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

I move:

That the committee does not insist on the Senate amendments to which the House has disagreed.

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

I was wondering if the Minister for Human Services could advise us as to the degree of consultation that has taken place with the states in relation to these amendments.

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

I might have to take that on notice whilst the advisers change over after the previous piece of legislation. If we could deal with some other matters prior to that, I will be able to have a response shortly.

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

Perhaps the minister could give me an appropriate nod when his advisers are present in the chamber. That will allow me to make some comments in relation to this legislation finding its way back into the Senate so quickly. The coalition has a matter of great concern in relation to this legislation. The coalition, the Greens, Family First and Senator Xenophon had a unity ticket in relation to the amendments to this legislation—a unity ticket supported by the ACTU and the ACCI. The only people that seemed to be against it were the Australian Labor Party and its state and territory branches. Now, with the change of government in Western Australia, it has become apparent that the new government there in fact does support the extra representation being given to the social partners, namely the ACCI and the ACTU. It is therefore passing strange that the Minister for Employment and Workplace Relations, Ms Gillard, came out immediately after the Senate made these amendments and said they were unacceptable to the government.

At Senate estimates—and the minister will recall this—I asked some questions about these very matters, about whether the minister, before rejecting the Senate’s amendments, had consulted with her state colleagues. Of course, there was no answer. My understanding is that in fact there was no such consultation, which shows the arrogance and high-handedness of this government and this particular minister, the Deputy Prime Minister. I still recall the accusations and allegations made against the coalition about the Howard government allegedly treating the Senate as a rubber stamp. What greater arrogance, what greater high-handedness, can you have than a Deputy Prime Minister, before she has even had the opportunity to fully consider and consult in relation to coalition amendments, coming out and saying that they will be opposed because somehow they strike at the intergovernmental agreement that had been reached between the states and territories and the Commonwealth? Indeed, one of the questions I asked was this: how could the imposition of an audit committee unravel the legislation and the agreement? There was no answer, which is indicative of the high-handed, arrogant approach of this government and, in particular, this minister.

All of us around this chamber are committed to a safer working environment in Australia for all Australian workers. Of course we want to see the best possible regime in place. But to suggest that all wisdom resides between the ears of federal Labor and state Labor governments is, to say the least, pushing things a bit far, especially when the organisation that bankrolled these people into government—namely, the ACTU—actually happens to agree with us on this issue. The ACTU actually agrees with us on this issue. That goes to show that, now that they have got the sniff of the ministerial leather in their nostrils, the Labor government and their ministers are just jettisoning everybody who was part and parcel of their campaign—and, it would seem, on this occasion, even the ACTU.

I would have thought that, when you have the extraordinary circumstance of agreement being reached between Senator Xenophon, Senator Fielding, the Greens, the coalition, the ACTU and ACCI, there might be some substance in the amendments that this place passed and there might be some proper engagement with those of us who pursued the amendments as to why these amendments were somehow wrong or would somehow unravel the harmonisation process. We were not given those responses during the debate that we had in this place. Initially, when we were in the committee stage, we asked the questions on how the audit committee, for example, could unravel harmonisation and what was so evil about allowing the social partners, ACCI and the ACTU, to have increased representation—and, when I say ‘increased representation’, might I say that that would just restore the representation of the social partners to that which it was under the Howard coalition government. The Labor Party was changing it to reduce the social partner representation and we moved to restore it. We were not told how that could somehow unravel—other than, of course, that the Labor state governments might not get their full voting power as they wanted under the coalition government. But we happen to believe that the organisations that are at the coalface of industrial relations and of occupational health and safety, namely the employer groups and those groups representing the workers, ought to have a say and a significant say, and that is why we moved the amendments that we did.

I now note that the minister is armed with at least one adviser, and I trust that that will be enough. There is a smile from the box suggesting that he feels more than capable and confident in answering all the questions. Allow me then, Minister, to ask you what specific consultation took place between Deputy Prime Minister Gillard and the state governments prior to her immediate announcement that the Senate amendments—all Senate amendments—would be unacceptable to the government.

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

What I can say is this: I am advised that part of the response is contained within the Wednesday, 5 November 2008 communique from the Australian, state, territory and New Zealand Workplace Relations Ministers Council—I am unsure of whether you have a copy of that; I can provide it to you. Ministers at that meeting:

… were also updated on the progress of legislation to establish Safe Work Australia. Ministers highlighted that Senate amendments to the Safe Work Australia Bill 2008 were inconsistent with the historic commitment of all governments to uniform national OHS legislation as reflected in the inter-governmental agreement on OHS reforms signed by the Council of Australian Governments (COAG) in July 2008.

