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Issue No. 148 | 16 August 2002 |
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Peak Performance
Interview: Labor Law Unions: Critical Conditions Bad Boss: Shifting The Load History: Peeking Out Safety: Flying High Corporate: Salaries High, Performance Low International: War on the US Wharves Review: And the Signs Said... Poetry: Tony Don't Preach Satire: Latham Dumps Rodney Rude as Speech Writer
Politics The Soapbox The Locker Room Bosswatch Human Rights
 Miranda's Not Fair on OutworkersAnother Capitalist Party?Justice For All?Kill the Photos!Right Wing Lackies
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Interview Labor LawInterview with Peter Lewis
You have responsibility for environment, emergency services and Attorney General, is there a common Labor thread that runs through the way you run your three portfolio areas?
So far as we look ultimately to improving the quality of life of working people, we look to securing social justice and we look to achieving equity in whatever way we can, I think there is a common thread. Of course, that doesn't mean that you can easily compare saving trees and changing the Occupational Health and Safety Act, but certainly at the back of my mind all the time there's an idea of making things better in the area of justice, and the area of the environment for working people. There's a perception that State Government's is basically about standard managerialism. You have now been in power for two terms, is it hard to get on top of all the detail everyday and keep driving, particularly the bureaucracy, to promote Labor agendas?
Well, its true that a lot of what state government does is just making sure that all the nuts and bolts are in their proper place. But if the nuts and bolts aren't in their proper place that has a big effect on the lives of ordinary people. The truth is that most government is about making sure that the arrangements you have in place actually work properly. But we have also got to make sure that those arrangements are fair. You have got to make sure that, if you are running the court system, then you've got the kind of provisions in place that will, as far as possible ensure that people who are less well off have some decent access to justice. In the case of the environment, I suppose you're not dealing with such an obviously class based situation. The fact is that everybody needs a good environment, but it also remains the case, that working people are likely to be more exposed to hazardous substances, for instance, and air quality.
I guess the area where people will be seeing most of you in the coming months is as the judiciary's advocate within the government. There are expectations that law and order will be a central election issue. What steps are you taking to prevent that debate being run in a destructive way?
The government has already taken an especially strong stand against the idea of mandatory sentencing. The easiest way the Opposition has found to run a law and order auction is to demand ever more harsh sentences for any crime at all, and to demand now that there be minimum sentences for a whole range of crimes. Now we know from the real experience of the United States that mandatory sentencing is most of the time counterproductive. We know that it means that for instance, a lot of people who might have pleaded guilty no longer will, and therefore you often end up with fewer convictions out of mandatory sentencing. On the other hand, you find, in the United States that a lot of people who are the most serious offenders, in say a drug bust, will plea bargain, will actually find ways in which they can avoid the most serious charges. The prosecutor not the judge will decide that they can give up information for instance, and get a lesser charge. But more minor players in the same drug bust, or drug crime, will get the full minimum sentence. All of this does begin to have relevance in several ways for working people. On the one hand, nobody is served by an injustice, but on the other, we've got to make the law work at its most effective for the protection of everybody. At the present time there are some sorts of street crimes, that are effecting working class suburbs, more than they are effecting better off suburbs. So, it's really important that we ensure that the law is administered fairly and effectively and that we are not carried away by a kind of mad, mad attempt to give the impression of imposing harsh justice, on the one hand, but actually causing the law to be less efficient.
One area of law reform that unions have been pushing is in the field of emails surveillance in the workplace. Can you let us know where that's up to?
You'll be aware that the Law Reform Commission handed down a very detailed report on surveillance generally, covering police surveillance and surveillance by the media and by employers. Although that has been in some sense useful to us to try and sort out some general principals of the law in surveillance, in practice it has given us some difficulties. In particular, the police and law enforcements have got a lot of particular issues that they've got to sort through with us; the media's also got some particular concerns about proposals in that particular report. So I want to sort out the question of workplace surveillance and move to make some more legislation there, while we deal with those separate areas, as is appropriate. So what we're doing is proposing to bring froward to a Workplace Surveillance Act, which provides for the opportunity to have a clear statement about the rights of the employees, privacy in the workplace, while employers have the right to protect their, financial interests. We'd be relying in that new legislation on the best bits of the Listening Devices Act, and the Workplace Video Surveillance Act, while addressing some the areas that we don't think work so well. That new legislation, which I hope to bring forward in the next session of Parliament, will cover areas like tracking devices, the idea of participant monitoring, complaint handling procedures. We could say some more about strengthening the requirements concerning hidden cameras that are already otherwise covered. All that's clear, but the question of email surveillance, is not so clear, we've got advice that indicates that the State might not be able to legislate at all about email surveillance because it would be characterised as tampering with the Commonwealth constitutional rights, to deal with telephones and their interceptions. This would be an accidental consequence of a constitution written a hundred years ago, when people obviously never heard of email. So what we've got to do is get some more clarification, some legal advice, I'm seeking some more on this very difficult matter. If I get legal advice that the State can after all deal with email surveillance, then of course we will include that in the Bill that I mentioned. If I get confirming advice, a second opinion that we're not allowed to, then we shall be begin a very heavy agitation with the Commonwealth to make provision under its legislation, for the kind of surveillance regime that I just described with respect to those other kinds of communication.
