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Legislative Assembly for the ACT: 2000 Week 8 Hansard (30 August) . . Page.. 2671 ..
MR BERRY: Next, I will deal with the issues raised by Mr Humphries. Mr Humphries is working under the misapprehension that this bill applies only to teachers. It goes far wider than that. It did start with a proposition put to me by the AEU in relation to teachers, but on sitting down and considering the matter it became quite clear that this was an issue that could present a problem for employees in any enterprise. So it was felt most appropriate to provide an avenue for an aggrieved person to be, if you like, represented by an employer, or replaced by an employer, in an application before the courts.
Mr Humphries raised a red herring about students. If teachers and students were threatened in any way, it would be entirely up to the teacher to ask the employer, which might be the chief executive of the Department of Education and Community Services, to deal with the matter. Students would not necessarily be part of the process.
Mr Humphries failed to make it clear that proposed new section 198B has special requirements for applications by the Community Advocate or an employer. It reads:
Despite paragraph 286(1)(b) of the Magistrates Court Jurisdiction Act 1982 (which is about the service of affidavits on parties), an affidavit is not to be served on another party to a proceeding under this Part if the only matter sworn is an aggrieved person's consent to the making of the application by the person's employer.
I need to emphasise that point, because subsection (2) of the proposed new section deals with an application by an employer of an aggrieved person and points out that the court can proceed only if satisfied that the aggrieved person consents to the making of the application. I emphasise again that the name of the aggrieved person-the employee in this case-is not to be included in any document served on another party to the order. My legislation goes a step further. Subsection (4) of the proposed new section reads:
Subsection (3) is not to be taken to limit the ways in which the court may be satisfied that the aggrieved person consents to the making of an application.
This leaves it open to the courts to ensure that the identity of a person does not fall into the wrong hands, the wrong hands in this case being a party served with an affidavit. An affidavit served on a party will not contain the names of aggrieved persons, in this legislation employees.
Mr Humphries also tried to make the point that we could have these requirements under the Education Act. That is something that crossed my mind. But that was when I was considering applying my legislation only to teachers. I eventually wanted it to go wider than that. That is why I have dealt with this matter under the Magistrates Court Act-to deal with all employees. You will note that "employer" has been defined in the bill to ensure it is clear that the interpretation of employer is quite wide. "Employer" means a person who engages an individual under a contract of service, a contract for services, an apprenticeship or a training agreement under the Vocational Education and Training Act. It is quite wide. This is specifically aimed at ensuring that the identity of aggrieved persons is protected by this legislation.
Mr Humphries: How does it do that?
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