Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I table revised explanatory memoranda relating to the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 and the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, and I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speech es read as follows—

COUNTER-TERRORISM LEGISLATION AMENDMENT (PROHIBITED HATE SYMBOLS AND OTHER MEASURES) BILL 2023

Everyone can, and must, call out hate.

Until recently, it would have been unthinkable that Neo-Nazis would burn crosses and openly chant white supremacist slogans in a popular national park or perform Nazi salutes in the front of the Victorian parliament.

But over the last several years, we have seen these incidents and more. Today, the Albanese government is taking a significant step towards sending a message that Australia is united against displays of hate.

The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 makes critical changes to the Commonwealth Criminal Code to support law enforcement in their efforts to manage and protect the community from those planning, preparing and inspiring others to do harm.

Criminalising the public display and trading of the prohibited hate symbols and salute

Schedule 1 of the Bill makes it a criminal offence to publicly display prohibited hate symbols—the Nazi hakenkreuz, the Nazi double sig rune and those used by terrorist organisation—and trade items bearing these symbols.

The Nazi hakenkreuz and the Nazi double sig rune, also known as the Schutzstaffel insignia, represent the vile ideology of the Third Reich and conjure fear in many parts of the Australian community whose families suffered the horrors of the Holocaust. Similarly, terrorist organisations use symbols to build group belonging and to spread their ideology as well as fear and hatred in our community. These symbols are also used to promote hatred of other groups, including LGBTIQ+ Australians.

Extremist insignia are an effective propaganda tool because they are easy to remember and understand. They also transcend language and cultural divides.

The new public display offence in this Bill is designed to stamp out the harassment and vilification of innocent Australians whose communities are callously targeted by Nazi, Neo-Nazi and terrorist organisation supporters.

The trading offence ensures that a person cannot profit from selling, renting or leasing paraphernalia containing these symbols of hate.

The Bill also enables law enforcement to issue a direction to a person requiring the removal of prohibited symbols from public display.

These offences have been carefully considered and crafted so as not to capture legitimate uses of these symbols. The Bill expressly excludes conduct that is done for a religious, academic, educational, artistic, literary, scientific or journalistic purpose. Significantly, it will be the responsibility of the prosecution—not the defence—to prove that the alleged conduct fell outside those exemptions.

For example, public display for the purposes of education is permitted so the horrors of the Second World War are not forgotten, and can continue to be taught as a lesson for future generations.

The Government acknowledges the continued importance of the sacred swastika as a symbol that has immense significance to the Buddhist, Hindu, Jain and other communities of faith. The Government recognises the distinction between the sacred swastika and the misappropriated Nazi hakenkreuz. The Bill protects the use of the sacred swastika for the purpose of religious observance in recognition of its immense significance to these faith communities.

Further, in criminalising the public display and trade of symbols used by terrorist organisations, the Government recognises that the Shahada and the Seal of the Prophet have been misappropriated by terrorist organisations. We will not let a terrorist organisation cause further harm and distress to any in our community. The Government condemns Islamophobia and stands with the Australian Muslim community in opposition to terrorism in all its forms.

This Bill complements the efforts of state and territory governments around the country who have legislated similar prohibitions in their respective jurisdictions. The Bill extends to matters where the Commonwealth has particular responsibilities, including those with respect to trade and the online environment.

Criminalising the performance of the Nazi salute will complement the other measures in the Bill relating to Nazi symbols. Like those symbols, the Nazi salute is widely recognised and used to promote hateful ideologies, recruit followers and convey messages of hatred and violence. It represents the vile ideology of Nazism and conjures fear in many sectors of the Australian community whose predecessors suffered through some of the worst atrocities in history. It is appalling that there have been incidents involving the performance of the Nazi salute in Australia, and it has to stop.

Any attempt to re-enliven and disseminate Nazi ideology must be definitively characterised as criminal behaviour.

Criminalising the use of a carriage service to deal with violent extremist material

Violent extremist material, which is used to incite violence and instil fear in the community, has no place in our society.

