Legislative Council: Tuesday, August 29, 2023


Return to Work Corporation (Constitution of Board of Management) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 March 2023.)

The Hon. C. BONAROS (17:01): I rise to speak very briefly on behalf of SA-Best on the Return to Work Corporation (Constitution of Board of Management) Amendment Bill 2023. This is a relatively simple bill which seeks to legislate the current status quo for the seven-member board of management in terms of the minimum employee and employer representation. It was generally considered a given until the former industrial relations minister, the Hon. Rob Lucas, did not appoint an employee representative following the expiry of the terms. I think most would agree that this was a break in convention and somewhat unprecedented but, as luck would have it, the lack of balance was addressed by the change of government last year, and in November Ms Atherton, a highly experienced employee representative, was appointed to the board.

The board is tasked, as we know, with a variety of functions including administration of the Return to Work Act, the promotion of work health and safety and welfare, and the management of funds under its control to ensure its ongoing viability. I think we have well and truly thrashed out that debate in this place and, indeed, in the committee dealing with return to work. We had an example of this last function in July last year when the board signalled its intention to raise the average employer premium from 1.272 to 1.8 for 2022-23, requiring legislative amendment to do so.

There has, as I understand it, been a slight increase for 2023-24 to 1.85 but that, of course, is part of a much broader and larger debate, of which this bill is an important element, in terms of the role of the board, but I am sure it will be fleshed out sooner rather than later in a further bill that we are expecting to come before this parliament.

The act currently prescribes that board appointments are made by the Governor on the recommendation of the Minister for Industrial Relations and Public Sector, and has to consist of at least three women and three men. Appointments are for terms not exceeding three years, with members eligible for re-election. While the bill seeks to establish a minimum balance, it does not preclude higher representation.

I understand that some employees say stakeholders are of the view it should be a fifty-fifty mix, but SA-Best agrees that it is important to retain some degree of flexibility in that mix. The act does not specifically prescribe one legal, one insurance and one medical rep, allowing for flexibility of skills and aptitude and for members who tick more than one box.

I do understand—and perhaps the Attorney can confirm this soon—that the government has committed to further consultation and dialogue with those various stakeholders, should it indeed be returned at the next election or perhaps even prior to that. I note that the Minister for Industrial Relations filed an amendment to clarify consultation of a suitable employer representative and that it will not just be limited to Business SA because, as we all know, there are other probably equally qualified and aptly qualified and influential businesses and industry groups, like the Master Builders Association or the Australian Industry Group, whose views are also equally important, equally valid and equally warranted.

Before I close, I note that the opposition has filed a last-minute amendment this morning seeking to preclude any member of the CFMEU from sitting on the board or being consulted in relation to an appointment. I have to say that I find this a curious amendment, the likes of which I have never seen or recall seeing filed in this place. Talk about singling out a particular group.

Subclause (2b) is perhaps even more curious than the first one in that the opposition is asking us to agree that there has to be a certification not only that you will not have a representative from the CFMEU but that there has to be a certification process to ensure that there was no consultation with the CFMEU. How on earth, even if you agreed with that in principle, that would work in practice is well and truly beyond me and certainly not something I am willing to contemplate in the time available to us given that the amendment was filed, as I said, just this morning and we are already dealing with this bill. Notwithstanding that, I am not buying into this attempt to grab a headline in relation to issues regarding ReturnToWork or the CFMEU on a bill that is important in its nature.

We are absolutely of the view that you need flexibility to remain where we sit if decisions are made and representatives are appointed. If there are issues with those, I am sure there will be mechanisms to deal with those issues as well. With those words, we indicate that we will be supporting the government's bill as proposed with amendment by the Attorney.

The Hon. J.M.A. LENSINK (17:08): I am standing in for the Hon. Heidi Girolamo, who is paired out today. I will make some comments in relation to this piece of legislation which, as has already been noted, deals with the composition of the board of ReturnToWorkSA, the statutory corporation established under the Return to Work Corporation of South Australia Act 1994.

Obviously, we on this side of the chamber have a variance with other members in relation to the way a new board would be constituted. Currently under the act, section 5 sets out the constitution of the board of management (the board), which consists of seven members. At least three must be women and three must be men. On the recommendation of the minister, a chair will be appointed by the Governor.

