Fair Work (Registered Organisations) Amendment Bill 2014


Bills Digest no. 40, 2016–17

PDF version [1094KB]

Jaan Murphy
Law and Bills Digest Section
21 November 2016

This Bills Digest revises an earlier version dated 5 May 2015, to update the background to the Bill to reflect developments since that date, including the conclusion of the Royal Commission into Trade Union Governance and Corruption.

 

Contents

Glossary

Digest at a glance

History of the Bill

Previous versions of the Bill

Purpose of the Bill

Structure of the Bill

Commencement of the Bill and retrospectivity

Background

Royal Commission into trade union governance and corruption

Committee consideration

Current Committee consideration
Previous Committee consideration
Senate Education and Employment Legislation Committee - 2013
Senate Education and Employment References Committee - 2014
Senate Education and Employment Legislation Committee - 2015
Senate Standing Committee for the Scrutiny of Bills
Consideration of the 2014 No. 2 Bill in 2015
Minister’s response to the concerns raised by the Committee in 2015 about the 2014 No. 2 Bill

Policy position of non-government parties/independents

The Opposition
The Australian Greens
Other non-government parties and independents
Nick Xenophon Team
One Nation
Senators Hinch, Lambie and Leyonhjelm
Senator Hinch
Senator Lambie
Senator Leyonhjelm
Ms McGowan, Mr Katter and Mr Wilkie

Position of major interest groups

Australian Industry Group
Australian Chamber of Commerce and Industry
Other employer groups
Australian Council of Trade Unions
Other unions

Financial implications

Statement of Compatibility with Human Rights

Parliamentary Joint Committee on Human Rights
The right to freedom of association
The right to a presumption of innocence

Key issues and provisions

Increased disclosure requirements
Remuneration disclosure by officers
Remuneration and benefits disclosure by organisations
Material personal interests of officers
Exceptions to the duty to disclose material personal interests
Restrictions on officers taking part in decisions related to a material personal interest
Standing notice of material and non-material interests
Annual officer and related party disclosure reporting
Certain payments made by an organisation or branch to related parties or declared persons
Alternative disclosure arrangements
Civil and criminal penalty provisions
Civil penalty provisions and serious contraventions
Strict liability offences
Criminal offence provisions
Coercive investigatory powers
Current investigatory powers
Investigatory powers of ASIC
Proposed new coercive investigatory powers
Establishment of new regulator
Appointment of the Commissioner
Method and term of appointment
Remuneration of Commissioner
Termination of appointment
Staff and consultants of the ROC
Ministerial directions and reporting requirements
Ministerial directions
Reporting requirements
Functions and role of the Commissioner
Register of registered organisations
Cancellation of registration of an organisation
Regulating amalgamations and withdrawals
Federal Court enforcement of directions contraventions
Oversight and conduct of elections
Financial reporting oversight
Determination of reporting units
Financial reporting compliance investigations
Disqualification of officials

Other provisions

Financial training requirements for officers
Technical amendments to civil penalty provisions
Information sharing
Evidentiary use of certain materials
Financial management of the ROC
Other administrative functions
Transitional provisions

Concluding comments

Appendix A

Table 1: Royal Commission into Trade Union Governance and Corruption recommendations relevant to the Bill

Appendix B

Table 2: comparison of officer disclosure

Appendix C

Table 3: civil penalty provisions

Appendix D

Table 4: serious contravention civil offence provisions

Appendix E

Table 5: strict liability civil offence provisions

Appendix F

Table 6: criminal offence provisions

Appendix G

Table 7: comparison of criminal offences. 55

Appendix H

Table 8: comparison of coercive power provisions

 

Date introduced:  31 August 2016
House:  House of Representatives
Portfolio:  Employment
Commencement: Schedule 1 commences on a day to be fixed by Proclamation, or immediately before Schedule 2 commences; Schedule 2 commences 1 July 2014.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2016.

