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Wednesday, 26 June 1996
Page: 2273


Senator COONEY(4.27 p.m.) —I do not—


Senator Bob Collins —It is an error of fact.


Senator COONEY —An error of fact. I think what is being said is that if there was no reasonable ground upon which fraud could be found, the Federal Court might hold that there was no reasonable basis for the minister's decision but—


Senator Bob Collins —What about natural justice?


Senator COONEY —Yes, the issue of natural justice. But it is a very serious business, fraud. The other point you might check is this. One of the bases upon which the minister can dismiss the commission is the failure of the commission to take reasonable steps to prevent the contravention of a direction in force under sections 12 or 74. Section 12 of the act says:

The commission shall perform its functions and exercise its power in accordance with such general directions as are given to it by the minister in writing.

There is a provision of similar character to the provision of section 74. Does that mean that the minister, he or she having given a direction to the commission, can then decide himself or herself whether the commission has failed to take reasonable steps to prevent a contravention of that direction or can decide himself or herself that the commission has intentionally failed to comply with that direction and can thereby dismiss the commission? If that is so, does that not put you into the following position: the minister can give a direction under section 12 or section 74 and then decide himself or herself whether that has been complied with and, if he or she decides it has not been complied with, can dismiss the commission. If that is so, what sort of independence does that give to a commission? What I mean by that is that here we have a commission that, unless it complies with the general directions of a minister given in writing to the satisfaction of the minister who has given that direction, the minister can sack, in effect, without there ever having been any review on the facts.