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

If I take the time to explain where we are up to, it might give an opportunity for people to be in the chamber. We are now on opposition amendments (11) and (14). I will also take the opportunity of dealing with some of those matters while the matter is before the chair. I see we now have the ability to move forward.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

I call Senator Abetz to move opposition amendments (9) and (10) on sheet 5611.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I apologise to the chamber whilst I am catching my breath. It was indicated to me that we would be having a division on housekeeping prior to this legislation coming up, so I was waiting for the division bells to ring and, of course, that did not occur. My apologies to the chamber. Could I move opposition amendments (11) to (14) by leave.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Abetz, you first need to move opposition amendments (9) and (10) on sheet 5611.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

That is right. We still had that hanging over from last night. Senator Ludwig misled me very badly there, and I fell for it. I do seek leave to move opposition amendments (9) and (10).

Leave granted.

I move:

(9)    Clause 42, page 31 (line 31), omit “or (2)”.

(10) Clause 42, page 32 (line 7), omit “and subparagraph (2)(a)(i)”.

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

Senator Abetz is correct. I did mislead him and I do apologise. I think it is worthwhile to put that on the record. What we also were at and why I missed that point is that we were seeking to have that dealt with yesterday evening as part of the division that we had in respect of opposition amendment (8). However, it is a consequential amendment and it could not be included within it. We do not intend to divide in respect of that. We have stated our opposition to it; it is a consequential amendment. We have indicated our reasoning for the opposition to that and I have already spoken to it as part of the overall package of matters that went to votes at meetings. So I do not intend to add anything in respect of that matter other than to express our opposition to it.

Question agreed to.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

by leave—I move opposition amendments (11), (12), (13) and (14) on sheet 5611 together:

(11)    Clause 43, page 33 (line 13), omit “any direction”, substitute “certain directions”.

(12)    Clause 45, page 34 (lines 14 to 16), omit paragraph (3)(a).

(13)    Clause 46, page 35 (lines 1 and 2), omit paragraph (1)(a), substitute:

          (a)           about the performance of the CEO’s functions but not in relation to operational matters; or

(14)    Clause 46, page 35 (after line 17), at the end of the clause, add:

          (5)           In this section, operational matters are matters addressed in the strategic and operational plans of Safe Work Australia.

I note that the Australian Greens have an amendment in relation to this matter as well, and what I would be suggesting to the Senate—by leave—is that we have a cognate debate in relation to opposition amendments (11) to (14) and the Australian Greens amendments (3), (4) and (5). If we have that debate together then, in the event the amendment I am moving gets up, I think the Green amendment is obviated and will not need to be put and I understand Senator Siewert would withdraw that amendment.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question before the chair is that opposition amendments (11) to (14) be agreed to. We will come to the issue of subsequent amendments and withdrawal in due course.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

But they do canvass the same grounds, Mr Temporary Chairman, and so I suppose what I am flagging is that if we do stray off opposition amendments into the Green amendments then points of order will not necessarily be helpful for the smooth flowing of the debate.

The issue in relation to these amendments relates to the ministerial direction that is able to be given, especially to the CEO. What we are suggesting relates to clause 43, line 13, which says that the CEO, according to the legislation, must also comply with any direction given by the minister, as per clause 46, or Safe Work Australia, as per clause 48. We believe that the CEO of Safe Work Australia should only be submitted to certain directions and those certain directions are those that would be outlined in clause 46 of the bill, which says the minister may give directions to the CEO but then limits them into certain categories, whereas the carte blanche that is given in clause 43 is, we believe, somewhat too extensive, especially in circumstances such as clause 57(3), which is the topic of an Australian Greens amendment, which is about the termination of the appointment of the CEO. I think these things need to be seen in context because the CEO can be terminated for misbehaviour or incapacity. That is clause 57(1). That seems to me to be fair and reasonable. Then, in clause 57(2), the CEO can be dismissed for bankruptcy and a number of other stipulated reasons, which seems fair enough.

