Senate debates

Wednesday, 10 March 2010

Australian Centre for Renewable Energy Bill 2009

In Committee

Bill—by leave—taken as a whole.

10:18 am

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

by leave—I move Australian Greens amendments (1) and (2) on sheet 6057:

(1)    Clause 5, page 3 (after line 30), after subclause (1), insert:

     (1A)    On receiving any advice provided by the Board under subsection (1), the Minister must cause a copy of the advice to be laid before each House of the Parliament within 5 sitting days of that House after the day on which the Minister receives the advice.

(2)    Clauses 26 and 27, page 14 (lines 4 to 18), omit the clauses, substitute:

26  Chief Executive Officer

        (1)    There is to be a Chief Executive Officer of the Australian Centre for Renewable Energy.

        (2)    The Chief Executive Officer is to be appointed on a full-time basis.

        (3)    The Chief Executive Officer is to be appointed by the Governor-General by written instrument.

        (4)    The Chief Executive Officer is appointed for the period specified in his or her instrument of appointment. The period must not exceed 4 years.

Note:   For re-appointment, see subsection 33(4A) of the Acts Interpretation Act 1901.

26A  Duties

        (1)    The Chief Executive Officer is responsible for the day-to-day administration and management of the Australian Centre for Renewable Energy and the control of its operations.

        (2)    The Chief Executive Officer is to act in accordance with any policies determined, and any directions given, by the Board in writing.

        (3)    The Chief Executive Officer has such other duties (if any) not covered by this Act that are determined by the Governor-General.

26B  Delegation

                 The Chief Executive Officer may, in writing, delegate to a member of the staff of the Australian Centre for Renewable Energy all or any of the duties or powers of the Chief Executive Officer, unless the regulations otherwise provide.

26C  Outside employment

                 The Chief Executive Officer must not engage in paid employment outside the duties of the Chief Executive Officer’s office without the Minister’s approval.

26D  Remuneration and allowances

        (1)    The Chief Executive Officer is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Chief Executive Officer is to be paid the remuneration that is prescribed in the regulations.

        (2)    The Chief Executive Officer is to be paid the allowances that are prescribed in the regulations.

        (3)    This section has effect subject to the Remuneration Tribunal Act 1973.

26E  Leave of absence

        (1)    The Chief Executive Officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.

        (2)    The Minister may grant the Chief Executive Officer leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

26F  Resignation

        (1)    The Chief Executive Officer may resign his or her appointment by giving the Governor-General a written resignation.

        (2)    The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

26G  Termination of appointment

        (1)    The Governor-General may terminate the appointment of the Chief Executive Officer for misbehaviour or physical or mental incapacity.

        (2)    The Governor-General may terminate the appointment of the Chief Executive Officer if:

             (a)    the Chief Executive Officer :

                   (i)    becomes bankrupt; or

                  (ii)    applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                 (iii)    compounds with his or her creditors; or

                 (iv)    makes an assignment of his or her remuneration for the benefit of his or her creditors; or

             (b)    the Minister is satisfied that the performance of the Chief Executive Officer has been unsatisfactory; or

             (c)    the Chief Executive Officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 consecutive months; or

             (d)    the Chief Executive Officer engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

             (e)    the Chief Executive Officer fails, without reasonable excuse, to comply with section 13 or 14.

26H  Other terms and conditions

                 The Chief Executive Officer holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor-General.

26I  Acting Chief Executive Officer

Acting Chief Executive Officer

        (1)    The Minister may appoint a person to act as the Chief Executive Officer:

             (a)    during a vacancy in the office of Chief Executive Officer, whether or not an appointment has previously been made to the office; or

             (b)    during any period, or during all periods, when the Chief Executive Officer:

                   (i)    is absent from duty or Australia; or

                  (ii)    is, for any reason, unable to perform the duties of the office.


        (2)    Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

             (a)    the occasion for the appointment had not arisen; or

             (b)    there was a defect or irregularity in connection with the appointment; or

             (c)    the appointment had ceased to have effect; or

             (d)    the occasion to act had not arisen or had ceased.

Note:   See section 33A of the Acts Interpretation Act 1901.

27  Staff

        (1)    The staff of the Australian Centre for Renewable Energy must be persons engaged under the Public Service Act 1999.

        (2)    For the purposes of the Public Service Act 1999:

             (a)    the Chief Executive and the staff of the Australian Centre for Renewable Energy together constitute a Statutory Agency; and

             (b)    the Chief Executive is the Head of that Statutory Agency.

Note:   The Chief Executive may also engage consultants or other persons on behalf of the Commonwealth for the benefit of the Board (see section 44 of the Financial Management and Accountability Act 1997 as it applies in relation to the Australian Centre for Renewable Energy as an Agency).

