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Legislative Assembly for the ACT: 2001 Week 2 Hansard (1 March) . . Page.. 466 ..

MR STEFANIAK (continuing):

active participation of the minister who administers the relevant act. There is not the same requirement, as proposed by Mr Stanhope's amendments, for all members of cabinet to invariably approve the making of a regulation.

However, it would seem that, if regulations were required to be made and the relevant minister was not prepared to concur, then either the Premier or Prime Minister would have to intervene or the matter would have to be considered by cabinet. If cabinet decided in favour of the regulations being made, the conventions that flow from cabinet solidarity would apply.

To go through jurisdiction by jurisdiction on that, in Tasmania cabinet usually gives in-principle agreement for regulations to be prepared. In the Commonwealth and New South Wales, cabinet would only rarely consider the needs for regulations to be drafted. Regulations are made by the Governor or the Governor-General acting on the advice of the executive council. The Premier or Prime Minister has at least informal control over the making of regulations. This occurs because the executive council secretariat is located in the Chief or Prime Minister's department. In Tasmania, in addition, it is necessary for the Premier to approve in writing the executive council's agenda.

The quorum for a meeting of the executive council is usually the Governor or Governor-General and two executive councillors. The executive councillors are usually ministers but actually, in the Commonwealth, parliamentary secretaries are also councillors. An executive council minute recommending that regulations be made is signed by the minister, usually the responsible minister who administers the relevant act, but it may also be signed by a minister acting for and on behalf of the responsible minister.

In his amendments Mr Stanhope has attempted to legislatively impose the practices that apply in other jurisdictions. And in those jurisdictions the practices are supported more by the conventions of responsible government than by legislation. Attempting to impose the practices through legislation invariably leads to the practices losing the flexibility that is available to the states and indeed to the Commonwealth. Imposing these practices legislatively also exposes the ACT regulations to additional grounds for challenge.

The acid test of the suitability of a regulation is that it must survive scrutiny and the possibility of disallowance by the Assembly. The interests of good government are not served, I would submit, by slavishly following the dictates of legislation of this type.

MR OSBORNE (12:16): I am assuming that Mr Stanhope has the numbers for this, because I have only just received a copy of his amendments. I have not been approached by his office or received a copy of them before this so I do not feel I am in a position to support his amendments. I have listened to the debate this morning and, although there is some merit in what Mr Stanhope said. He spoke about the issue that happened last year, but I think that, if the boot was on the other foot and I was the health minister and I was asked, for example, to sign off on opening a euthanasia clinic or something, I would be reluctant to do so.

But I have to say, Mr Speaker, I have only just received these amendments and-

Mr Stanhope: They've been around for over a year.

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