The act goes on to state that members of the board 'must at all times act professionally and in accordance with recognised principles of good corporate governance'. Further on, the act states that the Governor may remove a member of the board for dishonourable conduct. In relation to those two points, I would just highlight that firstly all members must act professionally and in accordance with good principles of good corporate governance and, secondly, that the Governor may remove a member of the board for dishonourable conduct.

I would also like to talk to the proposed government amendment, which we do support, recognising that Business SA is not the only group in South Australia that represents employers in this state. We will have some questions in the committee stage for the Attorney on that. As members will also note, we have lodged an amendment to this bill, which I will move in the name of the Hon. Heidi Girolamo, which I would have thought was fairly simple and self-explanatory.

Having in government and in opposition dealt with unions of various types over the years, the CFMEU I think is rather extraordinary and stands on its own. We on this side do not believe that the Construction, Forestry, Maritime, Mining and Energy Union is a good union. There have been countless stories in the press and there are Federal Court cases about the actions of its leader, its leadership and its members, which should speak for itself.

This is an organisation that has tried to intimidate the Master Builders Association in South Australia. In the case of the Premier, it is a case of saying one thing and doing nothing. He said, and I quote:

If we see evidence, that the Victorian branch takeover of the South Australian branch of the CFMEU, that manifests itself in unacceptable behaviour, then we will act.

This was said over a year ago, in August of last year. What we have seen since, just this week, are further intimidation tactics forcing workers on Adelaide construction sites to join the union, threatening builders with the loss of future work if they refuse to join the union. The Advertiser has quoted one construction worker as saying the behaviour was reminiscent of union intimidation tactics 20 or 30 years ago.

I have not even touched on the allegations surrounding the CFMEU's leader in South Australia, Mr John Setka. The Prime Minister kicked Mr Setka out of the Australian Labor Party and, in contrast, the Premier and the Labor Party in South Australia have rolled out the welcome mat by turning a blind eye to intimidation tactics, and turning a blind eye to the incoming exorbitant fees to be imposed by the arrival of the Victorian system of a worker entitlement scheme, Incolink, in South Australia. Once again, the Premier has made much of the promise to do what he could to protect builders in South Australia from the CFMEU and their Victorian scheme, Incolink, but we have not heard anything since. This Premier is all hat and no cattle. He makes promises but does not follow through with them, hoping that the public have moved on.

If the conduct of the CFMEU leader is already dishonourable conduct, why do they deserve a say in the outcomes of the Return to Work scheme, which is funded through some 50,000 South Australian employers, particularly when they are making efforts to divert South Australian funds to Victoria. Until it was closed down by the new federal Labor government, the Australian Building and Construction Commission had issued more than $16 million in fines to the CFMEU since 2016. This is not a union with good governance practices. It does not adhere to the rules and it does not care about its workers, and certainly not women in the industry.

This amendment is a strong line in the sand to say enough is enough. We do not need the detestable influence of the CFMEU in South Australia, and Mr Setka and his intimidation tactics are not welcome here. I would ask members in this chamber to support this amendment, and declare that South Australia does not stand for, nor accepts the intimidation that the CFMEU represents.

The Hon. R.B. MARTIN (17:13): Members here would be aware that ReturnToWorkSA, as the statutory insurer under South Australia's workers compensation scheme, is governed by a board composed of seven members. The purpose of this bill is to amend the constitution of the board to ensure a minimum level of stakeholder representation from representatives for workers and for business.

The Return to Work scheme involves complex medical, legal, insurance and regulatory issues, which means that certain technical skills should quite rightly be represented within the board membership. The decisions taken by the ReturnToWorkSA board members have very significant implications for the lives and livelihoods of injured workers, and significant financial implications for business, so the Malinauskas Labor government considers it crucial to ensure that both groups of people within our state who stand to be most directly impacted by the decisions of the board have security in their opportunity to be directly represented within the board's membership.

It has long been the custom to include the voices of both workers and business amongst the board membership through the appointment of representatives for each. However, the previous government contravened this longstanding practice by overseeing a period during which the board was without worker representation.

This government has restored balance to the composition of the board by returning worker representation and preserving representation for business. We recognise that stronger outcomes in decision-making are achieved when a diverse range of views are represented in the process. I cannot speak for the opposition in this regard, although evidence does suggest that perhaps they do not agree in all cases that this is correct, but it is the view of this government that diversity in the composition of the ReturnToWorkSA board can only improve the integrity and quality of its decisions and processes.

