Tuesday, 28 November 2023
Conference with the Senate
I have received the following message from the Senate:
The Senate requests a conference with the House of Representatives on the following bills transmitted to the House of Representatives for concurrence:
Fair Work Legislation Amendment (Small Business Redundancy Exemption) Bill 2023;
Fair Work Legislation Amendment (Strengthening Protections Against Discrimination) Bill 2023;
Fair Work Legislation Amendment (Asbestos Safety and Eradication Agency) Bill 2023; and
Fair Work Legislation Amendment (First Responders) Bill 2023.
That the message from the Senate be considered immediately.
I will explain to the House what is at stake here. Members of the House might recollect that approximately two weeks ago four bills were passed by the Senate. Those bills were the subject of a message which came to this House requesting that the House then deal with those bills. Indeed, on the document circulated by the Leader of the House—the blue—it was set out that the government intended to move that all of them be made an order of the day for the next sitting, with the result that they would have ended up on the Notice Paper.
That would have been the ordinary process. That would have been the ordinary thing that would have happened, consistent with the appropriate sharing of responsibilities between the two houses of the Australian parliament.
But that did not happen, because we saw from the Leader of the House a concerted attempt to drive those four bills into limbo so that they'd never be considered again. We saw the ludicrous spectacle, in respect of at least a couple of those bills, of the Leader of the House engaging in a go-slow. He sat on his hands and refused to stand and move that the message be dealt with or that the bills be made an order of the day. This of course is a very serious matter, because it means that in effect the House, under this government, is essentially thumbing its nose at the Senate. It's effectively saying to the Senate, 'Well, you may have passed four bills, but we're going to do nothing about it.'
We heard a series of convoluted excuses from the Leader of the House as to why this occurred—liberal attempts to share the blame and allocate responsibility to everybody except himself. But the consequence of the course of action settled upon by the Leader of the House and by the government is that the four bills that passed the Senate are not on the Notice Paper in this House of Representatives and have effectively fallen off the edge of the Earth as far as this government is concerned.
This raises very serious questions about the relationship between the two houses in our parliament. There is a set of arrangements under which bills move back and forth between the two houses so that legislation can be appropriately dealt with on behalf of the people of Australia. The Leader of the House is hopelessly conflicted on this issue, because in addition to his position as Leader of the House he is also the minister with responsibility for carriage of what is laughably described as the 'closing loopholes' bill—which might be better described as 'extraordinary expansion of the rights and powers of unions' bill. Because of that, he is personally violently opposed to the legislative strategy that had been arrived at by the Senate and particularly under the leadership of Senators Pocock and Lambie. And I do want to acknowledge their leadership, because those two senators took a view as to how the interests of the Australian people and the interests of working people would be served regarding the four matters that were contained within the broader multi-hundred-page 'closing loopholes' bill that was introduced into the parliament by the minister—which contains, as it does, many matters that are incredibly contentious and are, in the view of objective commentators such as economists, business people and others, calculated to damage Australia's productivity, to mount a sustained attack on the whole notion of casual employment, to put millions of Australians in the position that the choice they've made to work as casuals and therefore receive a very significant loading and, in exchange for that, not have some of the other rights that attach to full-time work is under threat. That is all under threat because of this minister's extraordinary legislative ambition. I suggest to the House that there has also been an approach to this matter by the Leader of the House that is motivated by a desire to do whatever he can to prevent any threat to his bill's being considered in the way that he wants it to be considered.
The strategy that was arrived at by Senators Lambie and Pocock and which was supported by a majority of senators in the other place was to say, 'Let us, in the interests of the Australian people and in the interests of working people, identify matters within this multi-hundred-page bill brought forward by the minister which are not contentious, matters which are supported by all sides in this parliament.'
Based upon that strategy, the two senators introduced private senators' bills—which were supported by a majority of senators—dealing with such matters as a rebuttable presumption that post-traumatic stress disorder suffered by selected first responders was contributed to by their employment. That was the first matter that was the subject of one of those bills. The next matter was measures to ensure that employees do not miss out on redundancy payments merely because their employer became a small business as a result of an insolvency procedure. The third matter dealt with the operation of antidiscrimination laws and adding to protect attributes of the discrimination-in-employment experience of family and domestic violence. The fourth matter was to expand the functions of the Asbestos Safety and Eradication Agency. The two senators introduced four private senators' bills, addressing in turn each of those four issues. Those bills were passed by the Senate. A message then came, in the ordinary way, from the Senate to the House, requesting that the House deal with these bills.
