David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

() (): by leave—I oppose schedule 1 in the following terms:

(1) Schedule 1, item 3, page 8 (line 16), subsection 536F(2) to be opposed.

(4) Schedule 1, item 3, page 10 (line 20), subsection 536G(2) to be opposed.

The Fair Work Act, with its minimum wages, its unfair dismissal law and its inordinate red tape, is preventing hundreds of thousands of Australians from getting a job. It's a cause of sheer misery. My party, the Liberal Democrats, would abolish the Fair Work Act. As a result, employers would not be forced to negotiate with unions and the artificial power of unions to extract kickbacks would disappear.

While the Fair Work Act remains, the Liberal Democrats support the government's attempt to ban kickbacks. As such, we support the intention of the government's Fair Work Amendment (Corrupting Benefits) Bill 2017. However, in its exuberance to attack union kickbacks, the government has forgotten the liberal values that underpin Western civilisation. One of these liberal values is the principle that the criminal law by which a person can be put in jail should be determined by the parliament. The government's bill violates this principle by seeking to empower the minister to expand a criminal offence by issuing a regulation.

The criminal offence involves an employer providing a benefit to a relevant union official and is punishable by up to two years imprisonment. The government's bill proposes that the legislated exceptions to this offence could be whittled away by regulation. This is wrong. It is true that a regulation expanding this criminal offence would be disallowable by the Senate. But, if a disallowance vote was tied, the regulation would remain. The criminal offence would be expanded, despite the government not achieving a parliamentary majority in support of such an expansion. This is undemocratic. I move amendment (2) and sheet 8191:

(2) Schedule 1, item 3, page 9 (lines 3 to 5), omit all the words from and including "However," to the end of subsection 536F(3) (not including the note).

Accordingly, item 2 on sheet 8191 removes the proposed power to expand a criminal offence by regulation. I commend this amendment to the chamber.

I move amendments (3) and (5) on sheet 8191:

(3) Schedule 1, item 3, page 10 (lines 13 to 15), omit paragraph (c), substitute:

(c) the provider is a national system employer other than an employee organisation; and

(d) the provider, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the provider, or a person who has a prescribed connection with the provider, employs a person who is, or is entitled to be, a member of the organisation and whose industrial interests the organisation is entitled to represent.

(5) Schedule 1, item 3, page 10 (after line 20), at the end of section 536G, add:

(2) Subsection (1) does not apply to a cash or in kind payment mentioned in subsection 536F(3).

The remaining items on sheet 8191 remove strict liability. Under strict liability, a defendant can be found guilty of some harm, even if the defendant did not intend to cause harm and was not reckless about the risk of harm. The defendant can try to keep out of jail by claiming a relevant excuse, but the onus for proving this excuse would rest with the defendant. It is illiberal to put blameless people in jail and to treat someone as guilty until proven innocent. The reversal of the onus of proof is contrary to the most fundamental premise of the Australian legal system. The government has a criminal law policy that an offence punishable by imprisonment should not be an offence of strict liability. Unfortunately, the government somehow forgot its own policy and proposed a strict liability offence as punishable by up to two years for when an employer provides a benefit to a relevant a union official. Through my amendments, an employer or union official will only go to jail if they intended this to happen or are reckless about the risk. This is how it should be.

Western civilisation is the greatest civilisation the world has ever known. Fundamental to its success is the rule of law, where we are innocent until proven guilty and where only the blameworthy can be denied their liberty and thrown in jail, rather than just people the ruling powers do not like. The government would do well to remember this. I commend my amendments.