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Legislative Assembly for the ACT: 1997 Week 9 Hansard (2 September) . . Page.. 2779 ..

Debate resumed.

MR TEMPORARY DEPUTY SPEAKER: The question is: That Mr Moore's amendment No. 3 be agreed to.

MR MOORE (5.18): On the face of it, the clause in the legislation seems very attractive. It seems that what we do is add a system of an appeal. It is very unusual for me to stand and say we ought not have a particular appeals mechanism. But I think this is not an ordinary instance of citizens' right to appeal to the AAT. The decision in question is not an administrative decision; it is a legislative decision. It deals with an application of the law, and I think that is what makes this very different from other issues. The procedure of a Minister proposing what is, in effect, an alteration to the reach of the law, the final decision resting with the Assembly through the disallowance procedure, is an appropriate process. Private citizens should be free to suggest to a Minister that such an amendment to the law should be initiated. However, if a private citizen is aggrieved that the amendment to the law - and that is effectively what it is - is not made, their appeal should be back to the legislature, not to an administrative tribunal.

The so-called appeal right ought to be omitted. Let me give an example of this; let me paint a scenario. Under the Bill, as originally drafted, the employer known as Widgets Inc. could have applied to the Minister for an exemption from the occupational health and safety law. The Minister could have granted the exemption, with the result that the law enacted by the Assembly would not apply to the factory where Widgets carries on business. The Assembly would have no power to review the Minister's decision. Now, with the passing of the previous amendments, the Assembly would have the opportunity to disallow that exemption. The final decision on the application of the law is a legislative decision, as it should be.

However, even after amendment No. 2, Widgets Inc. could have a right to formally apply, as opposed to simply informally suggest, and get an exemption. The Minister refuses; then Widgets Inc. takes the Minister to the AAT to seek an order that the Minister grant the exemption. Note the AAT, while it has a high degree of independence from government, is an administrative body, not a judicial body; it is not a court. It is totally inappropriate for Widgets Inc. to have the power to challenge the legislative decision in an administrative agency. What would happen there is that Widgets would then be able effectively to overturn the intention of the legislation through an administrative act. That is my concern with this.

I can understand, in my original reading of this particular legislation, why I missed this. It seemed on the surface of it that an appeal mechanism is an attractive option, and it normally would be. It seemed to me, by the way, that an appeal against any decision along these lines would still be open to the court through the Administrative Decisions (Judicial Review) Act. The amendment that I have introduced removes the process of what I consider an inappropriate private action.

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