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

I want to respond briefly to some of that faux anger and Logie-winning performance from Minister Cash in her second reading summing up. The reality is that, if this bill had been properly drafted in the first place, you may not have needed to accept 90 per cent of the amendments that the opposition are putting forward. If you'd have actually dealt with the key issues that the opposition were raising with you during those negotiations, you would have accepted some of the key changes that have been put forward by he Australian Industry Group, the Law Council of Australia and the ACTU and dealt with some of the concerns that were raised by the Joint Committee on Human Rights and the Senate standing committee. This is a real problem in the context of having clarity in this bill. The clarity is not there. If you had drafted it properly in the first place, maybe we'd have had some clarity, as the Law Council, the Scrutiny of Bills Committee and the Joint Committee on Human Rights sought.

As I indicated during my second reading contribution, we indicated that we were keen to work through some of the issues in the bill and that we were not happy and certainly not supportive of the bill as it stood. There are a number of amendments that we have before the chamber now. I would seek some advice from the Clerk. I know that all the amendments on sheet 8143 have been circulated, but I would certainly like to break it up into more manageable bites so that we can understand exactly what the government is prepared to accept and will not accept. We would like to move amendments (2), (3), (4), (5), (7), (9), (11), (12) and (13) together.

The CHAIR: Is leave granted?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I would seek clarification as to what they are.

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

They go to making dishonesty the fault element for the offences of giving and receiving a corrupting benefit. Minister, I should have indicated what they were.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

That's okay.

The CHAIR: Senator Cameron, for the point of clarity, would you state them again?

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

These amendments make dishonesty the fault element for the offences of giving and receiving a corrupting benefit. They are amendments (2), (3), (4), (5), (7), (9), (11), (12) and (13), and I will be seeking leave to move them together.

Leave granted.

by leave—I move amendments (2), (3), (4), (5), (7), (9), (11), (12) and (13) on sheet 8143 together:

(2) Schedule 1, item 3, page 3 (line 21), omit "to act improperly".

(3) Schedule 1, item 3, page 4 (after line 23), at the end of Division 1, add:

536CA Dishonesty

(1) For the purposes of this Part, dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

(2) In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.

(4) Schedule 1, item 3, page 4 (line 29), after "defendant", insert "dishonestly".

(5) Schedule 1, item 3, page 5 (lines 9 to 13), omit subparagraphs 536D(1) (b) (i) and (ii), substitute:

(i) in the performance of his or her duties or functions as such an officer or employee; or

(ii) in the exercise of his or her powers or performance of his or her functions under this Act or the Registered Organisations Act; or

(7) Schedule 1, item 3, page 5 (line 25), after "defendant", insert "dishonestly".

(9) Schedule 1, item 3, page 6 (lines 1 to 5), omit subparagraphs 536D(2) (b) (i) and (ii), substitute:

(i) in the performance of his or her duties or functions as such an officer or employee; or

(ii) in the exercise of his or her powers or performance of his or her functions under this Act or the Registered Organisations Act; or

(11) Schedule 1, item 3, page 6 (line 26), omit the heading to subsection 536D(4), substitute:

Giving an advantage which would not be legitimately due

(12) Schedule 1, item 3, page 6 (lines 28 to 30), omit "whether a performance or exercise of duties, functions or powers would be improper, or whether an advantage would not be legitimately due,", substitute "whether an advantage would not be legitimately due".

(13) Schedule 1, item 3, page 6 (line 31), omit the heading to subsection 536D(5).

The amendments that we would also want to move together are to provide that the advantage of any kind, not legitimately due, intended to be obtained by the provision or request of a corrupting benefit, must be related to the affairs of the registered organisation. They are amendments (1), (6), and (10) on sheet 8143.

The CHAIR: Senator Cameron, could we suggest that we deal with the first ones relating to dishonesty that you just moved, and then we deal with these subsequent ones?

Yes, I just wanted to outline, broadly, where we're going so you know where we're going, and maybe some of the minister's advisers can then look at these other issues. I'll come back to them, as I've outlined. The other issue that we would want to deal separately with is item 8, and the effect of that amendment is to make the test the same for the person making the bribe and the person taking it—that is an intention to influence. Then (14) and (15) together—these amendments have the effect of changing the proposed offences of making and receiving cash, and in-kind payments from a strict-liability offence to one where the defendant has to act dishonestly.