But then we have subclause (3), which says that the minister may terminate the appointment of the CEO if the minister is of the opinion that the performance of the CEO has been—wait for it!—‘unsatisfactory’. So the minister would be able to have carte blanche in relation to the CEO and basically sway him or her and determine and direct, in a completely inappropriate way, the CEO, because what Labor is saying is that on the one hand the minister can direct the CEO in any possible way the minister wants and on the other hand the minister has the power to dismiss the CEO if they have been ‘unsatisfactory’. So with that double whammy I must say the position of the CEO really does become the plaything of the minister.

We amended this legislation during our discussions last night to ensure that the CEO and Safe Work Australia did not become the plaything of the minister where the minister could pick and choose favourites in relation to social partners. What we are also trying to do here, as an opposition, is to ensure that the CEO of Safe Work Australia does in fact have some degree of security. Indeed, given the sort of campaigns that the Australian Labor Party ran against us at the last election in relation to unfair dismissal laws, to be able to get rid of somebody just because they are ‘unsatisfactory’—not even a verbal warning is required, which I understand is now part and parcel of Forward with Fairness under Labor—is interesting, isn’t it? When the Labor Party gets the opportunity to employ somebody, the person has to abide by every direction of the minister and then, if there is anything they do that might fall into the category of being unsatisfactory, the minister can just dismiss them.

Undoubtedly those listening in would be horrified to think that one of the first pieces of legislation that the Labor Party is introducing is to employ somebody on such a tenuous contractual basis. But that, of course, is the Labor Party—they say one thing and they cross their fingers behind their back and in fact do something completely different.

Safe Work Australia is a very serious body. It really has to be given the degree of independence and confidence that allows it to act within the national interest and not be manipulated by the sort of political machinations that we know especially take place between federal and state Labor ministers. We as an opposition are very concerned to ensure that the CEO does have the capacity to act independently and therefore we are moving this amendment, which says that the CEO will be subject to certain directions by the minister under clause 46 but that the CEO should not have to comply with any direction given by the minister. We believe that is an important principle, especially given the other clauses within the legislation which undermine that position even further. We hope that the other amendments that are being foreshadowed will be carried and that that will provide a solid and secure foundation for the CEO of Safe Work Australia to operate on, ensuring harmonisation of occupational health and safety laws around the country.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens do support these amendments, but we have put amendments that seek to go further because we are deeply concerned about the ability of the CEO to give direction to Safe Work Australia. The opposition amendments limit the ability of the minister to direct the CEO by excluding directions on operational matters—that is, the minister cannot direct the CEO on operational matters. ‘Operational matters’ are defined as matters in the strategic operational plan. However, we would prefer the approach of opposing all ministerial direction to the CEO, which is why we have put amendments to that end. We believe that the opposition amendments go some way to dealing with the issues that we have concerns about but we would have liked to have gone further.

We believe this is specifically an issue around independence and the fact that this body should be tripartite. We believe that these provisions—like many other provisions that we raised during the debate last night—take away responsibility from Safe Work Australia, undermine its independence and undermine its tripartite approach. We believe the exercise of ministerial intervention in these sorts of bodies is not appropriate because it does not provide for transparency or effective outcomes and, as I said, it undermines the genuine tripartite approach that we expect from this body.

I am so scared when I find myself agreeing with Senator Abetz, as I have on so much of this debate!

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

It is spooky!

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

It is very freaky! I said to my staff this morning, ‘I feel like I’m in the twilight zone!’ But I will say it: I do agree with Senator Abetz on this issue. We will come to a Greens amendment later on about the termination of the appointment of a CEO. This bill provides:

The Minister may terminate the appointment of the CEO if the Minister is of the opinion that the performance of the CEO has been unsatisfactory.

If you do not obey the direction from the minister, all of a sudden your performance is unsatisfactory. You do not need this in the act; there are other provisions for dealing with unsatisfactory performance. I find this such a blatant attempt to influence Safe Work Australia—I am surprised it has not been done in a cleverer way, to be quite frank. Again, the states and territories and the Commonwealth had a nice little cosy arrangement to come up with a piece of legislation that they did not think we could amend and that puts in place so many obvious triggers for overriding the independence and the tripartite approach of Safe Work Australia. I am actually quite astonished that it has been done in such an outright way. As I said, I would have thought they would have been a bit cleverer about the way that was done.

