Budget 20-21 Archives - Malcolm Roberts

Questioning the Fair Work Ombudsman (FWO) – Worker’s entitlements

For over 12 months I have been trying to find solutions to an unfair industrial relations system that has caused serious issues in the mining sector in the Hunter Valley and Queensland. There is a systemic issue of ‘full-time casuals’ who are being paid 40% less than their full-time counterparts and not receiving casual loadings or entitlements.

Additionally, these casuals are hired by labour-hire firms who have classed them as ‘office workers’ rather than ‘production workers’ and when injured are not covered by injury or workers compensation. During Senate Estimates this week I questioned the Fair Work Commission on why they allowed this unfair Enterprise Agreement in the Hunter Valley:

FWC said that there had been no proposal to change the Black Coal Mining Award by the parties, yet we know there was in 2017 when “the Fair Work Commission rejected the application by a major employers group to extend the casual employment provisions in the Black Coal award to Production and Engineering Employees” CFMEU News 6/7/2017.
Commission has no governance to ensure that workers actually agree with an enterprise agreement before the Commission rubber stamps it.
The FWC is part of the problem not part of the solution.

Transcript

Senator ROBERTS: Thank you, Chair, and thank you all for attending. Ms Parker, could you tell me briefly your role, please. What’s the core of your role?

Ms Parker: I’m an independent statutory appointment, and I’m responsible for implementing the functions under the Fair Work Act. That includes: providing education, assistance, advice and guidance to employers, employees, outworkers, outwork industries and organisations; promoting and monitoring compliance with workplace laws; inquiring into and investigating breaches of the Fair Work Act; taking appropriate enforcement action; and performing the agency’s statutory functions efficiently, effectively, economically and ethically. The Fair Work Ombudsman—as in myself—inspectors and staff constitute a statutory office established by the Fair Work Act 2009.

Senator ROBERTS: Thank you very much. We’re very concerned about so-called casuals—I say ‘so-called’ in reference to the fact they’re not really casuals; they’re permanents. I’m referring to employees in the Hunter Valley in particular, but there are some aspects that translate into Queensland. This so-called casual coalminer issue has dragged on for years. What are you doing to fix this problem?

Ms Parker: We’re well aware of the issues, and, as you know, you and I have written to each other a couple of times. We take the matter really seriously; I can assure you of that. Where it’s about long service leave, I think we’ve mentioned before that there is a Coal Mining Industry (Long Service Leave) Funding Corporation, and we don’t have anything to do with that. Long service leave is not our purview. We do provide basic information around that, and we refer specific inquiries to that corporation if they’re about long service leave. The Fair Work Commission, who you spoke with earlier, has jurisdiction to resolve long service leave disputes under the Coal Mining Industry (Long Service Leave) Administration Act. The Fair Work Commission can assist with disputes under the act as well, when a modern award provides for a procedure to deal with disputes.

We don’t have power of that kind. We can provide general information about the long service leave scheme in the black coal industry. We’re aware of a number of class actions that are being pursued around issues in the coalmining industry. We’re obviously watching those, but they are before the court, so I won’t be able to comment on those, as you probably can understand, or about the circumstances of any individual who has sought our assistance in regard to the matter that’s before the court.

Senator ROBERTS: You did broaden it by mentioning coal LSL, so I might as well put the whole scope in there. I know you can only access or reference or work on some of those. These are in relation to miners in the Hunter Valley: loss of workers compensation; no accident pay; safety issues; nonreporting of injuries; pay rates; leave; loss of leave entitlements; long service leave, which you already mentioned—some of these are beyond your purview—security; threats; intimidation; and bullying. As I said, they’re not all your responsibility, but I’m particularly concerned about the definition of ‘casual mineworker’ and the award. As you know, your website has said and, in a letter to Simon Turner, one of your advisers said that there is no classification of ‘casual’ in the black-coalmining industry award. Specifically on pay and leave, there are no leave provisions in the enterprise agreement. These people are working full-time production roles, but casuals can’t work in production; they’re working extended rosters with no leave; and they’re being underpaid relative to their peers in full-time employment. They also have been neglected by the unions. Sorry, I’ll make that very clear and specific: the Hunter Valley division of the CFMMEU, not the whole CFMMEU. These people had no-one to turn to. They turned to you. They’ve written to you, as I said, and one lady said, ‘There is no classification of ‘casual’.’ How can they do a BOOT when there’s nothing to compare against?

Ms Parker: Senator, we’re talking about the enterprise agreement that was negotiated with the unions and employers and approved by the Fair Work Commission.

Senator ROBERTS: Yes, it was rubber stamped by the Fair Work Commission.

Ms Parker: It does include casuals, as you said, in some categories. The fact that the award doesn’t have casuals does not preclude the enterprise agreement having casuals. I think Mr Hehir said in his evidence that it is the Fair Work Commission’s role to make sure that the enterprise agreement is fair once it’s agreed.

Senator ROBERTS: How then can BHP’s Operations Services recent application for an enterprise agreement be knocked back, and yet the Chandler MacLeod 2015 enterprise agreement be passed even though the BHP OS pay rates are higher than the Chandler MacLeod pay rates?

Ms Parker: It’s a matter you’ll have to ask the commission, I’m sorry.

Senator ROBERTS: I did.

Ms Parker: They are an independent tribunal and they will have had witnesses in front of them, people providing evidence to them, before they made that decision.

Senator ROBERTS: I asked the Fair Work Commission about anybody applying to vary the black- coalmining industry award about casuals, and they said they’re not aware of any. But I notice on one of your websites and also from the CFMMEU in Queensland, that the Fair Work Commission rejected an application to vary the black-coalmining industry award 2010 to enable the engagement of casuals across all classifications of the award. That was an application from a large employer group. The CFMMEU opposed that, and it was defeated. So how would the Fair Work Commission not be aware of that?

Mr Hehir: If I recall Ms O’Neill’s evidence, it was she didn’t believe there had but that she would take it on notice and check. I think that’s where she went to.

Senator ROBERTS: It’s pretty stunning, Mr Hehir, that this issue’s been going on six years and we’ve made such a big fuss about it in the last 12 months and she wouldn’t be aware of it. Anyway that’s for her, as you said. Recently I asked you, Ms Parker, how many casual black-coalminers from the Hunter Valley have referred complaints or matters relating to their pay and entitlements to your office since 2014. Your response was ‘none’. Since that time you’ve been forced to admit that Mr Simon Turner did lodge complaints during this time period. Can you advise if there were more cases? In all instances please advise the outcomes of their complaints.

Ms Parker: We do apologise that we advised ‘none’. We were certainly not trying to hide that. It’s in terms of our search facility. You have to be very precise. This is black coal, and it’s a specific area of black coal. So I apologise. We did correct the record. We’ve had one that we’re aware of, and we’re pretty confident that that’s all we have. As I said, the system searches are maybe not as surgical as we would like. But we’re very much aware of one.

Senator ROBERTS: I take it that the Attorney-General’s Department now, and the preceding minister who looks after industrial relations, are responsible for changing the regulations or the legislation. Who is responsible for advising them of the need to do so? Because casualisation and the abuse of casuals has really been an issue for quite some time, yet now it has landed employer groups and many hundreds of thousands of workers in problems.

Ms Parker: In terms of our role as the Ombudsman, we enforce and apply the law as it stands. As you say, we are not responsible for the policy or legislation.

Senator ROBERTS: No, I didn’t imply that you were responsible for the legislation, but I would have thought that you could have been advising the Attorney-General or his predecessor of the need to resolve this problem, which has been going on now for at least six years.

Ms Parker: We certainly have regular conversations with the Department, Mr Hehir, about a whole range of matters.

Senator ROBERTS: About this issue? When did you start talking about this issue?

Ms Parker: I haven’t discussed this particular issue. We’ve talked about the WorkPack v Rossato issue, how we interpret casuals, and what advice we provide to the public on casual employees. We are aware that the government’s review of the IR system and the working groups are looking at this area of casual employment. We are monitoring that, and we will provide advice and data. We’re happy to share with the committee what we do with the casuals issue and what advice we provide. But in relation to the legislation, that is a matter for the government.

Senator ROBERTS: It’s my understanding that the Fair Work Ombudsman told Mr Turner to ‘go and get a lawyer’ in order to resolve this and that you have denied the existence of casual coal production workers. You are, I hope, aware of the significant damage that this stance of yours has caused both employees and employers, who now have been taking advantage of this and have racked up a huge liability.

Ms Parker: I don’t believe that we would advise anybody to go get a lawyer. We provide advice to people about all the various areas of assistance that are available to them. Where we are unable to help them, as in we do not see that they are eligible for payment based on the definition in the legislation as it stands, we will advise that they may be able to go to small claims or they may be able to take a court case. In fact, as I mentioned earlier, there is a class action being pursued at the moment on this particular issue.

Senator ROBERTS: Have you done anything to actually help Mr Turner and casual employees like him? Why has it taken so long and it’s still not resolved? These people are in limbo, they’re living out of garages, they’ve been traumatised—why?

Ms Parker: We provide assistance to everyone who contacts us. I’d rather not discuss Mr Turner. We don’t talk about specific requests for assistance. We haven’t asked Mr Turner if he minds us talking about him in Senate estimates.

Senator ROBERTS: Mr Turner has assured me that I can inquire about him. He is very distraught about the lack of support he’s received from anyone, including the union; the employer; the mine owner, BHP; state and federal bureaucracies and agencies; Labor MPs; Liberal ministers—he’s at a loss.

Ms Parker: All I can say there is that we have provided—our website says that only staff employees can be casuals under the award. And the webpage references schedule B of the award. It sets out classifications for staff employees et cetera. We’ve provided the factual information that we have on the actual award. Some people were not satisfied with that answer, so the only option we have is to refer them to those other sources of help, including their ability to go to court if they wish to. We’re not a court or a tribunal.

Senator ROBERTS: So there’s a problem here. Obviously within the legislation there’s a problem, and some people are taking advantage of that. You’ve just said, tough, that’s the way the legislation is. You haven’t referred it to anyone who can change the legislation or investigate changing it or advise changing it? These people are still out in the cold.

