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Education and Employment Legislation Committee
10/02/2016
Estimates
EDUCATION AND TRAINING PORTFOLIO
Department of Education and Training

Department of Education and Training

[09:03]

Senator Birmingham: Good morning, Chair, and good morning colleagues and others. Mr Cook will say a couple of words in a second about the former secretary, Ms Paul. At the outset I would like to acknowledge the fact that Lisa Paul has retired from the Public Service after many, many years of service. I would like to put on the public record my gratitude which I know follows that of many ministers from all sides of politics whom Ms Paul has served over the years diligently. I wish Lisa and her partner Linda every success in their future life. I would like to inform the committee that Mr Cook, as you have acknowledged, is the Acting Secretary of the department at present and, of course, a permanent appointment will be made by the Prime Minister in due course.

CHAIR: Thank you very much, minister. On behalf of the committee, I thank Ms Paul not only for her work for the department but also for her performance and integrity in front of many estimates committees. Mr Cook, do you have an opening statement?

Mr Cook : I have a brief statement. I would like to inform senators, as the minister indicated, that Ms Lisa Paul has recently retired as Secretary of the Department of Education and Training. Ms Paul's last day in the department was Friday, 29 January. Ms Paul will be well known to senators, as she was the second-longest serving secretary in the federal government. She was first appointed by Prime Minister Howard and subsequently reappointed by Prime Ministers Rudd, Gillard and Abbott.

As the Secretary of the Department of Education and Training since 2004, Lisa was instrumental in historic higher education and vocational education reforms. She also led important school and early childhood reforms. Lisa's passion for reconciliation meant that the department was one of the first to develop a Reconciliation Action Plan, in 2007, and it continues to be a leader in progressing reconciliation.

Lisa's career in the public service began as a graduate, and what followed was a career that focused on health, welfare, family services, housing, homelessness and education. In 2011, Lisa was recognised as an officer in the Order of Australia for her achievements in driving reform in education, employment and workforce relations. For her work in leading the domestic response to the Bali bombings, Lisa received a Public Service Medal in 2003.

I would like to thank Lisa for the substantial contribution she has made throughout her public service career. I understand Lisa's next steps are to build a portfolio career that will allow her to pursue her interests in leadership and cultural change, where she will continue to make a positive difference in all she does. She will be greatly missed by the department and I wish her well in her next endeavours.

CHAIR: Thank you very much, Mr Cook.

Senator DASTYARI: I want to begin by associating the Labor Party with the statement and words of Senator Birmingham and Mr Cook regarding the incredible role that the department plays and, in particular, the role that the former secretary of the department played. I think we have a proud history, and the department certainly has a proud history, of frank and fearless advice. Mr Cook, I think you can add to that by being prepared to speak up, speak out and disagree with the minister as vocally and publicly as you want today.

Senator Birmingham: I think that that advice, Senator Dastyari, is for the minister and for the government of the day. It is, indeed, frank and fearless. I have no doubt that we will miss Ms Paul today, far more than she will probably miss all of us.

CHAIR: Are you watching, Ms Paul? Kudos!

Senator DASTYARI: If you are watching, Ms Paul, stop! Let it go! I can do a whole rendition of Frozen for you, if you want!

CHAIR: A fast game is a good game, Senator Dastyari!

Senator DASTYARI: Well, we are going to have a really long day then. Let's go from the start.

CHAIR: It is a very good place to start!

Senator DASTYARI: This whole schools thing. Minister, why don't we start with a story you did late last year in Adelaide's The Advertiser on 13 November? It was a kind of a profile piece—fantastic photo of the family, all looking very lovely. It was done by journalist Roy Eccleston—I may be pronouncing that wrong. In it, you talked about finding your local primary school an underwhelming experience. Do you want to add to that?

Senator Birmingham: I am not sure that that is a direct quote. But yes, in the sense that I am happy to elaborate. I have very often said, and it is widely acknowledged, that the most important in school factor in a child's education is the quality of the teacher. The quality of the teacher, of course, takes on many facets. My wife and I, like many parents, toured schools, as parents do, to consider options for our children. The resources, the facilities and the environment at the school were all very good, but I have to say that we were not inspired by the individual who took us on the tour.

Senator DASTYARI: We might come back to that. I am conscious of time. I have a few more questions regarding that article that I may come to. Yesterday, in Finance estimates, Senator Cormann made a statement—and, again, I have the luxury of having this statement, and you do not. But he said something very similar on 2 February 2016 on Sky News:

As with anything, if any Minister wants to suggest changes that have a negative impact on the Budget bottom line, they would have to find other areas in their portfolio to pay for it through offsetting savings in other areas of their portfolio.

I specifically then asked Senator Cormann whether that directly related to the department of education, to which he responded 'yes'. Is that your understanding?

Senator Birmingham: That is a correct reflection of the budget operating rules.

Senator DASTYARI: I am sure you are aware that Budget Paper No. 3, on page 36, states:

From the 2018 school year onwards, total recurrent funding will be indexed by the Consumer Price Index, with an allowance for changes in enrolments.

Is that current government policy?

Senator Birmingham: Yes. The current government's policy is reflected in the budget papers.

Senator DASTYARI: On 28 January 2016 you said—and I am quoting you back to you, so I am sure you will agree with it:

We’ll have proper discussions with the states and territories in the non-government sector, and we will be releasing appropriate policies in relation to school education ahead of the election.

Do you stand by that statement?

Senator Birmingham: Yes, I do.

Senator DASTYARI: Leaked Liberal Party talking points, or an internal party document, that I am sure you are aware of, on 2 February 2016, said:

… the government would "decide" an indexation rate that better reflects the increasing cost of schooling.

Are you aware of that?

Senator Birmingham: I am aware of the leak and the document, yes.