The Greens wanted to take a much stronger approach to controlling the minister’s ability to intervene in Safe Work Australia. Having said that, we do support the coalition amendments because we suspect that they will not support amendments which go as strongly to this point as ours do. These amendments, at least, provides some control over the exercise of the powers of the minister over the CEO and therefore over Safe Work Australia.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I will comment very briefly, just so the listening audience is not too spooked by the cooperation between Senator Siewert and me. Of course, this does indicate to Liberal supporters that the Greens are not bad 100 per cent of the time and to Greens supporters that the Liberals are not bad 100 per cent of the time. One thing I can assure listeners of is that in relation to this the Greens and the coalition are not engaging in the sort of nonsensical group hug that we witnessed in relation to the luxury car tax, where the Greens and Family First voted for each other’s amendments in circumstances where, I honestly believe, they were contradictory—but that is for another time. We are not engaging in the sort of group hug scenario that this Senate was submitted to in the last sitting period.

In relation to clause 46—just to clarify this in my own mind—I referred to where it set out the minister’s powers in directing the CEO. I understand from the legislation that that would have to be by legislative instrument. Would that legislative instrument be a disallowable instrument?

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

It would have to be tabled, so it is tabled in parliament, but it is not a disallowable instrument.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

So, would there be oversight in relation to those matters that are contained in that legislative instrument? It seems to me, on the reading of it, that the following applies:

The Minister may, by legislative instrument, give written directions to the CEO:

(a) about the performance of the CEO’s functions ... ; or

(b) requiring the provision of a report or advice on a matter relating to Safe Work Australia’s functions.

So they would be the only two areas. If the minister sought to provide directions other than those contained in clause 46, what sort of oversight could there be by this parliament, given that 46(2) says:

A direction under paragraph (1)(a) must be of a general nature only.

How can we be assured that the minister will not be too specific but will stick by what the legislation says? At the end of the day, the Senate would not be able to disallow the instrument if it were traversed too far, so how could that actually be checked?

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

In terms of 46(1), the first point that needs to be made clear is the minister ‘may’. So they may choose a legislative instrument and give written directions to the CEO, as outlined in paragraphs (a) and (b). Note 1 then indicates:

Section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the direction—see section 44 of that Act.

So it sets out the schema. Should the minister decide to provide a written direction, it is tabled here. Therefore, it is open to parliamentary scrutiny. The parliament can see what that direction is. I will take advice about this if I am wrong, but it is not unlike the directions that I can provide to FMA agencies in my portfolio. They are written directions and they have to be tabled. With regard to directions in the legislation, in this instance the bill says:

Directions about the CEO’s functions are to be general—

and it sets out the requirements in subclauses (2), (3) and (4).

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Under the Legislative Instruments Act—and my memory is a bit rusty on this—within what time frame of providing that written direction would the direction need to be tabled?

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

My recollection is that it is 14 days, but if it changes from that I will provide advice.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

It will not change from that. Either you are right or you are wrong. I will not try to pretend to be an expert in relation to that because I do not know what the answer is. I thank the minister for that answer. If the direction is tabled within 14 days—and I will take that as being correct for the purposes of this question—or whatever the time frame might be, and it is deemed by even a majority of the Senate that the direction transgresses beyond that which is allowed in clause 46, there would be basically nothing that the Senate could do, other than move a motion of condemnation against the government or a censure motion against the government, but we could not in fact disallow that direction. Is that the legal position?

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

Under the Legislative Instruments Act, it is not a disallowable instrument. So the Senate, the parliament, could not exercise that power. All the other powers of the Senate that apply to any tabled document are available. I am sure you know as well as I do that there are a range of ways you can progress a matter, should you disagree with it. In addition, given that we on this side of the table do not have the numbers in this place, we always run the risk—the debate having been started—of having to defend these matters and deal with the other powers that the Senate might want to bring to bear in respect of these types of issues. That is why it is tabled in parliament—to provide the opportunity for not only the opposition and the minor parties to see what that written advice is but also the public to understand the general schema of how these things work.

