Page 2626 - Week 07 - Tuesday, 28 June 2011

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ClubsACT is incorrect in this regard. To suggest that a statement can limit the operation of the clause by explicitly stating this intention is simply incorrect. The fact that the provision has only been used to draw the provisions into other jurisdiction is entirely irrelevant. I draw attention to the subject of what exactly the provision is doing—that is, ensuring that club constitutions are consistent with gambling laws and their obligations as licence holders. The legal advice received by ClubsACT does not consider these matters that are very relevant to the issue.

The better construction is that the absence of any express limitation of the scope of section 5G is enough to demonstrate that the commonwealth parliament never intended to limit the operation of the clause to circumstances where greater rights were being granted to members. Rather, the section necessarily defers to state and territory legislatures to augment the regulatory effectiveness of the act in the specific context of the entities concerned.

I make the point that examples in our own Legislation Act cannot limit the scope of a provision, and a similar provision exists in the commonwealth Acts Interpretation Act, which provides that examples are not exhaustive.

The Greens will not support this amendment. Rather than limiting members’ rights, I suspect that it probably offers some greater protection from other disciplinary action that will ultimately have a greater impact on a club.

MR SMYTH (Brindabella) (11.52): I am sorry but I did not hear the minister say whether they have done an RIS or whether they have released their legal advice. So I will speak again and then the minister can answer both of those questions.

The legal advice provided by one of the clubs in the ACT goes right to the heart of the clear intent of the Corporations Act, which the government seems to be relying on. They clearly have a contrary view to what it is the government is saying. I will just read a couple of the paragraphs.

The clear intent of the Corps Act provisions are to permit greater protection for members or greater controls but not eroding of their rights as a voting member.

I have reviewed a number of instances where these provisions have been used in other jurisdictions. I have been unable to find any examples where these provisions have been used to direct a company to amend a constitution without an election of the voting members of the company.

It goes on to say:

It is my initial view, based on consideration of the relevant version of the Corps Act, the relevant provisions of the Explanatory Memorandum and use of these provisions in other jurisdictions, that it is not the intention of the provisions of the Corps Act to permit a blatant overriding of members’ rights, well established in both common law and under legislation.

I think it is quite clear that there is doubt about this and there is doubt about the way that the government has used the Corporations Act. And I think we need to be very careful amending the act where it is so unclear and where indeed the government will

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