It is considered sensible and appropriate that representation for the two groups that are most affected by the operations of the Return to Work scheme be enshrined in legislation. Under the provisions of this bill, the seven members of the ReturnToWorkSA board must include at least one member who is deemed suitable to represent the interests of workers, as well as at least one member who is deemed suitable to represent the interests of employers.

This bill further provides that the minister will have to consult with stakeholder organisations from both groups—namely, with SA Unions in the case of workers and with Business SA in the case of business—before making appointments of board candidates. This gives the two peak bodies the opportunity to make representation as to the suitability of the candidates. Under the provisions of this bill, high-quality candidates must still be selected. All persons appointed to the board must still possess the requisite competencies, qualifications and experience to ensure that the board can undertake its functions effectively.

As the Attorney-General explained last month, this government takes the view that the current composition of the board is suitable. Upon the passage of this bill, it can therefore be proclaimed to take effect upon the expiry of the terms of incumbent board members.

I recognise and appreciate the advocacy that our government has heard from the union movement in relation to the important matter of representation for workers on this board. We have listened, and with this bill we are taking action to ensure that fairness and balance are better ensured in the board's decision-making. Ideologies which in any way treat workers as unimportant, or the interests of workers as being lesser than the interests of business, are socially harmful. Diminishing or minimising the gravity of workplace injuries in terms of the profound adverse impact they can have on the lives of the workers who suffer them, on their families and on their livelihoods, fundamentally gets it wrong on a human level.

Our government recognises the balance that must be struck to ensure the interests of workers and the interests of business are both served, both protected and both treated as important from social and economic perspectives. We have tried with this bill to take a step which seeks to achieve that in the decision-making of ReturnToWorkSA through legislating balance in board membership. I am pleased to commend this bill to the council.

The Hon. I. PNEVMATIKOS (17:17): I rise today to speak in support of the Return to Work Corporation (Constitution of Board of Management) Amendment Bill. ReturnToWorkSA, the statutory agency under South Australia's workers compensation scheme, is governed by a board of seven members. The bill amends the constitution of the board to ensure a minimum level of stakeholder representation.

Under this bill, the seven members of the board must include at least one who is suitable to represent the interests of workers and one who is suitable to represent the interests of employers. Being that the board makes decisions that have significant impacts on injured workers and employers, the importance of this representation cannot be overstated. These decisions include fixing the average premium rate and decisions around litigation and claims management. Workers deserve fair and effective representation in matters affecting their health and safety. They deserve a just, equitable and relevant workers compensation system.

With worker representation, the board gains valuable insight into the experiences of those directly affected by workplace injuries. We already know that we have better health and safety outcomes when workers have input before decisions are made about health and safety that affect them. Similarly, employers are responsible for creating safe working environments. Their experiences will help shape policies that consider the challenges that employers face in maintaining safe workplaces, and the economic realities of workplace injuries.

Put simply, this bill ensures that the voices of the groups most affected by the Return to Work scheme are included in the board process. That should include all groups. Last I understood, the CFMEU was not an illegal organisation. Certainly, in a democratic pluralistic society you would expect that they have the same rights as anyone else. It is very difficult to support an amendment that seeks to exclude an organisation that legitimately and legally represents a portion of the workforce.

The minister will have to consult with SA Unions and employer organisations about appropriate board candidates. This bill also ensures the situation under the Liberal government, where no worker representatives were present on the board, cannot be repeated. It is not just about getting a seat at the table. It is about promoting fairness and cooperation. We need to embrace the principles of industrial democracy if we want to create safe and healthy workplaces.

The Hon. T.A. FRANKS (17:21): I rise on behalf of the Greens to speak briefly about this bill and indicate our support. I reiterate what I have previously said in this place: the turmoil we have all witnessed of late regarding the Return to Work scheme can and must be attributed, at least in part, to the ReturnToWork board. We have seen the board seriously mismanage the scheme by holding up workers' claims through lengthy and failed legal battles over many years.

The role of the board is significant and, as alluded to by the Minister for Industrial Relations, possibly more significant than any other statutory corporation in this state. The board has the power to fix the average premium levy that applies to employers covered by the Return to Work scheme, and has the power to significantly impact workers' entitlements in Return to Work claims.

