Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I move Democrats amendment (1) on sheet QM342, circulated in my name:

(1)    Page 5 (after line 20), after clause 9, insert:

9A  Procedures for merit selection of appointments

        (1)    The Minister must, by legislative instrument, determine a code of practice for appointing members of Skills Australia that sets out, in addition to the requirements outlined in subsection 9(2), general principles on which appointments are to be made, including (but not limited to):

             (a)    merit; and

             (b)    independent scrutiny of appointments; and

             (c)    probity.

        (2)    Not later than the fifth anniversary after a code of practice has been determined, the Minister must review the code.

        (3)    In reviewing a code of practice, the Minister must invite the public to comment on the code.

As I indicated earlier, the Democrats have put the basic structure of our appointments on merit amendment before the Senate many, many times. This, as I mentioned, slightly differs from previous ones circulated. We have said for more than a decade that appointments on merit are a fundamental integrity issue. The coalition did not support our amendments previously and Labor have also rejected them more often than not. But on some occasions they have supported them, so I hope that this will be one of those occasions—the first chance the government have to make good on what was a failure of the previous government in the past.

Essentially, the principles that we consistently put before the chamber are built on the Lord Nolan examination in 1995 of the issue of appointments and patronage in the UK and on his proposals, which were agreed to by the Conservative government of John Major, were then carried through and supported by the Blair government and are now to be further enhanced and improved, as I understand it, by the Brown government. We are trying to build on best practice that is emerging in democratic countries with which we have common traditions. It is simply a safeguard that, in future governments under future ministers, the procedures for merit selection appointments will always be conducted to the highest level.

Subclause 9(2) of the Skills Australia Bill 2008 has the effect of providing that ‘In making appointments, the minister must ensure that the members of Skills Australia have between them experience’ in those areas that are indicated, but that does not guarantee appointment on merit. It is not a fully transparent or accountable process either. The basic structure of our amendment has been put before the chamber, as I said, more than 30 times now. Normally we know the exact number—I am sorry I cannot quote it here today. It calls for the general principles on which the selections are made to be established by a code of practice, including that the selection of the person shall be on merit and shall cover independent scrutiny of appointments, probity and so on.

I will not say this is a last-ditch effort, because I promise we will keep putting these up whenever boards are the subject of legislation in this place. We will not give up on it, but it would be fantastic if the government would on this occasion support our amendment. As I said, the amendment has been amended in light of the fact that, as I understand it—this is the advice that I was given by the government—this appointment is underway anyway. So we have dropped off ‘the need for openness and transparency’, sad though that may be, but we have kept in ‘merit’, ‘independent scrutiny of appointments’ and ‘probity’. We have also dropped off the need for the minister to publish the code of practice in the Gazette. It is clearly a bit too late for that. However, it is hard to see why the government would not agree to this amendment as circulated in the chamber.

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

I would like to indicate that the government does not support this amendment. It might be fantastic if we did, but that is not the view that we would share, as Senator Allison, I have no doubt, would have been able to predict. There are a number of issues with the amendment, not least of which is that it is not normal practice that a statutory body providing advice to the Australian government would receive this level of intervention from the parliament. I recall similar propositions were advanced in the previous parliament and the then opposition, the Labor Party, did not support those propositions on that occasion.

This amendment undermines the capacity of the government to respond to the skills crisis which has been left to us by the Howard government. It actually limits the capacity of the government to deal with a profoundly serious situation. The amendment is therefore counterproductive to the operational needs of Skills Australia. Skills Australia will be an advisory body which will provide independent advice to the Australian government, and I have absolute confidence that the proper procedures will be put in place to ensure that there is an appropriately qualified board to support such a measure. Not only will the members of Skills Australia not have any significant financial functions; they will not have the capacity to allocate public moneys. There are already provisions in terms of accountability in the process of appointing members, and these provisions will apply.

The government will go through a standard process of appointing members to Skills Australia via instruments of appointment processes. These are not legal instruments, primarily because Skills Australia does not operate under the Financial Management and Accountability Act. If adopted, this amendment would have quite serious implications for all statutory bodies and would lead, in our view, to a number of consequences which I do not believe the parliament would necessarily support. Skills Australia’s establishment is an important initiative and unfortunately, Senator Allison, your proposal does not meet the support of the government because it actually undermines the fundamental principles that Skills Australia is designed to provide.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I would be obliged if the minister could flesh that out a little further for senators. Can he explain why an appointment based on merit would undermine the capacity to deal with the skills shortage? Can he explain why an appointment based on probity or independent scrutiny of appointments—very strong words, Senator Carr—might be counterproductive and undermine and have serious consequences? That is gilding the lily, at the very least, but I think we are entitled to hear your arguments as to why you think this to be the case.

