Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Hansard source

I rise to oppose the Fair Work Amendment (Corrupting Benefits) Bill 2017 as it is presented to the chamber. I want to make it clear that Labor has no tolerance for corruption in any form. Notwithstanding this, there are significant problems with the bill as it is presented to the chamber. Labor has unsuccessfully attempted to negotiate amendments with the minister. The minister's intransigence and refusal to take heed of the concerns of the Labor Party, the union movement, employers, the Law Council and academics reinforces the view that this government and its minister are driven by ideology as distinct from fair and effective legislation. These concerns are also held by the Scrutiny of Bills Committee and the Joint Committee on Human Rights. This demonstrates that, rather than making a genuine attempt to deal with corrupting benefits, the minister and the government are attempting to continue their attacks on the trade union movement. The bill also differs from the model legislation proposed by the Heydon royal commission.

The coalition has attempted to discredit and weaken the trade union movement, and I think everyone is well aware of that position. The coalition has a long history of attempting to diminish collective bargaining, union rights and right-of-entry provisions. It introduced Work Choices, the legislative framework designed to promote individual agreements, destroy penalty rates and diminish collective bargaining. The coalition introduced the Australian Building and Construction Commission, with its punitive legislative base, and the Building Code, which disadvantages builders' and other workers' attempts to collectively bargain in an effective and fair manner. The coalition has established two politically driven building royal commissions with the purpose of demonising building unions, restricting workers' access to their union and restricting collective bargaining rights. The coalition has been aggressively targeting the trade union movement in order to justify breaches of ILO conventions and the removal or weakening of trade union rights in this country.

The bill continues the Tory tradition of increasing the bargaining rights of employers and decreasing the collective bargaining rights of Australian workers. The political campaign by coalition members to reduce penalty rates has resulted in hundreds of thousands of lower-paid workers facing increased hardship and, in some cases, destitution. The so-called PaTH program will see tens of thousands of properly paid jobs being replaced with so-called internships. Workers, under the guise of an internship, will be paid $4 an hour. Is it any wonder that casualisation and insecure work is becoming more prevalent while living standards and inequality increase? This is an ideologically obsessed government with a minister who will never understand the needs and hardships of working Australians.

This bill continues the political attack on the trade union movement and is being perpetrated under the guise of so-called corrupting benefits. The bill creates a new criminal offence related to the solicitation, giving or receipt of corrupting benefits. It creates new criminal offences related to a national system employer offering, promising or providing certain prohibited payments and other persons soliciting, receiving or gaining by agreeing to obtain such payments. And it requires bargaining representatives to disclose financial benefits that they, or a person or body reasonably connected with them, would or could reasonably be expected to derive because of the term of the proposed agreement.

The bill is divided into two schedules. Schedule 1 deals with the proposed criminal offences relating to corrupting benefits and prohibited payments. Schedule 2 deals with amendments related to disclosure by registered organisations and employers.

A range of extremely serious concerns were raised by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights. The concerns raised by the scrutiny of bills committee and the Joint Committee on Human Rights are consistent with the concerns raised by the Law Council of Australia, academics, employers and unions. The Parliamentary Joint Committee on Human Rights has reported twice on the bill, first on 9 May 2017 and then again on 20 June 2017. The committee initially raised concerns with the bill's potential infringement on the right to a fair trial in relation to double jeopardy and the right to be presumed innocent. The committee sought the minister's response in relation to these matters. After considering the minister's response, it concluded that it was not possible to find that the measures in the bill were compatible with the above rights.

The Senate Standing Committee for the Scrutiny of Bills has a responsibility to assess bills in relation to undue trespass on personal rights and liberties, whether administrative power is described with sufficient precision, whether appropriate review of decisions is available, whether any delegation of legislative powers is appropriate and whether the exercise of legislative powers is subject to sufficient parliamentary scrutiny.