While it is presently a crime to possess material that is connected with a terrorist act it is not a crime to possess violent extremist material where, for example, planning for an attack is not underway. Schedule 2 of the Bill addresses that gap by creating new offences for using a carriage service to possess or disseminate violent extremist material, noting the harmful nature of the material itself.

The offences, punishable by up to five years imprisonment, will facilitate law enforcement intervention at an earlier stage in individuals' progress to violent radicalisation.

Strengthen the 'advocating terrorism' offence

Schedule 3 of the Bill strengthens the offence of advocating terrorism in the Criminal Code.

The promotion and idealisation of extremist views is of increasing concern, particularly with respect to young people becoming radicalised online. Glorifying terrorists or providing guidance on the commission of terrorist acts can incite others to imitate or seek to engage in similar behaviour, and further their radicalisation. To address this, the Bill expands the offence for advocating terrorism in the Criminal Code to include instructing on the doing of a terrorist act or praising the doing of a terrorist act in circumstances where there is a substantial risk that such praise might lead someone to engage in a terrorist act.

Recognising that advocating terrorism is a serious act that can lead to violence against innocent Australians, the Bill increases the maximum penalty for this offence from five to seven years imprisonment. The new penalty more appropriately accounts for the severity of potential offending.

Indefinite listings of terrorist organisations

Schedule 4 of the Bill amends the Criminal Code to provide that regulations that proscribe terrorist organisations do not lapse after three years but continue indefinitely unless revoked by the AFP minister.

The current sunsetting date of three years is unnecessarily short and does not reflect the longevity of terrorist organisations. Some of the 41 organisations listed since 2002 have been relisted as many as eight times.

To ensure the appropriateness of the listing of organisations, the Bill requires the AFP Minister to take steps to remove the organisation from the list as soon as practicable if they become aware that an organisation no longer meets the listing threshold. Any person can make an application to the AFP Minister to revoke a listing instrument in relation to a terrorist organisation.

The Bill also grants the Parliamentary Joint Committee on Intelligence and Security an own-motion power to commence a review as to whether an organisation continues to satisfy the threshold to be listed as a terrorist organisation.

Conclusion

I find it almost unthinkable that this legislation is even necessary. Thousands of Australians fought and died to defeat the evil that some within our community now seek to promote. But we do need to act and we do need to make it clear that we will not tolerate this kind of conduct.

Australia's diversity is our greatest strength.

To those who are targeted because of their faith, we stand with you.

For those who face abuse simply for being who they are, we stand with you.

We will act to keep you safe and free to live your lives without fear.

If more is required to ensure the safety and security of all Australians from hatred and vilification, the Government will act.

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ECONOMIC INCLUSION ADVISORY COMMITTEE BILL 2023

The Albanese Government is working every day to deliver on our positive agenda to boost economic inclusion and broaden opportunity for all Australians. And as a Labor government, we will always work to support the most vulnerable in our society, tackle disadvantage and provide more opportunities to boost economic participation.

This is why, in November last year, the Prime Minister announced the establishment of the Economic Inclusion Advisory Committee. The Committee was tasked to provide advice to Government ahead of every federal Budget, on ways to boost economic inclusion, and to tackle disadvantage.

An interim Committee, comprised of a diverse range of experts, has commenced this important work. It has delivered its first report, including advice on policy settings, systems and structures, and the adequacy, effectiveness and sustainability of income support payments, which helped to inform the Government's considerations ahead of the 2023-24 Budget.

Now, with the introduction of the Economic Inclusion Advisory Committee Bill, we are delivering on the Government's commitment to permanently establish the Committee as a statutory body. This will ensure there is an ongoing mechanism for the provision of independent, expert advice to government on these important issues.

The Bill reflects the Albanese Government's commitment to hear from experts, stakeholders and the community. We recognise the value in ensuring a broad range of views are considered in the design and development of policy.

And disadvantage is a complex and systemic problem. That is why this Government in our 2023-24 Budget, announced the overhaul of the way Australia tackles entrenched disadvantage—by investing almost $200 million to deliver a comprehensive agenda to target those communities doing it the toughest. The Targeting Entrenched Disadvantage Package will better enable government to partner with philanthropy, to listen to and empower local leaders, and work with communities to direct services in a way that meets their needs in a shared decision making framework.

