Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That the Senate—

  (a)   notes:

  (i)   the opening statement made by the President of Fair Work Australia on 1 June 2010 during his appearance at an estimates hearing of the Education, Employment and Workplace Relations Legislation Committee, and

  (ii)   in particular, the request made in that statement that the Senate reconsider its order of 28 October 2009 which requires that, on each occasion on which the Education, Employment and Workplace Relations Legislation Committee meets to consider estimates in relation to Fair Work Australia, the President of Fair Work Australia appear before the committee to answer questions; and

  (b)   modifies the order of 28 October 2009 by indicating that the Senate expects that the President of Fair Work Australia will appear should his or her presence be requested by the Education, Employment and Workplace Relations Legislation Committee in the future, while relaxing the requirement that the President attend to answer questions on all occasions when the Education, Employment and Workplace Relations Legislation Committee meets to consider estimates in relation to Fair Work Australia.

This issue goes back some time and has some history. Prior to the establishment of Fair Work Australia we had the industrial tri­bunal under various names and, histori­cally, the oppositions of the day had never required the head of the judicial arm of the tribunal to appear before Senate estimates. It was always considered an inappropriate thing to do because, clearly, those who are actually providing independent decision-making processes and who are conciliating and arbitrating between parties need to be free to do so without any sort of political interfer­ence or political pressure. The convention always was, as I clearly understood it, that the Senate would not seek to put pressure on or be seen to be putting pressure on or politically interfering with the role of those independent arbitrators and conciliators.

With the establishment of Fair Work Australia the opposition took a different view and, for the first time that I am aware, they have sought to call the head of Fair Work Australia to appear before Senate estimates. Given the structure of Fair Work Australia it is, in fact, the general manager who is responsible for the expenditure of Fair Work Australia. It is the general manager who runs the day-to-day business of the mechanisms that support the judicial side of Fair Work Australia. It is he or she who actually exercises the role of expending the money that is appropriated from this parliament for the running of Fair Work Australia. So if there is an officer from Fair Work Australia best equipped to answer questions from Senate estimates and who can, quite rightly, answer questions on the expenditure of government funds and the role of Fair Work Australia in exercising its duties, that officer is the general manager.

The ALP, and the ALP even when in government, I do not think, has ever questioned the ability of the Senate to call any officer to Senate estimates if it so desires; it simply had never desired to do so prior to the establishment of Fair Work Australia. Clearly, the government was of the view that the calling of the President of Fair Work Australia could put in jeopardy their ability, without any political interference or pressure, to make decisions and consider issues brought before it fairly, openly and honestly. It is to this that Justice Giudice, the present President of Fair Work Australia, has primarily objected to. It is his view, as it is the committee's view, that the most appropriate person to appear before Senate estimates is in fact—

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Just to let you know, Senator Marshall, that it is not 10 minutes; it is actually 20 minutes, so you will have another 16 minutes and 12 seconds.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Thank you for your generosity, Mr Deputy President. This is a practice that has happened for many years and, clearly, all the time that I was in opposition—

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

There never has been a Fair Work Australia.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I am sure that if you were listening to the beginning of my contribution, Senator Cormann, you would have heard that I actually went through the process of what happened prior to the establishment of Fair Work Australia. We generally know that the Industrial Relations Commission has had several names over the history of this area, and I was talking about its historical context before Fair Work Australia. I was actually explaining when the change in attitude happened.

Before we found that the clock had to be reset I was saying that I do not think the government has ever had a view that it is not possible to call any officer before Senate estimates—not just from Fair Work Australia; probably from other tribunals or courts, too—if it saw fit to do so but, generally, it has not seen fit to do so. For instance, I do not think it has ever attempted to call justices of the High Court or the Federal Court before Senate estimates. I think that would be inappropriate to do so. The Senate may, and probably does, have the power to do so, if it sought to. Ultimately after some discussion the Senate Education, Employment and Workplace Relations Legislation Committee determined that it did not require Justice Giudice to appear before the Senate estimates. That provoked, for want of a better word, a resolution by Senator Fisher that actually required the attendance of the President of Fair Work Australia on each and every occasion that Senate estimates were being held. That was an ongoing binding resolution, and the President of Fair Work Australia complied with that Senate resolution and has been attending Senate estimates ever since.

I, as chair of that committee, have of course had the opportunity to observe those Senate estimates. I have been present for all of them and have chaired all those Senate estimates that Justice Giudice has attended. It is certainly my view, and a view shared by the majority of the committee, that there were no questions that were asked of the president that could not have been asked of the General Manager of Fair Work Australia and appropriately answered by the general manager. There were also questions asked that went behind the decision-making process of the tribunal officers, and the president, I think quite rightly, refused to engage in discussions about the decision-making processes and the internal processes in coming to decisions and conciliations of the tribunal. So clearly it was the view of the committee, which was then conveyed to the Senate in a report to the Senate of two estimates proceedings. The first was the report of the additional estimates of 2009-10, where the committee at paragraph 2.16 noted:

In his concluding remarks to the committee, the President of FWA stated:

I am not the head of any agency for budget purposes. I would like that to be recorded. I urge anybody connected with these proceedings to ensure it is clear in the public domain that I am not an agency head.

