Royal Commissions (Extraterritorial Application) Amendment Bill

Second Reading

(Continued from 20 June 2018.)

I rise to speak on the Royal Commissions (Extraterritorial Application) Amendment Bill 2018. The government will not be supporting the bill. This is a bill presented by the opposition seeking to insert a new section 3A into the Royal Commissions Act 1917 to state:

This Act applies outside South Australia to the full extent of the extraterritorial legislative power of the Parliament.

It also makes this section retrospective to apply to any commission established before the commencement of the bill. The bill was introduced in an attempt to deal with, then, a foreshadowed issue that was proposed to be before the High Court relating to the Murray-Darling Basin Royal Commission established by the former government. The bill is politically opportunistic, practically unhelpful and legally misguided. However, before I outline why the government will not be supporting the bill, it is useful to remind members opposite of what they did and did not do when they were in office.

By way of background, the Murray-Darling Basin Royal Commission was established in January 2018 by the then premier to investigate the operations and effectiveness of the Murray-Darling Basin system. In November 2017, the chest-beating former premier said:

We have to hold these governments and those irrigators who are alleged to be stealing billions of litres of water to account for their actions, and only a royal commission can do that. Only a Royal Commission will have the power to compel witnesses to give evidence and to get the basin [back] on track to ensure it is delivered on time and in full.

Labor went on to establish the commission, determine the terms of reference and appoint the commissioner, Mr Bret Walker SC. Labor had the opportunity to amend the Royal Commissions Act at the time, and some members might recall that a bill actually had been prepared. The opposition, as we were then, were supportive of amending the act should it have been required. The former Labor bill was ultimately tabled in the parliament but did not deal with the retrospective matters.

On 17 March, the Marshall Liberal government was elected. Upon coming into office, I personally met with commissioner Walker, together with my colleague minister Speirs, the Minister for Environment, to discuss the nature of consultation he would undertake, the terms of reference and related matters. Members may recall that I made a ministerial statement to the house on 8 May in which I said that, following discussions with Mr Walker, the government:

…determined that an amendment to the Royal Commission Act 1917 to clarify the extraterritorial reach of the royal commission will not be progressed…

Should the commissioner raise with me concerns that he cannot properly fulfil the terms of reference without legislative change, I will expeditiously return to parliament with an appropriate action to ensure any deficiencies can be rectified.

The commissioner issued an explanatory memorandum on 14 May this year in relation to extraterritorial powers. In it, he confirmed his earlier advice to me, namely, that:

…to amend the Royal Commissions Act for the purpose of clarifying its extraterritorial reach is not regarded as necessary by the Royal [Commission]…

Hence, on the basis of the advice of the commissioner, no changes to the Royal Commissions Act have been made. In June this year, the commonwealth and the Murray-Darling Basin Authority filed proceedings in the High Court, naming the Murray-Darling Basin Royal Commission and the State of South Australia as defendants, to challenge summonses served on both current and ex-employees of the commonwealth government to provide evidence to the MDBRC. At that time, the High Court proceedings were expected to be heard in September-October.

The issues to be determined were wideranging and important. I will say this, and I hope it is very clear: they are issues that go beyond extraterritorial issues and therefore beyond this bill. The High Court was then asked to rule on whether a royal commission established by a state can compel witnesses and documents from the commonwealth. Put simply, if we cannot investigate the Murray-Darling Basin Plan, a plan that we are a part of, and if we do not have the capacity to enforce it, then it raises the question as to whether it is viable for this state, and indeed others, to be part of it in terms of dealing with water issues in the future.

The constitutional issues that I have indicated are of very great interest to lawyers like me and to governments, one of which I am part, around the country for obvious reasons, subject to far-reaching ramifications as to the operability of intergovernmental agreements generally. I for one am personally disappointed that these bigger picture issues are not ultimately going to be debated and considered by the High Court.

In fact, those issues are much bigger than this bill, even if it were appropriately drafted, would actually resolve. They do not resolve the problem, so it is just political opportunism that they raise it. Specifically, the High Court was then going to be asked to consider section 11 of the Royal Commissions Act insofar as it purported to expose the commonwealth or its agencies, instrumentalities, employees or former employees to criminal penalties constituting an impermissible conferral of judicial power on the commissioner in respect of the matters arising under sections 75 and 76 of the constitution. If the member for Port Adelaide does not understand the significance of these matters, then I would ask her to get advice before she comes in with these disingenuous proposals.

Further, it would have considered the commonwealth being impliedly immune from the exercise of powers conferred on sections 10 and 11. I seek leave to continue my remarks.