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Legislative Assembly for the ACT: 2004 Week 05 Hansard (Tuesday, 25 May 2004) . . Page.. 2165 ..

I have also been advised that this may not be read by the courts in the way that the minister intends. There are comments in the scrutiny committee report on this, on page 7:

The Committee notes that both subclauses 9(2) and (3) speak of the Minister being vested with an “absolute discretion”. It is unlikely that this wording does much to restrict judicial review of an exercise of the relevant power. A court would still fix limits to the scope of the discretion by reference to the objects of the statute. Given the high ‘policy’ content of the discretion, those limits may be very broad.

The Committee raises the issue of whether it is ever desirable to provide for an “absolute discretion”. Such a provision does raise the question of whether there has been an insufficient definition of administrative power.

The width of the discretions, and the point of the question just asked, is underlined by subclause 9(4) which has the effect of amending other laws which concern powers that are, by clause 9, exercisable by the Minister.

That is an interesting opinion in terms of the real force of using language like “absolute discretion”. But basically my amendments are still to remove “absolute discretion” because it seems to me to be fundamentally wrong. Together with the removal of standard appeal paths to check decision-making, it is the beginning of steps towards a dictatorial system of government. We know governments not by what they say but by what they do.

MRS CROSS (12.19): Mr Speaker, as members know, I had originally intended to move these amendments, which I circulated yesterday. In fact, the three amendments that I circulated I have been working on for some time. The reason I chose not to move amendments 1 and 2 was that I sought further legal advice this morning and the advice that I received suggests that both these amendments will create only further delays in the building of the road, an outcome that I do not think is beneficial to most Canberrans. That is why I chose not to move these amendments.

MR WOOD (Minister for Disability, Housing and Community Services, Minister for Urban Services, Minister for Police and Emergency Services, and Minister for Arts and Heritage) (12.19): The absolute discretion provisions are strong provisions. There is no doubt about that. But to remove them would create great difficulties. It would only serve to reopen the doors to a legal challenge, and that’s what this bill is seeking to contain. The absolute discretion provisions are intended to protect the minister’s decisions, to the greatest possible extent, from challenges in the Supreme Court using the prerogative writs.

Such an amendment would remove this protection and potentially leave open each decision of the minister to grant an authorisation or to impose or not impose conditions on an authorisation. They would all be open to challenge, and every challenge could take some considerable time through the court process to resolve. That simply means further delay, and that is what this whole bill is about—trying to prevent further delays. We do not support that amendment.

MRS DUNNE (12.21): The issue of the minister’s absolute discretion is the one that has occupied the thinking of most members of this place the most. When one reads things

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