The committee notes that section 658(a) of the Fair Work Act provides that the General Manager has independent responsibility for compliance with the Financial Management and Accountability Act—which FWA falls under—and that this may be what the President was referring to.

The President's statement about his role at FWA follows on from correspondence with the committee during 2009 about which FWA executives are best placed to appear and answer estimates questions. At the time of that correspondence, the committee accepted Justice Giudice's view that the General Manager of FWA was the appropriate representative. Having regard to the questions asked of FWA during the additional estimates hearings, the committee is still of that view.

However, the committee notes that the Senate order of 28 October 2009 is of continuing effect.

That order is the resolution of the Senate that I referred to earlier, moved by Senator Fisher.

In the committee's report on the budget estimates of 2010-11 it said this at 1.16:

In its February 2010 Additional Estimates report, the committee maintained that the General Manager would be an appropriate representative but also acknowledged that the Senate order of 28 October 2009 overrides this view.

Justice Giudice opened his appearance at the Budget Estimates hearings on 1 June 2010 with a request that the Senate reconsider its order. He indicated that he does not agree with the basis on which he is being required to appear and suggested that compelling him to appear compromises the independence of FWA.

The committee has now considered Justice Giudice's statement and the concerns raised within it. The committee does not resile from the view that it is within the authority of the Senate to call the President of FWA to appear at estimates hearings. However, the committee does not believe that the President should automatically be required to attend all such hearings on an ongoing basis. No other officer of the Commonwealth is subject to such a requirement. It would now be appropriate for the Senate to relax the order of 28 October 2009, while maintaining its expectation that the President will appear at future estimates hearings if requested by the committee. Accordingly, the committee will be asking the Senate to reconsider its order of 28 October 2009.

On behalf of the committee I did put such a resolution, which has very similar terms but not exactly the terms of the resolution before us today, and that was defeated at the time. Since then there have been more Senate estimates and I have had the opportunity as chair of that committee to again be present and to view the questioning of the Fair Work Australia President, and I am still of the view—in fact, the questioning so far has confirmed my view—that the order ought to be relaxed. As a consequence I have on a couple of occasions brought motions to this place, and through some of the procedural complexities, I suppose, of the Senate we are now here actually debating my resolution in general business, and I am very happy to do so.

I know it was an issue that caused considerable debate and I know people have strong views about it, and ultimately it is a decision for the Senate to make. I will finish on this because I do not want to keep the Senate unduly in this respect. What my resolution does is effectively note the opening statements made by the President of Fair Work Australia on 1 June 2010 during his appearance at an estimates hearing of the Education, Employment and Workplace Relations Committee. That is a substantial statement. It can be found on page EEWR120 of the Senate committee Hansard of Tuesday, 1 June 2010. It was a very well considered statement made deliberately to the estimates committee. It outlines the argu­ment of the President of Fair Work Australia and the case he is making in terms of his appearance before the estimates committee. The second part of my motion states:

  (ii)   in particular, the request made in that statement that the Senate reconsider its order of 28 October 2009 which requires that, on each occasion on which the Education, Employment and Workplace Relations Legislation Committee meets to consider estimates in relation to Fair Work Australia, the President of Fair Work Australia appear before the committee to answer questions; and

Paragraph (b), and this is the impact of the motion before us today, states:

  (b)   modifies the order of 28 October 2009 by indicating that the Senate expects that the President of Fair Work Australia will appear should his or her presence be requested by the Education, Employment and Workplace Relations Legislation Committee in the future, while relaxing the requirement that the President attend to answer questions on all occasions when the Education, Employment and Workplace Relations Legislation Committee meets to consider estimates in relation to Fair Work Australia.

So it is clear the impact of the motion, if it is successfully passed by the Senate today, and I hope it will be, will be to bring the president back to the same position as all other officers of the Commonwealth—that is, if they be requested to attend it is expected that they would attend, but the president is not required to attend on every occasion. If there were a line of questioning that the committee was of the view would be more appropriately answered by the president than the general manager, the committee could make that decision and request the attendance of the president, and this motion would require that he attend under those circumstances.

So it is simply not a position where we are saying the President of Fair Work Australia need never attend. He certainly would attend if requested by the committee to do so. But in my view, and I put this to the Senate, there have not been questions asked of the president so far in estimates, since he has been required to attend, that could not have just, or even more appropriately, been answered by the General Manager of Fair Work Australia. I commend the motion to the Senate.

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

The coalition opposes the motion before the Senate. This is the beginning of Labor and the Greens taking control of the Senate and ensuring that the sort of accountability that used to exist in this place is shut down. It is no coincidence that the Labor Party sees this as a matter of urgency today when questions are being asked about the delay in Fair Work Australia conducting an inquiry into the Health Services Union. What does the Labor Party do? They come into this place to move a motion that the top person of Fair Work Australia no longer be required to attend before Senate estimates committees.