This bill before us is similar to legislation that I have introduced in this very place, so it will come as no surprise to the minister that we will be supporting it. That bill and this bill allow for proper representation on the board by including the additional requirements for the minister to undertake consultation with peak stakeholders such as SA Unions and Business SA, and that will ensure that they identify suitable persons to represent their respective interests—representative democracy and consultation.

This will, of course, provide us with a more representative board that does reflect the interests of both business and workers in the operation of the Return to Work scheme. One would imagine that you would want all parties at the table. The Greens acknowledge that a skills-based appointment of this board is important, but it should not take away from the voice of stakeholder groups including those, of course, of the unions.

The failings of the current board have been a frequent factor in the feedback that we have received on Return to Work matters in this state. Certainly, my office has constantly been told that the board and the corporation operate to turn a profit to keep premiums lower than they otherwise would, at the expense of outcomes for injured workers. This is not acceptable, and I do not think it is acceptable for us to continue to have a board operating—for such a vital scheme that affects the lives of so many vulnerable and injured workers—without this sort of representation. We support the legislation before us to ensure that workers have a fair representation at the table.

I note that the Liberal opposition have an amendment, or a series of amendments, to exclude the CFMEU not only from being represented on the board but from even being consulted about who would be represented on the board. I find this extraordinary. I note that there are members of this parliament who are members of the CFMEU. I note that many good people are members of unions, and to try to run some sort of 'reds under the bed' scandal in this way is ludicrous. I urge the Liberal opposition to grow up. With that, I support the bill.

The Hon. R.P. WORTLEY (17:24): I stand to support the bill. ReturnToWorkSA, the statutory insurer under South Australia's workers compensation scheme, is governed by a board of seven members. The board makes decisions with significant impact on injured workers and employers. These include fixing the average premium rate and the decisions around litigation and claims management. The bill amends the constitution of the board to ensure a minimum level of stakeholder representation.

Over previous Labor governments, since the introduction of WorkCover and now ReturnToWork, we have always acknowledged that there is expertise and knowledge required from both employer and employee representative associations. That worked very well under past Labor governments. It was very disappointing when the Liberals gained power and allowed their absolute hatred of the trade union movement to cloud their better judgement and remove that requirement. What they did was deprive the board of immense knowledge and experience within the workforce, which must have an effect on the decisions of the board.

Tripartite committees became very popular during the Hawke and Keating governments back in the 1980s, and Australia experienced some of the greatest economic growth in the history of this country, where unions and employers worked together in the best interests of this country. That cannot happen when you have boards and bodies which fail to acknowledge the expertise of those representing working people in this country.

I also notice the amendment by the Hon. Ms Girolamo, trying to ensure that the CFMEU is not only banned from being represented on the board but also from being consulted. Once again, they are allowing their hatred of the trade union movement to get in the way of good policy. I will make a couple of comments. The CFMEU is not a prescribed organisation. They are registered under the act, they have elections, their officials are elected by elections run by the Australian Electoral Commission and they are there at the behest of their members. To try to deny an organisation the right of putting in their nomination is reminiscent of bad times in our history in this country. Again, it shows that the Liberals, because of their hatred of the trade union movement, are prepared to implement bad policy within their policy network.

Most people in this country support tripartite committees, but the vast majority would support the fact that they are the most productive and that probably some of the greatest decisions come as a result of everyone working together and coming to an outcome. I have been involved in tripartite committees over the years, I know how they work and I know that people from both sides of the chamber and the government have their debates, sometimes robust debates, but at the end of the day they come to a resolution that is in the best interests of their industries.

It is disappointing that the opposition has this point of view. The CFMEU is the result of an amalgamation. There are four different sections to that: you have the construction industry, run now by John Setka, who I must say I have never met before. You have the maritime union, a highly regarded union, and the forestry union, which is very highly regarded and plays a significant role down in the South-East. The Hon. Mr Hood would know the officials down there, I imagine. They work very productively within the industry. Then they have the mining and energy unions. These are very highly regarded sections of that union that will be excluded from even nominating a person from their union for consideration, which I think is an absolutely appalling position to have.

Under this bill, the seven members of the board must include at least one who is suitable to represent the interests of workers and one who is suitable to represent the interests of employers. This ensures the voices of the groups most affected by the Return to Work scheme are included in the board process. The minister will also have to consult with SA Unions and employer organisations about appropriate candidates. This also ensures that the situation under the Liberal government, where no worker representatives were present on the board, cannot be repeated.

