Division Description Changes — Bills — Fair Work Amendment (Corrupting Benefits) Bill 2017; Second Reading — 8th Aug 2017

Change	Division
senate vote 2017-08-08#2 Edited by mackay staff on 2023-11-24 09:36:08	Title Bills — Fair Work Amendment (Corrupting Benefits) Bill 2017; Second Reading Fair Work Amendment (Corrupting Benefits) Bill 2017 - Second Reading - Withdraw bill Description ~~<p class="speaker">Louise Pratt</p>~~ <p>In rising to speak to the Fair Work Amendment (Corrupting Benefits) Bill 2017, I want to place on record Labor's complete intolerance for corruption. While the bill is based on the recommendations made by Commissioner Heydon in the final report of the royal commission into trade unions, there has been no movement from the government to introduce these changes for more than 12 months. Unfortunately, the process in drafting this bill has been manifestly inadequate, which has led to significant issues in the drafting of offences and definitions in the bill. I'd like to reflect on those in my remarks today.</p> <p>The Department of Education and Training confirmed that there was no stakeholder consultation during the drafting of this bill. That is a very problematic thing when you are looking at trying to create operational law. I simply cannot see how a lack of consultation with stakeholders can make for effective law. So we on this side of the chamber will be moving amendments to the legislation based on consultation with stakeholders and a number of recommendations from them. I would like to call on all my colleagues in this place to listen to the voices of those stakeholders—professionals from across the community, including from businesses, unions and the legal profession—and fix the very real issues that are in this bill. I implore you to pass Labor's amendments.</p> <p>The changes before us in this bill are in theory very important, but they won't work unless they are done properly. The kinds of offences that are in this bill should not be drafted because of ideology or a misguided anti-union sentiment. They must be drafted in a way that ensures consistency and fairness and does not bring risk to those people who are clearly doing the right thing. Employee and employer groups alike have raised concerns about this bill. The drafting of the offences in the bill could have significant unintended consequences for both unions and employers. Changes are necessary to make sure that the bill is fair, and so Labor is proposing some amendments. We believe that our amendments will improve the bill but they will not change its intent. So I encourage all of my colleagues in this place to support these amendments and to address the flaws in this bill and address some of the overreach in the drafting of the offences that could cause significant and unintentional harm to the good operation of unions and the businesses with which they work.</p> <p>The bill establishes penalties of up to 10 years in prison and 5,000 penalty units for what is called 'corrupting benefits' offences. Stakeholders, including people from business, unions, academia and the legal profession, including the ACTU and the Law Council of Australia, have raised significant concerns with the drafting of these offences. Stakeholders are concerned that the bill makes it an offence, for example, for activities which are not corrupt or corrupting and are standard activities in the conduct of good business. These include things like unions requesting and receiving payment from employers for wages or entitlements that were owed to ex-employees; unions negotiating the settlement of disputes with employers before court proceedings are commenced; and standard hospitality during negotiations—for example, an employer might make a conference room available, with morning tea, for a negotiation, or a union might need to travel to a remote location by company aircraft.</p> <p>There is very real concern that this bill includes such activities and many more and will place the ordinary day-to-day work of unions, employers and employer groups at significant risk, when there is no corrupt behaviour or malpractice taking place. While this may not be the intention of the bill, the poor drafting that's displayed here means that many stakeholders have expressed that this is, indeed, a very real risk and one which should be rectified prior to the passing of this bill. Labor's amendments mean that these perfectly proper activities are within the statutory exemptions.</p> <p>The drafting of this bill is also a departure from the usual approach to criminal offences of a similar nature—that is, it does not require the defendant to act dishonestly. In similar crimes of this kind of seriousness, the Commonwealth Criminal Code contains two analogous offences of bribery of Commonwealth officers, where the fault element is dishonesty. This should be included in the bill. There's no reason that the test for corrupt behaviour of officials of registered organisations and employers should be any different to those of Commonwealth officers.</p> <p>Rather than the test being that someone must act dishonestly, what we have before us is a bill that requires the corrupting benefit to be sought or provided with the intention of influencing an official or employee of a registered organisation to carry out their duties or obligations 'improperly'. Yet, this term is not even defined in the bill. That is of extraordinary concern in regard to the good function of the legislation before us. It creates far too much ambiguity for what are quite heavy penalties, and it may even widen the scope of the offence beyond what is intended by even those in the government. These are, indeed, strict liability offences. There is no fault element, no requirements for the receiver to intend it to have purposes that are dishonest, corrupt or improper. This is completely out of scope for what this legislation should be putting forward. And that is why Labor will be moving amendments to address these significant issues.