Andrew Murray (WA, Australian Democrats) Share this | Hansard source

The Public Works Committee Amendment Bill 2006 was originally to be debated under the non-controversial section of the Senate’s Notice Paper on Thursdays, but I took it out of there because I think there are some important principles to be addressed. In fact, I will be moving a number of amendments. On the face of it, the bill would not have seemed at all controversial, but I think there is an important principle which needs to be tested before the Senate and exposed in debate.

The major purposes of this bill are to amend the definition of a ‘public work’ to include works funded through public-private partnerships and other similar arrangements, to increase from $6 million to $15 million the threshold value of projects that require referral to the Joint Standing Committee on Public Works to provide for the threshold value to be varied by regulation and to insert gender neutral language into the act. On the last point, it is good to see the government addressing areas where the old-fashioned view was that everything had to be in the masculine gender.

The background is that this act—and the Public Works Committee Act goes back four decades—governs the work of the Joint Standing Committee on Public Works. The committee was originally established by the Commonwealth Public Works Committee Act 1913 and first met in 1915, which means it goes back eight decades, not four. It is one of the old investigative committees of the parliament. The act requires that all public works of the Commonwealth which exceed $6 million in value be referred to the committee via the houses of parliament or by the Governor-General and, with some exceptions, that all public works sponsored by Commonwealth departments and major statutory authorities with large building programs come within the ambit of the committee’s investigative powers.

It is unexceptional that either house of parliament is able to set up any committee with any term of reference or guideline it wishes under the broad aegis of the rules and orders of that house. Of course, it is the parliament itself which has accepted that a committee should be set up by a legislative act rather than by a rule of either house. But the question, of course, is whether the executive is entitled to restrain or prohibit the workings of a parliamentary committee in any way. Like a number of joint parliamentary committees, the Public Works Committee is affected by statute. The statute does not attempt to limit the primary power of referral that the parliament has. Section 18(1) of the act states:

(1)      A motion may be moved in either House of the Parliament that a public work be referred to the Committee for consideration and report.

The act does not differentiate between referral moved by a minister or member of either house, including a member of the committee. It also does not restrict a referral of works based on costs. A work costing well below the threshold amount is able to be referred to the committee, subject to approval by either house. All of this is unexceptional so far. Section 18(8) of the Public Works Committee Act provides that works, the estimated cost of which exceed a threshold amount, currently $6 million—to be raised to $15 million by the bill—cannot commence unless they are referred to the committee or are declared exempt for certain reasons.

My problem is this: there is currently no provision for the committee to self-refer a work for inquiry and report by a motion passed at a private meeting of the committee. Nevertheless, despite that provision, that is effectively what the committee has been doing. My view is that the committee is operating properly and as it should in terms of determining its own work schedule, but it is contrary to the statute and will continue to be contrary to the statute. In an apparent conflict with the statute, the committee’s Manual of procedures for departments and agencies provides for an informal arrangement whereby agencies are to notify the committee of medium works of a value between $2 million and $6 million. The manual states that the committee may inquire into a proposed medium work if it so chooses.

Frankly, the manual is not entitled to do that: the statute prohibits it. There is—perhaps to pervert the meaning of the word—a lacuna between what the statute says and what the committee is doing. This apparent conflict between committee process and statute needs to be regularised. I must stress that the Democrats have no quarrel, none whatsoever, with the way in which the committee has been operating. We have no quarrel with the way in which it is chaired and managed and the way in which it operates. Neither do we take any issue with the Public Works Committee having a statutory underpinning. That is a feature of other statutory committees. We have no objection at all to a threshold being established above which the committee must conduct an inquiry and we do not oppose the proposed $15 million threshold. We do not take issue with the parliament deciding to give the government of the day the majority on the committee. In short, we support current policy and practice. However, we are concerned to ensure that any possible conflict between statute and parliamentary rights and privileges and entitlements and committee practice is fixed.

In our amendments before the Senate and in our proposals we are naturally biased to preserving the primacy of parliamentary discretion and we are seeking two things to be made clear in the amending bill. The committee is to be automatically advised by agencies of all proposed public works above a threshold—and we have suggested, based on precedent, $2 million—and, as at present, the committee on its own cognisance may examine any project below the upper threshold. We are accepting that it must examine above the threshold but we believe, as parliamentarians, the committee should be entitled to examine any project that it wishes below the upper threshold. Based on advice and precedent, we accept that it is unlikely that this discretion will be exercised very often by the committee.

Why do I feel strongly enough about this to take it out of the non-controversial Senate business section and to agitate for change and to lobby—probably unsuccessfully—for this change? There are two important principles. Firstly, you should not have a statute which is contrary to the actual practice of the committee because, effectively, you are defying the law and it is the job of all of us to obey the law. Secondly—and it is a bigger point in my view—I do not think the parliament in any of its guises should ever give up its powers, its rights, its freedom or its independence to the executive. That is effectively what this legislation does. Effectively, the parliament is saying that with respect to this committee it cannot carry out an accountability role below a $15 million threshold.

In passing I should say, incidentally, there is a danger with any threshold. Public sector employees and management are as able and as capable as anyone else in the for-profit or not-for-profit world of trying to manipulate matters to make sure that they get an easier ride. There is nothing to suggest it unlikely that someone might break up a contract into several parcels so that they all fall below $15 million and therefore are not subject to the rigours of the Public Works Committee’s view. I am sorry, because I am pretty certain from the reaction I have received, that I have not been able to persuade the parliamentarians concerned on this committee and in government to my argument, but nevertheless, I did want to take the opportunity to put that argument before the Senate.