I also make the comment that past practice of the Liberals was that where there were employer representatives on the boards under the legislation, on occasions they have actually chosen that person and not allowed the actual associations to determine that. Naturally, that caused all sorts of dissension and problems within the industry. With those few words, I support the legislation and seek the support of it from the council.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:30): I thank all honourable members for their contribution. This is a reasonably simple bill. I note the Hon. Michelle Lensink has indicated there will be a few questions at the committee stage, and I am hopeful we can do that before 6 o'clock tonight. If not, we can come back and finish it.

As has been outlined, we have a couple of government amendments: a couple of technical amendments and one amendment that provides, as people have outlined, consultation with other employer groups. I can indicate that, like other speakers have indicated, we will not be supporting the opposition's amendments. I cannot remember the exact words used by the Greens, but those amendments are plainly absurd.

I am sure that the Hon. Ben Hood, for example, will be happy to explain to his community his party's desire to completely exclude any representative of the forestry union, who in my experience are exceptionally highly regarded in what they do for workers in the forestry union in the South-East and have been for a long time. It will be, when this is raised publicly in the South-East, up to the Hon. Ben Hood to explain to his constituents why he would seek to make sure that representatives of workers in the forestry industries should not have a right to participate in institutions in this state. That will be up to him to explain, but we will not be supporting the amendment.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. J.M.A. LENSINK: I might at this point put all of the questions just to keep it tidy. My first question to the minister is to seek to understand why the government, at the time when the Hon. Ms Franks introduced her bill, which she spoke to, did not merely support that bill and has chosen to introduce its own.

The Hon. K.J. MAHER: I thank the Hon. Tammy Franks for her commitment in this area and the bills that she has brought before parliament. If I am remembering correctly, the Hon. Tammy Franks' bill sought to increase the membership of the board and make several positions representative of different groups. We are keen to keep the skills-based representation the board has rather than a purely representative structure, but recognising that there does need to be an element of representation. That is the balance we have sought to strike with this legislation.

The Hon. J.M.A. LENSINK: I also understand that the minister has spoken about this change beginning at the end of the current term, so I just seek clarification as to when that is. If the minister could also elaborate on what would take place if someone resigns or is removed: will this new regime be in effect at that point?

The Hon. K.J. MAHER: I am advised that the licences of current board members expire in November 2025, so it is intended that this comes into operation at that stage.

The Hon. J.M.A. LENSINK: Can the minister explain what will happen if there are any resignations in the meantime? Will this new regime be in effect to account for that, and how will the selection take place?

The Hon. K.J. MAHER: If there are resignations that take place we will consider the composition of the board at that time and make appointments, noting who has resigned and what composition of the board is needed.

The Hon. J.M.A. LENSINK: I understand that these questions are for clause 3, but I will ask them now. Did the government make its own amendments to this amendment bill to include other associations instead of Business SA, or were there others considered as well?

The Hon. K.J. Maher: I do not understand.

The Hon. J.M.A. LENSINK: I will try to rephrase. In terms of employer associations, what other employer associations would be under consideration, other than Business SA?

The Hon. K.J. MAHER: The amendments that we are putting forward are the result of contributions that were put forward from, in particular, the Master Builders Association and the Australian Industry Group South Australia. They are some of the other ones but it would not be limited to those.

The Hon. J.M.A. LENSINK: Can the minister advise whether it was a broad range of all associations that were consulted in relation to this particular bill? Is there a consultation report available and further details?

The Hon. K.J. MAHER: I thank the honourable member for her question. I do not have a complete list, but certainly the concepts that we have in this bill now were raised with a very wide range of industry stakeholders, both employer representative groups and employee representative groups, in consultations on issues to do with the Return to Work scheme, mainly during the course of last year.

The Hon. J.M.A. LENSINK: I thank the minister for that clarification. Can he advise whether Self Insurers of South Australia were consulted on this amendment?

The Hon. K.J. MAHER: I can confirm very specifically that Self Insurers of South Australia were consulted specifically about this proposed change.

The Hon. J.M.A. LENSINK: Further to that, can the minister advise whether there was consideration given to include a specific representative of that sector?

The Hon. K.J. MAHER: No, there was not.

The CHAIR: Attorney, the government have an amendment at clause 1.

The Hon. K.J. MAHER: I move:

Amendment No 1 [IndRelPubSec–2]—

Page 2, line 4—After 'Corporation' insert:

of South Australia

This is a technical amendment.

