Ian Gilfillan: Australian Democrats in the SA Parliament

	Extract from Hansard Legislative Council 31 May 2001

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 2001 Autumn Sitting Index Browse by Subject Search all Democrats material About the SA Parliament Hansard on line
		Attorney General News

The Hon. IAN GILFILLAN: I indicate the Democrats' support for this batch of legislation and would like to acknowledge the Attorney-General's request that the bill be dealt with by parliament by 7 June, indicating that we will do our best to expedite that aim. Corporations Law was one area that our colleagues of 100 years ago felt was best dealt with at state level. While this may have been the case at the beginning of last century, it is certainly not true at the beginning of this century. In the early 1980s an attempt was made to put Corporations Law on an even footing across the nation. This was reviewed in the late 1980s, when a new scheme was established. This is the scheme that currently operates in Australia.

It involved the establishment of uniform legislation in each state, with complementary legislation at a federal level where enforcement of Corporations Law was the responsibility of the Australian Securities and Investments Commission, the Federal Police and the Commonwealth Director of Public Prosecutions. The recent High Court rulings in Wakim and, more importantly, Hughes have brought into question the ability of the commonwealth agencies to enforce state laws in certain circumstances. This has resulted in talks amongst the states, territories and the commonwealth on how to address in a legislative sense the problems that arise from the High Court rulings. The package of bills we currently have before us is the result of these discussions.

It is proposed that the state and territory parliaments refer power over Corporations Law to the commonwealth. As I understand it, legislation has already been passed in New South Wales and is currently being dealt with by other parliaments. However, this legislation is only a temporary measure. In five years, if the scheme needs to be amended, it will come back before parliament. In fact, I think it virtually will have to be addressed by parliament in five years as a sort of sunset clause. It is, however, hoped that within five years a more permanent solution will be agreed upon, which will inevitably involve constitutional change.

One of the concerns raised with referring Corporations Law to the commonwealth regards the relationship between commonwealth and state legislation. Where there is a conflict between state and commonwealth law under section 109 of the Constitution, the commonwealth law prevails. This, we believe, causes a problem as there are a number of areas where states have legitimate claims that in some circumstances state laws should prevail.

Section 5(g) of the commonwealth Corporations Bill 2001 addresses this, and I quote from the explanatory memorandum of that bill, which is currently before the House of Representatives and is one of the `tabled text' addressed by the bill before us:

[Clause] 5.63 [bill clause 5(g)] will limit or qualify the operation of the corporations legislation so that it no longer purports to have an operation that would directly be inconsistent with relevant state or territory law.

This clause specifies that where existing state acts are inconsistent with the new commonwealth legislation there will be a roll- back with the commonwealth legislation to the extent of the inconsistency. There are also provisions for new state legislation to be declared a `corporations legislation displacement provision', which will trigger the roll-back of the commonwealth legislation where there is an inconsistency.

I share with the Attorney some concern, and it appears to me that it is currently a minority view in states that they do need to jealously guard their areas of mandate, their areas of authority, from an expansionist philosophy which exists in Canberra with both Labor and Liberal governments, possibly more predominantly with Labor. However, it is an ongoing battle to retain a degree of autonomy in individual states' powers to determine such critical issues as industrial relations, environmental legislation and other areas where it is appropriate in my view for each state to have its power to determine its own situation and its future.

However, that does not deny the fact that for us to have six or so disparate bodies of legislation dealing with Corporations Law in Australia would be chaos. There are very few corporations which purely operate within the one state, so there would need to be at least a substantial degree of uniformity for there to be anything like an operable corporations structure in Australia. So, not reluctantly but accepting the logic and justification for it, we do support these measures, which are necessary to enable there to be uniform legislation and for supervision and control to be in the hands of the commonwealth as outlined in my previous comments.

The situation is compounded because, with the High Court judgments, it was shown that the regulatory, supervisory and policing powers could not be exercised by the commonwealth on state jurisdiction, which had been working reasonably well. So, that is the substantial fly in the constitutional ointment, and it may well be that the correction for that will be that those powers are conferred in a constitutional amendment. But I am not committing myself or the Democrats to that. I think we need to be extraordinarily cautious before wholeheartedly supporting a constitutional change. It is a step in the dark where, once the power exists, if it is given constitutionally, it is difficult to know how tightly defined the boundaries of that authority would be.

So, Mr President, although they are not actually qualifying remarks as far as the legislation goes, I believe this legislation is essential, and it has been very efficiently explained to us by officers from the Attorney's office, and I congratulate them on taking the time and doing that so diligently. We express support for the legislation. It is probably unnecessary for us to indicate support for each of the associated bills, but it will probably save the time of this chamber if I indicate at this stage that we will be supporting in their entirety orders of the day Nos 19, 20, 21 and 22, the bracket of four corporations bills before the Council. We have no criticism or questions relating to them and hope that they pass through this chamber expeditiously.