Page 3999 - Week 15 - Wednesday, 16 December 1992
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without personally identifying the patient. Hansard will show that on that Thursday Mr Berry said, when stating how the new notification of HIV/AIDS would operate, that "it would be in coded form, because coded form is the way to go when dealing with this issue". Mr Humphries then stated:
You and your people in your circle of advisers who felt that there ought to be some change in the law, and hoped to make that change in the law by government fiat rather than by actually changing the letter of the law, got caught out.
Mr Berry replied:
No; I am sick of you people driving HIV sufferers underground, and something had to be done to clarify the issues.
Mr Humphries said:
I see; so, you are prepared to change the law without telling the Assembly about it until you went too far. Is that the situation? Okay, we know where we stand now.
Mr Berry replied:
No; to do something to clarify it and to stop you people.
Mr Berry clearly feels that only coded information should be notified. As an individual, he is perfectly entitled to hold that opinion. However, he had no right to ignore the law that he, as a Minister, had a responsibility to uphold on behalf of the people of the ACT.
As Mr Humphries said, by having his department ignore the requirements of the law entirely, he exhibited a belief in his power to operate by fiat. Fiat is defined in the dictionary as "an authoritative order or command: decree". This is how monarchs, with absolute power, used to rule. It has nothing to do with democracy. Compliance by Ministers of the Crown with the rule of law is an absolute requirement. No transgression of that can be tolerated. It never has been. The paramount importance here is that, ahead of all other citizens, members of parliament and, even more so, Ministers of the Crown must never place themselves above the law. They are our appointed custodians of the law. That sacred trust must never be breached.
I again state clearly that this matter is not about the relative merits of a health law. It is about whether Mr Berry upheld the law or allowed the law to be broken. I have been advised by legal counsel who have studied this brief that the law allows several different criminal charges to be laid against Mr Berry for his deliberate, knowing and repeated violation of his statutory duty as a Minister. This is a matter which also needs to be progressed. Further, my several legal advisers have agreed that this is a classic case of negligence and have recommended that persons adversely affected by the Health Minister's failure to uphold the law could seek legal advice.
Ninety-nine Federal Ministers have resigned or been dismissed from the parliament, in some cases for misconduct. Only one or two of those Ministers had blatantly transgressed the rule of law as clearly as Mr Berry has done. Only two had the indecency not to resign and had to be removed. Now that the
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