Page 4356 - Week 15 - Wednesday, 21 November 1990
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Mr Deputy Speaker, I would remind members that this issue was referred for general report in relation to standing orders 200 and 201 at an earlier sitting of this Assembly. I have heard Mr Speaker on this issue, and also Mr Berry, who dissents from his committee's decision to seek that further view from the Federal Attorney-General. While Mr Brazil of Macphillamy Cummins & Gibson has recently provided advice to the Legislative Assembly Standing Committee on Administration and Procedures which suggests that these Bills may not offend against procedures set down in section 65 of the ACT (Self-Government) Act, the Opposition is well aware that a conflicting opinion has already been provided by the ACT Government Law Office. That advice cannot be ignored. The staff of the law office, apart from having had a singular contribution to the drafting of the self-government Act, are highly experienced lawyers who have particular knowledge and expertise in relation to the interpretation of the ACT Constitution as embodied in the self-government legislation.
Following the receipt of Mr Brazil's advice, I requested further advice from the law office. Officers are preparing a detailed analysis of the matters raised by Mr Brazil. However, I am informed that it is their preliminary view that the opinion does not take into account the fact that the system of government established in the ACT is unique to Australia and, indeed, the world, and that in those circumstances it is unlikely that the Commonwealth Parliament intended the different words of section 65 in our Act to have the same effect as those of section 56 of the Australian Constitution.
The opinion does not give due meaning to the word "charge" in the phrase "effect of which is to dispose of or charge any public money of the territory" in section 65. It can also be said that, if Mr Brazil's opinion is accepted and applied by this Assembly, we will be passing legislation which is now before the Assembly in private members' business which will never have any effect. As Mr Brazil himself points out, the executive government would not be required by law, by virtue of that legislation, if passed, to make the payments or incur the expenditure.
So, what possible purpose could be served by the Assembly spending its time and effort in considering and passing such laws? It would simply be a waste of public money, an abuse of the Assembly process, and an absolute exercise of political fiction by the Opposition. I have received an advice prepared by the shadow Attorney-General, Mr Connolly, which suggested that procedures under section 65 are not justiciable and that Acts passed contrary to the provisions of section 65 could not be challenged in the court as being invalid. This may or may not be true. I have requested the law office to provide advice in relation to this question.
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