Ms Parker: The government’s aware of the issues around casuals, and as you know—

Senator ROBERTS: So how long have they been aware of the issue around casuals? Mr Turner has been writing to people in the government since 2014.

Mr Hehir: Sorry to interrupt. I think we’ve talked broadly around the government’s intent to legislate for a definition of a casual and to legislate for casual conversion rights. I accept that the casual conversion rights may not work at this point in time for the individual you are referring to. The issue that perhaps would be worthwhile us meeting with you separately on is how the enterprise agreement definition has actually impacted on the other issues that you raise. What I’m not clear about is how an enterprise agreement arrangement would impact on somebody’s right to workers compensation. So perhaps we could meet with you separately to try and tease out how this all flows to end up where the actual problems are arising. On the face of it, there’s nothing, to my knowledge, that would mean that somebody who has an enterprise agreement isn’t entitled to workers compensation. I’d need to get into more detail to actually understand what’s occurring to cause that break.

Senator ROBERTS: Ms Parker raised Coal LSL, and when she did, I said let’s go to the full scope of how these people are being abused, exploited and neglected. You’ve now raised workers’ compensation as well. That’s not the main issue. The main issue here is the complexity of the issues, and nobody is fixing it: not the state government, not the federal government. No federal or state agency, no politician is fixing this thing. These people are continuing to face this after six years of neglect and exploitation. I asked Ms Parker a simple question: how long has the government known about it? She said, we know the government knows. I want to know how long they’ve known about it. Was it last year, the year before, 2014?

Ms Parker: I was talking about casuals in general. I apologise if I confused you.

Senator ROBERTS: It’s not hard to be confused on this issue, I can tell you, because there are several people who know one thing very clearly: they are not being protected by employers, unions, agencies federal and state, politicians, governments, ministers at all. These people have been left out in the cold. We now know there is no legal pay rate for a casual mine worker. So someone made it up then; otherwise you wouldn’t be able to do a boot test.

Mr Hehir: Senator, that’s not the responsibility of Ms Parker.

Senator ROBERTS: With respect, Mr Hehir, you said it wasn’t the Attorney-General’s responsibility, and I took it that you implied his predecessor. It wasn’t their responsibility. You said look at the Fair Work Commission. The Fair Work Commission told me it’s not their responsibility; look at the Fair Work Ombudsman. We’re getting running round in circles. This is a magic circle.

Mr Hehir: My understanding of the evidence provided by Ms O’Neill was that in assessing the enterprise agreement that you referred to the relevant commissioner, under the legislation, would be required to assess whether that award was better off overall compared—

Senator ROBERTS: I get that, but how can you refer to a rate when there is no rate? I offered her the opportunity of giving her the full-time roster that these people were employed on as casuals. Could you cost that?

Mr Hehir: It’s a very complex process that the Fair Work Commission undertake to make sure that people are better off overall. I think Ms O’Neill’s evidence was that they’ve changed their practices to try and insert more rigour into that.

Senator ROBERTS: But that indicates that there was a problem before the change last year. So what is going to be done to look after the people who were affected by the ‘unrigorous’ system?

Mr Hehir: As I said, you’ve raised a number of issues and circumstances around this particular individual and, you say, others which—

Senator ROBERTS: Hundreds of others.

Mr Hehir: As I said, it would be useful if we could meet to go through the relevant issues. As I said, some of the things that you imply arise from the enterprise agreement definition. I’m not clear how they would cause that. So I’d need to work through that and understand the interaction with the New South Wales workers’ compensation laws. There is a separate worker occurring around the long service leave. But certainly I’m not aware of a circumstance in which the arrangements under an enterprise agreement would impact on workers’ compensation, so I’d need to have a look at that.

In terms of the actual decision, I think Ms O’Neill was clear: if someone didn’t think that decision was appropriate or that enterprise agreement was correctly decided in terms of passing the BOOT, they were able to appeal it. I think Ms O’Neill identified that that particular enterprise agreement has nominally expired and that the other option there is for someone to apply for the agreement to be terminated. They are the technical processes that need to be followed. As I said, there seems to be a complex web of interactions here. It would be useful if we could meet with you to go through those.

Senator ROBERTS: I’m happy to meet privately with you and go through them, but we’ve had several meetings and nothing has happened. What’s my main concern, Mr Hehir?

Mr Hehir: Senator, your main concern seems to be that the individual is stuck in limbo—

Senator ROBERTS: And hundreds of others like him.

Mr Hehir: and that he cannot find a straightforward answer from the Commonwealth government or the state governments.

Senator ROBERTS: He’s wanting more than an answer. He and I are wanting a solution. I’ve got three aims for this, and I’ve said this from the start. This goes back to May last year, and I first raised it around about July last year and then in Senate estimates and so on. My first aim is to make sure that Simon Turner and other people like him get their fair entitlements—morally fair as well as lawfully fair—and I want him to get some compensation for the trauma he has suffered for the last six years. The second aim is to make sure these practices are stopped right across the coal industry. The third aim is to bring some justice to the perpetrators of this, who in my opinion are BHP, Chandler Macleod and the Hunter Valley division of the CFMMEU. That’s what I want. Is there any way you can help us in achieving some of those three aims?

Mr Hehir: We can certainly look at what the legal entitlements. In terms of the moral entitlements, I’m not sure exactly what you mean by that. The legal entitlements we can certainly examine.

Senator ROBERTS: If you go beyond the nitpicky words of the law and you look to the intent of the law, he’s been diddled by some mistakes, some ways of interpreting the law wrongly. Everyone knows that a minor who works in a black coal mine is entitled to workers’ compensation under coal miners’ insurance. There was nothing for him. I’m not going to ask your salary, but he’s existing on $20,000 a year—a fraction of what he used to have.

Mr Hehir: As I said, I’m not aware of what impact his enterprise agreement status would have on his workers’ compensation. I’ve offered to meet with you to go through the details to try and understand how that flows.

Senator ROBERTS: I’ll happily agree to that. But my second concern is that this has been going on unresolved for 16 months now, and I don’t see any sign of it being resolved. These people are still being left in limbo. They’ve just been discarded. My concerns now have become: What are the federal government agencies doing, and is the government at all interested in doing this? How can we possibly support changes to legislation when they’re not even enforcing the current legislation or leaving people out in the cold and there doesn’t seem to be any intent or desire to fix it?

Mr Hehir: That’s certainly not my understanding of the Attorney’s view. As I said, I’m happy to meet to go through the detail. I know that there’s work underway in relation to long-service leave, which was the issue that I recall you—

Senator ROBERTS: After first being denied that there was an issue and then admitting it—that’s a pleasant sign. It took us months to get that.

Mr Hehir: As I said, there is work underway to try and resolve the long-service leave issue. In relation to the actual approach around the enterprise agreement, as I said, I’m happy to have a look at the interaction with other matters. But the enterprise agreement was a document that was accepted by the Fair Work Commission once the employees had voted on it.

Senator ROBERTS: After what we now see—an admission that it’s been tightened up and made rigorous, which implies to me that, before, it wasn’t. So there’s been no investigation of that from what it seems.

Mr Hehir: Ms O’Neill, I think, was at pains to point out that she wasn’t making the statement that the previous process had caused any issues with that particular agreement.

Senator ROBERTS: But there were changes to make it more rigorous, implying that it wasn’t as rigorous before. What I’m seeing is that the Fair Work Ombudsman is not taking responsibility for suggesting changes to a problem or solutions or even identifying the need to investigate a problem to the Attorney-General, and I’m also seeing that it’s not the Fair Work Ombudsman’s responsibility to come up with a solution. So how does the Attorney-General possibly identify this? This just sits there, and Simon Turner keeps sleeping in a garage.

Mr Hehir: As I said, the responsibility for the actual awards and the approval of the agreements is the responsibility of the Fair Work Commission. Ms O’Neill has outlined what she believes are the alternatives there and taken some questions on notice. In relation to the issue around whether Mr Turner was a genuine casual or whether he was should have been classified as an ongoing employee, the Attorney has identified that he intends to introduce legislation in this calendar year to deal with the definition of a ‘casual’ to make it clearer for both employers and employees of what their actual status is and to also provide greater clarity and certainty around the

right to convert. So, in terms of the future, that particular aspect is certainly being looked at. As I said, I’d need to have a look at the interactions with the other jurisdictions.

Senator ROBERTS: I’m concerned that the application that the government has submitted to be part of their Rossato case—I don’t know the technical legal term—was accompanied by some pretty inflammatory rhetoric. All I see in the Rossato case is a decision that says: ‘You tried to have these people passed off as casuals. They’re really permanents.’ So I think we need to have a lot more openness, candour and honesty from the government on Rossato.

Mr Hehir: As I said earlier, the government’s primary interest in Rossato is clarifying whether any claim for the National Employment Standards made by someone who believes they were never or are no longer a casual is able to be set off by the loading. That’s where our interest is, and that’s where the focus is.

Senator ROBERTS: In my opinion, the Rossato decision makes that clear. But that’s up to you, of course.

CHAIR: Senator Roberts, how long do you think you’ve got?

Senator ROBERTS: Probably another two questions.

CHAIR: That’s okay. Then I’ll go to Labor.

Senator ROBERTS: I have some questions for you as a participant in this process, Ms Parker: Is the industrial law in this country at the moment too complex? Is it impossible to cover everything, impossible to enforce and impossible to understand? How can an everyday worker who doesn’t want to become a lawyer possibly understand what’s going on? He relies on other people to interpret for him or her.

Ms Parker: For the bulk of the workforce, who are on awards or agreements, it’s relatively simple. They don’t have to read the whole award. They don’t have to read the whole agreement. They obviously need to understand what they should be getting paid and what their entitlements are. We provide a lot of assistance to people who phone us and ask us. If they have concerns then we help them. We have a pay and conditions tool that they can look at to work out what they should be paid. There’s a lot of information out there to assist workers, and we do that to the best of our ability. There is some complexity in the system but, for an individual worker looking at their own individual entitlements, it should not be that complicated. Obviously, if you look at the whole Fair Work Act and see how large it is, you’ll say it’s really complicated, but most people don’t need to look at the whole Fair Work Act; they only need to look at a small component of it.