The House has failed to deal with these bills. They're not on the Notice Paper. They appear to have disappeared. It is not at all surprising that the Senate is deeply troubled by that. That is the genesis of the request that has now arrived in the form of a message from the Senate to the House, requesting a conference. This is a procedure that is contemplated in the standing orders. It's not been used very often at all, but a majority of senators have arrived at the view and passed a motion today to the effect that, given the extraordinary lack of engagement by this parliament, by this chamber under the leadership of the Leader of the House, with the four messages that came from the Senate a couple of weeks ago asking the House to engage in relation to those four bills, there ought now be, as a next step, a conference held between the House and the Senate so that the status of these four bills can be agreed and so that a constructive way forward can be found.
Again I make the point that the underlying objective that the Senate—or that majority of senators that passed this motion—is seeking to achieve is in the interests of the Australian people, in the interests of working people, to be able to move forward in an expeditious fashion, reaching agreement in relation to those four matters which have already been passed by the Senate and in the ordinary course would have been dealt with by this House. But we saw the extraordinary spectacle a couple of weeks ago with the Leader of the House essentially refusing to engage, even though, on the blue circulated that day, it was documented that it was the government's intention to move that each of these bills be made an order of the day for the next sitting. Despite that being the intention of the Leader of the House at the time that that document was finalised and circulated to all members, at some point a few hours later he refused to do that.
Since then there has been a matter of complete inaction on the part of this government as to what it intends to do in relation to those four bills. They're essentially doing nothing. It's a go-slow in the traditions of the union movement, who are, of course, the paymasters of the Labor Party.
The Senate is simply saying to the House, it would seem, with this request: 'Let's sit down and sensibly work out what we'll do next. Let us use the procedures in the standing orders for a conference between the House and the Senate so that this matter can be addressed.' That would be instead of the ludicrous position being maintained by the government—that these bills have somehow disappeared, that these bills are not on the Notice Paper. We will hear all kinds of excuses, I have no doubt. I confidently predict we will hear all kinds of excuses from the Leader of the House as to why we are unable to deal with this matter. But, on this side of the House, what we say is that we ought to engage constructively. We stand prepared to engage constructively. I call on the crossbench and, indeed, I call on the government, quite frankly, to engage constructively. We have an opportunity to move with alacrity to get these matters dealt with. The Senate already provided an opportunity a couple of weeks ago. The government refused to engage. We will hear all kinds of technical arguments as to why. We'll hear that it's beyond the control of the Leader of the House. It is nonsense. Clearly if there was the will this matter could be resolved very quickly.
The fact that the Senate has found it necessary to request this conference is, I think, an indicator of the seriousness of what has occurred here and the seriousness of the fact that the government and the Leader of the House have chosen to play games and to essentially refuse to engage with bills which have passed the Senate and which have been the subject of a message from the Senate. There are well-established protocols as to how this is dealt with. Right now, the government is simply folding its arms and saying: 'We're not going to deal with it. We're not going to do anything.' That is completely inappropriate. It is completely inconsistent with the framework of mutual respect that must operate between the two houses if the parliament is to do its work on behalf of the Australian people. The Senate, by moving this motion which has passed the Senate calling on this House to agree to a conference, is saying, 'Let us engage sensibly on these matters.' On this side of the House, we think that does make sense.
That is why I have moved that this message be considered immediately. If that motion succeeds, I will then very constructively be moving a motion which would set out a way forward. What we believe that could involve is a conference of 12 delegates. The House would be represented at the conference by 12 delegates, four nominated by the Leader of the House, four nominated by the Manager of Opposition Business and four drawn from the crossbench, nominated by the Chief Opposition Whip. So we are engaging constructively with the Senate, and we call on the government to engage constructively with the Senate so that we can take seriously our responsibilities in this House.