</p> <p>The amendments will require that the actions of the defendant are, indeed, dishonest, and bring it in line with the standards under our Criminal Code. This makes complete sense given the purpose of these offences is to prevent corrupt or illegitimate payments. We should not be inadvertently criminalising conduct that, indeed, is not corrupt. Labor is also moving an amendment 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. However, what we have got in the bill in its current form is quite problematic because there's no requirement that the advantage not legitimately due as quoted from the bill, intended to be obtained by the provision or request of a corrupting benefit, is connected to the affairs of the registered organisation. This is problematic. As a result, this would create a very wide field of potential operation for the new offence, one which travels beyond the circumstances that should be addressed by these provisions. This is a key provision that should be included and that was, indeed, included by Commissioner Heydon in his model legislation.</p> <p>Another issue that Labor seeks to address in our amendments is the differing tests for the person making the bribe and the person taking it. In its current form, the bill sets out the test of intention for offering a bribe at intention of influencing, while the intention for receiving the bribe is intention to tend to influence. Again, this differs from the Criminal Code in which offences of giving a bribe to a Commonwealth officer and a Commonwealth officer receiving a bribe set the intention at influence with a maximum of 10 years in prison. So while we have a Criminal Code that sets a lower test—that is, tend to influence—the penalty is lower, and that is five years. So there is no justification for setting intention at 'tend to influence' for the offence of receiving a corrupting benefit while also imposing a maximum penalty of 10 years. Labor's amendment will address this by making the intentions the same.</p> <p>Another issue I want to address briefly before I finish my remarks relates to the definition of 'related party'. The current drafting requires unions to disclose any potential benefits from an enterprise agreement which may flow to a related party. This term is currently defined in a way that is unreasonable. Our amendments, which will come before the chamber, will instead define 'related party' in a way that is more direct and specific—that is, as the branch or branches of the organisation, officers of that branch, an entity controlled by the organisation, a spouse of a person mentioned in paragraph (b) or a member of the national committee of management, or divisional committee of management, of which an officer of the branch is also a member.</p> <p>All of our amendments that will come before the chamber seek to ensure that the intention of this bill remains while also making sure that the legislation is fair and does not adversely impact on the usual and standard operations of unions and employers. It makes sense to me that this legislation should be in line with our Criminal Code and that we should seek to genuinely punish dishonesty and corruption in all areas, ranging from government officials to private enterprise. I hope that that makes sense to my colleagues in this place and that Labor's amendments to this bill are supported.</p> ~~<p class="speaker">Rachel Siewert</p>~~ <p>I would like to move the second reading amendment that Senator Rhiannon was going to move. She mentioned it in her speech, but then, due to question time, did not actually move it. I move the second reading amendment standing in Senator Rhiannon's name:</p> ~~<p class="italic">Leave out all words after "that", insert:</p>~~ ~~<p class="italic">"the bill be withdrawn and redrafted to provide for the establishment of a national Independent Commission Against Corruption."</p>~~ ~~<p class="speaker">Cory Bernardi</p>~~ <p>It's hard to follow that outstanding contribution, but I'll do my very best. I rise tonight with some concerns about this bill, the Fair Work Amendment (Corrupting Benefits) Bill 2017, which I've spoken with the minister about, and I have made some suggested amendments which, contrary to other assertions in this place, the minister has said she will look towards accepting and resolving. I say 'contrary to other assertions' because, somehow, there is a mythology about how those on that side of the chamber are supportive of a clean and transparent union movement and those on this side of the chamber are somehow opposed to the union movement—and it's not quite as binary as that at all.