Senator ROBERTS: Mr Turner impresses me as being very intelligent, very capable and very astute, as does Stuart Bonds, who’s tried to help him with this issue for 16, 17 or 18 months now, and they just can’t get through it. I don’t think it’s a matter of the complexity by itself; it’s a matter of the complexity of all the hangers-on they’re trying to drag with them and trying to shake some sense into. There’s something in this mess that’s causing these people to be discarded and exploited. First of all, a company like Chandler Macleod can exploit them. The Hunter Valley division of the CFMMEU enables that, and BHP gets away scot-free and avoids its corporate and moral responsibilities. These people are tossed on the scrap heap. So there’s something wrong with this system. The whole system has broken down.

Ms Parker: This is clearly a complex case. It’s clearly a complex award and a complex enterprise agreement. Our role is to try to make it as simple as we can, but we can’t change what the agreement actually says. It was negotiated; it was approved. It therefore is in play. What the Fair Work Ombudsman—

Senator ROBERTS: So, after six years with the Fair Work Commission, the Fair Work Ombudsman and the Attorney-General’s predecessors, they’re still here. I think we’ve done this enough for now. You know where I stand.

October 30, 2020/by Senator Malcolm Roberts

Questioning Coal LSL – Worker’s Entitlements

Budget 20-21, Climate Change, Senate Estimates

During Senate Estimates earlier in the year, I was able to get Coal LSL to admit that there were discrepancies in hours worked reported by employers and to start an audit. Since this questioning, many other workers have come forward with issues and questions they wanted asked in Senate Estimates. Accountability and transparency seems to be lacking and workers are in the dark as to best manage their long service leave entitlements.

Transcript

Senator ROBERTS: Thank you, Chair. Thank you both for appearing today. Could you tell me, firstly, what has Coal LSL done since last estimates to address the errors and wrongs identified in employer data and when will people be compensated, and what is the total value of the errors to date?

Ms Perks: I’ll start with—

CHAIR: We’ve lost you, I think, again. Hello? Can we hear you? Can you speak again?

Ms Perks: Yes. We’re getting a delay.

CHAIR: You’re getting a delay; a delay on your voice? So there’s an echo? We might pull the plugs out. We will suspend briefly again, so can you log off and log on again, please? Thank you.

Ms Perks: We will.

CHAIR: Thank you. Senator Roberts.

Senator ROBERTS: Thank you, Chair. What has Coal LSL done since last Senate estimates to address the errors and wrongs identified in the employer data and when will people be compensated, and what is the total value of the errors to date?

Ms Perks: Thank you, Senator. The six individuals who were identified back in October who were employed by the Programmed TESA Group have had their records adjusted and it has resulted in a change of 55 hours of entitlement for the total six out of the eight that were identified. Since October, Programmed Tessa, who was the employer—

CHAIR: I think what happened there is that there was more feedback.

Ms Perks: We’re getting the question coming back, circling.

CHAIR: Okay. So the question is on repeat. That would be amusing. It’s a very important question, Senator Roberts. We will suspend again briefly and we’ll do it through Chorus Call. Someone from the secretariat will be in touch to advise you how to do that. We will get you on the phone but not via videoconference.

Ms Perks: Okay.

CHAIR: For the third time, Senator Roberts is going to ask his question. Senator Roberts.

Senator ROBERTS: Thank you, Chair. What has Coal LSL done since last Senate estimates to address the errors and wrongs identified in employer data and when will people be compensated, and what is the total value of the errors to date?

Ms Perks: Since the last Senate estimates in March the focus of the organisation has been on getting visibility of the issues that were identified. The six individuals who were addressed in the October Senate estimates have had their records updated, which resulted in a change of 55 hours of entitlement for the six in total. Regarding the other two individuals of the eight, it hasn’t resulted in a change in their record on that review. Now, in saying that, what has commenced outside of those six individuals has been a commitment by Coal LSL to commence an audit of the employer data for any employers who have casual employees within the Coal LSL scheme. That audit has commenced and is in train. We don’t have visibility yet of what the outcome of the audit will be or any changes to individuals’ records as a result of that audit.

Senator ROBERTS: Thank you. The second question: why doesn’t a casual get the same Coal LSL payout as a permanent employee when they both work the same hours and roster on the same site in the same role? If this is because of the act, why hasn’t Coal LSL referred the matter to the government and why hasn’t the government fixed this?

Ms Perks: If a casual employee works a 35-hour week, which is a full-time equivalent, they will accrue the same long service leave entitlement as a full-timer. Our records for the employee are held in hours, and if the employee does work for 35 hours during the week their records will be at that full-time equivalent maximum entitlement.

Senator ROBERTS: Thank you. Are casuals made aware that they can waive the Coal LSL scheme and have the contribution paid direct to them? As you will appreciate, this would benefit a lot of casuals that may not stay for the eight-year qualifying period.

Ms Perks: I can’t talk to whether casuals, in particular, have visibility of that. It was an enhancement in our legislation back in 2010 to include waiver agreements as an option for all employees in the scheme. I can take that question on notice. From memory, we have as minimal as four waiver agreements, but I will verify that number and confirm that.

Senator ROBERTS: Sorry, what was that last sentence you said?

Ms Perks: From memory, I think we have four waiver agreements in place out of 426,000 records, but I will take that question on notice and verify that.

Senator ROBERTS: Why, if a casual does take the Coal LSL waiver option, do casuals only get paid two per cent when the Coal LSL payout is based upon 2.7 per cent?

Ms Perks: All employees, irrespective of their employment status, would be paid based on certain criteria in the legislation which my colleague Mr Kembrey will talk to. The two per cent that you’re talking about is our payroll levy and is not correlated with an employee’s long service leave entitlement. That percentage is in relation

to the payroll levy that employers are required to pay. It is a tax that’s imposed, and that levy of two per cent has been in place since 2018. Prior to that it was 2.7 per cent, but it was reduced in 2017 to that lower level. It’s a rate that’s applicable to all employers who are registered in the fund.

Senator ROBERTS: Could you please provide details of the number of casual employees who have contributions made to the scheme for them and detail how they may have been paid out? How many have left the industry and how much money does this represent for those employees who have not returned to the industry in, say, over three years? In other words they haven’t been paid out and they’ve left the industry.

Ms Perks: I could talk to the amount of casuals who are active in the industry today. According to our records, in round figures it’s 9,000. I will need to take your other questions on notice. They are quite detailed questions that will need to be responded to.

Senator ROBERTS: Yes, that’s fine; take them on notice. They are very important to us. Can you explain in detail why the amounts contributed by employers to Coal LSL for eligible employees, both permanent and casual, are different to the amounts paid out for those employees? Could you please explain the reasons for the discrepancy in detail, the break-up of what funds go where and the total value that this represents annually?

Ms Perks: There are two important components of the fund. The payroll levy is a tax that’s collected on behalf of the government. That is received monthly by employers. It is remitted to the commonwealth and appropriated back. Separate from that is the records that we hold for all employees in the fund, and that entitlement is accrued in hours. The payment that’s made to the employee will be reliant on their employment agreement. Our legislation does specify the minimum that should be paid. Mr Kembrey might be able to refer us to the section in the legislation that talks about minimum payments that are required on termination or in-service leave. But it is a different part of the legislation to the payroll levy collection act, which talks about levies that are received for the fund.

Senator ROBERTS: Thank you. Is Mr Kembrey going to add anything?

Mr Kembrey: The best way to break down the question is that the payment of levy is not necessarily correlated with the accrual of the entitlement. When entitlements are paid, they are paid at the rate that the employee is earning at the time that they take that long service leave.

Senator ROBERTS: Can you please reconcile the difference between employer contributions and employee payouts? Please also advise what happens to, firstly, the funds where an employee leaves the industry prior to qualifying and fails to return to the industry and, secondly, the total amount of these funds where employees have left the industry, how much is dispersed, and to whom, on an annual basis over the last seven years.

Ms Perks: The fund is a pooled fund. It’s important that employees of the fund understand we are very different to a financial institution and super funds. The fund is a pooled fund. The nature of portable long service leave means employees can move in and out of the industry, and they can have a maximum break from the industry of eight years before their qualifying service accrual is impacted. That’s important context. We must hold the funds for that period of a break in service of eight years, in case that employee returns to the industry, so that we can continue to ensure that we have sufficient funds to pay out for future long service leave.

The actuary assesses and protects the fund’s assets and liabilities based on important assumptions. One is investment returns. There is also the probability of employees reaching eight years of qualifying service. In regard to the employees that you’re talking about, the probability of an employee meeting that eight years of qualifying service starts at a base of 50 per cent. Our data tells us that an employee that’s been in the industry for less than one year has a 49 per cent chance of meeting that eight years of qualifying service. We hold the funds as a pooled fund through that duration of a maximum of eight years break period to anticipate that future liability that the fund may incur. It is a complex calculation that the actuary conducts. It has fundamental assumptions that underpin that assessment of the fund’s assets and liabilities.

Senator ROBERTS: Could you please tell us how much money is involved in people who have gone beyond the eight years and are not in the industry, and won’t ever get a payout? What happens to their money?

Ms Perks: Senator, can you ask that question again, please?

Senator ROBERTS: If someone leaves the industry and a period of eight years lapses, what happens to their money?

Ms Perks: The fund is structured as a pooled fund. Employers pay a tax to the government that is appropriated back to the fund. The actuary assesses assets and liabilities. We hold an entitlement in hours for the employee. We do not hold an asset which is financially attributed to that individual record. I’m being specific but the record doesn’t have a monetary dollar correlated with it at the record level. It is reported in hours. The actuary assesses

based on the hours that we hold, and 55 million hours of entitlements were held at June 2020. The actuary assesses the likelihood of paying liabilities out of the fund based on the entitlements that are held in hours.

