BOM’s Climate Forecast Failure

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The Bureau of Meteorology (BOM) has consistently issued weather forecasts that align with their promotion of the climate change scam, which appears independent of likely weather outcomes.

In 2023, BOM came unstuck when they spent the year forecasting a hotter and drier summer, prompting farmers to reduce their cattle numbers and alter planting schedules. What actually occurred was a wet and cool summer. This inaccurate forecast by the BOM resulted in significant financial losses for farmers and graziers, and rural provider Elders saw a $300 million drop in their share price when earnings were announced last month.

Despite this, BOM and other media outlets claim that their forecasts were accurate and that Elders’ earnings reflected other issues as well.

Supporting Research

http://www.bom.gov.au/climate/ahead/outlooks/archive.shtml

EYCI Report | Meat & Livestock Australia (mla.com.au)

Archive – Climate outlook maps (bom.gov.au)

Read the Transcript HERE

Senator ROBERTS: Thank you to the bureau for appearing today. I’ve handed out some documents for circulation. They’re copies of BOM forecasts versus actual. I think you’ll be familiar with them, for sure. That’s a contradiction in terms, ‘think’ and ‘for sure’. Anyway, I’m sure you’ll be familiar with them.

On 19 September 2023 the Bureau of Meteorology’s weather forecast read, ‘Warmer and dryer conditions would be more likely over spring and summer,’ linking the Indian Ocean Dipole with El Nino using the words, ‘The last time this occurred was 2015,’ which was a very dry year, especially in Queensland. The bush listened to that, and a lot of other people did too—investors as well.

On 30 November the Bureau of Meteorology predicted ‘a high chance of warmer than usual days and nights across Australia, below average rainfall likely for much of the tropics’. The actual weather: northern Queensland was flooded in December—big floods—by Tropical Cyclone Jasper; inland Queensland was flooded in January by Tropical Cyclone Kirrily; South-East Queensland was flooded in December and January.

I’ve circulated your entire forecast for 2023 split into five periods. Each period forecast, except one, was for drier weather than occurred. One was about right. None predicted more rain than occurred, much less than I would have hoped. My question is simple: is your weather model fundamentally flawed?

Dr Johnson: No, Senator, it’s not.

Senator ROBERTS: It’s costing nearly $1 billion to upgrade your computer system, the ROBUST Program as it’s called. Is that still the cost, and can you provide an itemisation? It appears a ridiculous amount of money.

Dr Johnson: Firstly, as I’ve answered to senators in this chamber over many years, the costs associated with the ROBUST Program are cabinet in confidence; they’re not for publication. As I also answered—I think it was at the previous hearing or perhaps the one before—in response to a question from Senator Pocock, the upgrade of the Australis computer system is not part of the ROBUST Program; it is a separate program of work.

Senator ROBERTS:Could you explain the Australis versus the ROBUST, and which one is—

Dr Johnson: ROBUST is a complex program to upgrade the bureau’s ICT and observing systems, fundamental ICT—

Senator ROBERTS:What’s ICT?

Dr Johnson: Information and communications technology.

Senator ROBERTS:Thank you.

Dr Johnson: It upgrades our underlying information and communications technology infrastructure, our observing networks—all sorts of things.

Senator ROBERTS:And recording devices?

Dr Johnson: I’ll get to that in a second. That includes radars, automatic weather stations, automatic balloon launchers—all sorts of things that observe the environment—as well as our underpinning technology infrastructure.

The ROBUST Program, again, has three dimensions. It has a security dimension—in other words, investment to improve the security of the bureau’s systems from threats from our country’s adversaries. There’s stability. Prior to the investment in ROBUST, many of the bureau’s systems were very old, many decades old, and we were experiencing challenges in keeping them stable and operational. And then there’s resilience so that, in the event of an outage, the capacity of the bureau to respond and have our systems back online is improved. So there are three dimensions to ROBUST: security, stability and resilience.

There is a supercomputer dimension to ROBUST, which is a second supercomputer, a disaster recovery machine. Prior to ROBUST, our disaster recovery functions were executed within a single machine in a single place. The arrangements going forward will be different. I’d rather not disclose those in detail, for security reasons, but the ROBUST program funded a second supercomputer for disaster recovery purposes. That is a different machine to the Australis machine, which has often been asked about in Senator Pocock’s questions. That was a separate program to Robust, Senator. You’re conflating two bits of technology uplift in two separate programs.

Senator ROBERTS:The total cost is a billion dollars for both?

Dr Johnson: No. As I said, I’m not going to speak about the cost of ROBUST. The cost of the Australis upgrade is roughly, I think, $44 million—something of that order.

Senator ROBERTS:Dr Johnson, you’re required to produce any information or documents that are requested to this committee. There’s no privacy, security, freedom of information or other legislation that overrides this Senate committee’s constitutional powers to gather evidence. You’re protected from any potential prosecution as a result of your evidence or producing documents to this committee. If anyone seeks to pressure you against producing documents, that’s also a contempt. If you wish to raise an immunity claim, there are proper processes around that, and it is up to the Senate whether to accept that, not you or the minister. Can you please take on notice to produce that document to the committee and the cost—

Dr Johnson: Which document are you referring to, Senator?

Senator ROBERTS: The cost.

Dr Johnson: Of ROBUST?

Senator ROBERTS: Yes.

Dr Johnson: The decision around the cost of ROBUST—

Senator McAllister: Just take it on notice.

Dr Johnson: We’ll take it on notice.

Senator ROBERTS:Thank you, Minister. David Burton of Inigo Jones, long-term weather forecaster, uses sunspots and planetary cycles to correctly forecast weather decades in advance. He’s got a track record because he’s got investors who invest as a result of his successful forecast. He posted 12 months ago that the good rains would start after 20 November 2023. There was no El Nino, and cyclones were likely. David Burton has no computer models and uses a $20 calculator because he understands the cycles. He got the weather right; you got it wrong. Hayden Walker, another long-term weather forecaster, correctly forecasted severe storms in the areas where they did occur. Will you talk to these private forecasters to work out why their systems are right and yours was wrong? Theirs are actually history. Yours are models—aren’t they?

Dr Johnson: I reject the whole premise of your questions. Our forecasts, as I’ve indicated at the previous hearing on this subject, were remarkably accurate. I’m happy to go through them again. What we said is on the Hansard in terms of the seasonal outlook. We were very clear, as the year progressed, that we were moving out of a dry warming trend into a moistening trend. We were also very clear in our messaging that, irrespective of the ENSO status and the seasonal forecast, we know that in northern Australia, in particular, there is always the risk of severe weather—cyclones and floods—under any climatic situation. I don’t agree with the premise of your question.

Senator ROBERTS: This is not just northern Queensland, where we know that it’s prone to storms, but western Queensland and southern Queensland. We know that your bureau declares El Nino and positive Indian Ocean Dipole events. David Burton said there was no El Nino and cyclones were likely. David Burton quite often gets it right. He’s paid a considerable amount of money because David Burton’s, Hayden Walker’s and, prior to them, Inigo Jones’ and various other people’s methods have been in use for decades. Farmers, investors and businesses pay for their forecast. They have to go out into the market and sell.

Dr Johnson: I understand that, and millions of Australians rely on our forecasts every day, including farmers and folks in the business community. I just reaffirm to you, as I did at the previous estimates, just how remarkably accurate our forecasts were over the period. I’ve certainly said in previous hearings and in other forums that we acknowledge that some of the messaging that we gave during the previous spring and summer didn’t get through in a manner that we would like.

That’s not to blame the recipients of that messaging. It’s just a fact. People heard a message around an ENSO status and thought, ‘That’s it; it’s going to be hot and dry.’ We update our forecasts every week, and we regularly updated our outlooks, and those outlooks proved to be very accurate.

We also affirmed, in all those messages that, particularly during the summer and irrespective of the ENSO status, the risk in this country of thunderstorms, floods and tropical cyclones remains. In fact, at the national severe weather forum here in Canberra, I made that very clear in my own presentation: one thing that this country has taught us is that severe weather can occur at any time. We’re very clear in our messaging around that. I’m only going to comment on our forecasts and warnings. Others are welcome to comment on those made other parties, but I stand by the quality of our forecast. I did so at the previous hearing, and I’ll continue to do so.

Senator ROBERTS:Well I do agree with you—

CHAIR: Senator Roberts, we’re going to have to rotate the call.

Senator ROBERTS:I note that your own forecast—

Dr Johnson: I’d like to have a look at this—

Senator ROBERTS: That’s produced by you.