Senator DASTYARI: To get to the chase of it: it sounds like the current government policy is indexation with a variation for enrolment. You have also said that you are going to be having discussions with other states and territories about what policy the government may or may not bring forward. The Minister for Finance has said quite clearly that money to do that would have to be found from the existing portfolio. Is that correct? Is that a correct summation of the first three different events?

Senator Birmingham: That is broadly correct.

Senator DASTYARI: So does that mean there is no new money for education for the out years of Gonski, and that any new money, as Minister Cormann has said, will have to be found from the existing portfolio?

Senator Birmingham: What Senator Cormann has said is a correct statement in terms of the budget operating rules. It is always up to the cabinet of the day to ultimately make its determinations in relation to funding decisions, but Senator Cormann correctly reflects the budget operating processes, which are that portfolio ministers who wish to bring forward spending proposals need to offset those spending proposals. That is part of the government's desire to try and rein in the deficit that we inherited and to get the nation's finances onto a more stable footing.

Senator DASTYARI: Senator Cormann has been very clear that that is the view of Finance, and that is the position of Finance.

Senator Birmingham: No. They are the budget operating processes. That is what Senator Cormann refers to. They are operating processes that the Department of Finance brings forward that are adopted and accepted by the government.

Senator DASTYARI: Do you have any intention of funding the out years of Gonski? Is there any proposal for a change? Your statement here says that you will have proper discussions with states and territories. Where are those discussions up to?

Senator Birmingham: Those discussions are discussions I have had with most ministers, and they are discussions that I will continue to have. The government will make its own policy and budget decisions in our own time frame.

Senator DASTYARI: Is there a formal arrangement? Are you doing it through a COAG process, or are you doing it off-line? They are your words. Explain to me what you mean when you say 'proper discussions'. Can you break that down for me.

Senator Birmingham: People sit down across the table from one another and talk.

Senator DASTYARI: Are they formal?

Senator Birmingham: I am the Commonwealth minister for education. When I speak to a state minister for education they are probably—usually—a formal discussion about education matters.

Senator DASTYARI: Is Mr Cook or someone from the department part of all those conversations?

Senator Birmingham: Not always.

Senator DASTYARI: Is it done through a formal COAG process?

Senator Birmingham: There are formal COAG processes that are looking at matters to do with the operation of the federation and matters to do with possibilities around taxation as well, which are all well publicised and have touched, in some of those formal processes, on school matters.

Senator DASTYARI: Have you produced an NPP—a new policy proposal?

Senator Birmingham: I think that would be going very much to the deliberations and workings of the government. The government, as I said, will ultimately make any new or different policy or budget decisions in our own time frame.

Senator DASTYARI: Why would that be going to the operations of government? I am not asking for the content of an NPP; I am asking whether an NPP has been created.

Senator Birmingham: That would suggest, if an NPP had been prepared or put forward, that, by the very nature of an NPP, which is a new policy proposal, that a new policy had been developed or was being put forward.

Senator DASTYARI: We both know how an NPP works. It also relates to any variation in funding. Even though it is called a 'new' policy proposal, it does not necessarily mean that policy is new.

Senator Birmingham: A variation in funding would be a new policy decision.

Senator DASTYARI: But I am not asking about the content of an NPP; I am asking whether one has been prepared.

Senator Birmingham: I am telling you that if the government changes its policy it will decide when it announces the change of policy.

Senator DASTYARI: But that is not the question I am asking. I am not quite clear where your public interest immunity claim is here. Is that what you are making? If that is what you are making, then what is the claim?

Senator Birmingham: You are not asking for a release of information, as such, but you are asking about what is a matter and a process that would be the subject of cabinet deliberations were it to have occurred.

Senator DASTYARI: I am asking about whether or not the department has prepared, or is in the process of preparing, an NPP.

Senator Birmingham: That would be, if I were to give a positive answer to that, an indication that new policy options were under consideration, and I am not going to reveal that.

Senator DASTYARI: Surely policy options are under consideration. You say that yourself.

Senator Birmingham: No—

Senator DASTYARI: You are saying they are not under consideration?

Senator Birmingham: I am continually considering new policy options about how we might lift the quality of student outcomes in Australia and reverse the long-term decline in a range of different metrics. They are continually under consideration. A matter that advances to the stage of an NPP becomes a matter under cabinet consideration, usually, and I am not going to divulge those processes.

Senator DASTYARI: Mr Cook, has the department been asked to provide information for the preparation of an NPP?

Senator Birmingham: I think I have answered that question.

Senator DASTYARI: I have asked you whether or not—

Senator Birmingham: Now you are asking Mr Cook to divulge what we are doing or the advice that has been provided to me on certain matters.

Senator DASTYARI: It appears you are making a public interest immunity claim. I do not know what you are making the claim on. If you are making a public interest immunity claim, then make a public interest immunity claim. We can go down that whole process to the Senate; that is fine.

Senator Birmingham: I am not going to divulge matters—

Senator DASTYARI: Make the claim; do not dance around it.

CHAIR: Senator Dastyari, let the minister answer.

Senator Birmingham: that would be part of the cabinet policy-making process.

Senator DASTYARI: You know that that is not grounds for a public interest immunity claim. You know the rules.

CHAIR: The minister has answered the question.

Senator Birmingham: I am not going to divulge matters that go to the cabinet's policy-making processes.

Senator DASTYARI: Can the chair take some advice.

CHAIR: Are you seeking to not accept the minister's claim for public interest immunity?

Senator DASTYARI: I am asking that we seek the Clerk's advice and some clarification on what exactly the public interest immunity claim is. We are here all day, so we can come back to this.

Senator JOHNSTON: There is no public interest immunity claim. He cannot talk about cabinet-in-confidence matters. Simple.

Senator DASTYARI: This is not cabinet-in-confidence.

Senator JOHNSTON: He said it is.

CHAIR: I heard the minister say that the issues were around cabinet process et cetera. There was no claim of public interest immunity.