The ministers also:

… noted with much concern that the amendments threatened the harmonisation of national OHS legislation, thereby delaying a significant and long overdue economic reform which would enhance OHS outcomes, reduce red tape for business and strengthen Australia’s productive capacity.

The attendees included not only the Deputy Prime Minister, Ms Gillard, but also Hon. Robert Hulls for Victoria, Hon. John Hatzistergos from New South Wales, Hon. John Mickel from Queensland, Hon. Paul Caica from South Australia, Hon. Troy Buswell from WA, Hon. Tim Holding from Victoria and Hon. Joseph Tripodi from New South Wales. They were in unison about the need to pass these laws as put to this house. Why? The communique goes through a range of issues, but let me put it this way: this government has set itself the task of creating a seamless national economy unhampered by unnecessary state duplication, overlap and differences in occupational health and safety. This is a historic time where we can move to get outcomes in relation to harmonisation of OH&S codes. Occupational health and safety is a prime example of the reform that is needed and should be allowed to progress. The opposition agrees with it. We seem to be stuck on some issues. The opposition cannot seem to grasp that it has been agreed by both the states and the Commonwealth to move forward. We want to move forward in this area.

The cost to the economy is significant if we do not get OH&S reform. We know more than 300 Australians are killed each year at work. More die as a result of work related disease. Each year over 140,000 Australians are seriously injured at work. This is an area where the establishment of Safe Work Australia is an essential part of the government’s strategy to improve safety outcomes. I ask the opposition to consider the overarching necessity of moving forward with this rather than getting bogged down over the detail, which they are now doing. We have the communique from the Australian, State, Territory and New Zealand Workplace Relations Minsters Council. They have signed up to a document that they want and would like to see passed in this place.

Importantly, it is not only the ministerial council that has dealt with this. I note that in some of the issues you raised there seems to have been a coalition of opposition from both the unions and employers. But can I take you also to the position of the Business Council of Australia. On Sunday, 9 November 2008, the BCA urged the Senate to:

… remove a potential handbrake on business activity by reconsidering amendments to the Bill establishing Safe Work Australia in the parliamentary sessions resuming from this week.

The BCA chief executive, Katie Lahey, said the removal of any barriers to the efficient operation of businesses were even more important in tough economic conditions.

She went on to state:

In the current climate, businesses need every help to get on with the job. The amendments sought by the Senate jeopardise moves to make business operations and employment of workers simpler across our jurisdictions.

She also went on to say:

The amendments sought by the Senate in the last sitting are inconsistent with the agreement by all governments at COAG to deliver a uniform national system of occupational health and safety (OHS) laws.

In addition, she stated:

The BCA remains strongly of the view that the implementation of a nationally consistent OHS legislative framework is critical to realising the aim of a seamless economy for Australia.

In conclusion, the statement that the Business Council of Australia made effectively urged the Senate to reconsider its view, to consider the views of business and to pass the bill in its original form when it returns to the house, which is today. I ask the opposition to take note of both the communique from the ministerial council plus the views of the BCA and to support our position. We do want harmonised occupational health and safety outcomes, and they should allow that message to go through. We accept that we do not always get what we want, but, for the overall good of the economy, the ability to get all states and territories in the carding is really a historic occasion that we should not let slip by. With that, I urge that the Senate consider this issue and, in reconsidering its amendments, accept that they should not pass.

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

The minister took, I think, a good 10 minutes or so to provide a response to a question that I in fact did not ask. The question I asked was: when the Deputy Prime Minister first came out saying that she opposed all the Senate’s amendments, clearly before 5 November, what consultation had taken place with her state and territory counterparts? I asked that question at Senate estimates but was unable to receive an answer. I have a hunch that we know what the answer is: zero, nil, none, no consultation whatsoever before her high-handed statement. So I ask again and if we do not get an answer I will just assume that the answer is that there was no consultation before she made her high-handed statement.

I have a second question: Minister, did the communique to which you referred make any reference to the Western Australian minister saying that he in fact did support some of the amendments, including giving increased representation to the social partners, namely ACCI and the ACTU? Whilst you are at it, can you tell us how the provision of an audit committee by virtue of Senate amendment is inconsistent with the intergovernmental agreement?