Dr Johnson: I know, but a very quick and cursory—and maybe it’s not helpful, Chair—is that you’re comparing two different measures of data there. One’s talking about chance of exceedance and another one talks about actuals. The two are fundamentally different concepts. Just because you have a map of Australia with colours doesn’t mean to say that the two datasets are comparable. Let me have a look at it. If you have a specific question, I’d be happy to take it on notice.

Senator ROBERTS:Your faulty forecast caused farmers to offload cattle. The benchmark Eastern States Young Cattle Indicator sat as high as 1,192 cents per kilogram of carcass weight in 2022, but by late 2023—after your forecast hit the streets—it had tumbled all the way to 349 cents per kilogram. That’s less than a third. Do you accept responsibility for that loss to the Australian capital market as graziers sold stock because they feared overstocking in the looming dry?

Dr Johnson: Let’s just get the data right here. The Eastern States Young Cattle Indicator was about 1,200 cents per kilogram in January 22, and less than 400 cents by October 23. We released our El Nino declaration on 18 September, so by 18 September that particular measure of cattle prices had dropped somewhere by around 80 per cent. To somehow draw a conclusion that because we issued that declaration on 18 September that resulted in a run on the cattle markets, is just not supported by the data.

As I said at my previous hearings on this matter—in response to, I think, a question from Senator Davey—there are a whole range of factors influencing the decisions of primary producers. I’ve talked to a lot of primary producers and absolutely our advice and our outlooks contribute to their decision-making. But to a person to a farm business that I’ve spoken to there are a whole range of other things that they take into account in making a decision to sell their cattle. So this notion that the bureau declaring an El Nino at 18 September can explain an 80 per cent drop of the cattle prices from January 22 to October 23 is just a nonsense, frankly.

Senator ROBERTS:Thank you, Chair, can we come back?

— *** —

Senator ROBERTS:Dr Johnson, could you please repeat your dates and cattle prices? Eastern Young Cattle Indicator—

Dr Johnson: I’ll try if I can. Let me just find the brief that I have and the advice I have received. I’ve been advised of Rural Bank data that shows the Easten Young Cattle Indicator declined from approximately 1,200c a kilogram in January 2022 to less than 400c a kilogram by October 2023. As I said, we declared an El Nino on 18 September. So, just to reaffirm by that calculation, I’m advised that the cattle price had completed more than 80 per cent of its downward run by the time we declared that El Nino in September.

Senator ROBERTS:Great. Thank you very much.

Dr Johnson: That’s the advice I have.

Senator ROBERTS: The Financial Review blames the Bureau of Meteorology: ‘How the BOM’s big dry weather forecast cost millions’ and ‘Bureau of Meteorology’s botched weather call crushes Elders’ earnings’. There’s ‘BOM mistakes hit farmers but slash inflation’, and then we’ve got others there. Your botched prediction cost more than just farmers; it cost mum-and-dad investors in Elders millions, with the share price dropping 25 per cent. Do you accept that this was the fault of your forecast?

Dr Johnson: Again, I’ve already answered this question. We absolutely stand by our forecast. Our forecasts are remarkably accurate. As I’ve said at previous estimates hearings, commentary in the media, frankly, has been largely ill-informed and inaccurate, and we’ve sought to correct the record where we can. Take, for example, the Australian Financial Review article which asserted that our El Nino declaration had been linked to Elders’ earning advice. I’ve had a look at the Elders’ advice, and it was not stated or even implied in their earnings outlook. I don’t care what the Australian Financial Review reported. My reading of what Elders actually said was that it didn’t state or even imply that the bureau’s El Nino declaration affected earnings for the period 1 October to 30 September. There are lots of things written in the media. Again, we talked about this last time. If you actually have a look at the facts of what we said and when we said it, our forecasts were remarkably accurate given how complex it is and the sheer area that we’re seeking to provide forecasts for. The forecasts are not perfect; they will always contain uncertainty.

Also, the long-range forecasts can’t explicitly predict the emergence of cyclones—individual, specific events. There will be times when you’ll have an anomalous specific event, and hence why, in our public commentary, we seek to affirm to the public and to industry that there’s always the risk of severe weather in this country and there is always the risk of cyclones in the tropics and subtropics in this country. It is a forecast. It is an estimate of a point in time in the future based on the data at a particular point in time. We update it every week. I strongly encourage those who follow our services—and many millions of people do—to continue to check those updates. The situation changes all the time. We continued to update a point-in-time statement back in September as more information came to hand.

CHAIR: Senator Roberts, we are going to wrap up, so can you please make this your last question.

Senator ROBERTS: There are lots of people who are saying that the Bureau of Meteorology colours its diagrams to make it look hot and dry but we actually see—and this is rainfall over 124 years—no pattern or trend, no declining trend or increasing trend, just natural variation. And that’s from the BOM. Why the doom and gloom? Why depress expectations for rural output, which also depresses investment, training and employment in the bush, reduces the standard of living and increases the cost of living?

Dr Johnson: I’m not sure I understand your question, Senator.

Senator ROBERTS:Why are you so negative and preaching fear and doom when there’s nothing to suggest that, and why do you use colours to exaggerate it?

Dr Johnson: I don’t agree with your statement that we are preaching doom and gloom. We’re simply reporting the observations we’re making of the environment around us, and we’re reporting, to the best of our ability, what our guidance is for the time ahead. We do that objectively, using world-class, internationally peer reviewed, highly regarded scientific methods, and we’ll continue to do so. I think we’re entirely objective in our pronunciations and our public statements.

/4 Comments/by

Snowy Hydro is an Endless Money Pit!

The Snowy Hydro is a $12 billion pumped hydro project that connects two existing dams in the Snowy with a tunnel, to allow excess power generated by industrial wind and solar sources during the day to be used for pumping water up the hill into the top dam, where it can be released to provide hydro power for the evening and morning peak periods. This sounds like a reasonable idea except, the cost started at $2 billion when announced by Liberal PM Malcolm Turnbull in 2018.  It’s now $12 billion and that’s not including the cost of the transmission lines to take the power into the national grid, which is $14 billion at the least. I expect the final cost will more likely be $20 billion.

Additionally, the project itself and the transmission lines are being built through undisturbed National Park, which will be permanently scarred.

This project will generate 350,000 MW/h of power per annum, providing revenue of $30 million a year at current rates, which suggests they expect electricity to become much more expensive. This means the project will not recover it’s capital cost and is likely to run at a loss every day it operates. The same machinery that is used to pump water up hill and the same “headrace” tunnel used for that purpose, is the same tunnel that brings the water down and generates electricity. This means the facility can’t pump water up and generate electricity at the same time.

So, while it’s true that the generator has a capacity of 2,200 MW, it doesn’t maintain this output all day. As Snowy Hydro admitted during my questioning, they aren’t actually generating new power; they’re simply time shifting existing power. This project has encountered delays due to drilling mistakes and now faces serious obstacles to completion.

Why are we throwing good money after bad on this boondoggle? The reason is that without pumped hydro acting as a “big battery” to transfer expensive, unreliable wind and solar power from the day (when the sun is shining and the wind is blowing) to the night and early morning when it isn’t, the grid will never survive. Evening and morning peak hours will be in darkness – every day. In renewable energy terms, pumped hydro “firms” wind and solar. They have to build Snowy, regardless of the cost.

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Questions Raised Over $430K Government Job

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Under my questioning, Rob Stefanic, the head of the federal government department tasked with overseeing Parliament House, denied being in a relationship with his deputy, but refused to say whether he’d been in one with her before creating and placing her in a job paying about $430,000 a year. Cate Saunders was also given a $315,000 additional payment to retire, despite being far younger than the retirement age.

Listen to my questioning and tell me whether you believe Rob Stefanic’s answers are worth the $478,000 he is paid by YOU, the Australian taxpayer, as I had to remind him. I also asked about reports of there being a toxic culture at his agency, the Department of Parliamentary Services. Multiple staff have approached me and I am not satisfied with the fobbing off of these concerns.

If you’ve been a staffer in the Department of Parliamentary Services and have a complaint, please contact me confidentially at senator.roberts@aph.gov.au

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CASA Relied on Chief Medical Officer’s Advice Only

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At the last estimates in May, I asked CASA which experts they had consulted for their advice. After some delay, CASA admitted they had relied solely on information from the Chief Medical Officer, without conducting any independent research. They stated their sources were limited to the TGA and FDA and that the only data used came from Pfizer, which has since admitted to numerous fatalities.

Ms. Spence said she was aware AstraZeneca had been withdrawn and that Novavax had also been withdrawn. However, she noted that there had been no reported adverse events in the cockpit.

I raised concerns about CASA’s varying health test requirements for pilots of large commercial aircraft versus small private planes and pointed out that these differing standards posed a risk in shared airspace.

Transcripts

ACTING CHAIR: Thank you to your legal officer. Senator Roberts?  