Senator DASTYARI: Then he has to answer the question.

CHAIR: He has.

Senator DASTYARI: The only option is to make a public interest immunity claim, or to answer. There is no third option. That is not how it works.

Senator JOHNSTON: There is a third option.

Senator DASTYARI: There is a 2009 Matthias Cormann resolution—

Senator JOHNSTON: You cannot discuss cabinet deliberations speculatively into the future. Simple.

Senator LINES: Senator Dastyari has asked for the advice of the Clerk.

CHAIR: We will seek the advice of the Clerk.

Senator LINES: It is not worth us arguing it out amongst ourselves. We have sought the assistance of the Clerk.

Senator DASTYARI: Let's be clear what my two specific questions are: the first is whether or not an NPP has been prepared, and, secondly, whether or not the department has been asked to produce information for the preparation of an NPP.

Senator Birmingham: An NPP in relation to school funding, I assume!

Senator DASTYARI: I am happy to take all of them. But, yes, in particular in relation to school funding. I am happy to move on while we get some advice from the Clerk, and let you spread it around—spread the love!

CHAIR: Do you have more questions?

Senator DASTYARI: I have a lot more. But I am saying that if you want to go to someone else I will come back to this.

Senator SIMMS: My questions relate to higher education and, in particular, some industrial relations matters. Is cross-portfolio the right time to ask those?

Mr Cook : It depends on their nature. The higher education people will be here later in the day.

Senator SIMMS: Maybe I will fire away, and if you tell me you cannot answer I will have another go later. The department recently reported a 3.1 per cent increase in student numbers for the first half of 2015 when compared to the same period in 2014. It was also reported that there was a 0.8 per cent increase in the number of full-time staff positions in 2015 when compared to 2014. This indicates that staffing levels within the university sector are not keeping up with increased student loads. Has the department investigated whether this increase in workload is resulting in more staff working overtime hours?

Mr Cook : That actually goes to the heart of outcome 2—the higher education area. You will need to deal with that later.

Senator SIMMS: That is fine. I will keep it on ice until then.

Senator LINES: I want to start with your enterprise bargaining. As I understand it, the Department of Education and Training had not received a pay offer from management despite nearly 18 months of negotiations. I know we have been through these before, Mr Cook. Three machinery-of-government changes since 2013 elections have left substantial parts of the department, as I understand it, covering higher ed and schools training, on lower pay and conditions. We did discuss at the budget Senate estimates the amalgamation of staff and the different rates of pay et cetera—

Mr Cook : That is correct.

Senator LINES: for over two years. We had the early childhood staff move to DSS in December 2014, and I understood, at that point, bargaining reps were not met with for some four months—and now we have the early childhood staff back again in the department. My further understanding is that, while staff do not have a pay proposal, management has produced five different draft agreements. The latest draft agreement is in line with the current government's bargaining policy.

My understanding is that the draft agreement strips out a range of important provisions such as the right to be consulted before a decision is made. The intention, as I understand it, is to put them into a policy which would sit outside the enterprise agreement, so that becomes unenforceable. The right to be consulted before a decision is made; a requirement for agreement on policy changes, representation and delegates rights; graduates no longer being guaranteed an APS4 position after completion; protections for part-time staff being watered down; rules around the use of flex and a reduced flex debt limit to 10 hours; giving more power to supervisors; workload reviews; introducing a hard barrier between APS5 and APS6; limiting career progression; and medical evidence being now required for any period of more than two consecutive days of personal and carers leave or more than eight days in a calendar year. Are these all in your draft proposals to shift from the current enterprise agreement to policy?

Mr Cook : As you indicated, we put a draft out to staff. We have asked staff for some feedback in relation to that draft. We do not have a formal position at this stage, or a final position, in relation to the agreement. The list of things that you read, I understand, is correct. There is quite a bit of detail there.

Ms Leggett : It is broadly correct. As you are aware, Senator, we have two enterprise agreements, so some of those things relate to changes from the DEEWR EA and some of them relate to changes from the One Innovation EA.

Senator LINES: But the intention is to move them out of those enterprise agreements, where they are enforceable, and into policy?

Mr Cook : That would—

Senator LINES: That is what you are consulting staff about?

Mr Cook : As I said, we are consulting staff about it, consistent with government policy. A number of the conditions in relation to the One Innovation agreement, of course, are improving the conditions for people under the One Innovation, because if you looked at the DEEWR and the One Innovation—

Senator LINES: I am not going to that.

Mr Cook : I am just making a point. Just in terms of those two agreements—

Senator LINES: So how are you consulting with staff?

Mr Cook : As our normal process would be. I think we actually made this material available to all staff. Is that correct?

Ms Leggett : Yes. We have a range of consultation mechanisms. We have an intranet page. We have an email box. We have a phone hotline. And we go out and talk directly with employees in their branches. They are invited to presentations to branches and groups.

Senator LINES: You did not mention consultation with your bargaining committee.

Mr Cook : We do that as well.

Ms Leggett : We meet regularly with the bargaining committee, the bargaining representatives. We have had regular meetings. The last one occurred towards the end of December.

Senator LINES: So you last met with them in December. When you say they are regular, how regular have they been?

Mr Cook : We have had 25 meetings since mid-2014. Basically every month is when we are really looking at them. There were 10 meetings in 2014—there were the Christmas holidays—and 15 in 2015. So it was more than once a month in 2015.

Senator LINES: So the last time you met with them was December 2015. You have put this latest draft proposal to the bargaining committee?

Ms Leggett : Yes, we provided that to the bargaining committee on 16 December.

Senator LINES: Did you ask them for feedback?

Ms Leggett : Yes, we have been progressively working through feedback on the various parts of the agreement.

Senator LINES: What feedback have you had from bargaining reps about the proposal?

