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

The minister has indicated that she's not supporting these amendments. That's not much of a surprise. These amendments have the effect of changing the proposed offence of making and receiving cash and in-kind payments from a strict liability offence to one where the defendant has to act dishonestly. What the minister has just indicated is that you do not need to act dishonestly to fall foul of this piece of nonsense that has been put up as a bill. So dishonesty is not what this is about. It is clearly an attack on the trade union movement.

As it currently is drafted, even though this offence has a maximum of two years imprisonment, there is no need for the giver or receiver of a benefit to intend that it is dishonest, corrupt or improper. It just shows you the lengths that this government would go to attack the capacity of workers to come together in a trade union and operate without undue influence from government, or for the government to actually be determining—I would say, outside ILO conventions—on the right of a union to operate unencumbered by government.

This means that a person can be found criminally liable under the proposed provisions for simply providing funds to a union if those funds do not fall within categories determined by the government as ones that they deem acceptable. Nothing like this happens anywhere else, in any operation across the country. The government determines what is proper. There is no limit anywhere in the corporate world or the professional world similar to this. This is why the minister won't accept these amendments—because they go to the fundamental rights of unions to operate unencumbered by influence from government. Free unions that operate all over the world do not have anything like this. This is a problem. This is overreach from this government. This is absolute overreach. As I have said, there is nowhere else in the corporate or professional world that this applies. It is extraordinary to single out an employer-registered organisation relationship in this way. It is subjecting people to serious criminal penalties, to the loss of liberty, for behaviour which is not dishonest or corrupt or improper. What's going on? The Ai Group was so concerned—that is, the employers were so concerned—with this legislation that in their submission to the Senate inquiry they called for the criminal penalties to be removed from the bill. That is, that the offence should not carry a maximum penalty of two years imprisonment but only a fine. The ACTU noted that these proposed offences have the potential to criminalise terms of enterprise agreements, made pursuant to Section 172 and approved by the Fair Work Commission, which relate to the relationship between employers and the employee organisation, terms which are perfectly proper and legal.

Another reason why this offence is to exist at all on the Commonwealth statute book is that it must be directed towards dishonest transfers of cash and benefits. If things are not dishonest, you should not go to jail for two years. But that is what this bill does. Professor Andrew Stewart supported the proposition of outlawing corrupting benefits, and Labor has said, 'We are not going to defend corruption.' But he said, in his submission:

The question, however, is whether the Bill achieves these objectives without creating undue uncertainty or having unnecessary consequences.

So it has unnecessary consequences and it creates uncertainty. He goes on to say:

As the Bill stands, I believe its drafting fails on both those scores. The essential problem is that, rather than identify with some specificity the types of practice or arrangement that are to be outlawed, the Bill relies on overly broad prohibitions for which extensive exclusions must then be formulated.

So it basically throws the net out and says that anything caught in that net, unless the government says it should not be kept in the net, is in the net. Professor Andrew Stewart, an acknowledged expert in this area, says it is 'overly broad'. He goes onto say:

Moving on to proposed ss 536F–536G, these create incredibly broad prohibitions on employers giving or being asked to give money, goods or services to a registered union or someone connected to such a union. In order to prevent these catching the most mundane and unremarkable of industrial arrangements, a series of exceptions are created. But it is far from clear that these operate as widely as they should.

He is saying that the exemptions are not wide enough, so people will get caught for carrying out transactions with an employer that are legal. He goes on to say:

For example, an employer may decide to provide catering for a meeting, or to allow unions to use its information technology system to disseminate information to its members. It is not obvious that any of the stated exceptions would apply – yet surely these are not 'corrupting' benefits.

The government's stated purpose for these offences is to prevent corrupt or illegitimate payments. Therefore, these offences should have a fault element of dishonesty. So, if you are going to have a position where people can go to jail for two years, then they must have behaved dishonestly. This would ensure that the offence does not inadvertently criminalise benign conduct, including by employers. And the example given by the Law Council is of an employer who makes charitable donations at the suggestion of or following the example of a union. So for making a donation to charity, you could go to jail for two years under this legislation. What is wrong with this mob? This is just ideology gone mad. This is ideology that is determined to lock people up for two years, even if they don't commit a criminal offence.

The Law Council recommended the introduction of a fault element, and Labor agrees with the reasoning. The definition of dishonesty is imported from the Criminal Code so that the test of corrupt behaviour for officials of registered organisations and employers is the same as that which currently exists for Commonwealth officers. Senator Leyonhjelm has proposed amendments which, while going some way to addressing the serious concerns raised by the Senate scrutiny of bills committee, do not resolve the core flaw with this offence.

This proposed offence, even with Senate Leyonhjelm's amendments, casts such a wide net in criminalising what are otherwise legal and proper payments between employer groups and unions—payments that this government has no problem with, if they are made between companies or between employers—is simply not something the Senate should support. It's simply not appropriate for this government to design a criminal offence which has serious ambiguity about what activities are and aren't covered and that has a real impact of criminalising perfectly normal activities carried out with no dishonest or improper intent and for which a person can be deprived of their liberty for two years.

So the scrutiny of bills committee, the Joint Committee on Human Rights, the Law Council and the legal experts that have looked at it—Professor Andrew Stewart. The unions and the employers say: 'This is wrong. This is bad. Don't do it.' Yet, we have heard that this minister is determined, for ideological reasons, to try and destroy the trade union movement to put these penalties in place that exist nowhere else in the form that they exist in this legislation.

On that basis, I would ask the Senate to reject this bill, if it contains that proposal that would criminalise perfectly legal behaviour. We are asking that items 14 and 15 be supported by the Senate to go some of the way to resolving this terrible situation where you do not know what offence you might commit, and there is no certainty and you could end up going to jail for two years for an offence that is not a criminal offence.