(3)    Clause 28, page 15 (line 6), omit “or 17”, substitute “, 17, 26C, 26E, 26G or 26I”.

Before I begin discussing the two amendments which I have moved to the Australian Centre for Renewable Energy Bill 2009, I will reply to Senator Carr. In no way did the Greens hold up consideration of this legislation. What we said was that we did not want it to be just waved through as non-controversial legislation when we had amendments that we wanted to discuss. The government could have put this on the Notice Paper at any time in the sittings last year, but it did not do so. You could hardly suggest that the Greens stopped the government putting this on the Notice Paper or bringing it on last year, as the government chose not to do so, so let us dismiss that immediately. It is true it was taken out of ‘non-controversial’ but that is the only thing that occurred and the government could have brought it on and discussed it at any time, so let us not have any nonsense about that.

It is the right of every senator in this place to have a matter that needs to be looked at debated. Given the mess that the government made of the renewable energy target, the mess that they made of the insulation scheme, the mess that they made of green loans and the mess that they made of just about every single one of the renewable energy and energy efficiency initiatives, the Greens, or any opposition member for that matter, would be derelict in their duty if they did not heavily scrutinise what the government want waved through as non-controversial. I note Senator Carr did not respond to my very specific question about whether the interim board would be the board after this legislation has been passed. I do want an answer to that before we deal with these particular amendments.

As I indicated earlier, the first thing that my amendments do is say:

… On receiving any advice provided by the Board under subsection (1), the Minister must cause a copy of the advice to be laid before each House of the Parliament within 5 sitting days of that House after the day on which the Minister receives the advice.

That is purely and simply a transparency measure, saying that this is a supposedly independent board. Given the way it is set up, it is not. You could hardly say it is independent given that the bill provides, in the establishment of the ACRE, that the CEO will be an employee of the Department of Resources, Energy and Tourism under the direct direction of the minister. That is hardly what you would call an independent CEO position. We are saying that we want to see the advice that is given to the minister and the rationale for that advice—so allowing the parliament to scrutinise the government’s decision to see if it is in line with the advice or contrary to the advice and how it has been nuanced or whatever. That is a pure transparency measure. I indicate that I would have moved these amendments separately if I had been able to secure opposition support for either of them. Now that Senator Minchin is in the chamber, I would put again to Senator Minchin that, if it were the opposition’s intent to support the transparency measure at least and not the CEO part of the measures, then I would be quite happy to go back and move them separately so that that could occur. Senator Minchin, I would appreciate your remarks on that before we end this particular process. So that is the first thing.

The second thing is in terms of the chief executive officer. As it currently stands, even though the government says the board will be an independent body under the Minister for Resources and Energy, we know that the CEO is going to be an employee of the department, recommended by the secretary, and the minister will appoint the board. The advice from the board will go to the government in secret and the government will announce its decision. So I hardly think that is independent or transparent and it certainly would give no confidence to anyone in the renewable energy sector that they would ever get to the bottom of how decisions were made and the rationale for why they were made. We believe it is essential that the CEO has independence. That is why we have moved and set down that the chief executive officer be appointed by the Governor-General by written instrument, that the appointment be for a period specified not exceeding four years, that the CEO be responsible for the day-to-day administration and management of the centre, that the CEO not act in accordance with any policies determined or directions given by the board in writing, and the CEO have such other duties not covered by this act that are determined by the Governor-General. Then there are the delegation powers, remuneration, termination of appointment, acting and so on and so forth.

It is very clear that the CEO is to act in accordance with any policies determined and any directions given by the board in writing. If you had an independent board and a CEO who is appointed independently and who takes directions from the board, then you would not get the politicisation and the pork-barrelling that is able to occur in the way the government has set this up.

You might say, ‘Why are the Greens so suspicious?’ It is for the very reasons I set out in my speech on the second reading. The interim board gives me no confidence whatsoever that the people who have been appointed to it have sufficient expertise to make judgments about new renewable energy technologies—and a new concept for the delivery of energy in Australia, delivery of energy in a renewable energy context, in a distributed context, in an intermittent context and in the context of working with Infrastructure Australia to look at intelligent grids. This new field of renewable energy is really exciting and I am heartily disappointed when I look at a list that shows me there is Graham Hunt, Professor Mary O’Kane, John Ryan, Emma Stein, Errol Talbot, Dr John Wright and Drew Clarke. Out of that list there is really only Dr John Wright who has shown any real enthusiasm for renewable energy anywhere in the past.

As I was about to say at the end of my speech on the second reading, if I were one of the renewable energy technologies looking to apply for the $300 million under the scheme that it will be overseeing, I would not have the confidence that I was going to get the sort of hearing or consideration I would want under the Renewable Energy Demonstration Program. That is $300 million worth of funding and, as Senator Wortley read out, the duties of the board are to make decisions and recommendations about this.

