Page 4043 - Week 13 - Thursday, 6 December 2007
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Given the current majority government, Labor Party members alone can dictate the laws that apply to poker machines. In making a decision on the regulation of gambling machines, they are directly influencing how much money will therefore go into their party coffers. It seems appropriate to me, therefore, that the issue be thoroughly considered.
Secondly, on the matter of how appropriate the standing order is to deal with the current situation, the standing order states that a member shall not take part in discussion or vote on a question where they have a direct or indirect interest in a particular matter. The application of this is to be decided by the Assembly. It would seem that the provision really only contemplates individual members, whereas in this case we are concerned with the whole of a majority government, given that one party is in that position. This necessarily makes it ineffective for the Assembly to decide on the application of the provision.
As Mr Smyth pointed out, how can someone with a conflict of interest decide if they have a conflict of interest without having a conflict of interest? I think that we should refer the issue to the commonwealth so that it might amend the self-government act so that it is an independent body or an all-party, equally represented committee that decides where a conflict of interest occurs and the best way to address it.
There is a second issue which I believe arises when considering the adequacy of the current standing order to deal with the current situation. Appreciating here that I am essentially providing an argument for the government, I feel that it is important that things be done properly, and I would like to take the opportunity to address what I perceive to be a shortcoming in the standing orders. I draw Mr Smyth’s attention to the wording of standing order 156. The pertinent question is whether or not the licences granted by the commission can be characterised as a contract with the territory, the necessary requirement for the standing order to apply.
I would not like to see this matter go to a committee only for the committee to decide that the standing order did not apply, as opposed to dealing with the substantive issues. There is a very strong legal argument that there is no contractual arrangement between the poker machine licence holders and the territory. Indeed, the relationship is an administrative one. I refer the Assembly to the High Court’s decision in Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424. This was a case where wool producers tried to sue the commonwealth over the lapse of a wool subsidy scheme. In that case it was found both by the High Court and the House of Lords that there was no contract. In their consideration of the case it was found that the relationship could be characterised as administrative rather than contractual, which I have been advised is also the case here.
There is no offer to purchase any good or service on the part of the territory, nor is there a provision of any good or service by the territory, nor is there the requisite intention to create contractual legal relations. Should the issued licence be revoked, the licensee would need to rely on administrative law for a cause of action against the territory, as they would have no claim for a breach of contract. Similarly, if the licensee breached the conditions of legislation, the government would not sue for
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