ATTORNEY-GENERAL'S PORTFOLIO

In Attendance

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

Senator Duniam, Assistant Minister for Forestry and Fisheries and Assistant Minister for Industry Development

Attorney-General's Department

Secretary

Mr Iain Anderson, Acting Secretary

Deputy Secretary

Mr Martin Hehir, Deputy Secretary, Industrial Relations Group

Employee Entitlement Safeguards and Policy

Ms Ashleigh Saint, Acting First Assistant Secretary, Employee Entitlement Safeguards and Policy Division

Mr Stephen Still, Assistant Secretary, Fair Entitlement Safeguards and Policy Division

Mr Henry Carr, Assistant Secretary, Recovery and Litigation Branch

Ms Laura Marson, Acting Assistant Secretary, Workplace Compliance and Enforcement Policy Branch

Sue Saunders, Assistant Secretary, Fair Entitlements Guarantee Claims Branch

Safety and Industry Policy Division

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

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

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

Mr David Cains, Assistant Secretary, Safety and Compensation Policy Branch

Industrial Relations Legal

Mrs Janey Kuzma, First Assistant Secretary

Mrs Rachel Volzke, Assistant Secretary, Safety, Compensation and Institutions Branch

Mrs Kelly Hoffmeister, Assistant Secretary, Bargaining and Coverage Branch

Ms Joanna Williams, Acting Assistant Secretary, Employment Standards and Organisations Branch

Employee Conditions Division

Ms Alison Durbin, First Assistant Secretary Employment Conditions Division

Ms Lace Wang, Branch Manager Safety Net Branch

Mr Adrian Breen, Branch Manager Economics and International Labour Branch

Mr Henry Jones, Branch Manager JobKeeper Protections and Usability Branch

IR Secretariat Division

Ms Sharon Huender, Acting First Assistant Secretary, IR Secretariat Division

Mr Timothy Johnson, Acting Assistant Secretary, IR Strategy Branch

INDUSTRIAL RELATIONS PORTFOLIO AGENCIES

Safe Work Australia

Ms Michelle Baxter, Chief Executive Officer

Ms Sarah Costelloe, Acting Deputy Chief Executive Officer

Ms Meredith Bryant, Branch Head, Evidence and Strategic Policy

Ms Katherine Taylor, Acting Branch Head, Corporate, Workers' Compensation and Psychosocial Policy

Ms Sinead McHugh, Senior Government Lawyer

Comcare

Ms Susan Weston PSM, Chief Executive Officer

Mr Aaron Hughes, General Manager, Claims Management

Mr Matthew Swainson, General Manager, Legal Group

Ms Vanessa Graham, Chief Operating Officer, Corporate Group

Ms Bev Smith, Acting Senior Director National Operations, Regulatory Operations Group

Mr Justin Napier, General Manager, Regulatory Operations Group [by video link]

Mr Michael Duke, General Manager, Scheme Management [by video link]

Mr Natalie Bekis, General Manager, Strategic Partnerships and Engagement [by video link]

Fair Work Ombudsman

Ms Sandra Parker PSM, Fair Work Ombudsman

Ms Kristen Hannah, Deputy Fair Work Ombudsman

Mr Mark Scully, Deputy Fair Work Ombudsman

Mr Michael Campbell, Deputy Fair Work Ombudsman

Mr Jeremy O'Sullivan, Chief Counsel

Mr Stephen Ronson, Executive Director Enforcement

Mr Anthony Fogarty, Executive Director Policy

Ms Janine Dennis, Executive Director Legal

Mr Russell Thackeray, Chief Financial Officer [by video link]

Ms Antonia Parkes, Executive Director Compliance [by video link]

Ms Louise Peters, Executive Director Engagement [by video link]

Nicky Chaffer, Executive Director, Strategic Communication and Education [by video link]

Fair Work Commission

Mr Murray Furlong, Acting General Manager

Ms Ailsa Carruthers, Executive Director, Client Services Delivery Branch

Mr Jack Lambalk, Manager (CFO), Finance and Resources, Corporate Services Branch

Ms Catherine Luby, Acting Executive Director, Tribunal Services Branch

Registered Organisations Commission

Mr Mark Bielecki, Registered Organisations Commissioner

Mr Chris Enright, Executive Director

Asbestos Safety and Eradication Agency

Ms Justine Ross, Chief Executive Officer

Ms Julia Collins, Director

Coal Mining Industry (Long Service Leave Funding) Corporation

Ms Darlene Perks, Chief Executive Officer

Mr Peter Kembrey, General Manager Legal

Australian Building and Construction Commission

Mr Stephen McBurney, Commissioner

Mr Matt Kelleher, Deputy Commissioner Legal

Ms Jill Jepson, Deputy Commissioner Operations

Mr Cliff Pettit, Deputy Commissioner Corporate [by video link]

Ms Janine Drennan, National Manager Building Code [by video link]

Mr Murray Gregor, Executive Director Operations [by video link]

Committee met at 08:59

CHAIR ( Senator McGrath ): I declare open this meeting of the Education and Employment Legislation Committee on Wednesday, 24 March 2021. The Senate has referred to the committee the particulars of proposed expenditure for 2020-21 and certain other documents for the following portfolios: Education, Skills and Employment, including Industrial Relations; and Industry, Science, Energy and Resources, excluding Industry, Science, Energy and Resources but 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 on notice will be required to be returned by close of business on Friday, 7 May. The committee has resolved that written questions on notice should be received by senators by close of business on Thursday, 1 April. Under standing order 26 the committee must take all evidence in public session. This includes answers to questions 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 that are seeking funds in the estimates are relevant questions for the purposes 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 the discretion to withhold details or explanations from the parliament or its committees unless the parliament has expressly provided otherwise.

The Senate has resolved 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 to the attention to witnesses 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 the requirements of the 2009 order. Instead, witnesses are required to provide specific indication of the harm to the public interest that could result from a disclosure of the information or the document.

Senators, departments and agencies have been provided with advice on the arrangements in place to ensure that the additional estimates 2020-21 are conducted in a safe environment. This guidance is also available from the secretariat. The committee appreciates the cooperation of all attendees in adhering to these arrangements. Today the committee's focus will be on industrial relations matters under the responsibility of the Attorney-General's Department, and small business matters under the responsibility of the Department of Industry, Science, Energy and Resources.