In my experience, it is a matter that is not generally brought to bear very often. It is one of those where, when it is brought to bear, there is usually broad agreement about why it is being brought forward and usually the minister responsible will provide that general advice. I cannot foresee the circumstances, but my understanding is that certainly in my portfolio you could see circumstances where you might want to do that. Of course, in doing so you do provide the parliament with the opportunity to look at why you are doing it and to criticise the action or agree with the action.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I have just one final question. In relation to the directions that the CEO can be provided with, it says in clause 46(1)(b):

... requiring the provision of a report or advice on a matter relating to Safe Work Australia’s functions.

Would it be the intention of the government to make that report public or, if not public, at least available to the ministerial council or to the members of Safe Work Australia, or will it be simply a report that is between the CEO and the minister and which no other person will be entitled to see?

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

I am advised that it is a matter for the report to be advised to the minister. It is about ‘the performance of the CEO’s function under paragraph 45(1)(b) (assisting Safe Work Australia); or ... requiring the provision of a report or advice on a matter relating to Safe Work Australia’s functions.’ It is a way of keeping the minister and who the minister may want to advise—that is, the ministerial council—about the work and nature of Safe Work Australia. It would be a matter for the minister to determine whether that report should or should not be more broadly disseminated—or, as these things go, if it is a mundane or routine report, one would not ordinarily make it available. If it was a significant report the minister would make a decision as to whether the report would be provided. Of course, it could touch upon serious issues—I cannot second-guess what they may be—relating to preventing an injury or death, which the minister may find they cannot make public for all the reasons that you would understand. Or it could be a more perfunctory report that the minister wants to make public because it provides good information about Safe Work Australia. I imagine that that is how it would operate, but the short answer is that it would be a matter for the minister to decide.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I just say that, in my experience in this place, Senator Ludwig, it is usually the mundane reports that are freely made available while those that are somewhat more contentious are less frequently made available! But I thank the minister for the answer. I agree with this provision remaining in the legislation—and I will use that to get to the next step of supporting the Australian Greens’ next amendment in relation to the termination of the appointment of the CEO. As the legislation is now structured the minister might order a report, the report may well be to the satisfaction of the ministerial council and to the satisfaction of Safe Work Australia but it may then be used by the minister to say it is unsatisfactory to him—or her, in the current circumstances, with Minister Gillard—and they may therefore terminate the CEO’s employment. Whilst I agree with the current section, I think having clauses like this in the legislation does highlight why the next Greens amendment should in fact be supported. But I will contain my comments to that.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to 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.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that opposition amendments (11) to (14) on sheet 5611 be agreed to.

Question agreed to.

The Temporary Chairman:

As Senator Siewert is aware, Australian Greens amendment (3) is identical to opposition amendment (12), which was just passed.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

As indicated previously, the Greens will withdraw that amendment as we have just dealt with it. The Australian Greens oppose clause 57 in the following terms:

(6)   Clause 57, page 39 (lines 27 to 29), subclause (3) TO BE OPPOSED.

I realise that we have been talking about the termination of the appointment of the CEO. We believe that this amendment is an important amendment. It opposes the provision allowing for the minister to terminate the appointment of the CEO because the minister is of the opinion that the performance of the CEO has been unsatisfactory. Again, we believe it is inappropriate for the minister to have such a significant level of discretion over such an important position. If the minister is able to fire the CEO at will, we believe that this undermines the independence and tripartite nature of Safe Work Australia. We do not believe that this is an appropriate provision to have in this bill which sets up this particular agency.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

In my earlier comments I strayed into the subject of this amendment—which was, if I might say, nevertheless relevant as I sought to marry the two considerations. The minister, in responding to those comments, indicated to me that the normal protections would apply to the CEO against any capricious—I think that may have been the word used, or words similar to that—action by the minister. I was just wondering what those protections might be. For example, would the unfair dismissal law apply?

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

The question of course is in respect of the Work Choices legislation that the previous government introduced.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Which you’re keeping!

