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- Tobacco Plain Packaging Bill 2011, Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011
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QUESTIONS WITHOUT NOTICE
Member for Dobell
(Ronaldson, Sen Michael, Evans, Sen Christopher)
(Crossin, Sen Trish, Evans, Sen Christopher)
(Cormann, Sen Mathias, Wong, Sen Penny)
Environment Protection and Biodiversity Conservation Act
(Waters, Sen Larissa, Conroy, Sen Stephen)
(Payne, Sen Marise, Wong, Sen Penny)
(Pratt, Sen Louise, Wong, Sen Penny)
(Colbeck, Sen Richard, Carr, Sen Kim)
(Xenophon, Sen Nick, Conroy, Sen Stephen)
(Boswell, Sen Ronald, Wong, Sen Penny)
(Bilyk, Sen Catryna, Arbib, Sen Mark)
- Member for Dobell
- QUESTIONS WITHOUT NOTICE: ADDITIONAL ANSWERS
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- AUDITOR-GENERAL'S REPORTS
- FIRST SPEECH
- FIRST SPEECH
- FIRST SPEECH
QUESTIONS ON NOTICE
Pharmaceutical Benefits Scheme (Question No. 371)
(Boswell, Sen Ronald, Ludwig, Sen Joe)
Defence: Staffing (Question No. 735)
(Johnston, Sen David, Evans, Sen Christopher)
Naltrexone (Question No. 835)
(Ludlam, Sen Scott, Ludwig, Sen Joe)
IP Australia (Question No. 891)
(Abetz, Sen Eric, Carr, Sen Kim)
Defence: Special Purpose Aircraft (Question No. 898)
(Abetz, Sen Eric, Evans, Sen Christopher)
- Pharmaceutical Benefits Scheme (Question No. 371)
Thursday, 25 August 2011
Senator JACINTA COLLINS (Victoria—Parliamentary Secretary for School Education and Workplace Relations) (16:24): 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—
Senator JACINTA COLLINS: 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 JACINTA COLLINS: 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)