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

I am advised in respect of the consultation by the Deputy Prime Minister that the amendments were discussed with various states and territories on 20 October and that the IGA and concerns about the Senate amendments were discussed. In response to the second question—yes, the communique does say that the ministers were, as I have indicated, updated on the progress of legislation to establish Safe Work Australia. In addition, the WA minister noted—and I did volunteer to provide a copy to you—that the WA government supported a number of the amendments passed by the Senate. The communique goes on to say:

However, Ministers noted with much concern that the amendments threatened the harmonisation of national OHS legislation, thereby delaying a significant and long overdue economic reform which would enhance OHS outcomes, reduce red tape for business and strengthen Australia’s productive capacity.

Ministers endorsed the proposed response to COAG on recommendations from the Productivity Commission …

This is a matter that we dealt with at length during the committee stage of the bill. It is not, of course, inconsistent with the IGA but the position we put at the time was that it was not required because these matters are dealt with in the FMA Act. Quite frankly it is unnecessary to go over those arguments again. I know that the opposition argued that it is a belt and braces approach. The reason to have FMA legislation in place, which deals comprehensively with how you deal with audit and a whole range of other matters, is to put it in legislation where it will apply to all of these types of organisations. Therefore when you happen to reproduce it in various other statutes over time, you do not depart or change the wording. Also the wording does not get amended with the effluxion of time or with change of governments when sometimes the wording alters, not through any general desire of people but it just occurs that way. You then expose yourself to the possibility that people will read it differently.

It is always much better to have it in a framework piece of legislation where it can be amended once, if there is a requirement to change it with emerging circumstances, and then be reflected across. It is more logical to keep it in the FMA Act and it is not logical to reflect it in this legislation, for those reasons that I have outlined. It ensures that there is an audit committee which operates effectively and provides the necessary assurances that, I think, you raised in terms of how it would work on the ground. It is an audit committee designed to undertake the work to ensure that Safe Work Australia works effectively for all states and territories.

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

Can the minister advise with which state and territory governments Ms Gillard actually communicated on 20 October, or was it not Ms Gillard but departmental staff talking to other departmental staff? Can we have some clarification on this alleged consultation?

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

I have indicated that consultation with states and territories took place. I have also indicated that, as of 5 November 2008, we had a clear communique from Australian state and territory and New Zealand workplace relations ministers. There were apologies, of course, to that meeting but they would have otherwise been advised of the communique. The position is plain as to where we have got to. I think that the opposition is now trying to split hairs about matters. What I am putting to the opposition is that this is about harmonisation of OH&S laws—either you agree or you disagree. In terms of the direction we are heading, my understanding is that you agree—so come on board, let us move on from here and ensure that Safe Work Australia takes up the mantle, improves outcomes for occupational health and safety and, ultimately, for those who are injured at workplaces to ensure that we do have safe workplaces and that we have harmonised laws. The state and territory governments have signed up to the IGA and they have indicated in the communique that they continue to maintain that position. We need to start to move forward from here and I ask the opposition to agree to allow the legislation to pass in an unamended form. I do that as politely as I can.

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

The arrogance from the lower house seems to be seeping up to this place as well when we have the minister telling us to come on board with his proposal, or else, and that you either support it or you do not.

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

I did not say that.

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

But you did say, ‘You either support it, or you don’t.’ It is that sort of arrogance that is making this legislation stick at the moment. The government is not willing to consider that anybody else—be it the ACTU, ACCI, Senator Xenophon, Family First, the Greens, the coalition—might have any ideas whatsoever to contribute to this to make the occupational health and safety regime even better. It is that sort of non-consultative and very arrogant approach that is causing the deadlock we are currently in.

Minister, I want a specific answer—and I want clarification on this, and you will not fob us off—as to whether Deputy Prime Minister Gillard personally spoke with state ministerial colleagues on this issue before or on 20 October. If she did not and it was simply departmental consultation, were all state and territory departments actually consulted?

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

The only information I have is what I provided to you originally, which outlined that, as I understand it, the Deputy Prime Minister consulted with the various states and territories on the Senate amendments on 20 October. The issue then went to the need to maintain the IGA, and they were concerned about the Senate amendments. I do not have any greater specificity on that answer than what I have provided. I think it provides an answer on the consultative process that was undertaken. With all due respect, the opposition should have a look at the communique. They would then see that the states and territories have entered into the IGA, they have looked at the Senate amendments post the Senate process, they have considered the position and continued with a desire to ensure that we have a harmonised outcome—that is, OHS legislation through Safe Work Australia. These amendments have been looked at by all states and territories—you even drew me to the communique, which indicated WA’s position. In their own words:

… the WA Government supports a number of the amendments passed by the Senate.