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

I will not respond to interjections that are designed to miss the point. We are in fact getting rid of Work Choices. Where the CEO’s salary is over $100,000—though I am not sure of the exact figure—unfair dismissal provisions would not apply. I was referring to those usual protections that are available in terms of procedural fairness. Senator Abetz and the Greens characterised the minister’s power as being able to sack someone at will. I think that was the phrase that the Greens used. Of course, it is for unsatisfactory performance, not at will. There is no capriciousness embodied in the legislation. It is about ensuring that, if there is unsatisfactory work performance, that power is available. It does not mean that you can conclude it by just pointing at unsatisfactory work or stating the phrase. As you would appreciate, if these matters are contested, the circumstances would need to be examined. The phrase is not unusual in the sense that, if the CEO is not performing—if they are performing unsatisfactorily—that power is available.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The question is: can it be contested in circumstances where it is prescribed in legislation that the minister has the power to dismiss if the minister is of the mind that the CEO’s performance has been unsatisfactory? Unsatisfactory is not defined and therefore, potentially, it could be a capricious minister’s view as to what unsatisfactory could mean—and I think there used to be an example during the Work Choices debate about people chewing gum at work or the colour of the tie the person might be wearing et cetera. I just want to know what the protections are for the CEO from a minister just determining one day that they think that the CEO’s performance is unsatisfactory. What protections are there? Given that, clearly, the unfair dismissal laws, as they will be amended under Forward with Fairness, will not be providing any protection and given that the legislation specifically empowers the minister to dismiss on this quite rubbery ground of unsatisfactory performance, I would like to know what guarantees there would be for the CEO if this clause were to remain in the legislation.

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

The short answer is those legal redresses that would be available depending on the circumstances of the particular case.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Such as?

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

It would be hard to describe those because it is really up to the individuals concerned as to what legal avenues they may seek to address. There are a range of them. I am not going to get into a legal debate now about what a legal adviser might provide to either party in respect of a contested issue. The point is that it ensures that for unsatisfactory performance the power is available. It is not unreasonable for the minister to have the power to terminate the appointment of a CEO who, quite frankly, is not performing. That is the nub of the issue.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

With all due respect I do not know if the minister answered the question in terms of what the definition of unsatisfactory performance is. The issue of concern to the Greens—I think Senator Abetz used ‘capriciousness’ and I said ‘at will’—is the concept that the minister may choose to define something as unsatisfactory performance when the rest of us think it is actually quite legitimate. In fact, that is particularly so when it comes to questioning the then minister’s or the then government’s approach to, in this case, OH&S issues. What the CEO might clearly define as satisfactory performance may be considered by the government of the day—and I am talking about any government of the day—to be unsatisfactory performance, so it comes back to the definition.

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

I think the problem we then get into is the circularity of the argument. It is one where it is not unreasonable for the minister to indicate, for the reasons specified in the legislation, that someone is not performing their task. If so then the minister can have that power to dismiss. It is a power to dismiss, and what happens from that point on really becomes a matter of the particular circumstances. I did not want to entertain a hypothetical debate as to what might apply depending on the circumstances, because it will turn on the factual matrix of the circumstances at any particular time in respect of the parties, what the nature of the issue is and what the nature of the unsatisfactory work performance is alleged to be. Therefore, we could be here for quite some time trying to second-guess what those are. The provision is straightforward. If you do not agree to it then clearly you do not and we should move on. It is a matter that we think is a reasonable provision to put in the legislation.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I think the minister has given the game away with the use of the term ‘reasonable’ just before he sat down. This clause, which I am minded to support the Greens on having deleted from the legislation, simply says if the minister is ‘of the opinion’; it is not even ‘reasonable opinion’. So good luck to any court trying to determine whether the minister was or was not of the opinion that the performance of the CEO had been unsatisfactory. I would have thought that all the Minister for Employment and Workplace Relations would have to do would be to bowl up to court and say that in her opinion the CEO’s performance was unsatisfactory. How can you cross-examine on what the minister’s opinion was, whether it was right, reasonable, indifferent or indeed an opinion that was reached as a result of a degree of capriciousness on behalf of the minister? The minister is given complete carte blanche. There is no requirement that it be even a reasonable opinion in the way the legislation has been drafted.

