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Legislative Assembly for the ACT: 2004 Week 06 Hansard (Tuesday, 22 June 2004) . . Page.. 2339 ..

MR STEFANIAK: If that can be photocopied and given to members, it might be handy for the debate later on. Thanks Mr Deputy Speaker.

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): I lost track of Mr Stefaniak’s second comment there but I seek leave to make a comment about the scrutiny of bills report.

Leave granted.

MR WOOD: I think it is appropriate at this time that I make a comment that I could, of course, make during the debate on the bill. However, let’s do it ahead of that so people are well aware of the government’s response, which has been circulated.

The scrutiny of bills committee commented on the two different clauses in the bill seeking compensation. Indeed, the process for seeking compensation for loss suffered in a declared emergency, under clause 167, does differ from the process in all other cases, as provided for in clause 197. The difference finds its source in the Emergency Management Act 1999, which introduced a right to reasonable compensation for damages sustained as a result of a declared emergency. The right to compensation has, of course, been continued in this bill.

The right to compensation has been included for declared emergencies as, in a declared emergency, the territory controller has been given significant powers to control the situation. These powers are broader than the powers conferred on the chief officers and are not restricted to use that directly protects life, property and the environment. As the powers given to the territory controller are so broad, it is considered appropriate here, as it has been in a number of other jurisdictions, for example Queensland, South Australia and the Northern Territory to give people a direct right to compensation.

With these greater powers comes a heavier burden of responsibility on the territory to compensate, even when a person may have contributed to his or her own losses. As members would be aware, the right to compensation differs substantially from the ability to claim compensation. As I said, the right has only being available following a declaration of a state of emergency. It has never been applied as a general rule, as there may be circumstances in which compensation is not appropriate. For example, payment of compensation may not be appropriate when the damage would have occurred regardless of the exercise of powers by an emergency service, or when the person suffers damage partially as a result of a commission of crime.

The current Emergency Management Act provides an avenue for direct appeal to the AAT about the minister’s decision on compensation owing to a declared emergency. While the AAT is an appropriate tribunal to review administrative decisions, the courts more appropriately consider decisions about the level of compensation. The courts are better able to consider other matters that may be relevant in determining the level of compensation that is reasonable in the circumstances. For example, a court may reduce the damages available to someone whose car is damaged by the fire brigade in accessing a fire hydrant or fire escape, where the damage is as a result of a person parking the car illegally in front of a hydrant or escape.

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