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Wednesday, 12 May 1993
Page: 428


Senator O'CHEE —My question is directed to the Minister for Transport and Communications. Did the Minister tell the Federal Court on 21 April that he relied on legal advice from his department as to whether his direction to the ABA regarding MDS was lawful and that he was told that it was? Is it not a fact that the only written advice which he received from the principal departmental legal adviser, Mr John Doherty, was advice which was absolutely to the contrary?


Senator COLLINS —I am happy to discuss that matter. I did receive advice that I had power to issue the direction.


Senator Alston —Oral advice.


Senator COLLINS —No. As a matter of—


Senator Alston —Not worth the paper it is written on.


Senator COLLINS —I think Senator Alston really should read that court list. As I said to him last night, before he gives documents to any more journalists, have a look at it. Senator Alston will see the advice I got if he reads the list. He is a lawyer. That was the problem, Senator Alston. Before he signed the document off to Fia Cumming he should have read the determination—every line of it. It was tabled in the Federal Court. The paragraph begins, `You have the express power', et cetera. If I had not been told that that was lawful, I would never have made it.

  I did receive subsequent legal advice, but I do not want to go any further into that because, as Senator O'Chee should know full well, that is a matter still before the Federal Court. It has not yet been determined and I think it would be most improper of me to continue to discuss the evidence that was given in court—

  Opposition senators—Oh!


Senator COLLINS —We have this thing in here called sub judice, which I take a bit seriously. So I have answered the question. The specific answer to the question is yes, I received specific written advice that I had the power to issue that direction.


Senator Alston —Not from Doherty, you didn't.


Senator COLLINS —Do you want me to finish the letter story, Richard? It is the same letter, you see. It did not change over the weekend; it is the same letter. The advice that I received was subject to some very serious charges made in the Federal Court by the applicant, Australis. Those matters are now being heard by the Federal Court and that was the third part of the action that was taken. I am happy to await the court's decision on it. The Federal Court, at the appropriate time, will bring down a determination which will indicate—and these things happen all the time—whether the legal advice I got was right or wrong. Lawyers live off that stuff.


Senator O'CHEE —Mr President, I ask a supplementary question. I direct Senator Collins to the fact that he told a judge of the Federal Court of Australia that his intention was to preserve the legislation as passed by parliament, and also that he said, `I relied on the legal advice of my department as to whether in their view that direction was lawful and I was told it was'. I also remind him that that advice said, amongst other things:

The ABA does not seem to have a legitimate basis to adopt the approach of rejecting all applications put before it for subscription TV broadcasting licences via MDS.

This is in direct conflict to what he said. Further, it says:

A direction not to grant MDS licences for subscription television broadcasting services seems to cut across the objectives of the legislation.

Why did Senator Collins, in sworn evidence as a Minister of the Government, directly and blatantly mislead the Federal Court of Australia?


Senator COLLINS —I will bet Senator O'Chee was the dux of gesture school. Senator O'Chee has just read at length from a transcript of the sworn evidence that I gave in the Federal Court, which is currently being considered by a judge of that court. It is outrageous to suggest that now that that matter is being considered I would recanvass the matter here in the Senate. I am happy to rely on the Federal Court rather than Mr Justice Willy O'Chee.