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Thursday, 28 November 1985
Page: 2543


Senator VIGOR(11.21) —I rise basically to read an epitaph to an ordinance which has been disallowed by default today, in the sense that a motion by the Senate Standing Committee on Regulations and Ordinances had its last day today and by default, the New South Wales Acts Application Ordinance 1985 No. 25 of 1985, has been disallowed. I wish to make just a few brief points about the history of this disallowance in which I have been involved to some extent. I had also moved a motion for disallowance, but this referred only to section 3 of the ordinance, which was particularly obnoxious.

Section 3 of the New South Wales Acts Application Ordinance proposed to repeal certain continued State Acts. Instead of listing the Acts which were to be repealed, it listed the Acts which were to remain in force. Hence, a number of Acts which had applied to the Australian Capital Territory would suddenly have ceased to operate if this Ordinance had been allowed. The Trade Union Act 1881 was one of the Acts that would have been disallowed. The reason why the Ordinance came to my notice was that a certain group of people, the Senior Executives Association, brought it to my notice.

I wish to go through briefly the sorry saga which goes back to 18 October 1972. I will do this very briefly, just by referring to the main events in this saga. On 18 October 1972 the Australian Capital Territory Law Reform Commission, chaired by Sir Richard Blackburn, brought down its report on the Acts in force in the Australian Capital Territory. The report took some two years to be published, and it was published in 1974. The report stated that it was certain that sections 1 to 5 of the Trade Union Act 1881 would remain in force. However, there was some doubt about registration. The Commission recommended on page 9 of its report that the Act remain in force but be modernised and be replaced by local Australian Capital Territory legislation. The then Department of Labour said that if this legislation were repealed there might be a breach of International Labour Organisation obligations and, hence, that the Act should not be repealed. This advice seems to have been lost somewhere in history.

On 28 February 1973 Australia ratified ILO Convention No. 87, Freedom of Association and Protection of the Right to Organise 1948 and the ILO Convention No. 98, Right to Organise and to Collective Bargaining 1949. The SEA wished to register under the Trade Union Act 1881 in the Australian Capital Territory. I must point out at this stage that if this Act had been disallowed the Australian Capital Territory would have been the only place in Australia where there was not a means of registration other than that under the Conciliation and Arbitration Act. This would have been a severe disadvantage to people in the Australian Capital Territory.

On 17 September 1984 the Second Division Officers Association wrote to the then Department of Territories and Local Government to seek confirmation that it was possible to register under the New South Wales Trade Union Act 1881 and to find out what requirements, procedures, costs and obligations were involved. I seek leave to incorporate that letter in Hansard in order to save a considerable amount of time.

Leave granted.

The letter read as follows-

SECOND DIVISION OFFICERS' ASSOCIATION

VICTORIAN BRANCH

C/O Department of Employment

and Industrial Relations

239 Bourke Street

Melbourne 3001

Telephone: (03) 652 966

17th September 1985

The Secretary

Department of Territories

and Local Government

G.P.O. Box 15

Canberra, A.C.T. 2601

Dear Sir,

The Council of the Victorian Branch of this Association understands that it is possible for a trade union in the Australian Capital Territory to be registered under the provisions of the (Commonwealth) Conciliation and Arbitration Act 1904, and/or under the provisions of the (New South Wales) Trade Union Act 1881, as adopted by the (Commonwealth) Seat of Government Acceptance Act 1909-legislation which it also understands is still in force.

If this understanding of the position is correct, and if this matter is your Department's responsibility, I am writing, on behalf of this Council, to seek your advice in relation to the following matters:

(1) Confirmation that it is still possible for a trade union in the Australian Capital Territory to be registered under the provisions of the second category of legislation as referred to above.

(2) What are the precise requirements that a trade union would have to comply with in order to seek/secure such registration?

(3) What are the precise procedures which would have to be followed by a trade union in seeking/securing such registration?

(4) What are the imposts which would have to be met by a trade union in seeking/securing such registration?

(5) Once registration has been secured are there any on-going obligations and imposts, e.g. annual registration fees.

If, however, this matter is not the responsibility of your Department, I should be grateful if you could inform me which Department/Agency of the Commonwealth Government this Council should approach for advice.

I look forward to your reply as soon as convenient.

