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Education, Employment and Workplace Relations Legislation Committee
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Education, Employment and Workplace Relations Legislation Committee
Abetz, Sen Eric
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Education, Employment and Workplace Relations Legislation Committee
(Senate-Friday, 22 June 2012)
Content WindowEducation, Employment and Workplace Relations Legislation Committee - 22/06/2012
ANDERSON, Ms Kate A/g Principal Government Lawyer, Workplace Relations Legal Group, Department of Education, Employment and Workplace Relations
BREEN, Mr Adrian, Acting Senior Executive Lawyer, Workplace Relations Legal Group, Department of Education, Employment and Workplace Relations
KOVACIC, Mr John, Deputy Secretary, Workplace Relations, Department of Education, Employment and Workplace Relations
O'SULLIVAN, Mr Jeremy, Chief Counsel, Workplace Relations Legal Group, Department of Education, Employment and Workplace Relations
CHAIR: I remind senators that the Senate has resolved that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies are adopted.
We have received your submission. I now invite you to make some opening remarks, which will be followed by questions.
Mr Kovacic : We will provide an electronic copy of the submission to the secretariat as soon as we return to the office this afternoon. I appreciate the opportunity to appear before the committee. The bill that is currently before the committee will amend the Fair Work Registered Organisations Act to provide for a greater degree of disclosure of remuneration, expenditure and pecuniary interests of officials under the rules of registered organisations, and enhance powers of Fair Work Australia to make inquiries and investigate suspected breaches of the Registered Organisations Act, the measures to increase awareness of financial management obligations of officials of the registered organisations and increase maximum civil penalties.
The overwhelming majority of Australian registered organisations are professional, democratic and highly effective organisations. However, recent events have demonstrated the need for stronger penalties for any registered organisations where their officeholders do the wrong thing. The dysfunction within certain parts of the Health Services Union has prompted concern amongst members of registered organisations and the public more broadly about whether the current statutory obligations placed on registered organisations are effective in ensuring their financial accountability. Questions have also been raised about the ability of Fair Work Australia as the regulator to effectively investigate and take action against organisations that are alleged to have breached those obligations.
The maintenance of public confidence in both the integrity of registered organisations and the ability of the regulator to ensure compliance with the regulatory framework is of great importance to the continued success and productivity of Australia's workplace relations system. Following the publication of Fair Work Australia's report on the investigations into the Victorian No. 1 branch and the national office of the HSU, a number of areas were identified under the Registered Organisations Act that could be clarified and strengthened. These included the rules relating to the financial accountability of registered organisations and the range of penalties that can be applied where an organisation breaches their obligations under the act and in improving Fair Work Australia's investigative function. These key areas have been addressed in the bill.
In the light of the need to move quickly to maintain public confidence in registered organisations, the government prioritised consultation with stakeholders at a meeting of the National Workplace Relations Consultative Council that was held on Friday 25 May. NWRCC participants were provided with the draft bill for consideration and discussion at that meeting and were invited to provide comments and feedback over the weekend of 26 and 27 May. The council considered the range of draft amendments set out in the bill and stated their agreement in principle to those amendments and acknowledged that registered organisations play an important part in facilitating the workplace relations system, but expressed the clear view that the draft amendments will significantly improve the financial reporting framework, governance and accountability of registered organisations. Members were invited to provide further comments following a meeting and the department received a number of written submissions from stakeholders which were considered and incorporated in the drafting process. I am now happy to take any questions that the committee might have.
Senator ABETZ: Thank you for the submission, noting that you dropped the submission just about an hour ago. That is no criticism, it is just the truncated period that certain elements of the Senate have given us. I just make that point at the outset. Can I ask whether this bill is to be considered as a key appropriation or budget related bill?
Mr Kovacic : I am not sure that it would have fallen into that category, but I am happy to confirm that with people who are technically more adept at that particular issue this afternoon and come back to the secretariat.
