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Tuesday, 18 May 1993
Page: 703

Senator ALSTON —My question is directed to the Minister for Transport and Communications. Is it correct that at all times the Government's intention, in relation to MDS licences, was to have a pooling system, as described in the MDS information paper prepared by the department in December last year? I note that the Minister nodded, so we can save time by his not having to answer it. Why, then, did the Minister proceed to sign a determination on 7 January which prescribed quite a different approach involving the sequential allocation system and which was strongly criticised by Gyles QC, who said:

. . . such a procedure will give rise to its own set of considerable difficulties in relation to allocation . . .

Before signing that determination of 7 January, did the Minister read it? Did he realise that it conflicted with the information paper? Did he seek or receive any written legal advice?

Senator COLLINS —Senator Alston has proved me wrong again. I said to my staff this morning that I did not think even Senator Alston could ask a question like that with a straight face, and he has proved me wrong. Senator Alston has no doubt seen the determination, seen the gazettal notice and seen the information paper. Now what he has in front of him is the very detailed and complex legal advice that has been provided by both AG's and Mr Gyles on this.

  There is one thing that Senator Alston said on AM this morning with which I agree; that is, this issue has to be considered completely separately from the issue of the non-deposit, and it does. The facts are that if this issue, however regrettable, had happened on its own, it would have been a matter of great regret but it would have been in that sense a non-event when one considers how arcane the legal difficulties were that caused this.

  Senator Alston is seriously suggesting that when I picked up that determination to sign it, I should have picked up that in clause 3 of the determination there was a reference to `the licence' instead of `licences'; that I should have picked up that the normal statutory interpretation rule that singular also should read plural except where otherwise determined was potentially voided by references to `the licence' elsewhere in the determination; and that the frequency bands between 2300 megahertz and whatever the other determination was did not quite accord—in other words, that there were technical drafting difficulties in this determination which, in the event, indicated that a single licence could be applied for.

  What I would then have to have done a fortnight later when the gazettal notice was published—Senator Alston might like to refer to the legal advice that says in fact that the determination was legally valid—was that I should have got the gazettal notice and then personally compared the gazettal notice against the drafting errors in the determination. I should have then determined, all on my own, that there was an error.

  Senator Alston is asking why I did not read the determination. Yes, I did read it. Frankly, I thought that Senator Alston would stick to a reasonably believable line on this. I simply ask anyone who supports the proposition that Senator Alston has just put to me to read the determination, read the gazettal notice, read the information paper that then goes out, read the two advices that I have just tabled and come to a conclusion that it would have been a reasonable thing for me to have seen that drafting mistake in the determination. It is a nonsensical proposition.

  What advice I did receive—and I was providing this in an earlier answer to Senator Hill when time ran out—I have provided to the Senate. I said to the people who were acting for us, `See if an agreement can be reached that will provide a satisfactory outcome to the court case'. The lawyers met and an agreement was reached, which was later ratified by the court which then took over the process in the way in which I determined. The court ordered us to treat as valid any tender. It was considered that that then rectified the earlier drafting problems. The precise advice I received on 8 April was:

The order enables the MDS tender process to be completed under the existing ministerial determination. All parties to the proceedings accepted the court orders as a workable way of proceeding.

Senator ALSTON —Mr President, I ask a supplementary question. It is clear that the Minister is now acknowledging that he knew that the information paper proclaimed a pooling system and that what he actually signed for was a sequential allocation system. He has also confirmed that he did not understand the difference. At 7 January did the Minister have any advice at all that drew his attention to the fundamental differences in approach? Did the Minister of his own volition take any steps to inquire as to the significance of that document before he signed it?

Senator COLLINS —I have tried to put this in the answer I just gave. In sheer logic, how could I have had such advice when it was not until I signed the determination that later re-examination discovered the legal defects? What Senator Alston is putting to me is, in fact, a logical and legal nonsense. As Mr Gyles's advice has made clear—read it—the determination I signed was legally valid, but it gave effect to a policy process which would have been administratively very clumsy and difficult to—

Senator Alston —Mr President, I raise a point of order on the question of relevance. The Minister is being simply asked whether he had any advice, legal or otherwise, before he signed that document and whether he—

Senator COLLINS —I have just answered it.

Senator Alston —The Minister is talking about the court case and subsequent events. I am asking a question about 7 January: please answer it.

The PRESIDENT —There is no point of order.

Senator COLLINS —Senator Alston knows that it was not until the determination was at large that it was subsequently discovered that it referred to the singular instead of the plural. How could I have had such advice? I point out the nonsense. Of course I did not. I confess I did not pick up—those opposite should look at the megahertz bands quoted and the fact that the word `area' was used instead of `location'—in the determination that it was singular instead of plural.