Page 2629 - Week 07 - Tuesday, 28 June 2011
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If you go to the bill or the explanatory memorandum, there is actually no indication of what a breach here is. The letter continues:
Section 148A requires a director to discharge his or her duties for “in the best interests of the club and a proper purpose”.
While there is precedent in federal law, it is very unclear how this would apply to a club. I know the clubs had a discussion with the commissioner and indeed they put an example to him. I quote again from the letter:
It has been put to me for example, that a director suggesting funds be directed to purposes other than the core purpose of the club as enshrined in its constitution may represent a potential breach of Section 148(A).
In discussions with Greg Jones, he has not ruled out that possibility.
So the dilemma here is this: what is the purpose of this and what is the need for it? If there is no example cited to justify what the provision is required for, if there is no explanation in either the bill or the EM as to how it would be applied, it certainly is a very broad law with a very broad power. When we make laws like this we certainly should try to work out with a great deal of clarity what it is that we are attempting to address here.
Other questions are then raised. Again, to quote ClubsACT:
In What Circumstances Could the Commission Launch an Investigation
…
No Independent Third-Party Review Prior to Decision
Then it goes on to talk about the lack of direct powers in relation to the directors. There are a significant number of questions here but I do not think people are saying, “Don’t do it.” I think the request from the club sector is that this clause be deleted today and discussed and that it be made entirely clear as to what is the objective of the government in this case. Why does the commission need this power?
Unless we are making laws with great clarity, then I suggest that we should not make them. If we are making a law that addresses something that is vaguely seen as a threat in the future, that is a very dangerous way to start because broad powers like that can clearly be used in a broad number of ways. I think we should all be concerned with that. With that in mind, until we get such clarity, until we get answers to those questions, I think it is appropriate that this clause be rejected.
MR BARR (Molonglo—Deputy Chief Minister, Minister for Economic Development, Minister for Education and Training and Minister for Tourism, Sport and Recreation) (12.05): The government will not be supporting Mr Smyth’s amendments, so we will be opposing their opposition—a context of a double negative there, Mr Speaker.
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