 

Glossary

Abbreviation or acronym Definition
2014 Bill Fair Work (Registered Organisations) Amendment Bill 2014
2014 No. 2 Bill Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]
ASIC Australian Securities and Investment Commission
ASIC Act Australian Securities and Investment Commission Act 2001
Commissioner Registered Organisations Commissioner
Corporations Act Corporations Act 2001
Fair Work Act Fair Work Act 2009
FWC Fair Work Commission
FWO Fair Work Ombudsman
No. 3 Bill Fair Work (Registered Organisations) Amendment Bill 2014 [No. 3]
Original Bill Fair Work (Registered Organisations) Amendment Bill 2013 
ORPDS Officer and Related Party Disclosure Statement
PJCHR Parliamentary Joint Committee on Human Rights
RCTUGC Royal Commission into Trade Union Governance and Corruption
Registered Organisations Act Fair Work (Registered Organisations) Act 2009
ROC Registered Organisations Commission
The Bill Fair Work (Registered Organisations) Amendment Bill 2014 as introduced to the House of Representatives on 31 August 2016

 

Digest at a glance

The Bill is framed partly as a response to widely publicised misconduct by officers of the Health Services Union and other evidence of poor governance of some trade unions uncovered by the Royal Commission into trade union governance and corruption. The stated aim of the Bill is to improve the standard of governance of registered organisations and deter wrongdoing by amending the Fair Work (Registered Organisations) Act 2009 to:

  • Create a Registered Organisations Commissioner, and a Registered Organisations Commission, within (but independent of) the Office of the Fair Work Ombudsman to supervise, monitor and regulate the conduct of employer and employee organisations registered under the Fair Work (Registered Organisations) Act 2009.
  • Strengthen requirements for financial accounting, transparency and disclosure by officers of registered organisations of material personal interests.
  • Provide coercive investigatory powers to the Registered Organisations Commissioner.
  • Increase civil penalties and introduce criminal offences for breaches of officers’ duties, and create new offences in relation to the conduct of investigations under the Fair Work (Registered Organisations) Act 2009.

As the Bill is identical to two previous Bills passed by the House of Representatives and rejected by the Senate, it was one of the Bills that ‘triggered’ the 2016 double dissolution election. Subsequently, if the Bill is again rejected by the Senate (or passed with amendments to which the House of Representatives will not agree) the Constitution provides that the Bill may be passed by a joint sitting of both Houses if it is supported by an absolute majority of the total number of members and senators.

Stakeholders having divergent views on the Bill, with trade unions generally opposed to the Bill and employer organisations generally supportive of it.

 

History of the Bill

The procedural history of the Bill is as follows:

  • 14 November 2013: the Fair Work (Registered Organisations) Amendment Bill 2013 (the original Bill) introduced to the House of Representatives. Passed without amendment on 12 December 2013[1]
  • 12 December 2013: the original Bill introduced to the Senate. The Government tabled amendments to give effect to the recommendations of the Senate Education and Employment Legislation Committee. The Bill was negatived on 14 May 2014
  • 19 June 2014: the original Bill reintroduced to the House of Representatives as the Fair Work (Registered Organisations) Amendment Bill 2014 (the 2014 Bill).[2] Amendments to give effect to the recommendations of the Senate Education and Employment Legislation Committee report were moved by the Government on 15 July 2014 and the 2014 Bill passed the House with those amendments that same day[3]
  • 17 July 2014: the 2014 Bill (as amended by the House of Representatives) introduced to the Senate. Negatived on 2 March 2015[4]
  • 19 March 2015: the Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2] (the 2014 No. 2 Bill)[5] which was identical to the 2014 Bill as passed by the House of Representatives on 15 July 2014, was introduced to the House of Representatives.[6] Passed the House of Representatives on 25 June 2015
  • 25 June 2015: the 2014 No. 2 Bill tabled in the Senate. Negatived on 17 August 2015.[7] This constituted a double dissolution trigger under section 57 of the Constitution. The 2014 Bill was one of the three Bills listed in the Governor-General’s proclamation dissolving both Houses of Parliament on 9 May 2016[8]
  • 18 April 2016: the Fair Work (Registered Organisations) Amendment Bill 2014 [No. 3] (the No. 3 Bill), which was identical to the 2014 No. 2 Bill introduced to the House of Representatives, but lapsed at the dissolution of the 44th Parliament[9]
  • 31 August 2016: the Fair Work (Registered Organisations) Amendment Bill 2014 (the Bill) introduced to the House of Representatives.[10]

