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Thursday, 25 August 2011
Page: 5597


Senator MARSHALL (Victoria) (15:46): 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—

The DEPUTY PRESIDENT: 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.

Senator MARSHALL: 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—

Senator Cormann: There never has been a Fair Work Australia.

Senator MARSHALL: 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.