Andrew Murray (WA, Australian Democrats) Share this | Link to 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.

Nick Sherry (Tasmania, Australian Labor Party, Shadow Minister for Banking and Financial Services) Share this | Link to this | Hansard source

On behalf of the Labor opposition, I will make a few points. Firstly, the Labor Party will not be supporting the amendments as moved by Senator Murray to the Public Works Committee Amendment Bill 2006. I share some of Senator Murray’s concerns. Indeed, I have referred to the approach of this Liberal Party government—and I do not even say ‘National Party’ these days. I mean, what is the National Party? It is just the doormat of the Liberal government, quite frankly. As I have said, we are concerned at the approach that has been taken, since the Liberal government has had a majority in this place, to the accountability of parliament through the committee system as it operates. The committee system, particularly in the Senate, is important to accountability and a check on the executive power in this country. We have started to see that wither, given at least some of the measures this government has enacted since it has had total control of the parliament and a majority in the Senate, through a range of pieces of legislation that indicate a government that is out of touch, extreme and going a step too far in a number of areas that were not even mentioned in the run-up to the last election—industrial relations is but one of them—and in the changes that have been made to the committee system since the last election which, again, were not mentioned at all prior to the last election.

That is an issue, along with others, that the people of Australia will make a decision on at the next election. If the people of Australia want a continuation of this approach in a range of areas, that will be their decision. If they want to allow this Liberal government total power through a majority in the Senate, and substantial power as the government of the country by re-electing them in the House of Representatives, that will be the decision of the Australian people.

But we are not dealing with the parliament as such ‘giving up its rights’, to quote Senator Murray. I think it is more a matter of how the parliament delegates its rights in a sensible and reasonable manner and of the parameters that we set, in this case around the delegation to the parliament of the examination of public works in this country. We see the proposed amendments to the Public Works Committee Amendment Bill as reasonable in the circumstances.

I understand the Australian Democrats in the sense that they are keen to hold the government accountable and are not going to ‘tug the forelock’—I think that was the expression that Senator Murray used. I could cast my thoughts back to the time of the famous GST debate, Senator Murray—but time is not going to allow me to do that—when I reflect on the position of the Australian Democrats on some other issues that have come before this chamber.

We do not believe that the provisions and the amendments contained in the bill we are considering are unreasonable in the context of the issues that we have canvassed as part of the amendments to the bill. The increase in the threshold from $6 million to $15 million is not an unreasonable increase. There has to be a threshold. The figure matched against the consumer price index or, particularly, construction costs, which would be higher—I do not have those figures to hand, but I think they would be higher—is reasonable in the circumstances. The committee cannot examine every area of public works. It could get to the absurd position where the committee was examining repair of the footpath outside Parliament House. There has to be a line drawn somewhere—obviously there will always be some projects that fall on just one side or the other in a particular area of expenditure.

I appreciate that Senator Parry and my colleague Senator Forshaw are extremely hardworking and dedicated members of this committee, along with the other members of parliament. I appreciate that this is work that it is necessary to do, and that unfortunately receives very little public accolade, recognition or acknowledgement. It is part and parcel of the everyday behind the scenes work that we as legislators have to do. But we have to draw the line somewhere in terms of the committee’s examination of some areas of public works. The demands on the committee members’ time, as we all know—on the time of all of us—are significant.

In that context the threshold is reasonable. The inclusion of PPPs as a new area of public financing of public works is reasonable. The provision for change by regulation is a reasonable approach—rather than having to amend the bill. I can recall—Senator Colbeck would be aware of this—the area of, for example, agricultural levies. Every time a change to an agricultural levy is necessary, an amendment to a bill is required in this place. I had to handle that legislation from 1993 to 1996. There were more pieces of legislation on amending agricultural levies than almost any other bills coming into the place over that period. Where we can, and where it is good public policy and relatively speaking not an issue of great contention, it is sensible that it should be done by regulation. That is sensible and practical given the time constraints that any government—and, I would say, any crossbencher—has to operate under in this place.

For those reasons, Labor does not support the amendments moved by the Australian Democrats. Over the years, Senator Murray and I have worked very closely together on many issues in this place. We respect Senator Murray’s views. His views are strongly held; generally we agree with the parameters and the principles he operates in. But on this occasion the practical balance falls on the side of supporting the amendments that are before the committee and not going beyond those amendments.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

I have a couple of quick comments and will try to wrap this up prior to question time. While I understand Senator Murray’s desire for transparency and openness in government reporting, I disagree that the government is trying to avoid that in respect of the Public Works Committee Amendment Bill 2006. The committee has not been employing a process that has been trying to get around the statute. It has been applying that statute. In fact, the parliament plays an extremely important part in all the works that come before the committee. They are referred to the committee by the parliament. Any member of the committee—in fact any member of either chamber—has the capacity to refer any work to the committee. Within this legislation there remains a strong place for the parliament, and that is as it should be.

Senator Sherry’s comments also reflect on that. In respect of how a member of parliament might be aware of what works are coming forward, there are a number of ways in which that can happen. In the first instance, agencies are required to report any major projects in their annual procurement plans. There are a number of ways in which a member of parliament can be aware of what is going on. In addition, the issue in relation to the change to the threshold has some historical basis. I acknowledge that Senator Murray supports the threshold as it has been set, but the change does have a historical basis. The threshold is being increased in line with inflation and construction costs. Therefore it is important that we continue with this legislation. I indicate that the government does not support the amendments.

Question negatived.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill now stand as printed.

Question agreed to.

Bill reported without amendment; report adopted.