We've also taken action to improve the economic inclusion of people across Australia, with more support to help with cost of living pressures. The 2023-24 Budget announced a range of measures to support those on low incomes, including increasing the rates of working-age and student payments, and Commonwealth Rent Assistance, and expanding access to Parenting Payment (Single).

And legislation to implement two social security measures announced in the Employment White Paper, which are designed to smooth the transition between income support and employment, and give people more support to get into work, recently received Royal Assent.

But boosting economic inclusion and tackling disadvantage can't be resolved in a single Budget process or indeed, through a single portfolio. It requires sustained commitment over time and across government. This Bill will ensure there is an enduring mechanism for government to benefit from independent, expert advice on ways to support Australians in need, broaden opportunity, and reduce disadvantage in our communities.

Similar to arrangements in place for the interim Committee, the Bill tasks the Committee with reporting to Government annually with this advice. Their scope includes advice on income support payments, options to reduce barriers to work and economic inclusion, particularly for long-term unemployed and disadvantaged or disengaged groups.

It is also within the remit of the Committee to provide advice on the impact of economic inclusion policies on gender equality, as well as cohorts that face barriers to work—such as people with caring responsibilities, Indigenous persons, and people with disability. In addition, the Committee may provide advice on inequality markers in Australia, as well as international comparisons.

To assist government's consideration of its advice, the Bill requires the Committee to demonstrate regard in its report, to the Government's economic and fiscal outlook and fiscal strategy, workforce participation, relevant existing policies, and the long-term sustainability of the social security system in the overall context of the Budget.

While this Committee is independent, it is also important that Government can leverage the expertise and advice of the Committee to deliver on its agenda and priorities. To this end, the Bill enables the Treasurer and Minister for Social Services to seek advice from the Committee on specific issues, with this direction power designed to ensure that governments can leverage the expertise of the Committee in areas of focus—for instance, with respect to certain cohorts, a specific region, or particular policy area.

The advice to Government will be transparent, with the Government to publish the findings of the Committee.

It is important that the membership of the Committee reflects the diverse experience and expertise necessary for considering the complex and multi-faceted issues of economic inclusion and disadvantage. As is the case for the interim arrangements currently in place, the Committee is to include representatives of organisations who work closely with, and represent the diverse views of people who can inform the Committee of their lived experience of disadvantage.

A Chair and up to 13 members will be drawn from key advocacy organisations, the community sector, academia, unions, and the business sector, appointed by the Minister for Social Services, in consultation with the Treasurer.

Members will hold office on a part-time basis for up to three years, however they will be eligible for reappointment once their term ends. The positions are not remunerated, however the Government is ensuring ongoing support for the important work of the Committee by providing $8.7 million over the forward estimates—and $2.2 million per year ongoing. This funding is there to support the Committee to commission its own research, undertake consultations, and for secretariat services to be provided by the Department of Social Services.

The Bill provides a range of further provisions for the operation of the Committee including the role of relevant departmental secretaries, the termination of members, acting appointments and absences of members. It also provides for periodic independent reviews of the operation of the Committee and the Act every five years.

Of course, it is also important to remember that this is an advisory committee, and its advice is non-binding. The Government will continue to make the decisions necessary to improve the lives of our citizens. That is what Australians elect governments to do.

But these decisions should be informed by consideration of the best possible advice from a range of sources. With this Bill, we are establishing an enduring mechanism to receive advice from experts, stakeholders and community views. It is part of the Albanese Government's plan, to build a better future for all Australians, to broaden opportunity and to make Australia more inclusive.

I commend this Bill.

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FAIR WORK LEGISLATION AMENDMENT (CLOSING LOOPHOLES) BILL 2023

Last year, with the Secure Jobs Better Pay Bill, the parliament passed legislation to improve job security, increase wages and close the gender pay gap. And all the evidence suggests it worked.

But many Australians are not receiving the full benefit of these changes, because of loopholes that allow pay and conditions to be undercut.

The businesses which use these loopholes are able to undercut Australia's best employers in a race to the bottom.

