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Legislative Assembly for the ACT: 1997 Week 12 Hansard (13 November) . . Page.. 4215 ..

MADAM DEPUTY SPEAKER: The question is: That the amendments be agreed to.

Mr Moore: Mr Humphries cannot help himself.

MR HUMPHRIES (Attorney-General) (9.47): No, I cannot help myself, Madam Deputy Speaker. I could rise to underline the comments made by my colleagues Mr Stefaniak and Mr Cornwell, and I certainly do. I think that the arguments they have put to the house are very good arguments. I think it is a little bit insulting to the people of the ACT, among others, to be pre-empting an outcome in a process to do with changes to the Australian Constitution.

I also think we overlooked the fact that, if we examine oaths of office and things of that kind in republics, we will also find quite often, I suspect, that even in second and third tiers of government the legislation requires that an oath of office be sworn to the head of state, not merely to the people of the jurisdiction concerned. So, that is an argument, I think, that needs to be borne in mind. In taking out references to the Australian head of state at this time and replacing them with references to the people of the ACT, we may feel that we are modernising our law; but we are also, I suspect, putting it at odds with practices elsewhere.

Madam Deputy Speaker, the reason I have risen tonight is actually to raise a much more practical problem with what has been suggested. I note that there are actually three lines of the oath and affirmation. We are taking out the first two lines and substituting for them this line about well and truly serving the people of the Australian Capital Territory. The third line, which remains in the oath and the affirmation, reads:

... that I will do right to all manner of people according to law, without fear or favour, affection or ill-will.

There is an important point in the difference between the language used there and the language used in the amendment moved by Ms Tucker. It is drawn out by the fact that we need to bear in mind that the people who appear before the ACT Small Claims Court are not merely residents of the ACT; they are residents of other jurisdictions as well, who are entitled to come before our court and seek justice from our court. None of our courts are reserved exclusively for the people of this Territory. So, we have an oath or affirmation being sworn or affirmed by a referee of our court, promising to serve the people of the Australian Capital Territory.

Mr Moore: By giving justice to all.

MR HUMPHRIES: I am not sure that that is the way you would interpret that, to be frank. If you have sworn an oath to serve the people of the Australian Capital Territory, I think it is open to people to interpret that to mean that you serve them and you serve their interests; and, in doing so, it could be argued that you are under an obligation, either by oath or affirmation, to favour them over those of other jurisdictions - residents of other States who might come before those courts. I have not raised this point; it has been raised with me by an officer of my department, who has made the point that it is a concern in terms of the drafting of these things.

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