I would like to hear specifically from the minister what processes, if the interim board is not to be the board, will be gone through to make sure that we get some leaders from the sector who have real expertise or from educational institutions and whatever who have real insight into the future. I note that Sarah Clough is the Acting CEO of ACRE and that she is currently a branch head in the Department of Resources and Energy and Tourism. This is consistent with the requirements under the government’s legislation that the person who is to be the CEO is to be a member of the department.

It is a critical issue of credibility. The community has every right, as indeed the Greens do, to question the board membership. There is a whole new renewable energy grid in northern Europe. Look across to the US administration and the appointment of people like Steven Chu. The minute President Obama appointed him there was confidence in the energy efficiency sector that there was someone who actually ‘got it’, who understood energy efficiency, who had worked in it, who knew exactly what needed to be done. There was a huge surge in confidence in the sector.

I do not have confidence in this interim board to deliver innovation and excitement for renewable energy. What is more, I am worried that there will be open hostility and competition, because how can you have a person who has been responsible for promoting nuclear energy and another person who got the Prime Minster’s medal for nuclear energy turning around and promoting renewable energy which is in direct competition with nuclear energy? That is the reality here. That is why I want the minister to confirm that the interim board is not to be the board and to indicate to the Senate how they are going to go about finding the right people for the board. I would like to hear an explanation as to what is wrong with requiring the board’s advice to be tabled so that we have transparency. Indeed, if it is supposed to be an independent board, why can we not have an independent CEO of this board?

10:28 am

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | | Hansard source

Can I seek to address some of the matters that Senator Milne has raised. She has asked me to deal specifically with the question of whether the board was appointed on an interim basis or whether it will be the final board. The answer to that is that the interim board is the interim board and there will be a final board. The interim board will not be rolled over as the final board. The interim board includes a range of people of high standing. I do not work on the assumption that people are not of high standing simply because they work for an industry that you do not like.

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

Madam Temporary Chairman, I rise on a point of order. At no stage have I said that these people are not of high standing. What I said is that they are not experts in the field.

Photo of Annette HurleyAnnette Hurley (SA, Australian Labor Party) Share this | | Hansard source

That is not a point of order.

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

I ask the minister to withdraw the implication that I have in some way besmirched these people in terms of being people of high standing, because I have not.

The Temporary Chairman:

There is no point of order.

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | | Hansard source

Senator Milne, I have a fundamentally different approach to these matters than you do. If my language was at times not to your liking, you ought to perhaps wait a little longer and I will give you something to complain about.

The assumption that a minister would make appointments to an interim board on the basis that they are going to cook the result I think is in itself offensive. It is offensive to Minister Martin Ferguson and it is offensive to this government to suggest that the government and a minister in this government would set up an interim board in such a way and, as you said, with a view to having a particular branch of the renewable energy sector excluded—‘set up to fail’ I think were the words you used. What a ridiculous proposition. If you look at the names of the people on the interim board, a reasonable person would immediately see that the minister has sought to ensure that there are a range of skills available and that the government has access to the best advice that it can to ensure the success of this venture—not for it to fail.

These amendments really go to the proposition that you want to establish a statutory authority. There are a range of views about the relative merits of any particular government’s model. The opportunity to get to know officers in the period of office I have been able to enjoy has shown me that there are a wide range of views to meet different circumstances. I do not think any particular model is inherently superior to another, but to suggest that the statutory model is in itself inherently better than any of the other models that have been proposed is equally wrong.

In my direct experience in the portfolio of Innovation I have worked with statutory authorities like the long-established CSIRO. It has an independent culture, as you would put it, but it has a mode of working that is different from other bodies in the Department of Innovation, Industry, Science and Research, such as IP Australia, which is one of the foundation institutions of this federation and has always been part of the Australian Public Service. AusIndustry, which is part of the Australian Public Service, is seen by industry to be a body that delivers services in a highly competent and expert manner. It has the confidence of industry, but of course it is not a statutory authority.

What we are talking about here is the suggestion that somehow or other Australian public servants cannot be independent. That is the allegation that is being made. I find that an offensive remark as well. The Australian Public Service is made up of extremely competent, professional nation builders. They do not get everything right, but in my experience they are highly competent people who provide high-quality advice to government on most occasions. They are professional in their approach.

So what this amounts to here is the different values that you have towards public administration. In my experience trust is critical. I know officers in statutory authorities who have made mistakes, have provided ill-judged advice and have made errors, just as I know that in the Australian Public Service that happens. In our system of government ultimate responsibility for that comes back to the minister. It is the government that has to take ultimate responsibility for the action of officers, whether they be within the Public Service proper or employees of a statutory authority.