If we want workers to be paid properly we need to close the loopholes.

If we want casuals to have a pathway to secure work we need to close the loopholes.

If we want enterprise agreements to determine minimum rates of pay at a workplace, we need to close the loopholes.

If we want gig workers and those in road transport to have minimum standards, we need to close the loopholes.

In relation to wage theft, it is already a crime for a worker to steal from an employer, as it should be. But it's not a crime for an employer to steal from a worker. We will close this loophole.

An employer convicted of intentional wage theft—including the theft of superannuation—could face up to 10 years imprisonment. Significantly, courts will be able to impose fines of up to three times the amount of the wage underpayment in both civil and criminal contexts, allowing penalties to be proportionate to the scale of the misconduct.

Employers who take reasonable steps to pay the correct amounts, or who make honest mistakes, will not be criminally prosecuted.

The Fair Work Ombudsman will be able to enter cooperation agreements with employers who come forward, and a new Voluntary Small Business Wage Compliance Code will provide assurance to small-business employers that they can't be pursued criminally if they take appropriate steps to comply with the law.

Maximum civil penalties for wage underpayment, including reckless wage underpayment, will be increased, implementing recommendation 5 of the Migrant Workers' Taskforce.

There are two key challenges in stamping out wage underpayments: one is how you detect the problem early, and a second is how you help workers-often very vulnerable workers-to speak up in the workplace.

We are making two changes to address these issues.

The first is an amendment to the current process allowing worker representatives to access workplaces to support workers.

Currently, the Fair Work Commission can decide to allow a representative to enter a workplace without 24 hours' notice if there is a reasonable prospect of the destruction or concealment of evidence. We will give the commission the capacity to also grant right of entry where it is satisfied there is a reasonable suspicion of wage underpayment.

There can be cases where the paperwork is impeccable but wage theft is occurring. For example, if a worker is being directed to clock off but is still required to work after that, you will only uncover this by attending without notice.

Existing safeguards applying to right of entry will continue. This bill makes no changes to section 483AA for access to non-member records and keeps the prohibition on accessing residential premises.

Secondly, a common feature of many high-profile wage underpayment cases is that, when they are discovered, we find the problem has been going on for years and years. People are too afraid to speak up, and there are no processes in place to help them do so. We need to make sure that, if someone is not being treated fairly at work, it's discovered early. That's why this bill contains important new protections and rights for workplace delegates, including reasonable access to paid relevant training-with small businesses exempt from this requirement.

These changes increase the likelihood that there will be a fellow employee at the workplace who is trained and knows the rules. This means more underpayment issues will be resolved early and quickly without involving anyone from outside the workplace.

The next loophole involves casual employment.

Casual employment suits many Australians and plays an important role in our workplaces.

But when someone is called 'casual' on their pay slip or their contract but is rostered like a permanent worker, expected to accept shifts like a permanent worker, and has a job likely to continue into the future indefinitely, then there's a clear loophole. A worker like this should be able to choose secure employment if they want it.

The ability to treat someone as a casual against their wishes, even if they are working like a permanent worker, is an unfair loophole. And we will close it.

A casual will still be defined as someone who does not have a firm advance commitment to continuing and indefinite work, but the bill will enable employees and their employers to look at what's really happening, not just what their contract says. Employees will be able to notify their employer that they wish to be permanent if they believe they no longer meet the casual definition.

Providing certainty to business, casual employees will remain casual unless they actively choose otherwise; and where an employee chooses to become permanent, no back pay will accrue. Employers who mistakenly misclassify a worker as casual will not be subject to penalties.

Most casuals who are eligible won't want to convert and will not be forced to. Most will prefer to keep their loading. But those casuals who may be supporting a household with that job are more likely to want security. Their rent isn't casual; their bills aren't casual. They need a better option for security.

The Fair Work Commission will have the ability to resolve any disputes, including through arbitration as a last resort or in exceptional circumstances.

The next problem is the labour hire loophole.

There's a legitimate role for labour hire in Australia-for surge work, for specialist work, or to provide temporary replacement workers.

