Page 2279 - Week 09 - Tuesday, 15 September 1992
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LAW OFFICER BILL 1992
Debate resumed from 10 September 1992, on motion by Mr Connolly:
That this Bill be agreed to in principle.
MR HUMPHRIES (8.01): Madam Speaker, this Bill will be supported by the Opposition. It contains a number of provisions which, in effect, confer on the Attorney-General powers which the Attorneys-General in other States and in the Commonwealth traditionally enjoy. Those powers which are traditionally enjoyed by Attorneys in other States are apparently in some doubt in the ACT, and it has been felt necessary by the Government, apparently, to put beyond doubt that the Attorney has those traditional powers, by enumerating them to some degree and saying that the powers exist, in a less specified degree, in this Bill. Madam Speaker, it obviously is important for the powers that are referred to here, which it is the intention of the Bill to cover, to be clearly exercisable by the Attorney-General. They include obvious roles, including exercising the legal representative role of Attorney for the Crown in right of the Territory and in respect of the Territory itself. They include the power to conduct litigation on behalf of the Territory, or a Territory government, or a Minister of the Territory; and paragraph 4(1)(e) refers to functions which are conferred on the Attorney by another Act of this Assembly.
Madam Speaker, I think we can see the reason for such powers to be enumerated. In effect, clause 4 of this Bill provides a duty statement for the role of Attorney-General. I must say that the question that came to my mind when I read that was, "Why should there not be a duty statement for other Ministers as well?". Perhaps in due course there will be, if the Government thinks that is appropriate. Certainly, this makes it clear that the Attorney has a specified role in law. It lays down what that role is and it puts beyond doubt the fact that those powers which are traditionally to be exercised by Attorneys in other places can be exercised by the Attorney here.
The question that I also asked myself when I first read the Bill was, "Is there a demonstrated need for there to be such a Bill?". In other words, has doubt been cast upon the question of what powers the Attorney exercises in the ACT? I was kindly directed by officers of the Attorney-General's Department to a transcript in a case which was in the Supreme Court of the ACT earlier this year - the case of Olaseat, in which His Honour Justice Higgins indicated that he had real doubts about whether there was an ACT Attorney, I think he said at one stage, but certainly doubts about what the powers - - -
Mr Cornwell: I share that view, actually.
MR HUMPHRIES: Perhaps it is a good question for a debate one day, Madam Speaker. The real question is: What powers does this Attorney exercise? By force of the creation of this role in the self-government Act, or by force of the Chief Minister's decision to create that role, does the role that traditionally attaches to an Attorney in other places flow on to this particular position and does it carry that right in the ACT? The issue was not resolved in this case because it was not argued at the end of the day by the parties; but there is a very clear implication that if it had been argued it might well be that there would have been a decision which would have prevented the Attorney interceding in some way in the case. I forget, at the moment, what that particular - - -
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