Why the rush with this, when the next set of estimates is not until October of this year? It is perfectly clear as to why Labor are moving this. They want to ensure that in relation to this accountability at least one person, the top person of Fair Work Australia, cannot be questioned in relation to the Health Services Union inquiry.

But of course there are other matters that I must inform the Senate about as to why the Senate should not support this motion. Senator Marshall spent a lot of time quoting the committee report. What he did not tell us was that he was in fact the author of that committee report. It is pretty poor form quoting yourself as some sort of authority in relation to this.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

It was endorsed by the committee.

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

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

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

How did the minister respond?

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

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

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

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

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

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

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

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

Functions of the President

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

  (a) is efficient …

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

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

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

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

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

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

listen to this—

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

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

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

listen to this word—

misleading.

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

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

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

You brought it on!

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

We will remember this. From time to time, the opposition assist the government in its timetable. We will remember that when you seek time for the carbon tax debate later this year. If when we extend courtesies to the government it is thrown back in our face, let me remind Senator Collins and the Labor Party that it will be remembered. I think she might expect a phone call from the Leader of the Government in the Senate in relation to that very injudicious interjection.

The simple fact is that there are many organisations that do believe that it is appropriate for Fair Work Australia to submit itself to Senate estimates and that the president should appear. There has been a suggestion by Senator Marshall that somehow we sought to go behind the decision making. Can I indicate that we as coalition senators have been very careful not to do so. The only time when it has been asserted—which is on the Hansard record and so I disclose nothing that is not in the public domain—was when a question was asked whether the actual bench decision had been faithfully transcribed. The assertion was that somehow that was going behind the decision. We were in fact talking about the administrative support and not about the decision-making process. But of course that is the sort of sensitivity that we get with the Labor Party with their endless appointment of union hacks to the bench of Fair Work Australia.

Indeed, when we asked whether as President of Fair Work Australia Mr Giudice ever called in people from the bench inquiring as to how they were handling their position and how things were going, without wanting to name names or mention people or find out whether any counselling occurred, we were told, 'Absolutely not; he won't go there.' That is, I must say, a matter of concern in relation to public accountability for this non-judicial body. Let us keep in mind that it is a non-judicial body—something which Fair Work Australia itself acknowledges. We have a situation before us where the Labor Party is desperately trying to hide from accountability the person that is in charge of Fair Work Australia.

When Mr Rudd was on his road to the Lodge he promised the Australian people something I think he referred to as Operation Sunlight: there would be accountability, there would be transparency—there would be no running and hiding under this government. Well, here we have a wonderful example of Labor and the Greens combining to draw the curtains to ensure that any sunlight that there might be will not be allowed to shine in. But what else do you expect? What did the Greens representative do in the House of Representatives yesterday when there was a motion asking that Mr Craig Thomson explain himself? Mr Bandt ran across and voted with Labor to ensure that the member for Dobell would not have to give an explanation. Do you know what I predict, Mr Acting Deputy President? The Greens will, lemming-like, also vote with Labor on this to ensure that there will not be accountability. Just like Mr Bandt voted yesterday to ensure there was no accountability by the member for Dobell, so the Greens senators in this place will vote to ensure that there is no accountability by the President of Fair Work Australia. Make no mistake; we know what the numbers are on the committee. The committee, which has a majority of Labor senators, has always voted to stop Mr Giudice from appearing, and it was a vote of the Senate that required him to appear, as supported by Senator Xenophon and Senator Fielding at the time.

It interesting to note, is it not, that it was the two Independent senators, Senators Xenophon and Fielding, who, confronted with all the arguments, saw the good sense, the good justice and the good governance requirements for Mr Giudice to appear before the Senate estimates. Now we are no longer able to rely on some Independent senators because the Greens have formed this alliance with Labor. They will stop this accountability that we should rightfully expect in relation to Fair Work Australia.

We have seen a number of occasions on which the issues raised at the Senate estimates by Fair Work Australia have been ably, capably handled by the president and he has answered the questions. He did not sidestep the questions and say, 'This is a matter for the registrar; this is a matter for the financial officer.' I think he accepted that there were a number of questions that he himself should be specifically answering, despite the fact he did not want to be there—and I do not blame him; I would imagine most people would not like appearing before Senate estimates, despite the wonderful chairmanship of Senator Marshall and the presence from time to time of the Acting Deputy President in the chair, Senator Cameron.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

And your fantastic performances too!

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

No, I am not referring to my performances at all; I am only referring to your Labor colleagues. The construct that was sought to be built to deny the Senate estimates committee the right to question the President of Fair Work Australia has fallen on every single count. Allow me to quickly go through them again. Labor drew up the legislation. It requires that the president be responsible for the efficient running of Fair Work Australia. And, might I add, he is responsible to ensure that Fair Work Australia adequately serves the needs of employers and employees throughout Australia. It is an important function that he has. Why should he not be questioned about his performance of those functions? That is how Labor drafted their legislation.