However, Ministers noted with much concern that the amendments threatened the harmonisation of national OHS legislation …

Ultimately, we have got to a position where we do want the intergovernmental agreement reflected in the legislation. The government does want OHS legislation through Safe Work to be established and we want it in the form that we have put forward. We ask the chamber to consider that position and provide a positive outcome.

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

How long was this matter under consideration at the ministerial council meeting on 5 November?

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

Unfortunately, they do not invite me there. I will see whether I can provide any additional information from the advisers which might assist.

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

Whilst the minister is doing that—and I thank him for that—is it not a fact that the minister and the government’s mantra in relation to not enhancing the position of the social partners, namely, ACCI and the ACTU, by increasing their representation on Safe Work from two to three each, was based on this wonderful balance of ensuring that the states did not lose their position of power, as it were, in the balance of power under this finely tuned agreement? As I recall, that was the rationale provided to us. It would seem passing strange, if that were the rationale, that the one state government that now actually supports this change—moved by the Senate and passed by the Senate—is in fact the Western Australian government, which one could reasonably argue is the most states rights focused of any of the state governments in Australia.

We have this bizarre proposition being put to us by the government that we should believe them on this matter, because of the finetuned agreement to ensure that all the states rights considerations were taken into account, yet the most proud, pro states rights government in Australia, the Western Australian government, is willing to dilute, as it were, state representation on Safe Work Australia and allow greater representation by the social partners. Are we actually to believe that to be the case, Minister, because, to coin a phrase I once used before—and for which I got into some trouble—it does not have the ring of truth about it?

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

As an aside, as for your bidding for WA over Queensland in being more focused on states rights, I, coming from Queensland, am not sure whether we would not call ourselves equal in terms of all pursuing states rights issues.

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

When did you try for secession?

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

I will take that interjection. Clearly, Senator Abetz has never visited Queensland north of Mackay and, if he has, I apologise. There is certainly a strong argument in Queensland. Let me recognise from the start that the population of North Queensland has long held views about a range of issues, including the one you talk about. It would be remiss of me if I did not stand up for my state and say that, from my experience, people are proactive on states rights. They also recognise that WA has similarly held views about states rights. As to who would come first in that, a dead heat might be a better term, considering the politicians who are currently in the chamber.

Having said that, the government asks the Senate to politely reconsider the amendments. We have done that in the House, and they are now here in the Senate. It is important to the government that we develop national workplace occupational health and safety arrangements and that we achieve an outcome. It is important that we get Safe Work Australia up and running as early as possible.

It is important that we get the opposition, employers and unions to agree on the necessity for OH&S harmonisation. One of the cornerstones of that, which this government has been pursuing, is to achieve state agreement. I am advised that it has not been an easy process to obtain state agreement on harmonising OH&S, but the underlying rationale for achieving harmonisation is clearly seen by everybody. Having achieved that through the IGA, having that reflected in the Safe Work Australia legislation—the bill that is currently before us—it is important to reflect upon the journey that was taken to get that agreement, to get to the position we are now at, where we have a communique from the ministerial council which recognises that we do need strong, harmonised legislation on OH&S for all the reasons that were argued in the second reading debate and in committee.

We note the amendments that are currently before us. The communique from the Workplace Relations Ministers Council states:

However, Ministers noted with much concern that the amendments threatened the harmonisation of national OHS legislation, thereby delaying a significant and long overdue economic reform which would enhance OHS outcomes, reduce red tape for business and strengthen Australia’s productive capacity.

I do think that they are overarching considerations. Again I ask the Senate to consider those overarching considerations in light of the need to move forward.

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

What the government has not articulated—and I cannot tell this from the communique from the meeting—is just how the Senate’s decisions are threatening the harmonisation of OH&S laws. What the Senate did was to insert a clause on objects. I would have thought that was straightforward. That merely points out what this legislation is intended to do—that is, increase the representation of employees and employers. What this legislation did before that was to take us backwards. As Senator Abetz has articulated, this request puts it back to what we had.

