Debates Day 1 - Tuesday 23 May 1995
Parliamentary Record 11
Debates for 7th Assembly 1994 - 1997; ParliamentNT; Parliamentary Record; 7th Assembly 1994 - 1997
1995-05-23
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Debates
Legislative Assembly of the Northern Territory
Darwin
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DEBATES - Tuesday 23 May 1995 In your summing up of the second-reading debate, you confused 2 important issues. One of them is merits review. That is the type of thing that the Commonwealth Administrative Appeals Tribunal does where it places itself in the shoes of the decision-maker and substitutes its decision for his. The Ombudsman does not do that and does not have that kind of power. M r Perron: I agree. M r BELL: All he has is the power to eyeball a public service decision-maker and ask why they did what they did, end of the story. He can then make a report to parliament that is privileged against an action in defamation - for example, he can say what the DPP or the Secretary of the Department for Health and Community Services said and detail the outcome. He does not have a determining function. M r Perron: I agree, and I do not think that he should have. M r BELL: That is all I have to say about this section. I disagree fundamentally with it. M r EDE: Mr Chairman, this relates basically to the powers of the DPP to act, and the power of the Ombudsman to oversight his actions in that regard. In another jurisdiction at the moment, there is a series of very public cases that are proceeding in relation to the DPP and whether that officer did, did not, should or should not have taken various people to court, be they relations or otherwise. In some of those cases, it is not a matter of being a top flight lawyer or being able to cite whether the correct process was followed. If somebody is deciding whether they will or will not take their own son through the courts as a result of some action, the public is not asking necessarily for the very finest points of law to be studied in relation to the evidence to determine whether the decision taken was the correct one. The public wants to know whether the person was influenced by the fact that it was their son. They simply want a person to say that, in terms of an ordinary judgment, the decision not to proceed was fair and reasonable. That is what we are losing in this regard. Each time we try to clarify something in this regard, it should not be narrowing. However, that is what is being done here. Because there is a problem with clarification, you have decided to deal with that by narrowing the powers of the Ombudsman. That concerns me in the first instance because I do not see how your interpretation of the powers of the Attorney-General, in one regard at least, stacks up against what you said the legislation was. You said that he does not have the power to tell the DPP what he will do, but he has the power to act himself. M r Perron: Yes. M r EDE: How can that be when you say that he has the power either to proceed with a case or to stop a case proceeding? How can he have the power to stop a case proceeding? Presumably that case goes through the DPP process and therefore how can the Attorney-General prevent it proceeding without giving the DPP an order to stop the prosecution? The 2 must come into conflict. Consequently, I do not believe that part of it works in relation to stopping an action from proceeding. These are often issues on which the public wants only the straight gaze of the ordinary person. That is the case most of the time, and certainly it has been during the period that I have been involved on this. 3594