Senator ABETZ: I would have thought you would give that answer and that is, if I might say, the correct answer. We were provided by the leader of the government in the Senate with a letter saying the government has a number of key appropriation and budget related bills which require passage before 1 July 2012, attached are attached a list of these bills for consideration. One of those bills is the Fair Work (Registered Organisations) Amendment Bill 2012. Reading through it as I did last night, I found there is nothing that actually requires passage before 1 July 2012, albeit it might be nice for certain people's timetables. But it is not a budget related matter that requires passage by 1 July, is it?
Mr Kovacic : It is certainly not a budget related bill. But, if I can reiterate some of the comments I made in the opening statement—and these are also reflected in the department's submission—I think, in terms of ensuring public confidence and in terms of the integrity of the governance of registered organisations, this bill is seen as being critical from the government's—
Senator ABETZ: All that is understood. If it got carried on 2 July as opposed to 1 July, nothing would change, would it, other than that it would come into force 24 hours later?
Mr Kovacic : I think all I can do is reiterate, from a government perspective—
Senator ABETZ: Yes; thank you for that. Can I ask whether or not, as the legislation is framed, there would be the possibility for prior training to be recognised and, as a result, for officers to be exempted from having to undertake training? It seems to me there will be people from a variety of registered organisations that, quite frankly, will not need any training in this space.
Mr O'Sullivan : I think the short answer is yes. That is because the general manager has broad discretion to approve the kinds of training programs that are necessary, and we anticipate that that is something she will be able to have regard to when approving certain training packages—
Senator ABETZ: Say our general manager is not known for her wide reading of the legislative instruments under which she operates. Whereabouts does it say that there is this flexibility? I think it says 'must undertake'—possibly Mr Breen or somebody else could assist me with the actual section I am looking for.
Mr Breen : Certainly. In paragraph 10 of the explanatory memorandum, which relates to item 3 of the legislation and the proposed section 154C, under which the general manager would approve training, it is clarified that the general manager:
will be able to approve a range of training of different formats, styles and lengths—
so it can be shorter or longer—
in recognition of the different significance that financial management duties have to the roles of different officials—
so it could also be quite tailored—
as well as the backgrounds, experience and qualifications of those officials.
That seeks to give a flavour of the capacity of the general manager to have regard to prior learning or experience that officers hold—also bearing in mind, just to be clear, that some of the obligations under the registered organisations legislation might be a bit different to how other duties might arise under corps law and so on.
Senator ABETZ: Are we saying that company law is less stringent than registered organisations—
Mr Breen : It is just potentially different, I suppose.
Senator ABETZ: Section 154C of the bill, 'Approved training', says 'the general manager may approve training provided by' and 'if the general manager is satisfied that the training covers'. It does not suggest to me that an exemption can be provided. Given that it is different, you are saying that all officers will be required to undertake some form of training.
Mr Breen : That might depend on the particular financial duties that the officer might be undertaking under the registered orgs legislation.
Senator ABETZ: Yes, but nobody will be exempted from training. It might be truncated and very short; nevertheless, they will be required to have training.
Mr Kovacic : And I think that is an important element of a more rigorous regime where there may be differences in terms of the various responsibilities that office holders have relative to other circumstances, if I can put it that way. I think there is merit in terms of those office holders being made aware of their obligations in that regard. The degree of discretion is more about the nature of the course and the flexibility to be able to deal with the differing inexperience and the differing knowledge of the office holders. There is merit nonetheless in office holders still being made aware of their obligations through that training.
Senator ABETZ: With respect, you are venturing into policy areas as to whether or not there is merit. All I am asking is whether or not there are exemptions available, and I think the answer is no.
Mr O'Sullivan : The discretion of the GM to approve a vast range—from quite easy to quite complex—of training approvals had to be factored in against the red tape associated with granting an exemption. Given this even contemplates approval of online relatively short training packages for the kind of cohort you are concerned about—people with a lot of experience—it was thought to be the less 'red tapie' avenue to adopt.