Because of the inherent insecurity, labour hire workers are usually paid higher rates of pay, and those cases are completely unaffected by this legislation.

But when a business agrees on rates of pay for particular work in an enterprise agreement, and then asks labour hire workers to do the work for less-this 1s a labour hire loophole and this bill will close it.

On application, the Fair Work Commission will be able to make an order requiring labour hire workers to be paid at least the minimum rates in a host business's enterprise agreement. The Fair Work Commission must not make the order unless it is satisfied that the performance of work is not for the provision of a service rather than supply of labour, and that it is fair and reasonable to do so. Orders can only apply to pay rates; not to non-monetary conditions.

To be very clear-this reform does not prevent employers paying their employees more in recognition of their skills, qualifications and experience.

It does not apply to hosts who are small businesses; or to independent contractors; or to training arrangements.

The bill contains broad anti-avoidance protections that will stop businesses deliberately changing and manipulating their operations to try to get around these new obligations and includes appropriate safeguards to ensure the continued operation of orders when circumstances change.

The Fair Work Commission will help businesses to implement these obligations, including through developing guidelines and resolving disputes, should they arise.

A definition of employment is needed to prevent businesses from calling a person an 'independent contractor' and thereby avoiding paying them employment entitlements when in reality the relationship is one of employment.

Courts will now be required to look at the totality of the relationship, not only what's on paper, to work out what is really going on.

And we need fair minimum standards for employee-like workers and the road transport industry. Currently gig workers have no minimum standards at all.

This is a loophole causing serious harm to workers and it must be closed.

The amendments in this bill will allow the Fair Work Commission to make minimum standards orders for workers on digital platforms who do not meet the definition of employee, but nonetheless have low bargaining power, or low authority over their work or comparatively low pay-for example, people doing work via digital platforms in the NDIS, working in aged care, delivering food to people's homes, or transporting us around.

In many countries, the answer for these types of workers has been 'just make them an employee'. We are not doing that. We are going to accept the form of engagement, and set a framework for the Fair Work Commission to set standards that are fit-for-purpose for the unique nature of digital platform work. We've listened to platforms such as Uber, Menulog and Doordash to ensure the reforms will do this.

For example, the Fair Work Commission might come up with a minimum rate of pay. In relation to rideshare, it might go for a 5-minute or per- minute rate rather than an hourly rate. Why? Because it would need to be a rate appropriate for the form of engagement. It would also take into consideration other factors, for example, that workers might be working on more than one platform at a time.

Things like insurance and cost recovery standards-these are possible without changing the form of engagement.

Things like rostering and overtime would change the form of engagement and are not permitted under the bill. Similarly, you couldn't logically pay somebody for all the time that they're just on the app, because that would wreck the form of engagement. For matters like penalty rates and minimum periods of engagement-these can only be set where it is appropriate for the type of work.

While minimum standards for gig workers are critical, we also know that many Australians rely on the services. The Fair Work Commission is required to consider the impacts standards would have on users of platform services, and on other matters such as business costs, productivity and viability.

Gig workers will have new rights to seek reinstatement if they've been unfairly deactivated from the platform. Gig workers have the same financial obligations as other workers and should not have their platform access and livelihood unfairly cut off without any chance of redress.

However, we are still ensuring that platforms can take legitimate management action to protect users of services, including temporarily suspending a worker for up to seven days, including where there is a reasonable belief of fraud, or health and safety concerns.

The road transport industry is currently operating in a way that is putting businesses, workers and their families under immense financial pressure and undermining the safety, sustainability and viability of the industry.

Acting on calls from the industry to make an urgent change, the bill will allow the Fair Work Commission to set minimum standards for the road transport industry and to hear disputes about unfair contract terminations.

The bill contains a number of guardrails to ensure that the mistakes of the Road Safety Remuneration Tribunal are not repeated. A 'notice of intention' process gives parties an extended period to consider draft minimum standards orders before they become binding. Particular issues that are already comprehensively covered by other laws cannot be regulated. The Fair Work Commission must be satisfied that any order will not have an unreasonable adverse impact on the viability or competitiveness of drivers. Parties affected by a potential order will have the right to be heard before the order is made; and regulations can be made to establish a fail-safe process that allows an employee or employer organisation or the minister to apply to suspend the operation of an order in order to enable a review to take place.