Senator ROBERTS: Mr Marcelja could not tell me the specific names of the experts upon which CASA relied for turning a blind eye to Qantas and Virgin on mandates, which weren’t government mandates. Dr Manderson, can you tell me specifically which medical experts you relied upon for allowing Qantas and Virgin to mandate the vaccines? Who gave you the advice? Dr Manderson: The chief health officer of Australia at the time would be one important name.  

Senator ROBERTS: Did you actually get his advice?  

Ms Spence: I think we have gone through this previously. I appreciate—  

Senator ROBERTS: That was with Mr Marcelja—  

Ms Spence: But I think what we—  

Senator ROBERTS: and he wouldn’t tell me the names of the chief medical officer—  

Ms Spence: Sorry, Senator. Do you want me to finish?  

Senator ROBERTS: Do you want me to allow you to keep interrupting?  

ACTING CHAIR: Senator Roberts, come on. You know that’s against standing orders.  

Senator ROBERTS: There’s been a lot of protection of—  

ACTING CHAIR: No. Allow Ms Spence to conclude her answer to your first question.  

Senator ROBERTS: She’s not answering my question; Dr Manderson is.  

ACTING CHAIR: I thought I heard Ms Spence, but—  

Senator ROBERTS: She interrupted.  

ACTING CHAIR: I’ll allow CASA to answer your question. CASA?  

Ms Spence: All I was going to say is that we’ve tried to explain before that we don’t get individual advice on specific issues; we rely on the advice of the health experts, and, in this case—as Dr Manderson has said—the chief health officer of Australia was basically a key source. But the TGA was also providing advice. I think we have actually put that in response to questions or in some of the Hansard previously.  

Senator ROBERTS: The reason I’m frying up is that Mr Marcelja said that it was the experts, and he wouldn’t name them, and the experts wouldn’t name them. And then we went to international experts, to I gave up. Your answer is the Chief Medical Officer—not the chief health officer. I presume you’re talking about the federal Chief Medical Officer.  

Ms Spence: Yes.  

Senator ROBERTS: That’s important. The Chief Health Officer is—  

Mr Marcelja: Senator, perhaps you could refer me to your question specifically so that I’ve got in front of me what you’re talking about. What date was that? I’ve got the Hansard in front of me. 

Senator ROBERTS: I can’t remember the date.  

Mr Marcelja: You can’t remember it. My recollection of the conversation was that you were asking me on what basis we were taking the actions we were taking, and I told you that we were taking no actions to intervene in the Australian government’s response. The advice, as Dr Manderson pointed out, about Australia’s response was not being led by us; it was being led by health authorities. So we did not intervene and override the advice of Australia’s Chief Medical Officer or other health experts.  

Senator ROBERTS: You have told me that the buck ends here for aviation safety. You did not do any testing at high-altitude pressures, correct?  

Ms Spence: No.  

Senator ROBERTS: You just assumed Pfizer, the Chief Medical Officer and the TGA knew that the pressure would be okay at high altitude?  

Mr Marcelja: As I tried to explain a moment ago, what we’re interested in from a vaccination or medication perspective is: is it likely that you will get into a cockpit, have a sudden, incapacitating event and be unable to fly the plane? That’s our primary concern. For all vaccinations, including the vaccinations that were being—  

Senator ROBERTS: In the cockpit at altitude.  

Mr Marcelja: at altitude—our primary concern was whether that medication, the vaccination, would cause that event to happen. There is no evidence in Australia or anywhere around the world. We’ve checked with our regulatory authorities and colleagues in the US and Europe. There is no evidence of that event occurring anywhere in the world over the last several years. I think we were on pretty sound footing not to intervene and prevent a particular cohort of the population from being vaccinated when that’s not our role.  

Senator ROBERTS: Let me ask you a few more questions around that. I want you to remember at all times in your answers to me that, when it comes to safety, the buck stops with you, CASA. There is no high-altitude testing done that you’re aware of. Are you aware that the TGA, when I asked them what tests they did in Australia on the vaccines, said they did no tests and relied on the FDA? Are you aware of that?  

Mr Marcelja: I reiterate what I said. They are not matters for us. We look at it from an aviation safety lens. Dr Manderson has been involved in international panels looking at aviation safety on a number of different topics. I’m sure she can step you through that. There is no evidence whatsoever over several years now of there being an aviation safety risk. That’s our concern. Whether the vaccine has other effects or issues—  

Senator ROBERTS: You relied upon the TGA. That was one of the people you relied on.  

Ms Spence: Yes.  

Senator ROBERTS: The TGA admits it did no testing and that it relied upon the FDA. The FDA, prior to the TGA’s announcement, admitted that it did no testing and relied on—wait for it—Pfizer.  

Mr Marcelja: Are you suggesting—  

Senator ROBERTS: Now we find out Pfizer in their trials had hundreds of fatalities.  

Ms Spence: I don’t know how many times we can say this, but we treated the COVID vaccinations the same way we treat all vaccinations, and we don’t do individual, independent testing. But—  

Senator ROBERTS: Let me continue, then. Are you aware of AstraZeneca being withdrawn?  

Ms Spence: Yes, but I think—  

Senator ROBERTS: Are you aware—  

Ms Spence: Senator, sorry. I don’t think it’s quite as clear cut as saying it’s been withdrawn. They’re no longer using it. It wasn’t around inefficacy at the time, but now they’re no longer producing it. Yes, we are aware.  

Senator ROBERTS: Do blood clots say anything to you. What about Novavax? We understand that has been withdrawn just recently.  

Ms Spence: I wasn’t aware of that one.  

Senator ROBERTS: Okay. Excess deaths, 13 per cent, in line with the COVID injections—before COVID outbreaks in Queensland and Western Australia—what would make you investigate whether or not pilots are suffering from COVID injection adverse events? Because you don’t do testing on pilots; you rely upon pilots to turn themselves in. What would make you investigate it?  

Ms Spence: The only thing that would make us investigate is if there was an adverse reaction in the cockpit which could be directly attributed to a COVID vaccination. 

Senator ROBERTS: What if I told you that pilots are telling us that they know of mates who have had adverse events but they won’t speak up for fear of losing their job?  

Ms Spence: I would encourage them to report through the confidential reporting arrangements that I mentioned, both with us and with the ATSB, because we are not getting those reports, and there are mechanisms for them to do that.  

Senator ROBERTS: With pilots losing their jobs, I wonder.  

Ms Spence: As I said, they’re confidential, so they don’t need to report who they work for—but just giving us the information, if that is actually occurring, would be incredibly beneficial.  

Senator ROBERTS: Given that CASA use Austroads fitness to drive as a guideline for recertification for TIA or stroke in class 5 medicals, on what are the class 1 and 2 medical recertification guidelines based, and do they differ from class 5 guidelines? If so, how and why?  

Ms Spence: The standards for class 1 and 2, which is the commercial pilot and the private pilot medical certificates, are based on the International Civil Aviation Organization medical standards for certification for pilots—for commercial and private. They are quite different to the domestic Australian class 5 medical certificate, which is not an ICAO certificate and doesn’t need to comply with those medical standards. So class 1 and class 2 reference the international pilot standards.  

Senator ROBERTS: And class 5—you make up the standards?  

Ms Spence: Class 5 medical standard was developed through really extensive consultation through technical working groups with both doctors and pilots, with operational input from pilots in particular. It also went through a really strong risk assessment process within CASA to determine what those standards should be, mapped against the risk treatments for the operational restrictions with the class 5.  

Senator ROBERTS: But my question was: CASA developed those standards? I’m not interested in the process. CASA developed those standards?  

Ms Spence: Yes, CASA developed those standards.  

Senator ROBERTS: Thank you. CASA allow airlines to push pilots to the limit as a routine practice. This is facilitated by a concession given to the airlines masquerading as ‘fatigue risk management’. CASA have allowed airlines to use this system as a shield when continuing to roster pilots to fly unreasonably long hours. Do class 5 medical holders and class 1 and 2 medical holders operate in the same airspace?  

ACTING CHAIR: What are you quoting? I think the witnesses would like to see the source of that quote.  

Senator ROBERTS: I’m not quoting from anything here. My research assistant—  

ACTING CHAIR: I thought you were.  

Senator ROBERTS: No, I’m not quoting.  

ACTING CHAIR: Okay.  

Senator ROBERTS: I’m just quoting the fatigue risk management title.  

Mr Marcelja: So, for the record, we don’t agree with the statement you just said.  

Senator ROBERTS: Okay. Do class 5 medical holders and class 1 and 2 medical holders operate in the same airspace?  

Ms Spence: Yes, they do.  

Senator ROBERTS: Thank you. Is a class 5 medical holder a single pilot operation?  

