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

In view of the remarks I have heard, I propose not to deal individually with the amendments on sheet 5016, which have been circulated. I seek leave to move amendments (1) to (5) on that sheet together.

Leave granted.

I move:

(1)    Schedule 1, item 2, page 3 (lines 14 to 20), omit all words after paragraph 5AA(1)(b).

(2)   Schedule 1, items 3 and 4, page 4 (lines 27 to 34), omit the items, substitute:

3  Subsection 18(8)

Omit “$6,000,000”, substitute “$15,000,000”.

(3)   Schedule 1, page 4 (after line 28), after item 3, insert:

3A  Paragraphs 18(8)(b), (c) and (d)

Repeal the paragraphs, substitute:

        or (b)    the work is a work that has been declared, by a notice under subsection (8A), to be a repetitive work for the purposes of this subsection.

(4)   Schedule 1, page 4, (after line 34) after item 4, insert:

4A  After subsection 18(8A)

Insert:

       (8AB)   The Committee may decide to consider and report on a public work the estimated cost of which exceeds $2,000,000, and that work is then taken to be referred to the Committee under this section.

       (8AC)   A decision by the Committee under subsection (8AB) must be notified in writing to the Minister and each House of the Parliament.

       (8AD)   The Committee must be notified in writing of any proposed public work the estimated cost of which exceeds $2,000,000.

       (8AE)   A decision under subsection (8AB) cannot be made more than 60 days after the proposed public work has been notified under subsection (8AD).

(5)   Schedule 1, item 5, page 4 (line 35) to page 5 (line 4), omit the item, substitute:

5  Subsection 40(2)

Repeal the subsection.

In motivating those amendments in a futile manner—as I expected, given the remarks I have heard—I make the point that I have not been reassured by the statements that have been made around the chamber. The point right at the heart of my proposition is that I think the parliament has to always maintain its independence and its primacy over the executive. The executive does not have primacy over the parliament. The parliament represents the people. The parliament gives to the Public Works Committee the job of assessing these matters under its terms of reference. It is perfectly legitimate for the parliament then to accept statute which indicates the way in which the executive and the parliament will interact on these matters.

However, in doing so, it should not give up any of its rights. The problem we have is that it has been said, for instance, that any member of parliament can refer a matter to that committee. That is entirely incorrect. I cannot refer a matter to that committee unless I have the numbers in this chamber. I cannot do so on my individual cognisance. What is more, I would need to know in detail the particular matter to be able to motivate it. Plainly, given that I am not a member of that committee and the contractual matters that go before that committee are unlikely to cross my path, I am unlikely to be sufficiently informed to pass a matter across to that committee.

My view is that, if ever a minister has an urgent project which needs to be carried out, instead of simply passing a resolution that bypasses reference to the committee—as they can do at present—they should go before that committee and motivate the case. They should say to the committee, ‘This is urgent. We have to deal with this in a different manner. Will you, the committee, agree not to do this?’ The protection that the government has always is the numbers on the committee. Frankly, if the government of the day cannot persuade the government members on the committee to its position then there is an issue already at hand.

The definition by the committee does clarify works funded by public-private partnerships, through leasing or by methods of indirect funding, and it ensures these types of procurement are referred to the committee. The bottom line is that the works are for the Commonwealth or a Commonwealth authority. It does not, however, cover a precommitment lease. This is when the Commonwealth will be the first tenant in a facility that has not been custom designed for the Commonwealth—an arrangement that appears to be used more frequently. So here is another category which, I think, falls outside the remit of the committee.

The threshold change can take more public expenditure away from public scrutiny. Whilst the Public Works Committee takes submissions, has hearings, undertakes inspections and is an oversight committee, it will review only those matters that are referred to it. The value of the works which may fall below the proposed threshold or which may be broken up by ministers or their bureaucrats to avoid the accountability process are still potentially an issue for the committee.

The Bills Digest does point out that, despite a thorough investigation, the threshold of $15 million is still an arbitrary one. I accept that threshold. I do not have a problem with the threshold. But we have to accept that it is arbitrary. My point, consistently, has been that it should be up to the committee—not up to me; I do not want it to be up to me; I want it to be up to the committee; I trust individuals on it—to examine any matter they wish. And this bill specifically prevents them doing so. They may not look at any matter they wish on their own reference. They may not. In agreeing to this, the parliament is submitting to the authority of the executive on a matter of accountability. It is unfortunate that the participants in the debate and the parliament generally have not understood and reacted to this.

It is no good saying, ‘This has always been the way,’ because it has not always been the way. The way in which this has been dealt with is: the statute has said one thing but the committee has actually operated in a different manner, as the committee has ignored the statute and been allowed, through that process of the manual of procedures, to get around the statute. It is just not right and I have a problem with it.

The Democrats have no quarrel, as I have said before, with the way in which the committee operates. We have no quarrel with its members or its chairing. We do not have a quarrel with there being a statutory underpinning. We do not have a quarrel with the committee being required to investigate certain matters—in other words, that they must conduct an inquiry. We do not oppose the proposed $15 million threshold. We do not oppose the government of the day having a majority on the committee. But we do oppose the statute taking discretion away from the committee. We think that is a fundamental issue.

So our proposed amendments which I am motivating here, amendments (1) to (5), are based on the following principles. The parliament, through the medium of the committee, should have the maximum freedom to scrutinise all proposed public works that it wishes to, at its absolute discretion. The executive government should not be in a position to determine, by regulation or otherwise, which public works are scrutinised. I am not in this place to tug my forelock to the executive. I am in this place to serve the people of Australia in their parliament, and we should at all times protect that strength, that parliamentary strength. And in this bill we are tugging our forelock to the government of the day and saying, ‘You have the right to determine what we shall hold you accountable to.’

In application of these principles, the amendments would have the following effect. Works above the threshold of $15 million could not commence until reported on by the committee, and this represents no change to the bill. Departments and agencies would be required to notify the committee of any public work with an estimated cost of $2 million or more. In other words, the committee would always know any works that were out there above $2 million. The committee would have the ability to consider and report on any proposed public works estimated to cost more than $2 million. They would not have to—almost always, they would not bother—but they would have the right. To avoid delays to works not to be examined, any decision to examine works under the threshold would have to be made within 60 days after the committee was notified of them. This would avoid the circumstance where parliament might rise in December and come back in February and there would be a whole delay process because they were not meeting. And the executive government would not be able to exclude a work from the scrutiny of the committee. I am moving these amendments as a matter of principle. I am concerned that participants in the debate do not agree with these points, but I am glad to have had the opportunity to make them.