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Thursday, 26 June 2014
Page: 4146

Senator McKENZIE (VictoriaNationals Whip in the Senate) (18:39): In March I raised a number of concerns about the Fair Work Commission's Expert Panel that is reviewing default superannuation fund terms in modern awards. Since then, we have witnessed a slow-motion train wreck. Today, I was flabbergasted to read a memo from Justice Ross from two weeks ago reacting to quite legitimate criticism of the Fair Work Commission. One wonders where his Honour finds the time to pen a 765-word memo in his own defence, regarding Our Future Directions, reserve decision benchmarks and international engagement work—a memo which, incidentally, neglects to even mention the expert panel fiasco. So, tonight, I will seek to briefly outline some of the issues.

First, in January of this year, Mr Shorten's handpicked expert panel was appointed on the eve of the caretaker period to conduct the review, after a sham consultation process. But before the ink was dry, industry groups raised legitimate concerns about potential conflicts of interest for expert panel members Allen and Gibbs. In response, on 7 March, Justice Ross stood those two members aside. In their place, Justice Ross joined Dr Timothy Harcourt to the expert panel. Yet, within 72 hours of doing so, fresh concerns were raised that the expert panel was improperly reconstituted. Industry groups rightly pointed out that, by replacing two members with just one, the expert panel could not proceed with the review. So at 5 pm on the night before Good Friday—the classic 'putting out the garbage' evening, as it is known—the Fair Work Commission announced that Justice Ross appointed himself to the expert panel! And just when we thought it could not get any more farcical, on 28 May Ms Allen tendered her resignation. Since then, the Federal Court has found that the President's decision to join himself to the expert panel was invalid.

One change could be excused as misfortune, two changes look like carelessness but five changes are just a farce. With members being constantly swapped and dropped, Mr Shorten's expert panel starts to resemble the bottom 16 AFL team in trade week prior to the national draft. Unfortunately, the problems for the expert panel just do not seem to stop. Last week, it was reported in the Australian Financial Review that Dr Harcourt breached the Fair Work Commission's Member Code of Conduct by speaking at a Labor Party fundraiser on 20 February, with Senator Wong. I have rather fortuitously managed to obtain a copy of the flyer promoting the event. Attendees were invited to register for the fundraiser at $1,000-a-head for the Matthew Thistlethwaite—previously of this place—campaign. According to the flyer, Dr Harcourt 'will provide an expert analysis on the progress of the'—Trans Pacific Partnership—'negotiations and potential highlights for 2014'. Given that the flyer was headed with the word 'FUNDRAISER' in large capital letters, I found it rather remarkable that Dr Harcourt was reportedly 'not aware that the event was a fundraiser'. Maybe he did not get the memo. I was more concerned that Dr Harcourt was apparently not aware that 'attending a fundraiser was a breach of the commission's code'. Section 4.1(111) of the code clearly states:

... it is expected that, on appointment, a Member will not continue such involvement with political parties. An appearance of continuing ties, such as might occur by attendance at political fundraising events should be avoided.

One wonders whether Dr Harcourt had actually read the code of conduct, or even knew of its existence.

Of course, this is not the first time Dr Harcourt has traversed the path of political partisanship. At Senate estimates last month, my colleague Senator Kroger—and it is great that she is in the chamber tonight—asked whether Justice Ross was aware of Dr Harcourt's tweets which criticised the government's budget or his interview on Sky News in which he, in his capacity as a Labor member, publicly supported his choice of Mr Shorten for leadership of the Labor Party. Senator Kroger has written to Justice Ross in relation to these matters. I understand that she has recently written to him a second time to raise our concerns that Dr Harcourt appears to be repeatedly flouting the code of conduct.

I note that at Senate estimates Justice Ross stated that the code is 'not a regulatory instrument', that it only provides guidance and is not at all enforceable. Well, if the supposedly impartial Fair Work commissioners engage in blatant public political partisanship, then the code of conduct is not worth the paper it is written on.

What confidence can the public have that Dr Harcourt is acting in its best interests and not in the partisan interests of Mr Shorten and the Labor Party? And yet Dr Harcourt believes that such criticisms are 'part of a campaign to undermine the commission'. If Dr Harcourt wants to identify the cause of the commission's woes, he should look no further than to the very minister who appointed him, Mr Shorten.

The reality is that we would not be in this mess had Mr Shorten done his due diligence and not rushed the appointments at the eleventh hour before the caretaker period. The expert panel is presently invalid and the default superannuation funds review has stalled—all because Mr Shorten was too hasty to act in his own political interests rather than in the interests of Australian workers. Mr Shorten's ham-fisted attempt to stack the Fair Work Commission has disrupted a $9 billion industry. He has treated the Fair Work Commission and this process like a Victorian branch of the ALP. This expert panel has simply been a debacle. And apropos Justice Ross's memo, can I suggest that the best way to silence criticism of the Fair Work Commission is for it to be above reproach.