Given that this is supposed to be a tripartite approach, I would have thought that the government would have jumped at the chance to have increased representation of employees and employers. It is about removing ministerial discretion, appointing employee and employer representatives and removing the ability of the ministerial council to amend Safe Work Australia’s operational and strategic plans. I think this is where we are actually getting to the heart of why the government did not like it. It is removing some of the government’s control over Safe Work Australia—that is, state, territory and federal governments. The government said this was supposed to be an independent tripartite body. What the Senate seeks to do is to deliver on the government’s rhetoric.

The legislation also removes the power of additional voting rights for government representatives on Safe Work Australia. It removes the power of the minister to direct the CEO contrary to strategic operational plans and the power of the minister to terminate the CEO for unsatisfactory performance. It also includes an audit committee, which we spoke on before. All these are sensible amendments to this legislation. In other words, the Senate was doing its job. It reviewed this legislation, found it wanting and put in place sensible amendments that go to the heart of the matter, which is: putting in place Safe Work Australia to develop model laws and regulations. That is what this is about.

I am having real trouble understanding why this legislation jeopardises the harmonisation of OH&S laws. The fate of that harmonisation is actually up to the Commonwealth and the states. It is very rare, we have to remember, that Senator Abetz and I agree on a whole range of issues. As I said before, I found it difficult to come to terms with. But Senator Abetz asked a very key question, and it is: how long were these issues considered? Were each of the amendments considered on their own merits or was it a case of: ‘We don’t like what the Senate’s done. They have dared to question the intergovernmental agreement that we reached’? The Senate dared to look at that and found it wanting. We dared to suggest some better rules, some better laws, some improvements to the legislation. We did our job. I would like to know whether each of these amendments were talked about and reviewed. Were the merits of each amendment discussed or was it just a case of saying, ‘They are daring to say something different; therefore, we’re going to disagree’? How does this jeopardise harmonisation if it is actually improving the legislation?

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

I think it is very hard to go behind the communique, once published, and talk about the merits of individual matters as discussed or provide a blow-by-blow description of what might happen in a ministerial forum. What is important is that each of the relevant state and territory ministers would have had advisers. They also had the Deputy Prime Minister there, who has carriage of the matter. There was also all the work that led up to the intergovernmental agreement in the first place—the detailed work that went behind all of that.

Although I do not have any firsthand knowledge of it—let me make that plain—I find it difficult to then start to mount an argument that it was about rejecting the Senate on the basis that the ministerial council did not like the Senate’s position. Quite frankly, the position they got to was through the intergovernmental agreement. There was a historic agreement to sign up to harmonised OH&S laws. I think that point alone should not be missed. To try to put issues to individual state and territory ministers I think makes it even more difficult, but to ascribe to them a view that they might somehow not treat the Senate in a particular way misses the point of what they have actually tried to do.

They have signed up to a significant historic agreement and they have asked the Senate to turn that into legislation—through the carriage of Ms Gillard—in this place to reflect the agreement that they have reached. They think, I suspect, that it is a historic agreement. I tend to agree with them that it is pretty historic, having worked in state government in Queensland and having looked at—

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

Did you say ‘prehistoric’ or ‘pretty historic’?

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

Historic. I have looked at this issue of harmonising state OH&S legislation. My dealings with it go back to the early to mid 1980s when people talked about this. It recalled the Robens style occupational health and safety legislation that was promulgated in the 1970s. We then moved to that by the 1980s and the 1990s. The idea of getting OH&S legislation harmonised across all the states and territories is not a recent invention. It has been desired because it would provide much better outcomes for achieving reduced numbers of injuries in workplaces and greater outcomes for people in terms of their safety in workplaces.

I think we are now left with a position where the opposition and minor parties may be championing causes other than those which would achieve occupational health and safety outcomes by harmonising the legislation. If we look at the intergovernmental agreement, it has provided a mechanism to spread the voting across the states and territories, with each having a representative. It allows the CEO to have a casting vote. The council obviously spent—at least from the records I have read—a significant amount of time working through the arrangement, and I think the parties are settled with the arrangement and would like the Senate to similarly accept that they have reached a historic agreement and to pass the legislation. I think that is the point we are at now. I cannot say it any more plainly than that. I think the Senate does play a valuable role in pointing all these things out. I have always said that: the Senate does play a very valuable role.

