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Legislative Assembly for the ACT: 1998 Week 4 Hansard (24 June) . . Page.. 916 ..

MR SMYTH (continuing):

The curious thing about this is that this is the briefing for what eventually became an incoming Labor Minister and on the Milk Board at that time was, in fact, none other than the first Chief Minister of the ACT, Ms Rosemary Follett. So, it is quite clear that the dilemmas that we have here today are not new. They are well known. They certainly should be well known to the other side because, clearly, they were given advice right from the start that there were anomalies. What has happened is that nobody has chosen either to amend them or to come clean on them in the situation regarding the milk industry.

Mr Temporary Deputy Speaker, I would now like to table a legal opinion which I received this morning. Mr Hargreaves asked yesterday whether I had a legal opinion on this issue. Yesterday, I did not. The Government, through Robyn Sheen, was conducting a review - a review which, I say, is fully independent, even though others here would like to see it not that way. It is more than appropriate for a qualified officer who happens to come from the department to conduct a review of an independent authority. That is quite acceptable. It is ludicrous to suggest that the review is in any way faulty or underhanded or is some sort of backdoor deal.

I asked for legal advice specifically in the terms that Mr Hargreaves asked yesterday, and I would now like to table the legal opinion which has been provided by the ACT Government Solicitor on this matter. It covers things like the Mutual Recognition Act of 1993 and the Trade Practices Act. I will quote just one paragraph from the advice, and it will be available for others to look at:

Paragraph (a) of section 17A, prohibiting import of unprocessed milk, is on its face protectionist and is almost certainly ineffective by virtue of section 69 of the Self-Government Act ... if the substance of the course proposed by the Assembly is that the existing locally based processor and distributor should be allowed to continue to operate but that any interstate competition should be barred, this would seem to amount to a protectionist application of the Milk Authority's powers which would be struck down under section 69.

Mr Hargreaves's amendment refers specifically to those arrangements which have conferred what would appear to be a monopoly status on the current players in the ACT market. That monopoly does not exist. Perhaps over time the Milk Authority actually has been put in the unfortunate position where, as both regulator and marketer of ACT milk, it has been asked to do a job that would require the wisdom of Solomon. That has not occurred as a result of any decisions made by the authority. These arrangements are not arrangements which have any legal imperative. As I have already said, the Milk Authority Act does not in itself preclude other entrants to this market. (Extension of time granted) However, the authority has, because of the difficult position it has been placed in by those dual regulatory and marketing functions, actually allowed a monopoly to occur. The monopoly processor, which is in fact owned by some New South Wales dairy farmers, has had a monopoly over processing the 97 per cent of milk which comes from Bega and the Goulburn Valley and the 3 per cent which comes from our own heritage-listed dairy. That is not actually required by the Act. It has occurred, but it certainly is not required.

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