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Legislative Assembly for the ACT: 2001 Week 2 Hansard (27 February) . . Page.. 314 ..

MR STANHOPE (continuing):

to the way in which the abortion regulations were made. We now find that the Parliamentary Counsel is to be empowered to make a list of editorial amendments, something we all support and something he has been doing, I think, ever since the year dot. We all agree that he should be empowered to make these sorts of amendments, but then we have the addition of unspecified kinds of amendments, namely, a kind of amendment prescribed by regulation. What does that mean?

Before I go on to that in more detail, I point out that this provision has some vital differences to the power contained in standing order 191, whereby the Clerk, acting with the authority of the Speaker, may amend a bill. The Clerk may only amend a bill if he is acting with the authority of the Speaker. In other words, an elected member of the Assembly will consult the Clerk before any amendment is made. There is no such safeguard or limitation on the Parliamentary Counsel. Neither the Speaker nor the Clerk are permitted to amend an act. That is a power reserved to the Assembly as a whole.

There is one other difference in relation to this too; namely, that the Parliamentary Counsel is to be empowered to delegate any of his powers under the bill to a public servant. I assume that the delegation that the Parliamentary Counsel will make will be to a public servant in his office, but the definition of public servant is extremely broad. Whilst one has great faith in the office of Parliamentary Counsel and the expert service they are providing, and in their undoubted integrity, we now have a situation in which the Parliamentary Counsel may make amendments of the kind prescribed under the regulations and that he may delegate any of his powers to a public servant of the ACT. So there is a circumstance here where regulations can be made and a public servant may amend an act, pursuant to a power delegated to him, of a sort that is prescribed in the regulations. Clause 104 provides that the Parliamentary Counsel may make an amendment of a kind prescribed under the regulations.

Normally we are quite relaxed in this place about regulation-making provisions and they are passed without too much comment, but I think there is a concern in relation to this particular regulation-making power. I think there is the potential for this particular power to transfer to the office of Parliamentary Counsel some of the prerogatives of the Assembly. I say all this, of course, without reflecting in any way on the integrity of anybody in the Parliamentary Counsel's office, or any public servant of the ACT. I think we, as a parliament, with this scheme, are creating circumstances-perhaps they are extreme circumstances, but we should always be mindful of extreme circumstances-whereby there is the potential for a public servant to amend an act in a way that is prescribed by regulations which have yet to be made.

Mr Speaker, these provisions call upon the Parliamentary Counsel to make judgments about whether an amendment is merely to bring the law into line with current drafting practice, or whether the change would not change the effect of the law. As the scrutiny committee says, these judgments raise the distinct possibility that an editorial amendment by Parliamentary Counsel would be seen by members of the public, including perhaps the courts and the legal profession, as changing the effect of the law and thus embroiling the office of Parliamentary Counsel in political controversy. I think it is far preferable, Mr Speaker, for the Parliamentary Counsel to remain independent and impartial, as he is, and continue to provide the excellent service that the office provides to the Assembly. No potential circumstance should be created which could involve that office in any way in political debate or political controversy.

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