Senator ROBERTS: You would still have to account for everything in a dollar sense if it’s a pooled fund, wouldn’t you? Some people are not going to come back after eight years, so what happens to that money? What happens to those hours? Where do they end up?

Ms Perks: If an employee has a break from the industry for eight years or further, their records will cease to accrue. If they return to the industry they would start from zero years of qualifying service again. So it is an eight years break, which is the most generous break that any long service leave provision allows for. The actuary assesses the likelihood of someone returning to the industry. In that assessment the actuary says that the fund needs X dollars to pay out future liabilities. With that they correlate a payroll levy that is appropriate to be imposed on employers in regard to the collection of future levies.

In the situation where we have seen a larger number of employees not returning to the fund, one would assume that could result in the pooled fund increasing and the liabilities would decrease. If our assets are in excess, that could result in us recommending to the minister to reduce that payroll levy further from that two per cent to a lower rate. The assets and liabilities are correlated continuously by the actuary to assess whether the payroll levy that’s imposed on employers is sufficient to meet the liabilities that are projected to be incurred by the fund in the future.

Senator ROBERTS: Are you saying that if someone is out of the industry for more than eight years, if they come back after that, they will go back to zero and start again? If there’s a surplus or an excess of funds in the pooled fund, the minister will have a recommendation to reduce the payroll levy?

Ms Perks: That is it, in a simplified manner, yes. The three correlate, yes.

Senator ROBERTS: In 2019 I drew to your attention discrepancies and outright employer misreporting. What have you done to fix all employee entitlements? What steps has Coal LSL taken? If this response took the form of, say, a review project, when will the project be completed, how much will the project have cost and will Coal LSL be prosecuting employers who have negligently or wilfully misreported or mispaid Coal LSL contributions?

Ms Perks: The important action that Coal LSL has taken since March is to commence an audit of employers of casuals; 9,000 casuals are active in the industry to date. That audit program will extend to review those records. That is in train. The outcomes of that audit will be assessed, and certainly they will be reviewed as to whether rectification or penalties would be appropriate if there’s any understanding of deliberate misreporting of hours.

Senator ROBERTS: You have the ability to penalise employers and prosecute them; is that right?

Mr Kembrey: In certain circumstances, that is correct. In terms of the time lines, it will be a rolling time line. We’re in the early stages of this. We’d expect to see some results of the audit in the next month or two, and that rolling out over the next 12 months.

Senator ROBERTS: If Coal LSL is not prosecuting any parties for negligent or wilful misreporting, could you please advise us of the assessment process that Coal LSL went through, how this assessment process was managed, by whom, and also explain in detail, despite the evidence of misreporting, why no parties were held to account? You won’t be able to do that for another month, at least, but would you be able to do that, please?

Mr Kembrey: Certainly, we can take that on notice.

Senator ROBERTS: Thank you. Could you please report whether any members of the Minerals Council of New South Wales were parties or related entities to those who misreported, and provide a list of same, including the number of instances by entity? You can take that on notice as well, because that won’t be able to be done for at least a month.

Mr Kembrey: Yes, Senator.

Senator ROBERTS: Thank you. I also have concerns, as we’ve spoken about in the past, with regard to the governance of Coal LSL. I’d like some data, please. Could you provide an Excel spreadsheet that includes all employers registered with Coal LSL covering the period 1 July 2012 to 30 June 2020, including the company or business name, their ABN, the authorised officers, active dates, and details of payments or reimbursements made to each registered employer for the subject period?

Mr Kembrey: Senator, that would be an extensive task. Potentially, we could discuss what the information is that you’d like from that, over an eight-year period. When you say ‘authorised officers’, I’m assuming you mean directors?

Senator ROBERTS: Yes, the people you’re dealing with.

Mr Kembrey: Often we’re not dealing directly with directors; we’re dealing with employees of the company. Senator, perhaps we will take this question on notice and we can talk further about how we could present the material that you’re after.

Senator ROBERTS: That would be great; thank you. Could you also please provide details of the process used to calculate payments to entitled employees; that is, how the amounts received, the entitlement and other costs, or inputs and outputs, are calculated? I’d like to understand the process.

Ms Perks: We’ll take that question on notice. We can certainly give more context to the payroll levy collection, the calculation of the entitlement and the employer reimbursement rules that relate to the outflow.

Senator ROBERTS: Thank you. Can you please provide details of where Coal LSL funds received for workers who leave the coal industry are held at all material times—I know you talked about them being in hours—who has the records, and the details of the process following the cessation of contributions for employers? Could you tell us where the hours or money goes? Could you also please include full details of where these funds are ultimately repatriated and full details of any service fees, costs or commissions paid and who they are paid to?

Ms Perks: We can take that on notice, Senator. I can say there are no commission service fees in regard to payments, but we will take that question on notice.

Senator ROBERTS: Thank you. Could you please provide an Excel spreadsheet of all entities that Coal LSL pays or transfers funds to, including but not limited to company business name, ABN, authorised officers, dates and details of payments or reimbursements made to each entity, including total payments, and an explanation as to the payment—for example, fees et cetera?

Ms Perks: Is that in relation to the employers in the fund or are you talking more broadly of every transaction that the fund incurs?

Senator ROBERTS: No, just the payments that are made to people who are entitled to have Coal LSL.

Ms Perks: We’ll take that on notice, yes.

Senator ROBERTS: Thank you. I’m led to believe that registered employers have great difficulty in reconciling the payments made to entitled employees by Coal LSL as they don’t seem to correlate to the employer contributions. Could you please detail the reasons for any differences between employer contributions and the total amounts paid to eligible employees and, in this regard, please advise where unallocated, surplus or remaining funds or hours are allocated and please advise whether this allocation complies with your constitution and governance framework? Have these matters been raised in any internal or external audit over the period 1 July 2012 to 30 June 2020?

Ms Perks: The first part of the question I’m taking as being similar to a previous question; so we’ll answer that in light of the previous question. Coal LSL is audited by the Australian National Audit Office annually. The audit has been completed. There are no findings in the audit and we’ve had no findings in our audit for the last two years. We can give you a copy of that audit report. It is included in our annual report, which is going through the tabling process currently; so that is available for the public’s review.

Mr Kembrey: I note that in that question there were about five questions; so we’ll take a number of those later ones on notice. I think the first point that you raised was in regard to employers struggling to correlate the reimbursement to the payment to employees; is that correct?

Senator ROBERTS: Yes, that’s correct.

Mr Kembrey: The matter of what is paid to an employee is a matter that is to be decided between the employer and the employee. Then the employer requests a reimbursement for that payment and we need to see some evidence that the money that they are requesting from the fund was paid to the employee. And with the reimbursement, there needs to be some correlation with the levy payment that they’re paying—in a sense, the salary, the payment or the wages that they’re paying a levy on—so that we can ensure that either they’re not being over-reimbursed or the employee certainly is not receiving the reimbursement in full. That’s where the correlation should be. Without any specifics, it’s difficult for me to talk to it.

Senator ROBERTS: Then we might be in touch with you for more on that. I’ve raised many concerns in regard to the treatment and payment of Mr Simon Turner. I note that you’re aware that Mr Turner was forced to leave the coalmining industry due to workplace injuries at the Mt Arthur coalmine that left him totally and permanently disabled, TPD. I note that, approximately three years after my raising these injustices in Senate estimates, Mr Turner has had his case only partly reviewed and that Chandler Macleod, his employer, and Coal LSL have yet to resolve his termination status as being TPD. When will this status be updated and when will Mr Turner’s outstanding questions be addressed?

Mr Kembrey: As we discussed back in the estimates in March, we have been assisting Mr Turner for a number of years now. And the difficulty with that particular issue you’re raising is that that is a dispute between Chandler Macleod and Mr Turner. We have been trying to mediate that and obtain some factual evidence to support the position put forward by Chandler Macleod. At this point in time the parties are holding their positions and they don’t agree with each other. The last we were advised is that those matters are subject to court proceedings in the Federal Court at present. So there is not anything more we can do to try to resolve that, unfortunately.

Senator ROBERTS: What sorts of records would you turn to for proof?

Mr Kembrey: We would turn to contemporaneous correspondence that evidences the reasons. As you know, this is a dispute about the reason why Mr Turner was terminated by Chandler Macleod back in 2016; so we have requested contemporaneous material that supports the position that Chandler Macleod put forward or justifies that position, and that has been provided. We’re not in a position to make a legal assessment of that, because that is not our role; the Fair Work Commission has the power to do that. But I believe that Fair Work Commission proceedings are on foot and those proceedings have been transferred to the Federal Court. Hopefully, for Mr Turner, there is some resolution to that matter in the near future.

CHAIR: Senator Roberts, just before your next question, we will be breaking at quarter to four for the afternoon tea break and concluding with these witnesses and I know that Senator O’Neill does have some questions. If the two of you could perhaps have a conversation about timing for the remaining nine minutes that would be fantastic.

Senator ROBERTS: I’ve got four more questions that I’ll put to you on notice, Mr Kembrey and Ms Perks, but I’ll ask this question: Queensland and Hunter Valley coalminers and coalminers everywhere expect Coal LSL to maintain a high standard of probity. Casual coalminers expect that you will do the right thing by them and give them the freedom of choice to waive the Coal LSL contributions for them to receive the 2.7 per cent or the two per cent as additional income. I just want to make that point on the record.

October 30, 2020/by Senator Malcolm Roberts

Questioning the Foreign Investment Review Board (FIRB) over CuDeco

Budget 20-21, Foreign Ownership, Senate Estimates

This round of questioning occurred in the October/November Hearings of Budget Estimates, focusing on large concerns I had brought to my attention over the sale of CuDeco. FIRB provides recommendations to the Government in relation to the risk of certain foreign investments.

Transcript

Senator ROBERTS: Thank you for appearing today. My questions are with regard to the sale of assets of the delisted stock exchange minor CuDeco Limited. The receivers have claimed on 12 June 2020 that approval had been recommended by FIRB for this. Would FIRB confirm whether or not it recommended that Copper Resources Australia may purchase CuDeco assets, including its major copper mine, on or shortly before that date of 12 June?

