Page 2283 - Week 09 - Tuesday, 15 September 1992
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Madam Speaker, the fiat is available to protect the public interest no matter who seeks it. It is true that in a case where the fiat is available the Attorney-General could take action in his or her own name, but there will often be advantages in the proceedings being conducted by a member of the community who is in a better position to argue the matter and to bring forward relevant evidence.
In the ACT the most famous example of it being granted is to be found in what is known as the Black Mountain tower case, a planning and environment case in the mid-1970s. What has to be appreciated is that the doubts expressed by His Honour Mr Justice Higgins would not only prevent the Attorney-General from granting a fiat but also prevent him or her from being an active party in such cases; that is, the ACT's laws would, in some cases, be unenforceable because nobody would be able to bring a breach of the law before the court. The Government was not prepared to take the chance that this view would be acted on by the court.
I hope that what I have said will convince members that this Bill is significant, despite its brevity. Madam Speaker, members may recall that when the Bill was presented the Canberra Times report on it was headlined, "A Special Bill to be Sure, to be Sure". The balance of the article was a factual summary of the Attorney-General's presentation speech and set out the matters that have led the Government to bring forward this measure. If the headline was intended to convey the message that in bringing forward this measure the Government was wasting the Assembly's time, I hope that members will join with me in rejecting the suggestion. In conclusion, Madam Speaker, I commend this Bill, and, for that matter, the efforts of the ACT's Attorneys-General to the Assembly.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (8.18), in reply: I thank members. Mr Humphries foreshadowed that at some future stage perhaps Ms Ellis may be an Attorney. I am sure that her erudite remarks this evening confirm that that could, indeed, be the case. The Bill, as members have indicated, clarifies the powers of Attorneys or Ministers who may be, from time to time, administering this Act. It may well be that in future administrative arrangements the position of Attorney-General may not be required; but from time to time whoever is administering this Act will have those powers and will exercise those functions.
They are important public interest powers. The ability to grant a fiat is an important safeguard of the public interest. Ms Ellis said that it has to be exercised without regard to partisan spirit. I think that is most highlighted by that Olaseat case. For the casual reader of the law reports - if there is a person who casually reads the law reports - that case would be reported as the Attorney-General of the Australian Capital Territory v. the Australian Capital Territory Minister for Land and Planning, and it would seem highly unlikely that Mr Wood and I would resort to litigation against one another.
The effect was that the fiat was granted to enable the citizen to run a matter. One could well imagine, particularly in the environmental and town planning areas, that there may well be cases where this Government, or any future government, may grant the fiat to enable the citizen to challenge an exercise of our powers. Mr Moore, I seem to recall, at some stage in the First Assembly, was seeking from the then Attorney, Mr Collaery, the grant of a fiat to enable a particular planning issue - I cannot quite recall, but I think it was the school issue - to be litigated. I think in the end that was not granted.
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