Ms Leggett : We have five bargaining representatives at the table—the CPSU and four individual bargaining representatives. The CPSU have provided feedback in terms of concerns around the changes to the provisions and the level of detail in the agreement.

Senator LINES: The provisions as I read them out?

Ms Leggett : Yes.

Senator LINES: So the CPSU has provided feedback. What has that feedback been?

Ms Leggett : The feedback has been primarily around the concern around the level of detail not being in the agreement and being in policy. The other concern for the CPSU has been in relation to their position that conditions should be moved to the more beneficial level under whichever agreement is more beneficial in terms of—

Mr Cook : Which in most cases they are. As I indicated, in most cases the One Innovation agreement had less beneficial conditions for staff.

Senator LINES: Sorry Mr Cook; what did you say?

Mr Cook : In most cases, the actual conditions in the One Innovation EA are less beneficial compared to the DEEWR EA. So, in terms of our alignment, we have been making steps to try and make as many of those as we possibly can fit the DEEWR provisions at the moment, and they are some of the things that we put out to staff as well.

Senator LINES: But the list that I just read out—the right to be consulted, representation and delegate rights, the issue around graduates—all of that is less than what is in the current DEEWR EA.

Mr Cook : But there are many, many, many that are actually more beneficial in relation to the One Innovation is the point that I am making.

Senator LINES: But that list that I just read out is—

Mr Cook : The point I am making is about the feedback on terms and conditions. Most of the changes to the conditions are beneficial to the staff that are on the One Innovation EA.

Senator LINES: Mr Cook, you just need to answer the questions that I am asking you. That list that I read out is less than what is in the current DEEWR EBA, which you say, of the two EBAs, is the superior one.

Mr Cook : I think what you have read out is consistent with government policy.

Senator LINES: Okay, but that takes conditions out of the enterprise agreement and puts them into policy therefore they become unenforceable.

Mr Cook : Unenforceable—I am not sure. They are covered under various other acts, I believe.

Ms Leggett : The agreement contains the entitlements. The guidance is that we are proposing to move into policies and guidance material. As Mr Cook indicated, there are a range of review mechanisms that people can use in terms of elements that might actually sit in policy as well.

Senator LINES: Sure but, at the moment, whilst they are in the EBA, if there is a dispute, the aggrieved people, through their union—or indeed without their union—could take a matter to the independent umpire, the Fair Work Commission.

Ms Leggett : In terms of the provisions in the agreement: yes, they can.

Senator LINES: Yes. So you are taking that away around those provisions.

Mr Cook : We are not at the moment. This is a proposal and our final position—

Senator LINES: That is a proposal.

Mr Cook : Just to be clear: it is a proposal. We will hear feedback from staff and the bargaining representative in relation to that and make our final determination in the near future.

Senator LINES: So after 18 months, why has there been no pay offer? How do you expect people to weigh up this loss of conditions against a zero pay offer? How are people able to make a full decision, if they do not know what the pay offer on the table is?

Mr Cook : I think we indicated at the last hearing, as a result of various machinery-of-government changes, that we have had to actually relook at our budget every time. Part of that was, at the last estimates hearing—I think, in October—we did not actually know the number of staff who were coming in from DSS in relation to early childhood, so we had to wait until that happened. I think that happened in November. Once we have done that work, we have had to look at our total budget and then we can be in a position to know what our budget is from the department to actually inform our decision around that.

Senator LINES: Presumably, you are in that position now.

Mr Cook : We are not far away from that position, that is correct: I believe we are in the final stages of the process at the moment.

Senator LINES: When will the pay offer be made?

Mr Cook : It will be in the near future. So part of what our next step would be or what we need to do, as you know, is work with the APSC in relation to actual agreement in relation to the affordability of the pay offer and things like that.

Senator LINES: So into the future when?

Mr Cook : I said in the near future.

Senator LINES: When—how long is a piece of—

Mr Cook : I cannot determine that, because some of those agreements are outside this department. We need to have the APSC actually agree to some of the offer that we are making. We are finalising that at the moment; I would think it is in the near future, as I indicated.

Senator LINES: If I am a staff member at the department of education and I am presented with this draft list, how do I then weigh up what is best for me, if there is no money on the table? Some of the stuff that you want to take off the table is monetary benefits. I have got no way of weighing that up. It is not a proper consultation.

Mr Cook : Our next step involves that process. Once we have got an agreed position in relation to pay, staff will have an opportunity to look at that as well as the conditions and still provide feedback in relation to that.

Senator LINES: When do you think you are going to put an offer out that staff are going to vote on?

Mr Cook : I indicated in the near future and that it is dependent on some of the decisions that are made by the APS in terms of our affordability.

Senator LINES: It is fairly unreasonable, I think, that staff have gone such a long time without any wage increase.

Mr Cook : We have spoken to staff about where we are up to. Staff are aware of that. It will be in the near future that we will be able to give staff information in relation to a pay offer.

Senator LINES: So when is your next bargaining meeting scheduled?

Ms Leggett : We have not scheduled a bargaining meeting. We will be making arrangements with the bargaining representatives very shortly.

Senator LINES: And what will be discussed then?

Ms Leggett : As Mr Cook said, we are moving through the final steps of the approval process and we would hope—

Senator LINES: I thought you were in a consultation process.

Mr Cook : No, in terms of a pay-offer. I indicated APSC is the approval process. We are reaching a stage where we are moving towards those final steps.

Senator LINES: Sorry, the next time the bargaining committee meets, you will present a pay offer.

Mr Cook : That depends on the timing of the APSC approval. I would like that to happen, absolutely—

Senator LINES: So you are not going to meet with the bargaining committee until you have got a pay offer?

Mr Cook : We can ask for feedback on the draft we gave them in terms of the agreement on 17 December.

Senator LINES: So what is the feedback you are getting from staff around the current draft?

