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Doorstop – Parliament House Canberra



Subjects: IR Reform, Defence Members and Veterans Suicide Prevention Commission; ADF medals

ATTORNEY-GENERAL: Morning everyone. I'll cover the rounds of the grounds, but firstly it is now clear that we will not have the time or necessary agreement at this point to secure passage that would allow the creation of the National Commissioner for Veteran Suicide.

That is very disappointing for the Government. It's particularly disappointing for veterans and for the families of veterans who are not going to see the establishment of what would be a very, very powerful and important body.

I must say, having been part of this process from the beginning, and it is not finished yet, it is, I think, a very poor outcome for veterans; that the Government devises something that has the powers of a Royal Commission, that would be embedded in legislation, in perpetuity, have its financial future secured and anchored in Parliament. I mean, it is, I think, a very fit-for-purpose and important model which would be to the enduring benefit of the veterans' community and their families, and has very strong support from key stakeholders, but we have not, at this point, been able to secure passage for that legislation and the creation of that body.

That work will continue over the summer break. Perhaps if we'd had more time, it may have been possible to secure that support but it has been a matter of intense discussions with the crossbench and others. It was disappointing that Labor originally supported that model and withdrew support. However, the Government's commitment to that remains absolutely rock solid and we'll be continuing that work over summer.

We've obviously had the detail being digested of the two IR bills. One of them passed through Parliament yesterday and I think we'll all sit back and wait to see what happens in February, March next year to see what happens with the CFMMEU and a likely de-merger event that will occur.

With respect to the omnibus bill there has been focus on one area and not a lot of focus on other areas, which in my observation would be more important, but, in any event, the Government will keep that dialogue going, continue its discussions with all the parties. I expect that that Bill would be moved to a committee and that the Committee's work will work occur over the summer and that will be detailed and difficult work which the Government will be assisting with any way we can.

QUESTION: Why was it you out yesterday on this rather than the PM as well? Are you the fall guy and you can't get these IR reforms over the line?

ATTORNEY-GENERAL: Well, I'm responsible for the legislation, for the process that helped design the legislation, and it is early days with respect to a Bill like this. And it covers five of the most longstanding problems that exist in the system. The focus has been on four paragraphs on one page so far. But can I tell you, there's going to be plenty in it to keep everyone interested and alert over the next several months as we deal with it.

And it's a process, as I indicated previously, of continuing the dialogue, the discussion, the consultation around the draft through the committee. But the five problems that we're seeking to fix, they can't be left unsolved. If we don't fix these problems in a practical way, we allow barriers to job growth to persist in an economy that desperately needs them removed.

QUESTION: OK, you talk about dialogue though, where was the dialogue on the BOOT with the unions, why did you blindside them, do you accept you blindsided them?

ATTORNEY-GENERAL: Well, I don't accept that at all. Some of the features of the Bill occurred later than others but that particular feature of the Bill was provided to the ACTU in draft. It also went through the formal process which is known as COIL, which is a Minco group that has all of the stakeholders in IR who were consulted in it.

QUESTION: How far out?

ATTORNEY-GENERAL: It was inside the last two weeks but that's not unusual...

QUESTION: You had 150 hours Minister of round tables and you spring that on them. Everyone knew the BOOT was going to be a point of contention. Haven't you made a bit of an error there?

ATTORNEY-GENERAL: No, the process is one that is iterative. It obviously took a long time – 150 hours. It goes on now. But we obviously control the timing of both when solutions to problems are raised or indeed thought of, and some of those are raised and thought later in the process rather on earlier. It's as simple as that.

QUESTION: You talk about four paragraphs on one page, are you preparing to tear up those four paragraphs on that page?

ATTORNEY-GENERAL: No, no we're not, not at all. I don't think they're the most important part of the Bill, I must say.

But nevertheless they are important because they offer an avenue for very distressed businesses where the distress has been caused by COVID to access a provision that has long been in the Fair Work Act and which does some good for those businesses.

So, however, like all of the other parts of the Act, dealing with all of the five problems that we're seeking to solve, we'll listen, we'll talk to people, it'll go through a committee process but we're not going to get into this sort of old 1997 politics. This is going to be a calm, rational discussion which has to serve the best interests of people who need the government to assist in job growth.

QUESTION: Do you concede if you had consulted better or earlier on that, you'd have more of a chance of getting it through?

ATTORNEY-GENERAL: No, I don't, actually. Maybe this is the difference between my game and yours. Some issues you can consult on endlessly and not reach resolution. Ultimately the Government makes decisions about what they think is the best interests of the primary objective here, which is job growth. But as I said yesterday, that doesn't mean that every single sentence in the Bill is going to be the sentence that passes through Parliament. That is rarely ever the case with omnibus bills.

