Page 2284 - Week 09 - Tuesday, 15 September 1992
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Certainly, our perspective would be that a government ought to grant the fiat to enable the case to be tested, regardless of whether that was, in effect, a challenge to a government decision. It is highly likely that in most cases the fiat would be granted, in effect, for the citizen to challenge a decision of the Government. The proper course of action is for a government to not have regard to the partisan consequences but to give the citizen the opportunity to challenge the matter. Of course, it does not follow that the Government picks up the legal costs - they are always the responsibility of the citizen - but it does allow the citizen to challenge government action.
As was indicated, there was some doubt cast in a recent Supreme Court proceeding as to whether the ACT executive arrangements allowed that. I must say that it causes us some concern that there is a view about that somehow the administrative arrangements in this Territory are different from a standard traditional State body politic. The self-government Act clearly establishes the ACT as a body politic under the Crown. It vests the executive power in the Chief Minister and those Ministers appointed to be the Executive, and one would have thought that the consequence of that was that the ordinary executive arrangements followed. But, as doubt has been cast, and as the Canberra Times indicated in its article, it is better to be sure to be sure, and that is what this Bill will achieve.
Question resolved in the affirmative.
Bill agreed to in principle.
Leave granted to dispense with the detail stage.
Question proposed:
That this Bill be agreed to.
MR HUMPHRIES (8.22): Madam Speaker, there is something I forgot to say during the in-principle stage and which I would like to mention now. The problem here apparently arises by virtue of the fact that the ACT Attorney-General is not appointed by the Crown directly. The Attorney is appointed by the Chief Minister, who is elected by the Assembly and not appointed by a viceregal representative. Madam Speaker, obviously this Bill is designed to overcome that deficiency, the argument running that, by conferring that power directly on the Attorney-General, you then overcome the problem that it is assumed that those powers flow to other Attorneys-General by virtue of the fact that they are appointed by the Crown; and that therefore the prerogative rights of the Crown presumably flow on to the Attorney because he or she is appointed by the Crown directly.
This is a small argument, I would say, Madam Speaker, for the ACT to consider in due course whether it does not need a viceregal representative in the same manner as every other jurisdiction in Australia. This is only a small case where the lack of that representative has caused us a problem. Possibly, if Olaseat's case had gone on that issue, it might have occasioned us some problem because there was not, on His Honour's reading, a real Attorney-General in the ACT. If that had been the case, we might have suffered some loss; but we have not in this case. We have avoided that problem.
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