Dr Manderson: Yes, it is.  

Mr Marcelja: Yes. 

Senator ROBERTS: Okay. You had some doubts, Dr Manderson?  

ACTING CHAIR: I think they answered the question.  

Dr Manderson: Sorry, only because I felt it was self-evident that—but, yes, it is.  

Senator ROBERTS: Okay. Thank you. So, if a class 5 medical holder with a recent history of stroke or TIA after four weeks of grounding is back in an aeroplane at the holding point at an airport and has a relapse, his or her aircraft taxis out in front of the landing heavy jet fully laden. Class 1 and 2 medical holders can operate with multicrew and autopilots as well as current pilots repositioning as passengers in the cabin on numerous flights. Class 5 pilots have no back-up. Is that correct so far?  

Ms Spence: Senator, I— 

Mr Marcelja: Perhaps you could repeat the question. I’m not sure what the question was in that.  

Senator ROBERTS: We’ve got a heavy laden jet coming in to land with class 1 and 2 medical holders, with other back-ups on their position, and we’ve got a class 5 just about to go in front of the path and they have a relapse.  

Ms Spence: It feels like you’re describing—without being derogatory—a weekend warrior landing in the same place as a large commercial air transport operator, and I’m just trying to—  

Senator ROBERTS: Okay. Let’s continue then. We’ll get on to your weekend warriors. What value does CASA place on the designated medical examiner’s ability to diagnose and recertify pilots? And what situations require CASA to intervene with their diagnosis?  

Dr Manderson: So the designated aviation medical examiners are absolutely fundamental to us being able to make safe decisions about issuing medical certificates. They are the doctors that perform the examination and interact with the pilots and air traffic controllers at every medical certificate renewal application. We trust their assessment as clinicians as to whether or not there is any medically significant or safety relevant medical condition present in that pilot or air traffic controller applicant. We take their clinical information and their advice when we decide whether or not to issue a medical certificate.  

Senator ROBERTS: Why then is CASA advocating self-certification for class 5 medicals—as I understand it?  

Mr Marcelja: We are not advocating. What we’re presenting are options for different types of operations. So a pilot that chooses to operate with a single passenger in a light aircraft can choose a class 5 certificate or they can choose any other certificate. So we’re not advocating any particular medical. We’re creating options and different pathways for different pilots in different circumstances, and those circumstances are adjusted based on risk and the level of medical certification.  

Ms Spence: This is a matter that has been under debate for a number of years, around CASA being a proportionate regulator. Under the class 5 medical, we put restrictions on the way you can operate, therefore you can operate within those constraints and then we will review to see how that’s working over time. We’re monitoring it closely to make sure that we’re auditing people’s self-declarations and the like. So I think people do expect us to be a proportionate risk-based regulator, and I think the class 5 medical is an example of how we can do that.  

Senator ROBERTS: That’s what I’m exploring here. I’m trying to understand. I’m not a pilot. Considering CASA AvMed can override opinions of consulting physicians and specialists during the medical renewal process, how could the view of a CASA AvMed doctor come to its own diagnosis of an individual pilot in the absence of face-to-face consultation and overrule the opinions of independent specialists and consultants? Is that possible?  

Dr Manderson: The aero-medical decision-making process is more than and different to the clinical decisionmaking process. The medical assessment process that we’re required to follow by the Civil Aviation Safety Regulations and the ICAO standards and recommended practices is that we take all of the advice that is available from all of the clinicians—including their expert opinions, the investigations and reports that are available, the medical examination from the DAME—and we apply that information against the medical standard for medical certification. The key difference is that the medical specialists who are seeing the patient and the patient pilot or controller are performing an assessment of the medical status of that person as a clinician for diagnosis and management, not for aero-medical risk assessment and not for medical certification processes. So it’s quite a different role and a different process. We consider their advice, but their advice is about the condition and its disease and severity, not about its safety relevance for medical certification.  

ACTING CHAIR: Senator Roberts, we need to break for dinner. Are you close to finishing?  

Senator ROBERTS: We might put these on next Senate estimates.  

ACTING CHAIR: We are going to release CASA now. Thank you very much. 

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NDIA Coverage of Autism and Supporting the Elderly

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During the recent Senate Estimates, I inquired with the NDIA about whether individuals with autism, often described as being on the spectrum, and their families are covered by the scheme to receive support? Constituents had informed me that support had been cut without explanation.

I was informed that there’s been no change and that individuals with autism will continue to be included in the National Disability Insurance Scheme (NDIS), with support determined on a case-by-case basis.

I also inquired about the plan for supporting older individuals nearing retirement who already receive assistance under the scheme, ensuring they continue to receive the higher level of support. I was informed that the government is still deliberating on this matter.

Transcript

Senator ROBERTS: Before moving on to my third question, I express my appreciation for the answers to the first two and for Mr Dardo’s concurrence that he’s going to put the details, in response to my first question, on notice—the financial figures. I don’t know who the appropriate person for this question is. Will families supporting a family member with autism be appropriately supported? Is autism covered? 

Ms Falkingham: It is. Can I clarify what your question is about, though. Obviously we cover autism within the scheme. 

Senator ROBERTS: You do? 

Ms Falkingham: Yes, we do. 

Senator ROBERTS: I’ve heard that many people with autism—or who are on the spectrum, as they say—had their services cut off, with little explanation provided. Is that true? 

Ms Falkingham: It’s not true that there has been any change in relation to autism. Autism will always remain part of our scheme. But, if there are any individuals that have got particular cases that you would like me to look at, I’m really happy to do that. 

Senator ROBERTS: Thank you. I have two more questions. What’s planned to support older people currently receiving a disability support package that’s far in excess of an age pension? What’s the plan for them when they reach retirement age? 

Ms Falkingham: That might be a question for our colleagues in DSS as well, because the NDIS review has made some recommendations in relation to making sure that people continue to receive disability supports after 65, but government is currently deliberating on that recommendation. 

Senator ROBERTS: Thank you. 

Mr Griggs: Senator, we can come to that. 

Senator ROBERTS: Sorry? 

Mr Griggs: We can come to that when we get to outcome 1 in DSS tonight. That would be the place to discuss that. 

Senator ROBERTS: That’s it. Thank you very much. 

/1 Comment/by

Tracking the Data of Lithium Battery Fires

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Lithium battery fires have featured far too often in news headlines. These fires often ignite without warning, they’re difficult to extinguish and are not confined to #EVs. Everything from eScooters to electric toothbrushes carries the risk for #thermal runaway and considered hazardous materials.

I asked about the ACCC’s report on Lithium-Ion Batteries and Consumer Product Safety during the recent senate estimates. The report advocates for a national product safety incident database to capture lithium ion battery fires.

Senator Gallagher responded positively and I look forward to quick action on this problem from the Government.

Transcript

Senator ROBERTS: I want to refer to the ACCC’s Lithium-ion batteries and consumer product safety report that you issued this month. On page 6 it says: 

… there is currently no national product safety incident database to capture data and support national identification and analysis of consumer product safety hazards. Instead, product safety incident data is fragmented across a range of government and non-government organisations. With appropriate funding, the ACCC considers it is best placed to administer a national product safety incident database— 

which would include capturing lithium ion battery fires— 

and recommends the ACCC is funded to develop and administer this. 

Minister, electric products catching on fire seems to be a frequent and very serious problem. Tracking the data accurately would help inform the debate, assist customers to make good decisions and probably save lives. When will you implement this recommendation? 

Senator Gallagher: Sorry, I don’t have the recommendation you’re referring to. 

Senator ROBERTS: The ACCC recommends that it be the one to monitor and capture the data on lithium ion battery fires. 

Senator Gallagher: I imagine this is something that will need the attention of governments. I’ve been watching it myself, with more and more reporting of these matters. I think it’s probably something that the federation is going to have to deal with, as it crosses over a number of responsibilities that would be state and Commonwealth. 

Senator ROBERTS: Thank you. 

/3 Comments/by

The Cost of Clawing Back NDIS Fraud

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At the February Senate Estimates I asked the National Disability Insurance Agency (NDIA) how much money has the NDIA been able to claw back through identified National Disability Insurance Scheme (NDIS) fraud? Funding across 16 agencies, including the NDIA, of $140 million over four years was provided in 2022 to tackle fraud. Those agencies are working together. It seems reasonable that we should know what return on this investment we’re getting since we’re paying for it.

There are major concerns with the NDIS. It was hastily brought to life and hastily implemented. There are concerns with both over and under-servicing. That’s not necessarily a reflection on the people in the NDIA, but that’s the reality.