Importantly, the order will be made by an expert panel within the Fair Work Commission, which must take account of advice from a road transport advisory group, with subcommittees able to provide additional expertise-a group formally established under this bill. This is a clear requirement to ensure orders acknowledge the practical realities of the road transport sector.

We know that the challenges that drivers face are made worse with complex contractual chains in the trucking industry. To address this, the bill will provide for regulations to empower the Fair Work Commission to make minimum standards for participants in road transport contractual chains. The government will continue to work with industry and union representatives to craft these regulations to ensure they are appropriate and effective in addressing pressing challenges, such as fair payment times.

And we need better protections against unfair contract terms for independent contractors.

Existing protections against unfair contract terms under the Independent Contractors Act have not worked.

This bill creates a low-cost and efficient jurisdiction at the Fair Work Commission for resolving disputes about unfair contract terms in services contracts, for independent contractors below a high-income threshold.

The next problem we are dealing with is fundamental.

Every worker has the right to go to work and come home safely.

Currently, manslaughter is a crime; but the same kind of culpable conduct is not prosecuted as manslaughter if it happens at work.

We will close this loophole.

This bill makes industrial manslaughter an offence-a long overdue recommendation of Marie Boland's 2018 review of the model work health and safety laws.

The offence includes penalties of $18 million for bodies corporate and 25 years imprisonment for officers. The most serious penalties should apply to recklessly or criminally negligently causing the death of a worker.

This bill also establishes a Family and Injured Workers Advisory Committee, which will provide advice to the Minister for Employment and Workplace Relations and to Commonwealth work health and safety regulators on the support needs of those affected by serious workplace incidents, including those involving the death of a worker, and to help inform the development of relevant policies and strategies.

The establishment of the committee follows discussions the Minister for Employment and Workplace Relations has had with families affected by a workplace fatality, and I acknowledge their tireless commitment to reform.

The Government is committed to taking action to prevent serious workplace incidents from occurring; and ensuring that we have the right supports in place for those affected.

The bill will also expand the Asbestos Safety and Eradication Agency's functions to eliminate silicosis and silica-related diseases in Australia.

It will simplify workers' compensation for first responders with post- traumatic stress disorder, including firefighters, Australian Federal Police employees, ambulance officers and emergency services communications operators in the Commonwealth jurisdiction.

It will further improve bargaining by giving the Fair Work Commission the power to make enterprise agreement model terms, allowing franchisees to bargain together in the single-enterprise bargaining stream and allowing employers covered by a multi-enterprise agreement to bargain with their employees for a replacement single-enterprise agreement at any time.

Changes to workplace determinations ensure that when deciding the terms of an intractable bargaining workplace determination, the Fair Work Commission cannot include a term that is less favourable to employees or employee organisations when compared against a term in an existing agreement that deals with the matter. The bill also increases the scope for terms to be agreed between bargaining representatives for a proposed enterprise agreement, which must then be included in any intractable bargaining workplace determination made by the Fair Work Commission.

The Government will also clarify the rules regarding who must attend a compulsory conciliation conference under section 448A. This bill will also make minor technical changes to the Coal Mining Industry Long Service Leave legislation to reflect the Mining and Energy Division's withdrawal from the Construction, Forestry, Maritime, Mining and Energy Union.

This bill will strengthen protections against discrimination for employees subjected to family and domestic violence.

It will make sham contracting laws fairer.

It will clarify the operation of Fair Work Ombudsman compliance notices. It will simplify registered organisation demerger provisions.

It will close a loophole in the operation of the small business redundancy exemption in insolvency.

The bill also includes a statutory review of all amendments to the Fair Work Act and other legislation made by the bill, starting within two years of Royal Assent.

It will allow for an assessment of the amendments after they have been enacted and would consider whether the operation of the amendments made by the Bill are appropriate and effective.

This bill will close the loopholes which undermine and weaken our workplace relations system, and it will make Australian workplaces safer and fairer.

Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.