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

Senator Farrell has raised a number of questions, including issues that have been discussed in the chamber in his absence, but I am very happy to go over some of those in this contribution. I would note that we have had extensive discussions around the government's initiatives on wage theft and underpayment—in particular, the initiatives and legislation we have introduced around protecting vulnerable workers and the outcomes of that, including the efforts of the Fair Work Ombudsman, and the returns that has brought for employees in recent times. If I recall correctly—and I would have to go back to my previous comments—there has been a 60 per cent increase in repayments recouped for employees in this calendar year over the previous calendar year by the efforts of the Fair Work Ombudsman. The steps that we have taken on wage theft are very, very important ones and are acknowledged as so by this government because we have zero tolerance for the exploitation of workers.

The corporations and the adequacy of regulation in relation to actions in the areas that Senator Farrell has raised were also discussed this morning, and I have been through those almost section by section, in some detail. They are heavily regulated, and there is also an ability to disqualify. I think it is important to note the statements of the Attorney-General and Minister for Industrial Relations about the further work that we are intending to do. We have released discussion papers about it already. We would welcome a contribution to those discussion papers from those opposite, but I understand one has not yet been made.

Let me talk directly about the rationale for this bill. This government believes that unions, employer associations and registered organisations enjoy a privileged position in the Australian industrial relations system and, indeed, in the economy more broadly and that their members place a great deal of trust in them. We believe that there is no place in this system for those who breach this trust, for those who act in their own interests at the expense of members or for those who show nothing but contempt for the laws that apply equally to all Australians. I could go back to the Heydon royal commission and the numerous examples of flagrant disregard for the law that were uncovered by that royal commission, but I do not necessarily have to do that. Even in the time that this bill has been before the parliament, even since its introduction in the House of Representatives in July, a registered organisation in this country and seven of its officers have been penalised almost $400,000 by the courts for more than 30 contraventions of the law since this bill was introduced. This is a pattern of behaviour. It seems to be regarded as the cost of doing business. But the government doesn't accept that the cost of doing business in Australia is acceptable if it is about flouting the law, if it is about blatantly and wilfully disregarding the law that applies to all Australians.

The CFMMEU and seven of its officers have been penalised almost $400,000 by the courts for more than 30 contraventions of the law since this bill has been before the parliament, since July. Last week, we saw the ABCC again commence legal action against the same registered organisation for unlawful conduct. That unlawful conduct allegedly included workers being spat at, being called 'dogs' and 'scabs' and being photographed and filmed, with those images then being uploaded to the CFMMEU's Facebook page, where they were then further subjected to abuse and intimidation. The abuse and intimidation is not just occurring in the workplace; the abuse and intimidation is occurring online as well. That's why the government have reintroduced this bill. That's why we have brought this bill forward. It's because we don't accept that registered organisations should be allowed to flout the law. It is about restoring integrity to this system to provide that, where an organisation, a division, a branch or an officer is doing the wrong thing, something can be done to stop that misconduct and to assure members that their organisations are acting with integrity and in their interests.

I will also go to the points that the senator made in relation to employers and corporations. There are some aspects of that I would like to address. The intent of this bill is to address those numerous examples of organisations and their officers repeatedly flouting the laws, as I have said, and where they have failed to meet basically accepted general standards of accountability and governance. As special rights and privileges are attached to registered organisations and their officials in the federal industrial relations system, it's only appropriate that there are appropriate standards of conduct also applied to those officers who enjoy those privileges. The provisions in this bill apply only to registered organisations and their officers. This shouldn't be conflated with the Corporations Act and its regulation of officers of corporations. That is a very distinct and different compliance regime.

In relation to that, because the senator has asked questions about it, let me say that the government has separately introduced measures to strengthen addressing corporate noncompliance. For example, we introduced higher penalties for corporate and financial misconduct in the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019. I've been through those provisions in some detail, and I suspect the chamber does not want me to do that again. But it is very clear that the government has acted in relation to a number of these matters. From the perspective of those who would seek for the government to go further, the Attorney-General has made it clear in the discussion papers, in public comments and elsewhere that there are a range of other issues that are under consideration.

I have also been asked about retrospectivity and the operation of the bill. The bill's disqualification and cancellation of registration provisions can only be triggered by conduct that occurs after the commencement of the bill. So, no matter what your views are on behaviour that occurred before the commencement of the bill, everyone will have a clean slate on its commencement. So far as these provisions about disqualification and cancellation of registration provisions are concerned, there will be a clean slate on commencement. However, if and when unlawful or otherwise improper conduct occurs after commencement, the court can take into account previous findings of lawless conduct to determine whether that disqualification or cancellation is justified. But it can only be triggered by further lawless conduct. So there's a clean slate as of the commencement of the bill.

In relation to the schedule 3 provisions, the administration provisions, they are remedial in conduct. They are targeted at what is presently occurring. But, what is more, the scheme is not punitive; it's actually about restoring effective administration to a dysfunctional organisation or part. If the organisation's previous state satisfied the grounds for making a declaration in section 323(3) but it is no longer dysfunctional, or the affairs are no longer being carried out against the interests of the organisation, then the court cannot make a declaration as such and cannot make an order appointing an administrator to resolve these circumstances. In relation to schedule 4—that is, the application of the public interest test to amalgamations—by its nature it must look at past conduct to determine whether an organisation or officer has a history of law-breaking. That is no different to seeking information about prior law-breaking before the granting of a permit such as a right-of-entry permit, a passport or a Working With Children Check application.

In relation to Senator Farrell's question, I also want to canvass whether the ground for disqualification for right-of-entry permits operates retrospectively. The 'fit and proper person' ground for disqualification can be activated by a decision made after the bill commences by the relevant authority to refuse, revoke or suspend an entry permit. The underlying conduct that leads to a person's permit being refused, revoked or suspended by the commission can occur prior to the commencement of the bill, and the government's view is that is entirely appropriate for a number of reasons, and I will go through those briefly.

Firstly, when considering whether to refuse, suspend or revoke an entry permit, what the Fair Work Commission will usually consider is a pattern of behaviour over a significant period of time. For refusals to grant a permit, that can be over three years. That's no different to when someone applies for a passport, in my current portfolio, or applies for a Working With Children Check, where information about prior law-breaking is examined before the granting of those permits. Secondly, when a decision is made to refuse, suspend or revoke an entry permit, the Fair Work Commission is actually making a point-in-time assessment that the person is not a fit and proper person to hold a permit, and I have been through the elements of a 'fit and proper person' today. It is appropriate to include that point in time after commencement, even where it considers other matters that previously happened. Thirdly, just establishing grounds for disqualification is not sufficient for disqualification to occur.

To be very clear, as I have said in relation to a number of other points raised by those opposite: the Federal Court still needs to be satisfied that it's not unjust to disqualify the individual, considering such things as the nature of the matters constituting the grounds. In addition, under the government's amendments the court cannot make an order unless it is satisfied that, having regard to the gravity of the conduct constituting the ground, the making of the order would not be unjust. So, on the issues that Senator Farrell asked about in relation to the legislation, the government considers this to be a discrete piece of legislation, as I said in my earlier remarks—