Page 3498 - Week 11 - Thursday, 15 November 2007
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provide people with advice and ensure that the two arms of this process are working in concert. It is a carrot and stick approach. I am sure people understand they can be given good advice and, if they flout the law, be it on their own heads regarding the consequences that apply.
This bill also provides for half-yearly reports to be submitted to the Assembly by both the commissioner and the chief executive of the Office of Regulatory Services. The opposition welcomes the statutory reinforcement of the obligation of the government to account to the Assembly for its actions. Such reporting requirements are an important part of the scrutiny of government performance. It is certainly my hope, and the hope of my colleagues, that these reports will contain sufficient information to allow proper scrutiny of the regulatory actions of government in this important area. We have certainly not always enjoyed an attitude of accountability from the present government. In fact, this Assembly was recently prevented from giving full scrutiny to the budget when the government took the unprecedented step of shutting down debate on this issue. Nonetheless, it is heartening to see that this Assembly will be afforded a guarantee of at least some accountability through the mandatory reporting provisions of this bill.
In terms of immunity from suit, despite our support of this bill, one curious aspect of the bill is that the government has again chosen to repeat legislative drafting changes that have been subject to criticism in the previous Occupational Health and Safety Bill, without having any regard for whether there is a legal effect to this change.
As with the previous Occupational Health and Safety Bill, the current bill amends the provisions for immunity from suit so that staff administering the regulations are immune regarding “honest” acts or omissions in connection with their functions. This replaces the previous immunity which applied in relation to acts or omissions done “in good faith”. I again draw this matter to the attention of the Assembly because, as I have previously warned, there is judicial authority to the effect that “good faith” and “honesty” are distinct legal concepts which do not mean the same thing. I would hope that those who are involved in providing advice to the government will listen to the point that we are making, by way of a note of a caution. If this is indeed the case, as the case law on the issue has demonstrated to us, this would mean there is a substantive legal effect to this change of terminology. It is not merely a new drafting practice, as has been suggested.
As with the previous Occupational Health and Safety Bill, the officials, in briefings on this new bill, have again advised that this is merely a whole-of-government drafting change undertaken by the Office of Parliamentary Counsel. However, when pressed on the issue, they conceded they had received no advice on whether or not this amendment would have any substantive legal effect. Moreover, despite having raised this in the Assembly previously, they were not aware of the issue. I would urge the minister to ask these questions so that he might be satisfied about the case law on this matter, which I suggest should not be dismissed.
In follow-up inquiries undertaken by my office, which included supplying judicial authority on this question to the government, I have yet to receive any response on what the government believes the substantive legal effect of this change will be. This is now the second time in a matter of months that I have spoken in the Assembly to ask the government to ensure that it knows the effect of its own legislation.
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