Ms Leggett : We have received some feedback in relation to two particular provisions in the agreement related to temporary performance and personal leave. So for temporary performance the proposal was payment after three weeks. People have indicated a preference for two weeks.

Senator LINES: Is two weeks in line with the current DEEWR EBA?

Ms Leggett : The current DEEWR EBA has payment after five days and one innovation after 20.

Senator LINES: So two weeks; and the personal leave?

Ms Leggett : With personal leave, there were concerns raised regarding two days without a medical certificate and a preference to move to three days without a medical certificate, and there were concerns about the number of days in a calendar year without a medical certificate. So we are now considering all of that feedback.

Senator LINES: What are people saying is a fair proposition there?

Ms Leggett : There is mixed feedback. Some people indicate that a longer period without a medical certificate in the calendar year would be preferred—somewhere around 12 days. Others would prefer no cap and a preference for three days in a row without a medical certificate.

Senator LINES: So you are not getting positive support for what you have put forward?

Mr Cook : We are getting mixed support around that. I do not think that would be an accurate representation. If you look at what we indicated in relation to TPL, for the one innovation staff that is actually a better condition they have currently got. I cannot imagine the one innovation staff would say they do not support a better condition.

Senator LINES: I want to move to early childhood and talk about what is happening there. I want to reference a question on notice, SQ15-000912. That was about costs to date of relocating the early childhood staff back to the department. You told us that the costs of relocating early childhood staff back to the department at that point was $34,664.

Mr Cook : That is correct.

Senator LINES: Are there any revisions to that cost?

Mr Cook : I do not believe so but I will ask Ms Monkley.

Ms Monkley : Since that point in time, we have affected a couple of small moves in some regional locations, so the total cost now comes to $39,449.

Mr Cook : My correction: a small increase.

Senator LINES: Also in that same question, Mr Cook, we were advised that new business cards will be required for staff returning to the department. Have those business cards been ordered and printed?

Mr Cook : Depending on individual staff, I would imagine as to whether they had actually initiated that themselves. It happens at a branch level, so I am sorry I cannot answer that for you properly.

Senator LINES: Can you tell us how many staff required new business cards?

Mr Cook : We can take that on notice.

Senator LINES: Isn't that all of your early childhood department staff?

Mr Cook : Not every staff member would have a business card, no.

Senator LINES: Okay, so you will take that on notice. I am after the total cost of that.

Mr Cook : Sure.

Senator LINES: Are you anticipating any further costs being incurred associated with machinery-of-government changes?

Ms Monkley : Not at this point, Senator.

Senator LINES: I want to talk to you about two contracts that were published on AusTender in November of last year, and they are CN3306317 and CN3306321.

Mr Cook : Just to help, can you give us titles for both of those?

Senator LINES: Sure. It is about the early childhood move to education, 50 Marcus Clarke Street. That is 6317, to use the last four digits. And for 6321 it is fit-out works for office reconfiguration.

Mr Cook : Sure.

Senator LINES: Can you confirm that these contracts relate to machinery-of-government changes—specifically, the relocation of early childhood staff back to the department?

Mr Cook : I would imagine the first one would, but I am going to have to get a little bit more detail.

Senator LINES: When you 'imagine', Mr Cook, can I take that as a definite yes?

Mr Cook : No, you probably cannot. Based on the title it would seem that is the case, but until I have got further detail—

Senator LINES: So you will confirm those in a moment?

Mr Cook : If possible, yes.

Senator LINES: The next question, just to save time—

Mr Cook : We can take it on notice as well, if that helps.

Senator LINES: Surely you can give me the answers to those today.

Mr Cook : We have hundreds of contracts, Senator, so—

Senator LINES: You have a plethora of staff behind you.

Mr Cook : Yes, and we have hundreds of thousands of contracts.

Senator LINES: What I want to know about those contracts is if those costs are inclusive of, or in addition to the reported figure, which you have just revised now to $39,449. If not, is there a contract ID number? And which company was it awarded to?

Mr Cook : The contract ID number for the $39,000?

Senator LINES: Well, it was the old figure of $34,664.

Mr Cook : I would have thought the $34,000 is a combination of various costs. Do you have any more guidance?

Senator LINES: So do you have an answer?

Ms Monkley : The $39,000 that I quoted is largely made up of meeting costs. So that first contract number that you referred to, 3306317, was the contract entered into by our shared services centre to effect the move of people from Woden back into Canberra City. The contract value that is published on AusTender is usually an estimate at the time of publishing, and the number that I have quoted is the cost that we have actually incurred in the moves.

Senator LINES: And who was awarded that contract?

Ms Monkley : I am just recalling that one back.

Senator LINES: Also in relation to that contract, what specifically was moved, and from where?

Ms Monkley : I am just confirming who it was awarded to. In terms of what specifically was moved, I can give you a general answer at this point. I would need to take it on notice to give you more detail.

Senator LINES: Sure. You can take the whole thing on notice rather than a general one. I just want to know where it was moved from.

Mr Cook : Moved from? It would have been Woden.

Ms Monkley : That was from Woden, but we can give you the details of the exact building.

Senator LINES: Sure. In relation to the reconfiguration, which office space did this relate to, and what work was involved? That is 3306321.

Ms Monkley : I would need to take that on notice.

Senator LINES: Those costs were not included in the responses to the question on notice that you provided? For that figure that you have now revised up to $39,449, in questions on notice you told us it was $34,664, so it did not include that contract?

Ms Monkley : I do not expect it includes that contract, but I will confirm that.

Senator LINES: Okay. Could you just confirm that the second contract, the office reconfiguration, is not included in the revised figure of $39,449.

Mr Cook : The thing I would want to find out is if that actually relates to early childhood. It might be an office fit-out somewhere else in the department, for example. So I really need to take that on notice to get the detail.

Senator LINES: Can you get us that figure and those answers today?

Mr Cook : We will do everything in our power to follow that through.

