Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

I will respond to a couple of issues. I will address my remarks to the provisions that are being sought to be joined. They go to the ministerial powers to give directions and the power to terminate the CEO for unsatisfactory performance. The point needs to be made at the outset that Safe Work Australia will be established as an independent statutory authority; however, it will be subject to the accountability regime contained in the Financial Management and Accountability Act 1997. Along with that accountability regime, of course, comes the responsibility to meet that legislation.

The CEO has the responsibility to manage the administration of Safe Work Australia and to assist Safe Work Australia in the performance of its functions. The CEO is subject to statutory obligations contained in the FMA Act. Notwithstanding the independence of Safe Work Australia, the minister will be accountable to the Commonwealth parliament for the performance of the CEO and Safe Work Australia staff, as is the case with other ministers who have FMA agencies within their responsibilities. Because of this, and consistent with other bodies subject to the FMA Act, the bill does empower the minister to give general directions to the CEO about the performance of the CEO’s functions and to direct the provision of reports or advice on matters relating to Safe Work Australia. The minister cannot direct the CEO in relation to matters that are solely the responsibility of the CEO under either the Financial Management and Accountability Act or the Public Service Act 1999. I think those are important safeguards to bear in mind when dealing with this. There is a provision that provides a point at which the CEO has to meet the FMA Act and the Public Service Act in discharging their responsibilities, and the minister cannot intervene in relation to matters that are solely the CEO’s responsibility under those two pieces of legislation.

Turning to the issue of the minister’s power to terminate the CEO for unsatisfactory performance, I noted Senator Abetz’s earlier comments in relation to this provision. It is not a provision that allows for capricious action by the minister, nor does it say that. It refers to where there is unsatisfactory performance by a CEO. It is certainly not unreasonable for the minister to have the power to terminate the appointment of a CEO who is not performing. That would of course be subject to all the usual laws that apply to such action that may be taken by either party in response to this. It is quite a big step to take, and the usual safeguards continue to apply. It is not about taking capricious action in this area. It is therefore not one of those areas that you would expect to be exercised often.

I will stop there, and we will go back a fraction to what this is all about. It is about moving forward with the states and territories in relation to providing an outcome—that is, Safe Work Australia providing the facilitative mechanism to bring forward codes of practice and OH&S legislation. If the minister is not delivering in respect of that and the CEO is not in tune and delivering those outcomes, it is not unreasonable for the minister to start to question why. Certainly the states and territories would be seeking an answer to that question. And, of course, when you talk about the issues that surround procedural fairness, they are embodied in law. They will apply as usual so that people can answer the questions if they are put forward.

The short answer is that it is not unreasonable to have such a provision, given the position the CEO will have and the requirements to have that outcome—that is, delivering OH&S harmonised legislation, including codes of conduct for and on behalf of the Commonwealth, the states and the territories.