Legislative Assembly for the ACT: 1993 Week 08 Hansard (Tuesday, 17 August 1993) . . Page.. 2321 ..
individuals within the Government should be more open to criminal prosecution than they are now. That would clearly create a more difficult environment in which those decisions that are necessarily part of government would be made. But I do raise these issues and I think they deserve to be seriously considered.
I make one last comment on these two Bills. The Minister in his presentation speech - perhaps it was a slightly Freudian slip - said about the Bropho decision:
The effect of the decision is that there is no way of knowing for sure whether a particular Act will bind the Crown at common law. In other words, a government cannot remain silent on the question of whether the Crown is bound by a statute and then expect a court to hold that it is not bound.
I am sure that the Minister meant to say "a legislature cannot remain silent on the question of whether the Crown is bound by a statute". It is not the Government that speaks through statutes; at least in principle, it is the legislature. I hope that that was an isolated and not-to-be-repeated slip in the way the Minister spoke. I am sure that if he had said it live he would have said something different.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (9.23), in reply: Mr Humphries's last point is well taken. Particularly in a situation where we enjoy the wonders of minority government, it is never the Government that is speaking through legislation; it is always the will of a temporary majority in the Assembly.
I thank the Opposition for their support for the principle. In the concluding passage in the speech that was tabled, rather than presented, I said that this was a quite bold step for the Assembly to be taking. While the Bropho decision is now a year or more old and while governments around Australia have indicated that they will move in this direction to make government instrumentalities more accountable, we have gone further than any other government in Australia. Only South Australia has moved to partially implement the Bropho decision; we have gone a lot further. It is probably a factor of this being a new parliament and a new body politic that some of the entrenched opposition to doing away with the shield of the Crown is not really established in the ACT. There is a sort of mysticism in some States that the shield of the Crown is terribly vital and that government instrumentalities would be subject to all sorts of disadvantages if they were not able to hide behind the shield of the Crown. This Assembly, unanimously it would seem, thinks that is nonsense and is prepared to make the Government more accountable.
Mr Humphries's point about criminal liability is a valid one. I think we will probably see some erudite academic writing on this subject over the coming years as the Bropho decision gets implemented. The point of the constitutional problem of the Crown prosecuting the Crown probably has some validity when applied to central agencies of government. It would be difficult to imagine Treasury being prosecuted. However, where we have established arm's length agencies, which once enjoyed full immunity of the Crown - ACTEW, for example - my preliminary advice is that ACTEW, now that we have removed the shield of the Crown, now that ACTEW is not the Crown but is merely a trading statutory authority, probably would be subject to a prosecution under one of Mr Wood's environmental laws if it were found to be criminally and wantonly polluting the environment. I am sure most members would say, "So it should be".