Senator LINES: Has the first one, CN3306317, gone from imagined to yes? That was definitely—

Mr Cook : Based on Ms Monkley's evidence, yes, that is correct. As Ms Monkley said, that is an estimate, and then we have the actual incurred cost. That is correct.

Senator LINES: Sure. Well, we have two shadows now.

CHAIR: I know. We are blessed in this committee.

Senator LINES: So I will be quiet.

CHAIR: But I do have advice back. We sought the advice on the point of order. The claims by Minister Birmingham about deliberations and cabinet deliberations are, under the standing orders, accepted grounds. It is under No, 5, the disclosure of Executive Council or cabinet deliberations, and similarly No. 8, prejudice to relations between Commonwealth and states. So on those two accepted grounds—

Senator DASTYARI: Hang on. Let's just—

CHAIR: The minister does have an option, though, to either make a claim for public interest immunity or take your question on notice, Senator Dastyari.

Senator DASTYARI: Okay. On that point of order—

CHAIR: The point of order was just seeking advice of the Clerk—which actually is not a point of order, but we have sought the advice of the Clerk.

Senator DASTYARI: Can I speak to that.

CHAIR: Of course.

Senator DASTYARI: I just do not know what the process is. Let's be clear. It says:

A claim that a document is a cabinet document should not be accepted …

And that is not the claim that I believe the minister is making.

CHAIR: The minister has not made a claim of public interest immunity.

Senator DASTYARI: Minister, are you making a claim?

CHAIR: So I have just said to the committee he has two options: either to make the claim or to take your question on notice. Minister?

Senator Birmingham: Thanks, Chair. It is my view that to disclose the information requested by Senator Dastyari would indeed unduly provide information about the deliberations and processes of the cabinet and also would have the potential to harm Commonwealth discussions with the states and territories.

CHAIR: Thank you, Minister.

Senator DASTYARI: So are you making a claim?

CHAIR: That is a claim of public interest immunity under two—

Senator DASTYARI: Well, the minister has to specifically say he is making a claim of public interest immunity.

Senator Birmingham: I make such a claim, Senator Dastyari, on the grounds that I have already mentioned.

CHAIR: Under the Senate resolution, they are accepted grounds to claim public interest immunity, Senator. I suggest you move on to another—

Senator DASTYARI: No, that is not—

Senator KIM CARR: That is not for you to determine.

Senator DASTYARI: A minister is allowed to make a claim. Whether that claim is accepted or not is a matter ultimately for the Senate—

CHAIR: Ultimately.

Senator DASTYARI: about whether the Senate chooses or does not choose to accept it. It is well within the minister's rights to make a claim. The minister has made a claim. It is also my right to not accept a claim. I can choose not to accept a claim of public interest immunity. Frankly, I think it is quite clear here that the claim that it is a cabinet document or the existence of a document is a disclosure deliberation should not be accepted. I have not asked about the content of the document.

CHAIR: Senator Dastyari, rather than discuss your opinions on the standing order in a public forum, I suggest a private meeting of the committee.

Pr oceedings suspended from 09:45 to 09:46

CHAIR: As a result of the private meeting, Senator Dastyari is going to follow this up in the Senate at a later date.

Senator KIM CARR: Congratulations, Mr Cook. If I understand correctly, you have been appointed acting secretary.

Mr Cook : Yes, that is correct.

Senator KIM CARR: I put on the public record my regard for your predecessor, who had a long record of service. She served many governments, so I can say that I worked with her in a number of capacities. Having said that, I want to raise a matter about her appointment to the Navitas board. I read in the Campus Morning Mail the other day that Lisa Paul has been appointed to the board of Navitas. This occurred a week after she officially finished with the department. It follows the controversy concerning the appointment of the associate secretary to the Nous project. You will recall that that is a matter I expressed some concern about. When was the department made aware that Ms Paul had accepted a position on the Navitas board? I am going to ask you about this directly, Minister, but I want to ask the department first: when was the department made aware?

Mr Cook : It would have been when the announcement was made.

Senator KIM CARR: So that was the first time—

Mr Cook : It was when the announcement was made.

Senator KIM CARR: So there was no other prior advice to the department?

Mr Cook : In relation to what?

Senator KIM CARR: The appointment—that Ms Paul had accepted a position on the Navitas board.

Mr Cook : I will have to take on notice the dates in relation to it. As I said, in terms of the actual appointment, it was when the announcement was made.

Senator KIM CARR: It was a public announcement. So the first time you became aware—

Mr Cook : Ms Paul had indicated to me that the board had expressed interest in her, knowing that the announcement of her retirement had been made earlier. At that point, Ms Paul advised me that she would not be involved in any discussions in relation to higher education, for example. But I knew about the actual appointment when the announcement was made.

Senator KIM CARR: When did Ms Paul indicate to you that this interest had been expressed?

Mr Cook : I will have to you take that on notice, sorry.

Senator KIM CARR: Thank you. And she also indicated to you that she would not be participating in any conversations within the department on higher education?

Mr Cook : That is correct.

Senator KIM CARR: But Navitas are engaged in a number of education programs, not just higher education.

Mr Cook : Any programs in relation to education—

Senator KIM CARR: Including vocational education?

Mr Cook : That would be my understanding.

Senator KIM CARR: So she has had no engagement in any program that Navitas have a direct interest in?

Mr Cook : She indicated that to me; that is correct.

Senator KIM CARR: What measures were taken to see that that happened?

Mr Cook : I made sure, for example, that she did not attend meetings where some of those discussions were happening. Some of those meetings did happen across the department. Ms Paul absented himself from those meetings.

Senator KIM CARR: Minister, when was your office made aware?

