Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Hansard source

I will come to that, Senator Pratt; thank you. The policy states that the ROC will have regard to matters such as the nature and the circumstances of the alleged contraventions; the number of contraventions; and the actual or potential consequences of the alleged contraventions, including harm to the organisation and its members. In fact, as the ROC testified during evidence to Senate committee hearings inquiring into this bill in particular, what they actually see in the course of their work is hundreds and hundreds of contraventions. But in the vast majority of cases they address them through other means, such as helping the organisations involved to rectify the issues and educating them on future compliance. Since its establishment on 1 May 2017—so over 2½ years now—the ROC have concluded five civil litigations and a further two remain before the court. Only three of those matters were commenced by the ROC; the others were commenced by the Fair Work Commission and transferred to the ROC.

So they see hundreds and hundreds of contraventions in the course of their business, but very few pieces of litigation. But the misconduct alleged in those cases included some very interesting facts. There was a failure by an organisation over more than a decade to lodge the prescribed information to enable the conduct of elections for officers, which—as I've been advised by senators in the chamber today—is a very important part of the work of registered organisations. There were failures to keep accurate lists of officers and a failure to notify changes to the list of officers. There was the artificial inflation of membership numbers over a five-year period by one organisation. There were contraventions of duties by officers, including through agreeing to accept payments for the organisation in exchange for failing to seek better terms and conditions for certain members, and through using organisation funds to pay for personal luxury vehicles. There was a failure by an organisation to lodge financial returns over a number of years. There was withholding the financial position of the organisation from members. There was a failure to keep proper financial records and the artificial inflation of membership numbers over a period of 12 years. These are exactly the sorts of issues that have brought this bill to this chamber, and it is exactly the sort of behaviour—in terms of basic accountability and transparency and in terms of the administration of an organisation, which belongs, rightly, to its members—that the government thinks should be addressed by this bill.

In relation to the observations that Senator Watt has made on the AWU v ROC matter, I think it is important to record that his statements are not an accurate representation of the circumstances. He is misleading the parliament about Senator Cash. The investigation was not initiated by Senator Cash, and the court did not make that finding. Let me talk about the role of the ROC and why it is appropriate for them to have standing to apply to the court, because Senator Watt has questioned that. It is the regulator of registered organisations. It is entirely appropriate for the Registered Organisations Commissioner to have standing to apply to the court for certain orders that concern the conduct of these organisations and their officials. To go back to the comparison that some in the opposition are trying to make around whether we are advancing the application of corporations law to equate with registered organisations or not—and I am still very confused by what those opposite really think on that matter—this is comparable to the standing that ASIC has in winding up a company or the disqualification of directors.

In this bill, however—let me be absolutely clear—the Registered Organisations Commissioner will have standing to apply for certain orders only when it believes that a relevant ground for disqualification, cancellation or alternative orders applies. It is only the Federal Court who can make a relevant order. That is actually distinct from Corporations Law, where ASIC itself can in some circumstances disqualify directors of a company or wind up a corporation without a requirement for any court action. With regard to the recent AWU v ROC matter—and I was at the most recent estimates, to which Senator Watt refers—I do want to correct some wilful falsehoods that have been advanced by those opposite. In the debate in this chamber this week some statements have been made which in my view are absolutely outrageous, particularly when they are made with the protection of parliamentary privilege. They are not supported by the facts of the matter or the judgement of the Federal Court.

The court found—and this is the finding—that the ROC's investigation was not commenced for an improper political purpose. It further found that there were entirely reasonable grounds for the Registered Organisations Commission to commence its investigation into whether the financial reporting obligations for loans and grants and donations had been contravened. In fact, to quote from the judgement, as Senator Watt did in his own remarks, Justice Bromberg stated at paragraph 127:

There is little doubt therefore, and the AWU did not contend to the contrary, that it was open for Mr Enright to come to the view … that there was a reasonable basis for suspecting contraventions of s 237(1) and that therefore, there were reasonable grounds for conducting an investigation as to whether s 237(1) was contravened by the AWU in the financial years ending 30 June 2006 and 30 June 2008.

Further, in recognising the potential for an appeal of the decision, which I note that the ROC has indicated that it intends to pursue, there is no operative order for the return of documents to the AWU, notwithstanding the fact that those opposite continue to insist that there is. Indeed, that order has been stayed, pending a hearing and determination of any appeal.

Let me add, in relation to this matter, that the court's finding was in fact that only part of the Registered Organisations Commission investigation was invalid, and that was on a technical ground concerning a provision that deems conduct that was against an organisation's rules to be in accordance with the rules if the conduct occurred more than four years ago. It is the effluxion of time that rendered that finding, one delivered by the court. While Justice Bromberg's order of 26 November this week declared the decision to investigate to be invalid, His Honour's substantive decision of 11 October 2019 found there were entirely reasonable grounds for the Registered Organisations Commission to commence its investigation into whether the financial reporting obligations for loans, grants and donations had been contravened. I am acutely aware that the ROC has publicly stated its intention to appeal this matter, and I do think further extensive comment would be inappropriate at this time. I remind the chamber that, no matter who the minister is—Minister Cash at the time or any other minister—they had no power to direct the ROC in their actions.