The Bill is identical to the 2014 Bill as passed by the House of Representatives and the 2014 No. 2 Bill. As the 2014 Bill was one of the Bills that ‘triggered’ the 2016 double dissolution election, if the House of Representatives passes the Bill, but it is again rejected by the Senate, or passed with amendments to which the House of Representatives will not agree, section 57 of the Constitution provides that the Governor-General may convene a joint sitting of both Houses. At that sitting the Bill will be taken to have been passed by both Houses of Parliament if it is supported by an ‘absolute majority’ of the total number of members and senators.[11]

Both the original Bill and 2014 Bill were considered by a number of Parliamentary committees. The recommendations of those Committees are examined under the heading ‘Committee consideration’.

As the Bill is identical to the 2014 No. 2 Bill, this Bills Digest is a revised version of a Bills Digest prepared for that Bill, updated to:

  • examine various Parliamentary committee reports not examined in previous Bills Digests and
  • examine the recommendations made by the Royal Commission into Trade Union Governance and Corruption (RCTUGC) that are relevant to the Bill.

Previous versions of the Bill

As set out above, the Bill is a replica of the 2014 No. 2 Bill. Readers are advised to refer to Bills Digest No. 24, 2013–14,[12] Bills Digest no. 98 of 2013–14,[13] and Bills Digest No. 91, 2014–15[14] which contain detailed analyses of the original Bill, the 2014 Bill and the 2014 No. 2 Bill. However, for ease of reference a brief outline of the Bill is provided below.

Purpose of the Bill

The purpose of the Bill (like the 2014 No. 2 Bill) is to amend the Fair Work (Registered Organisations) Act 2009 (the Registered Organisations Act)[15] to:

  • create a Registered Organisations Commissioner (Commissioner), and a Registered Organisations Commission (ROC), within (but independent of) the Office of the Fair Work Ombudsman (FWO) to supervise, monitor and regulate the conduct of employer and employee organisations registered under the Registered Organisations Act
  • strengthen requirements for financial accounting, transparency and disclosure by officers of registered organisations of material personal interests
  • provide stronger coercive investigatory powers for the Commissioner (with fewer limitations on their use) and
  • increase civil penalties and introduce criminal offences for breaches of officers’ duties, and create new offences in relation to the conduct of investigations under the Registered Organisations Act.

Structure of the Bill

The Bill has two Schedules. Schedule 1 creates the positon of the Commissioner, and deals with consequential amendments, including some to the Fair Work Act 2009.[16] Schedule 2 deals with the increased disclosure requirements, investigation powers and penalties.

Commencement of the Bill and retrospectivity

Schedule 1 of the Bill will commence on a day to be fixed by Proclamation or immediately before Schedule 2 commences. Schedule 2 will commence on 1 July 2014. As a result, if the Bill is passed unamended by both Houses or via a joint sitting, then the amendments in Schedule 2 (related to increasing the disclosure requirements for officers of registered organisations, investigatory powers and penalties) and possibly also those made by Schedule 1, would operate retrospectively from 1 July 2014.