We then have the Minister for Tertiary Education, Skills, Jobs and Workplace Relations gratuitously advising me—and I think it was a fair advice—that that question should be addressed to Justice Giudice. So we have the minister himself acknowledging that and then—

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

Because he was president at the time.

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

Well, in fact he was not president at the time, Senator Collins. This is where these hapless senators make these mindless interjections and get themselves and their government into trouble. This was when we had the department in front of us and I in fact asked whether the minister or the department could help and the minister said, 'No, that question should be addressed to Justice Giudice, the President of Fair Work Australia.'

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

Who was to be appearing.

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

So he was not even at the table at the time.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

That's not the point, Eric, and you know it.

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

But keep up your interjections, Senator Collins, because you are just digging deeper. Then of course we had Fair Work Australia's own decision acknowledging that they are no ordinary court and, as a result, all the highfalutin nonsense about them being like the High Court or the Federal Court falls flat—not on my say-so but on Fair Work Australia, a full bench of three members, saying it themselves. So, when every single argument that has been put up is demolished by Labor's legislation, by Labor's minister and by Fair Work Australia itself, it begs the simple and last question: why do it and why do it today? I trust it has nothing to do with the strife of the member for Dobell and the eternally long inquiry that has been undertaken by Fair Work Australia into the Health Services Union.

Senator Jacinta Collins interjecting—

I can assure Senator Marshall and the ever-interjecting Senator Collins that we will continue to pursue all aspects of the Health Services Union and Mr Thomson at the next lot of Senate estimates hearings.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I intend to speak only briefly on this matter relating to the attendance of the President of Fair Work Australia before Senate estimates committees, but I assure you that the Australian Greens do consider this a serious matter. The Australian Greens support the motion of Senator Marshall before the Senate. We acknowledge that the Senate has far-reaching powers to require the attendance of many and various officers before Senate estimates committees and that this is appropriate and necessary for proper accountability. However, in the view of the Australian Greens, it is also important that these powers be exercised reasonably and appropriately to maintain the respect that these powers embody. In this case the Australian Greens are concerned that the status quo, which is subject to the motion, currently mandates the attendance of the President of Fair Work Australia. The alternative, which is the analogous situation, is that the Senate Education, Employment and Workplace Relations Legislation Committee should determine, at its own discretion, and as it does in relation to other Commonwealth officers, whether the president should attend on a case-by case-basis. There is no doubt that if that discretion were exercised and that requirement were effected, then the president would indeed be required to attend, as is proper.

The Australian Greens are of the view that the function of the president is a quasi-judicial role. There is no doubt that it does involve decision making, which is informed by judgment and the weighing up of relevant factors. Anyone looking on and affected by a decision of the President of Fair Work Australia would certainly want to have him or her make a decision in a fair and unbiased way, not subject to any improper inter­fer­ence. The Australian Greens are concerned that requiring mandatory attendance, in contrast to other analogous officers, has the potential to compromise the independence of this office. This is something we are extremely concerned about, particularly in relation to the decision-making role, which Australians have a right to expect to be undertaken in a fair and unbiased way.

My understanding is that this is not a new concern that has been raised and that the committee recommended about a year ago that the status quo be changed. The idea that this is a very new and opportunistic suggestion is not correct, and that is not the view the Australian Greens are taking. So, applying the proper principles, the Australian Greens support the motion.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I am very pleased to support this motion of Senator Marshall relating to the attendance of the President of Fair Work Australia at Senate estimates hearings, which I should highlight has not been rushed. Senator Marshall's concerns on this matter have been quite longstanding. Indeed, I take this opportunity to thank the opposition for allowing their time during general business today to deal with this matter. They equally could have chosen some other matter of significance but, unfortunately, from the themes raised by Senator Abetz, they are trying to stretch a really long bow and associate this issue with other matters that are not in the least relevant.

Senator Abetz also seeks to beat this motion up into something more than it is. Let us be very clear about this motion. It seeks to normalise arrangements for the Senate Education, Employment and Workplace Relations Legislation Committee and its dealings with Senate estimates. It seeks to normalise that by not requiring that Justice Giudice appear on each and every occasion. It also strikes quite a reasonable compromise to that effect because it does not seek to overturn the Senate order that allows the Senate to have Justice Giudice appear, despite the arguments that might be run about whether judicial independence should be applied to Fair Work Australia. It does not seek to override that Senate order; it simply seeks to establish arrangements that would allow Justice Giudice not to be required to attend on each and every occasion. In my view, that is quite a reasonable compromise and also helps respect the dignity of Justice Giudice in this matter.

