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Legislative Assembly for the ACT: 1997 Week 7 Hansard (25 June) . . Page.. 2039 ..

MR BERRY (10.52), in reply: This is in many ways the culmination of a long struggle to have a wrong righted. This matter was first raised not by me but by the Scrutiny of Bills Committee. There began the struggle between the view of the respected Scrutiny of Bills Committee and the view of the Government. It is fair to say that, if the Government were to accept the Scrutiny of Bills Committee's advice, then there would be some loss of face, because the Scrutiny of Bills Committee discovered a flaw in the Government's administration which put at risk a range of fees and charges amounting to many millions of dollars.

The Government stubbornly pursued its own line based on its own legal advice, notwithstanding the views of the respected Scrutiny of Bills Committee. It is important that I emphasise the fact that the Scrutiny of Bills Committee is a respected committee of this Assembly, because it does take the trouble to scrutinise with a hawk eye legislation that passes through this place, to ensure that matters which pass into law find their way properly along that course. The Scrutiny of Bills Committee is advised by an eminent lawyer. That is the reason why the Assembly generally takes the committee's advice. The Government, though, adopted a stubborn position which really led us nowhere. All it would have left us with was a contest between the Scrutiny of Bills Committee and the Government's lawyers. The best way to resolve it was, in fact, described by the Scrutiny of Bills Committee in early reports on the matter when it said that the matter ought to have been resolved in the parliament rather than go to retrospective determinations by a Minister.

The Government does not seem to understand the significance of its position. To have a member of the Executive making retrospective determinations contrary to the Subordinate Laws Act is a very serious matter indeed. That is why the matter is being pursued with so much vigour by the Labor Party. This is a significant issue of administration in the Assembly. The Subordinate Laws Act, at section 7, states:

A subordinate law shall not be expressed to take effect from a date before the date of its notification in the Gazette where, if the law so took effect -

(a) the right 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 an act or omission before the date of notification;

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

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