Senator Birmingham: Again, I would have to take on notice the specific date. It was sometime in January. That is my recollection. Ms Paul spoke with me and advised me. She had sent me a letter which I had received to inform me that she had received an approach and that it was an approach she was inclined to accept and therefore would undertake such precautions as excluding herself from any discussions or deliberations in relation to higher education or vocational education and training issues that could have any bearing on matters that related to Navitas. I wrote back to Ms Paul on a date that I would have to check for you—

Senator KIM CARR: Thank you.

Senator Birmingham: confirming my understanding that that is what she would do.

Senator KIM CARR: I appreciate that. So we are talking about January 2016, are we?

Senator Birmingham: I think that is right.

Senator KIM CARR: Not January 2015?

Senator Birmingham: No.

Senator KIM CARR: I am just wondering when the approach was made by Navitas. Was it in January or was it earlier?

Mr Cook : We would have to you ask Ms Paul that question. I am not aware of when the approach was actually made to Ms Paul. I am not sure if it was after the announcement—

Senator KIM CARR: It is a pertinent question. I appreciate that the proper procedures were followed in January, but if the approach was made much earlier than that then surely it required a much earlier declaration than January 2016. Is that correct? Do you agree?

Senator Birmingham: There are two factors in such matters. There is an approach being made and an inclination to accept the approach. I suspect that Ms Paul may well have had other approaches made once her retirement became publicly known. As far as I understand, she put in place the appropriate procedures and protocols, which I believe were done in a timely manner.

Senator KIM CARR: As you said, Minister, it is not whether or not someone approaches you, because there may well be many of those approaches; it is when you make a decision to accept or are inclined to accept an approach. Is that the relevant point?

Senator Birmingham: I think you would need to have satisfied yourself of the reality of one and the potential of the other.

Senator KIM CARR: What are the current code of conduct specifications for officers undertaking work directly in alignment with the department's work immediately upon their retirement from the department?

Mr Cook : I think we went through some of this at the last hearing.

Senator KIM CARR: So it will be fresh in your mind, won't it?

Senator Birmingham: We can endeavour to help you, Senator Carr, although you are probably straying into questions that are more for the Public Service Commission.

Senator KIM CARR: That may well be, but they relate directly to this department.

Senator Birmingham: Sure, but if you are going to matters of Public Service conduct like this then the Public Service Commissioner is the appropriate authority. But, as I say, we are endeavouring to—

Senator KIM CARR: At this stage I am seeking to know what the specific requirements are for officers who undertake work immediately upon retirement.

Mr Cook : In terms of the code of conduct:

An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.

This is about the general code of conduct. Really, it is about the department speaking to all of our staff about considering any employment that they take after they have actually retired. There is nothing specific in here. APSC notes that:

… it is not currently possible under Australian law to impose post separation employment restrictions on all or certain classes of APS employees and to ensure that those restrictions are enforceable.

So as, I think, Ms Paul indicated last time in relation to Mr Griew, it is really about the department being clear to our staff about any post employment opportunities not actually being influenced and not using any information that they have gained from their current employment to gain a benefit out of their future employment.

Senator KIM CARR: This is where the dilemma arises, isn't it? Presumably, the reason a person is approached to serve on a board in the education field is that the secretary of the education department might have some detailed knowledge of the work.

Senator Birmingham: I think that is a comment, Senator Carr.

Senator KIM CARR: It is, but I am saying that this is where the dilemma arises. I was critical of the department's engagement of the former associate secretary in what I regard as lobbying work—

Mr Cook : We engaged Nous Group.

Senator KIM CARR: Yes, the Nous Group. I am particularly interested to know whether the guidelines have been fulfilled with regard to the former secretary taking up a board position with a leading stock exchange-listed company directly engaged with this department almost immediately upon the secretary's separation from the department.

Mr Cook : I believe they have.

Senator KIM CARR: You believe they have. Can you take that on notice.

Mr Cook : I am happy to take that on notice. In relation to 'APS Values and Code of Conduct in practice: A guide to official conduct for APS employees and agency heads' and in relation to post separation employment I believe Ms Paul has taken all appropriate actions.

Senator KIM CARR: Has the department undertaken any market research activities in the last six months?

Mr Cook : Market research in the last six months? I will ask Ms Gleeson to join us.

Ms Gleeson : The department has undertaken market research in the last six months.

Senator KIM CARR: Can you detail what that is, please.

Ms Gleeson : Sure. From what date would you like us to detail?

Senator KIM CARR: Tell me all of it. Tell me all of the research you have undertaken.

Ms Gleeson : Market research—I am talking in relation to communication campaigns—

Senator KIM CARR: No, I would like all of the market research that the Department of Education and Training has undertaken in the last six months.

Mr Cook : I would like to take that level of detail on notice, Senator.

Senator KIM CARR: I would appreciate you taking the detail on notice. But if you want to generalise at this point, what are the broad areas in which you have conducted market research?

Mr Cook : It would predominantly be in communications. It would be the portfolios that would have to help us in terms of outcomes 1 and 2 around other areas later in the program, but we can talk about communications as part of the work we do.

Senator KIM CARR: I want the others on notice, but what have you undertaken in communications?

Ms Gleeson : In the last six months, in relation to the higher education campaign, there have been three contracts let in relation to market research. The first was for developmental research, which kick-started the creative development of that campaign. That was in October 2014, which is probably outside of your six months.

Mr Cook : That is not in the last six months—just the last six months.

CHAIR: From August 2015.

Ms Gleeson : There has been benchmarking, tracking and evaluation research for the higher education campaign, concept testing and refinement research conducted for the parent engagement campaign and benchmarking, tracking and evaluation research for the parent engagement campaign.

Senator KIM CARR: Do you have reports for any of those?

Ms Gleeson : We do.

Senator KIM CARR: Are they available?

Ms Gleeson : The department is in receipt of those reports.

Senator KIM CARR: Are they available to the committee?

Ms Gleeson : My understanding is that in relation to providing copies, this is akin to the question that Senator O'Neill asked at the last estimates.

