Legislative Assembly for the ACT: 2008 Week 01 Hansard (Tuesday, 12 February 2008) . . Page.. 97 ..
MR MULCAHY (Molonglo) (5.35): I move amendment No 1 circulated in my name [see schedule 3 at page 120].
I have circulated the amendment to this bill to correct a drafting error in clause 177 in the bill which was identified by my office. I raised this error with the Department of Treasury during my initial briefing on the bill last year, but the error had not been corrected by the time of my second briefing last week. During briefings with the department, I was informed that the matter had been raised with the Parliamentary Counsel’s Office and that they did not agree that there was a drafting error. I have now raised the amendment directly with the PCO. I sent the parliamentary counsel an analysis of the section. I understand that the government is now satisfied that the clause did indeed contain an error; we are probably now on the same track on this matter.
The error involves use of a double negative in clause 177 of the bill that renders the literal meaning of this section to be the opposite of the intended meaning. Whilst this may be a relatively small concern in the context of such a large bill, it is important to ensure that these kinds of drafting errors do not escape correction during the passage of bills through the Assembly. At worst the error could cause legal problems to the CTP regulator issuing licences; at best it will cause confusion and the attendant waste of time for the various parties who have to deal with the bill.
Clause 177 is on page 124 of the bill. The clause concerns the decision of the CTP regulator to issue or refuse a licence to a prospective insurer. As currently drafted, the section states in the relevant part:
(1) On an application by a corporation for a licence, the CTP regulator must …
(b) refuse to issue the licence if the CTP regulator—
(i) is not satisfied that the applicant would not, or would not be able to, properly exercise the functions of a licensed insurer if issued with a licence …
The section is presumably intended to ensure that a licence will not be issued to an insurer who will not comply with the licence conditions. However, on a literal reading the section has the opposite effect. If an applicant would properly exercise the functions of a licensed insurer, then clearly this would mean that the applicant is good. Contrarily, if an applicant would not or would not be able to properly exercise the functions of a licensed insurer, this would mean that the applicant is bad.
Thus, if the CTP regulator is not satisfied that the applicant would not or would not be able to properly exercise the functions of a licensed insurer if issued with a licence, this means that the CTP insurer is not satisfied that the insurer is bad. Thus we can see that the section directs the CTP regulator to refuse a licence to an insurer if they are not satisfied that the insurer is bad. This would mean that a good applicant must be refused a licence and a bad applicant must be granted a licence. I hope members can follow all that. Clearly, the intention of the Assembly is not to have the CTP regulator grant licences to bad insurers and withhold licences from good ones.