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Legislative Assembly for the ACT: 1997 Week 2 Hansard (27 February) . . Page.. 527 ..

MR KAINE (continuing):

That was said by Mr Berry only one year ago. Is it not remarkable how the Labor Party has suddenly changed its tack and now it finds that the umpire does not have its support anymore? Why does it not have its support? Because it has brought down new draft orders in connection with certain industrial awards in the Australian Capital Territory. I think it needs to be on the record that the Labor Party has completely changed its attitude towards the Industrial Relations Commission being the umpire. It used to be that they were firm on that. Today they have abdicated that position. I think the Industrial Relations Commission, the trade unions and the community need to know that the Labor Party has now embarked on a major departure from its previous attitude to this arbitrator.

Mr Speaker, to refer specifically to the legislation that Mr Berry has tabled: This Government will not support it, because it is bad legislation that will expose this Assembly to ridicule. It is a knee-jerk reaction, the consequences of which have not even been thought through by its proponent. It will bring this place into ridicule if we pass this Bill today. It is bad legislation because there are unintentional adverse consequences for Canberra and its community which, again, Mr Berry has not thought through. It is bad legislation because it ignores the umpire's decision - that umpire that the Labor Party has always stoutly defended until now.

Mr Speaker, I will try to put it as simply as I can because I am not sure that Mr Berry will understand it if I get too technical. The fact is that a probable outcome of this legislation is that the Government will find itself in court facing a challenge to the validity of the Bill. Why is that so? That is so because section 28 of the Australian Capital Territory (Self-Government) Act says that ACT legislation will always be subordinate to Commonwealth legislation. That includes, by definition, Federal awards. If we pass legislation that is inconsistent with a Federal award we are likely to find ourselves in court having to explain that inconsistency and having it pointed out to us by the very court that these people now decide they cannot support anymore. The interesting thing about that is, of course, that it will be the Government, not Mr Berry, that has to go to court and defend this issue. I think members, other than members of the Labor Party that are trying to foist this on the Assembly - in a hasty, ill-conceived debate that nobody has been able to properly prepare for - need to be aware of the fact that it will be Mr Berry's legislation, but it is the Government that is going to have to wear the consequences. I think the Independents and the crossbench members need to think that through very carefully.

In a test case before a Full Bench of the Industrial Relations Commission quite recently the commission set standards to apply to public holidays, and they are quite explicit. In one particular draft order relating to the electrical contracting industry, which relates back to the award of 1992, at subsections 19.1.1 and 19.1.2 the specific public holidays are nominated. They are New Year's Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day, Boxing Day, Australia Day, Anzac Day, Queen's Birthday, and Eight Hours Day or Labour Day. So the Labor Party has already got its leg in there. Subsection 19.1.3, however, goes one stage further and says:

One other day ... fixed as follows: Canberra Day or, in lieu by agreement between the parties, union [picnic] day being the first Monday in March.

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