Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 1998 Week 4 Hansard (24 June) . . Page.. 915 ..

MR SMYTH (continuing):

No, we cannot prosecute a company for doing something that the current law actually provides for. Could we prosecute, for example, if the authority authorised a company to operate inside the ACT milk market? No, we could not, because the authority has the power to approve such operation. Could we prosecute if a company started up, for example, to distribute its products without seeking the approval of the authority? Yes, we could, and we would, because it would be breaching the requirements of the Milk Authority Act. Could we prosecute before it had started to distribute the products? No, we could not. As I have said already, you cannot prosecute for an intention.

Mr Temporary Deputy Speaker, we have heard quite a bit today, as we did yesterday, about the possible impact of competition policy on the milk industry. It is important that we be quite clear about these facts. If Davids Holdings or National Foods comes into the ACT milk market on 1 July this year, it will have nothing to do with competition policy, and it will actually have a lot to do with a longstanding and well-known defect of the Milk Authority Act which I have information has been known about since at least 1989. In essence, the Milk Authority Act is actually inconsistent with the Australian Capital Territory (Self-Government) Act. So, in taking any legal action, this Assembly must be aware that the Territory cannot take action which will ultimately place it in breach of its own Act or of the Commonwealth law. Members are well aware that section 92 of the Constitution and section 69 of the Australian Capital Territory (Self-Government) Act require that trade and commerce between the Territory and States must be free. What we have here, Mr Temporary Deputy Speaker, is an anomaly which has existed for at least a decade but which, up until this time, either has not been forced or has not been proven to be defective.

Mr Temporary Deputy Speaker, the only way we can conceivably get around this problem is actually to seek to have the Commonwealth amend section 69 of the self-government Act. We should also be aware that, I think, there is absolutely no way the Commonwealth would agree to that because, in fact, if section 69 of the self-government Act, which mirrors section 92 of the Constitution, were amended, what it would actually say is that there should be free and fair trade between the States and Territories, but not with the ACT. That would be arguing against the Constitution as a whole applying to Canberra.

Mr Temporary Deputy Speaker, I am aware that the Milk Authority itself has known about this since the beginning of self-government. Indeed, prior to the election of the first ACT Government the members of the authority provided a briefing to the incoming Minister. It is curious because, to quote from the briefing that went to the incoming Minister in 1989, it says:

Section 69 of ACT Self-Government Act: The Authority and the Australian Workers Union have expressed some concern over the possible and potential effect of s69 of the Self-Government Act on the operations of the Authority and the ACT milk industry.

Section 69 mirrors s92 of the Australian Constitution i.e. "trade and commerce between States shall be absolutely free".

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .