Bills
Salaries and Allowances Amendment Bill 2025
Consideration in detail
Resumed from an earlier stage of the sitting.
Clause 8: Section 9 amended
Debate was interrupted after the clause had been partly considered.
Mr Basil Zempilas: We are discussing clause 9, which will insert proposed sections 9A and 9B into the act. What safeguards exist in proposed section 9A to ensure that significant decisions, especially remuneration determinations, are properly deliberated before written regulations are agreed to?
Mr Daniel Pastorelli: Acting Speaker, just to clarify, have we passed clause 8?
The Acting Speaker (Ms Sook Yee Lai): Sorry, I just want to confirm: Are we still on clause 8?
Mr Basil Zempilas: Sorry, no, clause 9, "Sections 9A and 9B inserted".
Clause put and passed.
Clause 9: Sections 9A and 9B inserted
Mr Basil Zempilas: I refer to proposed section 9A. What safeguards exist to ensure that significant decisions, especially as they relate to remuneration determinations, are properly deliberated before written resolutions are agreed to?
Mr Daniel Pastorelli: Obviously, when written resolutions are determined, there will be adequate communication between the tribunal members to ensure that they go through the detail of the determination, understand all the elements to it and then agree to the determination, if that is the outcome of the proposed determination.
Mr Basil Zempilas: Will there be a standardised process for how written assent must be recorded or audited?
Mr Daniel Pastorelli: The bill provides for each resolution and determination to then be recorded in the minutes of the tribunal's next meeting.
Mr Basil Zempilas: Also under proposed section 9A, why is it that out-of-session resolutions need to be made by a quorum of members when there are only three members on the tribunal and good governance would suggest that out-of-session decisions be made unanimously? Can we get some clarity around that?
Mr Daniel Pastorelli: To answer the question, currently a quorum is two members. Here, we are merely extending that to meetings that are conducted remotely. The quorum is two and that will continue.
Mr Basil Zempilas: I move to proposed section 9B. Given the tribunal has only three members, why has the government chosen to allow a quorum for decision-making to constitute just two members, or has that now moved to three?
Mr Daniel Pastorelli: Quorum for the tribunal has always been two members. That will continue and will be extended to meetings that are conducted remotely.
Mr Basil Zempilas: Has the government considered requiring all three members to participate in determinations that involve the pay of members of Parliament or ministers to ensure greater transparency and confidence?
Mr Daniel Pastorelli: That was considered by the government, but, obviously, there are times when a third member may be unwell or uncontactable for whatever reason. To ensure efficiency and that the tribunal is able to work in practice, we are continuing with the current arrangements in place, which provides for a quorum of two members.
Mr Jonathan Huston: What happens in the event of a tie between two people? If there are only two people, how will there be a determination?
Mr Daniel Pastorelli: The answer is in the current act at section 9(3). The chair has the presiding vote. In the event of an equal number of votes, the question will be deferred until a subsequent meeting of the tribunal. My advice here is that usually all decisions are made by consensus anyway.
Clause put and passed.
Clauses 10 and 11 put and passed
Clause 12: Parts 1B and 1C inserted
Mr Basil Zempilas: There is no issue with proposed part 1B, "Transitional provisions". I refer to proposed part 1C, "Validation". Why was the eligibility restriction under section 5(7) of the act not flagged at the time of Mr Day's appointment, and—I can ask this separately if the parliamentary secretary would like—was there any formal vetting checklist or legal clearance process in place?
Mr Daniel Pastorelli: I can say that at the time, it went through the usual process of appointments going through cabinet. Unfortunately, this matter was not picked up through that process. As I flagged in my second reading reply speech, going forward, the State Solicitor's Office will now also be consulted on these relevant appointments to the tribunal.
Mr Basil Zempilas: Parliamentary secretary, who approved the appointment of Mr Day in 2021?
Mr Daniel Pastorelli: Member for Churchlands, cabinet approves the appointment.
Mr Basil Zempilas: What advice was received at the time regarding section 5(7) and which ministerial office did the appointment go through?
Mr Daniel Pastorelli: The appointment documentation and paperwork was put together by the Salaries and Allowances Tribunal at the time. That was then submitted to the Department of the Premier and Cabinet through the normal process. It went to the Premier's office, obviously, because he is the minister responsible, and then it was put through the cabinet process as normal.
Mr Basil Zempilas: Which ministerial staff were aware of the appointment?
Mr Daniel Pastorelli: The ministerial staff would have been the then chief of staff—me—and a few other staff in the office who would have been aware of the cabinet submission to appoint John Day to the Salaries and Allowances Tribunal.
Mr Basil Zempilas: The parliamentary secretary, therefore, had some awareness of the issue. In his role at the time as the Premier's chief of staff, did the parliamentary secretary check this decision?
Mr Daniel Pastorelli: No, that was not my role.
Mr Basil Zempilas: Has an internal investigation been conducted into how the appointment was made despite a clear statutory prohibition?
Mr Daniel Pastorelli: We are on clause 12. Is the member for Churchlands referring to section 5(7) of the act?
Mr Basil Zempilas: Yes.
Mr Daniel Pastorelli: I was just checking. Obviously there is no need for any other investigation; the matter was picked up internally, as I explained in the second reading speech, in late April and moves have occurred to ensure that the issue is rectified.
Mr Basil Zempilas: I am just seeking some clarity. Am I right in saying that the government does not feel that an internal investigation is needed, despite what we are addressing today? Have I understood the parliamentary secretary correctly?
Mr Daniel Pastorelli: Yes, for the reasons I already outlined in the second reading speech.
Mr Basil Zempilas: In light of this breach, what formal checks are now in place to vet all future statutory appointments across government?
Mr Daniel Pastorelli: As was flagged in the second reading speech, the State Solicitor's Office will be added to the initial process observed by the tribunal in considering the eligibility of any future appointments. In addition, SSO will also consult the Department of the Premier and Cabinet and the Public Sector Commission to ensure that all requirements are met when it comes to appointing members of the tribunal.
Mr Basil Zempilas: Can the parliamentary secretary confirm whether the same statutory vetting process has been applied to all recent appointments and whether legal clearance was sought and received?
Mr Daniel Pastorelli: I assume the member for Churchlands is referring to the two existing members of the tribunal?
Mr Basil Zempilas: Yes.
Mr Daniel Pastorelli: The process for a cabinet appointment I outlined was followed for the two members and there are no issues with those appointments.
Mr Basil Zempilas: I just seek some clarity. The same vetting process was applied to all recent appointments. Have there been any appointments after this oversight was discovered?
Mr Daniel Pastorelli: No, there have been no appointments, member for Churchlands, since this oversight was picked up, and I can confirm again that the eligibility of the two current members of the tribunal is perfectly fine.
Mr Basil Zempilas: I thank the parliamentary secretary for clarifying that. It takes me to retrospective validation. Will this bill now set a precedent for correcting other unlawful appointments via legislation?
Mr Daniel Pastorelli: This validation bill is what it is. Obviously, they are not uncommon for this place. It is a unique bill, but it is not uncommon. The rationale behind bringing this validation bill to the chamber was to ensure that there is no risk that any of the determinations made since 7 September 2021 were invalid. That is why we brought it forward. Validation bills do happen from time to time.
Mr Liam Staltari: I thank the parliamentary secretary and his advisers. I have a two-part question initially on the same clause. What specific tribunal determinations involving remuneration for members of Parliament, judges and public office holders were made during the validation period, and has legal advice confirmed that these determinations would have been void without that validation?
Mr Daniel Pastorelli: I thank the member for Carine for the question. Dating back to September 2021, we are talking about 86 determinations and four judicial recommendation reports. Obviously, the advice we have is that there is a risk that at least some of those determinations may be invalid.
Mr Liam Staltari: Of those 86 determinations during the validation period, can the parliamentary secretary confirm whether any determinations have since been relied upon in legal proceedings, employment contracts or budget forecasts?