Mr Hamilton: Certainly, we’ve been following media articles in relation to CuDeco, which, as you know, entered voluntary administration in July 2019 and, as you said, was delisted from the ASX in February 2020. As you know, we don’t comment on the specifics of individual cases, but we do understand that ASIC has looked into this matter. Questions about some of the concerns that have been raised in the public around allegations of phoenixing by CuDeco should be directed to ASIC.

Senator ROBERTS: Are you aware that this copper mine is reputedly one of the largest in the world—or the copper reserves, sorry?

Mr Hamilton: Senator, I was not aware of that myself.

Senator ROBERTS: Was FIRB aware that Copper Resources Australia was only incorporated on 20 May 2020?

Mr Hamilton: Senator, again, I’m not aware of these details. But, as I said, we would be limited in what we would wish to talk about in a public forum in relation to these entities.

Senator ROBERTS: I’ll just ask the other questions, because they raise important points, and whatever you can answer, you can answer, and whatever you can’t, tell me. Was FIRB aware that Copper Resources Australia is basically a shell company with no significant assets and lacks the funds to buy the firm, and that it had no mining experience or funds of its own to complete such a purchase?

Ms Kelley: I think that’s the matter that we said ASIC was looking into.

Senator ROBERTS: Was there a recommendation made by FIRB?

Mr Hamilton: Personally I’m not aware of that, but we would not comment on that in any case, as we’ve said.

Senator ROBERTS: Is FIRB aware that a change of beneficial ownership form 484 was submitted on 14 July 2020, shortly after the approval was given, assigning the beneficial ownership to Chinese controlled company Dragon Field International Ltd?

Mr Hamilton: I refer you to my previous answer.

Senator ROBERTS: Was FIRB aware that it has been suggested that collusion of the Chinese directors and their actions brought the company into liquidation through fraudulent conduct intended to make the company fail and make it a cheap buy?

Mr Hamilton: I refer you to my previous answer.

Senator ROBERTS: Is FIRB aware that the bid of $30 million from Copper Resources Australia promises to be paid to only non-Australian creditors when an Australian bid of $60 million—double the price—to purchase was declined by the receiver?

Mr Hamilton: Again I refer you to what I said previously.

Senator ROBERTS: Is FIRB aware that, if this purchase is allowed to proceed, Chinese interests will allegedly acquire more than $100 million of Australian assets for less than $30 million, leaving Australian investors and creditors unpaid, with reportedly the plant valued as scrap metal?

Mr Hamilton: Again I refer you to my previous answer.

Senator ROBERTS: Can you explain how this recommendation—if you made that recommendation—could be in Australia’s best interest?

Ms Kelley: We’ve noted in previous hearings that we’re very happy to discuss these sorts of matters in a private hearing. The legislation has particular constraints on us around sharing protected information, but we have previously discussed particulars of certain matters in private hearings with senators. We’re happy to consider making that offer. There is another committee looking at foreign investment. We’ve appeared before them and we anticipate we will appear before them again.

Senator ROBERTS: Could you tell me when that would be?

Ms Kelley: I’m not sure when the next one is, but I think we are scheduled to appear.

Senator ROBERTS: Can my office get a briefing from you at all? Ms Kelley: We can certainly put that to the Treasurer’s office.

Senator ROBERTS: So you’ll get back to my office?

Ms Kelley: We’ll talk to the Treasurer’s office about that.

Senator ROBERTS: And then get back, thank you.

October 30, 2020/by Senator Malcolm Roberts

CSIRO – Senate Estimates

Budget 20-21, Climate Change, Senate Estimates

I am shocked that the CSIRO came so unprepared to Senate Estimates when I gave them my questions in advance. For an organisation who claims to have been studying climate science for 60 years, their responses were truly embarrassing.

I will prepare a more detailed response in the next few days, but to be clear, the government should not be relying on the CSIRO’s climate division for advice on climate science.

Transcript

[Senator Roberts]

Thank you chair, and thank you all for being here today. My questions chair, were sent in advance about two weeks, a little bit under two weeks ago, and deal with past presentations by CSIRO. And so my first question is that, as I said in the letter, number one, do you stand by CSIRO’s implied claim that Marcott and Lecavalier, are the best evidence CSIRO has for showing that the rate of temperature change today is unprecedented in the last 10,000 years.

[Chair – Sen. Paterson]

I’ll just very briefly say this Senator Roberts, ’cause there’s obviously been an exchange of correspondency. You’ve written to CSIRO and I’ve just received a copy of their response to you and Dr.Marshall–

[Senator Roberts]

I haven’t seen CSIRO–

[Chair – Sen. Paterson]

I think it’s just about to be circulated to the committee. Dr. Marshall we are intending for that to be tabled by the committee?

[Dr Marshall]

Yes.

[Chair – Sen. Paterson]

Hopefully? Okay, all right. Well then in that case we’ll circulate copies to committee members for tabling. Sorry, Senator Roberts.

[Senator Roberts]

No, Dr. Marshal was about to answer.

[Dr Marshall]

And Senator, I’ll let Dr. Mayfield answer the detail of your questions.

[Dr Mayfield]

So Dr. Peter Mayfield, Executive Director for Environment, Energy and Resources. So Senator, yes we have prepared a response to the letter that you sent us. I do have copies of that here and electronic copy was provided to the secretary. So, there’s an opportunity to sort of look at our response and data. In regard to Marcott, yes we do stand by the conclusions of that paper.

[Senator Roberts]

Stand by Marcott.

[Dr Mayfield]

Yes.

[Senator Roberts]

Okay. And what about Lacavalier?

[Dr Mayfield]

Yes, both papers.

[Senator Roberts]

Lacavalier too?

[Dr Mayfield]

We believe our best evidence.

[Senator Roberts]

Okay, thank you, that’s good. Why did… Second question, what did CSIRO rely on before Marcott 2013? Say in the 1980s, when Bob Hawke was the first Prime Minister to raise the issue of anthropogenic climate change, said to be due to carbon dioxide from human activity.

[Dr Mayfield]

So Senator, so the state of the science in the Australian context is being provided by the volume in greenhouse, planning for the future, which is published by CSIRO in 1988. And it’s still available. And it was already very evident in the 1980s that anthropogenic emissions of carbon dioxide were altering the chemistry of the atmosphere.

[Senator Roberts]

Excuse me, the chemistry of the atmosphere, but not the temperature the earth?

[Dr Mayfield]

Chemistry of the atmosphere is at that point in time and temperature record is also changing.

[Senator Roberts]

Okay, thank you. Third question. At what stage did CSIRO start giving significant advice to governments on anthropogenic climate change?

[Dr Mayfield]

So CSIRO has been providing advice to government in relation to greenhouse matters for more than 60 years. So it’s been a long history of us providing advice in this area.

[Senator Roberts]

Thank you. Then I had my fourth question was to Dr. Mayfield. I need Dr. Mayfield to specify one, a slide or slides and specific data to which he refers and on which his answer relies when I asked my previous question, which you’re familiar with, Dr. Mayfield.

[Dr Mayfield]

So Senator we’ve provided the details many, many times to you. You’d appreciate that in each of these papers which have been published by a peer review. The analysis around statistical substance of the various measurements.

[Senator Roberts]

No, no, no, I’m not gonna let you off the hook. That’s a dodging of the question. The question is, to which of the specific slides or specific data in the presentations do you refer to when you stood up last time, at senate estimates and said, “It’s in the presentations.” Which of the slides, I want, specifically contain the statistical analysis that proves that carbon dioxide from human activity has the… Sorry, that there is a change in the climate, in any factor of climate.

[Dr Mayfield]

So, as you’re aware of Senator, there’s a number of papers, multiple ones–

[Senator Roberts]

No, no, no, no. I’m asking you for this specific slide and the specific data to which you refer. I’m not gonna take any more of this vague nonsense. I want this specific slide, specific data.

[Dr Mayfield]

In the slides, you’ll see, there’s a number of different references. Obviously we work with work from Marcott, more recently there’s the work of, it’s coming from… Kaufmann sorry.

[Senator Roberts]

How do you spell that?

[Dr Mayfield]

So it’s K-A-U-F-M-A-N-N.

[Senator Roberts]

Okay.

[Dr Mayfield]

So it’s a paper that’s been produced in 2020, which also undertakes an analysis of a wide range of methodologies, looking at both the–

[Senator Roberts]

2020?

[Dr Mayfield]

Historical record and the current record of temperature change.

[Senator Roberts]

So I asked you on Thursday, the 24th of October, 2019 a year ago, to provide empirical scientific evidence that shows quote, “Statistically significant variation “that proves there has been a process change.” That is variation that is beyond our outside natural inherent cyclical or seasonal variation over the last 350 years. You stood up and said, “It’s in here, “we’ve given it to you.” That is not correct. I wanna know specifically what the data was and is in those presentations that–

[Dr Mayfield]

Senator, we provided you with a number of references. Those are the references that we believe showed that.

[Senator Roberts]

I don’t know where–

[Dr Mayfield]

You don’t agree with us, but that’s what we believe.

[Senator Roberts]

You have never presented, CSIRO’s, never presented any response to that question, because the first time that question was asked was in the Senate estimates last year. CSIRO’s has never addressed that question. Your statement is false, if that’s what you’re implying.

[Dr Mayfield]

That’s incorrect Senator. The data is in the papers that we refer to.

[Senator Roberts]

No, no, no, I said show me—

[Dr Mayfield]

Part of pulling that science together is about undertaking that sort of statistical analysis, So that it show meaningful trend.

[Chair – Sen. Paterson]

So I’ll just briefly intercede here. Senator Roberts, could I ask that you allow the witness an opportunity to finish the answers your questions before you interject or ask a follow up question.

[Senator Roberts]

Chair, he’s not answering the question.

[Chair – Sen. Paterson]

Well, Senator Roberts you may be unsatisfied with the answer that he’s giving, but that doesn’t give you a right to interrupt him. You have to allow witnesses to conclude their answers and then you can ask a follow up question to challenge that answer if you wish.

