Legislative Assembly for the ACT: 1998 Week 2 Hansard (20 May) . . Page.. 440 ..
MR HUMPHRIES (Attorney-General, Minister for Justice and Community Safety and Minister Assisting the Treasurer) (5.32): The Government's position on this has been fairly clear. When the original debate on this legislation occurred, we indicated that we felt that the issue was not whether one supports the idea of union members having a picnic day - that, in a sense, remains a matter not for this Assembly to determine but for appropriate negotiations between unions and employers to determine - but whether we should intervene in what was essentially a dispute about the interpretation of an award which provided for a certain number of holidays to be provided to workers in the ACT.
In the debate about the Holidays (Amendment) Bill in 1997, the Assembly decided that the legislation should be put in a certain way to guarantee a right to the union picnic day. At the time that debate took place, the Government tabled two separate legal advices which indicated that there may be contentious issues arising out of the legislation, notably the inconsistency between the provision of the Commonwealth award and the legislation which was put before the ACT Assembly by the Labor Party. It was argued in the advices that there were possible difficulties in interpretation of the award. We flagged very clearly that this issue would not be resolved just by having a piece of legislation passed on the floor of the Assembly.
Members in this place well know that there is a very real question about the extent to which the ACT is able to override the provisions of Federal awards. Indeed, as I recall, Mr Berry in particular, the mover of this motion, has been quite vocal in the past in insisting that the ACT does not have the power to override Federal awards. The argument has been put, and was put in those advices tabled on the floor of the Assembly, that the legislation put forward by the Labor Party, the Holidays (Amendment) Bill, did clash with the terms of the relevant Federal award or awards and as a result might not be valid.
As it happens, a decision of Justice Finn in the Federal Court earlier this month indicated that the Act is valid and is not overridden by award provisions. I have not seen the details of that judgment, and I have not seen the details of advice provided to the Chamber of Commerce; but I understand that they strongly take the view that this is an argument as to whether that was the correct decision. On that basis the chamber intends to appeal to the Full Bench of the Federal Court. That is their entitlement as litigants before the courts of this Territory. They are entitled to make that argument and, in doing so, they may or may not be successful. I really could not comment on that. I have no advice one way or the other. The Government argued at the time this debate came before the Assembly last time - - -
Mr Berry: You have advice.
MR HUMPHRIES: True, to a point, Mr Berry. When this debate came before the Assembly last time, the Government argued that there was a legal issue about the applicability of ACT legislation versus Federal awards. It is clear that that issue is still afoot. We have not killed it by passing a piece of legislation in this place. Requiring the Territory to enter an appearance and go into the Federal Court and argue that the law is