Mr Daniel Pastorelli: We are unaware of any civil proceedings, but to ensure that the state is protected, we have included an element of civil proceedings in the legislation to ensure that everything will be validated.
Mr Liam Staltari: The parliamentary secretary has obviously flagged the potential risk of a challenge. Was legal advice obtained on the risk of a challenge to those determinations prior to Mr Day's resignation and, if so, when was that advice obtained and will he table that advice?
Mr Daniel Pastorelli: There was no specific legal advice for any particular challenge, as the member put it. The advice was more general in that to ensure every determination was valid, we should pursue this bill.
Mr Liam Staltari: I have one follow-up question. Is the parliamentary secretary willing to table the more general advice that he cited?
Mr Daniel Pastorelli: No.
Mr Lachlan Hunter: Under proposed section 12B(7), retrospective validation applies broadly to anything done. Can the parliamentary secretary please clarify whether this includes decisions that were influenced by the tribunal's determination, such as public sector negotiations or judicial allowances?
Mr Daniel Pastorelli: The section that the member is referring to is intentionally broad, so it includes any determinations or reports made by the tribunal as well as any other things the tribunal may have determined and validates all those actions. I think the member referred to public sector bargaining. It does not go to that or anything like that. It is all about the decisions and determinations made by the tribunal.
Mr Lachlan Hunter: I thank the parliamentary secretary for the clarification. I will not go on to my other questions relating to civil proceedings because I do not want to waste time.
Has the government identified any active litigation or disputes that may be impacted by this clause? I assume the answer is no.
Mr Daniel Pastorelli: No.
Mr Lachlan Hunter: Can the parliamentary secretary confirm whether this retrospective provision could affect any unresolved industrial or salary disputes, so non-legal disputes?
Mr Daniel Pastorelli: We are not aware of any disputes when it comes to salaries and other conditions. I assume that the answer to that question is no.
Mr Lachlan Hunter: Can the parliamentary secretary confirm who conducted the eligibility assessment for Mr Day's appointment in the former Premier's office in 2021? He told the Leader of the Opposition that there was a process. Could he step through the process of the then Premier's office appointing Mr Day to that position?
Mr Daniel Pastorelli: As I flagged earlier, the process would have been along the lines of the Premier putting forward the preferred person for the role to the Public Sector Commission and the Salaries and Allowances Tribunal. The Public Sector Commission and the Salaries and Allowances Tribunal work together. Ultimately, the Salaries and Allowances Tribunal put forward the cabinet submission for the Premier to take to cabinet and to make that appointment.
Mr Lachlan Hunter: Is the parliamentary secretary telling Parliament that the Premier made a captain's call to appoint John Day in 2021? Was there a file note or an adviser's brief on top of that cabinet submission that was made by the then Premier's office with the parliamentary secretary's advice on what the Premier should say during cabinet deliberations?
Mr Daniel Pastorelli: It was a cabinet decision No further advice was put forward other than the cabinet submission.
Mr Lachlan Hunter: Can the parliamentary secretary confirm that the appointment brief was only in the then Premier's office or did it go to the Attorney General's office or did it just land in the Premier's office at the time?
Mr Daniel Pastorelli: Obviously, I am not able to go through the cabinet process specifically during that period of time in 2021. More generally, the ordinary process is that other relevant agencies are consulted.
Mr Lachlan Hunter: If there is a point of order, the minister should raise one.
A member: I am approaching the chair, as is my prerogative.
Mr Lachlan Hunter: Deputy chair?
The Acting Speaker (Ms Sook Yee Lai): I am not the deputy chair; I am just an acting speaker, member for Central Wheatbelt.
Mr Lachlan Hunter: Thank you. It is nice to see the minister providing some advice.
The parliamentary secretary said that the brief did not go to any other ministerial offices at the time. Does he concede that Mr Day was unlawfully appointed in 2021?
Mr Daniel Pastorelli: John Day's appointment was invalid and therefore was unlawful.