</p> <p>I and Australian Conservatives support the right of the people to work together cooperatively and to form gilds and trade unions to represent their interests. I, personally, don't believe that the union movement's interests or the workers' interests and the business owners' interests should be diametrically opposed—in fact, quite the opposite. My experience has been that good employers, particularly in small businesses, go out of their way to look after workers. They go out of their way to look after those who they feel a responsibility towards, both a financial one and a personal one. They accommodate requests and demands that are outside the scope of any formal agreement because it is a cooperative venture. By that I mean, without employers, you don't have employees and, quite frankly, without employees, you don't have a union movement—a union movement which has become somewhat engorged and somewhat recalcitrant in some aspects and has become, indeed, a law unto itself. That concerns me, and it should concern a lot of people. That's why, in principle, I support this bill. I will be supporting this bill notwithstanding the fact that it does need some amending, and I'm confident that will take place in the committee stage, before we get to the third reading.</p> <p>But I do note that, earlier, Senator Doug Cameron, who is one of the hardliners in the space, said, 'There will be no negotiation. The minister refused to discuss and negotiate.' That's not my experience. I just want to put that on the record. The minister has been very cooperative and very helpful. She hasn't got everything that she wanted from me as a result. Nonetheless, I found that to be a very positive effect.</p> ~~<p>The Dyson Heydon royal commission on trade unions had this headline finding:</p>~~ <p class="italic">It is clear that in many parts of the world constituted by Australian trade union officials, there is room for louts, thugs, bullies, thieves, perjurers, those who threaten violence, errant fiduciaries and organisers of boycotts …</p> <p>I don't know too many people who think that's a respectable finding from a royal commission or think that's an appropriate contribution from sections of the trade union movement to Australian business. It is little wonder that our competitiveness is struggling and that we have difficulties with smaller businesses who are competing with larger businesses who, it turns out, in many instances, are in bed, figuratively, with the union movement.</p> <p>I welcome the decision by the coalition to attempt to legislate their election commitment. It's worth noting that it took several times to legislate their previous commitments on the royal commission. It takes persistence, it takes courage, it takes resilience in the face of an ongoing diatribe in some respects and public abuse. It took the calling of a double dissolution election to prompt it—</p> ~~<p class="speaker">Don Farrell</p>~~ ~~<p>That was a great idea.</p>~~ ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~ The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2017-08-08.128.1) to the usual second reading motion, which means it was unsuccessful. ### Usual second reading motion text *> That** the bill be read a second time.* To read a bill for a second time is to agree with its main idea. ### Amendment text > Leave out all words after "that", insert: > *>> "the bill be withdrawn and redrafted to provide for the establish*ment of a national Independent Commission Against Corruption."

~~Louise Pratt~~
In rising to speak to the Fair Work Amendment (Corrupting Benefits) Bill 2017, I want to place on record Labor's complete intolerance for corruption. While the bill is based on the recommendations made by Commissioner Heydon in the final report of the royal commission into trade unions, there has been no movement from the government to introduce these changes for more than 12 months. Unfortunately, the process in drafting this bill has been manifestly inadequate, which has led to significant issues in the drafting of offences and definitions in the bill. I'd like to reflect on those in my remarks today.
The Department of Education and Training confirmed that there was no stakeholder consultation during the drafting of this bill. That is a very problematic thing when you are looking at trying to create operational law. I simply cannot see how a lack of consultation with stakeholders can make for effective law. So we on this side of the chamber will be moving amendments to the legislation based on consultation with stakeholders and a number of recommendations from them. I would like to call on all my colleagues in this place to listen to the voices of those stakeholders—professionals from across the community, including from businesses, unions and the legal profession—and fix the very real issues that are in this bill. I implore you to pass Labor's amendments.
The changes before us in this bill are in theory very important, but they won't work unless they are done properly. The kinds of offences that are in this bill should not be drafted because of ideology or a misguided anti-union sentiment. They must be drafted in a way that ensures consistency and fairness and does not bring risk to those people who are clearly doing the right thing. Employee and employer groups alike have raised concerns about this bill. The drafting of the offences in the bill could have significant unintended consequences for both unions and employers. Changes are necessary to make sure that the bill is fair, and so Labor is proposing some amendments. We believe that our amendments will improve the bill but they will not change its intent. So I encourage all of my colleagues in this place to support these amendments and to address the flaws in this bill and address some of the overreach in the drafting of the offences that could cause significant and unintentional harm to the good operation of unions and the businesses with which they work.
