Legislative Assembly for the ACT: 2008 Week 09 Hansard (Tuesday, 19 August 2008) . . Page.. 3283 ..
secrecy provisions and adopt them without comment. I would have thought there would at least be a half-hearted attempt to justify these secrecy and non-disclosure provisions in light of the Human Rights Act and the right to a fair trial. The Human Rights Act was not in effect when some of these non-disclosure provisions were enacted. The explanatory statements at the time did not address the human rights implications of allowing one party to use proceedings to hide evidence from the other party.
When these kinds of provisions are resurrected in new legislation—and these amendments are new legislation—there should be an attempt to justify them in terms of proportionality or whichever other argument the government relies upon to justify a clear derogation from the rights under the Human Rights Act. Sometimes the reasons for these non-disclosure certificates are perfectly valid and are actually proportionate to the human rights derogation involved. But we know that the temptation provided by these kinds of secrecy provisions are overwhelming for some public servants and their ministers, and they can be used to cover up incompetence, malfeasance or worse.
The amalgamated tribunal model being implemented provides opportunities for highly efficient resolution of cross-jurisdictional disputes by allowing tribunal members who exercise powers from different jurisdictions where appropriate to tailor a solution to any particular dispute which addresses most or all of the foreseeable consequences of any tribunal orders. For example, a hearing in the Residential Tenancies Tribunal may have implications under child welfare and mental health jurisdictions. There should be provision for an applicant or their legal representative to foreshadow the different jurisdictional areas that they anticipate the dispute intruding into, and then for the tribunal to allocate a member with the requisite expertise to exercise his or her powers in those areas.
The scrutiny of bills committee raised a number of concerns with the bill, and it does look like a number of them have been addressed in the amendments that were tabled today. Giving only a couple of hours notice of important amendments has become a hallmark of the government. It demonstrates a lack of commitment to open government and is bad governance. How can anyone provide meaningful and constructive commentary when they are given only a couple of hours to read and assess the impact of proposed legislation?
There is one more concern I have with these amendments, and that is the lack of automatic protection from unforeseen cost burdens imposed on a party in the event that their matter is referred to the Supreme Court. It seems that the department and the minister rely on the retention of provisions which enable a party to apply to the Attorney-General for legal and financial assistance to pursue proceedings in certain circumstances. But under proposed section 22S, an applicant must prove that he or she would suffer hardship. It seems axiomatic that anybody getting hit with an unexpected costs order because of a Supreme Court referral will suffer hardship, but I suspect that the provisions under section 22S relate to financial hardship relative to the applicant’s income level. It remains to be seen how future Attorneys-General use or misuse these new powers.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services) (6.45), in reply: I thank members for their comments in relation to these