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Legislative Assembly for the ACT: 1999 Week 11 Hansard (20 October) . . Page.. 3357 ..
MR HUMPHRIES: Mr Speaker, I am proposing to table the advice I have received from the ACT Government Solicitor. He argues, based on the allegation that the bursars were engaged in industrial action - and there might be some debate about what exactly that is:
1. Section 187AA(1) provides that an employer, "must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action", in certain circumstances. Those circumstances have been satisfied, with the result that the Territory (as employer) is prohibited from making a payment to the bursars in relation to the period during which they engaged in the industrial action.
2. The provisions of section 187AA are mandatory and not discretionary. In other words, the Territory is prohibited from making the payments referred to in the proposed motion.
3. Neither the Assembly nor the Territory has the power to engage in conduct which is unlawful under a Commonwealth Law, such as the Workplace Relations Act.
Mr Speaker, I table that advice delivered to me today from the ACT Government Solicitor. Mr Speaker, I want to make a couple of points about that advice. First of all, it is clear that an employee of the Territory engaged in industrial action could run some risk of being subject to the provisions of that legislation. According to the terms of the legislation, an offence is not committed, but nonetheless a breach of the law can occur without it amounting to a criminal offence. Mr Speaker, a very good illustration of the distinction between a criminal offence and an offence which is not criminal, but nonetheless unlawful, is the Financial Management Act of the Territory.
Members opposite were quick to point out that breaches of the Financial Management Act are unlawful. And it is a breach of the law to breach the terms of that Act. While that is the case, it is not a criminal offence to engage in offences of that kind under that Act. Similarly, a breach of the criminal law is regarded as a more serious act, and certainly carries with it penalties which are more serious. Generally, more serious offences of that kind may even include a prison sentence.
Mr Speaker, there are regulatory offences, and there are criminal offences. The offence being talked about here is a regulatory offence of the kind that was unintentionally engaged in by the Government in respect of the Financial Management Act with regard to Bruce Stadium.
Mr Berry: That's our law, this is Federal law, it's different.
MR HUMPHRIES: Mr Berry says it is a different law. Well, of course it is. But all we are talking about here is the superior law, a law which has greater effect in the ACT. We may pass laws in this Territory.
Mr Berry: On industrial relations but not on the Financial Management Act.
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