] ibid., pp. 49-54.

[58] ibid., pp. 92-93.

[59] ibid., p. 107.

[60] Report, para. 1.33.

[61] Submissions and Documents, pp. 65-100.

[62] Report, para. 1.39.

[63] Submissions and Documents, pp. 101-6.

[64] *House of Representatives Hansard, 29 September 1997, p. 8637.

[65] *ibid, p. 8636.

[66] *ibid. p. 8741.

[67] *ibid, 1 October 1997, p. 8931. The minute paper read in part: 'The Australian Law Reform Commission has submitted a critical submission addressing supposed breaches of international treaty obligations and questioning the constitutional basis of the legislation'; 2 October 1997, p. 9078.

[68] Submissions and Documents, pp. 132-136.

[69] ibid., pp.8, 131.

[70] ibid., p. 28.

[71] ibid., p. 138, paras 1.3-1.4.

[72] *House of Representatives Hansard, 1 October 1997, p. 8902

[73] ibid., p. 28.

[74] ibid., p. 58.

[75] ibid., p. 55.

[76] ibid., p. 58.

[77] ibid., p. 59.

[78] ibid., p. 135, para. 9.

[79] ibid., p. 136, para. 13.

[80] ibid., p. 121-125.

[81] ibid., p. 122.

[82] ibid., p. 103, para. 9.

[83] ibid.

[84] ibid., p. 104, para. 13.

[85] ibid., p. 104, para. 16.

[86] ibid., p. 105, para. 25.

[87] ibid., p. 124.

[88] ibid., and see Report, paras. 1.20-1.22.

[89] Submissions and Documents, pp. 124-125. (Note: References are to final version of printed Hansard)