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Legislative Assembly for the ACT: 1996 Week 13 Hansard (5 December) . . Page.. 4432 ..

MR MOORE (11.13): I rise to speak primarily on the issue of a retrospective determination. That is the thing that unnerves me most. All of us deal with retrospectivity with a great deal of care. It is quite common in money terms, in revenue Bills, for retrospectivity to be employed by all governments. There is a public announcement that a set of fees or taxes is going to be put forward, perhaps that the price of cigarettes will go up as of tomorrow or as of today. This is a normal process. Then, in a revenue Bill, we retrospectively put that into law. People know that it is going to be the case. What I hear from the Opposition today, and what I support, is the notion that there will be no change to the fees. No money is being put at risk by this motion of disallowance, provided the Government takes reasonable action.

There is no doubt that in putting this motion up today Mr Berry has been seeking to make some political capital out of it, as indeed he should. If an opposition can identify an inadequacy in the way the government has operated, then it is appropriate for the opposition to raise it. Indeed, the crossbenches also seek to test and scrutinise what the government is doing and to make political capital out of that. That is the task of ensuring that a government operates in the best possible way.

There is no doubt that some administrative errors have been made. The Chief Minister has conceded that some administrative errors have been made. There is also no doubt that a clear message is coming from this Assembly that if you have a Bill for health fees set under this determination you are going to have to pay it. There are two clear messages, but this debate is not about them. This debate is really about whether or not it is appropriate to have a retrospective determination.

Ms Follett said that Professor Whalan provided some advice. Law officers have provided other advice. I cannot think of a single situation where Professor Whalan has provided advice that I have disagreed with. However, it is still the advice of a lawyer and there is a second piece of advice. The Scrutiny of Bills Committee, I believe correctly, asked the Government for a further legal view on this issue. I believe that the most appropriate way to deal with this issue would have been for Mr Berry to wait for that advice to come in. We ought not to deal with this issue until such time as that advice has come to the Scrutiny of Bills Committee and they have dealt with it.

The unfortunate thing is that the motion of disallowance that Mr Berry has put up today is in some ways what I refer to as a time bomb motion. The days are ticking by. If this motion is delayed through the full period of 15 sitting days, then the determination is automatically disallowed. The motion has that effect. On the one hand, time is ticking away. On the other hand, we have no reply to the Scrutiny of Bills Committee. This puts us in a double bind. I think it was inappropriate for Mr Berry to put this matter before the Assembly in this way. If this motion is knocked off, we will wait for a report from the Scrutiny of Bills Committee. That may be some time in coming. On the other hand, if we leave this motion on the table by adjourning debate on it - and there has been some discussion in the chamber about that possibility - it will certainly set a fairly tight timeframe for the Government to respond to the Scrutiny of Bills Committee and for the Scrutiny of Bills Committee to deal with the issue.

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