I also asked what is being done in relation to auditing service providers who are sucking the scheme dry through fraudulent claims for services that are overcharged or actually not even provided? My questions regarding the amount actually clawed back was taken on notice, however John Dardo, Deputy CEO of Integrity Transformation and Fraud Fusion Taskforce, freely admits to having layers of concern about NDIS fraud. There are over 600,000 participants in the scheme and Mr Dardo says the system is extraordinarily immature for a scheme paying out over $100 million each day, with 400,000 claims a day. Among the risks they’re managing is whether they can be confident that a participant is a real human being, is in the scheme knowingly and actually exists.

Transcript

Senator ROBERTS: Thank you for appearing today. On the topic of fraud, how much money has the NDIA been able to claw back through identified NDI fraud? 

Ms Falkingham: I’ll ask Deputy CEO John Dardo, who leads that program, to come forward to the table. 

Mr Dardo: Thanks for the question. There are different ways to measure that. One of the ways to measure it is to think about how much we’ve prevented from going out the door by implementing systems or detecting the integrity leak before the money has left the door. Another way to measure it is to look at whether we’ve asked the participant or provider to pay the money back. Another way to measure it is by the amount of money that is subject to a prosecution activity—so where it has gone to the courts. Not all of that is recoverable, because unless there’s criminal asset confiscation, or unless there are penalties being charged, that money may not be recoverable. So there are lots of different ways to measure it. 

What I would say is that, as my colleague mentioned earlier in relation to detecting the anomalies, there are a range of things that we’ve been building up over the last 18 months to allow us to identify where there are integrity leaks, and what I would emphasise is that integrity leaks are very, very strongly correlated to participant risk. The safety of participants is put at risk when money is leaking to the wrong places. It’s because the participants aren’t receiving the services they need, or because we’ve got providers that are dodgy and are actually growing their businesses at the expense of good providers—so they’re wiping out the good providers—or because that money is actually funding activity for participants that is putting them at further risk, whether it be drug abuse, alcohol abuse, risky behaviours or other behaviours. So the money’s important, but the reason we look at the money is the participant safety impact that it has. 

What I would also say is that there’s a level of detail that I can’t share in this forum—I’m happy to do it in a private setting—because we do not want to run a 101 session on how to commit fraud against the NDIA. But I’m on the public record in previous hearings talking about the layers of concern that we have. We have, in round figures, over 600,000 participants in the scheme. The system is extraordinary immature for a system that pays out over $100 million a day, with 400,000 claims a day. It is an extraordinarily immature system. Certainly it’s one of the most immature I’ve seen. If I think about the sorts of risks that we’re managing and investing in, being confident that a participant is a real human being, is in the scheme knowingly and— 

Senator ROBERTS: Actually exists. 

Mr Dardo: actually exists is an area of risk that we’re certainly unpacking and understanding, and we’re identifying things that need to be addressed. 

Senator ROBERTS: Excuse me. Out of respect for the chair wanting to conclude pretty soon, could you take it on notice to provide the figures around the categories of fraud that you mentioned earlier on, please? What money has been saved? 

Mr Dardo: We can do that. 

Senator ROBERTS: There are concerns with the NDIS. It was hastily brought to life. It was hastily implemented. There are concerns with overservicing, as you know. There are concerns with underservicing and there are concerns with fraud. That’s not necessarily a reflection on the people in the NDIA at the moment, but that’s the reality. Please also take it on notice to answer: what is being done in relation to auditing service providers who are sucking the scheme dry through fraudulent claims for services that are overcharged or actually not even provided? 

Mr Dardo: An enormous amount of activity. Some of that activity is some randomised integrity checks. We’ve done tens of thousands of those to try and understand, at a randomised level, what we’re seeing. The sorts of common things we’re seeing include overclaiming, duplicate claims, claiming for services that were never provided and claiming for services that are not consistent with the plan. If I think about some other risk points, we have some particular cohorts where we have very significant concerns about the behaviour of the cohorts, and, when we cross-reference our data with other data such as tax data, for example, we see that some of our providers are non-compliant with basic obligations to the Commonwealth. If they’re non-compliant with their basic obligations to the Commonwealth but they’re managing money on behalf of participants or managing services on behalf of participants, we’ve got concerns. We have several hundred providers where they’re managing money or services on behalf of participants or managing other providers on behalf of participants and yet they’re not compliant with their most basic tax obligations. We’re cross-referencing data with other agencies. 

A taskforce commenced in November 2022. At the most egregious end of the offending, that taskforce has 16 Commonwealth agencies working together to identify networks of providers or syndicates that are targeting the scheme. You may have seen some media coverage about the search warrants being executed, the prosecutions being conducted and passports being seized or surrendered as part of bail conditions. That work is continuing to ramp up. We have over 100 investigations in the pipeline, and some of those cases are very significant both in dollar value and participant numbers being affected and also in the egregious behaviour of those providers. 

Senator ROBERTS: There are a lot of costs involved. Some of the costs are from the 16 agencies that are working with you and they’ll be hidden from the total cost. 

Mr Dardo: No, those agencies were funded as part of that announcement. That funding was $140 million over four years. Those agencies, as well as the NDIA, were funded as part of that Fraud Fusion Taskforce and they’re working in partnership with us. 

Senator ROBERTS: Thank you. 

/1 Comment/by

Casual Wage Theft and the Fair Work Ombudsman

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Thousands of casual miners working in Central Queensland and the Hunter Valley are each owed, on average, around $33,000 per year in back pay, making them victims of Australia’s largest wage theft.

During my discussion with Ms. Booth and Mr. Scully, I inquired about the calculator that people can use to determine if they are being paid correctly under an Agreement or Award. It is crucial for workers to be paid at least the award rate of pay.

Ms. Booth described the calculator as an interactive template designed to cover all the awards.

An analysis of five significant labour hire coal mining enterprise agreements operating in Queensland and the Hunter Valley, all involving the CFMEU, revealed that all five agreements underpaid the award – see below. I also asked Ms. Booth to provide information on how many requests for assistance had been made relating to underpayments by the Chandler Macleod Group regarding the black coal industry.

It’s worth noting that in the Black Coal Mining Industry Award, there are no rates of pay specified for casuals, raising questions about how so-called “casuals” can use the FWO pay calculator.

The Five Agreements that Underpaid the Award

Per Person – Per Year – On Average
The Core Staff Enterprise Agreement 2018 $22,600
The FES Enterprise Agreement 2018$27,000
The Workpac Enterprise Agreement 2019$33,500
The Chandler Macleod Agreement 2020 $39,340
The TESA Group agreement 2022$40,000

Transcript

Senator ROBERTS: Thank you for being here again, Ms Booth and Mr Scully. 

Ms Booth: A great pleasure, Senator Roberts. 

Senator ROBERTS: I refer to the Fair Work Ombudsman website and the black coal mining industry award that asks ‘Pay and entitlements less than the award?’ The Fair Work Ombudsman’s answer is, and I quote, 

Employees must be paid at least award pay rates and entitlements. 

There’s another instruction or invitation: 

If your pay rates are less than the award, go to Help resolving workplace issues to follow our step by step guide on how you can fix it. 

Does the Fair Work Ombudsman have a standard process or template it uses to assess whether an employee is being paid less than the award? 

Ms Booth: The Fair Work Ombudsman has a pay calculator that allows anyone—an employee or an employer—to provide information as requested. It calculates the correct award rate. That is the case for all sectors. 

Senator ROBERTS: So it doesn’t have a template, but an individual can step his or her way through it? 

Ms Booth: I think the pay calculator could be described as a template. But it’s interactive. It’s a series of smart forms that you complete and then you get a response at the end which tells you what the award rate is. For further information on the pay calculator, I could turn to my supporters here. Mr Scully, would you like to talk more about the pay calculator for Senator Roberts? 

Mr Scully: We call it PACT, which is pay and conditions tool. It is an online calculator that has hundreds and thousands of pay combinations and calculations that can be provided and is tailored to the particular award and classification and the like that the user keys in. It is a very popular tool. I think last financial year, something like 6.4 million people used it. There were something like 7.1 million pay calculations provided, I think, for the year, so it’s widely used by the community. 

Senator ROBERTS: So there’s a template that an individual can attempt to check? 

Mr Scully: Correct. 

Senator ROBERTS: Is that tailored to cover pay rates subject to the coverage of the black coal mining industry award and the rosters that are used in Central Queensland and Hunter Valley? 

Mr Scully: It covers all awards, Senator. 

Senator ROBERTS: I know it is a very complex situation involving the 12-hour rosters in the Hunter Valley and Central Queensland. 

Mr Scully: I would need to check that. I don’t know that it would go to the rosters. It is more awards and classifications. It goes to weekday rates and weekends and shift penalties and the like. 