I close with this proposition. It is completely unacceptable for the House, under the leadership of this government and this Leader of the House, to simply seek to wash its hands of the matter and not engage with bills which have been passed by the Senate. It's unprecedented. The action taken by the Senate to call for a conference is one way forward, and we support it. (Time expired)
I second the motion. Desperate times call for desperate measures. I referred to the Practice on the issue of conferences and I believe this is only the third time that the issue of a conference has come up in this place. Those of you who may be watching or listening at home may be wondering, 'What is a conference?' The standing orders of both the House and Senate provide for the holding of conferences between the two houses.
According to House of Representatives Practice:
Grounds for conferences are not restricted to resolving disagreements between the Houses over legislation, but to date formal conferences of delegates or managers representing the two Houses have been used only for this purpose.
We're making law here today, effectively. Prior to today:
Only two such conferences have ever been held, and it seems unlikely that a formal conference would be used to resolve disagreements between the Houses in contemporary political circumstances.
There you go. That's going to have to be rewritten, isn't it?
We're here because Senators Pocock and Lambie have successfully moved a motion in the Senate, and the Senate has officially sent a message to the House requesting a particular action to be taken—namely, the holding of a conference. On behalf of the opposition I'd like to thank Senators Pocock and Lambie for their work, for their leadership on this point. The message from the Senate has now been received, and it's now up to the House to decide when to consider this message. The question of 'when' is now before the House. After the question of when the House ought to consider the message is resolved, a motion could be moved to give effect to the message's request—namely, that the conference be convened between the two chambers of this parliament.
As I said, this is an extraordinary step. The opposition has not moved this motion lightly. Motions of this kind, as I said, are very rare. The only time the Senate has requested a conference was 22 June 1950, when the Senate resolved to request a conference with the House on an amendment by the House to a bill that had originated in the Senate. As it eventuated then, the House did not agree to the request for a conference. I'm not sure whether the Leader of the House was in the House back in 1950—similar tactics? But in the life of the House there have been few times that the House itself has requested a conference with the Senate and fewer times still that one has been agreed.
According to Practice, the last time there was a conference or joint sitting of this kind—there's some vagueness about this—was 2001. At that time, parliamentarians met to mark the centenary of the first meetings of the houses of the Commonwealth parliament in 1901. So these conferences and the motions that give effect to them are rare occurrences, and they should be treated carefully.
As is evident by the motion, negotiations between the government and other members and senators have broken down on the legislation noted in the Senate's message—indeed, broken down to such an extent that the Senate has felt compelled to make this extraordinary request of the House. This is regrettable. At every step along the way the Leader of the House has tried to block scrutiny of his own industrial relations legislation. Members would recall that the opposition initially moved, some months ago, to subject this bill to an advisory report. The government voted this motion down, because they were afraid of what dirty deals would be uncovered in their omnibus fair work amendment.
I'll take the caution from the Leader of the House. The pattern of behaviour by the Leader of the House in trampling on the proper procedures and processes of this place has now extended to the conduct of the fair work amendments consideration-in-detail stage. Last week the Leader of the House moved a motion for the suspension of standing orders crunching down time for debate such that the opposition would have only 20 minutes to debate detailed government amendments. This is a Leader of the House who, I recall, would come in here when he was Manager of Opposition Business and complain bitterly about the former government guillotining debate. This is a Leader of the House who, when he was Manager of Opposition Business, constantly complained about that and said that he wouldn't be doing that when he was in government. But, lo and behold, here we are.
These amendments will come on for debate later this afternoon, as I'm told, which only highlights the urgent need for a conference and for this motion to pass. It is the height of hypocrisy from the Leader of the House, who made grand statements before the election wanting to fix how this chamber would operate, to then, once in power, do the very opposite.
The consultative approach that we have applied to the Parliament itself and to the way we have governed is of itself not just a difference in the way Government functions.
If the minister truly believes in what he said then, then he would vote for this motion, which is all about ensuring that we establish between the two houses of this parliament a conference to resolve the intractable problems senators and members share with respect to elements of the government's latest fair work amendment.
This meeting, between the chambers of the parliament, would be a multipartisan forum. It would see members and senators come together to consult on how to overcome the government's stubborn refusal to consider commonsense legislation. Critically, it would allow members and senators time to examine in detail the amendments that were tabled by the Leader of the House just before 1.30 pm today. We could see, for example, how these amendments align with those noted in the Senate's message, but these government amendments, I remind the House, are subject to a guillotine motion.