It is sometimes the case that the Senate does not get its way. Sometimes the Senate is asked, even when it does have the numbers, to let those go. The Senate is being asked to accept that there is a historic intergovernmental agreement and to allow Safe Work Australia to be established. It can always continue to have an interest in the outcomes of Safe Work Australia and to ensure that it is delivering OH&S benefits for Australians. That is the Senate’s role. It can act in an obstructionist way. It has happened in the past that parties have sought to use their numbers when they have had the majority in this place. We accept that sometimes the opposition, when the government is putting a case, can accept the position that this is for the interests of OH&S overall and accept the position the government is putting. It is not unusual for that to happen either. A number of times in this place, when we have been in opposition, we have accepted the government’s position, although it might not have been perfect in our view and might not have been what we would otherwise agree to. We would continue to have an interest in the issue and to ensure that the government would maintain its outcomes as promised. In this case it is improved OH&S outcomes. We accepted that the amendments that we might otherwise have wanted passed would not be put and would not be pursued and we have withdrawn them accordingly. Those things are not unusual for this place. It is not a case where we are seeking to trample over the rights of the Senate. The Senate has an interest.

What we are in a position of asking for today is that the Senate recognise that the government has reached an agreement. We would like the Senate to acknowledge that and allow the Safe Work Australia legislation to be passed.

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

The problem here is: we have got a supposedly tripartite, independent body where one member of that—government—has joined together to make a historic agreement that gives them a much stronger voice, a much stronger role than the other two parts of that body. What the amendments did was to try to even that out a bit and to improve the legislation. I appreciate the fact that you cannot give us a blow-by-blow description of what went on in the ministerial council meeting, but I am struggling to understand why the governments—state, territory and federal—did not think that these amendments, that improve the legislation, were even worth adequately considering. I get the sense that each of these amendments were not specifically considered in detail in the same way that the Senate considered them in detail. I would really like to know why these amendments threaten harmonisation of OH&S laws, when we are all trying to achieve the same outcome and these amendments actually improve the legislation. It certainly evens up the balance in terms of representation from the other two parts of the tripartite body, and that is the employers and the employees.

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

One of the arguments that was raised is one which was dealt with in the committee stage. I will reiterate it, although I do not have the notes that I had at the time. I will paraphrase what I said then. If anyone compares it, hopefully I will be pretty close. One of the main arguments is really about process. It seems a trite argument to run, but it goes like this. It is extremely difficult, not only in my experience but from what I understand, to reach an intergovernmental agreement such as this one in such a broad area. The states acknowledge that we do need Safe Work Australia, we do need overarching OH&S legislation, we do need an outcome which is focused across Australia to ensure that we do have a plan and a strategy in place to reduce occupational health and safety incidents at workplaces across Australia and that the same outcomes can be continuous across all states and territories.

In reaching agreement, one of the challenges is always how you ensure that each state will reflect within the various parliaments the same legislation. This is not just a mild issue; it confounds and confronts states and territories. One of the experiences I can relate is the one where there were two model laws. One related to the Criminal Code. The second related to how you govern the solicitors and barristers across Australia. Both of those had their gestation period—the Model Criminal Code was much earlier—in the nineties, though I may stand corrected. I know that the first time I saw the green paper for the solicitors and barristers legislation was, as I recall, in the early nineties, and it took a long time for that to get across both states and territories. You would think it was pretty easy to have model laws that applied, but it took that long. In the outcomes, we ended up with various disagreements between the states and territories and the Commonwealth and, ultimately, variations in the legislation that were reflected in states and territories across the land. With the Model Criminal Code there was a similar experience. The federal government and the opposition were arguing for getting Model Criminal Code laws across, but we ended up with state variation.

State variation ultimately means that you do not have harmonisation because, once you have separate iterations in various states and territories, you have the capacity for people to depart and for arguments to create differences once they are litigated—or even without litigation sometimes. You then have a breakdown. What we are trying to do here is avoid that right at the start by saying: ‘They’ve signed up to an intergovernmental agreement. We then want this progressed and harmonised throughout the various states and territories. They have agreed to do suchlike.’ It is so important that we achieve it at this point because, if we start to break out with amendments and variations to the intergovernmental agreement, I suspect that other states and territories will not feel as signed up to the intergovernmental agreement as they may have and may also want to gabble on it as they reflect on their jurisdiction. They may not be able to argue, like I am arguing to the Senate today, that the intergovernmental agreement be reflected in legislation. They may simply accept that there are going to be variations and that ultimately we do not end up with harmonised occupational health and safety laws.