QUESTION: But Minister you're not going to die in a ditch over it are you?

ATTORNEY-GENERAL: Well, I think that we'll have that discussion, and if there are clarifications that people want about those paragraphs, we know what they do legally, but if there are clarifications then we'll listen to their views and submissions on those as will in other areas. And these important areas...

[Journalist interrupts]

ATTORNEY-GENERAL: If I can just finish Andrew's question?

If these other important areas, such as the issue of how you define casuals, which has attached to it a liability to it backwards for business of up to $38 – I mean this is a massive economic issue for Australia. But we'll listen throughout all of this process because some of these problems require fixes which are, legally, quite complicated and we'll always be listening to people's views on them and stress testing them on the way through.

QUESTION: Just on the same issue, there are – on the BOOT, there's two issues. Obviously, the redefining the BOOT that better reflects what it was before the Fair Work Commission decision years ago. There's that one, but there's also the suspension of the BOOT for two years. Is the former...

ATTORNEY-GENERAL: That's not – that's totally misrepresenting what that paragraph does. So, you're right though that the first part is about modifications to the test. So, the BOOT absolutely remains. It's modified with respect to the issue of hypothetical employees about the weighting that's given to the views of the party and about the weighting that is given to non-monetary benefits.

On the other issue, there is an extension of an existing section which allows the Fair Work Commission to approve agreements that don't strictly meet the BOOT in very limited circumstances.

QUESTION: Okay. Well, ...journalistic-ease ...that suspension of the BOOT for...

ATTORNEY-GENERAL: The journal-ease has to be right though... it's just not correct. It's not a suspension.

QUESTION: Okay. Fine. Okay. But is the former more important than the latter?

ATTORNEY-GENERAL: The issue of the modifications to the actual test? Without question it is. Without question it is.

QUESTION: Why did you draft that provision with nothing that limits it to very distressed businesses? And is that the sort of amendment that you're going to be looking at to to limit the operation of it?

ATTORNEY-GENERAL: The drafting of it would always be limited to very distressed businesses. Absolutely it would.

QUESTION: But there's nothing in the Act that reflects that, and it changes the test from exceptional circumstances to appropriate in all the circumstances.

ATTORNEY-GENERAL: Well, this is like the issue that was raised yesterday, that the existing language of exceptional exists, and then the comparison was with respect to the new language – and the idea was put that somehow a business that was doing well because of COVID could make an application. It is absolutely absurd. Just as it would be absurd to suggest that with the existing language of exceptional, that businesses have made application under this section when they were doing exceptionally well. I mean it's ridiculous. Absolutely ridiculous.

QUESTION: Can you put a turnover testing there? Could you put a turnover test in?

ATTORNEY-GENERAL: I think that a turnover test would be totally, you know, unworkable. But in these circumstances where all parties would have to agree; where the business would have to be impacted by COVID, obviously in a negative way; and where the Fair Work Commission would have to determine that, in those circumstances, it was not against the public interest to have a modification to an Award provision, they would be a tiny handful of cases, they would be a tiny handful of cases.

QUESTION: Whose brainwave was this? And what makes you so confident it will be applied to non-monetary conditions, rather than also cutting take home pay?

ATTORNEY-GENERAL: Well, the history of the application of Section 189 is that it has been overwhelmingly used, in the rare cases that it is used, with non-monetary conditions – overwhelmingly.

QUESTION: But it's a completely different test now. How can you rely on the way this section has been used in the past to...

ATTORNEY-GENERAL: That interpretation, that interpretation is not correct. It's not a completely different test; not at all. The parties have to agree – that is unions, employers, employees, obviously the business. They have to make submissions. There has to be evidence. There has to be a negative impact showing distress for the business by virtue of COVID. And the Fair Work Commission, just as in the existing test, has to be absolutely assured that any variation they make is not contrary to the public interest.

Now, the idea that you're running, which is the same idea that a few Members in the Labor Party have put, that that would have wide application is just legally wrong.

QUESTION: May I just ask on the vet suicide in terms of the Commissioner? What happens now? So, it's the last day of Parliament, what can we expect now into next year? What's going to happen?

ATTORNEY-GENERAL: Well, we're finalising our advice and views on that, but we very much want the good work of Dr Bernadette Boss and the team that she has around her to continue while we are garnering support for the passage of the bill early next year. And the whole point – I think one of the great virtues of the model that we put up was that it had a statutory ongoing basis, so its funding was always guaranteed, unlike a Royal Commission, which relies on executive funding.