Perhaps I should go to some of the history as well and to some of the concerns that have been raised by stakeholders since this matter was first before the Senate establishing this order. Although I was not in the chamber at the time, I am sure that Senator Marshall dealt with some of the concerns as they originated from the committee. Much also has occurred from various key stakeholders over the period I would describe as Senator Mary Jo Fisher's jaunt. Senator Abetz described some matters that had been before the committee when Justice Giudice was appearing, but I would have to say he avoided describing some less generous matters in perhaps the detail they should have been covered. I have spoken to a range of stakeholders that pay particular regard and attention to Senate estimates and their level of embarrassment and their surprise that the Senate committee would allow this type of conduct to occur was palpable—palpable to the degree that AMMA, the Australian Mines and Minerals Association, advised Senator Fisher that they were of the view that the Senate should modify its order to remove the mandatory requirement for the President of Fair Work Australia to appear. They said that having the president unnecessarily appear before the committee to answer questions such as, 'Please describe for me a day in the life of the president,' with the attendant political interference—remember, this is the AMMA, a major employer organisation not usually aligned with the Labor Party—could erode public confidence in the tribunal.

My concern is with how the opposition is proceeding with this matter. Again, as I have said, we are in opposition time for general business at the moment. Perhaps it is the cynic in me, but why would the opposition during their time seek to argue that the government is pressing a particular matter and then try to turn it into a matter which it is not? And why would they also seek to characterise it in quite an inaccurate way rather than deal with the facts of the motion that is before us? The cynic in me says this is yet another arm or another leg of the opposition's campaign to undermine the independent umpire. That was my view from the outset when Senator Mary Jo Fisher stridently sought to ensure that the president should appear before the committee. Her behaviour before the committee, in her dealings with the president, did nothing to erode my suspicion that that was what this campaign was really about. But it heartens me to see that organisations such as AMMA are also concerned with the attendant political interference in Fair Work Australia exemplified by behaviour such as Senator Fisher's.

Let me spend a moment covering some very general points about the government's view of Fair Work Australia. The government has always accepted that Fair Work Australia is accountable to Senate estimates proceedings with respect to its administrative responsibilities. However, it is usually the case—and it certainly was for decades—that the General Manager of Fair Work Australia is the most appropriate person to provide answers on administrative matters. Senator Abetz might seek to misrepresent Minister Evans, in terms of how he was describing where matters should be on a particular occasion, because Justice Giudice was appearing with respect to Fair Work Australia, but to try to imply that the minister was saying that because Justice Giudice was appearing he was the only person relevant to respond to a question to Fair Work Australia is definitely stretching a very long bow. Worse than that, it is quite disappointing to see that level of misrepresentation and beat-up with respect to the operations of Fair Work Australia.

The president, as opposed to the general manager, should be completely free of any form of political pressure or interference. He or she must be able to make decisions without fear or favour. Senator Abetz knows that that is why questions about whether he conducts counselling or such are not appropriate questions for the President of Fair Work Australia. Using Senate estimates processes to pursue an examination of the decisions and decision-making processes of Fair Work Australia has significant potential to undermine the independence and proper functioning of the tribunal.

If the opposition had spent more time in previous estimates hearings asking the questions that they seem now to be focused on—whether they were asked of the general manager or Justice Giudice—maybe you would have cause for alarm. But, given the nature of the questions, particularly those asked by Senator Fisher—as I characterised them a moment ago: 'Please describe for me a day in the life of the president'—it is not surprising that it has taken until now for some of these questions to be put into the public debate.

It is not the case that only the government holds these concerns, and not only AMMA has raised these concerns. For 12 months, other stakeholders have been moved to write to various senators expressing their deep concern with requiring Justice Giudice to attend Senate estimates. In June 2010, the Industrial Relations Society of Australia wrote the following to the President of the Senate:

The requirements for Justice Giudice to attend Senate estimates puts Fair Work Australia in an invidious position to have its President required to attend and be questioned by senators in relation to particular criticisms they may have; or about particular cases … Questions of the merits of particular cases are, in our submission best dealt with through the processes provided by Fair Work Australia … In the interest of maintaining the independence … of this nationally important institution, we call on the Senate to rescind the resolution.

This highlights again that this is not a matter that has been rushed into by Senator Marshall. That correspondence dates back to June of last year. So to try to characterise this motion as something that has been rushed into in an attempt to deal with some other matter is ludicrous and laughable.

The ACTU wrote to Senator Abetz, in February 2011, calling on the coalition to respect the independence of the tribunal.

Senator Ronaldson interjecting—

I am glad you asked that question, Senator Ronaldson, because I did get to the ACTU. Prior to that I was talking about AMMA. Since Senator Ronaldson is here, let me revisit AMMA's concerns, because I think that is probably the best statement of concern with respect to this matter. Senator Ronaldson says that we should not rely on my references to the ACTU, but AMMA's quote, which I cited a moment ago, is most pertinent. I will cover it again for Senator Ronaldson. The letter in January 2011 from AMMA advised Senator Fisher—again, I am characterising this as the Senator Mary Jo Fisher jaunt, because her behaviour in Senate estimates seems to be highlighting most people's concerns with respect to this resolution—that they were:

… of the view that the Senate should modify its order to remove the mandatory requirement for the President of FWA to appear …

They went on to say:

Having the President unnecessarily appearing before the Committee, with the attendant political interference, could erode public confidence in the Tribunal.

