Page 2318 - Week 08 - Tuesday, 17 August 1993
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The first of these two Bills establishes the principles upon which the Government now wishes to proceed for the binding of the Crown to the Acts of the ACT parliament. The second of the two Bills, the Acts Revision (Position of Crown) Bill, tidies up the various Acts of the ACT to ensure compliance with the new principles enunciated in the Interpretation (Amendment) Bill (No. 2). Until now, the presumption has been that the Crown is not bound by an Act unless it is expressly stated in the Act concerned that it is so bound. Thus, absence of any description of the position of the Crown in an Act up until now has created the presumption that that Act does not bind the Crown.
You would often see, in the early part of Bills of this Assembly, the phrase "this Act binds the Crown", because otherwise the presumption would be that it does not. With the passage of these two Bills the presumption is reversed, so that Acts will have to say, if they intend them not to bind the Crown, as in the past, something like "this Act does not bind the Crown". If the Government wishes there to be certain exemptions from immunity, it will have to specify what they might be.
The law, according to the Attorney-General, was thrown into some doubt by Bropho's case in the High Court. That case made rather more complex the test of what functions of government are immune from laws and what ones are not. The simple test of whether the legislature says or does not say that particular Acts bind the Crown, from that case onwards at least, did not apply. These Bills are designed to obviate that doubt and put it beyond any question that, unless another assumption is caused to arise, a particular Act does bind the Crown.
These two Bills work on the premise that the Executive is bound by laws of the Territory - the laws it is responsible for administering and enforcing. To quote from the Minister's presentation speech:
The Government believes that it should be a "model citizen" ... The Crown and its servants and agents should not gain an unfair advantage over others by not being bound by legislation. Where government instrumentalities, Territory owned corporations, or other relatively independent government bodies are involved in the provision of commercial services, there would need to be very good reason to give them immunity from the law.
As far as that is concerned, I think that phrasing of the presumption is a worthy one. I think the Assembly would be able to support that general provision. There are a great many Acts referred to in the schedule and otherwise in the Acts Revision (Position of Crown) Bill which are affected accordingly. I have not examined those in detail, but I believe that it is appropriate for that review to have taken place. It is very important that we make sure that we establish our position now that the assumption is reversed. Obviously, in a case where there was silence in the past, creating the presumption that the Act did not bind the Crown, you would need to make sure that, if it was desired for that immunity to continue, provisions were built into one of these two Bills to make sure that that situation was maintained.
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