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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 576 ..

This is quite the reverse of what is taken to be the hallmark of an exercise of judicial power—that is, that it does not affect the rights or obligations of someone. An issue that arises is whether it is competent for the Legislative Assembly to vest such a non-judicial power in the Supreme Court. There is a very complex matter that is not pursued here. One way to pursue the issue is to ask whether the Kable doctrine has the result that the Supreme Court cannot be vested with non-judicial powers that are incompatible with the exercise by the court of the judicial review power of the Commonwealth—see D. Clark, Principles of Australian Public Law 2003.

Secondly, the matter might be argued in terms of the ambit of the power to make laws that have been conferred on the Legislative Assembly by the Australian Capital Territory (Self-Government) Act 1988. It might be argued that in this power there is an implicit limit to the effect that it would not be exercised so as to confer on the Supreme Court a non-judicial power, the exercise of which would be incompatible with the exercise by it of judicial power. Whether or not there is any constitutional problem with clause 22, it underlines the point that this power is not one that traditionally has been thought appropriate to confer on a court. The second point to note is that it is likely that there may not be any avenue of appeal from a decision of the Supreme Court acting under clause 32 to any Federal Court including, in particular, the High Court.

This is because the exercise of the power in clause 32 does not involve the adjudication of a matter and/or that there is not involved an exercise of judicial power. Moreover, it may well be that no person holding office as a Federal Court judge could sit on an ACT Court, whether the Supreme Court or Court of Appeal, when that court was called on to exercise the power of clause 32 or to hear an appeal against the exercise of that power. This would be so on the basis that the Federal Court judge will be involved in the exercise of non-judicial power incompatible with his or her office as a Federal Court judge. See the Wilson case above.

MS DUNDAS (11.22): Just briefly, I agree with the amendment Ms Tucker has put forward. It is proper that Assembly members should have some obligation to take action if they are alert to the fact that a new law is infringing the human rights of ACT residents. It is a very important amendment that Ms Tucker is moving and I thank her for moving it.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Community Affairs and Minister for Environment) (11.22): The government will not support this amendment. It seeks to provide some clarity and certainty to the effect of the declaration of incompatibility. My advice is—and it is strong advice that I have received from my department and my advisers—that this is an important provision. It is an important safeguard in terms of the meaning or impact or potential impact of a declaration of incompatibility. There are potentially significant implications in not retaining this particular provision as an explanation of the intent and the meaning of the declaration of the incompatibility or what it might lead to or mean. I understand the point that is being made by Ms Tucker, supported by Ms Dundas, but the government cannot support this amendment. I oppose it strongly on the basis of advice to me on its importance in terms of an appropriate interpretation and in order to avoid any doubt around the real effect of the declaration of incompatibility. I regret that the government cannot support this amendment.

Amendment negatived.

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