The committee dealt with this bill in Scrutiny Digest No. 4 of 2017. The minister responded to the committee's comments in a letter dated 21 April 2017. The first issue the committee raised was the right not to be tried or punished twice, which is normally known as double jeopardy. The committee determined:

In light of the information provided, the committee makes no further comment on this matter.

But it needs to be noted that the Joint Committee on Human Rights concluded it was not possible to find the measures in the bill were compatible with the right not to be tried or punished twice.

The next area that was raised was the reversal of evidential burden of proof. Following the minister's response, the Scrutiny of Bills Committee concluded:

From a scrutiny perspective, the committee considers that the offence as currently drafted is overly broad, relying heavily on defences to carve out legitimate transactions, and so may unduly trespass on personal rights and liberties …

The committee requested that the key information provided by the minister be included in the explanatory memorandum. The committee also drew its scrutiny concerns to the attention of senators and left to the Senate as a whole the appropriateness of the breadth of the offence and the subsequent reversal of the evidential burden of proof for the offence-specific defences. The next area that was raised was strict liability offences:

The committee requests the Minister's advice as to how each element of the offences in proposed sections 536F and 536G to which strict liability applies are jurisdictional in nature, with reference to the principles set out in the Guide toFraming Commonwealth Offences.

…   …   …

The committee notes that a person found guilty of an offence under these provisions may be subject to a maximum period of two years imprisonment and/or 500 penalty units.

The committee noted that its 'consistent scrutiny view is that strict liability offences should be applied only where the penalty does not include imprisonment' and that monetary penalties do not exceed penalty units. And I reiterate what the minister is proposing, in opposition to the Scrutiny of Bills Committee recommendation, is that there be two years imprisonment and 500 penalty units. The committee noted 'that no evidence is provided for the conclusion' by the minister 'that a fault element would weaken the deterrent effect of the provision given the significant penalties to be imposed. The committee went on to say:

In this instance, from a scrutiny perspective, the committee does not consider it is appropriate to penalise persons lacking fault and suggests that the application of strict liability be restricted to elements which are jurisdictional in nature …

The committee drew its scrutiny concerns to the attention of senators and left it to the Senate as a whole to determine the appropriateness of the application of strict liability.

The next issue that the Scrutiny of Bills Committee looked at was significant matters in delegated legislation. The committee noted that:

A number of provisions of the bill leave significant detail to be prescribed in the regulations …

The explanatory memorandum provides limited detail as to why significant matters that set out aspects of the content of offences or civil penalty provisions are left to delegated legislation.

…   …   …

The committee came to the view that:

… significant matters, such as matters that form part of an offence or civil penalty provision, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

The committee indicated:

It is particularly important, from a scrutiny perspective, for the content of an offence to be clear from the offence provision itself, so that the scope and effect of the offence is clear so those who are subject to the offence may readily ascertain their obligations.

The committee requested advice from the minister as to why it is considered necessary and appropriate to leave many of the elements of these offence or civil penalty provisions to delegated legislation. It also requested advice as to the type of consultation it is envisaged will be conducted prior to the making of these regulations and whether specific consultation obligations can be included in the legislation, with compliance with such obligations a condition of the validity of the legislative instrument. The minister advised that the potential for new arrangements to arise that are not currently contemplated by the bill made it both necessary and appropriate to include regulation-making powers to allow the government to deal with the circumstances. The minister also advised that the government does not consider that it is necessary or desirable to include additional consultation requirements in the bill and noted that any regulations made will be subject to tabling and disallowance requirements and to scrutiny by the Senate Standing Committee on Regulations and Ordinances.

