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Legislative Assembly for the ACT: 1998 Week 9 Hansard (19 November) . . Page.. 2661 ..

MR KAINE (continuing):

The Prasad report is the start point of all of this. It set down some principles, and by and large, until now, those principles have been accepted by the Government and successive determinations have generally followed those principles. I think the anomaly in my case in this most recent document stems from the publication of a determination based on the most recent determination before that. In the letter that the Chief Minister sent out at the time, on 5 August, I think it was - this determination was dated 4 August - she made the point:

The arrangements for the new allocation which are set out in the attached table reflect the relativities in place at the end of the last financial year.

Indeed, they did. The point is that the relativities in that previous determination were no longer relevant in my case, because my status had changed. We can argue the toss about the means by which I became a crossbencher, but the point is that, whatever the circumstances, I am a crossbencher. Facts are facts. Since the Chief Minister at an earlier time had determined an appropriate quantum for staff salary for crossbenchers, then I do not think there is any argument that could be mounted that would say that that quantum should not apply to all crossbenchers. It cannot be applied to only three. If she had done it deliberately - and I am giving her credit for the fact that she did not do it deliberately - she would be saying that I should be deprived of staff resources which she has previously determined should be available to crossbenchers. In other words, she would have deliberately deprived me of resources which I need to do my job in this place.

I could go so far as to suggest that if that had been done deliberately it might be regarded as an undue restriction on a member of the Assembly in performing his duty. Something tells me that somewhere in the self-government Act it is an offence to do that. I have no doubt that the error here was inadvertent, although after a period of nearly three months nothing has been done to rectify it. That is why I am taking the step today to disallow the instrument. It is a discriminatory determination and I think it should be corrected.

I think that the underlying principle when Ministers exercise discretionary powers and make determinations has to be that such determinations cannot be discriminatory. In the interests of common justice, you cannot make a determination which favours one or disadvantages another. It must be incumbent on a Minister, in exercising a discretionary power and making a determination, that the consequences of the determination fall equally on all of those people to whom it applies. If that is not the case, then we have an inbuilt inequality and inequity in the system of administration. I do not believe that that is in any way intended, nor do I believe that it is acceptable.

A couple of unsatisfactory events have occurred during the three months or so that this determination has been in place. Mr Berry had indicated an intention to move to rectify it. In fact, he has a motion on the notice paper. I have brought this motion forward today because he appears a bit reluctant to bring his motion forward. As I have said before, if I do not move today, then I lose the power personally to seek to have the matter rectified. I am solely in the hands of others as to whether the matter is rectified or not.

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