The fact that a conference hasn't happened in decades reflects how poorly the government has managed the legislative process around its own industrial relations agenda. It is indeed a rare event when any members move such a motion to enable a conference, but the actions of the Leader of the House has forced the hand of the Senate and, indeed, has forced the hand of the opposition. To this, I urge all members to support our colleagues in the Senate, particularly Senators Lambie and Pocock, and support this motion.
I'd like to remind members in this place that in September the government introduced a new omnibus workplace relations bill to the parliament. I note the omnibus bill is presently the subject of a Senate inquiry that will report on 1 February 2024. Across the economy, stakeholders have justifiably condemned most of the provisions in this fair work amendment. A more sensible option, originating in the Senate, was presented to the government. The four areas from the original omnibus bill, which have been split out by the crossbench, should never have been part of the original bill. I note the House previously dealt with this proposition.
The bills mentioned in the Senate's message to the House seek uncontroversial changes that should be implemented as quickly as possible. Major business groups, including the BCA, ACCI, AiG and COSBOA, all support these parts of the omnibus bill and support them being split out and dealt with immediately. They've been very public in this regard.
This was a test for the government, and the government failed. There was no credible reason for the government to argue against passing these bills. These bills were drawn word for word from the proposed legislation in the Albanese government's so-called closing the loopholes bill. These measures should never have been part of that omnibus bill, but we all know why the minister included these measures in his controversial bill—it was a cynical exercise by the minister to give this government cover for trying to rush its wider controversial legislation through the parliament.
It is disgraceful to use the issue of PTSD in this nation's first responders as a reason for trying to ram through the loopholes bill this year. It is also disgraceful to use changes related to silica diseases, the discrimination of people suffering family or domestic violence, or using redundancy payments for the same reason—but we have the opportunity to move forward quickly with these important and uncontroversial changes by passing the government's own legislation.
Now, in the seconds left, I would like to speak very quickly about the importance of the first responders' bill. The bill introduces a rebuttable presumption that post-traumatic stress disorder suffered by selected first responders was contributed to to a significant degree by their employment. This change will simplify— (Time expired)
Before I deal with issues of incompetence from the Manager of Opposition Business, I want to refer, very directly, to some comments that were just made, because I've heard them before and I just challenge people who want to make that argument, that somehow we have used PTSD or used family and domestic violence as cover.
Name one occasion when we have not defended this bill on its merits, including on wage theft, on casuals, on gig economy and on the labour hire loophole. Name one occasion when we haven't argued it from those exact perspectives.
It is beneath contempt—a disgusting thing to do, an allegation you will never find in my parliamentary career that I've made against people opposite. For that to be alleged now is disgusting and beneath contempt. Remember question time yesterday, when your leader had the good sense to pull back when an allegation similar to that was made. Think about that, and deal with this bill on its merits, as we have. It has been said in the debate that we've just had: 'Why is it that this has come from the Senate in this particular form, in a way that hasn't been used for so many years since 1950 and has only been used two times previously?' The answer is this. The answer is the incompetence of the Manager of Opposition Business. If you read the standing orders of the Senate—
Standing orders are books like this. It's actually part of your job. If you read the standing orders of the Senate, here's what you'll find. The only time a conference can be used—
The Leader of the House will pause. The member for Barker is not interjecting from his seat, for starters, and the Manager of Opposition Business cannot continue this continual interjection. This is a debate. It will not continue; otherwise, action will be taken.
If the bill is in the possession of the House, this process can't be used. On any other occasion, when a private member's bill reaches this House, a private member stands up and takes control of it. That's what ordinarily happens. What's on the blue there? There is a whole lot on the blue that gets referred to by members, some of which says, 'Debate will be adjourned.' Most of the time, the adjournment is done by an opposition member. That's what ordinarily happens. Similarly, when a private member's bill happens, the resolution that it be made an order of the day can be moved by a government member or an opposition member. There is no requirement that, because it appears on the blue, it somehow becomes the responsibility of the government to do it. The leader of the Greens party managed to follow procedure in previous terms and, as a result of following procedure, actually did the full second reading on a private member's bill that had come across from the Senate. He did a full private member's bill—I don't know if you're washing your hands or something. Are you trying to get hold of—in COVID days, we all had to do that as we walked in.
