Legislative Council

1668 COUNCIL 8 June, 1988 LEGISLATIVE COUNCIL Wednesday, 8 June, 1988 The Chairman of Committees took the chair as Deputy-President at 10.30 a.m. The Deputy-President offered the Prayers. PETITION Cooks River Pollution The Hon. Elisabeth Kirkby presented a petition praying that pollution of the Cooks River at Dulwich Hill be removed by the use of Department of Corrective Services labour. Petition received. ESSENTIAL SERVICES BILL Second Reading Debate resumed from 7th June. The Hon. ELISABETH KIRKBY [10.34]: When the debate was adjourned last night I was dealing with problems that had resulted from legislation and court cases relating to deregistration of unions. It is important that honourable members be aware of the considerable attention given to this matter in legal journals. The April 1988 issue of the Law Society Journal included an article written by Paul Ames Fairall, entitled "Peace, welfare and good government". The article dealt with limitations on the powers of the New South Wales Parliament. In the content of that article Mr Fairall deals with remarks made by the Chief Justice of this State during the legal process that went on when there was an attempt to deregister a union in New South Wales. The Chief Justice said on that point that the New South Wales Parliament enjoyed judicial power. However, he contended that the manner in which judicial power had been exercised in the instant case was incompatible with constitutional conventions and with the due administration of justice. His Honour issued the following warning: For Parliament. uncontrolled as it is by any of the safeguards that are enshrined in the concept of due process of law, to trespass into this field of judging between parties by interfering with the judicial process is an affront to a society that prides itself on the quality of its justice. That case was such a case, according to the Chief Justice, Sir Laurence Street, for Parliament had sought to abort a legitimate court challenge by the union against the cancellation of its registration. The Chief Justice, noting the almost universal disfavour in which the union was held, reminded Parliament: The greater the hostility directed against a person or organization. the greater the temptation to distort the fundamental precepts of our democracy by setting at nought the great principles of British justice. 8 June, 1988 COUNCIL 1669 Later in his article, Mr Fairall, senior lecturer in law at the University of Newcastle, quoted the President of the New Zealand Court of Appeal, Sir Robin Cooke. Sir Robin, in a recent paper, stated: If ever a Government indifferent at heart to basic rights were to hold office in this country, it could force through, possibly even in a matter of hours and by the basic majorities, legislation opposed to basic principles of justice. Orthodox theory in the past has been that the courts could not intervene. I am not so sure; the authority of Parliament itself-"supremacy" as it is often called-ultimately turns on judicial recognition. That judicial recognition and the ability for unions to appeal against a possibly unjust use of the Minister's powers form the basis of the concerns of the Australian Democrats to the essential services legislation. The Minister and the Government are asking this Parliament to accept that they will administer the proposed Essential Services Act with the best of intent, justly and fairly and in the public interest. However, they are refusing to allow that administration or calculation of the public interest to be reviewed by the courts-by the judicial process. The Australian Democrats believe that is a denial of natural justice. The Government will consider whether the public interest is at risk. Should the Government decide that this is the case, it will take action to force the union members concerned back to work. Neither of those decisions will be appealable, nor will they be reviewable by judicial process. The Government wishes to retain the power to declare a service an essential service, but that very declaration, which under the legislation will carry all sorts of penalties for workers and unions, will not be reviewable. A court must be able to decide whether a government-or rather the Executive of government, or the Minister-has acted ultra vires the Act. To prevent this happening would be as great a denial of the rule of law as is the claim that unions that ignore orders of the Industrial Commission are placing themselves above the law. If the Government is confident of its administration of the Act, why is it scared of independent review? The Government argues that because the essential service in some way has been affected by an illegal dispute as defined by the Industrial Arbitration Act 1940, the workers have no right to have reviewed any decisions made under the Essential Services Bill. However, striking workers will not be the only people affected by the bill. Others who may be affected could include employers, who deserve to have their rights maintained. In particular, they have the right to carry on their business without ministerial interference, if that interference is ultra vires the Act. The Government argues that strikers may go to the commission to seek a review of any decision made. Though the Minister may have used his powers under clause 9 to force them to work, they can return to the commission under the protection of the law. If they do go to the commission, the justice of their dispute will be considered; the commissioner will determine whether their wages are too low, their working conditions are unsafe, and so on. However, the decision of the Minister-to control their work and to force them to go to the commission by declaring their industry essential, even if not listed in clause 4- is not appealable. Under this legislation no court will be able to review the Minister's actions. That is one of my basic concerns about this legislation. I discussed that concern for many hours yesterday with the Minister. As soon as I have finished speaking today, I have another appointment with him to consider this m further. Strengthening the powers of the commission may be needed, currently, upon the decision of the Minister using clause 4 (1) (I), a unionist can keep or lose certain rights, including the right to withdraw decision to declare an industry an essential service because the 1670 COUNCIL 8 June, 1988 that is in the public interest is, in effect, discriminatory. Under clause 17, the final decision to suspend a union's registration is to be made by the Minister alone, exercising his own discretion. Clause 17 (4) (b) in part states that the registration of the union shall be cancelled seven days after the making of a declaration: . unless the Minister certifies to the Governor within the 7-day period that the union has ceased to engage in activities which are contrary to the public interest. There is no requirement that the Minister state his reasons or how he believes that the union has not ceased to engage in activities that are contrary to the public interest. The union has no protection if it decides finally to obey the commission's order not to be required to go beyond that order. There is no protection for the union from unreasonable or wilful requirements by a Minister. What is the public interest? How is it defined? I believe clause 21 (2) is acceptable and could remain in the bill. However I believe that subclauses (1) and (3) of clause 21 should be removed. Yesterday in this debate another honourable member quoted from a leader article in the Australian. When I was looking for more information about how the press was handling this legislation, I found a leader article in the Daily Telegraph, which is a newspaper under the same ownership as the Australian. The article was dated 1st June, 1988. It is necessary to consider what the Daily Telegraph feels about this legislation. The leader article stated: Powerful unions in key industries have often displayed a ruthless disregard for the community when pursuing their own interests. Disruptions resulting from some of these disputes create damage far beyond the union's sphere of industrial influence and all too often the entire community is held to ransom. Thc State Government is now fighting back with tough emergency services legislation which will be equal to the muscle wielded by these heavyweights. But there are dangers. In the first place, the unions are likely to feel threatened and may lash out in a reflex action, creating unnecessary disputes. Secondly. the Government may be tempted to use its new weapon in a show of political war games. thus inciting unnecessary disputes. So. before the knee-jerk reactions turn into industrial spasms, we need a cooling off period to examine just what the new legislation means. Those unionists who see the new legislation as provocative or confrontationist should check carefully the circumstances under which it will be invoked before getting paranoid about union-bashers. Likewise. the Government will have to use its strike-breaking powers with great sensitivity . We arc entering the industrial equivalent of the superpowers' arms race. The leader writer concluded by saying: It is to be hoped the new laws will reduce the days of selfish strikes where a group of petulant workers put other unionists out of work by stopping transport systems or cutting supplies. As long as the application of the new laws is restricted to essential services, there should be no grounds for complaint. The new emergency services legislation will be a test of our social and industrial maturity.

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