When it comes to the appointment of members of the board, the legislation we are considering here states:

… the Minister must ensure:

              …              …              …

(b) to the extent possible—that the members of the Board have, between them, experience in the following areas:

finance, economics, law and project management;
the energy industry and energy markets;
technical development, science or engineering;
administration and program management.

Furthermore, the legislation states that, where the minister gives a direction to the board:

The Board must include in the report—

that is, their annual report to parliament—

details of any written directions given to it by the Minister under subsection 6(1) during the year.

Furthermore, the caveat on the directions in black and white in the legislation are:

The Minister must not give directions about the content of any advice that may be given by the Board.

So there are a whole series of checks and balances in the legislation to preserve the integrity of the advice tendered to the minister by the board. That is the issue here.

If you presume that ‘independence’ means ‘separation from’ then I think, Senator, you are mistaken. If you take ‘independence’ to mean ‘integrity and professional competence’ then we are on common ground. That is my experience of the Australian Public Service. If you think that I cannot have a discussion with a senior officer and it not be based on a disagreement then you are mistaken. In fact, the whole point of it is that officers have to have the confidence and the trust to put different points of view. That is what the old expression ‘frank and fearless advice’ means. You cannot do that if the discussion has to be conducted through the pages of a newspaper. For the same reason, Senator Milne, you do not publish the internal workings of your political party, on occasions when there are differences that need to be discussed in a proper manner every word that is uttered ought not be published. In fact, that would inhibit the free flow of ideas and the proper assessment of options.

So what we have here is a proposition which the government is seeking to establish—and I understand it is supported by the opposition—whereby there are built-in safeguards, built-in protections to ensure the integrity of the advice. A statutory authority model, as proposed by Senator Milne, does have certain quite explicit disadvantage—namely, around cost—and it is not necessarily superior to the model that is proposed that this be an agency within the Department of Resources, Energy and Tourism. This model has the great advantage of allowing a much freer flow of ideas across the portfolio. What tends to happen with statutory authorities is that the level of communication throughout the portfolio is restricted. We are arguing that this is the best balance of accountability, integrity and cost-effectiveness. It means that we will be able to have access to advice in the most professional manner and it will ensure that the government is able to administer projects to advance the cause of the development of renewable energy in a much more effective and timely manner.

10:39 am

Photo of Nick MinchinNick Minchin (SA, Liberal Party, Leader of the Opposition in the Senate) Share this | | Hansard source

I indicate to the Senate that the opposition will not be supporting the Greens amendments, but I do defend the right and prerogative of the Greens to move these amendments. I think that it is a little rich of Senator Carr to criticise the Greens for allegedly delaying this Australian Centre for Renewable Energy Bill 2009 by acting in a fashion that meant it could not be dealt with as a noncontroversial bill. I think that is a bit rich. Senator Milne properly said that if the government were so anxious about the passage of this bill it could certainly have listed it for debate much earlier than it has. I think that it is the right of every party or any Independent in the Senate to bring forward amendments which enable debate of bills, and I think that Senator Milne is quite right to say, in the light of some of the mismanagement of government programs, that it is important that all of these new initiatives are tested on the floor of the parliament. So we certainly defend their right to bring these amendments to our attention and make us all think about the structure of the bill and the body that is being established in this case.

Nevertheless, it is the opposition’s considered view that the bill should stand as printed. In relation to the amendments the Greens have moved, I certainly respect their enthusiasm for transparency with respect to the first amendment that is proposed, but I find myself in that rather rare position of essentially agreeing with everything that Senator Carr said on that matter. This is not an experience that I have had very often, but I think that he is absolutely right in this matter. Certainly it is my experience in government that a body such as this, set up to advise the minister—and its role is to advise the minister—must be, and must be seen to be, able to give them advice, as the minister in the chamber properly said, ‘fearlessly and without favour’. Inevitably the publication of such advice will severely compromise the nature of the advice provided. This is a body set up to advise the minister; it is not a body set up to advise the parliament per se, and if the board is to tell the minister exactly what he needs to hear—it being a he in this case—I think it essential that that advice is provided on the basis as set out in the bill and not on the basis as would prevail were the Greens amendments to be carried. I think that would inevitably compromise the nature of that advice and the board would not function as well as it could or should. So we are not in a position to support that.

In addition, in relation to the board, while I do not know all the members and we do not yet quite know whether the interim board will be the permanent board, certainly I know some members of this board, and albeit at the expense of sounding parochial, I am disappointed that there is no South Australian. I do know Professor Mary O’Kane, for example, who has a lot of experience in my state, and John Ryan and Drew Clarke from the department. These are outstanding Australians and I think they will comprise a good board.