The CHAIR: For clarity, we've broken them into four tranches.

) ( ): Yes, and (16) as well.

The CHAIR: So (14), (15) and (16)?

No, (16) is separate, sorry. That amendment changes the definition of 'related party' in relation to the new requirements to make disclosures during negotiations of enterprise agreements. So those are the points within those amendments that act together. We would certainly want to deal with them in those terms.

The CHAIR: Is leave granted?

Leave granted.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, to assist the chamber, will you now deal with the first bloc of amendments that you have put forward?

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

Yes.

The CHAIR: Just so we are clear, we are dealing with (2), (3), (4), (5), (7), (9), (11), (12) and (13) on sheet 8143?

Yes.

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

Could you please repeat that?

The CHAIR: We are on Sheet 8143 and we are dealing with (2), (3), (4), (5), (7), (9), (11), (12) and (13). Senator Cameron?

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

I said, the effects of these amendments—and that's (2), (3), (4), (5), (7), (9), (11), (12) and (13)—are to make dishonesty the fault element for the offences of giving and receiving a corrupting benefit. The bill contains two new corrupting-benefit criminal offences with maximum penalties of 10 years and/or 5,000 penalty units. The criticism of the way these offences have been drafted come from stakeholders in business, the Ai Group, the ACTU representing workers, academics, legal experts and the Law Council of Australia. There is no requirement in relation to either of these new offences that the defendant act dishonestly, which creates a situation of strict liability where an alleged offender's state of mind or intention will be irrelevant to the determination of guilt. This is a departure from the usual approach to criminal offences of this seriousness. For example, the Commonwealth Criminal Code contains two analogous offences of bribery of Commonwealth officers where the fault element is dishonesty, and the Criminal Code defines 'dishonesty' as 'dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people'. So instead of being based on these existing Criminal Code offences, the new offences in the bill require the corrupting benefit to be sought or provided with the intention of influencing an official or an employee of a registered organisation to carry out their duties or obligations improperly.

There is no definition of improperly in the bill. The absence of a definition of 'improperly' has the potential to give rise to considerable ambiguity and to widen the scope of the offence beyond what is intended.

The Law Council has identified the lack of any definition of the term 'improperly' and 'not legitimately due' in the bill as causing significant uncertainty and potential overreach. Labor's amendments address the concerns raised by stakeholders by requiring the actions of the defendant to be dishonest. The definition of dishonesty is imported from the Criminal Code, so the test for corrupt behaviour for officials of registered organisations and employers is the same as that which currently exists for Commonwealth officers. I ask the minister if she is prepared to accept these amendments, as moved together, that deal with the issue of making dishonesty the fault element.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

In relation to the amendments that you have moved, the government is prepared to agree to those amendments. We have reviewed the Senate committee report and we have obviously discussed this. The amendment is to define 'dishonestly'. The term 'dishonestly' is used, I am instructed, in the comparable Criminal Code offences of bribing a Commonwealth public official.

In relation to the word 'improperly', it was recommended by Heydon as part of the recommendations. I disagree that there is not clarity surrounding the use of the term 'improperly'. There is actually a common-law definition of improperly, which the courts will utilise to obviously determine whether or not something was improperly done. However, for the purposes of clarification, and certainly, as I said, to work in good faith, we are prepared to accept the amendments and utilise the term 'dishonestly'.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

I want to indicate that the Greens will also support these amendments. But, first off, we need to give some context as to where the debate is at. When the minister finished up in her second reading speech, she made a great flurry with accusations about false statements. Minister, your comments that your bill is anticorruption and pro-worker is false. It's more than false, it's a bit of a joke. I think it would have stand-up comedians really enjoying themselves dining out on that line that it's pro-worker. It's not pro-worker coming from this government when you see how the bill has been designed. It's drafted so broadly, it will make it very difficult for people to conduct what are currently seen as lawful activities. The Law Council nailed that as a very major problem.