For the 2014 No. 2 Bill to serve as a double dissolution trigger, it was necessary for it to be identical to the 2014 Bill. This would appear to be the reason for the retrospective commencement provisions, because if they had differed between the 2014 Bill and 2014 No. 2 Bill then, arguably, the 2014 No. 2 Bill would not have been able to act as a double dissolution trigger.[17]

Background

The original Bill was introduced partly in response to widely publicised misconduct by officers of the Health Services Union. That misconduct has been prosecuted in civil and criminal courts. In 2012, the Registered Organisations Act was amended by the Fair Work (Registered Organisations) Amendment Act 2012 to improve the Fair Work Commission’s investigative function and to increase penalties for various offences.

Notwithstanding this, in light of further evidence of poor governance of some trade unions uncovered by the RCTUGC, the Bill seeks to ‘improve the standard of governance of registered organisations and deter wrongdoing’.[18] Further background information on the Bill is set out on pages 5 to 8 of Bills Digest No. 24, 2013–14.[19]

Royal Commission into trade union governance and corruption

In February 2014, the then Prime Minister, Tony Abbott, announced that he would be:

... recommending to the Governor-General, Her Excellency Ms Quentin Bryce AC CVO, the establishment of a Royal Commission to inquire into alleged financial irregularities associated with the affairs of trade unions.[20]

In March 2014, the Governor-General issued Letters Patent to establish the Royal Commission into Trade Union Governance and Corruption (RCTUGC) with the terms of reference outlined by the then Prime Minister in February 2014, and appointed former Justice of the High Court, Dyson Heydon as Royal Commissioner.[21] Relevantly to the Bill, the terms of reference included examining the governance arrangements of employee associations and adequacy of laws relating to those associations, in particular in relation to:

  • their financial management (including whether members are informed about the financial management of the organisation and are able to influence or exercise control over those matters)
  • the accountability of officers of employee associations (that is, trade unions) and whether members have the opportunity to hold officers accountable for wrongdoing and
  • the adequacy and effectiveness of existing systems of regulation and law enforcement, and, in particular, the means of redress available to employee associations and their members who suffer a detriment as a result of inappropriate financial management of lack of accountability mechanism.[22]

As summarised by Dyson Heydon, the terms of reference required the RCTUGC to investigate ‘two categories of issue: (1) relevant entities (also known as slush funds); and (2) certain adverse conduct on the part of union officials’[23] and make appropriate law reform recommendations.

As a result of its investigations, the RCTUGC made a number of recommendations in relation to the regulation of employee associations.[24] The table in Appendix A outlines the relevant recommendations made by the RCTUGC and whether the Bill, as drafted, would fulfil those recommendations.

Committee consideration

Current Committee consideration

On 31 August 2016, the Senate Standing Committee for Selection of Bills referred the Bill to the Senate Education and Employment Legislation Committee for inquiry.[25] Details of the inquiry are available at the Committee's webpage.[26] The Education and Employment Legislation Committee reported on 14 October 2016, recommending that the Senate pass the Bill.[27] The Labor and Greens Senators on the Committee issued separate dissenting reports, recommending that the Senate reject the Bill.[28]

Previous Committee consideration

The Bill has been considered by the following Parliamentary Committees:

  • the Senate Education and Employment Legislation Committee (in 2013 and 2015)
  • the Senate Standing Committee for the Scrutiny of Bills (in 2013, 2014 and 2015)
  • the Senate Education and Employment References Committee (in 2014)
  • the Parliamentary Joint Committee on Human Rights (in 2013, 2014, 2015 and 2016).

These are examined below.

Senate Education and Employment Legislation Committee - 2013

The original Bill was referred to the Senate Education and Employment Legislation Committee for inquiry and report by 2 December 2013. Details of the inquiry are at the inquiry’s web page.[29]

The Committee’s report recommended changes to the material interest disclosure requirements proposed by the Bill so that:

  • material personal interest disclosures should only be required to be made by those officers whose duties relate to the financial management of the organisation and that exclusions from the requirements be included, along the lines of the exclusions in the Corporations Act
  • there be a threshold for disclosure of payments and
  • the Commissioner be able to grant exemptions from the training requirements where officers could demonstrate that they had the required knowledge.

