1188 LEGISLATIVE COUNCIL Wednesday 10 April 2002 ______ The President (The Hon. Dr Meredith Burgmann) took the chair at 11.00 a.m. The President offered the Prayers. APPROPRIATION (BUDGET VARIATIONS) BILL RACING LEGISLATION AMENDMENT (BOOKMAKERS) BILL Bills received. Leave granted for procedural matters to be dealt with on one motion without formality. Motion by the Hon. Michael Egan agreed to: That the bills be read a first time and printed, standing orders be suspended on contingent notice for remaining stages, and the second reading of the bills be set down as orders of the day for the next sitting day. Bills read a first time. COMMITTEE ON THE INDEPENDENT COMMISSION AGAINST CORRUPTION Membership The President reported the receipt of the following message from the Legislative Assembly: MADAM PRESIDENT The Legislative Assembly informs the Legislative Council that it has this day agreed to the following resolution— That Barry Robert O'Farrell be appointed to serve on the Committee on the Independent Commission Against Corruption in place of Michael John Richardson, discharged. Legislative Assembly JOHN MURRAY 9 April 2002 Speaker REGULATION REVIEW COMMITTEE Membership The President reported the receipt of the following message from the Legislative Assembly: MADAM PRESIDENT The Legislative Assembly informs the Legislative Council that it has this day agreed to the following resolution— That Kerry Arthur Hickey be appointed to serve on the Regulation Review Committee in place of Graham James West, discharged. Legislative Assembly JOHN MURRAY 9 April 2002 Speaker STANDING COMMITTEE ON STATE DEVELOPMENT Extension of Reporting Dates Motion by the Hon. Michael Egan agreed to: That the reporting date for the reference to the Standing Committee on State Development relating to Local Government Boundary Changes in Inner Sydney and Eastern Suburbs be extended to Friday 10 May 2002. 10 April 2002 LEGISLATIVE COUNCIL 1189 Motion by the Hon. Michael Egan agreed to: That the reporting date for the reference to the Standing Committee on State Development relating to Rhodes Peninsula be extended to Friday 31 May 2002. TABLING OF PAPERS The Hon. Carmel Tebbutt tabled the following papers: Law Reform Commission Act 1967—Report of the Law Reform Commission for the year ended 30 June 2001 Legal Profession Act 1987—Report of the Office of the Legal Services Commissioner for the year ended 30 June 2001 Ordered to be printed. BILLS UNPROCLAIMED The Hon. Carmel Tebbutt, according to sessional order, tabled a list of all legislation not proclaimed 90 calendar days after assent as at 9 April 2002. PETITIONS Local Government Boundary Changes Petition praying that the House conduct a public inquiry into the proposed local government boundary changes and ensure that a plebiscite takes place before any boundary changes are made, received from the Hon. Duncan Gay. Stem Cell Research Petition praying that the House support adult stem cell research and oppose the creation and use of embryos for stem cell extraction, received from the Hon. Duncan Gay. Freedom of Religion Petition praying that the House reject proposals to reform the Anti-Discrimination Act that would detract from the exercise of freedom of religion, received from Reverend the Hon. Fred Nile. PRODUCTION OF DOCUMENTS UNDER STANDING ORDER 18 Debate resumed from 9 April. The PRESIDENT: I will now hear debate on the point of order taken by the Minister on 19 March. The Hon. JOHN JOBLING [11.13 a.m.]: Madam President, thank you for taking the course of action you did and for allowing the House to debate this matter. As the Presiding Officer, it is imperative that you ensure that all the facts are before the House when you consider the point of order. The obtaining of an opinion is an important first step for members to consider the matter. We note that on this occasion an opinion has been obtained from Mr Knight, the Crown Solicitor. In considering the application of Standing Orders 18 and 19 the House must deal with a number of matters. The application of the standing orders was put forward by way of a point of order taken by the Leader of the House. The opinion that is before the House is just that: an opinion. It is the opinion of a learned person, but at this stage it is no more than an opinion relating to the application of certain standing orders. Standing Order 19 is very unusual. My research indicates that in the past 100 years that standing order has been used by this House on only two occasions to seek the production of papers. The first of those occasions was in 1905, when the House sought to have tabled all papers relating to the case of an imprisoned female child. The second occasion was in 1947 and 1948, when