We would perhaps argue and end up with a position slightly improved over what we currently have but not with the historic agreement that I have indicated. That is what concerns me most. I am speaking from personal experience. I hope this agreement is not the last, that there are many more that come forward to demonstrate how states and territories can agree to work through these issues by signing up to intergovernmental agreements and that they can provide outcomes that are beneficial to both workers and employers. BCA provided a short snapshot of what the beneficial employer outcomes would be, but the employee outcomes of course are reduced injuries at the workplace and longer contact with workplace rehabilitation to be able to come back to the workforce. All of those thing are necessary. If this means that, for that outcome, I have to ask the Senate to accept the position we put forward, I do so unhesitatingly. I do so with conviction because it is one of those areas that I strongly believe we need.

Chris Ellison (WA, Liberal Party) Share this | Link to this | Hansard source

Senator Abetz.

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

What a very distinguished temporary chairman we have in the chair. Senator Ellison, I wish you well in that new role. We have just received the schedule of the amendments made by the Senate to which the House of Representatives has disagreed. That has been circulated in the chamber with some of the reasons and rationale provided to us. For example, for Senate amendment (1), the ‘Objects’ clause, the only objection seems to be that it is unnecessary; it is not going to unravel harmonisation. I ask why that was not, at least as a gesture of goodwill and an indication that this arrogant government was treating the Senate seriously, accepted by the government if the only thing that could be said against it is that it might be unnecessary. It is the same with the audit committee.

I note that we still have not been told how long the ministerial meeting considered the Senate’s amendments. We would have had officers representing the Commonwealth there, so the Minister for Human Services is in a position to tell us. I would be very interested in that. I am also interested in the government’s response to termination of CEOs’ appointments for unsatisfactory performance. We went through that at Senate estimates, did we not? Every example that could be provided was materially different from the provision in this legislation, yet we are now being given a document—when we were just about to conclude this discussion it got dropped on my desk, so I read through it. It is one of those occasions when I must say I am thankful for the minister’s longwinded answer, but he is now going to be suffering the consequences of it.

I was able to read through this document, and it quotes certain legislation—if I recall correctly, the legislation on CEOs that was referred to during Senate estimates. If I recall correctly, it had the caveat that it had to be within the ‘reasonable’ opinion of the minister—whereas the word ‘reasonable’ is not in this legislation. Another thing that the officer at the table tried to serve up to me when I asked for the details was that it had to be done by the Governor-General in council. In other words, it had to be by the agreement, one would imagine, of the cabinet and the Executive Council, and not simply at the whim of the individual minister. At Senate estimates, when I pursued this ground, the department and you, Minister, were unable to come up with one single analogous situation. So I ask again whether that is the correct situation and how amending the termination provision for the CEO in any way undermines the harmonisation process. In your answer, please spare us a lecture about the need for harmonised legislation and the importance of having good occupational health and safety legislation, because we are all in heated agreement on that. We do not need the generalities; we are down to the specifics. That is what the committee stage is all about.

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

Mr Temporary Chairman Ellison, I congratulate you on your new position. Senate amendment (1) in relation to the objects clause is unnecessary, and it is plain that it is unnecessary. I will not labour the point. It is plain within the terms that are explained there. Senator Abetz, I think you would agree: if it is unnecessary, why put it in? It is quite plain. Secondly, in respect of Senate amendment (19), this provision enables the minister to terminate the appointment of a CEO for unsatisfactory performance. Frankly, such a provision is not uncommon. Such a provision is appropriate for a body such as Safe Work Australia. If the CEO is performing poorly, not achieving results or impeding the process of OH&S harmonisation then there needs to be a mechanism—and the mechanism that is in the current legislation is satisfactory and it is necessary.

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

It is clear that we are not going to get specific answers to the specific questions. It is out of either ignorance or arrogance—the government can take its pick—but, quite frankly, the government should treat the Senate with more respect than to just repeat what the legislation says in relation to a CEO’s termination. It is something that was well canvassed. When justification of this provision was sought at Senate estimates, each and every example that was proffered was shown to be completely or substantially different from the legislation we are dealing with. I am not going to labour the point or delay the chamber any longer on these matters, but this now indicates the heights of arrogance that this government has reached before its first anniversary.

The Temporary Chairman:

The question is that the Senate not insist on the amendments to which the House of Representatives has disagreed.

Question put:

That the motion (Senator Ludwig’s) be agreed to.