Page 1436 - Week 05 - Wednesday, 11 May 1994
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MR CONNOLLY: (Attorney-General and Minister for Health): Madam Speaker, I could possibly assist here. I seek leave of the Assembly to do so.
Leave granted.
MR CONNOLLY: Mr Kaine, I do not have the precise citations, but I can get them for you. A case in the High Court of Australia in about 1913, the case of South Australia v. the Commonwealth, was about an argument over enforcement of promises made to provide a transcontinental railway. It expands to some extent on the legal ramifications of the outcomes of agreements between governments in Australia. It basically holds that they are more than mere promises but less than legally enforceable agreements. South Australia failed in its attempt to litigate to get the Commonwealth to build the transcontinental railway, which I think was finished many years after the original promise had been made.
While I cannot be certain that that is what is intended here, I suspect that this is an attempt by the Commonwealth draftsperson to clarify that position - that agreements of bodies as important as the Loan Council are more than mere political agreements, more than mere promises, but that they fall short, as the High Court has held, of legally binding contractual agreements that may be enforced in the courts. I will get the reference to that authority. That is the High Court authority that establishes the status of intergovernmental agreements in this country.
MS FOLLETT (Chief Minister and Treasurer): Madam Speaker, I seek leave to speak again briefly on this issue.
Leave granted.
MS FOLLETT: Madam Speaker, to respond again to the issue that Mr Kaine has raised, I would say that it is not straightforward, and I suspect that the argument falls somewhere between an ardent States rights argument being put forward by Western Australia and the concept of perhaps a gentlemen's agreement. I would like to read to members some of the letter that I have from Mr Ralph Willis, the Federal Treasurer, acting as chairman of the Loan Council, concerning the new Financial Agreement. The relevant part says:
I draw your attention to the wording of clause 4(9) of the proposed new Agreement concerning the status of Loan Council resolutions. This wording was developed by Commonwealth and Western Australian officials in the light of differing legal opinion as to whether the earlier draft Agreement gave adequate effect to Loan Council's policy intention that its resolutions not be legally binding. Western Australia sought an explicit statement in the text of the Agreement that resolutions are not legally binding. The Commonwealth considered that such a statement was unnecessary from a legal viewpoint and would appear permissive given that Loan Council resolutions represent firm commitments by Ministers under agreed arrangements.
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