the House called for papers relating to the release from prison of Clifford Tasman Thompson. It is therefore apparent that the use of Standing Order 19 is quite unusual and that it is not called upon in haste. In his advice the Crown Solicitor notes that Standing Order 19 provides: 1190 LEGISLATIVE COUNCIL 10 April 2002 The production of Papers concerning the Royal Prerogative, or of Despatches or other Correspondence addressed to or emanating from His Excellency the Governor, or having reference to the Administration of Justice, shall be asked for only by Address to the Governor. The question to be asked is: What does Standing Order 19 mean? The House has an opinion before it that canvasses a number of issues but does not specifically draw what I believe to be firm conclusions. On the last occasion on which the Crown Solicitor offered advice to this House it was based on an 1842 opinion expressed in Tasmania. That advice was used by the current Leader of the House as the basis of the argument for non- production of papers. The advice was tested as an opinion—and I again stress that it was in opinion—in the case of Egan v. Willis, Evans, Cahill and Ors. Three courts found that the opinion was not correct, that it was flawed by reason of the passage of time and the many events that had transpired since the advice was provided. It is clear from the advice that the Crown Solicitor encountered a number of problems. He considers the application of Standing Order 19, and then deals with Standing Order 134, setting out the procedure by which an address to the Governor may be made. He also states that Standing Order 18, by contrast, provides that any papers may be ordered to be laid before the House and that the Clerk shall communicate any such order to the Premier's Department. The matter to be considered by this House is the interpretation of Standing Orders 18 and 19. In his advice the Crown Solicitor indicates that he found very little assistance in the historical material relating to Standing Order 19. The Crown Solicitor obviously had limited time to consider the matter, and therefore when considering his opinion one must question the depth of his research and whether the conclusions he draws are correct. When the Crown Solicitor refers to having not revealed an equivalent standing order for the Legislative Council in the compilation published in New South Wales Parliament in 1868, he is going back a fair way. He makes reference to Standing Order 26 and the order for papers to be communicated to the Colonial Secretary— which rather dates the validity of the historical record in this case. In his advising to us he concludes that Standing Order 19 appeared in the standing orders approved in 1895 and has remained in that form since then. As I said earlier, Standing Order 19 has, to my knowledge, been used only twice in the past 100 years. In his advising the Crown Solicitor indicates there is no equivalent of Standing Order 19 in the standing orders of the Legislative Assembly. Be that as it may, each House is a sovereign House, so no conclusion can be drawn from that fact. He says: There appears to be no precise equivalent in other jurisdictions, material requested by Address being restricted to matters relating to the Prerogative except in the Legislative Council in South Australia, which refers to both the Royal Prerogative and to Despatches and Correspondence. So, we are dealing with a standing order that is unique to this House. Therefore a great deal of care must be taken in the interpretation and understanding of that standing order and how it is to be applied. References are made in paragraph 3.2 of the advice to a quotation from the fourth edition of Erskine May, a somewhat dated volume, having been published in 1859, dealing with a practical treatise on the law, privileges, proceedings and the usage of Parliament. That edition of Erskine May states: PARLIAMENT, in the exercise of its various functions, is invested with the power of ordering all documents to be laid before it, which are necessary for its information. Each house enjoys this authority separately, but not in all cases independently of the Crown. It then refers to trade, finance, general and local matters, ordered directly or indirectly, and states that certain other matters in the exercise of the royal prerogative are obtained by addresses to the Crown. When one looks at the distinction between the two classes of returns, it seems from the advising that the principle is not always clear. This is indicated by the Crown Solicitor in his advising to the House. The question then is whether it applies to Treasury or whether it applies to matters that are to receive their orders from the Crown.