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

What I am suggesting is that the government’s appointment procedures account for these particular concerns that you have got. We have no intention of changing that position from our stated position in regard to that process. It is unnecessary for these issues to be presented by way of amendment on the selection of members to the board of Skills Australia. These would be cabinet appointments, as I understand it, and the cabinet can be relied upon to ensure that the necessary skills will be represented on the board to fulfil its functions as required by the legislation. We do not need to have any reference to a specific requirement of merit. All of the members of Skills Australia, I trust, will be appointed on the basis of merit. I would find it very difficult to believe that there would be any other argument presented by the minister as to why a person should not be appointed. There will of course be a proper process in terms of the appointments, as we have indicated. I understand that Senator Faulkner has outlined in some detail the procedures to be followed. As for probity, is it seriously proposed that the government would appoint people who were knowingly in breach of the probity requirements? I find that a difficult proposition to accept.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

With respect, the minister tests our patience here. He is not seriously suggesting that we accept that cabinet knows best, that the minister would never appoint anybody a member of anything not based on merit and probity.  The point of our amendment is that it should not just be up to the executive of government to make these decisions. They should be open and accountable. Otherwise we get jobs for the boys, as you well know, Senator Carr. We get appointments that are improper because somewhere, somehow, someone has owed a person a position. It might be a retiring member of parliament from the Labor Party or it could even be from the other side of the chamber—who knows? If the appointments are going to be based on merit, if they are going to be based on proper probity and if this is all not a problem, then I cannot see how our amendment undermines the capacity to deal with the skills shortage.

Frankly, if it is going to happen anyway, why not have it in legislation? Why not make sure that everybody knows and understands that this is an appointment based on merit. You have not made the case, Minister, for opposing this amendment. I accept that that is what you are going to do—and I will not go on all afternoon about it—but you really have not been able to put the case for the government, except to say, ‘Trust us. Trust the cabinet. Trust the Prime Minister. Trust us all to get it right.’ We have not been able to trust the previous government; I do not think we can trust your government either just because you say so. I again urge you to rethink this matter and to support our amendment, when you have failed totally, I have to say, to explain what is wrong with it.

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

I will just quickly and briefly point out that your amendment suggests:

The Minister must, by legislative instrument, determine a code of practice for the appointing members of Skills Australia that sets out, in addition to the requirements outlined in subsection 9(2) ...

Subsection 9(1) says:

Members (including the Chair) are to appointed by the Minister by written instrument.

Subsection 9(2) spells out the conditions under which appointments should be made:

In making appointments, the Minister must ensure that the members of Skills Australia have, between them, experience in:

(a) academia;

(b) the provision of education or training; and

(c) economics; and

(d) industry.

I agree, a wide range of skills are necessary. But they are appropriate. What you are proposing is that the general positions already outlined by the government, which apply to appointments of this nature, which we have said will be implemented, should be supplanted by your particular proposals and in addition to the provisions already outlined in section 8 of the bill that is before the chamber.

I argue that the appointment mechanisms are clear and concise and require qualifications to fulfil the job. It is normal custom and practice for governments to make appointments to bodies such as this and be held accountable for those appointments through the normal processes. This is a position we held in opposition; it is a position we hold in government.

Brett Mason (Queensland, Liberal Party, Shadow Parliamentary Secretary for Education) Share this | Link to this | Hansard source

The opposition does not support this amendment and, while I understand the issues of principle raised by Senator Allison, I am nothing if not a political realist. This is the government’s view and certainly issues of accountability and transparency are important. But as the minister has said, the opposition—and indeed parliament more generally—will be monitoring the appointments to this board, as is always the case. The executive is always, in that sense, under the scrutiny of parliament. I can certainly assure Senator Allison that the opposition will continue to monitor those appointments and we will do the best we can in doing that.

Question negatived.

Bill agreed to.

Bill reported without amendment; report adopted.