Senator ABETZ: It seems to me the chairman of the Australian Industry Group, for example, may not necessarily learn that much from a training course. Paragraph 145C(1)(a) of the bill tells me the general manager may approve training provided by an organisation or a peak council. Would a peak council be the ACTU, the ACCI?
Mr Breen : Yes, the definition under the Fair Work Act is clear.
Senator ABETZ: And they are all defined in the existing—
Mr Breen : Yes. The definition should in the existing act picks up the definitions of the Fair Work Act.
Senator ABETZ: Is it the same with an organisation?
Mr Breen : An organisation as defined as the Fair Work (Registered Organisations) Act, yes.
Senator ABETZ: Is that a training organisation?
Mr Breen : No, a registered organisation.
Senator ABETZ: Can a registered organisation train its own people?
Mr Breen : If the course of training is approved by the general manager, yes.
Senator ABETZ: Are we going to have any testing to ascertain whether certain standards are achieved?
Mr Kovacic : That is the role of the general manager in accrediting the relevant training material.
Senator ABETZ: So that is going to be left completely up to the general manager, who has overseen the HSU matter?
Mr Kovacic : It will be left to the general manager of Fair Work Australia.
Senator ABETZ: Section 145C tells me that the general manager may approve training provided by an organisation or a peak council or (c) a body or person the general manager is satisfied has appropriate skills and expertise to provide the training. Why is that same qualification not attached to organisation and peak council?
Mr Breen : Essentially I think the mechanism in paragraph (c) was to broaden the types of bodies that could provide training beyond organisations or peak councils, effectively to enable training organisations or there might be other bodies—
Senator ABETZ: Should not that be a qualification that attaches to everybody that provides training?
Mr Breen : It is implicit that the general manager would be required to approve what is being proposed by the organisation or peak council. Not just anyone can come up with a training session, as constrained by paragraph (c).
Senator ABETZ: But an organisational or a peak council can. All the general manager has to do is approve the training provided by an organisation, whereas if it is a body or person the general manager can only improve it if she is satisfied it has the appropriate skills and expertise to provide the training. So this means automatically that we believe any registered organisation has that capacity.
Mr Breen : Organisations currently have a responsibility generally to ensure that their officeholders and all the rest—
Senator ABETZ: Oh well, if that is the case we do not need this bill, do we?
Mr Breen : I guess I would say—
Senator ABETZ: I do not think that we want to go down that path! It just seems to me that there is an extra requirement and that we are just deeming organisations. In fairness, I do not think that peak councils have got themselves into trouble, but organisations clearly have got themselves into trouble, and they will not have the qualification that is required of a body or person in paragraph (c). I am just not sure as to why that is, but I do not want to delay this for too long in relation to that.
Mr O'Sullivan : I was just going to add by way of explanation: the mischief to be addressed here is that the training is of insufficient quality, and the focus of the provision is to allow the GM to be satisfied that the output—that is, the training package—is of sufficient quality.
Senator ABETZ: But why would you not want that from a registered organisation or a peak council? Why should they be exempted from that standard? Surely it should apply to everyone?
Mr Kovacic : I just made the point that I think a number of organisations, in particular—perhaps the overwhelming majority, if not all—and peak councils have registered training organisations or have training arms which are very skilled in training and providing training not only to their members but also to delegates and representatives more broadly. So I think there is a recognition that there is an infrastructure and a skill set that exists within organisations and peak organisations—
Senator ABETZ: Not all registered organisations have a training arm, do they?
Mr Kovacic : I cannot answer that with any certainty, but certainly I would be of the view that most registered organisations would have arms that are involved with training or that would be linked with peak councils which do have training arms.
Mr O'Sullivan : Analogous to your first concern, Senator, I think it is just there to recognise, if you like, prior learning and experience of organisations that have operated under the registered orgs act. I think that it fairly recognises that they have that background.
Senator ABETZ: Can I take it from your opening statement that the first genuine consultation actually occurred on 25 May?
Mr Kovacic : In terms of the specific proposals, yes.
