Page 1061 - Week 03 - Thursday, 26 February 2009
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It is also the case that the Attorney-General made no attempt to hide what he had done. He wrote to the committee and made a full explanation based on the advice provided to him of what had happened. While the Greens have had occasions on which we disagree with the opinion of the Attorney-General and his officers, I do not think that they can be charged with gross incompetence, and I think it would be best to let this particular stuff-up be chalked up to experience and to serve as a reminder that all public servants and advisers need to trace the precise chain of statutory authority on which they and their ministers rely when they exercise public powers.
As to the amendments that are more broad than the ones we have been referring to in relation to the minister’s decision, I understand that some of these amendments are the result of belated consultation with affected parties who only realised what effects these laws would have around the time they came into effect. This is one of the problems with consultation, especially when the government relies on organisations and individuals who do not have a direct personal or financial interest in the matters under consultation. It is difficult for such people, who are often extremely busy, to focus their minds on an issue when it is still at an abstract level, long before the laws under consideration come into effect and long before their client or interest group are personally impacted by the operation of any new laws.
I think this is a salient point to bear in mind both for the government and for departments when dealing with such complex and substantial pieces of legislation as the JACS bill that passed through last year. It is almost inevitable that with complex pieces of legislation some details will be overlooked and not all ramifications will be recognised and considered prior to the act commencing. Whilst it is not a fault of the drafters when these things happen, it is often the case that drafters are able to identify these kinds of problems. In fact, it is a testament to the abilities of the staff in the ACT’s parliamentary counsel’s office that we do not see these types of amendments more often.
Lawyers who specialise in drafting are a rare and invaluable asset for any jurisdiction. It can be difficult for those of us who are not involved in drafting legislation to appreciate the level of detail and technicality required to ensure that the words of a provision will mesh seamlessly with all existing legislation and give effect to the intentions of the instructing officers and then of the Assembly. Certainly, my own practical experience this week as we looked at the feed-in tariff laws which will come up for debate later today have borne that out, as my intentions and the efforts to then draft language that reflects those intentions have taken quite some discussion and quite some going back and forth.
I will now explain why I think these appointments that we were referring to earlier were actually illegal and, consequently, why these amendments proposed today by the minister are essential. Under section 228 of the Legislation Act, the minister must consult with the committee. The Assembly committee’s recommendation is purely exhortatory, and the minister can disregard it with procedural impunity. However, the process of consultation with the committee was considered by the Assembly to be of such importance that the minister was commanded to consult.
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