Legislative Assembly for the ACT: 1998 Week 2 Hansard (20 May) . . Page.. 441 ..
MR HUMPHRIES (continuing):
of a certain kind and that there is no question of the ACT Act being overridden by the Federal award, is inconsistent with the advice that this Government has received and has placed on the table here in this Assembly. What you are asking the Territory to do - in fact, specifically what you are asking the Government Solicitor to do - is to - - -
Mr Berry: What about the stuff you have not placed on the table?
MR HUMPHRIES: I did not interrupt your speech, Mr Berry. What you are asking the Territory Government Solicitor to do is to go into the Federal Court and ignore the advice that he has prepared for the ACT Government and construct an argument - one which I gather is not borne out on the basis of his views - about the applicability of this particular piece of ACT legislation. I do not mind asking our advisers to consider the law and to advise us on the law and then to present to any court in the land where we feel we need to defend ACT legislation an argument based on their advice. But, as I understand the situation, they have already indicated in fairly clear terms that there are doubts about the effectiveness of that legislation. In the circumstances it is not very sensible, and not very convincing, apart from anything else, to send those lawyers off to do something which I suspect they do not believe they can logically succeed in doing - that is, persuade a court that the ACT legislation will survive the application of the Federal award.
I think it is true to say that Justice Finn agreed that if there was a clash between these two things - the Federal award and the ACT legislation - the Federal award would prevail. That was accepted as a premise on which the debate before the court proceeded. But he apparently took the view that it was possible to read both of those things side by side without them being inconsistent. The Chamber of Commerce argues, I gather, that it is clear that they are not consistent and they have to be in conflict with each other. That is the basis of this matter going forward.
I do not believe that the Territory should impose on the taxpayer the cost of arguing a case which the Government's lawyers do not believe is particularly convincing, or at least have serious doubts about, or require the matter to be dealt with in the court, with ACT representation, when appearance by the Territory is simply not necessary. The Chamber of Commerce will put an argument before the court. Presumably, the relevant unions appearing before the Federal Court will similarly put an argument to the court. The presence of the ACT at the bar table in those debates makes no difference whatsoever. If Mr Berry imagines that this is a question of the numbers, that if there are two sitting on the applicant's side and only one sitting on the respondent's side at the bar table this somehow gives the applicant the numbers, then he has a very poor understanding of the way courts of this land work. They operate on the basis - I wish we could say the same thing in this place - of the quality of the arguments. There might be 15 parties appearing for one side, but if the arguments are weak it will not make any difference how many parties there are on that side of the particular debate.
I would simply urge the Assembly, before it charges into this particular matter, to consider carefully whether it is wise to take this course of action. The Government fully accepts that it has legislation which has been passed by the Assembly and which must be administered by the Assembly and by the Territory Government in accordance with the wishes of the Assembly. The Government stands prepared to do that; but that does