Senator ROBERTS: It’s a very complex roster. People have difficulty. Would the Fair Work Ombudsman agree to undertake an assessment with regard to the application of coal enterprise agreements and provide the outcomes to me? 

Ms Booth: The Fair Work Ombudsman certainly will respond to any employee who has a question. We will provide information. 

Senator ROBERTS: Is that current employees or can they be past employees? 

Ms Booth: I will ask Mr Scully to answer that question on the basis that the info line is available to anyone. We don’t ask people to verify their employment status. I’m going to say that anyone can ring the info line and ask a question. Would that be right, Mr Scully? You would not have to be an employee to ring the info line and ask a question? We don’t seek to verify people’s employment status? 

Mr Scully: That is correct. 

Senator ROBERTS: I wasn’t thinking about calling up myself. I was thinking about past people who have left the industry but have been underpaid dramatically. 

Ms Booth: So when a call comes, information is given. If that information doesn’t satisfy the caller and the caller still has a dispute that they regard as unresolved, we call it a request for assistance. We identify that and we move it through to an assessment team. That assessment team will speak directly with the employer and the employee and attempt to resolve the matter. I think you also know that it will go forward beyond that through inspector support to our investigator and inspectors to conduct investigations should it not be resolved by the assessment team. That is the pathway. 

Senator ROBERTS: Thank you. By the way, a team of workplace lawyers, consultants and coalminers reviewed and analysed five significant labour hire coal mining enterprise agreements and the work roster that are operating in Queensland and the Hunter Valley. The CFMEU and the Mining and Energy Union were involved in, or were a party to or signed off on, all five agreements. The Fair Work Commission approved all five agreements. The enterprise agreements all underpay the award. The core staff agreement, for example, 2018 enterprise agreement yearly underpayment is estimated at $22,600. The FES agreement 2018 yearly underpayment is estimated at $27,500. The WorkPac agreement 2019 yearly underpayment is estimated at $33,500. The Chandler Macleod agreement 2020 yearly underpayment of casuals is estimated at $39,341. The TESA Group agreement 2022 yearly underpayment was estimated at over $40,000. But let’s come back. Between 2012 and the present day, could you please provide the number of requests for assistance made regarding underpayments by the Chandler Macleod group relating specifically to the black coal mining industry award and associated enterprise agreements? 

Ms Booth: I think we’d have to take a question like that on notice. We collect information at the info line on a range of demographics. I wouldn’t be sure whether we could go to that degree of disaggregation. I think it is important to reinforce that the Fair Work Ombudsman enforces the law as it exists. As you know, a fair work instrument includes an enterprise agreement that has been approved by the Fair Work Commission. We don’t play a role in interrogating the approvability or otherwise of such an instrument. Once it is in existence, we must take it on its face value. 

Senator ROBERTS: Thank you. You can take it on notice. Again, in relation to Chandler Macleod and the black coal mining industry award, how many requests for assistance were closed with the following general determinations—under the award, you can be casual; the 2007 workplace agreement covered your employment; or the insertion of section 15A into the Fair Work Act determines you are a casual? You can take that on notice, too, please. 

Ms Booth: It would certainly be a degree of detail that I do not have at my fingertips. Is there anything, Mr Scully, you can say about that? 

Mr Scully: I can only advise that from July 2019 to 31 December 2023, we resolved 30 disputes that relate to the coal mining industry. I haven’t got any further details about that. There are 30 over the last 4½ years. 

Senator ROBERTS: Thank you, Mr Scully, that’s in coal. This is specifically Chandler Macleod and the black coal mining industry award. You will have to take this on notice too. How many proceeded to the investigation stage? Have any of them not been formally closed? If so, which ones? Thank you, Mr Scully. Thank you, Ms Booth. Thank you, Chair. 

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Casual Wage Theft Under Fair Work Commission’s Watch

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Thousands of “casual” miners in Central Queensland and the Hunter Valley are each owed an average of $33,000 per year in back pay for every year of service for wage theft.

When inquiring with the Fair Work Commission about applying the Better Off Overall Test (BOOT), I asked if they would expect the pay under an Enterprise Agreement (EA) to at least match that under the relevant Award. Mr. Furlong confirmed that the EA would indeed be compared with the Award. I highlighted that there are workers under EAs who are earning significantly less than the Award, with these EAs being sanctioned by the Fair Work Commission and devised in collaboration between employers and the CFMEU.

I reiterated to Senator Watt that I could not support legislation that goes against the interests of workers and conceals the wrongdoing of unscrupulous unions. Minister Burke is shirking his responsibilities by refusing to deliver justice for thousands of workers ensnared in the casual rort stemming from enterprise agreements crafted in collusion with the CFMEU and labor hire firms, resulting in the largest wage theft in Australian history.

Transcript

Senator ROBERTS: Thank you all for being here. Good to see you again, Mr Furlong. When the Fair Work Commission assesses the application of the better off overall test, the BOOT, to a proposed enterprise agreement, would it be a normal expectation that the pay rate under the enterprise agreement should be clearly equal to or above that of the relevant award? 

Mr Furlong: As you are aware, and as we have discussed in previous estimates, the agreement making process involves a statutory decision-holder, a member of the commission, looking at the facts of the matter and then applying a legal test, the better off overall test. There are some other elements that they are required to satisfy. On the basis of that, they make a determination about whether or not the agreement is to be approved or not. 

Senator ROBERTS: Would it be a normal expectation that the pay rate under the enterprise agreement should be clearly equal to or above? That is a normal expectation? 

Mr Furlong: Yes. The better off overall test— 

Senator ROBERTS: Thank you. Are there circumstances in which, when considering the better off overall test, the BOOT, for an enterprise agreement, the Fair Work Commission would not do a comparison against the relevant award? 

Mr Furlong: The answer to that question is that there would be an award that they will refer to in terms of the application of the better off overall test. Through that process, they will determine whether or not that agreement as made is better off overall than the underpinning agreement. 

Senator ROBERTS: So they would do a comparison against the award? 

Mr Furlong: Yes. 

Senator ROBERTS: Thank you. If the enterprise agreement pay rate were not equal to or above the relevant award, and instead paid substantially less than the award, what would be the criteria used to justify that the enterprise agreement still passed the better off overall test, the BOOT? 

Mr Furlong: It’s not a line-by-line comparison. 

Senator ROBERTS: No. What would be the criteria? Broad criteria? Line by line? Whatever you want? 

Mr Furlong: It is the better off overall test. The Fair Work Act prescribes what the member must take into consideration in determining whether or not that agreement meets the requirements that have been approved. 

Senator ROBERTS: Are pay rates prescribed in there? 

Mr Furlong: They will be. The decisions of the members—the independent tribunal members—will outline the reasons for the approval of those agreements, including whether or not they satisfy the better off overall test. 

Senator ROBERTS: That is a wonderful point. Thank you so much. Even if the award excluded certain classes of employees from its provisions, would that exclusion create the legal circumstances to pay such excluded classes of employee less under an enterprise agreement than what they would or could earn under the award if the class of employees were not award excluded? Just to be clear, I’m not posing a theoretical question here. I refer to the black coal mining industry award exclusion of casuals as an example. Casuals are not specifically referred to in the black coal mining industry award. 

Mr Furlong: I understand that. As we have discussed in previous estimates, the fact that there are no casual coalminers under the black coal mining award doesn’t preclude an enterprise agreement being made. 

Senator ROBERTS: I understand that. I am talking about the pay. If an award excluded certain classes of employees in the coal industry—casuals—from its provisions, would that exclusion create the legal circumstances to pay such excluded classes of employee less under an enterprise agreement than what they would or could earn under the award if the class of employees were included in the award? 

Mr Furlong: Senator, I have tried as hard as I can to be helpful in terms of the second part— 

Senator ROBERTS: You are being helpful. 

Mr Furlong: that we have provided. My role as the general manager is to provide administrative support to the president on the efficient running of the tribunal, in essence. The matters that you are going to now traverse instances or occurrences that may end up before tribunal members for their determination. I can’t answer that question. 

Senator ROBERTS: Okay. That’s fine. Thank you. Minister, what would be the attitude of the government where workers working under enterprise agreements were paid less than the award even though the workers were doing exactly the same job they would under the award? 

Senator Watt: Well, I would want to know more about the circumstances there. In general, the idea behind enterprise bargaining is for people to obtain pay and conditions above the award level. 

Senator ROBERTS: Why is Minister Burke shirking his responsibilities and refusing to provide justice for thousands of workers caught in the permanent casual rort that is the result of enterprise agreements agreed between the CFMEU, now known as the Mining and Energy Union, with some labour hire firms, all with the Fair Work Commission’s approval? When will Minister Burke address this, the largest wage theft in Australian history? 