Mr Cook : I think some of those reports are deliberations of cabinet.

Senator KIM CARR: Are they marked cabinet-in-confidence?

Mr Cook : They would have been. My understanding is that they would have gone to a cabinet subcommittee.

Senator KIM CARR: Can you confirm that?

Mr Cook : We can take it on notice but I am certain some of the parent engagement ones did. I know that for a fact.

Senator KIM CARR: They are older ones, but cabinet would not have considered this matter for some time. Are you saying they are still cabinet-in-confidence?

Mr Cook : Still cabinet-in-confidence? They are marked in confidence.

Ms Gleeson : Yes, they are marked cabinet-in-confidence.

Senator KIM CARR: They are all marked cabinet-in-confidence?

Mr Cook : It would be my understanding that they would have gone to a cabinet subcommittee, as is the usual practice across governments.

Senator KIM CARR: What were the dates on which the reports were delivered? That is not cabinet-in-confidence.

Ms Gleeson : Can I take that on notice because I have those in several places?

Senator KIM CARR: Yes, of course. I would appreciate that. I would like to know the dates. What were the costs of each of those projects?

Ms Gleeson : In relation to the parent engagement campaign, the cost of the benchmark, tracking and evaluation research was $157,938. In relation to the concept testing and refinement research for the same campaign, the total cost was $196,976. In relation to the higher education campaign benchmark, tracking and evaluation research report, it was $300,000.

Senator KIM CARR: Thank you very much. These are all concepts or tracking exercises. Where there any placement advertisements?

Ms Gleeson : Technically, that is a cost that relates to media placement and not to market research.

Senator KIM CARR: I see. Secretary, are you able to assist me with how much it cost to place the advertisements?

Mr Cook : I think we answered these questions last estimates, but I am happy to answer some of them again. The media buy in relation to the parental engagement campaign was $3.4 million. That is invoices received as at 22 January this year.

Senator KIM CARR: January?

Mr Cook : That is right.

Senator KIM CARR: The total cost is $3.4 million for all of those campaigns?

Mr Cook : I do not believe there are any outstanding invoices, but Ms Gleeson may want to correct me.

Ms Gleeson : My understanding is that that is correct. We are just verifying that because there can be a lag sometimes with the reconciliation of invoices.

Senator KIM CARR: Yes, I appreciate and accept that.

Ms Gleeson : The budget allocated for the media buy was $3.495 million and currently we have been invoiced $3.416 million.

Senator KIM CARR: That is for one of them. There have been no further advertisements in the higher education space?

Ms Gleeson : No, no further advertisements.

Mr Cook : That campaign is finished.

Senator KIM CARR: There have been no other advertisements placed?

Mr Cook : That is my understanding. The campaign has ended.

Mr Cook : Yes, that is correct.

Senator KIM CARR: Thank you; that is very helpful. I will turn to the questions on notice. How many questions on notice remain unanswered?

Mr Cook : None.

Senator KIM CARR: None at all? They have all been handed—

Mr Cook : My understanding is that up until yesterday—

Senator KIM CARR: Today?

Mr Cook : I had a look at the Senate committee website last night and there was an answer against every question.

Senator KIM CARR: Is that the case?

Ms Gleeson : Yes, it is.

Senator KIM CARR: When were the last lot of questions delivered to the minister's office?

Mr Cook : I think the committee has that in relation to a letter from the minister dated 28 January.

Senator KIM CARR: When were they delivered to the minister's office? Was it 28 January?

Mr Cook : No. It was on 28 January that the minister sent the letter under Senate orders in relation to questions on notice. The minister has indicated that it has been provided to the Senate, as is required. It asks—

Senator KIM CARR: Do you have a copy of that letter?

Ms Gleeson : We will get a copy of the letter.

Senator KIM CARR: When were the last lot delivered to the committee? Yesterday?

Mr Cook : That is correct. I think there were three yesterday.

CHAIR: Better than the ABC.

Senator KIM CARR: Sorry?

CHAIR: Nothing.

Senator KIM CARR: There were three yesterday?

Mr Cook : The final three, I understand.

Senator LINES: Carr, Lines, then—there are a lot of them. There are a lot of questions.

Senator KIM CARR: Right. I see. And how many total questions did you receive the last estimates round?

Mr Cook : 374.

Senator KIM CARR: 374. So three weeks ago, how many were with the committee?

Mr Cook : Were tabled at the end of January? I would have to add these up. Roughly, by the looks of this, off the top of my head, probably 260—maybe 270. I am just doing a quick add up in my head.

Senator KIM CARR: It is just that with the last 100 or so, I noticed a lot of those were from questions that I asked—which were in regard to VET FEE-HELP and other matters. Was there a particular reason why it took so long to have those delivered?

Mr Cook : It would have been obviously looking at the questions and making sure that the questions were appropriately answered by the department.

Senator KIM CARR: That they were accurate. I see. Thank you very much. Can I turn now to the VET FEE-HELP matter.

Mr Cook : This would be more appropriate in outcome 2.

Senator KIM CARR: It might be. There were three answers—on 8 February, so that is this Monday—and the particular information I was seeking here was: how many people have unintentionally or otherwise unfairly incurred VET FEE-HELP debts? And the question does not actually go to the substantive issue. I was just wondering, at what point is there an editorial process now put in place to actually ensure that questions are actually answered?

Mr Cook : That would be the responsibility of the appropriate deputy secretary, as always.

Senator KIM CARR: So in that particular matter—SQ15-000896 and SQ15-000897—I just put on notice to the relevant officer, I will be looking for advice as to why the answers were incomplete.

Mr Cook : Sure. We can deal with that in outcome 2.

Senator KIM CARR: Thank you very much. That concludes my line of questions.

CHAIR: Are there any more questions in cross portfolio? That being the case, we will move on to ACARA.