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Legislative Assembly for the ACT: 1997 Week 9 Hansard (2 September) . . Page.. 2719 ..

MR MOORE (continuing):

undermine the primary objective of the provisions of the Act. It is also important to remember that we are not talking about just the particular Minister who sits before us here today. We are talking about law that applies to whichever Minister happens to take on this portfolio responsibility.

Mr Speaker, the second issue I want to raise is inappropriate rights of review. A new capacity is created for persons to formally apply to the Minister for an exemption from the application of the Act. This is not a great change, since in any event persons could informally request the Minister to exercise their power under the existing Act to make changes. However, refusal of an application would, under the new section, attract a right of appeal to the AAT against the Minister's decision. Proposed subsections 7(3) and 7(4) provide for this right in a fairly conventional manner. Mr Speaker, when we come to the amendment itself, I shall paint a scenario, or tell a story, of the danger of this particular Act and how it allows the Administrative Appeals Tribunal - a body that is designed to review administrative decisions - to actually overturn the decision of the legislature.

Whilst at first glance this seems like the creation of a right of appeal in the citizen, in the context of this section and the argument I have just raised, it could become something quite different. The possible result is that a person who is aggrieved by the Minister's failure to decide in their favour in the exercise of a quasi-legislative role or a wholly legislative role - in the first case, where disallowability applies and, in the second, where it does not - may appeal to an administrative agency for a review of that decision, with the possible outcome that the tribunal may direct the Minister to exercise the legislative power in a particular manner. Mr Speaker, I think that this is constitutional principle that has lost its way. It has gone mad.

The proposed power, not being genuinely administrative in nature, should not be artificially given an administrative character, and private persons ought not to be armed with a power to potentially force the making of a legislative decision. The matter can be easily corrected by the omission of proposed subsections 7(3) and 7(4). The references to an "application in writing" should also be omitted - it is logically superfluous in any event - from proposed subsection 7(1). My amendments Nos 1 and 3 deal with that, Mr Speaker. These amendments would not fundamentally change the objective of the Bill either.

My third point is the undesirable removal of disallowability of fee determinations. Clauses 6 and 7 of the Bill have the effect of making the determination of fees for appeals to the OH and S Review Authority no longer a disallowable instrument. This is achieved by a redesign of the drafting of the Minister's fee-making power. So, in fact, it is partially concealed. No mention of this result is made in the explanatory memorandum or the presentation speech. I think the fact that it is not mentioned in either is itself worthy of criticism as well.

Mr Speaker, clause 8 inserts a new, clearer foundation for the fee-making power. We should maintain the principle of disallowability of instruments on every occasion, unless some very good reason exists for not doing so. The simplest and most thorough amendment which would apply the principle of disallowability to all fee-making instruments is to let clauses 6 and 7 of the Bill stand - they have the minor useful value

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