Yours faithfully

B. J. HODGETTS

Honorary Secretary


Senator VIGOR —On 11 October 1984, which was just under a month after this letter was written, the draft New South Wales Applications Ordinance 1984 was referred to the Australian Capital Territory House of Assembly. This, in fact, was a draft of the Ordinance to which I referred. On 19 October 1984, a letter was sent by the Second Division Officers Association to remind the Department of Territories and Local Government that it expected a reply. On 30 October, after the reminder letter, the Department of Territories and Local Government sent a letter apologising for the delay. I seek leave to incorporate that letter in Hansard.

Leave granted.

The letter read as follows-

Department of Territories

and Local Government

G.P.O. Box 158, Canberra, A.C.T., 2601

Telephone: (062) 46 2211

Telephone:

In reply please quote:

Your reference:

The Honorary Secretary

Second Division Officers' Association

Victorian Branch

C/- Department of Employment and Industrial Relations

239 Bourke Street

Melbourne Vic 3000

Dear Sir

I refer to your letter of 17 September 1984 in which you request advice as to which legislation applies in the Australian Capital Territory governing the registration of Trade Unions. I apologise for the delay in replying.

At present both the Conciliation and Arbitration Act 1904 (Commonwealth) and the Trade Union Act 1881 (NSW) apply in the Australian Capital Territory. However the Attorney-General has referred to the House of Assembly a draft Ordinance-the New South Wales Acts Application Ordinance (No. 2) 1984-which, if it is made without amendment, will have the effect of repealing the Trade Union Act 1881 (NSW) in its application in the Territory.

Yours faithfully

A. G. Cashman

for Secretary


Senator VIGOR —I thank the Senate. The letter states:

. . . both the Conciliation and Arbitration Act 1904 (Commonwealth) and the Trade Union Act 1881 (New South Wales) apply in the Australian Capital Territory.

The letter refers to the draft ordinance which was set out on 11 October 1984, and the possible repeal of the Trade Union Act. On 30 November 1984-honourable senators will notice the sudden acceleration in bringing forward this Ordinance-application was made for registration and notification of name change in train for the then Second Division Officers Association to become the Senior Executives Association. I seek leave to incorporate that letter.

Leave granted.

The letter read as follows-

THE SECOND DIVISION OFFICERS' ASSOCIATION

P.O. Box 202

CIVIC SQUARE ACT 2608

The Secretary,

Department of Territories and Local Government,

GPO Box 158,

CANBERRA ACT 2601

Dear Sir,

I am writing on behalf of this Association to apply for its registration as a Trade Union in the ACT under the provisions of the NSW Trade Union Act (1881) as adopted by the Commonwealth Seat of Government Acceptance Act (1909). In a letter dated 30 October 1984 your department has advised us that this legislation still applies in the Territory.

This Association is in the process of changing its name by plebiscite, to the Australian Government Senior Executives Association.

Yours faithfully,

D. C. Leaver

President

30 November 1984


Senator VIGOR —On 17 December 1984 the Department sought the confirmation of the Attorney-General of its understanding that the Trade Union Act applied and sought advice on the extent to which it applied. The Association was told that if the Act applied it would have to sort out the lines of responsibility and the methods of administration through the Department of Territories and Local Government or the Department of Employment and Industrial Relations. I seek leave to incorporate a short letter about that in Hansard.

Leave granted.

The letter read as follows-

Department of Territories and Local Government

G.P.O. Box 158, Canberra, A.C.T. 2601

Telephone: (062) 46 2211

Telephone:

In reply please quote:

Your reference:

President

The Second Division Officers' Association

PO Box 202

Civic Square, A.C.T. 2608

Dear Mr Leaver

I refer to your letter dated 30 November 1984, concerning your application for registration as a trade union in the ACT, under the Trade Union Act 1881 (NSW) in its application in the Territory.

I have sought confirmation from the Attorney-General's Department of my understanding that the Act applies in the Territory, together with advice upon the extent to which it applies.

In the event that the Attorney-General's Department confirms that the Act continues to apply in the Territory, it will be necessary to establish whether responsibility for administration of the Act rests with this Department or with the Department of Employment and Industrial Relations. I would suggest, however, that it would be premature to address that question until such time as the Attorney General's Department has advised me of whether the Act does in fact apply.

There is, as you are possibly aware, no register of trade unions being maintained under the Trade Union Act 1881 (NSW), and the mechanism by which a trade union might be registered under that Act, if it still applies, does not exist. The problems which this would appear to present however will be examined in due course, if the need arises.

I will write to you again concerning your application as soon as I am in a position to offer you any substantive advice.

