Page 1076 - Week 05 - Tuesday, 29 May 2007
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satisfy the concerns members have raised here. We need to ensure that legislation that passes this Assembly is as clear, as well-defined and as tight as possible and removes as much as possible all scope for ambiguity, that it avoids matters ending up in the courts and avoids the administrators of the territory’s affairs, through the public sector, taking latitudes that were not the intention of this Assembly when passing legislation.
Whilst I know court proceedings can reflect back on debate and attempt to interpret from that debate what was the intention of this place, there is a duty, I believe, on the Assembly to ensure that legislation is appropriately drafted to reflect the will of this Assembly. I do not have issue with the intent that the Chief Minister points out, but I do have issues in terms of this legislation adequately delivering that outcome.
In the last session of this place we debated another piece of legislation that had been hurriedly put together—as was this—given insufficient time for consideration and which contained a significant error. It is important, I think, that when the bureaucracy is drafting this material they get it right and that they remove scope for mistakes.
I was unconvinced by the discussions I had in the briefing and the assurances that the concerns I had could be allayed. I believe that the ambiguity requires either removal by way of this amendment, which is what I propose, or if the Chief Minister is of such a mind to more clearly define ethical behaviour, then I am sure the opposition, if that amendment was reasonable, would have no problem in supporting that particular amendment.
DR FOSKEY (Molonglo) (11.41): I will not be supporting Mr Mulcahy’s amendment. I acknowledge that there is a fair degree of overlap between the definitions of probity and ethical behaviour, but there is not a total overlap and I think it is important to provide more rather than less guidance to public servants, businesses and courts as to what behaviour is being encouraged and enabled by this legislation.
In legal terms, by including the word “ethical” in section 2A we make it a relevant consideration to be taken into account when engaging in procurement activity. There are plenty of examples of legislation which include “fit and proper person” tests. Many of these tests involve what could be described as partially subjective ethical assessments and we should not recoil from enabling such activities.
Although philosophers, most notably in the political sphere Emanuel Kant, Jeremy Bentham and John Stuart Mill, tried hard to pin down some universal moral imperatives and formulae, ethics is in fact rarely able to be quantified. However, there are universal ethical principles arrived at by different means by diverse cultures and we have seen many of them codified in international legal treaties and laws. I do not believe that we can say that those treaties and laws have had an adverse impact on our decision making at the global level. In fact I would argue very much the converse: the world would be a better place if they were given more prominence in determining public and private behaviours.
Fit and proper person tests often include consideration of behaviour that goes beyond a mere catalogue of legal records and include an assessment of patterns of behaviour that demonstrate that a person would be inappropriate for a position or a licence. I do not think the subjective element of ethical considerations should be singled out for
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