Given that the term ‘reasonable’ is absent, I would think that natural justice and things of that nature may well fall by the wayside, given that the only test that the Labor Party believes is necessary, it would seem, is all about giving the minister the complete power if in her opinion the performance has been unsatisfactory. There is no test of objectivity in relation to the minister’s opinion—it is just whether the minister’s opinion was of a particular mind—so if the minister gives evidence to the effect that the CEO’s performance has been unsatisfactory I would think that would be the beginning and end of the court case. It might be one of the shortest cases that would be before the courts. In fact, I would think it would not even reach the courts because of the provisions of this legislation . So, given the minister’s inability to provide any guarantee in relation to this very wide clause, the opposition will most definitely be supporting the Greens amendment.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that subclause 57(3) stand as printed.

Question negatived.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I move opposition amendment (15) on sheet 5611:

(15)  Page 45 (after line 9), after clause 67, insert:

67A Audit committee

        (1)    Safe Work Australia may establish an audit committee.

        (2)    The functions of the audit committee shall be:

             (a)    to receive reports and request information from the CEO on the Safe Work Australia Special Account and the financial management of Safe Work Australia.

             (b)    to make recommendations on the financial management of Safe Work Australia.

I live in hope that this might be the last amendment and also the one amendment on which the Australian Labor Party might even join us, because before the last election the Australian Labor Party were very strong on openness, transparency et cetera. In speaking to that amendment, having moved it, I indicate that we as an opposition believe that Safe Work Australia should have an audit committee. Safe Work Australia will be administering a special account which will receive moneys from, as I understand it, not only Commonwealth taxpayers but taxpayers of all the states and territories. It seems to the coalition that it is appropriate that there be a provision that would establish an audit committee to examine the finances and expenditure of Safe Work Australia. I note that a similar committee did exist under the National Occupational Health and Safety Commission. We believe an audit committee would be a transparency and accountability measure that should be absolutely non-controversial. Wouldn’t it be great if at the very end of this debate we could get unanimity at least on one amendment! I encourage the minister to join with the coalition on this and actually live up to one of the promises that Mr Rudd made at the last election.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

It is probably advantageous to the minister to hear that the Greens will support this amendment. It gives the ability for Safe Work Australia to create such a committee. The CEO has a requirement to report on finances for Safe Work Australia and to make recommendations on financial management. We believe this mechanism will enable them to do that. We believe it is a significant and appropriate amendment to this legislation; hence, we will be supporting it.

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

I have, in part, good news for Senator Abetz. The clause is unnecessary—that is the bad news. The good news is that, for all the reasons that you articulated—and it might be worth noting this down—Safe Work Australia will be prescribed as an agency under the Financial Management and Accountability Act 1997. It is in line with the Department of Finance and Deregulation’s advice and with appropriate governance arrangements for Australian government bodies. It is consistent with the principles set out in the Uhrig review, which I am sure you are familiar with. Part 7 of the FMA Act goes further than the amendment proposed by the opposition and deals in some detail with the chief executive’s responsibilities in relation to financial management. They include, in part: the promotion of efficient, effective and ethical use of Commonwealth resources, in section 44; the implementation of a forward control plan, in section 45; the requirement to establish an audit committee, in section 46; recovery of debts, in section 47; the keeping of accounts and records and access to those by the finance minister, in section 48; the requirement to give the annual financial statements to the Auditor-General, in section 49; and the provision of additional financial statements and any information the finance minister requires about the financial affairs of the agency, in section 50.

In effect, what I am putting to you is that we agree with the principle that you put forward. It is in the FMA Act and in fact encompasses not only an audit committee but all of those matters more broadly which came out of the Uhrig review, which deal with financial management and the chief executive’s responsibility in relation to ensuring that. Sections 44 to 50 set out those specific responsibilities that they have to meet. Therefore, we agree with the principle that you put forward. Should this legislation pass, the CEO will have to meet that as part of their requirements, because it is in the FMA Act. We think it is therefore unnecessary to put a separate provision in the Safe Work Australia Bill. That is why it is structured in that way. If you are an FMA agency then those are your responsibilities. We then do not have to reproduce it in each and every piece of legislation. All of those provisions provide for the chief executive’s responsibilities.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

It looks as though the absolute worst scenario that can be painted is that the opposition amendment is belt and braces and that no actual argument has been made out against it, because we seem to be in heated agreement. In relation to Safe Work Australia being under the FMA Act, I wonder where would I find that in the legislation?