Their job is not to be a lobby group for the renewable energy industry. It is a body to provide advice to the minister on a range of matters and, most importantly—and I think in the wake of the debacle over home insulation—to provide advice on the running and implementation of programs, the management of renewable energy technology programs, improving existing program delivery, the provision of venture capital funding, and priorities for government. In fact, I think it is important that they bring a certain objectivity to the table and a certain degree of professional experience above and beyond direct involvement simply in renewable energy, because of the nature of advice that will be sought from them to ensure that the government has its priorities right, that the programs are being run well and cost-effectively. So it is not simply a lobby group inside the department for renewable energies. I think that a range experience needs to be brought to bear, and that board, on the face of it, would appear to have it.

With respect to, essentially, the second part of the Greens amendments, as Minister Carr properly said, it goes to the proposition that his advisory board should be a statutory authority. Again I find myself in complete agreement with Minister Carr on that matter. I do not think that it is at all appropriate in the circumstances, given the nature of this board and the task which it has, to contemplate it being a statutory authority.

The proposition is that it be established by legislation as an advisory board to the minister. It is not to run these programs itself or have any separate statutory role per se but to provide what I hope will be fearless and professional advice to the minister on the matters listed in the bill. I certainly shared the view of former Prime Minister John Howard that governments should be very wary about establishing new statutory authorities because they can develop a life of their own. I think that can detract from the capacity of the body in question to perform the functions that have been assigned to it. As I say, this is an advisory board. It is not being set up to perform particular functions or deliver programs or anything of that sort; it is being set up to provide advice to the minister. I think it will improve the coordination and delivery of renewable energy programs, but I do not think that will be at all enhanced or assisted by it becoming a statutory authority. I think that is completely over the top. In relation to this matter, I think the government has got the balance right. As the minister pointed out, the minister must not give any directions about the content of any advice that may be given by the board—that is a legislative prohibition.

The opposition are confident about the board’s capacity to give independent advice. Presumably, it will be subject to full inquiry at the three Senate estimates hearings we have each year, and it is required to give an annual report. So the opposition and I are satisfied with the degree of accountability that this board will have. That is balanced against the need for it to be able to advise the minister in a way that enables it to be fearless and without favour, so we think the balance is right. I regret that we are not able to support the Greens amendments, but we defend vigorously their right to bring those amendments.

10:46 am

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

I thank the Senate for its consideration of the amendments. There are a few issues that I want to raise. Firstly, Senator Carr said this is an interim board. Obviously, an interim board ends when a permanent board is established; that is clear. He also said it will not be rolled over. What I asked was: will these individuals be the board? This is clearly a question the minister has avoided. Secondly, the minister said the board members need a range of skills—and I heard Senator Minchin say the same—and that they are not a lobby group for renewable energy. No, they are not. They are the board of the Australian Centre for Renewable Energy.

The board will advise the government on the state of renewable energy technologies in Australia, through knowledge of their own client base, on matters such as optimum collaboration and network models for renewable energy technology innovation and commercialisation; barriers to renewable energy technology innovation and commercialisation; prospects for collaboration domestically and internationally; and the impact of regulation, and standards, skills and training requirements for the renewable technology industry. Therefore, they need some knowledge of it. They are charged with overseeing the disbursement of funds going to renewable energy, and they should have some expertise. So I ask the minister: apart from Dr John Wright, whose interest and role in renewables I acknowledged before, which of the current members of the board—Graham Hunt, Professor Mary O’Kane, John Ryan, Emma Stein, Errol Talbot and Drew Clarke—have any expertise in renewable energy? Wouldn’t it have been appropriate to have as chair someone who has a background in these technologies? The current interim chair is a minerals and energy consultant. He was formerly the head of BHP Billiton’s operations in South Australia and in charge of the expansion of Olympic Dam. If you are going to have someone from an industry sector chair a board to oversee renewable energy, why wouldn’t you have someone from that background and not someone who has come from the nuclear industry, which is not a renewable energy industry but in competition with the very things this board is supposed to be overseeing?

I am not saying that these people are not of high standing. At no stage do I want to suggest that they are not experts in a variety of fields. My criticism is that they are not experts in renewal energy and delivering the advice the government is asking for from this board. That is my point. I will be very interested to hear what the minister has to say about the expertise of those people on the interim board. Also, when the interim board becomes the permanent board will it consist of the same people? If not, what is the process for appointing the board? The minister said a statutory board has disadvantages, that there is a lack of communication and all those sorts of things. Really? Infrastructure Australia has a statutory board. Do you want to tell me that Infrastructure Australia has problems with communication across the department and that it does not work very well, that we should not have gone down that road and that it should have been a little advisory committee on the side?