Senator ABETZ: And people had the opportunity to respond to you over the weekend?
Mr Kovacic : That is correct.
Senator ABETZ: And how many responses did you get?
Mr O'Sullivan : I think I might have to consult or take that on notice.
Mr Breen : There were certainly two detailed responses from that and NWRCC participation.
Senator ABETZ: Two? That is to be commended but—
Mr Breen : I beg your pardon—three. But we will confirm.
Senator ABETZ: Three? Good. It is a 50 per cent increase.
Mr Kovacic : Can I just give you a sense of the organisations that are represented on the National Workplace Relations Consultative Council?
Senator ABETZ: I am aware of them, thank you.
Mr Kovacic : So three is probably in the order of getting close to half of the members.
Senator ABETZ: In response to a question on notice the minister said to me that he would consider changes after the KPMG review of Fair Work's investigation. Can anybody explain to me—and just so I do not do anybody a disservice, I am referring to parliamentary question 1570 asked 28 February 2012:
Does the Minister consider that Fair Work Australia's investigation into the Health Services Union has taken an unreasonable amount of time.
Part of the answer—the last paragraph is:
As the investigations are completely independent of the Government,—
That is the KPMG review—
… the Government will consider the findings of the KPMG review before deciding whether to comment publicly on this matter.
And now, of course, we have lots of changes to the mechanisms. So what happened after 29 March 2012 and his announcement which made him think that the KPMG review was no longer that important?
Mr Kovacic : I am not sure that I would take that interpretation of the KPMG review. My understanding is that that review is yet to be concluded, but—
Senator ABETZ: That is right.
Mr Kovacic : As I said in the opening statement, from the perspective of the government ensuring not only the public confidence, if I can put it that way, but the integrity of the regulatory framework and the capacity of the regulator in respect of registered organisations, clearly the government came to the view that it was critical to move quickly.
Senator ABETZ: So the government was not of the view, despite all the information about the Health Services Union, at least No. 1 branch, that there was no need to get moving quickly on 29 March, but then all of a sudden it did become important.
CHAIR: I am sorry, the Senate is still sitting so we are going to have to suspend until this division or quorum is completed.
Proceedings suspended from 13:00 to 13:12
CHAIR: We will resume. I think Senator Abetz had nearly finished a question; if he had, you may want to answer it, Mr Kovacic.
Senator ABETZ: I am sure you recall it exceptionally well; I do not.
Mr Kovacic : I wish I could, Senator. But, during that short break, we have reflected on the number of follow-up submissions, if I can put it that way, that we got from members of the National Workplace Relations Consultative Council after that meeting on the 25th. We got further submissions from four members, which is about two-thirds of the external members that were represented at that meeting.
Senator ABETZ: When did you receive them?
Mr Kovacic : Across the course of that weekend, the 26th and 27th.
Senator ABETZ: Are we able to shed any light on whether or not the government might consider further amendments to the Fair Work (Registered Organisations) Act in light of recommendations that might come out of the KPMG review?
Mr Kovacic : That is hypothetical at this stage without having seen the KPMG review.
Senator ABETZ: It is a decision for government. All I am asking is whether or not the department has been alerted by the minister or the government that they may go down that track.
Mr Kovacic : What I can say is that we will have a look at the KPMG report once it is released or finalised and made available. I suppose those judgments will be made by government in the light of having seen it.
Senator ABETZ: Yes, I know all that, but have the government indicated to you at this stage whether or not they might consider further amendments?
Mr Kovacic : Other than reiterating what I have said, that we will have a close look at the report and provide advice to government, I cannot add anything.
Senator ABETZ: Yes, but, with respect, the government can act without advice from the department. All I am asking is whether or not the government has indicated that—
Mr Kovacic : My sense would be that, if there were issues in there that were not addressed in the context of this bill and required further response by the government, the government would be open to considering those sorts of responses.
Senator ABETZ: I am not asking you whether the government is open or closed. I am asking you whether the government has given you an indication, and it will be either yes or no—yes, they have given you an indication or, no, they have not.