Yours faithfully

R. Jones

for Secretary

17.12.84


Senator VIGOR —On 15 March 1985 members of the Liberal Party and the Australian Labor Party of the Australian Capital Territory House of Assembly Standing Committee on Finance and Legislation recommended that the Trade Union Act be maintained and examined for possible modification and that it be included as an Act to be saved in the New South Wales Acts Application Ordinance. I seek leave to incorporate in Hansard the relevant record of the Assembly dealing with that.

Leave granted.

The document read as follows-

Motion

1. At its meeting on 23 October 1984 the Assembly referred Message No. U1984/116 from the Minister, to the Committee for consideration and report. The Message requested advice on the proposed New South Wales Acts Application (No. 2) Ordinance 1984.

Background

2. This legislation is the second which implements recommendations of the A.C.T. Law Reform Commission's Report on the Review of New South Wales Acts in force in the A.C.T. The first Ordinance was agreed to by the Assembly in May 1984.

3. The Ordinance is a significant A.C.T. Law Reform measure. It clarifies which NSW Acts, and which parts of those Acts, continue to apply in the A.C.T. It aligns the operation of such Acts with subsequent A.C.T. Ordinances and with the institutions which have developed over the years in the Territory.

4. Full details of the provisions are set out in the attached ordinance and Explanatory memorandum; pages 3-6 of the latter provide a comprehensive background statement for the legislation.

Committee Consideration

5. The Committee has received representations from the Australian Government Senior Executives Association regarding the N.S.W. Trade Union Act 1881. This NSW Act is proposed for repeal by the Ordinance (see page 23 of the Explanatory Memorandum). The Association has recently applied to the Government for registration as a trade union under the provisions of that Act, and has therefore requested, inter alia, that the Act should not cease in force in the A.C.T.-at least for the time being.

6. The Committee has considered the position of the Association set out in a comprehensive submission, and has received advice from the Attorney-General's Department on this NSW Act, and its present applicability in the Territory. Suffice to say that the matter is very complicated: some intricate aspects of law and policy, touching, possibly, Australian International Treaty obligations, appear to be involved.

7. The Association has advised the Committee that it has no comments on any other parts of the legislation-its difficulties are related only to the proposed repeal of the N.S.W. Trade Union Act 1881, and the consequences this would have for the pursuit of its registration application.

Committee Consideration

8. The Committee is satisfied that, if the N.S.W. Trade Union Act 1881 in its application in the Territory, was to be repealed as proposed by the Ordinance, there are grounds to believe that the Senior Executives Association could be seriously disadvantaged by that repeal. The Committee is therefore recommending that the Ordinance should be agreed to, subject to the exclusion from the repeal provisions of the N.S.W. Trade Union Act 1881. This would be accomplished by the inclusion of the Act in Clause 3 (1) of the Ordinance, which lists NSW Acts which are to continue to remain in force in the Territory.

9. The Committee will examine further the question of the repeal of the NSW Trade Union Act 1881, and report on that matter separately at a later date.

Conclusion

10. Accordingly, the Committee has concluded that the proposed New South Wales Acts Application (No. 2) Ordinance 1984, be agreed to with the addition of the following words to Clause 3 (1)-

add new paragraph (h) ``the Trade Union Act 1881 of the State of New South Wales as amended and in force in the Territory immediately before the commencement of this Ordinance.''

15 March 1985


Senator VIGOR —On 21 June 1985 the Attorney-General gazetted the New South Wales Acts Application Ordinance 1985. However, the Trade Union Act 1881 was not proposed to be kept. This Act's repeal could have gone unnoticed if the Senior Executives Association had not spotted it and if the explanatory memorandum circulated by Mr Uren to the Australian Capital Territory House of Assembly had not mentioned it somewhere towards the end. On 19 July 1985 there was a message from the Minister for Territories advising what the attitude of the Attorney-General was towards the Trade Union Act 1881. I seek leave to incorporate in Hansard the Australian Capital Territory House of Assembly record dealing with this matter.

Leave granted.

The document read as follows-

30 July 1985

New South Wales Acts Application Ordinance (No. 2) 1984

(Message No. 1985-86)

DEPUTY SPEAKER-I report Message No. 86 of 1985 from the Minister relating to the New South Wales Acts Application Ordinance (No. 2) 1984.


MR KAINE —I move-That the Message be referred to the Standing Committee on Finance and Legislation for consideration.

