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Legislative Assembly for the ACT: 2000 Week 6 Hansard (25 May) . . Page.. 1860 ..

MR SMYTH (continuing):

Mr Berry said he had amendments that had the backing of the law office. He said they were not drawn up on the back of an envelope. He cannot say that one arm of the government has given him good advice he believes but then say the advice from the other arm of government is a bit dodgy. These people are professionals. It is legal advice, and of course it is challengeable in the courts. This is done in good faith. We have given briefings. We have endeavoured to make this work.

The bill we put forward does several things. It gives the commissioner an organisation. The bill creates the commissioner as both an individual and a corporation sole. In other words, the commissioner is a single-person authority. I think that was the intent of what the Assembly passed last year. No boards of management are involved. No-one other than a minister using the existing clearly defined role of accountability to the Assembly under the act sits above the commissioner. That is what the Assembly wanted last year. This structure gives the commissioner real management independence.

Clause 25H of the bill provides that the corporation has perpetual succession, may sue and be sued, has all the privileges and immunities of the territory and has all the powers of an individual. Importantly, it also declares the commissioner to be a territory instrumentality for the Public Sector Management Act. I would draw members' attention to the note after clause 25H, which says that the commissioner is a territory authority for the Financial Management Act 1996. This places beyond all doubt that the commissioner will have all the necessary powers under the Financial Management Act and the Public Sector Management Act to conduct the functions allocated to the commissioner.

Under our arrangements the commissioner will not be beholden to a chief executive for resources, and no chief executive will be accountable for the management actions of the commissioner. The commissioner will not have a board of management to deal with or through. All the accountability and responsibility chains are clear and are appropriate.

Mr Berry has an amendment that would put into effect option 5. The amendment would insert a new section 25K which would have the effect of applying parts 2 to 5 of the Financial Management Act to the commissioner, and deeming the commissioner and staff to be a department and deeming the commissioner to be a chief executive for the purpose of the act. It would enable Mr Berry's staffing provisions, the flaw in his original legislation, to operate properly.

By incorporating this amendment, the Assembly would provide a legislative structure that would enable the commissioner to have an independent resource management power. In the government's view, this is not, however, the best way to do it. The Government Solicitor ranked it as the least preferred option to make this whole thing work as effectively as everybody in this place wants it to work. I read the Government Solicitor's advice on option 5, Mr Berry's option:

Are we confident that this is what Mr Berry's option will do?

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