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Legislative Assembly for the ACT: 1997 Week 9 Hansard (2 September) . . Page.. 2780 ..

MR KAINE (Minister for Urban Services and Minister for Industrial Relations) (5.22): The Government does not support Mr Moore's amendment. This morning we debated at length the question - it was with disguise; but we were actually debating it when we accepted Mr Moore's amendments in connection with the Minister's discretion to issue an instrument or not to do so - of when a matter ought to be a legislative matter and when it ought to be an administrative matter. In accepting Mr Moore's amendments this morning, we accepted that, whenever a Minister issues an instrument of exemption, it is a legislative matter and ought to be subject to review in this place.

What we are now talking about, however, is the case where the Minister does not issue an instrument. Since the Minister chooses not to issue an instrument, it is not appealable to this place. There is nothing to appeal against, except a refusal of an application. If we accept Mr Moore's amendment and delete this section and remove the right of an aggrieved person to go to the Administrative Appeals Tribunal, where then does the aggrieved person go? Mr Moore has referred briefly to the appeal rights under the Administrative Decisions (Judicial Review) Act. Those of us who understand that Act know that that process is often quite complex and is relatively costly. Why would we choose to force an aggrieved person who had sought an exemption and been refused it out of the Administrative Appeals Tribunal process in favour of the AD(JR) process, which is more costly? To me, that is an abrogation of a person's rights.

I believe the Government's amendment is a reasonable one that ensures that a person whose application is not met by the Minister has a reasonable recourse, and that reasonable recourse is to the Administrative Appeals Tribunal. To remove it, in my view, is really making it more difficult, and that is not something that the Government would wish to do. I think we should make it as easy as possible for people to challenge such a decision if they see it as in their interests to do so.

MR BERRY (Leader of the Opposition) (5.25): This morning some amendments were passed in relation to this matter. At the risk of drawing some flak about commenting on that decision, I just want to discuss one of those amendments, and that is Mr Moore's amendment which related to proposed paragraphs 7(1)(a) and (b). It went to the issue of the Minister, on his own motion or an application in writing, dealing with exemptions. I should also point out that the exemptions regime which is proposed replaces a previous exemptions regime which was set out in the original legislation and which goes along similar lines - similar only. Those amendments which were carried this morning were, as I have been informed - I was given a description that aptly describes them - a signpost of what can or cannot happen with legislation. The Minister may do something or somebody may apply in writing. I am told that, absent those provisions in the legislation, one could make an application in writing and the Minister still could act pursuant to proposed subsection (3) and decide accordingly; and the matter might find its way before the Administrative Appeals Tribunal subsequently.

If the Minister were to refuse to make a decision and the AAT caused the Minister to make a decision, or the decision of the AAT was for the Minister to make a decision, then that instrument would find its way back into this place for possible review under the Subordinate Laws Act. In that case I have no difficulty with the provision. Then the decision of the Minister is reviewable by this Assembly. The appeal is then reviewable, in effect, by this Assembly.

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