Senator Watt: Well, as we’ve discussed many times, Senator Roberts, Minister Burke is not avoiding that. In fact, Minister Burke has led the government’s efforts to address and fix the permanent casual rort, including through the legislation that we passed only last week. I actually don’t remember how you voted in that legislation. 

Senator ROBERTS: I voted against it because it would not address the issue that I am talking about right here. It buries the issue and buries the culpability of the unions. 

Senator Watt: I thought you probably voted against that legislation last week, because One Nation has pretty consistently voted against the legislation that has been designed for workers. 

Senator ROBERTS: We vote against it, as I explained, because it doesn’t address the issue. It buries the issue. 

Senator Watt: Just as you voted against the closing loopholes bill last year, which is all about trying to put labour hire workers on an even footing with other workers. 

Senator ROBERTS: Not true, Minister. 

Senator Watt: Well, One Nation has consistently voted against these things. 

Senator ROBERTS: You are consistently avoiding the issue of thousands of casual coalminers in the Hunter Valley and Central Queensland, our own state. I want that addressed. 

Senator Watt: I’m not. We’re not. We’ve gone over this ad nauseam. 

Senator ROBERTS: To make a point here concerning the validity of an enterprise agreement that removes the minimum statutory protections of any award, I quote the following paragraph from the full bench Federal Court decision in One Key Workforce Pty Limited v Construction, Forestry, Mining and Energy Union, decided in 2018. I go to paragraph 227. This is from the court decision: 

It is uncontentious that, where a statute requires an administrative decision-maker to reach a state of satisfaction about a matter, the opinion as to the state of satisfaction must be reached by a rational, reasonable and logical process. 

I will go to paragraph 204. I quote: 

It is an error of law to fail to have regard to relevant material in a way that affects the exercise of power. An administrative decision-maker who makes such an error exceeds his or her authority and acts without jurisdiction. 

I’m going to read— 

CHAIR: If we keep to the time line, I am giving you a heads-up. 

Senator ROBERTS: I’m nearly done. I have two questions and I will read some material. We had a team of workplace lawyers—I emphasise the plural—consultants and coalminers review and analyse five significant labour hire coal mining enterprise agreements and their work roster, which is complicated. The CFMEU, now the Mining and Energy Union, was involved in, was a party to or signed off on all five agreements. The Fair Work Commission approved all five agreements. The enterprise agreements all underpay the award dramatically. Specifically, in the core staff enterprise agreement 2018, the yearly underpayment for casuals working under that award is estimated at $22,623. It is wage theft. The FES agreement in 2018 has yearly underpayment estimated at $27,563 of wage theft for casual workers. The WorkPac agreement in 2019 showed yearly underpayment for casuals estimated at $33,555. Wage theft. The Chandler Macleod agreement 2020 has yearly underpayment estimated at $39,341. Wage theft. The Tesla group agreement 2022 yearly underpayment is estimated at $40,645. Wage theft. The Fair Work Commission has ruled that at least five black coal mining industry enterprise agreements exceeded their authority. Minister, what avenues will Minister Burke and your government take to restore basic entitlements lost under agreements that the CFMEU, the Mining and Energy Union, signed with various employers and that the Fair Work Commission approved? 

Senator Watt: Well, Senator Roberts, I have personally sat through probably at least half a dozen estimates committee hearings where you have raised these issues repeatedly. Various officials have answered these questions repeatedly. The matters have been investigated, as I understand it, and dealt with. I understand that you are not satisfied with those answers, but I can’t add to what we’ve said about these things before. 

Senator ROBERTS: Does it bother you that I have explained that the Fair Work Ombudsman has used a fraudulent document that has been deemed fraudulent by the Australian Taxation Office as evidenced against five others? It is solid evidence, including a court hearing. 

Senator Watt: If that were true, of course I would be bothered by it. 

Senator ROBERTS: You would be. Okay. 

Senator Watt: But I’m not sure that is true. 

Senator ROBERTS: Okay. This is my last question. Why has the process that the Fair Work Commission has adopted since 2010 in approving coal industry enterprise agreements that remove the minimum statutory protections of the black coal mining industry award clearly devoid of any form of rationality, reasonableness or logic? 

Senator Watt: What was the beginning of that question? 

Senator ROBERTS: Why is the process that the Fair Work Commission has adopted since 2010 in approving coal industry enterprise agreements that remove the minimum statutory protections of the black coal mining industry award—its entitlements, pay rates, the wage theft that I’ve just illustrated—clearly devoid of any form of rationality, reasonableness or logic, as the Federal Court requires? 

Senator Watt: That is obviously your opinion, Senator Roberts. I know that it is a strongly held opinion. I don’t think that opinion is shared more broadly. 

Senator ROBERTS: Thank you, Chair. 

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Professional Services Review Scheme Under Question

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The Professional Services Review was created to review misconduct of health professionals in a Medicare context, commonly invoked where there are allegations of over-servicing or Medicare fraud.

This Committee seems to be a law unto itself.

Dr Di Dio confirmed that there is no appeal process from conclusions of the Committee based on Merit. The only appeals available are based on errors of law that would include taking into account evidence that was not relevant or excluding evidence that was relevant. Lawyer Mr Topperwein confirmed that the weight to be placed on evidence was that which the Committee chose to give. He said that the Committee was both the investigator and the judge of the facts with no appeal on merit.

Mr Topperwein could provide no explanation as to why there were no lawyers on the Committee, to ensure the processes were fair and just, stating that the committee comprises practitioner peers.

The concerns about the Review Scheme being a law unto itself seem to be valid, it looks like we need some serious reform in this area.

Transcript

Chair: I welcome the acting director of the Professional Services Review, Dr Antonio Di Dio. Senator Roberts, is it one block of questions here?

Senator ROBERTS: Yes, hopefully we should get through it in one block.

Chair: Dr Di Dio, do you have an opening statement?

Dr Di Dio: No, thank you.

Chair: Alright. Senator Roberts.

Senator ROBERTS: Thank you, Dr Di Dio, for being here again. During the last estimates hearings I asked some questions, and your answers left me confused. Regarding what you gave me, I was feeling somewhat
misled, potentially, because I reviewed it afterwards. I was concerned by a number of submissions made to me about the lack of fairness of the structure by which this review scheme investigates allegations of misconduct by health professionals in a Medicare context. I’ve since done further research into this area and looked over the transcript closely. Just to start with the transcript, the Professional Services Review scheme was set up to review misconduct of health professionals in a Medicare context, commonly invoked where there are allegations of overservicing or Medicare fraud. Isn’t it true that the committee’s conclusions cannot be challenged on merit as to the accuracy or completeness of the basis for the evidence?

Dr Di Dio: The committee’s conclusions are made after an exhaustive and highly respectful process in which the practitioner under review gives evidence and responses in relation to potential concerns about potential
inappropriate practice, whether it is in the billing of Medicare item numbers or whether it is in conduct in association with the billing. The committee process occurs after an earlier process in which the director, firstly,
decides whether a matter will be reviewed; secondly, undertakes a non-compulsory interview with the practitioner involved; and thirdly, decides whether to take no further action under section 91, or a negotiated agreement or a referral to a committee. At each of those steps the practitioner under review is invited to make their submissions, give their evidence and respond to any preliminary concerns, to potentially make those concerns go away with the additional information that comes from the practitioner’s individual responses to each of those preliminary concerns.

So, even before the committee occurs, the practitioner has ample opportunity to respond. But at the committee stage itself, when the practitioner is reviewed by their peers, the practitioner has a great deal of opportunity to respond in as much detail as they wish about those particular concerns.

Senator ROBERTS: Thank you for that long answer. There were a lot of words there—exhaustive evidence and so on. But the fact is that you did not answer my question. My question said: isn’t it true that the committee’s conclusions cannot be challenged on merit—meaning as to the accuracy or completeness of the basis of the conclusions.

Dr Di Dio: Well, the committee is bound by its own obligations to the act—

Senator ROBERTS: Can the doctor challenge the accuracy or completeness of the evidence presented?

Dr Di Dio: Well, the evidence is presented by the doctor in response to those questions. I think perhaps your question is, can the practitioner challenge the evidence that the committee has before it? Is that what you mean?

Senator ROBERTS: Yes.

Dr Di Dio: The committee issues what’s called a notice to produce to the practitioner to ask the practitioner to produce documents, most typically the medical records of the patients who are being reviewed, for whom the particular services may be of concern. So, that evidence comes from the practitioner.

Senator ROBERTS: And I’ll say it again. The committee’s conclusions cannot be challenged on merit.

Dr Di Dio: I’ll refer you to my legal counsel, Mr Topperwien.