So it is not just the ACTU, Senator Ronaldson. We have AMMA expressing their concern about opposition behaviour with respect to Justice Giudice and about the committee eroding public confidence in the tribunal. Indeed, the attempt here today is another attempt to try to erode public confidence in the tribunal by seeking to link this matter to a completely different matter, where there is no connection and no relevance. The public interest is best served by having appropriate witnesses present for estimates hearings and by having a strong and independent industrial tribunal free from political interference. I have seen many attempts by the federal opposition to erode the standing of the independent umpire. We only need to go back to the various attempts over the many years before we saw Work Choices to understand the many ways in which the opposition, when in government, sought to undermine the standing of the Australian Industrial Relations Commission. It is easy to see that the lessons of Work Choices have been lost when we have Australian unions, Australian employer organisations, the government, the Greens and others all saying, 'Please stop these jaunts that seek to undermine the standing of Fair Work Australia.' Instead, the opposi­tion—through Senator Abetz, as the relevant spokesperson for the opposition—seeks to link a matter such as this to something quite different.

Senator Abetz should continue to pursue his concerns in other matters. But to try to say that this matter is a government attempt to shield Fair Work Australia from doing its job properly is laughable. The federal coalition has already failed one important test by not condemning the extreme reforms of the New South Wales coalition government, which essentially seek to turn its tribunal into an extension of government. We need only look at New South Wales to see where this opposition really stands. It has not condemned the attempt in New South Wales to undermine the New South Wales tribunal. Were they to return to government, they would seek to do exactly the same again.

Listening to Senator Abetz's character­isation of the various Senate estimates com­mittee hearings, which I have also attended, I find it quite easy to understand why people are sceptical and feel that this opposition has a hidden agenda for the role of Fair Work Australia. You only need to look at Senator Mary Jo Fisher's jaunt to understand that. What Senator Abetz attempted to beat up, out of this straightforward motion seeking to normalise arrangements over who should appear before the committee, is astounding. This is nothing other than an attempt to compromise the workings of Fair Work Australia—to challenge its independence.

Senator Cash interjecting—

Senator Cash laughs, but I do not think she spent enough time in the committee listening to some of the questions from Senator Mary Jo Fisher to Justice Giudice—either that or she has not received all the correspondence that other members of the committee and the government have received, similar to what AMMA has put forward. When an organisation such as AMMA says, 'You are compromising the independent umpire,' you really cannot get away from that.

Perhaps this opposition cannot get past the fact that Fair Work Australia and the Fair Work Act were developed with broad support, through detailed and lengthy consultation with all industrial parties, and those parties do support the role of an independent industrial umpire. All this motion seeks to do is normalise arrange­ments so that Justice Giudice is not required to attend the committee on each and every occasion. To beat that up into something that it is not is outrageous. It is another attempt by this opposition to interfere with the operations of Fair Work Australia.

Perhaps there is a genuine aspect of Senator Abetz's characterisation of what goes on before the committee. Perhaps Senator Abetz has a different standard than I do about what are appropriate questions to ask a judicial member. Perhaps he has a different sense of the argument of whether it is a normal court or a court of a different nature and of when those aspects may be relevant. But I encourage any senator who is interested in this debate to go back and have a look at the Hansard, particularly where Justice Giudice first appeared. For the stakeholders with whom I have discussed this matter, that was perhaps the most embarrassing and obvious example of what I describe as 'the Senator Mary Jo Fisher jaunt'. That really was inappropriate questioning of the President of Fair Work Australia.

That is what has motivated Senator Marshall to pursue this issue consistently ever since. Indeed, he pursued it before the time of the Senate motion, and the government argued that Justice Giudice should be given the full respect of a judicial member. But we accepted it, at the end of the day, when the Senate made an order to require Justice Giudice to attend. I must correct the record on this occasion too. The correspondence Senator Abetz referred to with respect to Justice Giudice had a significant error in it. For the record, Justice Giudice has never refused to attend. Unfortunately, an error in the correspondence of the time has maintained that illusion. Justice Giudice has certainly corresponded with the committee, but he has never refused to attend.

The opposition to this motion by Senator Abetz has been a beat-up and has been inaccurate. Talk of rushing in and trying to link this to a completely separate matter is nothing but outrageous. Senator Abetz knows that some of the material that has been presented here— (Time expired)

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I will make a short contribution in relation to this matter so my views are on the record. Despite my great regard for Senator Marshall, the mover of this motion, I cannot support it for a number of reasons. The proposition is whether the President of Fair Work Australia ought to attend estimates hearings as a matter of course or whether, as Senator Marshall seeks to change it, at the direction of the committee. I think the President of Fair Work Australia ought to attend as a matter of course for a number of reasons. He is not a judicial officer in the sense that a Supreme Court judge, a Federal Court judge or a High Court justice would be. Section 581 of the Fair Work Act sets out:

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

(a)   is efficient; and

(b)   adequately serves the needs of employers and employees throughout Australia.

