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Legislative Assembly for the ACT: 1997 Week 6 Hansard (19 June) . . Page.. 1804 ..

MR HUMPHRIES (continuing):

Mr Moore talked about corruption in the context of this debate. It is a reasonable point to make. Corruption is an issue which can be - - -

Mr Moore: I said it was "conducive to". I was very careful to use the term "conducive".

MR HUMPHRIES: I realise that you are not saying that anyone is corrupt. I realise that you are saying that the avoidance of the appearance of corruption is achieved by having a very open and aboveboard system of dealing with public moneys. The fact of the matter is that governments all the time are making decisions which deal, directly or indirectly, with the allocation of public moneys - and not just in public senses, but in respect of benefits to private individuals and companies. Every day of the week, every Minister makes such decisions. It is impossible to quarantine all such dealings, or at least - the reverse of quarantining - it is not possible to push out every such exercise of discretion in such a way that everybody can see it and every manifestation in which it might occur. I think it is a very difficult proposition. I do not think Mr Moore has fully thought through how that might occur in respect of such occasions, beyond the debate we are having today merely about betterment, or change of use charge.

Mr Temporary Deputy Speaker, I want to emphasise the point - which apparently has already been conveyed to Mr Moore by Ms McRae - that, much as I sympathise with his concerns about subregulations 14A(1), 14B(1), 14C(2) and 15E(2), where he seeks to remove a discretion and replace the word "may" with "shall", the advice to me is very clear that that simply is not possible. Mr Moore might be interested to know this. Originally, we actually did commission the amendments to include the word "shall". We sent it to the Parliamentary Counsel with the word "shall" in those commissioned amendments. The advice which came back from the Parliamentary Counsel, which I will now quote to you, was:

"may" is reintroduced here instead of "shall" despite your instructions to the contrary of 3/2/97.

The regulations cannot validly require the Minister to remit or increase CUC, because of the nature of ss 184C and 187C.

S.184C(1) of the Act states that "the Minister may, on application by the lessee, remit a CUC ... in circumstances prescribed by the regulations".

Unfortunately, there is no power for the Executive, in the regulations, to take away a discretion given to the Minister under the empowering Act.

If you wish to remove the Minister's discretion, an amendment to the Act will be needed.

Mr Moore foreshadowed that when he spoke in this debate. I would say to him that I am not ill disposed to considering that. I have no doubt that he will go back and talk to the Parliamentary Counsel about that. I am quite prepared - - -

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