The Hon. C. BONAROS: I indicate for the record our support for the amendment.

Amendment carried; clause as amended passed.

Clause 2 passed.

Clause 3.

The CHAIR: There are amendments in the name of the Attorney-General and the Hon. Ms Girolamo. Attorney, I believe your two amendments were filed first, so would you like to speak to them?

The Hon. K.J. MAHER: I move the first of those at clause 3, line 12:

Amendment No 2 [IndRelPubSec–2]—

Page 2, line 12—Delete 'and substitute' and substitute:


Again, this is a technical amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 1 [IndRelPubSec–1]—

Page 2, line 19 [clause 3, inserted section 5(2)(b)]—after '(trading as Business SA)' insert:

, and with other associations representing the interests of employers determined to be appropriate by the Minister,

I am moving that for the reasons that we have canvassed already in contributions today.

Amendment carried.

The Hon. J.M.A. LENSINK: I move:

Amendment No 1 [Girolamo–1]—

Page 2, after line 20—Insert:

(2) Section 5—after subsection (2) insert:

(2a) However, a member or officer of the Construction, Forestry, Maritime, Mining and Energy Union must not be appointed as a member of the board.

(2b) In addition, the Minister must, when making a recommendation in respect of an appointment under subsection (2), certify that the Construction, Forestry, Maritime, Mining and Energy Union was not consulted in relation to the appointment.

(2c) A copy of a certificate referred to in subsection (2b) must be published in the Gazette as soon as is reasonably practicable after the appointment to which the certificate relates is made.

I think I can read the room in terms of whether it will gain the support of colleagues or not. As I outlined in the second reading contribution, we do know that there are significant issues with this particular union. I think quietly around the corridors when we do talk to people they are embarrassed by the behaviour of this particular union and its behaviour upon entering South Australia. I think there are a large number of builders who are very concerned about the CFMEU and its behaviour. I think that speaks for itself. I would urge members to give due consideration to this amendment.

The Hon. C. BONAROS: I am sure many individuals, including those from forestry, would probably take exception to some of the comments that have just been made around that; notwithstanding the fact that we all know that there are issues that are raised, but the generalisations are somewhat outrageous today. Notwithstanding that, I have a question of the mover. I am wondering if she can tell us with whom she consulted before, during or after the drafting of this amendment.

The Hon. J.M.A. LENSINK: As the honourable member knows, I am standing in for the—

The Hon. C. BONAROS: With whom the Liberal Party consulted.

The Hon. J.M.A. LENSINK: I am standing in for the Hon. Ms Girolamo, who is unfortunately not able to be here today. It will be hard for me to go into a lot of the specifics, but I think it is fair to say that in relation to the CFMEU generally we do receive a large number of representations with concern particularly around the behaviour of Mr John Setka, and that is why we have formed a view on this particular amendment.

The Hon. C. BONAROS: Just to confirm: the member with carriage of this particular amendment, albeit on behalf of another member, cannot confirm for the record whether construction, forestry, maritime, mining and energy, as sectors, were consulted on this amendment. Can she also, I suppose, not confirm whether any of the industries that have apparently raised these issues were consulted in relation to this amendment. I would be curious to know whether we sought input from the Law Society or, indeed, the Bar Association, about the practical application of this provision that is being proposed, particularly in relation to the certification clause at clause (2b).

The Hon. J.M.A. LENSINK: I thank the honourable member for her question. I am not able to elaborate because I have not had carriage of this legislation; I am standing in. My understanding in relation to subclause (2b) is—although we are not really supposed to refer to advice from parliamentary counsel, I understand that that was considered as part of the consequential part of the drafting instructions.

The Hon. C. BONAROS: I guess therein lies the issue when you file an amendment on the morning of a debate. Is the member suggesting that the certification process in (2b) is a consequence of (2a), or are they standalone provisions? We have here something that says you 'must not be appointed as a member of the board' and 'In addition'. I think my legal interpretation of 'In addition' would be different to what has just been outlined—there cannot be any consultation and that you have to certify that there has not been any consultation.

How do you actually envisage that working in practice? If I go and speak to an individual from the Construction, Forestry, Maritime, Mining and Energy Union, how do you confirm that that will not qualify as a level of consultation? What is consultation, in this instance, and how do you certify that it has or has not occurred?