So it's a bit up in the air at the moment. On the general principal, you accept the proposition that employers shouldn't be free just to snoop on emails, employees are getting at work?
I accept absolutely the proposition that surveillance of emails ought to be in fact, dealt with in principal, in the same way we've begun to deal with surveillance by video camera. That is to it should not be done without a warning, and there should be really clear statements about on the one hand, the employees right to privacy, and on the other, the employer's right to protect their intellectual property. But there's no doubt that we ought to have arrangements for email that are like those others that I've described. It's just an extra legal constitutional hitch, which we have to get over. I hope we can get over it following the receipt of more legal advice, and therefore putting it in our own Act. But if that can't be done we shall have to lobby the Commonwealth to do it, and I would certainly ask for my colleagues around the other states to join with me to ask the Commonwealth to do it.
You also control the industrial relations tribunals in NSW. One of the trends, which are largely being driven by change in the federal law, but seem to be leaking into NSW, is the legalisation of industrial relations. Whereas once disputes were heard in the context of conciliation/arbitration, now they tend to be litigated through the court system. Do you have a view on the cost of that change to the community?
John Della Bosca and I share responsibilities with the court and the commission. He has the direct responsibility for appointing the commissioners, whereas I have the responsibility of appointing the judges. I think the short way to put it would be to say that I am thoroughly in favour of the maintenance of the significant degree of informality in the way the court goes about its work. Its important that the courts should from time to time lay down clear principles and should make clear cut black letter decisions of law, but certainly at the same time I would hope that it can continue to a most significant degree to deal with individual cases in the spirit of constructive informality. The court has made really important decisions in recent times, with respect of awards, principles that should be applied, that no one would want it to do otherwise. Its just that in its day to day work, I think that its overwhelmingly desirable that it should remain, as I say approachable, that people should feel that its somewhere you'd go to solve problems, not somewhere you go to have a legal battle.
Just moving on to your portfolio of emergency services. You have been involved in a long running death and disability dispute with the Fire Brigade Union. By all accounts that's now nearing settlement. What has been the hardest part about that process as a Labor minister?
Well, I suppose the hardest of the process has been to find ways in which we could ensure fairness all round. You have the fire brigade union concerned that some of its members have quite different entitlements to others, but that's true across the workforce. On the other hand those who work in the emergency services have quite special entitlements that should be guaranteed so that they will be properly treated in the case of an injury or worse. It's been a question of balancing where the legitimate claims within the emergency service against the claims of equity across the entire workforce. But I think we've done it, we've done it because there's been a principle established for those who work in especially dangerous circumstances and we have found a way in which there can be some sharing of the responsibilities of financing the scheme between the employer and employee.
The other issue that comes up from time to time with the FBEU is their call for a single fire service to bring volunteers under the control or direction of the professional force. Are there merits to this proposal?
Well, it is a regular call, but as my friends in the FBEU would know as regularly as they call for it, I say it can't be done. You've got to remember that the volunteer bush fire brigade contain huge numbers of union members. It's not as if the problem is some kind of anti-union agenda. Their function is significantly different to that of the permanent urban fire fighters and will always remain so. I'd also note that under this government we've increased the numbers of professional fire fighters and that's led to another 2,000 members for the NSW Fire Brigade Employees Union. Finally Bob, its over 12 months now, since you and your Cabinet colleagues were compelled to cross a union picket line at State Parliament. I'm just wondering what your reflections are on the relationship between the political and industrial wings of the labour movement, particularly with reference to debates going on Federally at the moment
I accept that the Labor Party has come out of the union movement and that releationship has served both sides well. That said, if you're in Government you've some time got to make hard decisions. There's never been one more difficult than the one about Workers' Compensation. But I would never the less hope that it could be acknowledge that the way I administered my portfolio constantly pays attention to those matters we spoke about at the beginning and the way that I administer my portfolio never loses sight of the need to provide both fairness and justice from Government to working people. It is inevitable that Government will have difficult decisions to make which may some time or other affect a range of its natural supporters. How you actually get through it all is the absolute test is. Do you maintain the essential commitment to fairness? Do you remember where your roots are? Do you continue to worry that working people receive justice at an economic level, at the social level, and in terms of their general quality of life? I don't think our Government has lost those values at all and that's what I keep at the front of my mind all the time.
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