ATTORNEY-GENERAL'S PORTFOLIO

In Attendance

Senator Cash, Minister for Employment, Skills, Small and Family Business

Senator Payne, Minister for Defence

M r Chris Moraitis PSM, Secretary

Mr Martin Hehir, Deputy Secretary, Industrial Relations Group

Employee Entitlement Safeguards and Policy (former ly Industrial Relations Program )

Mr Greg Manning, First Assistant Secretary, Employee Entitlement Safeguards and Policy Division

Mr Mike Burns, Acting Assistant Secretary, Fair Entitlements Guarantee Branch

Mr Henry Carr, Assistant Secretary, Recovery and Litigation Branch

Ms Ashleigh Saint, Assistant Secretary, Workplace Compliance and Enforcement Policy Branch

Safety and Industry Policy Division (former ly Work Health and Safety Policy)

Ms Jody Anderson, First Assistant Secretary, Safety and Industry Policy Division

Mr David Denney, Federal Safety Commissioner, Office of the Federal Safety Commissioner

Mr David Cains, Assistant Secretary, Safety and Compensation Branch

Ms Jane Heffernan, Acting Assistant Secretary, Bargaining and Industry Policy Branch

Ms Rebecca Carpenter, Assistant Secretary, Bargaining and Industry Policy Branch

Industrial Relations Legal

Ms Janey Kuzma, First Assistant Secretary, Industrial Relations Legal Division

Ms Kelly Hoffmeister, Assistant Secretary, Bargaining and Coverage Branch

Mr Ben Mason, Assistant Secretary, Safety, Safety Compensation and Institutions Branch

Ms Rachel Volzke, Assistant Secretary, Employment Standards Branch

Employee Conditions Division (former ly Industrial Relations Policy)

Ms Alison Durbin, First Assistant Secretary, Employee Conditions Division

Ms Sharon Huender, Assistant Secretary, Indus trial Relations Strategy Branch

Ms Lace Wang, Assista nt Secretary, Safety Net Branch

Mr Adrian Breen, Assistant Secretary, Economics and International Labour Branch

INDUSTRI AL RELATIONS PORTFOLIO AGENCIES

Asbestos Safety and Eradication Agency

Ms Justine Ross, Chief Executive Officer, Asbestos Safety and Eradication Agency

Ms Julia Collins, Director, Asbestos Safety and Eradication Agency

Australian Building and Construction Commission

Mr Stephen McBurney, Commissioner

Ms Jill Jepson, Deputy Commissioner, Corporate and Code

Mr Clifford Pettit, Deputy Commissioner, Operations

Mr Matt Kelleher, Deputy Commissioner, Legal

Ms Janine Drennan, National Manager, Building Code

Coal Mining Industry (Long Service Leave Funding) Corporation

Ms Darlene Perks, Chief Executive Officer

Mr Peter Kembrey, General Manager, Legal

Comcare

Ms Susan Weston PSM, Chief Executive Officer

Mr Aaron Hughes, General Manager, Claims Management

Mr Justin Napier, General Manager, Regulatory Operations Group

Mr Michael Duke, General Manager, Scheme Management

Ms Natalie Bekis, General Manager, Strategic Partnerships and Engagement

Mr Matthew Swainson, General Manager, Legal Group

Ms Vanessa Graham, Chief Operating Officer, Corporate Group

Mr Anthony Blucher, Senior Director, Regulatory Operations Group

Fair Work Commission

Ms Bernadette O ' Neill, General Manager

Ms Ailsa Carruthers, Executive D irector, Client Services Branch

Mr Jack Lambalk, Acting Executive Direc tor, Corporate Services Branch

Mr Murray Furlong, Exec utive Director Tribunal Service

Fair Work Ombudsman

Ms Sandra Parker PSM, Fair Work Ombudsman

Mr Michael Campbell, Deputy Fair Work Ombudsman

Ms Kristen Hannah, Deputy Fair Work Ombudsman

Mr Mark Scully, Deputy Fair Work Ombudsman

Mr Jeremy O ' Sullivan, Chief Legal Counsel

Ms Janine Dennis, Special Counsel

Mr Russell Thackeray, Chief Finance Officer

Mr Anthony Fogarty, Executive Director, Policy, Analysis , Intelligence and Reporting

Mr Steven Ronson, Executive Director, Proactive Compliance

Ms Lynda McAlary-Smith, Executive Director, Compliance and Enforcement

Regis tered Organisations Commission

Mr Mark Bielecki, Commissioner

Mr Chris Enright, Executive Director

Safe Work Australia

Ms Michelle Baxter, Chief Executive Officer

Ms Amanda Johnston, Branch Manager, Legal Policy

Ms Sarah Costelloe, Branch Manager, Enabling Services

Ms Anthea Raven, Acting Branch Manager, Evidence and Strategic Policy

Ms Bianca Wellington, Acting Branch Manager, Workers ' Compensation and WHS Policy

Ms Jackii Shepherd, Director, Occupational Hygiene

Committee met at 09:02

CHAIR ( Senator McGrath ): I declare open this public hearing of the Education and Employment Legislation Committee on Wednesday 4 March 2020. The Senate has referred to the committee the particulars of proposed expenditure for 2019-20 and certain other documents for employment and industrial relations matters, including small business. The committee may also examine the annual reports of departments and agencies appearing before it. The committee has decided that answers to questions taken on notice will be required to be returned by close of business on Friday 24 April. The committee has resolved that written questions on notice should be received from senators by close of business on Thursday 12 March. Under standing order 26 the committee must take all evidence in public session. This includes answers to questions taken on notice. I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. The Senate by resolution in 1999 endorsed the following test of relevance for questions at estimates hearings:

Any questions going to the operations or financial positions of the departments and agencies which are seeking funds in the estimates are relevant questions for the purpose of estimates hearings.

I remind officers that the Senate has resolved that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations from the parliament or its committees unless the parliament has expressly provided otherwise. The Senate has resolved also that an officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. I particularly draw the attention of witnesses to an order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised.

The extract read as follows—

Public interest immunity claims

That the Senate—

(a) notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate;

(b) reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate;

(c) orders that the following operate as an order of continuing effect:

(1) If:

(a) a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and

(b) an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee, the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.

(2) If, after receiving the officer's statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.

(3) If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.

(4) A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.

(5) If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.

(6) A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.

(7) A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (1) or (4).

(8) If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3).

(d) requires the Procedure Committee to review the operation of this order and report to the Senate by 20 August 2009.

(13 May 2009 J.1941)

(Extract, Senate Standing Orders)

CHAIR: Witnesses are specifically reminded that a statement that information or a document is confidential, or consists of advice to government is not a statement that meets requirements of the 2009 order; instead, witnesses are required to provide some specific indication of the harm to the public interest that could result from the disclosure of the information or the document. Witnesses are asked to keep opening statements brief or to incorporate longer statements into the Hansard.