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Thursday, 25 August 2011
Page: 5601

Senator ABETZ (TasmaniaLeader of the Opposition in the Senate) (16:01): 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.

Senator Marshall: It was endorsed by the committee.

Senator ABETZ: 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—


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?

Senator Jacinta Collins: You brought it on!

Senator ABETZ: 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.

Senator Jacinta Collins: And your fantastic performances too!

Senator ABETZ: 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—

Senator Jacinta Collins: Because he was president at the time.

Senator ABETZ: 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.'

Senator Jacinta Collins: Who was to be appearing.

Senator ABETZ: So he was not even at the table at the time.

Senator Jacinta Collins: That's not the point, Eric, and you know it.

Senator ABETZ: 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

Senator ABETZ: 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.