That brings me to the issue of independence. I have never claimed to be independent from the Greens party. The minister says that I would not want the party’s internal mechanisms, meetings and things made public. I do not claim that I am independent of the Greens party. I am not. And that is the whole point of what I am saying here. The minister says the protection is that the minister cannot direct the board what to do. That is right. But the board makes a recommendation and a report, which is secret, goes to the minister,. The minister then makes a decision about what to do, how to disburse the money, and that is made public. And we the community and the people in the renewable energy sector do not know whether what the minister has recommended is what the board recommended. We do not know whether pork-barrelling extraordinaire goes on in relation to which projects are recommended and which are not. That is the point of tabling the advice. If the government decides contrary to the advice it is given, the parliament and the community can make judgments about that and ask the minister why he made that decision.

As it is now, we are going to get a situation where the board will come before the estimates committee and the CEO will say: ‘Advice to the government is secret. I’m sorry, we can’t tell you what our advice to the minister is.’ So it is no use saying they come to estimates because, if they cannot say what their advice was, what is the good of it? You just get the minister saying: ‘I got the advice and these are the decisions I made. Full stop.’ It is a lack of transparency. No amount of trying to wriggle around it and suggest that a statutory authority is no good will work here because you set up one for Infrastructure Australia. It must have been a model you thought would work for Infrastructure Australia, and that is because you know that the community is fed up with pork-barrelling of major infrastructure projects and wants to have a degree of independence of the board of Infrastructure Australia. So I do not accept the minister’s suggestion that a statutory authority will not work. It could work very well.

The issue is independence. The issue is expertise. So I look forward to hearing from the minister which of these people on the interim board has the expertise in renewable energy such that they could advise on the state of renewable energy technologies in Australia through knowledge of the client base. We want to know what they know about all of these things. As I said, I accept that Dr John Wright has some of those skills, but I am hard pressed to see where the skills are in the rest of that board.

10:53 am

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | | Hansard source

Could I first deal with the issue of Senate processes. I am gratified to hear that Senator Minchin does agree with me on anything, so let us just see if I can try to broaden out that level of agreement. As you are a senator who has been here for 17 or so years now, I have absolutely no doubt that in the past you would have criticised senators for misusing the processes of this chamber, particularly when it comes to the question of non-controversial legislation. Senator, as a former Leader of the Government here, you at times complained, if I recall, of the slow passage of legislation. I will not be too unkind to you on that and actually pull out the Hansards, but the statement that you have suddenly found great merit in the sanctity of senators’ capacity to move amendments is gratifying—but not entirely convincing.

As to the claim that I am arguing that senators do not have the right to move amendments, you are mistaken. Not at any point have I said that Senator Milne does not have the right to move an amendment to any piece of legislation that she thinks should be amended. That is not the issue. The issue is that there is a provision in our standing orders to allow matters which are generally agreed in this chamber to be dealt with promptly and judiciously through that non-controversial legislation provision. For those who might have any interest in this at all, we often deal with legislation in this manner and whereby amendments are moved. The issue of non-controversial legislation goes to the question of whether or not there are divisions. A senator is entitled to move an amendment to a piece of legislation under the non-contro provision of standing orders, but normally we would not have divisions.

My proposition is that where it is generally known, and genuinely known, that the overwhelming bulk of our membership is going to support a provision, it is a reasonable conclusion that if a division were held it would be a mickey mouse division. The results would be foretold—as we are, I trust, about to see. And this position would have been the case back in November, as it is now. We are more than capable of putting a position in this chamber and making it known that we oppose a measure, moving an amendment and having it declared on the voices. That could have happened last year, and this legislation could have been well in operation five months ago. So I think it is a tendentious point at best, Senator, to suggest that I am arguing against the right of senators to move amendments when I am clearly not. I think that non-contro provision in our standing orders is extremely important to allow for the rapid passage of legislation on which there is fundamental agreement in this chamber. It ought be preserved and it ought not be used as a device whereby one or two senators can hold up legislation which is essentially agreed on an across-the-board basis here.

Turning to the issue that Senator Milne goes to with regard to the board processes, I want to reiterate that the appointment of the board will be subject to the usual government processes. My understanding is that significant appointments will go to cabinet. I cannot pre-empt the recommendation of another minister with regard to appointments because that is the process that actually occurs: ministers put recommendations on significant appointments and the decisions are made on the basis of those recommendations or rejected. I am advised that the interim board will not be automatically rolled over or appointed en bloc to the permanent board. There may well be individuals here that reappear on a permanent board, but it is not the government’s intention and I understand it is not the minister’s intention to proceed on the basis of rolling over the interim board to the permanent board. I trust that assists Senator Milne in that regard.

