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Legislative Assembly for the ACT: 1997 Week 12 Hansard (13 November) . . Page.. 4070 ..

MR HUMPHRIES (continuing):

The Bill provides that, where any such direction in respect of a funding agreement is issued by the Minister, that direction will be tabled in the Legislative Assembly within 15 days, with the relevant funding agreement. My intention here is to ensure, in so far as it is open to this Assembly to do so, that the Commonwealth will be accountable, at least to this extent, to the Territory for the terms on which it has insisted legal aid must be provided in the Territory in respect of Commonwealth matters.

There are a number of provisions in the Legal Aid Act which will no longer be applicable, either in full or in part, to the provision of legal aid in Commonwealth matters as a result of the new agreement. For instance, section 12 of the Act currently requires the commission to determine guidelines for the provision of aid. Under the agreement, it is the Commonwealth which will determine guidelines for the provision of aid in Commonwealth matters and those guidelines will need to be applied by the commission pursuant to the direction which I, as the relevant Minister, will make. Section 12 will therefore continue to apply only in respect of Territory matters.

This is true of a number of other sections in the Act. The Bill therefore provides that particular parts or sections of the Act, set out in new section 8A, will only apply in relation to the provision of legal assistance under a funding agreement to the extent to which those provisions are not inconsistent with the funding agreement. Taken at face value, Mr Speaker, this provision may cause some Assembly members some disquiet. It needs to be understood, however, that the provision does not involve any effective subordination of the Legislative Assembly's powers to an intergovernmental agreement. This is because, quite simply, the Assembly does not have legislative power with respect to the provision of Commonwealth legal aid in Commonwealth matters. Territory legislation can apply to Commonwealth matters only to the extent that the Commonwealth agrees it will apply. The Assembly cannot dictate to the Commonwealth how it will spend its money on legal aid. The most it could do is to refuse to permit the Territory Legal Aid Commission to provide services, fully funded by the Commonwealth, to applicants for legal aid in Commonwealth matters.

Thus, while some members may consider this arrangement problematic or unpalatable, in respect of legal aid, the options are stark: Either the Territory proceeds with this new agreement, which provides for a significant increase in legal aid funding for ACT citizens, and with the legislation required to implement it effectively, or, almost certainly, the ACT community will no longer have available to it legal aid funding in Commonwealth matters and the Legal Aid Commission will have to be halved in size. The choice for the Government and the Assembly is plain. I stress that this arrangement is not typical of intergovernmental agreements and national legislative schemes, which do often involve some ceding of legislative power to the Executive. The reason that this legislation and the relevant agreement with the Commonwealth must be distinguished from those schemes is, as I have said, that the ACT Assembly has no legislative power with respect to Commonwealth matters.

I would reiterate that the ACT cannot expect, and nor can any other jurisdiction expect, to dictate to the Commonwealth how it should spend its money. This is something for which the Commonwealth will ultimately be accountable to the electorate. Indeed, I tried very hard to convince the Commonwealth to change its mind on legal aid generally. I opposed the Commonwealth's legal aid changes as strongly as it was possible to do.

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