Mr Kovacic : It is not something that—beyond framing the response to the question on notice that you referred to before—has been canvassed in any sort of detail with the minister. So I am not able to add anything further.
Senator ABETZ: So can I take it that the minister has not indicated to the department that further amendments might be necessary in light of the KPMG review?
Mr Kovacic : All I can say is that it is not something that we have had detailed conversations with the minister about.
Senator ABETZ: I did not ask whether it was detailed.
Mr Kovacic : Just bear with me, Senator. I would not expect to have those detailed conversations until such time as we actually see what the KPMG report says.
Senator ABETZ: You are not answering my question. You are trying to sidestep it by saying you did not have detailed conversation. I did not ask about any details; I just asked whether or not the minister had raised with you the possibility that the government might consider further amendments to the Fair Work (Registered Organisations) Act in light of whatever the KPMG review might throw up. He either has or has not.
Mr Kovacic : What I said is that, in framing the response to the parliamentary question on notice that you referred to before, we certainly discussed that with the minister but beyond that we have not had any further conversations with the minister around the KPMG report.
Senator ABETZ: Thank you. So there have been no discussions at least since 29 March 2012, when this answer was provided. At what time on 26 April did you provide advice to the minister in relation to whether or not the Fair Work report on the national office of the HSU should be made publicly available? To assist you, in parliamentary question 1828 I asked:
With reference to the Minister's statement on 7.30—
that is The 7.30 Report—
on 26 April 2012, that he had received advice not to support publication of the report by Fair Work Australia on the National Office of the Health Services Union prior to the resolution of civil or criminal charges:
(1) On what date and in what form did the Minister receive this advice.
(2) From whom did the Minister receive the advice.
The minister said:
The Minister received oral advice from his Department, including advice received on 26 April 2012 prior to appearing on the 7.30 program.
Mr Kovacic : To give you a precise time, we would really have to take that on notice. I am assuming that it was a live broadcast that would be in advance of—
Senator ABETZ: Yes, because it seems that the Commonwealth Director of Public Prosecutions and Fair Work Australia said there would be no difficulty with the release and publication of the report. I am just wondering whether or not the minister was actually saying what the department had advised him on 26 April, because if that was the advice proffered to him then it was wrong, with great respect, on the basic of the Commonwealth Director of Public Prosecutions and Fair Work Australia's own assessment—although we do not necessarily rely too heavily on that. But they had got advice, as I understand it, from another legal source for that conclusion, and of course we have all the examples around Australia of royal commissions and others coming down with their findings publicly before anyone is charged.
Mr O'Sullivan : I am going to limit my comments because I do not want to stray into matters that are not necessarily relevant to this committee. But, with respect, I am not sure I would agree with your assessment that the DPP advised there was no problem. My understanding, my reflection, was that the DPP declined to give a view on the basis that what had been provided to them was not a brief of evidence.
Senator ABETZ: That is right. It was not even a brief of evidence, so how could it prejudice the trial.
Mr Kovacic : Senator, in terms of your question, I will take it on notice.
Senator ABETZ: Yes. And we might need to have an amendment to this registered organisations bill to allow for the publication of these reports once they are finalised. But we can follow that up later. Was the department ever requested to give advice to Fair Work Australia as to their capacity to cooperate with police?
Mr Kovacic : Not that I can recall.
Senator ABETZ: Have you had occasion to turn your mind to whether Fair Work Australia's approach in relation to co-operating with police, as requested by police forces, was correct under their legislative regime?
Mr Kovacic : My understanding is that Fair Work Australia's approach was informed by advice that it obtained from the Australian Government Solicitor. We have been provided with a copy of that legal advice in accordance with the legal services directions, but that is legal advice that has been provided by the AGS.
Senator ABETZ: We have that as well because it was made available. Of course, it does not derogate in any way from the advice of Stuart Wood SC. It had used 18 pages or something to spin some sort of an argument but, with respect, it was not as robust as Mr Wood's. But I will leave that aspect there. Did we touch on the prior recognition of training?