The second point she goes to is whether or not the chair should be a person with a background different from that of the chair that the minister has appointed for the interim board. The chair’s appointment has been made on the basis of his pre-eminent expertise in project management and financial management and not on the basis of his pre-eminent expertise in one branch of the energy industry. It is a presumption, in any event, to suggest that because a person may well be an expert in one field of the energy sector they are not capable of making judgments on a proper basis about other fields. I have come across numerous people who have actually been trained in the nuclear industry, are now working in other industries and provide high-quality advice to government. So I do not think it automatically should be assumed that because that person works in the nuclear industry they can never, ever take a meaningful role in bodies of this type.

The pre-eminent reason for the appointment, however, was the expertise in large project management, financial management and in ensuring that projects actually run well. That is what the appointment was based on. It is important that the minister has confidence in the board and it is important that the minister is able to discuss options with the board. But when it is all said and done, it is the role of ministers to make decisions. Ministers are responsible for decisions and ministers are held accountable for decisions. In the 17 years I have been here, I have seen ministers pulled apart on the basis of decisions they made. It really is a question of how well senators perform their duties if they are unhappy about what has occurred in any particular administrative issue.

The decisions of ministers will stand or fall on the quality of those decisions and ministers have to have confidence in the advice they are given but, at the end of the day, they do not have to accept advice. If that was the case, why would we be here? Why would any senator feel the need to front here at all if you work on the presumption that only technocrats can make decisions and that no other consideration should be entered into? Do we just publish a technocratic opinion? Do we roll over? Neither you nor I would ever accept such a proposition in real life and neither do governments of any persuasion. There will be occasions when ministers choose not to accept the advice that is tendered to them. That is a prerogative that ministers have to exercise from time to time.

It is the parliament’s job to hold people accountable. The estimates process is a very effective way of ensuring that governments are accountable. But its strengths and weaknesses ultimately depend on the quality of all participants, not just the officers and not just the minister but those who are actually pursuing an understanding of why governments have made the decisions that they have.

I disagree with the approach that you are making on this matter, Senator. At no point have I said that a statutory authority is superior or inferior in all circumstances. In fact, what I indicated to you was that in my own department I have experienced the whole range of government structures. Some are more suitable than others. In the government’s view, on the proper assessment of the options, the statutory authority model on this occasion is not the most effective way to proceed.

11:03 am

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

In the case of the minister’s arguments, less is probably more because the more you say, the more circular the argument becomes. A moment ago you were telling us that statutory authorities were inferior to the process that you are setting up and it had all these problems. I remind you that Infrastructure Australia is a statutory authority, which the government set up, and suddenly you do not have a view any more about what is superior, inferior or whatever else. The point is a statutory authority is independent.

I also note that Senator Carr did not respond to my request to name any one of the people on the interim board who have any expertise whatsoever in renewable energy except for Dr John Wright. As I said, I am hard pressed to see them—they are not there.

The minister also said that the chair was appointed because he has expertise in project management and finance management. I am sure there are plenty of people in the renewable energy field who also have expertise in project management and finance management and who do not come from BHP Billiton’s operations. We could have people from the renewable energy field as the expertise they have would be better because they would understand the difficulties of managing a project in a new field like renewable energy and would understand the difficulties associated with that. It is an irony—and not a reflection on the current interim board member—that there is not a nuclear project in the world that has come in on time or on budget. Inevitably, they are years delayed and multi-billions over budget. Anyway, the point of the issue is there would be people who have both project management and finance management experience as well as having come from the renewable energy sector.

I again note that the minister has said that it is not necessarily so that these people on the board will be appointed en bloc but that the minister will decide. I think that there is a high probability, given that the minister is not saying, that we will end up with a board that looks very much like this one and, I can assure you, I will be scrutinising that.

I am interested that the minister said estimates is where we will be able to discover the advice. I hope I will not be blocked in estimates with a response that says that is advice to the government and is not available. The point the minister makes is correct; we do not want technocrats making decisions. But we do want to know what technocrats advise so that then it is very clear whether the government has taken that advice or not taken that advice and then we know who is to be held accountable for any decisions that are made.

It is the issue of transparency and accountability and not that I want technocrats to decide. I do not want technocrats to decide but I want to be able to see. The fact that they are not going to be made public means we will never know. Of course there have been ministers who have been torn apart because of decisions made about projects that have been less than transparent. One only needs to remember the whiteboard affair to go back to recall that that has been the case. There is no saying that you will not have similar kinds of pork-barrelling with this particular allocation of funds. You will never know because it will not be made public in that time frame.