Mr Topperwien: It’s quite right that once a committee has gone through the whole process of providing a draft report and then a final report then any challenge to the findings in that final report must be limited to a
question of law, which includes whether they have taken into account irrelevant considerations or have not taken into account relevant considerations and have held a fair hearing. Those are all questions of law. And a challenge can be made to a committee’s findings on the question of law only. There isn’t an appeal to a merits review body.

Senator ROBERTS: Thank you. So, they cannot be challenged on merit, just on the points of law. What weight is placed on the evidence of witnesses called by the doctor under investigation to challenge the case being
made by the committee?

Mr Topperwien: The weight that a committee will give to any evidence depends on the nature of that evidence and how credible it is, and they are matters for the committee to determine.

Dr Di Dio: I would add to that that the practitioner under review is encouraged very much to bring legal representation, and support persons and witnesses are welcome.

Senator ROBERTS: Isn’t it true that the committee takes the role of both prosecutor and decider of facts that make the conclusions and recommendations of the committee?

Mr Topperwien: That is not true. The committee is not a prosecutor. It is an investigatory body. It investigates.

Senator ROBERTS: And once it’s finished its investigation, who does the prosecution of the case?

Mr Topperwien: There is no prosecution of the case.

Senator ROBERTS: Who makes the decision?

Mr Topperwien: There are findings of fact made—whether or not a practitioner engaged in inappropriate practice. And that is the sole duty of the PSR committee—to make a finding as to whether or not the practitioner engaged in inappropriate practice. The consequence of that finding is not a matter for the committee. It is a matter for a separate body called the determining authority.

Senator ROBERTS: I’m of the understanding that the investigation is done by the committee—

Mr Topperwien: Yes.

Senator ROBERTS: and then it decides.

Mr Topperwien: Yes. It decides whether or not the practitioner engaged in inappropriate practice.

Senator ROBERTS: Right. So, it decides. It does the investigation, and then it makes the verdict on its investigation.

Mr Topperwien: Yes.

Senator ROBERTS: So, it’s investigator, policeman—

Mr Topperwien: No—

Senator ROBERTS: It’s also judge.

Mr Topperwien: No. It’s an investigator in that it is charged with looking at whether or not the practitioner engaged in inappropriate practice. Clearly, if that’s its task then it has to investigate and obtain all the evidence
necessary to determine that question which it’s charged with answering.

Senator ROBERTS: So it does an investigation, then it makes the judgement and there can be no appeal or challenge on the merits of the case.

Mr Topperwien: That’s right, because it is an expert body that parliament has given the role of making those sorts of findings.

Senator ROBERTS: We’ll get to that matter of whether it’s expert or not. Isn’t it true that committee members undergo a training course in prosecution and investigation?

Mr Topperwien: They are not given any training in prosecution. They are given some training in relation to how to fulfil their task of investigating in the context of holding hearings when they question the person under review and take evidence.

Dr Di Dio: They are given further training in asking questions respectfully and appropriately.

Senator ROBERTS: Sounds good. Are they provided training in decision-making and natural justice principles.

Mr Topperwien: Yes, they are.

Senator ROBERTS: They are?

Mr Topperwien: Yes.

Senator ROBERTS: Is there any section of the Health Insurance Act 1973 where cross-examination of the committee’s case is prescribed?

Mr Topperwien: The Health Insurance Act does not mention at any point cross-examination.

Senator ROBERTS: How can the strength of the committee’s case be tested without substantial questioning given that the committee determines its own outcomes based on its own prepared case?

Mr Topperwien: At the hearings that the committees hold, the person under review is entitled to question any witnesses. They are able to present whatever evidence they wish to present to the committee.

Senator ROBERTS: Isn’t it true that any appeals from the committee’s decision are limited to procedural issues and merit review is not allowed? I think you’ve already answered that question.

Mr Topperwien: I’ve answered that question.

Senator ROBERTS: Why is there no senior lawyer or judge as part of the committee to ensure fairness of process?

Mr Topperwien: The reality is the committee is made up of the practitioner’s peers. They are all practitioners but at the committee hearing there are always two lawyers from PSR who are very experienced in administrative law, the rules of natural justice, to ensure that the committee hearing is conducted fairly, and the PUR—the person under review—is encouraged to engaged their own lawyer to be with them throughout the whole process.

Senator ROBERTS: I’ll just come to GPs, for example. There is such a wide range of GP services and, if you like, specialties. They’re not specialists—

Mr Topperwien: They are specialists in being general practitioners, yes.

Senator ROBERTS: Okay, but they focus on a particular area, niche, within—

Mr Topperwien: Some do; that’s right.

Senator ROBERTS: And some GPs cannot understand another GP’s work because they haven’t had the experience or the qualifications, particularly the experience.

Mr Topperwien: We try very hard to ensure that the members who are put onto committees have the relevant experience. As closely as we are able to do from the general practitioners who we have on the PSR panel from whom we can choose members to put on committees, we try very hard to ensure that their experience is such that they can well understand the circumstances and context and the type of services that the person under review provides.

Dr Di Dio: To clarify, you’re quite correct: there are general practitioners who have subspecialties, but we try very clearly to match the subspecialties as much as within reason, through the membership of our panel, to those particular practitioners. Most notably a lot of general practitioners do skin work, and we try to match our panel

Senator ROBERTS: Why is there no independent review process, apart from a limited formal appeal process?

Mr Topperwien: The make-up of the PSR COO committees is such that we have the best practitioners in their specialty appointed to the committees and to the PSR panel in order that we have the practitioners most
appropriate and who we have consulted with the relative colleges in their appointment to ensure that the colleges are confident that these practitioners are ones appropriate to assess the conduct of other practitioners.

Senator ROBERTS: So a GP who could be one of the leaders in the country in his or her field could be swamped with work because hardly anyone else is doing it. There wouldn’t be someone who was capable of
understanding that complete picture?

Dr Di Dio: GPs are generally not stupid. GPs are capable of understanding the work of other GPs. Should a GP be practising in a highly specialised area, we do the best that we can to match our panel of expertise with the relevant practitioner. Further, sometimes GPs may be involved in subspecialist activity where, at a stage even earlier than the committee stage, we might get a specialist in that field to review a case in addition to having a GP review the case. We try as hard as we can to match those skills.

Senator ROBERTS: If the committee refuses to give sufficient weight to exculpatory evidence clear on fault or guilt, where does that leave the doctor if they cannot appeal on merit?

Mr Topperwien: The committee hearings are intended to give the practitioner every opportunity to put whatever evidence they want to give to the committee and the COO. The committee then looks at that in detail
and asks probing questions in relation to that evidence. One can’t satisfy everybody that everybody will agree on an outcome. There will always be people who are not happy with whatever outcome there is. But the process is a very fair process. It gets scrutinised by the courts regularly. The courts time and again have upheld how fair the process has been for the person under review.

Senator ROBERTS: I’d like to learn more about that.

Dr Di Dio: Could I add a supplementary answer to that?

CHAIR: You can in a moment. I remind you that there are a lot of senators waiting to move to the next outcome, so if you could be courteous in the promptness of your questions.

Dr Di Dio: I will be brief. After a committee, the practitioner under review has the right to tender further information and evidence should they wish.

Senator ROBERTS: But not appeal the decision.

Dr Di Dio: No, but tender as much further evidence as they wish. Furthermore, there is a draft report issued, to which the practitioner, with their legal representative, of course, can make any response they wish. After that, a final report is issued, to which the practitioner can again make as many submissions as they wish. Over and over the practitioner can provide further evidence and submissions to further parts of the process.

Senator ROBERTS: Wouldn’t it be a better process for a judge to be advised by doctors, as is the case before QCAT, VCAT and a similar structure used in the Medicare Participation Review Committee? Contrary to
previous suggestions, I’d submit that having a judge to chair review proceedings would enhance rather than detract from the fairness of the process.

Mr Topperwien: All I can say is that’s not what the law currently provides. But, from my experience, both as a legal adviser who has assisted with committees and having observed many committee hearings, the process is remarkably fair. The usually three lawyers in the hearing room ensure that it is a fair process.

Senator ROBERTS: My last question. In 2011 there was an inquiry held by the Legal and Constitutional Affairs References Committee into the Professional Services Review scheme. Supplementary comments by
senators Eric Abetz and Bridget McKenzie included that the processes of the Professional Services Review scheme were deficient and led to unjust outcomes. Senator Abetz’s view was that merit review would be a
mandatory requirement for the system to be considered fair and just. This flies in the face of your own view, that merit review is unnecessary. Minister, when will the structure of the Professional Services Review scheme be reconsidered?

Senator McCarthy: I will take that question on notice.

Senator ROBERTS: Thank you.

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