Page 3529 - Week 11 - Thursday, 19 September 2013

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the executive as it must make an order in the articulated circumstances. This issue was of fundamental importance to the court in Totani and strongly suggests the clause could be problematic.

As members can see from this cursory outline of the issues and potential arguments, it is a complicated issue and one we cannot dismiss lightly. There is no need to impose this restriction, and the risk that it will become the subject of complex constitutional litigation for no benefit means the Assembly should support the amendments to remove it. It is the case that section 26 of the Rates Act 2004 and section 24 of the Land Act 2004 similarly provide that the court must make certain orders in certain circumstances, and I argue that these examples are also problematic and will also need to be dealt with at another point in time.

Essentially, the amendments seek to deal with a situation which is a technical one and seek to defend the legislation and ensure it is not open to being found invalid in some sort of detailed constitutional challenge. On that basis, I commend the amendments to the Assembly.

MR BARR (Molonglo—Deputy Chief Minister, Treasurer, Minister for Economic Development, Minister for Sport and Recreation, Minister for Tourism and Events and Minister for Community Services) (5.01): I appreciate the expansion on the rationale for the amendments from Mr Rattenbury. The advice I have is that it is highly unlikely that there would be a challenge under the Kable doctrine and that it would be unlikely to be successful. The inconsistency that would occur were these amendments to be accepted with the Land Rent Act, the Land Tax Act and the Rates Act would, indeed, be problematic. I point out that there is a comprehensive review path prior to matters being considered under this provision—that being internal review, then through the ACAT and then through the courts—and that under the provision in the legislation the court has to be satisfied that a new section applies before it must act—that is, the court already has a high degree of discretion on the matter.

I remain unconvinced of the need for the amendments. I accept there will be differing legal views, but I and the government are yet to be convinced of the need for these amendments. On this occasion, the government will not support the amendments.

MR SMYTH (Brindabella) (5.02): We will be supporting the amendments. It is always very concerning when I see the word “must” in regard to a court, so I am happy with the changes as presented.

Amendments agreed to.

Bill, as a whole, as amended, agreed to.

Bill, as amended, agreed to.

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