Senator MURRAY (9:45 AM) —I am of course familiar with the arguments that Senator Collins has put. This is an area of some difficulty for all of us because I believe, on a cross-party basis, we are all of the view that as far as possible the processes of the Industrial Relations Commission should be as cheap and as quick and easy to access as possible. The problem we face is that in the pursuit of fairness or justice that particular objective can get out of reach. The evidence put to us consistently over time has been that there has been an abuse of process which has resulted in employees being stretched out and forced to back off and terminate their claims unreasonably by employers, and there has been a similar attitude of employee representatives doing it to employers.

Our assessment of the issue is, therefore, that an early indication to the parties by the commission as to reasonable prospects of success would be desirable because it would mean that, if subsequently it was found that the issue was without merit, that would be a consideration in the resolution of the issue. I accept that there are always difficulties in tests. We know that. Senator Collins as a practitioner of the art of industrial relations negotiations knows that; hence, her justified hesitancy when a new test is brought up. My difficulty was that I accepted the case that somehow you needed a pre-arbitration determination to alleviate what seemed to be, from the evidence given to us, abuse issues in the process of these things. However, I thought that the government's test was too legalistic and likely to restrain the matter too far. Having accepted the proposition, I therefore had to find a way to express it in a more flexible manner which gave greater discretion to the commission. So that was the consequence of the words. `Reasonable', as you know, is a word which is commonly used in law and has some common law history and understanding; therefore, I thought that `no reasonable prospect of success' was in the end a useful summation of that intent. Quite frankly, as we all know as legislators and as you get more experienced in this business, you design some things with the best of intentions and sometimes the results may not be quite as you would expect. So I accept that you, or some of your colleagues, may be a little wary of this.