[Dr Mayfield]

So as I said Senator, those various papers is part of doing peer review process you go through the statistical analysis. You show what is a meaningful trend versus what is not a meaningful trend, due to the uncertainty of those measurements. And we stand by those papers and those measurements and those peer review processes.

[Senator Roberts]

I want on record that never has CSIRO in any of the presentations to me, made any reference, any statement about statistically significant variation in climate. Not at all. I asked it for the first time, this time last year.

[Woman]

You can ask to read the paper to you.

[Senator Roberts]

Yeah, could you specify the paper?

[Woman]

But let’s not…

[Senator Roberts]

Could you specify the papers?

[Dr Mayfield]

I’ve already specified the papers.

[Senator Roberts]

The exact papers? Because you have never referenced them in any way in any of the presentations. So I wanna know the specific papers.

[Dr Mayfield]

So I’m giving you the papers, Senator.

[Senator Roberts]

Which ones?

[Dr Mayfield]

So it’s Marcott, it’s Lecavalier.

[Senator Roberts]

Okay.

[Dr Mayfield]

And more recently Kauffman.

[Senator Roberts]

So let’s go on to the second part, now that you’ve come on that. Specify the statistical analysis techniques that we used.

[Dr Mayfield]

So Senator there’s many techniques that are used, there’s thousands of papers.

[Senator Roberts]

No, the ones that you rely upon to make the statement that there is a statistical significant change. I wanna know the specific ones.

[Dr Mayfield]

Well, that’s part of the peer review process that’s undertaken for each of these papers Senator. So, if you choose to track the authors.

[Senator Roberts]

All right, thank you.

[Dr Mayfield]

They will be able to talk you through this specific work.

[Senator Roberts]

We contacted the author of Lecavalier which you recommended, and he will not divulge his information. That’s what you rely upon? People who do not divulge their information. So let’s go to the third one then. The relevant statistical levels of confidence from the analysis of the climate factor that you’ve identified. So what is the level of confidence in the analysis?

[Dr Mayfield]

So Senator again, I’ve just refer to my previous answers.

[Senator Roberts]

Thank you. Could you specify the time interval of data for which this statistical analysis was applied?

[Dr Mayfield]

Senator, I can’t answer that question. It’s a question that should be directed towards the author of the paper.

[Senator Roberts]

Thank you. Question five.

[Dr Mayfield]

Very much to detail sir.

[Senator Roberts]

Yes, it certainly is.

[Dr Marshall]

Senator Robert, sir might have been remiss last time I think I promised to send you a copy of this and I don’t know if I did or not from my office to you, but if not I bought a copy.

[Senator Roberts]

No, you didn’t.

[Dr Marshall]

And I’ll leave this here with you. It does have a map of the projections for temperature.

[Senator Roberts]

No, I’m after empirical scientific evidence, that’s what I’ve been through all the way along. Not on projections.

[Dr Marshall]

It’s based on data since 1950 and successfully predicted the last 20 years.

[Senator Roberts]

I wanna know statistically significant change Dr. Marshall.

[Dr Marshall]

Well, I think you’ll get it from here and the references here in Senator, but, I’ll leave this to you if I can.

[Senator Roberts]

Thank you, good.

[Dr Marshall]

Hopefully be helpful.

[Senator Roberts]

Now, Dr. Marshall, I also said in my letter that I hope you agree that the only valid analysis for such policies, climate change and supporting of renewable subsidies, is specific empirical scientific evidence with a logic proving causation and quantifying the effect of carbon dioxide from human activity on climate factors, such as atmospheric temperatures. I hope you understand the need to justify such policies on solid scientific evidence, quantifying cause and effect. Such quantified evidence is needed to implement such policies and to monitor the effect of such policies. Without the specific quantified relationship between human carbon dioxide output and climate factors, it is not possible to do cost benefit cases nor track progress. So my question to you, number five was, if you disagree with this reasoning, please provide me with what you see as the alternative basis for policy.

[Dr Marshall]

So Senator we base our work on the measured changes in climate since about 1950. We have, for example, directly intervened by breeding different strains of wheat to prevent the wheat yield from going down, because we don’t want the impact of drought or increased temperatures or the shifts in rainfall to reduce the productivity of Australia’s weed industry. So, we have data since 1950 that shows these effects are happening. We know that the nation has become drier in the South, weather in the North. And we know that the temperature has come up, that’s not projections, they have been measured. But, because we’ve known that, ’cause we predicted that some years ago, some decades ago, we were able to successfully intervene to help the industry navigate those changes without a loss in their profitability. And that’s why we do the modelling Senator, to try and understand how to help industry navigate changes in our investment.

[Senator Roberts]

So let me put it bluntly, do you or do you not believe that policy should be based on a quantified specified relationship between cause and effect? In other words, this much carbon dioxide with the amount specified leading to this much temperature change.

[Dr Marshall]

Senator, I think policy should be based on the best science available and it should be data-driven, data-driven. And I’ve just given you the data that drive us to make the interventions,

[Senator Roberts]

No you haven’t given me the data. You’ve talked about having…

[Dr Marshall]

Senator it’s in here.

[Senator Roberts]

And so do you agree on or not that policy should be driven by specified quantified relationship between cause and effect?

[Dr Marshall]

I think policies should be data-driven and it should be monitored and measured and evaluated using data.

[Senator Roberts]

Okay, thank you.

[Dr Mayfield]

So Senator, if I can add to that. So science, peer reviewed science does provide that foundation which policy can be built. In terms of the papers that we’ve talked to you about.

[Senator Roberts]

Marcott and Lecavalier?

[Dr Mayfield]

We note that there’s been at least 265 other papers which have referenced Marcott as part of the peer review process. And to date, no one has come up with an argument that says that paper is not valid. So the peer review process is at play there and has basically reinforce that that paper is correct.

[Senator Roberts]

We’ll come back to that but Marcott himself, said that the 20th century temperatures on which you are relying are not robust. Marcott himself. So much for–

[Dr Mayfield]

I disagree with your statement.

[Senator Roberts]

So let’s move on to question six. Australia has already done much to destroy its energy grid, yet, as an overseer of taxpayers’ funds, taxpayers’ resources. I need to know whether this has shown up in atmospheric carbon dioxide levels. And if so, how has it shown up and to what extent? Please provide empirical scientific evidence on the effect of carbon dioxide levels and temperatures from Australia’s cuts to human carbon dioxide output. In other words all the pain we’re going through economically where is it showing up in the global carbon dioxide levels?

[Dr Marshall]

So Senator, as I think you and I have discussed before, Australia is barely 1%, 1.2, 1.3% of the world’s emissions. Therefore, any direct changes we make in this country are unlikely to have any impact on the global levels of carbon dioxide.

[Senator Roberts]

So are we not gonna have any impact on the temperature then?

[Dr Marshall]

Well, 1.3% impact. Senator, however, our science can have an impact. For example, future feed which has solved what seemingly was an impossible problem and reduce the emission from–

[Senator Roberts]

I wanna know the effects of Australia’s carbon dioxide. Because people are paying an extra $1,300 per household Dr. Marshall. On your salary, that’s trivial, but on someone on the median income of 49,000 that is painful, extremely painful. Dan McDonald, a farmer in Queensland and many farmers have lost the rights to use their property because of policies enacted by this government and previous governments. On $800,000, that’s easy for you to wade through but these people are suffering.

[Dr Marshall]

Senator. I’m not sure I understand your question here. Are you saying that there’s some connection between things that CSIRO has done and these people suffering

[Senator Roberts]

Your advice.

[Dr Marshall]

Is a concern if that’s the case

[Senator Roberts]

Your advice has been cited by many ministers, both labor and liberal national for the painful impositions of policies on our country. And people are paying for that through the hip pocket and through the loss of the rights to use their property that they own and have paid for. Your so-called support, according to ministers is the reason for that. And I’m not getting evidence of quantified impact of our carbon dioxide. And you’ve just said, you can’t see any evidence in the carbon dioxide levels in the atmosphere because of Australia’s carbon dioxide cuts.

[Dr Marshall]

Senator I’ve just said that Australia has a relatively small direct impact on the carbon dioxide levels because–

[Senator Roberts]

Can you show me the evidence that says we are reducing carbon dioxide levels in the atmosphere?

[Dr Marshall]

The evidence that Australia is reducing.

[Senator Roberts]

Australia’s impacts on energy, on agriculture are resulting in a reduced temperature, reduced levels of carbon dioxide.

[Dr Marshall]

So the reduction in emissions has been reported by the department of the environment. So that would be a question for them senator.

[Senator Roberts]

You’ve just answered my question. Thank you very much.

[Dr Mayfield]

If I could add to that as well. So global CO2 levels are measured through the global carbon project which works from data from their resilience.

[Senator Roberts]

In part they’re measured, in part they’re residual. So my last question have global attempts. So we forget about Australia’s little minuscule contribution. Have global attempts to cut human production of carbon dioxide shown up in atmospheric carbon dioxide levels. And if so, and to what extent.

[Dr Mayfield]

So again, Senator the global carbon project measures or captures various–

[Senator Roberts]

Didn’t answer my question Dr. Mayfield

[Dr Mayfield]

Various divisions that are made around the globe.

[Chair]

Give him some time.

[Dr Mayfield]

And that is the numbers that are being captured, when they show that emissions are increasing.

[Senator Roberts]

Chair, when someone’s asked a question and they say something but don’t answer the question that is not answering questions

[Chair]

Order Senate Roberts. In that case, Dr. Mayfield would have been five to 10 seconds into his answer. So it’s pretty early to form a strong view about what he was giving you. And Senator Roberts, I don’t seek to dictate how you ask your questions or what questions you ask, but only that you show courtesy to officials so they can answer your questions to the best of their abilities.

[Senator Roberts]

With respect chair, I deserve the respect of being answered properly when I’m asking questions on behalf of my constituents who had gone through a lot of pain.

[Chair]

Senator Roberts if you’re not satisfied with the answers that you receive, please ask another followup question, but don’t interrupt officials in the middle of their answers.