I also want to thank Minister Carr for actually putting on record the government’s contempt for divisions in which the government and the coalition vote together against the minor parties or Independents in the Senate. It will, I am sure, horrify the public to know that the government and the coalition refer to them as mickey mouse divisions. Because they are matters on which the Independents and the rest of the crossbench have a different view to that of the major parties, the major parties choose to refer to that as a mickey mouse view in the scheme of things. I have never, ever seen a minister actually own up to that in this parliament. I am glad that Senator Carr has now put that on the record so that the contempt with which the major parties treat the processes in the Senate is now clear to people.

I would also remind Senator Carr that in the debate on the renewable energy target, when I moved amendments to put energy efficiency measures on top of the target, the resulting division is one you would have referred to as a mickey mouse division. But months later, with chaos in the industry and a collapse in the price, as a government you had to admit you made a mistake and had to fix the renewable energy target—something you had the opportunity to do at the time if you had taken what the Greens had been saying as a legitimate contribution to the debate, if you had actually looked at what we were saying, instead of coming in here and just going: ‘Mickey mouse—the Greens have moved that. We’re not going to do it.’

I would remind you also that all really progressive, interesting ideas do not start out as the majority view of both the Liberal and Labor parties in this country. It is rare that an innovation will be accepted by the mainstream. It takes a long time to argue for that, and the Greens know that full well. The whole idea of moving to a low-carbon, zero carbon economy was laughed at when I first came here in 2005. There was no support for a whole range of measures on renewable energy and energy efficiency, but now it is mainstream. People recognise that such measures are an imperative. In fact, Minister Wong herself has said time and again that they are a decade too late; but a decade ago Labor were not moving for them either. So I am grateful to Minister Carr that it will at least now be on the Hansard what the major parties’ view is of the propositions put forward by the crossbench as amendments to legislation in the Senate.

I recognise I am not going to get a further answer from Senator Carr as to which of the people on the interim board of the Australian Centre for Renewable Energy have expertise in renewable energy, because it is indefensible, and I am not going to get an answer from Senator Carr as to how the community will ever know what this board has recommended, in the absence of any undertaking to make that advice public or provide it with any level of independence. However, I think we have made the argument and I commend the amendments that I have moved.

11:10 am

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | | Hansard source

I have been asked for the names of people on the board who have expertise. Drew Clarke is a longstanding secretary of the department of energy. I believe he would qualify as a person of high standing and pre-eminent expertise in all fields of energy, including renewable energy. The Senate has already acknowledged John Ryan. Mary O’Kane, who has been chief scientist for New South Wales and whom I appointed to undertake the review of the CRC program, is a person with widespread experience in these fields as well.

So, Senator Milne, once again, the sort of sanctimonious, holier-than-thou approach that you have taken here is I think misplaced. I think there has been longstanding acknowledgement that the ‘mickey mouse’ reference goes to the fact that the overwhelming majority of senators will form a position on a matter and the division itself will be carried overwhelmingly. It is a term that has been used here for many decades.

The fact remains that if you are about wasting time and trying to frustrate a program then you can move a lot of divisions. There are many devices under the standing orders to prevent the consideration of government legislation or legislation from another party, if you choose. One of the facts of life that we all have to face is that there are occasions when we are going to put a position in this chamber and lose. There are more times than I care to recall when we simply said, ‘This is our position; we know it does not have majority support in this chamber,’ and we have had the position determined on the voices. There is no more rectitude in a position being determined by a division rather than on the voices in terms of the standing orders—none whatsoever.

I really do not appreciate being lectured on the sanctity of your position, Senator Milne—on your virtue versus that of others in the chamber. It is often the case that the positions of minorities become the positions of majorities over time. That is a well-known fact. It is often the case that we vote for positions in this chamber which are rejected and, subsequently, the minority position in the chamber is proved to be right. It is not a position that is confined to your end of the chamber. It is equally the case that people who masquerade as great innovators and pioneers of new ideas are often highly conservative defenders of the status quo. It is often the case that the Greens present themselves in a way that is contradicted by their actions, and that is something that you have done on many issues in regard to environmental politics. Senator, I guess that is a point on which you and I will never agree. I urge the Senate to vote on these amendments.

11:15 am

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

In 60 seconds or less I can indicate that I support these amendments. I believe they have merit. I am surprised the coalition are not supporting these amendments, given that as I understand it with respect to the Preventative Health Taskforce they wanted a level of openness in the advice that the task force would give to the government—that is, for it to be published. I thought it would have been consistent to support at least the first amendment with respect to that. I think these would strengthen the bill. I congratulate the government on this bill, but I think it would be improved by the amendments proposed by the Greens.

Question put:

That the amendments (Senator Milne’s) be agreed to.

Bill agreed to.

Bill reported without amendment; report adopted.