This is an extraordinary Minute in more ways that one. Members will recall, as mentioned by the Minister in his Message, that only in March of this year this House recommended to him, and through him to the Attorney-General, that the Trade Union Act of 1881 not be repealed. That was based on the fact that it was known to the Committee that at least one organisation had lodged an application for registration under that Act with the Department of Territories 3 months before it was even proposed that this legislation be repealed. The Department played `ducks and drakes' with the applying association; they could not make up their minds whether it was the Department of Territories or the Department of Employment and Industrial Relations which was supposed to be administering this Act. They acknowledged to the applicant that they had not set in place the machinery to implement it.

The Finance Committee, in recommending to the Minister through this House that the Act not be repealed was cognisant of the fact that there was at least one organisation which would be disadvantaged if this repeal was put into place, and we recommend accordingly to the Minister. We also indicated to the Minister that we were subjecting this matter to further investigation.

There is a long history to this matter, and if my memory serves me correctly as long ago as 1973 the Law Reform Commission addressed this particular piece of legislation and recommended that it should not be repealed until a more modern piece of legislation was set in place to replace it. The Law Reform Commission recognised that in striking this piece of legislation off the books there would be disadvantage to some groups wishing to register under the Act.

We now have this surprising situation, where only 4 months ago this House made its recommendation through the Minister to the Attorney-General that this Act not be repealed. We gave our reasons for it. We said that we had the matter under further consideration and here, on 19 July, the Attorney-General has come back and said that `despite your advice, and with a knowledge that there is an organisation which will be disadvantaged by the repeal of this legislation, we have proceeded to repeal the Act'.

Mr Deputy Speaker, I am beginning to wonder what the attitude of this Government really is to the question of civil rights. Here we have an organisation which the Attorney-General knew had lodged an application with the Department under this Act, it had a recommendation from this House that until that matter was resolved the Act not be repealed, and yet the Attorney-General proceeded to repeal the Act.

I do not know quite what one can do under these circumstances to protect the interests of people who have a difficulty, and the difficulty stems from a problem of trying to register as a trade union under the Arbitration and Conciliation Act so that the benefits of that Act can be obtained. They were refused such organisation. They discovered that this Act of 1881 still applied in the A.C.T. and that afforded them an opportunity to register, despite the refusal of registration under the Arbitration and Conciliation Act. This avenue that was open to them has now been closed.

I submit that it is a travesty for somebody like the Attorney-General to take an action like that without even coming back to discuss the matter with this House in the first place. Through the Finance Committee we have constant discussions with officers of the Attorney-General's Department on different matters of legislation that are under consideration and on which we take advice. At no time since March, has any officer of the Department indicated to us that the Attorney-General intended to repeal this Act. I find it quite curious. I wonder what political motivation was behind the refusal to accept the application from this organisation in the first place, and what political motivation is behind the repeal of this Act knowing that there is an organisation that is going to be disadvantaged by doing so.

I submit that the only action available to this House now, is for the Finance Committee to examine it further, as we indicated to the Minister and the Attorney-General that we were doing, and to bring forward for consideration an A.C.T. ordinance to re-introduce the provisions that are relevant in this Act so they would apply in 1985 instead of 1881. Hopefully the Attorney-General will not have the opportunity to block that particular piece of legislation and continue to deny the rights of organisations that are currently disadvantaged.

Motion agreed to.


Senator VIGOR —At that stage I discussed the matter with Senator Lewis and Senator Coates of the Senate Standing Committee on Regulations and Ordinances and pointed out that the Ordinance had this very strange clause 3. I moved to disallow only clause 3 because the rest of the Ordinance appeared to be sensible to some degree. The Regulations and Ordinances Committee endeavoured to get the Attorney-General to specify those Acts which had been disallowed in this process. The Attorney-General's Department was unable until two days ago to actually list the Acts which were to be disallowed. This was an enormous problem. Negotiations went on until some time today, which was the last day for disallowance. We tried to get that list of Acts incorporated in a positive way in the Ordinance.


Senator Walsh —They don't know all of them.


Senator VIGOR —They did not know all of them; that is exactly it. This is a real problem because a number of people could be disadvantaged by this process. In fact the Trade Union Act is one of the Acts. We wished to get that Act added to that to protect the rights of the Senior Executives Association and that was why we were moving a disallowance motion. I am happy to say, having put that story, that I support the fact that the Ordinance has now lapsed due to time and that the whole Ordinance has been disallowed rather than just clause 3, which would have left all the other amendments in place. This has been done by the Senate Regulations and Ordinances Committee. I believe it is a well deserved disallowance, and I fully support the fact that it has been disallowed.

Question resolved in the affirmative.

Senate adjourned at 11.35 p.m.