Page 3226 - Week 11 - Thursday, 12 September 1991
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This difficulty in the proof of ownership is one of the various technical problems that have emerged since self-government. The Hon. Mr Justice Rae Else-Mitchell first identified this problem in his capacity as chairperson of the Committee of Inquiry into the Assets and Public Debt of the ACT in 1990.
The Bill will bridge the gap between apparent ownership and actual proof of ownership for the purposes of proceedings under the principal Act. It will allow the Government to assert ownership in cases where it would otherwise be difficult to do so and for prosecutions to be dealt with in a more just and efficient manner.
The Bill adds two provisions to the Act. It adds a general presumption clause to the effect that property in the "possession, custody or control" of the Territory shall be presumed to belong to the Territory. The Bill also provides that a certificate signed by the Minister can, itself, act as evidence that the Territory has property in its possession, custody or control.
These provisions together enable the Territory to establish ownership. In many cases a certificate will not be necessary as evidence of "possession, custody or control" will be available, and this alone will allow the courts to find ownership for the purposes of the Act. However, in cases where evidence is not available, or not readily available, a certificate itself will be sufficient evidence.
The presumption of ownership and the effect of the certificate are both rebuttable. This avoids possible injustice by allowing people involved in proceedings under the Act to produce evidence to overturn these presumptions and to prove that the Territory does not, in fact, own the relevant property. This means that the Government must use the certificate provision with care because it is open to challenge in court.
The Bill provides for an equivalent certificate provision in relation to government premises. This allows the Government to produce a certificate as evidence of occupation where this is necessary to establish that premises are government premises for the purposes of the Act. I now present the explanatory memorandum for this Bill.
Debate (on motion by Mr Stefaniak) adjourned.
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