The bill establishes penalties of up to 10 years in prison and 5,000 penalty units for what is called 'corrupting benefits' offences. Stakeholders, including people from business, unions, academia and the legal profession, including the ACTU and the Law Council of Australia, have raised significant concerns with the drafting of these offences. Stakeholders are concerned that the bill makes it an offence, for example, for activities which are not corrupt or corrupting and are standard activities in the conduct of good business. These include things like unions requesting and receiving payment from employers for wages or entitlements that were owed to ex-employees; unions negotiating the settlement of disputes with employers before court proceedings are commenced; and standard hospitality during negotiations—for example, an employer might make a conference room available, with morning tea, for a negotiation, or a union might need to travel to a remote location by company aircraft.
There is very real concern that this bill includes such activities and many more and will place the ordinary day-to-day work of unions, employers and employer groups at significant risk, when there is no corrupt behaviour or malpractice taking place. While this may not be the intention of the bill, the poor drafting that's displayed here means that many stakeholders have expressed that this is, indeed, a very real risk and one which should be rectified prior to the passing of this bill. Labor's amendments mean that these perfectly proper activities are within the statutory exemptions.
The drafting of this bill is also a departure from the usual approach to criminal offences of a similar nature—that is, it does not require the defendant to act dishonestly. In similar crimes of this kind of seriousness, the Commonwealth Criminal Code contains two analogous offences of bribery of Commonwealth officers, where the fault element is dishonesty. This should be included in the bill. There's no reason that the test for corrupt behaviour of officials of registered organisations and employers should be any different to those of Commonwealth officers.
Rather than the test being that someone must act dishonestly, what we have before us is a bill that requires the corrupting benefit to be sought or provided with the intention of influencing an official or employee of a registered organisation to carry out their duties or obligations 'improperly'. Yet, this term is not even defined in the bill. That is of extraordinary concern in regard to the good function of the legislation before us. It creates far too much ambiguity for what are quite heavy penalties, and it may even widen the scope of the offence beyond what is intended by even those in the government. These are, indeed, strict liability offences. There is no fault element, no requirements for the receiver to intend it to have purposes that are dishonest, corrupt or improper. This is completely out of scope for what this legislation should be putting forward. And that is why Labor will be moving amendments to address these significant issues.
The amendments will require that the actions of the defendant are, indeed, dishonest, and bring it in line with the standards under our Criminal Code. This makes complete sense given the purpose of these offences is to prevent corrupt or illegitimate payments. We should not be inadvertently criminalising conduct that, indeed, is not corrupt. Labor is also moving an amendment 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. However, what we have got in the bill in its current form is quite problematic because there's no requirement that the advantage not legitimately due as quoted from the bill, intended to be obtained by the provision or request of a corrupting benefit, is connected to the affairs of the registered organisation. This is problematic. As a result, this would create a very wide field of potential operation for the new offence, one which travels beyond the circumstances that should be addressed by these provisions. This is a key provision that should be included and that was, indeed, included by Commissioner Heydon in his model legislation.
Another issue that Labor seeks to address in our amendments is the differing tests for the person making the bribe and the person taking it. In its current form, the bill sets out the test of intention for offering a bribe at intention of influencing, while the intention for receiving the bribe is intention to tend to influence. Again, this differs from the Criminal Code in which offences of giving a bribe to a Commonwealth officer and a Commonwealth officer receiving a bribe set the intention at influence with a maximum of 10 years in prison. So while we have a Criminal Code that sets a lower test—that is, tend to influence—the penalty is lower, and that is five years. So there is no justification for setting intention at 'tend to influence' for the offence of receiving a corrupting benefit while also imposing a maximum penalty of 10 years. Labor's amendment will address this by making the intentions the same.
Another issue I want to address briefly before I finish my remarks relates to the definition of 'related party'. The current drafting requires unions to disclose any potential benefits from an enterprise agreement which may flow to a related party. This term is currently defined in a way that is unreasonable. Our amendments, which will come before the chamber, will instead define 'related party' in a way that is more direct and specific—that is, as the branch or branches of the organisation, officers of that branch, an entity controlled by the organisation, a spouse of a person mentioned in paragraph (b) or a member of the national committee of management, or divisional committee of management, of which an officer of the branch is also a member.
