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Legislative Assembly for the ACT: 1997 Week 3 Hansard (9 April) . . Page.. 739 ..

MR BERRY (continuing):

(a) the rights of a person (other than the Territory or a Territory authority) existing at the date of notification would be affected in a manner prejudicial to that person; or

(b) liabilities would be imposed on a person (other than the Territory or a Territory authority) in respect of any act or omission before the date of notification;

That is pretty plain, on the face of it, I would suggest. It continues:

and where any subordinate law contains a provision in contravention of this subsection, that provision is void and of no effect.

The Subordinate Laws Act is fairly clear in its intent. It makes it fairly clear, in my view, that retrospective determinations such as the one issued by Mrs Carnell are suspect. My view does not really matter in the scheme of things. What does matter is the view of the eminent adviser to the Scrutiny of Bills Committee, which is the legislation watchdog for this Assembly. Those problems were raised by the Scrutiny of Bills Committee in its Report No. 17 of 28 November last year.

Let us take a look at some of the comments in relation not only to determinations Nos 227 and 240 but also to the problems arising from the fact that determinations Nos 106 and 136 were invalid. On pages 14, 15 and 16 of Report No. 17, the committee sets outs its case and suggests a course of action to correct the problems and remove any doubt. For those who wish to have a look at the report, I think it makes it very clear that there needed to be remedial action. Mrs Carnell, though, seems not to be convinced that the committee's recommendations are worth while following.

On 5 December last year, I moved disallowance of determination No. 227 and, in doing so, I made it clear to the Government that the Labor Party would support retrospective legislation to sort out the problems caused by the faulty determinations. Quite simply, the Labor Party accepts the Scrutiny of Bills Committee's recommended solution. Irrespective of which legal advice you want to accept, doubts have been raised about the validity of the determinations. We could go on receiving legal advice from one quarter or another until we had a handful of legal advisings, but at the end of the day the doubt would still be there.

I set out to remove the doubt once and for all. The only way to do that is to take the course recommended by Professor Whalan and the Scrutiny of Bills Committee, but the Government has consistently refused to do it. Last December I offered them a chance to 'fess up, if you like, to admit before this place that they had mucked up this whole issue, that they had made retrospective determinations, which are not permitted under the Subordinate Laws Act, or at least to say that there was some doubt and they wanted to clear it up. What they have done is refuse to accept that this is a serious issue for revenue in the ACT. If the Government has acted without authority, then it is obliged to pay the money back. I know very well that the health budget cannot afford to be

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