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Legislative Assembly for the ACT: 1997 Week 2 Hansard (27 February) . . Page.. 542 ..

MR HUMPHRIES (continuing):

I think we are very likely to see the legislation challenged. On the basis of what I have read here, there is a pretty good chance that injunctive relief of some kind could be granted. I do not make that comment by way of a threat or anything of that kind. In fact, the ACT Government will be in the commission defending the legislation, because the ACT Government has to. The ACT Government is the custodian of the legislation which the Assembly passes. The question is not going to be necessarily what we want, but what the court thinks about the arguments which have been raised in these two legal advices.

Those two legal advices have been disparaged by other people in this place. I have read them. I disagree with Mr Moore. I think they use the usual language of lawyers to indicate that there are considerable uncertainties about these issues. Mr Berry says that there is not a very strong statement by the lawyers that this law is invalid. Can Mr Moore or anybody else point out for me a case where lawyers have made distinct and clear statements that one case is absolutely wrong and one case is absolutely right?

Mr Berry: There is always a loser.

MR HUMPHRIES: No; that is judges. I am talking about lawyers who give advice, Mr Berry. When lawyers give advice they do not say, "This case is definitely wrong, and this case is definitely right". They say, "On the one hand, this; on the other hand, that". I read from these comments, however, considerable real doubt about the validity of these provisions. Mr Berry, I am sure, read the same words there, too; he has to. That is the only conceivable way of reading it.

Mr Speaker, let me make perfectly clear what we are saying. We are not saying to the Assembly that this legislation is absolutely certain to fail - at least not on the basis of this advice. I am not saying that as Attorney-General. The legislation may succeed. What I am saying is that these opinions give us very good cause to have doubt. It is not responsible to pass legislation with indecent haste, when that kind of doubt could result in expensive litigation before the courts of the Territory. The fact that this is happening days before the holiday that was canned by the Industrial Relations Commission is not a problem that this Government has created. Mr Berry dallied around for six weeks or so before getting to the point of bringing legislation forward to this place. If he had announced on 11 January that he intended to pursue this course of action, we would at least have had some signal of this going on; we would have been able to get these advices and look at these issues in advance. But we have not. If these advices are incomplete, that is not the fault of the Government.

Mr Speaker, I come back to the issue that is raised in the opinions about public holidays. There is a very real question here about Mr Berry's Bill saying that there is a holiday being created under the Holidays Act when, in fact, the Act refers to public holidays. What Mr Berry's Bill is effectively doing is creating a private holiday for certain people to enjoy. It is not at all clear to me whether the legislation facilitates that. I quote from the opinion by the Chief Solicitor of the ACT, Mr Peedom:

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