Employment Relations Amendment Bill (No 2)

Mr Speaker, the Committee of the whole House has moved to recall you for a determination on a ruling I made in relation to two amendments in the name of the Hon Trevor Mallard to insert new parts. Can I say I chose not to give the matter the appropriate amount of attention at the time, and for that I take some responsibility. The Committee at the time was debating Part 2, and I was trying to determine that it be a narrow debate on two clauses, and that affected my attention to relevance. It did distract me somewhat. We then commenced debating the new Part 3, and I gave the matter some further consideration. In that regard, I can understand that the member in whose name the amendments are is a bit perplexed as to why the debate began, then at the end of his first call I subsequently ruled it out of order. The issue in relation to the amendments is whether, in my rationale, they are contradicted by something that is in Part 1 or whether they should be associated with it. I did seek some advice and ruled subsequently, after the debate had begun, that they were out of order because the pertinence of what the amendments contained should be attached to Part 1, and should have been debated at the time of that debate. It is on that basis that I gave my ruling.

I think there are two parts to it, and I thank Eric Roy for his summary. Other than the conclusions, I do not think there is any difference on the facts.

The first question is, the Committee having commenced debate on a particular part and a full speech on it having been accepted, whether it is within the realm of the Chair of the Committee at that stage to effectively rule himself out and say that other members do not have an opportunity to debate what had started. But that is probably the lesser of the two parts, although an appeal is going on on the other.

The substantive question is whether an additional part of a bill can be moved that puts conditions on what has been agreed to previously by the Committee. There is no doubt that after quite a lot of debate and suggested changes Part 1 was passed, and I think we agree that Part 2 was a fairly minor, consequential, transitional-type arrangement. Mr Speaker, both of us have been in the House during a period when there has been increasing use of a part by part approach, but I think it is fair to say not quite to the extreme we have in terms of this bill, where major legislation in two major areas—to do with 90-day trial periods and to do with union access—is wrapped up in one part. I think it is fair to say that in the time of Geoffrey Palmer as Attorney-General there would have been quite a few more parts, and even subsequently, in the time of the Bolger administration, we would have seen at least two parts, each one dealing with one of the substantive issues.

But the issue goes to whether a Committee is restricted from putting some conditions—to protect workers, in this particular case—on a part that has already been agreed to, saying essentially that Part 1 can work, but as it does work it should be limited. That is the central question. I have been looking, and I see that you are looking, at the Standing Orders and Speakers’ rulings. I cannot see something that indicates that it cannot happen. My view is that it would be a very large restriction on the right of an Opposition party to move amendments that are not unreasonable. There are only two, and they both certainly go to issues that are pertinent and provide some protections that are pertinent. My appeal to you, Mr Speaker, is that it would be an unreasonable restriction on the rights of the House if Opposition members could not move amendments in this form, and were restricted to moving amendments that restrict the approach within one part of the bill.

I shall respond to those comments by making these two points. One is that, obviously, I took advice on this issue, as well. I was told that the amendment interferes with the fundamental direction of the legislation, particularly in relation to Part 1 and previous Acts. As a consequence, the amendment proposed actually would amend Part 1 if it were passed and, of course, previous Acts as well. So that is an important point. The second point is that, in all the time I have been in the House, if there is to be an additional amendment, it is done during the debate on the part rather than as an addition to it later on. I suggest that if we were to allow this to happen, we would be opening up a whole new way in which we deal with legislation. We could pass one part, or two parts, or 10 parts, then somebody could come up with a new idea and add it in as an addendum. Quite honestly, I think we would be unwise to go down that path. If members have a view, they should express it at the time that the part is being deliberated on.

I shall speak very briefly; there is only one point I have. It was implicit in what the Hon John Carter said that these new parts would negate parts that have already been passed. That is certainly not the case. They are designed to restrict and to provide conditions on, but not to negate.

I thank honourable members. It is an interesting issue that has arisen, and I myself will seek some further advice on the particular matters, because I do not want to make any errors.

💬 Hon Trevor Mallard: I raise a point of order, Mr Speaker. I actually wonder, given the time, whether we should seek leave for you to make a considered ruling and, without interrupting urgency, come back at 2 o’clock to give it.

I think that is not necessary. I can quickly consider the information put before me by members. Obviously, the Chairperson is the sole judge of admissibility of an amendment. That is what Speakers’ ruling 78/1 makes very clear. In respect of a new part, it must be considered in the context of the structure of the bill—that is, as it is drafted and before the House. Part 1 deals with amendments to the principal Act, the Employment Relations Act. It deals with matters contained in the proposed new Part 3. It is argued that the proposed new part should have been proposed as amendments to Part 1. As I understand it, that is what the Chair of the Committee has ruled. I am somewhat persuaded by the argument put forward by the Hon John Carter that if we are to depart from that accepted understanding, the risk is that members can continually relitigate issues by introducing what are essentially new parts as the Committee considers the debate part by part. There are a couple of problems with that, because even if one argues that one is only constraining the measures contained in Part 1, that is still altering them as the Committee of the whole House has made its decisions on them. I rule in favour of the Chair’s decision that the proposed amendments are out of order.

Sitting suspended from 1 p.m. to 2 p.m.