[Senator Roberts]

I’ll ask it again. Have global attempts to cut human production of carbon dioxide shown up in atmospheric carbon dioxide levels. And if so, how, and to what extent?

[Dr Mayfield]

So Senator in terms of the emissions being made whether there’s attempts to cut them or whether that’s how they are naturally, they are captured through the global carbon project. That’s the accounting process that’s worked to do that. And that shows that emissions overall are still increasing.

[Senator Roberts]

How- emissions are still increasing? We’d just been through–

[Dr Mayfield]

Globally.

[Senator Roberts]

COVID depression and we’d just been through a 2009. We had lower use of carbon dioxide then in 2008 in the recession that was global except for Australia. And in both cases, the levels of carbon dioxide in the atmosphere have continued to rise, despite human production falling dramatically especially in the last nine months. And yet you’re telling me, you can see it. They’re going up. Dr. Mayfield. So I’ll ask again for the third time, then I’ll leave it. Have global attempts to cut human production of carbon dioxide, particularly in the recession that was in 2009 when global production of carbon dioxide from human activity decreased and have decreased considerably in the last seven months, shown up in atmospheric carbon dioxide levels in the atmosphere? And if so, how, and to what extent? Please answer how they show up and to what extent.

[Dr Mayfield]

So Senator the measure is the CO2 signal that’s in the atmosphere. It’s a well-mixed system so it’s represented well across the globe. If you wanna refer to periods like 2009 which is at the end of the global financial crisis, there were slight changes in the rate of climb of these measurements. So you can see inflexions like that. I don’t have the details on the specific numbers on how that changed, but there are inflexion points. But in terms of the longer term trend, it’s still on the up.

[Senator Roberts]

Could you please send me the inflexion points? I wanna see the data please. Because from what I’ve seen at global atmospheric carbon dioxide levels, they’ve continued to rise relentlessly despite no inflexion whatsoever. So I would like to see the inflexion points. I’d like to see how much and I’d like to see when. Is that clear? How much and when? Is that clear Dr. Mayfield?

[Dr Mayfield]

So what we’ll provide you with is the Cape Grim record which is a continuous record of CO2 content in the atmosphere.

[Senator Roberts]

That’s CO2 Cape Grim, could you give me the global?

[Dr Mayfield]

So as I said, CO2 is a gas that mixes well across the globe. There is minor variations but overall there’s a very good indication of the time series of the CO2 measurement.

[Senator Roberts]

Could you show me the global levels? I wanna know how much it’s changed and when.

[Dr Mayfield]

As I said before Senator, that work is for the Global Carbon Project. They report annually. We will provide you with some of that work as well as the Cape Grim measurements.

[Senator Roberts]

Thank you, thank you chair.

[Chair]

Thank you Senator Roberts.

October 29, 2020/by Senator Malcolm Roberts

Questioning Reserve Bank of Australia (RBA) – Cash Ban and Bail-In

Budget 20-21, Senate Estimates

One Nation has led the fight in the Senate against the Cash Ban bill, which makes any cash transaction over $10,000 illegal. Our efforts stopped the bill from passing, but the Government has not formally withdrawn the bill. At this estimates we started a campaign to have the bill removed from Senate business permanently. Our first questions asked the Reserve Bank if they still thought the cash ban was a good idea.

We didn’t get the answer we wanted, it seems the Reserve Bank is still trying to force people into the banking system and take away their right to decide what to do with their own money. Cash Ban Explanation – https://youtu.be/93EigYTWe5s

Then we asked about our bill coming up later next month to prevent banks using money deposited with them to pay their own expenses in a bank emergency.

What was obvious to Senator Roberts is that the Reserve Bank had no idea they had made a submission on our bail-in bill. The Reserve Bank was not on the list of submissions. Where did their submission come from? Could the Government have written it, not the Reserve Bank? The Reserve Bank is an independent regulator, it would be a scandal if the Government is writing their policy for them. One Nation will pursue this matter further.

Transcript

Senator ROBERTS: Thank you for attending today. I’ve seen reports that the Reserve Bank has printed an extra $12 billion in banknotes this year to keep up with demand. Do you have the accurate figure, please?

Dr Debelle: I do. I can provide you with an accurate figure. Yes, we have printed extra bank notes because there has been additional demand. Between 16 March and 6 August we printed 220 million banknotes worth $12.5 and they were issued into circulation. I don’t have the most up-to-date information to hand, but I can provide that.

Senator ROBERTS: If you could, that would be appreciated.

Dr Debelle: I don’t have it completely to hand. I may have it before we finish this line of questioning.

Senator ROBERTS: That’s impressive. The Reserve Bank’s written answer to my question on notice from the February estimates—it’s reference AET93—included this response—I’m slightly paraphrasing: ‘While cash is used less frequently in Australia, it is still widely held for precautionary purposes and some members of the community really very heavily on cash for their daily lives. Cash remains an important payment method for older households, those with disabilities and those living in rural and remote areas where electronic banking may not function reliably.’ Do you consider that people are voting with their feet and withdrawing cash to get ahead of the cash ban bill?

Dr Debelle: What we have seen is increased demand for banknotes, as you just highlighted in your previous question. I think that is mostly as a store of value. What we’ve seen is around 50s and 100s in particular; actually mostly 50s. I think it is primarily as a store of value, particularly in a world where interest rates are as low as they are.

Senator ROBERTS: So people have an alternative in cash. People need that alternative. Does the Reserve Bank support withdrawal of the widely criticised cash ban bill and instead support the development of a bill that actually addresses money laundering and tax compliance? In other words, is it time to kill the cash ban bill?

Dr Debelle: We’re part of the Black Economy Taskforce and we’re comfortable with the recommendations of that.

Senator ROBERTS: Item 1.27 of the Economics Legislation Committee’s report on the bail-in bill includes this statement:

The Reserve Bank of Australia … indicated the information provided by the Treasury to the committee’s inquiry was consistent with their views.

Is this correct?

Dr Debelle: I have no reason to suspect otherwise.

Senator ROBERTS: How did the RBA communicate with the committee? Because my office saw no submission.

Dr Debelle: I will have to take that on notice. I did not have direct involvement with this. Michelle, I don’t know if you can answer this?

Ms Bullock: I didn’t have. I know we had someone on the Black Economy Taskforce but I’m not aware of this particular bill.

Senator ROBERTS: Could you also send me the full comments that you made to the committee.

Dr Debelle: Sorry, the committee on the bail-in bill?

Senator ROBERTS: Yes, please. Your views to the committee include this statement: ‘The Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018 did not include a statutory power for APRA to write down or convert the interests of depositors as unsecured creditors of a failing ADI.’ Is this correct?

Dr Debelle: Yes. Michelle, I think you can confirm that.

Ms Bullock: Yes, our view is that it does not include those sort of provisions.

Senator ROBERTS: The G20 Financial Stability Board’s Key attributes of effective resolution regimes for financial institutions, adopted by Australia in October 2011, states: ‘Powers to carry out bail-in should enable authorities to convert into equity’—meaning shares of the bank in this case—’all or parts of unsecured creditor claims.’ And elsewhere it says that means deposits. We have a clear obligation, then, under this agreement, to provide a bank bail-in mechanism. If the 2018 act did not do that, where else is that provision?

Dr Debelle: We have depositor preference, as you may be aware, and a deposit guarantee—sorry, we have a deposit guarantee scheme, which guarantees bank deposits.

Senator ROBERTS: I understand the timing of that doesn’t quite back up what you’re saying. Let me look at that more closely. New Zealand responded to the Financial Stability Board’s instruction to pass bail-in laws with their open bank resolution system. The New Zealand Reserve Bank explains this is a follows: ‘If a bank fails, it is placed under statutory management and closed. If losses cannot be covered by shareholder funds, then a proportion of depositors’ funds are set aside and frozen for the purpose, then the bank reopens.’ That could not be clearer. New Zealand has a bail-in law. The UK and Canada have the same bail-in laws. I ask you again, if the crisis resolution act did not establish bail-in laws, where are ours?

Dr Debelle: As I just said, we have a depositor protection scheme in Australia. Michelle, do you want to add anything to that?

Ms Bullock: No, only that our understanding of the bail-in laws, and I think APRA’s understanding of the bail-in laws, is that they apply to certain hybrid instruments which may be bailed in, not depositors. Depositors have depositor preference and also the Financial Claims Scheme. My understanding, and I think it’s the common understanding, is that bail-in does not apply to deposits in Australia.

Senator ROBERTS: I put it to you that it is our obligation under the G20 agreement to conduct a bail-in if a bank fails, that the 2018 act was specifically written to allow a bank bail-in, and that the wording chosen in the 2018 act was deliberately obtuse to hide that fact.

Dr Debelle: I’d like to confirm that we have depositor protection. You can take this issue up with APRA when they come later on, but that’s the state of play in Australia.Senator ROBERTS: Thank you. I have some more questions to put on notice.

October 27, 2020/by Senator Malcolm Roberts

Questioning Australian Prudential Regulation Authority – Debanking

Budget 20-21, Senate Estimates

De-banking is the process of banks closing accounts for businesses or individuals. All the big banks are now de-banking clients and claiming that this is for Anti Money Laundering reasons, but it is just not true. At our Senate Estimates questions, APRA agreed they had authority in this area and also agreed they were doing nothing about this scandal.

The companies being de-banked are bullion dealers, bitcoin exchanges and cash handling companies working to keep ATMs in clubs and pubs full and so on. All of the companies that have been de-banked that my office has looked at are legitimate, long-established companies that are following the law.

The only explanation for de-banking is this – banks are shutting down their competitors. This is an abuse of their market power that will prevent competition in banking and reduce freedoms Australians enjoy as to the choice of what to do with their own money. This is bank greed and the supposed-regulator the Australian Prudential Regulation Authority are facilitating this by looking the other way.

The Cash Ban Bill produced by Treasury works with the banks by de-banking their rival businesses and then preventing those businesses to move over to cash payments. This effectively puts these banking rivals out of business.