All of our amendments that will come before the chamber seek to ensure that the intention of this bill remains while also making sure that the legislation is fair and does not adversely impact on the usual and standard operations of unions and employers. It makes sense to me that this legislation should be in line with our Criminal Code and that we should seek to genuinely punish dishonesty and corruption in all areas, ranging from government officials to private enterprise. I hope that that makes sense to my colleagues in this place and that Labor's amendments to this bill are supported.
~~Rachel Siewert~~
I would like to move the second reading amendment that Senator Rhiannon was going to move. She mentioned it in her speech, but then, due to question time, did not actually move it. I move the second reading amendment standing in Senator Rhiannon's name:
~~Leave out all words after "that", insert:~~
~~"the bill be withdrawn and redrafted to provide for the establishment of a national Independent Commission Against Corruption."~~
~~Cory Bernardi~~
It's hard to follow that outstanding contribution, but I'll do my very best. I rise tonight with some concerns about this bill, the Fair Work Amendment (Corrupting Benefits) Bill 2017, which I've spoken with the minister about, and I have made some suggested amendments which, contrary to other assertions in this place, the minister has said she will look towards accepting and resolving. I say 'contrary to other assertions' because, somehow, there is a mythology about how those on that side of the chamber are supportive of a clean and transparent union movement and those on this side of the chamber are somehow opposed to the union movement—and it's not quite as binary as that at all.
I and Australian Conservatives support the right of the people to work together cooperatively and to form gilds and trade unions to represent their interests. I, personally, don't believe that the union movement's interests or the workers' interests and the business owners' interests should be diametrically opposed—in fact, quite the opposite. My experience has been that good employers, particularly in small businesses, go out of their way to look after workers. They go out of their way to look after those who they feel a responsibility towards, both a financial one and a personal one. They accommodate requests and demands that are outside the scope of any formal agreement because it is a cooperative venture. By that I mean, without employers, you don't have employees and, quite frankly, without employees, you don't have a union movement—a union movement which has become somewhat engorged and somewhat recalcitrant in some aspects and has become, indeed, a law unto itself. That concerns me, and it should concern a lot of people. That's why, in principle, I support this bill. I will be supporting this bill notwithstanding the fact that it does need some amending, and I'm confident that will take place in the committee stage, before we get to the third reading.
But I do note that, earlier, Senator Doug Cameron, who is one of the hardliners in the space, said, 'There will be no negotiation. The minister refused to discuss and negotiate.' That's not my experience. I just want to put that on the record. The minister has been very cooperative and very helpful. She hasn't got everything that she wanted from me as a result. Nonetheless, I found that to be a very positive effect.
~~The Dyson Heydon royal commission on trade unions had this headline finding:~~
It is clear that in many parts of the world constituted by Australian trade union officials, there is room for louts, thugs, bullies, thieves, perjurers, those who threaten violence, errant fiduciaries and organisers of boycotts …
I don't know too many people who think that's a respectable finding from a royal commission or think that's an appropriate contribution from sections of the trade union movement to Australian business. It is little wonder that our competitiveness is struggling and that we have difficulties with smaller businesses who are competing with larger businesses who, it turns out, in many instances, are in bed, figuratively, with the union movement.
I welcome the decision by the coalition to attempt to legislate their election commitment. It's worth noting that it took several times to legislate their previous commitments on the royal commission. It takes persistence, it takes courage, it takes resilience in the face of an ongoing diatribe in some respects and public abuse. It took the calling of a double dissolution election to prompt it—
~~Don Farrell~~
~~That was a great idea.~~
~~Long debate text truncated.~~
The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2017-08-08.128.1) to the usual second reading motion, which means it was unsuccessful.
### Usual second reading motion text
> *That the bill be read a second time.*
To read a bill for a second time is to agree with its main idea.
### Amendment text
> *Leave out all words after "that", insert:*
>
>> *"the bill be withdrawn and redrafted to provide for the establishment of a national Independent Commission Against Corruption."*