Mr Kovacic : Yes, we did.
Senator ABETZ: Thank you.
CHAIR: Subsection 148B goes to the personal interest of officers disclosing matters that relate to the affairs of the organisation that the officer or a relative of the officer has acquired. In particular, I want to go to the issue of the words 'as soon as practicable'. Do those words have a particular meaning, why are there and what does that mean?
These are matters in relation to the obligations for an individual that relate to them as an individual as opposed to organisations. I understand that for organisations to sign off on their reporting obligations there may have to be various meetings called of committees of management and other things, which may take time. I understand some flexibility is needed around there, but why wouldn't it be better to specify a time frame around which those declarations must be made?
Mr O'Sullivan : I think it is kind of analogous to the obligation to disclose a conflict of interest, essentially. For it to be as soon as practicable or as soon as reasonable applies concepts that are well understood judicially and, I think, by the average person to mean: 'Don't dillydally. Get it out there as quickly as possible.' The danger, I think, of prescribing a particular date is that you will allow people either too long or insufficient time. It is, if you like, importing an objective, reasonable test to the disclosure, analogous in one sense to the obligation of public servants to disclose conflicts of interest as soon as practicable.
CHAIR: Thankfully, I am not a lawyer, but does 'as soon as practicable' have a determined meaning that is well understood? I guess the question is: can you say 12 months later, 'It just wasn't practical for me to get around to disclosing it because there were all these other reasons that I might come up with'? Is that reasonable or have all those things been tested and gained a meaning?
Mr O'Sullivan : I would say yes, inasmuch as it is the concept in law of an objective test—I will try not to be legalistic—of what the reasonable person consider to be a reasonable time frame in which to provide the requested disclosure, having regard to all relevant circumstances. For example, generally you would think 12 months would be not reasonable unless, to use an example, someone was in a car accident and in a coma. It is always difficult, I think, to try to pin down a specific date and be confident that you will not put it too high or too low. A great deal of legislation, I think rather sensibly, applies the objective reasonable test of 'as soon as practicable' and people know what it means.
CHAIR: What would be the disadvantage of saying 'as soon as practicable but no later than 60 days'?
Mr O'Sullivan : One disadvantage might be where 60 days, for all the circumstances, might not be practicable.
Senator ABETZ: We have to disclose on our register of interests within 30 days. That is the time limit.
CHAIR: Except I do not suppose we have a penalty that then applies.
Senator ABETZ: The Privileges Committee could take after us.
CHAIR: There is the public embarrassment.
Senator ABETZ: No, we could be imprisoned if the Privileges Committee thought—
Mr Kovacic : To add to Mr O'Sullivan's answer, the facts of the matter will be instrumental in determining what is reasonable in the circumstances. Clearly, if someone suffers illness or a car accident or is overseas, in some circumstances that might make it difficult to make a hard and fast time frame. I suppose it is really about getting a degree of flexibility in accommodating those circumstances.
CHAIR: My concern is that it is a get-out-of-jail-free card, but you are telling me that these terms are well understood and have been tested in law before and it is clearly not a get-out-of-jail-free card.
Mr Kovacic : No.
Senator ABETZ: Item 18 of the bill:
Application—disclosure of information acquired during an investigation
I do not want to go into the rationale—I will try and use a neutral term—forwarded to us by Fair Work Australia as to why they could not cooperate, which seems to go against every public service ethic et cetera. But we will not go there. This section of the bill will make it abundantly clear that the obligation to assist is there but it will apply only prospectively, as I understand it; so information acquired previously cannot be disclosed. Is my reading there correct?
Mr Breen : It certainly could not be disclosed under 335C and 335A.
Senator ABETZ: Right. So without asking you to give your opinion, are you aware of any public policy reasons—without providing your judgment as to whether they are good, bad or indifferent—why previously obtained information, just removal of doubts, should be provided to law enforcement agencies?
