Page 1879 - Week 05 - Thursday, 16 May 2019
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Second, section 37 of the act currently states that a negative notice must include “the reasons for the negative risk assessment” and what steps the applicant can take to seek a reconsideration of that decision. Clause 37 in this bill, however, alters this requirement such that:
the commissioner must not tell the person the reasons for the negative risk assessment if the information must not be given to the person under this Act or any other law in force in the ACT.
I fully understand the reasoning behind this inclusion. My concern is about what exactly an applicant in such a situation will be told.
When I raised this concern with the minister’s office, I was informed that the precise wording of such a notification has not been determined yet but will be before the act commences in July next year. I suggest that great care be taken in preparing the wording of this correspondence. Merely telling people that they have failed a risk assessment without providing any reason or explanation is going to raise questions and quite possibly generate anger.
If such a person were to contact my office, I would be compelled to explain the sole reason I know of why explanations cannot be included in a negative notification: that an active investigation is underway and that disclosing reasons for a negative notification could compromise that investigation. That is the sole reason given in the explanatory statement. If that is the reason, then I am not sure it would not be better to figure out a way of letting a person know that generally, rather than having a very angry constituent learn it from his or her local member.
I note that in the updated explanatory statement the minister did address the scrutiny committee’s concerns about such a person’s right to review by pointing out that application to the tribunal will still be an option and that the tribunal can request the relevant information. But this does not change the fact that a clear answer why reasons have not been provided directly to the applicant needs to be included in any notice where that is the case, in order to avoid misunderstanding or complaints. I ask the Assembly to note this concern and recommendation.
Third, clause 43 requires an applicant, upon making a request for reconsideration of a conditional registration, to provide to the commissioner any new or corrected information. This is a wise amendment as it seeks to avoid an administrative loop wherein an applicant can endlessly apply for reconsideration without any additional information. Clause 44, however, removes the obligation of the commissioner to consider this new information. The updated explanatory statement states that this allows the discretion of the commissioner to determine the relevance of the information and whether to consider it. This clarification is useful but, at minimum, it would have been useful to include in the bill itself that any new information must be assessed for relevance. I again ask the Assembly to note this concern.
Fourth, clause 52 introduces the concept of interim conditional registration and lays out the regulations that govern it. The explanatory statement for this clause notes that
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