The Hon. J.M.A. LENSINK: I think the consultation processes through government are fairly well established, in that there is a range of ways in which it can take place in a formal sense in that there are meetings about specific issues, there are letters and there is the YourSAy process, which is a very generalised process. Those are the streams in which consultation takes place and, as I said, they are fairly well established.

The Hon. C. BONAROS: What will be the ramifications if advertently or inadvertently there is some level of consultation with someone from the CFMEU without certification or indeed with? We signed off a certification document and, lo and behold, it turns out that there has been some level of discussion or consultation that has not been disclosed under these. What is the outcome? What is the penalty? What happens if that occurs?

The Hon. J.M.A. LENSINK: I have a question perhaps back to the honourable member in terms of 'inadvertent'. I am not quite sure what she is anticipating by that. Is it whether a letter unintentionally was sent to that organisation?

The Hon. C. BONAROS: I guess the point I am trying to make is that, regardless of whether it is intentional or unintentional—and let's take the intentional example for a moment—you have this provision here that you cannot consult. If you certify that and it turns out to be wrong, what is the ramification of that?

The Hon. J.M.A. LENSINK: The ramification of not having gone through the proper process is that the board would need to be informed, the minister would certainly need to be informed and cabinet would need to be informed and they would need to determine if there was any rectification that would need to take place.

The Hon. C. BONAROS: Where is that process outlined in this amendment?

The Hon. J.M.A. LENSINK: As the honourable member would understand, there are a lot of matters that are not specific in legislation that relate to the way that government operates generally and the way policies are promulgated.

The Hon. C. BONAROS: I will go back to my original question. The member might think I am being a bit cheeky, but these are all very valid questions. The point I am trying to make is—

The Hon. R.P. Wortley interjecting:

The CHAIR: I am trying to listen to this contribution.

The Hon. C. BONAROS: The point I am trying to make is: are we just taking your word for it that this is going to work, or have we got some legal and substantive basis to follow your lead in terms of ensuring that this will not have unintended consequences or consequences that we simply cannot contemplate today in moving this amendment?

The Hon. R.P. Wortley interjecting:

The CHAIR: The Hon. Mr Wortley, do you want to make a contribution?

The Hon. J.M.A. LENSINK: I feel like we are straying into—someone might correct me if I am wrong—Donald Rumsfeld territory about known unknowns and known knowns.

The Hon. C. Bonaros interjecting:

The Hon. J.M.A. LENSINK: I think we have all looked at enough legislation over the years where there have been penalties. For instance, there is a whole range of government legislation where the Crown cannot be penalised and those sorts of things. If the honourable member would like somebody to be penalised for those actions not taking place, then she might seek to amend the legislation in some way. I am not quite sure where she is getting at, but I am sure we will be enlightened in due course.

The Hon. C. BONAROS: You sure will be because I would not be introducing an amendment like this one into this place, particularly without answers to some of the questions that have been asked, and with such little consideration of the unintended consequences of it. That much you can be assured of. My next question to the mover of this amendment is—I have lost my train of thought now. It was a very good question.

The Hon. T.A. Franks: I have one.

The Hon. C. BONAROS: There we go.

The Hon. T.A. FRANKS: In terms of this amendment, I am interested to understand why on earth the Liberal opposition would move it, and what their understanding is of who might be a member or officer of the Construction, Forestry, Maritime, Mining and Energy Union who cannot be appointed to the board. Does this include Minister Penny Wong? She is a member of the CFMMEU. Is she specifically prohibited from holding a position on the board? What consideration did you make about not being more specific about who you meant to be captured, because this is a very broad class of people, and how does it accord with freedom of association principles and the Liberal Party?

The Hon. J.M.A. LENSINK: I did outline in my second reading speech why we believe this particular union, and the leadership particularly, represented by Mr Setka, is not fit to be represented on this particular board. I am not sure that the federal minister would be appointed in any case, given that she is a federal minister, so there may be other examples that the honourable member is able to provide.

The Hon. T.A. FRANKS: Why has the Liberal opposition included members, not just officers of the CFMMEU? Why have they included thousands of people, and made a value judgement that they do not have any right to represent injured workers on this board?

The Hon. J.M.A. LENSINK: I think this comes down to the crux of the particular issue, which is that we on this side of the chamber are very, very concerned about the bullying tactics that are being undertaken, particularly by the leadership of the CFMEU in South Australia. We make no apology for that. That is our position. Clearly a lot of other members do not agree with us.