After noting the government's response, the committee reiterated its general view that it is important for the content of an offence to be clear from the offence itself so that the scope and effect of the offence is clear and so that those who are subject to the offence may readily ascertain their obligations. From a scrutiny perspective, the committee did not consider in these circumstances that it is appropriate to include elements of offence or civil penalty provisions in delegated legislation. The committee also considered the possibility of unforeseen arrangements for the making of legitimate payments arising because of the breadth of the offence provision and reiterated its scrutiny concerns about the broad scope of the offence. The committee also reiterated its general view that, whereas the parliament delegates its legislative power in relation to significant matters, it is appropriate that specific consultation obligations beyond those in section 17 of the Legislation Act 2003 are included in the bill and that compliance with these obligations is a condition of the validity of the legislative instrument. The committee noted that, although the instrument may be disallowable, it may be difficult for parliamentarians to know whether appropriate consultation has taken place within the time frame for disallowance. The committee drew its scrutiny concerns to the attention of senators and again left to the Senate as a whole the appropriateness of leaving such significant matters to delegated legislation. The committee also drew this matter to the attention of the Senate Standing Committee on Regulations and Ordinances.

As senators would know, both the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills are advised by eminent legal advisers. The forcefulness of the concerns of both these committees needs to be understood by the Senate and acted upon appropriately. The Law Council of Australia, in its submission to the Senate Education and Employment Legislation Committee, raised concerns in relation to schedule 1, amendments relating to corrupting benefits. The Law Council indicated that, as a general proposition, whenever the legislature creates new offences, it should take care and use precise terms to ensure that it does not criminalise conduct that was not intended to be caught by the proposed provisions. The Law Council indicated there was little guidance on the related term 'legitimately due' in section 536D(5) and section 536D(6). The Law Council indicated that some clarity is provided in section 536D(4); however, section 536D(3), according to the council, significantly complicates the interpretation of these terms by providing that the defendant's intention does not need to be 'in relation to a particular registered organisation's officer or employee', or in relation to an official 'performing or exercising duties, functions or powers in a particular way'. The Law Council indicated that it is difficult to see how the test of requisite intention is to be ascertained, given the apparent indication that the defendant's intention might be as little as a hope that giving something to an official might influence them to perhaps formulate some unspecified idea to do something unstated. We would start to get the idea that this is a poorly drafted bill. It is not precise. It has come under criticism from the Law Council, the Ai Group, the ACTU and, as I have said, the Law Council.

The Labor Party sent some amendments to the Law Council to ask them to have a look at those amendments in relation to the issues that they had raised and ask them whether our amendments would deal with the concerns that they had. They wrote back to the shadow minister, Brendan O'Connor, on 6 June and said:

I write in response to your letter of 30 May 2017 to Mr Ingmar Taylor SC, Chair of the Law Council's Industrial Law Committee, concerning the Fair Work (Corrupting Benefits) Bill 2017. Your letter summarised certain amendments to the Fair Work (Corrupting Benefits) Bill 2017 which the opposition intends to propose.

You asked the Law Council whether the proposed amendments reflect and are consistent with the submission made by the Law Council of Australia in its written submission to the Senate inquiry.

The Law Council in its submission to the Senate Committee stated that it supported the objective of the Bill, but identified some concerns as to the draft text of the Bill, suggesting amendments be made to ensure that it did not criminalise conduct that was not intended to be caught by the proposed provisions.

The proposed amendments that you summarised in your letter have been considered by the Industrial Law Committee of the Law Council. The Committee advises that the draft amendments summarised in your letter on page one at items 1 to 4 inclusive are consistent with the Law Council's submission to the Senate Committee on the Bill.

Please do not hesitate to contact me if we can be of further assistance.

Yours sincerely

Fiona McLeod SC

President

So not only have the Scrutiny of Bills Committee and the Joint Committee on Human Rights—and these are bipartisan committees; they include senators from the coalition and members from the coalition—raised concerns with the drafting of this bill and the implications of this bill but the Law Council have also raised concerns, the Australian Industry Group have raised concerns and the ACTU have indicated they don't know of any laws in this country where provisions like these are implemented. This is another example of the attacks on the trade union movement to force increasing inequality in this country. This is an attack on workers' capability to collectively bargain and operate independently of the government. The amendments should be adopted. (Time expired)