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

As I have said, Safe Work Australia will be prescribed and it is prescribed by regulations, so it is not in the primary legislation. The regulations prescribe that this agency will be under Safe Work Australia. Unless I am better advised, that will be the finance minister’s responsibility. The Department of Finance and Deregulation would regulate to prescribe Safe Work Australia as an FMA agency. My advisers are nodding, so it seems as though that is how it works.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

As the Safe Work Australia legislation is currently before the Senate, it is not part of the financial management act regime, as we speak. It will need to be regulated some time after this legislation is passed. That would require us to rely on—and this is a very spooky thought—the goodwill of the government to actually do so after the event. In those circumstances, I would prefer the Senate to put a belt on the trousers and then if the government wants to regulate and also put a pair of braces on afterwards that will be fine by the coalition. But until such time as we are guaranteed that the braces have been put on, I think we will insist on our amendment, which will provide the belt.

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

Of course, Safe Work Australia does not exist until the legislation is prescribed. The legislation then details how it stands up after that point. The usual process—and this also happened under the previous government—is that when an agency is prescribed, the FMA agency will then, through the Department of Finance and Deregulation, provide that necessary prescription by legislation. It is a usual course of action to undertake. I have stated it numerous times, both in my speech on the second reading and here today, that you do not need a belt and braces approach. This legislation was designed so that you would not need to take the belt and braces approach that you are suggesting. It was designed to facilitate the process that part 7 of the FMA Act would then apply. That is the usual course, having agencies under the FMA Act. I make it plain: it happened under the previous government and it will also happen under this government. It is not unusual. It should not come as any surprise.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I would like to make one helpful suggestion. Irrespective of who might be in government, it may well be of benefit if, in the future, legislation of this nature has a clause in it specifying—so that there can be no doubt about it—that it will be under the FMA regime. Whilst it is all very nice to hear a minister’s assurance from the table that the government’s intention is to somehow regulate in the future, it seems to me that that would necessitate taking a government on good faith. In something as relatively non-controversial as Safe Work Australia one would assume that the government would live up to its promise and I would not anticipate anything to the contrary, but in relation to other pieces of legislation in the future it might be more controversial. If something were included in the specific legislation linking it to the FMA Act that would be very helpful. In reading the legislation and the explanatory memorandum cover to cover, I could not get anything from that which would indicate that Safe Work Australia would be under the Financial Management Act, but if I missed the clause so be it. I can understand how the government operates under these circumstances but I think in the future, irrespective of who is in government, it may well be beneficial.

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

We will take that on board. The difficulty is, of course—and I will not give you any undertaking in respect of that—that the problem will always arise where you are effectively using one piece of legislation to indicate that another will have to be delegated legislation under that act. It would then have to be operated to provide that prescription. It is getting to the point of being almost a Henry VIII clause—although perhaps there are other ways we could describe it. I said in my opening remarks that Safe Work Australia will be prescribed as an agency under the Financial Management and Accountability Act 1997, and those words are plain. If there are shortcomings in the description in an earlier explanatory memorandum or during a second reading speech then the advisers on my left might want to take that into account.

The legislation does, of course, refer to the CEO’s functions under that particular legislation. Part 7 of the bill, referring to the Safe Work Australia special account, says that the account is ‘a special account for the purpose of the Financial Management and Accountability Act’. So in this particular bill it is mentioned, but we will certainly take on board the issue of a more explicit statement.

Question agreed to.

Bill, as amended, agreed to.

Safe Work Australia (Consequential and Transitional Provisions) Bill 2008

Bill—by leave—taken as a whole.

Safe Work Australia Bill 2008 reported with amendments; Safe Work Australia (Consequential and Transitional Provisions) Bill 2008 reported without amendments; report adopted.