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Wednesday, 25 September 2002
Page: 4828

Senator ALSTON (Minister for Communications, Information Technology and the Arts) (12:18 PM) —I will just explain the government's position on this matter. The doctrine of separation of powers is a very important fundamental element of any democratic system. It ensures that there is not an overlap: on the one hand, the executive arm of government cannot tell the courts what to do and, on the other hand, the courts cannot tell the ministers what to do. Of course, courts can strike down legislation which might empower ministers to do certain things, so indirectly it can have that effect. But they do not have the ability to interfere in the executive process and nor do ministers in particular have the power, but the parliament in general has, to tell a court how it should decide a matter. Clearly, that would be a fundamental breach of that doctrine.

That is a far cry from saying that ministers should not be allowed to approach the courts. You only approach the courts with discretion because otherwise you will get knocked back and you will undermine your own situation. So you have to think carefully before you do approach the courts. We consider that, where there are matters of fundamental importance in the national interest where you might have a protracted industrial dispute, it can often be quite helpful for the commission to be made aware of not only the government's feelings on the matter but how the government sees the wider implications. At the end of the day, it is entirely a matter for the commission to say whether it accepts those arguments. It would be an insult to suggest that, simply because a minister applies to the court, the court somehow should feel compelled to give particular weight to that submission or accede to it to any extent. But the minister already has power under this legislation to apply for an order to terminate or suspend a bargaining period.

We say that, in appropriate cases such as protracted industrial action where the implications go beyond the negotiating parties, the minister should be able to approach the commission. The commission will make that judgment. As Senator Harris rightly said, they can look at the intrinsic materials and one of those might be the debates. They will hear what the minister says about the circumstances in which the government might be justified in approaching the commission. So if you simply go along on a frolic of your own or you want to pursue a personal indulgence—and it is always a fundamentally flawed approach to judge the powers by the personality of the incumbent minister, and that is what Senator Sherry is largely doing here—you should not. You should look at it in the abstract. You should ask whether it is appropriate for an officer of the Crown or a minister of the government to bring matters to the attention of the commission. We say that you will find those sorts of provisions in heaps of Commonwealth and state legislation.

Just as individuals can approach the courts, lawyers can approach the courts as amicus curiae. The commission does not have to accede to those requests. If people want to be represented, the commission has a discretion. If people want to make submissions, the commission is able to reject the argument and, indeed, not even consider matters that it thinks are inappropriate. All we are doing is providing that discretion which would enable matters to be brought to the attention of the commission in circumstances where we think it will have a greater impact than the mere subject matter of the dispute.

Question agreed to.