Mr Lachlan Hunter: Can the parliamentary secretary advise the chamber, regarding appointment processes during 2021 and beyond in his government, whether there is a section on the briefing note that is provided to a minister prior to the appointment happening? I am not asking him to divulge cabinet in confidence; I am asking whether there is a section on that briefing paper that is provided to a said minister that outlines the legal risk to the state of Western Australia.
Mr David Scaife: I have been following the debate. I have the greatest of respect for the member for Central Wheatbelt, and I suspect that he knows that I am right about this point of order, even if it may not be upheld. There is no way that questions about file notes, briefing notes or activities in ministers' offices are relevant to the clause that is currently before the chamber. We have indulged it for a few questions, but this is plainly not relevant to the clause that is before the house.
The Acting Speaker: I think it is time to bring this line of questioning to an end.
Mr Daniel Pastorelli: I think I have tried to go through what the process may be for a cabinet appointment to the best that I can and to the best of my knowledge. To the substance of the bill and the clause we are on, I think I have answered those questions.
Mr Lachlan Hunter: I will wrap it up with my last question. It refers directly to the retrospective clause. As the parliamentary secretary just admitted to the Parliament, Mr Day was unlawfully appointed over a period of four years. Has the government considered getting Mr Day to repay the renumeration of $124,856 he has received back to the taxpayers of Western Australia?
Mr Daniel Pastorelli: Member for Central Wheatbelt, Hon John Day performed an important service for the state and members of Parliament during his tenure from September 2021. I think the point that the member is putting in his question is highly inappropriate.
Clause put and passed.
Clauses 13 and 14 put and passed
Title put and passed
Third reading
Mr Daniel Pastorelli (Landsdale—Parliamentary Secretary) (4:31 pm): I move:
That the bill be now read a third time.
I thank members opposite for their questions during the consideration in detail stage and for supporting the legislation, which was brought in here today. I acknowledge their support in moving through this legislation as fast as possible to ensure that we validate the prior appointment of Hon John Day and also the determinations of the tribunal since 7 September 2021.
I thank the advisers who were with me at the table: Jessica Evans and Amelia Devlyn from the State Solicitor's Office, and Luke Cullen from the Salaries and Allowances Tribunal. I also acknowledge and thank Neil Fergus and Ben Coates from the Premier's office for their advice and support on this bill.
I finish by acknowledging the contribution that John Day made in his role as a member of the Salaries and Allowances Tribunal over that period of time, which is nearly four years. As I flagged earlier, John has performed his duties exceptionally. He is an eminent public servant and continues to be Chair of the Library Board of Western Australia. As I mentioned earlier, his contribution as a member of the independent Review of Western Australia's Management of COVID-19 was also an excellent piece of work for Western Australia.
This bill will validate his appointment and the tribunal's determinations. I commend the bill to the house.
Mr Basil Zempilas (Churchlands—Leader of the Opposition) (4:33 pm): I thank you, Acting Speaker, for the opportunity to question the parliamentary secretary. I thank the parliamentary secretary and his advisers—I only got their first names—Jessica, Amelia and Luke. I thank them for their contributions. I thank the parliamentary secretary for answering questions to the best of his ability.
As we said at the outset, the opposition supports the Salaries and Allowances Amendment Bill 2025, but not without reservation. Nonetheless, we are pleased that the Salaries and Allowances Amendment Bill 2025 has come forward at this first opportunity to, as I reiterated, ensure legal certainty and uphold the integrity of the tribunal's past decisions.
I thank the member for Landsdale, the parliamentary secretary, for taking some time to reiterate what all members of this chamber feel about Hon John Day AM. His character is in no way called into question by what has taken place in Parliament today. He is, and continues to be, a fine and upstanding former parliamentarian with much to contribute, and I am very pleased that both sides have taken the opportunity to acknowledge that. Of course, it is important that these matters are correct at the time that they happen. Nonetheless, the opposition is pleased to support this bill, as I mentioned, acknowledging our reservations. I commend the bill.
Question put and passed.
Bill read a third time and transmitted to the Council.
