Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

Of course it was endorsed by the hacks in the Labor Party. We accept that without question. But the difficulty we have here is that when I asked the minister about this, at Senate estimates on Wednesday, 20 October 2010—and this was at the end of the question:

The minister could not tell us, so hopefully the department can.

How did the minister respond?

What I told you is that we wrote to them and that how they treated it was a decision for them, and that question—

and listen to this, because this is the minister himself, and he will be voting against this later on today—

should be addressed to Justice Giudice, the President of Fair Work Australia.

So we actually had an example where the minister responsible said to me and to the committee that this is an issue that should be addressed to the president.

Now, the Labor Party, scared about the Craig Thomson inquiry, are rushing into this place asserting that no questions should be put to the President of Fair Work Australia. You have got to keep your story consistent. If no questions should be put to the President of Fair Work Australia, why did the minister himself assert that a question should be put to the President of Fair Work Australia? Indeed, Hansard is riddled with answers provided by the President of Fair Work Australia, because it is appropriate for him to be answering questions.

With great respect, it is inappropriate for Senator Marshall to try to make the analogy that somehow Fair Work Australia is like the High Court. Not only do we have the authority of the minister saying that questions should be directed to Fair Work Australia but we also have the authority of Fair Work Australia itself saying that it is not like an ordinary court. I refer honourable senators to the decision of Fair Work Australia in Tobiahs Pty Ltd v Vidacic (C2010/5738). In paragraph 35 of that decision, Fair Work Australia states—and this is a full bench, including Vice-President Lawler:

It is clear that in the ordinary courts of justice a misnaming of this sort will mean that there is no valid proceeding …

So Fair Work Australia themselves acknowledge that they are not ordinary courts. So two of the arguments of Senator Marshall have been bowled over, one by his own minister and the second by Fair Work Australia itself. But like lemmings they will vote for the motion despite the fact the precedent is there and the ministerial suggestion is there to completely and utterly contradict that which Senator Marshall has asserted. But, what is more, any analogy to the former Australian Industrial Relations Commission is interesting but not relevant because Labor brought in their very own Fair Work Act, which is different. The relevant section is section 581, which says:

Functions of the President

The President is responsible for ensuring that FWA performs its functions and exercises its powers in a manner that:

  (a) is efficient …

He is responsible, under Labor's own legislation, for ensuring that the show is run efficiently. So of whom should the questions be asked as to whether Fair Work Australia is being run efficiently? Under Labor's own legislation, it is the president. Labor wrote the legislation, they passed the legislation and now they do not want to know about the legislation.

If you do not like my argument, I would refer you to the Clerk of the Senate, who observed very astutely on 20 October 2009 that:

The first observation I make is that it is disturbing that a public office holder of the Commonwealth should refuse a formal request by a committee to appear before the committee in a hearing relating to the expenditure of public funds ultimately under the authority of that public office holder.

Indeed, the president signs off on the annual report of Fair Work Australia. His signature appears in the front of the annual report because he has the jurisdictional responsibility for the efficient running of Fair Work Australia, something Labor put into the legislation. It was all their own work. They do not like the result of their own work, but that is their problem and not ours.

Further, the Clerk goes on to say that the President of Fair Work Australia has a statutory responsibility under the Fair Work Act for the efficient performance of the functions of Fair Work Australia. He then responds to Mr Giudice's assertions and says:

It also ignores the point that, under the statutory provisions mentioned, the president is—

listen to this—

specifically charged with responsibility for the efficient performance of the functions of the body.

He further goes on to make the astute observation, as I already have and indeed as Fair Work Australia itself already has in the case I just referred to, that:

It is not a court, and does not exercise judicial power … The analogy sought to be drawn is, therefore—

listen to this word—

misleading.

So what we have here is the Labor Party coming into this place trying to contradict its own legislation, contradict its own minister, contradict a decision of Fair Work Australia and contradict the clear and unambiguous advice of the Clerk of the Senate.

Why do all this today? I trust that it has nothing whatsoever to do with the inquiry that Fair Work Australia has been undertaking for some considerable period of time into the Health Services Union. If it is not for that reason that this has been brought on today, one has to ask: why? Is this the government's top priority at this time in its legislative timetable? Does this need to be dealt with today?