I do not believe it is proper for the President of Fair Work Australia to be asked about the qualifications of members of Fair Work Australia. It is certainly not appropriate for him to be asked about decisions of Fair Work Australia. But it is appropriate for him to be asked about the administration and the efficiency of Fair Work Australia, which performs a valuable role—and I, for one, believe it performs that role admirably. I think this is about accountability. The government is not saying that Fair Work Australia should not or cannot attend but that it should be at the behest of the committee. But I think an officer such as the President of Fair Work Australia ought to attend the estimates process as a matter of course.

The fact is that the government has the numbers in the committee—as is appropriate: it is a legislation committee. And, if there were questions that were unreasonable, that went outside the purview of section 581, then the committee could quite properly rule those questions out of order. So I think there are inbuilt safeguards in terms of there being a system in place that would confine the president to attend estimates as a matter of course but under the provisions of section 581.

I want it on the record. The government knows what my position was in relation to Work Choices—that I supported, with some amendments, the government's bill. But I think that, given the important role that Fair Work Australia performs, given the role that it plays for millions of workers in this country, having the president attend estimates on a regular basis, within the confines of section 581, is quite a reasonable proposition. Therefore, I cannot support this motion.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

I find it to be absolutely remarkable in this place, in the Senate of the parliament of Australia, where we are to be representing the people in terms of accountability, that we are even debating whether or not an accountable officer of a statutory organisa­tion should or should not have to come before estimates to be accountable. As a past chief executive officer, and accountable officer, of a government statutory authority in my state, it was automatic that I was expected to attend estimates, or its equivalent, on each occasion called by the parliament of that state, to be accountable, through the parliament to the people.

The fact that we are here even discussing this particular motion is disappointing. If we were to take away the personality and have regard for the position, not only of this statutory authority but of all statutory authorities and departments, this argument would fall away. For example, if this accountable officer can choose to come or not come to estimates to present herself or himself to scrutiny, why would the head of any other agency of government want to come? Why would the Reserve Bank? Why would any head of any agency? Why would Ms Lisa Paul want to come? I know of no provision in this legislation where there is the power of delegation, for example, for this accountable officer. And if this accountable officer wants to bring others with him, indeed let him bring others—but this person remains, as I understand it, the senior accountable officer.

I also go to the quotation from the former Clerk of the Senate Mr Evans. And I do not think that, in his quotation as presented by my leader, there was any suggestion at all that the incumbent president had in fact refused to come. But I will repeat it. This is from the former Clerk of the Senate Mr Evans:

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

I have suggested to Senator Marshall that there is nothing at all which suggests that this gentleman has refused to attend. The point made by the former Clerk is that he should not refuse to attend. The former Clerk's comments get even more interesting, because the President of Fair Work Australia gave two reasons for his refusal of the committee's invitation—the first being that 'the committee's questions may best be answered by the general manager'. I do not think the general manager is the accountable officer. I am not aware that, under the legislation, the general manager signs off on the annual report and the presentation to the minister. Therefore, it is certainly not appropriate that the general manager would appear in place of the president.

But more important is the second point to which Mr Harry Evans refers. This was the second reason given by the President of Fair Work Australia for his refusal to attend:

It is accepted that heads of similar Common­wealth institutions, such as the High Court, the Family Court and the Federal Court, who have responsibility for the administration of those bodies do not appear.

Then the former Clerk Mr Harry Evans's comments are most interesting. He says:

The Senate has never acknowledged, however, that it will observe any such convention, and it would be open to the Senate or its committees to require the attendance of a judicial officer to explain the administration of the courts established by the Constitution of Australia.

Therefore it is within the powers of the Senate to decide if it wants the Chief Justice of the High Court of Australia to appear before the Senate or a committee to answer questions upon the administration of that court. I go back to the point that it is irrelevant whether the particular gentleman occupying the position now is a justice or not; it is simply a question of the accountability of the position.

We see further then that the Fair Work Australia president is an 'officer', as per Senate standing order 26(5), from whom committees may seek an explanation about expenditure. The document goes on to say that statutory bodies are accountable to parliament for the expenditure of public funds, one of the primary reasons that we exist. It says that it is a statutory body, that the president is responsible for ensuring that the FWA performs its functions and exer­cises its powers efficiently and adequately to serve employers and employees, that it is the FWA president who is obliged to present Fair Work Australia's annual report to the minister—not the general manager and not some other delegated party but the president himself or herself—and that the Fair Work Australia president's statutory respon­sibilities are comparable with those of heads of other statutory authorities, who are expected to and who do attend estimates.

