Page 1273 - Week 04 - Thursday, 8 May 2014
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Members will recall the Auditor-General’s report where it cited advice from Mr Peter Hanks QC:
… because the Treasurer’s reference to the ICRC dated 13 October 2011 omitted to specify the period in relation to which the ICRC was to decide on the level of prices for services, the Price Direction made by the ICRC in Report No 6 of 2013 is invalid because, without the referring authority having specified that period, the power conferred by section 20(1) of the ICRC Act could not be exercised.
And this is on page 48.
On the matter of your failure to specify a regulatory period for the ICRC’s price determination, the Auditor-General’s report cited the Australian Government Solicitor’s advice:
In legal terms it is our view that the ICRC made a jurisdictional error when determining the limits of its powers. Due to faulty terms of reference, the ICRC was never properly seized of a jurisdiction to make a valid price direction for any period.
This is on page 45 of the report. To this, the ACT Government Solicitor responded with the following:
The ICRC is at liberty, albeit within the bounds of reasonable administration decision-making, to determine the period during which the price direction will operate.
This is on page 46 of the report. Whether it was Mr Barr’s intention to omit the requisite period of the determination, thinking that the ICRC has the power to determine the period of its price determination, and to confer discretion on the ICRC to choose the regulatory period, we will never know.
On the matter of Mr Barr’s failure to specify a regulatory period for the ICRC price determination, the Auditor-General found that the June 2013 price direction may have no legal effect due to ineffective terms of reference for the investigation.
For the sake of this bill, it is also worth while to note the Auditor-General’s opinion that a definitive conclusion on this issue may not be achieved until tested through a judicial process. Yet the government’s response to the Auditor-General’s finding is to introduce appropriate legislation to ensure the validity of the price determination. So in the hubbub of disagreement between the Auditor-General, Mr Barr, ACTEW, the ICRC, the ACT government and Mr Hanks, what we have now is yet again another well and truly Andrew Barr train wreck of process.
The ICRC bill should in reality be called “Mr Barr’s Independent Competition and Regulatory Commission the Treasurer is Right at All Costs Bill 2014”. What is the proof for this? Pretty much the issues that were raised regarding the validity of the termination due to the Treasurer’s omission in his terms of reference of a specified regulatory period for the determination. So this bill aims to fix that by just reinforcing that it is valid, and in effect “it is valid because I said it is valid”.
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