It's not pro-worker and, at times, it's not actually pro-business, because it could well just make things so complex that it could be barely workable. Then when you talk about it being anticorruption—and this also goes to how Labor have just voted. You need to deal with corruption across the whole society. That's what we should be doing now, rather than just targeting a section of the workforce, a section of the business community and industry. It shows that there are other agendas going on here. Everybody just had the opportunity to get behind a national anticorruption commission. What did we see? We saw Liberals, Nationals and Labor voting together to vote against it, once again. It is really extraordinary. It's not anticorruption. It's not pro-worker. It's actually another con job. It could actually be quite destructive in terms of how relationships in the workplace play out.

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

I have to rise to respond to a couple of the points that Senator Rhiannon raised. Senator Rhiannon and the Greens did not raise the issue of a broader anticorruption bill with the ALP at any time during the lead-up to this debate.

I know a little bit about anticorruption issues. I appeared before ICAC as a witness. I've been to the Supreme Court as a witness for the prosecution against former Labor Party ministers in NSW. So I am personally supportive of a broader anticorruption bill coming at some time to this place after proper discussions and consideration between the parties.

Senator Rhiannon interjecting—

You can intervene all you like, Senator Rhiannon. You have not raised this issue with us. We are—and I certainly am—supportive of a broader anticorruption situation in this place, but it is not appropriate to raise that now as an issue that we should be making a decision on right now. We are not going to do that. We think, and you've agreed, that we need to make these amendments to make this bill better. They are based on the consideration of the scrutiny committees of both the House of Representatives and the Senate. We think that is very important.

The issue of the Heydon royal commission has raised its head. As I said, from my point of view this was nothing more than a political royal commission. There's no doubt about that. The commissioner was biased. The commissioner showed no elements of being impartial within that royal commission. The treatment that some witnesses received compared with others was an absolute disgrace. It's pretty typical of this mob across here that they do, as soon as they come into power, run royal commissions against their political opponents. That's their modus operandi. There is also no doubt that ideology from the government benches was driving that royal commission. There is absolutely no doubt about that whatsoever. Heydon was biased. It was politically influenced by the government. It is just unacceptable that this type of approach is taken by the coalition. Every time they get into government they want to run royal commissions against their political opponents. But that's a matter of history. That's a matter of fact.

We have here a badly drafted bill which breaches a number of conventions that have been supported over a long period of time by the scrutiny committees of this parliament. I'm glad to see that the minister has conceded the commonsense position that various parts of the bill were not appropriately drafted and that the amendments will make it a better bill, even though we have to wait and see what the final outcome is. This should be about dishonesty. It should be about giving and receiving corrupting benefits. It shouldn't be about a wider ideological attack on the trade union movement.

One of the issues that has not been discussed this evening in the committee is the fact that the bill does not deal with corruption from company to company. There has to be union involvement before a company can get engaged in this. We are of the view that if there are to be wider discussions and debates about corruption then they should be done in an appropriate manner with proper consultation with the opposition. We will sit and listen to the issues. We will make our decision about where we go with it. But this bill is still deficient in the context that company-to-company corruption is not covered.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

Again, for the context, Senator Cameron, I'm certainly not doubting—I have heard you say a number of times—your own personal commitment to a broad-based anticorruption commission. But, again, you are giving cover to your party—saying how there was no notice about our second reading amendment for a national ICAC. There was heaps of notice. Firstly, you know that we've been talking about this for a long time. In the case of this specific legislation, my colleague Adam Bandt in the House of Representatives moved this same amendment. That was back in May. You have had all that time where we could have been working together. We've been saying it time and time again. I know that me colleagues, particularly Senator Richard Di Natale, has repeated it time and time again that we are ready to work with you on a national ICAC. So squibbing it is just not a good enough excuse. That is actually what has happened here.

So, yes, I believe your sincerity. But Labor have to actually step up and get on with the job. At the moment, you are in an extraordinary situation working with the Liberals and the Nationals on something that is targeting the union movement. It's a con job from them.

Derryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | Link to this | Hansard source

I want to support something that Senator Cameron said in his dissertation a few minutes ago about Senator Rhiannon. I am just confused—and I thought that I was a member of a national integrity commission Senate inquiry which has been conducting public hearings all over the country—as we all come to the conclusion whether we would need and what form we would need a national ICAC. I personally support it. I think that's what we are meant to be doing at the moment. So I just want to support Senator Cameron's earlier comments.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The question is that items 2, 3, 4, 5, 7, 9, 11, 12 and 13 on sheet 8143 be agreed to.

Question agreed to.