Page 3180 - Week 10 - Wednesday, 24 August 2005
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Before I get into my remarks on this motion, I must explain what I mean by “stand aside”. I know that we are probably not going to win this motion. I will be very surprised if the Attorney-General actually says, “Yes, all right. I’ll stand aside.” But we say that it is in the public interest that he should. It means that he should stand aside as Attorney-General for the duration of this coronial inquest into the January 2003 bushfires—nothing more, nothing less. It does not affect him as Chief Minister. It does not affect him in his other capacities. But if he took our advice and stood aside for the good of the legal system in the ACT, the legal system could be seen to be working independently of the whims of the government.
The genesis of this matter, as I said, occurred on 20 October 2004. Matters Nos SC 697 and 698 of 2004 were filed simultaneously in the Supreme Court. We are not too sure if the government initiated this or joined in, or what. But the facts are—and I think we have had these facts canvassed in the past in this place—that these two actions were filed at the same time, the one by the nine individuals first, immediately followed by the one by the government.
For a few days it seemed that people were not exactly sure what that meant. Then it started to sink in. When some of the criticisms and concerns about the government’s action first came out, I can recall this man, this Attorney-General, saying that he had three choices. His three choices, he said, were to do nothing, to join in the appeal or to actually back the coroner. What started to ring bells, especially amongst members of the legal profession but also in the wider community, was the action he took in intervening, in joining in, in going along with it—perhaps he initiated it—but certainly going against his own coroner. The inquest had run for 84 days, with an anticipated one week to go, and he took the unprecedented step, not only in ACT legal history, but also in Australian legal history, of a government and an Attorney-General appealing against their own coroner.
That has caused significant concern in the legal community. It has caused significant concern amongst fire victims, indeed in the general community. I have been in this Assembly for a while. I have also been a practising solicitor and barrister. I spent nine and a half years with the DPP in the territory and probably three to four years in private practice with two different firms. As a member of this place quite often I am in contact with people in the profession and they will criticise the odd thing, the odd law they do not like. There are things about the civil torts law they do not particularly like. There will be criticism when it affects them.
But I do not think I have ever seen so much concern directly expressed by members of the profession as that about the separation of powers. That has been mentioned to me not just by a handful of people. It has also been mentioned to me by a large number of practitioners, some of whom probably support Mr Stanhope’s party, and I have no idea how some of them vote, but practitioners of long standing who feel that this is a very genuine issue involving a breach of the separation of powers.
The doctrine of the separation of powers is a fundamentally important doctrine. It ensures that our whole system of government can continue in an orderly way. It provides for the separation between the executive, the legislature and the judiciary. The independence of the judiciary is crucially important, and the implication that maybe
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