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Legislative Assembly for the ACT: 1997 Week 7 Hansard (25 June) . . Page.. 2091 ..

MRS CARNELL (continuing):

The second issue is the importance of transparency and accountability. Approval of legal assistance for politicians is an important issue of public policy. It is proper that both the Assembly and the public have access to reasonable information about expenditure of public money. In the Government's view, a single legislative scheme applying to all members, in their roles as members and as Ministers, is preferable. This gives legal authority to any assistance provided. It puts the question of the possible disqualification of members under section 14 of the self-government Act beyond doubt. It also removes any question of whether a Minister's application for legal assistance relates to his or her official duties as a Minister or as a member.

The Government also supports the standing committee's recommendation that the legislative scheme should be supported by guidelines setting out the detailed steps for application for legal assistance. In this context, I am pleased to table, as an attachment to the Government's response, "Guidelines on the Provision of Legal Assistance to Ministers and Members", to meet the first recommendation of the standing committee's report. The general policy reflected in the Government guidelines is that assistance for legal proceedings will be considered for the defence of proceedings arising out of performance of official duties. I believe that these guidelines are an appropriate interim measure and, overall, they reflect the policy objectives of the standing committee's recommendations, although they do depart from the recommendations in respect of some details. Under the guidelines, assistance would be considered where the Territory is vicariously liable or, if the Territory is not vicariously liable, where the proceedings arose out of performance of official duties and in circumstances where the Minister or member was not acting in bad faith or unreasonably.

The Government agrees with the committee's view that it is necessary to have assessment criteria that exclude circumstances where legal proceedings arise from misconduct or impropriety. However, the Government would like the committee and the Assembly to consider the approach taken in the Government guidelines, which requires assessment of whether the applicant acted in bad faith or unreasonably. In the Government's view, this provides a more workable framework than the factors of "private and personal considerations" recommended by the standing committee.

The Government agrees with the standing committee that the legislation should identify an "approving authority". The Government has suggested the Speaker as the appropriate decision-maker to consider applications from members. Applications from Ministers would be decided by members of the Executive. This is necessary to reflect the separation of the Executive from the legislature. Under the Government guidelines, it is proposed that the Attorney-General make the decision, in consultation with the Chief Minister and the Treasurer. Where the Attorney-General is the applicant, the decision for legal assistance would be made by the Chief Minister.

These decisions will invariably be sensitive. The Government has provided guidelines that set out a framework with sufficient certainty to identify the general circumstances where legal assistance will be considered. The guidelines also provide an element of discretion to include worthy cases. I believe that they represent a balanced contribution to the work already carried out by the standing committee.

Debate (on motion by Mr Berry) adjourned.

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