The Hon. T.A. FRANKS: I am just going to point out that the amendment speaks about members or officers. It does not talk about the leadership. It does not cite that John Setka may not be appointed to the board. It talks about members so why could I not now move an amendment from the floor to say, 'However, a member or officer of the Liberal Party of South Australia must not be appointed as a member of this board'? Would you find that acceptable?

The Hon. J.M.A. LENSINK: Honourable members are entitled to move whatever amendments they choose, and we would vote on it accordingly.

The Hon. C. BONAROS: I would like the minister to perhaps retract her statement that she just made. It is objectionable and it is offensive that you would attribute those comments to all of us because I am sure none of us would find bullying and inappropriate behaviour at any worksite appropriate, and to suggest that we would support that and that somehow you have moved an amendment that is going to save that issue, and we are not supporting it and therefore we endorse that behaviour on a worksite, is objectionable and I would ask you to take that statement back.

The Hon. J.M.A. LENSINK: The Hon. Ms Bonaros is putting words in my mouth. I will not be verballed by Ms Bonaros. She tried that two months ago, and I will not be verballed by you today.

The Hon. T.A. FRANKS: Chair, just one last one, because I wanted to then go to part (2c) of the amendment in which the minister is required to certify, and part (2b), in which the minister must undertake that they do not consult the CFMMEU. Is the minister required to start every meeting with, 'Are you now or have you ever been a member of the CFMMEU?' and have them sign a piece of paper to attest to that?

The Hon. J.M.A. LENSINK: That is an absurd suggestion.

The Hon. T.A. FRANKS: Chair, this is an absurd amendment and the Greens will be opposing it.

The Hon. K.J. MAHER: I have one very quick question on the part that we are up to where it talks about the minister 'must not', when making a recommendation, consult in relation to appointments. If it is members of unions, does that mean if this was successful any minister would be prohibited from consulting with people who work at timber mills in Mount Gambier about an appointment to the ReturnToWork board? Does this specifically exclude a minister consulting with hardworking people in timber mills in the South-East about things that are relevant to them, like the composition of the ReturnToWork board, and why on earth would the Liberal Party want to do that?

The Hon. J.M.A. LENSINK: Again, I think the minister is trying to put words in our mouth. In terms of this particular amendment, it states the members of this particular union, if he had discussions—he has not actually stated in his particular question whether these individuals working there were union members or not.

The Hon. C. BONAROS: Can the mover just confirm: if you have someone like our federal Minister Wong who has a dual role—she is a minister and she is also a member of the CFMEU—and there arises a situation where it is appropriate to consult with her on an issue that concerns return to work, what would be the ramifications of this amendment? Would they be able to consult with Minister Wong in her capacity, or would they be precluded from doing so because she is also a member of the CFMEU?

An honourable member: Good question.

The Hon. C. BONAROS: It is a good question, if I must say so myself.

The Hon. J.M.A. LENSINK: I cannot imagine under what circumstances she is consulted at the moment. She is the foreign affairs minister of Australia, so what does she have to do with this?

The Hon. C. BONAROS: But let's assume for a moment that Minister Wong moves portfolios and she becomes the federal IR minister, and let's remember where jurisdictions for a lot of our IR laws sit in South Australia. I think we have a national model and they sit under the federal IR minister. So let's assume that next month Minister Wong moves portfolios, she has IR, and she is also a member of the CFMEU. What is the ramification of this amendment in that scenario?

The Hon. J.M.A. LENSINK: Did the state minister consult with the federal IR minister on this particular legislation?

The Hon. C. BONAROS: Did you consult with anyone about any of these possible scenarios on this amendment?

The CHAIR: The Hon. Ms Lensink, you have moved your amendment. I am going to put the amendment standing in your name.

The committee divided on the amendment:

Ayes 6

Noes 11

Majority 5


Game, S.L. Henderson, L.A. Hood, B.R.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A. (teller)


Bonaros, C. Franks, T.A. Hanson, J.E.
Hunter, I.K. Maher, K.J. (teller) Martin, R.B.
Ngo, T.T. Pangallo, F. Pnevmatikos, I.
Simms, R.A. Wortley, R.P.


Girolamo, H.M. Scriven, C.M. Centofanti, N.J.
Bourke, E.S.

Amendment negatived; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (18:02): I move:

That this bill be now read a third time.

Bill read a third time and passed.