Mr O'Sullivan : When you actually identify that Mr Wood's opinion was essentially the same as Mr Orr's—Rob Orr QC—opinion, I do not think that that is an accurate characterisation. One of the—
Senator ABETZ: I would be more than willing to have a debate with you about that but unfortunately today is not the day for that.
Mr O'Sullivan : No.
Senator ABETZ: But even if we were to accept that this amendment is necessary, why should it not be able to reach back to remove any doubt? As I understand it, most public servants see an obligation if they stumble across what they think may have been the commission of a crime; they have a proactive obligation to report it to the relevant authorities.
Now, Fair Work Australia say they were statute barred from doing so—quite frankly, an interesting interpretation; I will use a neutral term. But we are now going to clear it up for them to say that they can and they should et cetera. But why can we not reach back and allow information gathered in the past, which most other organisations in fact would have cooperated with? Might I add, we did have the former registrar, Mr Doug Williams, suggesting on 30 June 2009 that this information actually go to the police. That is water under the bridge, but why would we not make it retrospective? What would be a public policy argument, without telling us whether you agree or disagree with it, for that?
Mr O'Sullivan : Sure. Of course, you can appreciate my reluctance to give you legal advice—which I am not going to do.
Senator ABETZ: Yes.
Mr O'Sullivan : But given that the general manager actually provided to the committee a copy of Mr Orr's advice, in answer to your question of what the public policy interest would be I think I would draw your attention to paragraph 8 of that advice. It just noted that the opinion of Mr Wood SC did not deal with three things. The first point is possible breach of confidentiality, which is an action in equity but, if you like, it is a cause of action. You have a proprietary right there and so any retrospective legislation would arguably raise the Constitutional issue of acquisition of property.
The other issue is that people have certain statutory rights under the Privacy Act as well. So just giving it a headline: what is the policy rationale for no retrospectivity? I would characterise it as this: the effect of what you are proposing would retrospectively impact on people's rights under whatever obligations of confidence they provided the information. I think that would be the concern in broad terms.
Senator ABETZ: Mr O'Sullivan, you are a lawyer or trained in law, I understand.
Mr O'Sullivan : Yes.
Senator ABETZ: As am I. When a senior QC is reduced to writing 'nor does it deal with other legal risks that disclosure might entail', unspecified, you know that he is grasping for words to try to justify something. In saying that, I in no way seek to denigrate Mr Orr, because he is a very good counsel. That is why he was able to manufacture this document and when you read between the lines it in fact agrees with Mr Wood—but we will not go there.
CHAIR: Let us not categorise people's advice in any way.
Senator ABETZ: I do want to know why we could not allow this to be retrospective when, in all other circumstances or pursuits of other agencies, I do not know of any other agency that is constrained as Fair Work Australia claimed it was constrained. Under the rules, Mr Williams, the former industrial commissioner, on 30 June 2009 said, 'Flick it off to the police'; he saw no difficulty with doing it. It just seems to me that some people may, regrettably, get some protection as a result of making this only prospective rather than also covering that which should have occurred as of 30 June 2009, according to Mr Williams.
Mr Kovacic : I would make two comments on that. One is that at the time Mr Williams did not have the advantage of the legal advice that general managers of Fair Work Australia have had. But I am not saying that that might have changed his mind.
CHAIR: I am not sure that this debate is assisting the committee at all.
Mr Kovacic : The second point I would make is from a practical perspective—
Senator ABETZ: He would not have even sought legal advice on the matter. Unless somebody was trying to ensure it did not get to police it would not have even come up with the—
CHAIR: Again, we cannot be asking for evidence to be given on behalf of people who are not here. I am not sure this discussion takes us anywhere in relation to the inquiry into this bill.
Senator ABETZ: On the retrospectivity argument, every other department and agency that I know does not find itself restricted, as claimed by Fair Work Australia. Let us accept that Fair Work Australia was so restrained—inadvertently, one assumes, given that the government is of the view that prospectively it should not be so constrained. So what is the argument in relation to allowing information gathered to go to the New South Wales and Victorian police forces, in particular in the Health Services Union investigations?
