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Legislative Assembly for the ACT: 2005 Week 01 Hansard (Wednesday, 8 December 2004 2004) . . Page.. 137 ..


MR SMYTH: Mr Speaker, we have not spoken about any of the evidence that may or may not appear before the courts. What we are saying is that the Chief Minister and Attorney-General is also in the position of somebody who has appeared before the coronial inquiry and this obviously has to have an impact on how we behave. If that is sub judice, I think you are wrong, Mr Speaker, and we will move dissent from your ruling.

MR SPEAKER: That is an issue that may well come before the courts.

Dissent from ruling

MR STEFANIAK: With respect, Mr Speaker, I seek leave to dissent from your ruling.

Leave granted.

MR STEFANIAK: I move:

That the Speaker’s ruling be dissented from.

Mr Speaker, one of the fundamental issues in relation to the role of the Attorney-General in this matter is that we say, and other experts say, he has exceeded his role by intervening here, by joining in this appeal. It goes contrary to the role of the Attorney-General as it is generally understood in the Westminster system, and there is no precedent for it. One of the fundamental aspects is that this attorney has, in these proceedings, also been a witness. We are saying that, because he has been a witness and because he is the Attorney-General for the ACT, he has put himself in an untenable situation. He should not have joined the appeal. It is wrong for him to join the appeal.

We are not going into the evidence in terms of what was said at the coronial inquest or what the allegations of bias, which are currently subject to an appeal, are about. I doubt very much if many people here would have any idea what those allegations are. I have had the opportunity of reading a couple of briefs and I make no comment on that. Neither Mr Smyth nor any of the opposition members intend to make comment in relation to that. That is a matter that is rightly before the court. It is a matter that is rightly sub judice.

What we are talking about here, though, is a fundamental principle in relation to the separation of powers. It is a fundamental principle in relation to the role of the attorney that he may not, and cannot be expected to, agree with every decision of a court. Indeed, it is appropriate—and I have got further authorities I can quote on this one—and even quite proper for him to say he does not agree. I was even going to quote something he said a few months ago. However, he is a witness, and we come back to the very point that Mr Smyth was starting to get into in his speech. He is not only the attorney, a government minister; he is actually a witness in these proceedings, and that makes his role doubly difficult. That is a fundamental reason why he should not have joined in this action.

There is a very real conflict of interest. We do not need to go into any of the evidence in relation to that. But it is an absolutely pertinent, relevant fact that in these proceedings


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