The Manager of Opposition Business was told by the Speaker what he had to move. But he was too smart! He knew better! He had four different occasions. The first time, I did move it for him, and he filibustered to stop it from coming to a vote. That's why the first one wasn't on the Notice Paper. For the second one, he never did anything. For the third one, he'd been told by the Speaker what to do, and he refused to. For the fourth, he refused again. That is the only reason this method is open to the Senate. Otherwise, the bills would be in the possession of the House.
But I'll tell you what is going on here. Have a think about what we just heard as to which organisations are publicly in favour of just getting these bits through and forgetting about the rest of the bill. They are all organisations that have members that are using the loopholes to undercut wages—every single one of them. Name one workers organisation that is actually arguing for this. Name one. There's no workers organisation calling for this, including the ones affected most by PTSD, like the Australian Federal Police Association. They are not calling for this action. So why do you think it might be that only those people who want to drive wages down, who are paid by their members to keep their wages bill low, are the ones who say, 'We'll just pull these parts out'?
I am very proud to say that no member of the Labor Party, no government MP in this place or the other place, has moved for a single part of this bill to be delayed—not one! But for those opposite right now to be going through the charade of this, where they say, 'If they get to deal with it, their plan is to pretend that the numbers in this chamber are a third, a third, a third'—that's what we're told the numbers will be on the resolution if this motion to deal with it immediately is successful. That's what the Manager of Opposition Business says he will move. He's not even trying to take it seriously.
I've got to say: we've had quotes from Practice but they always stop at the critical thing. Practice also says it seems unlikely that a formal conference would be used to resolve disagreements between the houses in contemporary political circumstances. Practice makes clear that this process is not a way of resolving differences between the houses. This is not a practical way of dealing with differences between the houses. But this game is a game those opposite played for nine years and want to continue to play now—a game of, 'Let's do everything we can to delay fixing underpayments for Australia's workers.' They might have continued to get away with that in a House of Representatives where we had a government where low-wage growth was a deliberate design feature of their economic management, but that's not the case anymore.
Let's make clear that the delay they originally sought on when we would debate this bill and get through it in the House of Representatives was for a date that has already passed. The government has already given more time for this bill than those opposite sought when it was first introduced, when we had those votes to say how long it could be delayed. We have allowed the full length of time plus more before this bill comes to the stages of amendments. But the time we have set aside for amendments has been wasted by the charade and the procedural game of the Manager of Opposition Business—a procedural game which is only available to him because he has demonstrated a level of laziness and sheer incompetence that knocks all his predecessors from each side of politics out of the park. No-one comes close. No-one before has ever failed the simple test of: 'Can you say the words out loud to put a bill on the Notice Paper?' Even when told by the Speaker, 'These are the words you need to say out loud; you need to read them out one at a time and say them into a microphone', this Manager of Opposition Business can't handle that. Please! I don't know who decided that he got the job but can you at least give me someone I can argue with. Can you at least give me somebody who knows there's a big book called Practice, there's a little book called Standing orders and there are procedures that the parliament is meant to follow, and then we can have a debate on the issues. This incompetence is like nothing we've ever seen.
It never occurred to me for a minute when I came in here, when we were receiving those messages from the Senate on the private member's bills, that none of them would end up on the Notice Paper. It never occurred to me that the Manager of Opposition Business would think it was clever to filibuster his own amendment and prevent it from coming to a vote. It never occurred to me that someone could either be that ignorant, that lazy or that plain stupid to have an opportunity come across from the Senate and say, 'Yeah, I'm just going to not let it happen, and then I'll complain about it; that'll be my strategy.' The strategy that this parliament should have is to get wages moving. The strategy this parliament should have is to end underpayments, to criminalise wage theft, to give minimum standards to gig workers, to give rights to casual workers and to make sure that the labour hire loophole is closed so that people with the same experience and same expertise working side-by-side aren't on different rates of pay because of a labour hire rort and a labour hire loophole. With that in mind, once we've dealt with this we can deal with the bill at hand. I move:
That the question be now put.
A division having been called and the bells being rung—