Mr Kovacic : Mr O'Sullivan has attempted to respond to that question. To the extent that I can add to that, we will take that on notice and seek to provide that to the committee this afternoon.
The other point I was going to make a moment ago is that from a practical perspective I would note my understanding is that certainly the investigation reports have been provided to Victorian and New South Wales police as well as a number of other regulatory bodies for consideration. That may diminish, if I can put it that way, the point that you are coming to in terms of the practical effect of a retrospective provision.
CHAIR: Just to be clear on what you have said there, Mr Kovacic, are you saying that the report and other information has been provided to the police?
Mr Kovacic : My understanding is that the Commonwealth DPP has provided a copy of the reports that were provided to the committee and have been made available on the committee's website to the police. I am happy to confirm that, but that is my understanding.
CHAIR: Could you do that. Could you identify the material that has been provided by the DPP to the police forces. That would assist the committee.
Senator ABETZ: Let us be very clear here. In rough terms, there is the 1,100 page report—
Mr Kovacic : Yes.
Senator ABETZ: and there are also about seven folders, and that is substantial folders, full of supporting material, as we understand.
CHAIR: Right, and let us just leave it at that.
Senator ABETZ: Yes, as to how much.
Mr Kovacic : We will confirm what has been provided.
Senator ABETZ: Thank you. Can you tell us which other authorities—
Mr O'Sullivan : Again, we will have to contact the DPP to get an authoritative assessment, and we will do that as quickly as possible. There may be some sensitivity to them in describing—
Mr Kovacic : From recollection I think there might have been a public statement by the DPP at one stage around referral.
Senator ABETZ: Yes, I think the comment was the report.
CHAIR: What we are interested in is knowing whether everything that has been provided to this committee has also been provided to the police forces. Maybe that is the best way to describe it.
Senator ABETZ: Has the department had occasion to look at the legal consequences of Fair Work Australia saying they cannot provide their report to the police but they can provide it to the Commonwealth Director of Public Prosecutions, who can then give it to the police? What about them saying they have no hesitation in giving it to this committee? We can put it online, and they have no difficulty with that, but they have a difficulty in themselves giving a copy of the report to the police. It sounds so inexplicable.
CHAIR: To be fair, the General Manager of Fair Work Australia did at length explain the reasons. I accept that you do not accept those reasons—
Senator ABETZ: Absolutely not.
CHAIR: but there has been a detailed explanation provided. I am wondering how that assists in our inquiry here.
Senator ABETZ: In relation to retrospectivity and to the actual terms of the bill, which is now saying that what should have been done should be done in the future.
Mr Kovacic : I have a couple of brief comments. One is that I have to agree with Senator Marshall. I am really not in a position to second guess the General Manager's decision. It is a decision that the General Manager made. Clearly, in the context of removing any doubt, this bill through item 18 and the proposed amendment to section 335 seeks to clarify and confirm, or remove any doubt about, the General Manager's capacity to do that.
Senator ABETZ: And that is why the coalition supports that—to remove any doubt. I think you have used the correct terminology: 'to remove any doubt'. It seems bizarre that if I am not allowed to give something to Mr Watling, but I knowingly give something to the Chair who then gives it to Mr Watling, somehow that is all above the law and in order. That is, quite frankly, a fantastic explanation. But that is what we were provided with by Fair Work Australia and that is what we have to live with, and this bill will ensure that that sort of excuse is never used again in the future.
CHAIR: Before we wrap up, I can now put on the record—because it is a public document—the Fair Work media release from the Commonwealth Department of Public Prosecutions. It does, in fact, say:
I have decided that it is appropriate in all the circumstances to forward the report and the related material to the Victoria Police and New South Wales Police Force. This has been done today
That was as of 3 May 2012.
Thank you to the department for your submission and your presentation to the committee today.
Committee adjourned at 13 : 43