But we will seek and receive advice as to how we can ensure, in this interim period that Dr Boss' work goes on. And that's very important preliminary and preparatory work, and some of it's quite substantial in terms of the issues that she's dealing with. But we very much don't want veterans to be left over the summer period without someone working in their best interest.

QUESTION: But how does that work if your – what if it doesn't pass? Or that you can't legislate it? You want her work to continue? Won't that just be work that is for nothing? And what about her compensation and so on?

ATTORNEY-GENERAL: Her work is not merely about preparing the way for the passage of the legislation. There's a substantive component to her work in anticipation that legislation is passed, which is what's been happening so far. It's a very fair and good question, and the fact is that we want her work to go on, but we have to work out exactly, based on advice, we can ensure that that happens. But we are committed to that happening.

QUESTION: Are you any more inclined towards a Royal Commission now that - the way this week's gone?

ATTORNEY-GENERAL: That is not the Government's policy. We are committed to this model because we think it is a superior approach and in the better interests of the people it is meant to serve than a Royal Commission. It's not time-bound, it can do everything that a Royal Commission does except it goes on in perpetuity. So, it can look into the past, it can prepare and make policy changes for the future. In our view, it is a far superior option. I'd say it's very disappointing that the Labor Party seemed to agree with that view and then no longer agree with that view. But that's the world that we live in. Our job now is to convince the key crossbenchers of what we consider to be the case that this is a superior model that better serves the interests of the veteran community.

QUESTION: The crossbench also – the crossbench also wants a Royal Commission though, so is the legislation ever going to pass?

ATTORNEY-GENERAL: Well, that is something that has to be put to a final test, and unfortunately, that's not going to be put to that issue this week. I believe that the crossbench can be convinced that this is superior model because I genuinely believe it is a superior model.

QUESTION: Why not do both?

ATTORNEY-GENERAL: Well, I think that would be a massive duplication. And why would you have a Royal Commission sitting over the top of a body that has all the powers of the Royal Commission, would be looking into the same circumstances and occurrences that the Royal Commission would over the same period of time, but also has the ability to look forward? The answer is because this is a better model, and we don't want to duplicate any particular part of the better model. It's broader and larger than a Royal Commission and is powerful.

QUESTION: This ADF issue is turning your Government at the moment, isn't it?

ATTORNEY-GENERAL: Well, the ADF issue, first and foremost, I think has to be dealt with as a matter of principle. And one of the first and foremost principles here is that, at this stage, allegations, serious as they are, with respect to a tiny few in the ADF, should not be allowed to besmirch the reputation of the ADF at large, or affect in an unfairly negative way the overwhelming majority of members of the ADF who've served their country so brilliantly. And that should be the defining principle for the responses that occur. But these are circumstances that have not been of the Executive Governments' making, but we will deal with them, in cooperation with the CDF, in a staged, careful process-driven way. But I think that process has to be driven by that principle and an acknowledgement of that principle; that what are now allegations, albeit serious allegations, against a tiny few should not be allowed to affect the reputations and standing of the overwhelming majority of members of the ADF who do such a brilliant job in this country. Last question.

QUESTION: The PM this morning on radio said he understood the point in terms of the criticism against Linda Reynolds for describing the allegations as cold-blooded murder. He understood why that – some would have a problem with that. Do you take the PM's side? Do you think that that was going too far by Minister Reynolds?

ATTORNEY-GENERAL: It's not about taking sides, but I just – I think that, you know, in all, all the consideration of this matter, what we have to note is what, what His Honour Justice Brereton noted himself in his report, is that he was not making findings according to a particular standard. He gave us a report, very thorough, but which talked about the credibility of allegations.

Now, those allegations will go on to the special investigator, which is a bespoke unit created by this Government which will be extremely well resourced and populated with requisite expertise to do the job that comes next, which is investigating. But none of these matters are proved matters.

QUESTION: Where do you stand, though, as a West Australian in close proximity to Swanbourne Barracks, on the notion that the meritorious unit citation should be stripped from the lot – given the logic of, say, Rick Burr, and that is, if we knew then what we knew now they wouldn't have done it in the first place?

ATTORNEY-GENERAL: Well, I think it's not an uncomplicated question, but that principle that I proposed to you earlier, I think, is probably a guiding principle here. But it's clearly a not uncomplicated situation. I think that it just requires some pause and some careful calm consideration which is...

QUESTION: What's your view though?

ATTORNEY-GENERAL: Well, I'm not an expert in these matters, and I would like more time and more information. But my view would be guided with reference to that principle.

Okay, thank you all.