Transcript

Senator ROBERTS: Moving onto the practice known as debanking, is the regulation of debanking practised by the banks your responsibility?

Mr Byres: I don’t know that I can talk about a regulation for debanking. The concern is that various customers no longer get banking services. It’s certainly not a primary issue for APRA. We understand the issue exists. In many cases, it relates to banks being able to comply with anti-money-laundering and counterterrorist-financing regulations.

Senator ROBERTS: That’s where I’d go. Commander Security is an Australian cash security company. It transits cash, and a large part of that is refilling third-party ATMs. So it’s a competitor to the banking cartel. Commander Security is fully AUSTRAC compliant and operates its accounts lawfully. On 14 October 2020, it received a notice from Westpac cancelling Commander Security’s banking accounts effective from 26 October. It has been refused accounts at other banks. Where is the protection of interests of depositors in this process?

Mr Byres: The depositors of the banks themselves are protected. I’m not aware of the specific case that you’re referring to. We’re happy to look at that.

Senator ROBERTS: Let’s look at another one then. Melbourne Gold Exchange sell bullion to retail investors. It is also AUSTRAC compliant and operates legally. It was debanked by Westpac, then the Commonwealth, then the NAB and now cannot get an account anywhere. Would you categorise bullion as a rival store of wealth to cash in the bank?

Mr Byres: No, I wouldn’t actually. I think cash in the bank has a very stable value and bullion does not. But that’s a discussion about investment rather than safety.

Senator ROBERTS: Bullion’s not stable? Okay. The point of this question is simple: banks are debanking businesses that they have decided are an unacceptable risk. When my office looks at these businesses, they are bullion dealers, non-bank companies providing rival services to the banks, like Commander Security, and bitcoin exchanges. APRA appear to be turning a blind eye to Australian banks debanking their rivals. Can you explain that?

Mr Byres: I don’t think we’re turning a blind eye to it. We understand the issues there, but banks are making decisions based on their risk profile as to whether they want to take on the risk associated with some of these customers. Clearly what we have seen in recent times is that the penalties for getting it wrong are significant. That’s not to condone the banks but to simply make the point that they’re taking it very seriously.

Senator ROBERTS: When the Melbourne bullion company was debanked, Westpac debanked not only the accounts but also the private accounts of the owners and the private accounts of their employees. APRA is responsible for protecting the financial interests of depositors. Does APRA consider this acceptable behaviour?

Mr Byres: Just to be clear, our obligation to depositors is not a consumer protection obligation, it’s making sure that people get 100c in their dollar—

Senator ROBERTS: I think you’re also responsible for making sure that there’s adequate competition.

Mr Byres: We have to be mindful for competition, but we don’t have a mandate to promote or establish competition. We have to deliver safety and soundness having regard to a range of other factors: competition, efficiency, ability and competitive neutrality. But we’re not primarily a competition regulator.

October 27, 2020/by Senator Malcolm Roberts

Questioning Australian Prudential Regulation Authority (APRA) – Bail in Laws

Budget 20-21, Senate Estimates

Bail-in measures are designed to inject capital into a bank that gets into trouble. The bank is authorised by the corporate regulator – APRA to take money out of the bank accounts of depositors and to use that money to pay their own bills. The depositor loses their money but does get shares in the bank, which will be worthless, but may come good years down the track if the bank doesn’t go broke.

APRA maintain that the emergency banking measures passed in 2018 by the Turnbull Government did not include a bail-in power. Further, if they used the general powers in that act to order a bail-in, that bail-in would be declared “invalid”.

This is because the Banking Act protects deposits. One Nation’s legal advice is that the emergency powers over-rule the general protections in the Banking Act and APRA do have bail-in powers. One Nation have proposed a bill to clear this up by adding one simple paragraph to the Banking Act that says APRA do not have the powers to order a bail-in.

APRA doesn’t want our bill passed because they know they do have bail-in powers and don’t want us to take them away. This round of questions did extract an admission that APRA does have bail-in powers, but not for deposits. So at least we are getting a little more honesty out of APRA on this matter. We also spoke about their emergency bank rescue plans.

One Nation feels these plans will show a bail-in is part of the plan. Getting our hands on those plans won’t be easy.

Transcript

Senator ROBERTS: Thank you all for participating tonight. APRA’s submission 197 to the inquiry into our bank anti bail-in bill—and I am slightly paraphrasing—says that APRA does not have the power to direct Australian authorised deposit-taking institutions to bail in a deposit because that would be inconsistent with the objects of the Banking Act, particularly the paramount objective of protecting depositors, and that such a direction would be found to be invalid. Who would find it invalid?

Mr Byres: It could be challenged by anyone who wished to take it before the courts—that would be the answer. Our direction could be appealed to a court.

Senator ROBERTS: That is my understanding, too—that only a court can find an APRA direction invalid. Can I confirm that it is your position that if a bail-in occurs those depositors who have lost some or all of their money must then take their banks to court at their own expense, with millions of dollars in legal expenses, to seek an order declaring the bail-in invalid? They will have very little in the way of funds to fund that because their deposits have been cleaned out.

Mr Byres: Your question is premised on the assumption that there is a bail-in. I think in our correspondence with the committee and in our submission to the committee on this bill we made very clear that our whole purpose is to protect depositors, not to bail them in. A bail in of depositors would be anathema to the way we operate and our statutory purpose. So I think it is a scenario that is entirely hypothetical, because that would not be a direction that we would give.

Senator ROBERTS: The Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018 says APRA has a right to enact emergency powers and they are often said to be overruling. Does that emergency directions power have primacy over the general banking directions in section 2A in the Banking Act?

Mr Byres: I’m not sure where exactly you are referring to, but you are right: we have strong powers to deal with an emergency situation where a bank or another financial institution is in severe financial stress. The purpose of that in the case of a bank, to be clear, is to protect the community and depositors.

Senator ROBERTS: The IMF disagrees with APRA on the strength of the section 2A protections. The IMF has stated that:

The new ‘catch-all’ directions powers in the 2018 Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Bill provide APRA with the flexibility to make directions to the ADIs that are not contemplated by the other kinds of general directions listed in the Banking Act.

If the IMF are correct, you do have bail-in powers. Is the IMF wrong?

Mr Byres: The bail-in powers that we have relate to capital instruments. Again as we put in our submission to this committee when it conducted its inquiry into that bill, the objective is very clearly to have bail-in for subordinate capital instruments. That act and, in particular, the sections of that act which attracted a lot of attention were designed to make sure that there was legal certainty and that the contractual arrangements that are in those subordinated debt and hybrid instruments would work in this.

Senator ROBERTS: Our bill simply clarifies that you do not have bail-in powers, which is what you’re telling me here today. Why are you opposing our bill when it does nothing more than clear up what the law is saying that you say it is?

Mr Byres: Sorry, Senator. We do have bail-in powers. They relate to certain specific instruments. As the law currently applies to banks, it applies to their subordinated debt or, in the jargon of the bank supervisor, tier 2 capital, and it applies to hybrid capital instruments or additional tier 1 capital. So we do have bail-in power. It was designed to give legal certainty to the bail-in of those instruments if needed. It does not apply to deposits.

Senator ROBERTS: Our bill simply clarifies that it doesn’t apply to deposits, so why would you oppose it? It doesn’t stop the bail-in of other funds, appropriately, but it would stop the bail-in of deposit funds: cheque accounts, savings accounts, small business accounts, private accounts. That’s all it does, so it’s agreeing with you. Why would you oppose it?

Mr Byres: The view we put in the submissions was that it was not necessary because we thought the current law was adequate.

Senator ROBERTS: It doesn’t change anything for you; it complies with what you just stated. I can’t understand why you’d oppose it. It makes two minor changes that are in line with what you’re saying.

Mr Byres: As we said in our submissions, we didn’t think it was necessary.

Senator ROBERTS: Okay. APRA’s 2018 paper titled ‘Increasing the loss-absorbing capacity of authorised deposit-taking institutions to support orderly resolution’ states:

APRA will need to work with ADIs on an ongoing basis to ensure adequate resolution plans are developed and maintained. These plans—

supposedly—

outline how APRA would use its powers to manage the orderly failure of ADIs and identify steps that can be taken to remove barriers to achieving effective resolution outcomes.

Have those plans been drawn up? If so, what are they?

Mr Byres: I’ll start, and then I’ll see if my colleague Mr Lonsdale wants to jump in. One of the things we have to do is prepare for the unexpected. We can never provide a guarantee that a bank—or, for that matter, an insurer or another type of financial institution—won’t get into financial difficulty. We need to have crisis plans, like contingency plans, drawn up for how we would respond in the unlikely—and I stress ‘unlikely’—scenario that a bank was close to failing or was failing. The sorts of plans that we have—we’ve just stepped through what actions we might be able to take and how we would achieve an orderly outcome, but, as I’ve said many times already in my answers to your questions, this is with a view to protecting depositors.

Senator ROBERTS: Just to interrupt there: you said the plans would be drawn up. Have they been drawn up is what I asked?

Mr Byres: We have plans drawn up, yes, but they could always be improved. The institutions themselves are constantly evolving and changing, so the plans always need to be updated to make sure they continue to be current.

Mr Lonsdale: I would just add that this has been a big priority for us this year. In fact, the government has provided APRA with some funding in the budget. A significant portion of it focused on recovery and resolution development, so, as Mr Byres said, there’s a lot of work in continually keeping the plans updated and making sure they’re operationally fit for purpose.

October 27, 2020/by Senator Malcolm Roberts

Questioning the Fair Work Ombudsman (FWO) – Worker’s entitlements

Transcript

Questioning Coal LSL – Worker’s Entitlements

Transcript

Questioning the Foreign Investment Review Board (FIRB) over CuDeco

Transcript

CSIRO – Senate Estimates

Transcript

Questioning Reserve Bank of Australia (RBA) – Cash Ban and Bail-In

Transcript

Questioning Australian Prudential Regulation Authority – Debanking

Transcript

Questioning Australian Prudential Regulation Authority (APRA) – Bail in Laws

Transcript

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Malcolm’s Fight

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