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Legislative Assembly for the ACT: 2003 Week 13 Hansard (27 November) . . Page.. 4790 ..

MR WOOD (continuing):

15 November 2003. However, it remains necessary to validate those fees charged prior to 15 November 2003, which were not authorised by a valid determination.

Briefly, the history concerning this matter is that the last valid determination under the old Cemeteries Act was made in June 2000. Documents purporting to increase these fees and impose fees for new services were prepared in subsequent years. They were signed by the chairperson of the Canberra Cemeteries Trust, who had been given a delegation by the relevant minister in the former government to determine fees for the purposes of the act.

Unfortunately, none of these documents was ever notified and presented to the Assembly, as is required under the Legislation Act, with the result that they were to no legal effect. This means that, to the extent that any fees charged in reliance on these documents exceeded the fees set in the last valid determination in June 2000, there was no legal basis for the charging of those fees. The amount involved is considerable, in excess of $2 million.

As I mentioned earlier, the situation was complication by the repeal on 27 September 2003 of the legislation under which the last valid determination was made. Because the determination was not saved, it ceased to have effect on that date, with the result that there was no determination at all in place authorising the charging of fees for cemetery and crematoria services. This was remedied with a new determination under the new act, effective 15 November 2003.

The bill has the effect of validating fees which have been charged in reliance on the documents prepared as fee determinations, even though those determinations have not been validly made. While it is always regrettable to have to legislate to remedy administration process failures of this kind, as members will appreciate, this is not the first time that an ACT Assembly has been asked to do so. Even with the best intentions of avoiding similar situations in the future, it would be unrealistic to think that this will be the last time an ACT Assembly will be called on legislatively to rectify a procedural failure.

The approach taken on this occasion and other occasions has generally been that a valuable service has been provided for a fee and that the fee charged should therefore be validated by enactment. That is not to deny, of course, that every effort should be made to avoid these problems in the future. The bill includes an amendment to the Cemeteries and Crematoria Act-members will remember the time that took to get through-which is directed precisely at that.

The bill amends the act to provide that the power to determine fees cannot be delegated by the minister. It does appear that the delegation of this power may have contributed to the failures of process which resulted in a series of failed determinations. I have now made a valid determination and, in future, it will be the minister who makes any new determinations. I commend the bill to the Assembly.

Debate (on motion by Mr Cornwell ) adjourned to the next sitting.

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