Is this what we want to have in this place—the fact that one particular statutory officer, for whatever reason, decides that he or she could not, should not or may not need to appear before estimates committees of the Senate to be accountable? I am very strongly of the view that that is a dangerous precedent that we certainly would not want to see come into this place. In fact, the final document from which I am quoting says, 'It is unheard of for a public office holder to put forward a case that they do not appear at estimates at all.'

My final comments in opposing this motion are these. As mentioned by Senator Abetz in his contribution, Fair Work Australia must perform its functions and exercise its powers in a manner that is, firstly, fair and just; secondly, quick, infor­mal and avoiding unnecessary technicality; thirdly, open and transparent: and, fourthly, promoting harmonious and cooperative workplace relations. I come back to the third of those four pillars: openness and trans­parency. Openness and transparency is best discharged by having the accountable officer on every occasion present themselves before the Senate of the Australian parliament.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I am not going to speak for long because we have some very, very good people in the gallery to hear three very, very good speeches, so I will keep it fairly short. But I do want to say that this is another example where the Australian Labor Party cannot keep their grubby little mitts off the Senate estimates process. This is another attempt—and Senator Marshall is walking out; I will talk about you, so I would come back in if I were you. They cannot keep their hands off the Senate estimates process. We have 'Clerk' Marshall down here, who apparently knows more about the standing orders and Senate processes than former Clerk Evans! What an absolute joke. 'Clerk' Marshall interjected before that he knew more about it than Clerk Evans, that Clerk Evans—the Clerk for some 20 years—was wrong. And the Australian Labor Party are saying that Clerk Evans knows less about it than they do.

Since the Australian Labor Party have been back in government, we have seen them absolutely turn the Senate estimates process upside down. We know for a fact that this is about protecting someone who must accept his obligations as a statutory officer to appear before Senate estimates. He is not a judicial officer. He does not appear as a judicial officer. Fair Work Australia is not a judicial body. It is inexcusable that the President of Fair Work Australia does not appear at Senate estimates, as is his responsibility.

The other thing I want to talk about briefly is that we saw the most disgraceful intervention of the Australian Labor Party into Fair Work Australia in February this year. We all know that Fair Work Australia is investigating the HSU complaint in relation to the misappropriation of union funds. We know that Fair Work Australia is investigating the use of funds to buy alcohol, to pay for escort services and indeed to remove cash. Fair Work Australia is under enormous pressure at the moment to deliver an outcome, an outcome driven by the union movement in relation to fraudulent use of members' funds. This president must remain there. But what did we see in February this year in estimates? We saw someone, no less than the Leader of the Government in the Senate, trying to close down the opposition's legitimate questioning of Fair Work Australia in relation to the outcome of its investigation into the removal and misappropriation of union members' funds from the HSU, implicating the most senior people in the union movement, one of whom has been in the public eye—very much so, particularly in the last two weeks.

I just want to put some background to this matter. Last year—

Senator McEwen interjecting—

So it is okay, is it, for the Labor Party, Senator Lundy—or whoever it was who interjected—to abuse the Senate process to close down the legitimate questioning of an officer who was prepared to answer a question? That is okay, is it? They are the new rules? It is okay to behave like that.

I will just go through very quickly what happened on this occasion. Last year, Mr Nassios, from Fair Work Australia, made it quite clear that he was not prepared to talk about whether Mr Thomson had been investigated or interviewed because it might interfere with his investigation, and I respected that. I did not—

Senator Thistlethwaite interjecting—

I beg your pardon?

Matt Thistlethwaite (NSW, Australian Labor Party) Share this | Link to this | Hansard source

It's the separation of powers; of course they can't.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I know you are very new, but what an extraordinary comment to make. You have not been listening, son. Listen in. Listen up. This is about your leader trying to close down the Senate process. I respected Mr Nassios's view that he could not give that evidence because it might interfere with his investigation. In February of this year, when Mr Nassios was asked again whether he was happy to advise the Senate through the Senate estimates process whether he had interviewed Mr Thomson, he said that he was because it would not interfere with his investigation. He was just about to answer the question. I asked him whether he had interviewed Craig Thomson, Pauline Fegan, Criselee Evans, Matthew Burke and Jeff Dickson, and what was Mr Nassios's response? I will read it slowly so that you can listen up, my friend. It was this:

Certainly if we could go—

through them—

one by one.

Mr Nassios was prepared to do so. The Leader of the Government in the Senate then intervened and said, 'I don't know whether that is right.' He asked Mr Nassios whether there was a precedent. Mr Nassios said:

I cannot recall it being done in the past. When the senator was asking me these questions last time I felt that it would not be helpful to my investigation to divulge that sort of detail. I certainly cannot say it would hinder my investigation at this point.

So he was prepared to answer the questions. Then the Australian Labor Party effectively forced Fair Work Australia to spend $7,000 of taxpayers' funds to get a QC's opinion that suited their case. This is an outrageous motion before us. This is the Australian Labor Party again attempting to interfere with the Senate estimates process, and they most definitely will not be supported by this side of the chamber.

Debate interrupted.