Page 6066 - Week 18 - Thursday, 12 December 1991
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MR KAINE: Okay, he might be an ex-member of the Legislative Assembly. Is that going to exclude him from fixing - - -
Mr Wood: No. It is a bit more difficult, but no.
Mr Stevenson: I would not get one, even if I were qualified to handle them - not with this lot.
MR KAINE: We will not explore that. We can go along and keep putting up hypothetical cases and the Minister can say, "No, that would not exclude him; that would not exclude him".
But, other than the technical qualification, can he think of one which would be a reason for refusing a mechanic the right to ply his job of fixing refrigerators for a living? I cannot think of one. If he cannot think of one that he can write into the Bill as part of the prescription, then it is like the old military section 40: If you cannot get them on anything else, you can always get them on a section 40; that is, conduct to the prejudice of good order and discipline. The old section 40 has gone out of the military law now, but that was the one that one always had up one's sleeve. If you did not get them on anything else, you could always get them on a section 40.
This provision is a section 40. Section 40 has gone out of military law. Even the military has been smart enough to get rid of that one. Yet we, in 1991, are talking about building a section 40 type of clause into our legislation that says, "If you cannot exclude him for any other reason, we will find something. If we keep looking long enough, we will find something". I think that it is unreasonable; it is unfair; it gives a public servant - and public servants are very professional people - the opportunity to - - -
Mr Stevenson: The fit and proper ones.
MR KAINE: Yes, a fit and proper public servant. If someone is not "fit" or not "proper", this provision gives them an out to refuse somebody a licence. I do not think that is reasonable. I agree with Mr Humphries. We should adopt his amendments.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (5.14): It is a pity to spoil a good speech with a bit of reality, but I am forced to do so. Mr Kaine gave a very good speech that suggested that "fit and proper person" was an at large ability to strike off whoever one does not like. If it were not for the fact of judicial review of administrative decisions, under such Acts as the AD(JR) Act, or the general common law, what he says could be right. But, unfortunately for your good story, the courts are well familiar with the term "fit and proper person".
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