Page 2282 - Week 09 - Tuesday, 15 September 1992
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That case concerned the trash and treasure market that has been conducted at Jamison every Sunday for close on 20 years. The market is conducted by Rotary and the fees it receives from stallholders and visitors have been of very great assistance to charities and community activities in this Territory. However, local retailers believed that breaches of a number of Territory laws, in particular the hawkers and trading hours legislation, were occurring at the markets. I hasten to add that they were not attempting to close the markets down. However, in their view, some of the trading that was occurring at the markets was in breach of the laws I have mentioned.
Madam Speaker, after exhausting other avenues - because our time is short I do not think that those avenues need to be detailed today - the landlord of the Jamison shopping centre, Olaseat Pty Ltd, began proceedings against the relevant Minister, who was ultimately referred to in the litigation as the Minister for Land and Planning. Olaseat immediately had to confront an issue that often confronts those who complain of government action or inaction. Did it have what lawyers call "standing"? That is, was its interest in the matter sufficient to allow it to commence legal proceedings? There were very real doubts on this point. Olaseat applied to the Attorney for his fiat - that is, for his authority to take the proceedings using the Attorney-General's name.
When this Bill was presented by the Attorney he described the fiat - and his other traditional powers - as being something that contributes to the welfare of not only the Government but the general community. The fiat allows matters which otherwise would not be considered by the courts to be properly tested. In the case of the trash and treasure market, the Government's administration of the licence under which the markets are conducted and of a number of very important laws was under a cloud. I am sure that members will agree that it was in the public interest that those matters be examined by the court. I have been advised that both the applicant for the fiat and the Attorney who proposes to grant one must complete a rigorous process that is aimed at ensuring that the grant is, indeed, in the public interest. In the event, Olaseat was granted the fiat.
Madam Speaker, what I have said about Olaseat's request and the Attorney-General's handling of it illustrates that when exercising his or her traditional powers the Attorney-General does not have regard to party political matters and the interests of the government of the day. In fact, these matters have to be furthest from his or her mind. The powers are intended to be used to further the administration of justice and the community's interests in general. This is especially so of the powers the Attorney-General has in relation to the criminal process, as Sir Walter Raleigh and, apparently, a great many others in earlier times found to their cost.
Madam Speaker, as the ACT enjoys the services of a very competent Director of Public Prosecutions, Mr Ken Crispin, QC, and his officers, the Attorney-General has little need to exercise his powers in the criminal process. However, if the Attorney-General exercises his or her other powers for the wrong reasons, the consequences for the community will be as serious as the wrongful exercise of the powers in the criminal process are to those immediately affected.
Madam Speaker, in the trash and treasure case, I am told, the Supreme Court was advised of the grant of the fiat at the first opportunity. His Honour Mr Justice Higgins considered the question of whether the Attorney was in a position to grant the fiat. He expressed doubts on the matter.
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