These recommendations respond to some of the issues raised in submissions to the inquiry, which are discussed in Bills Digest 24, 2013–14.[30]

Labor Senators, in a dissenting report, recommended that the original Bill not be passed.[31] They suggested that ‘the legislation seeks to diminish rank and file participation within the unions, and discourage union activity.’[32]

The Government tabled a series of amendments and a supplementary Explanatory Memorandum to the original Bill giving effect to the Senate Education and Employment Legislation Committee recommendations.[33] Viewed as a whole, the Government’s proposed amendments were significant and sought, amongst other things, to introduce limitations and exceptions to the material disclosure regime proposed by the original Bill which were modelled on those provided by the Corporations Act that apply to directors.

Senate Education and Employment References Committee - 2014

The Senate Education and Employment References Committee reported on the original Bill on 27 March 2014. Details of the inquiry are at the inquiry’s web page.[34] It recommended that the original Bill not be passed.[35] Coalition Senators, in a dissenting report, rejected the need for that inquiry, and stood by the recommendations of the Senate Education and Employment Legislation Committee report—that the original Bill be amended and passed.[36]

Senate Education and Employment Legislation Committee - 2015

The 2014 No. 2 Bill was referred to the Senate Education and Employment Legislation Committee for inquiry and report by 11 August 2015. Details of the inquiry are at the inquiry’s web page.[37] The Committee recommended that the Bill be passed.[38]

Labor Senators, in a dissenting report, recommended that the 2014 No. 2 Bill not be passed.[39] Likewise, the Greens in a Dissenting report, also recommended that the 2014 No. 2 Bill not be passed.[40]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills reported on a number of occasions on the previous Bills in 2013, 2014, 2015 and 2016. This Digest focuses on comments made in relation to the 2014 No. 2 Bill, which is identical to the current Bill. Readers should refer to Bills Digest No. 24, 2013–14, Bills Digest no. 98 of 2013–14, and Bills Digest No. 91, 2014-15 for a detailed examination of previous comment made by Senate committees in relation to the original Bill and 2014 Bill.[41]

Consideration of the 2014 No. 2 Bill in 2015

The Senate Standing Committee for the Scrutiny of Bills reported on the 2014 No. 2 Bill in Alert Digest No. 4 of 2015, and again raised concerns broadly reflective of those expressed in relation to the original Bill in Alert Digest No. 9 of 2013 and related reports.[42] Briefly those concerns related to:

  • the extent of similarities between the proposed offences and offences under the Corporations Act
  • whether the proposed penalties are in any instance higher than in relation to offences under the Corporations Act and
  • whether the increased penalty for the offence of failing to comply with a notice to attend or produce (proposed subsection 337(1)) is higher than other similar offences, and the justification for the proposed approach. (The maximum penalty is increased from 30 penalty units to 100 penalty units or imprisonment for two years (or both)). [43]

The Committee also noted its concerns that the provisions mentioned above may be considered to trespass unduly on personal rights and liberties.[44] In addition the Committee also raised concerns relating to the imposition of strict liability offences, the reversal of the onus of proof, abrogation of the privilege against self-incrimination and broadening the scope of admissible evidence against defendants.[45]

After considering the Minister’s response to its concerns the Committee requested that the key information provided by the Minister be included in the Explanatory Memorandum, and left the question of whether the relevant parts of the original Bill were appropriate to the Senate as a whole.[46] In relation to the abrogation of the privilege against self-incrimination the Committee noted ‘the safeguards outlined by the Minster, but ... remains concerned about the requirement to claim the privilege or lose the ability to rely on it.’[47]

In relation to the 2014 No. 2 Bill, the Committee noted its disappointment that its request for the inclusion of further information in the Explanatory Memorandum had not been agreed to by the Government.[48](Requests had been made in a number of previous reports).[49]

Minister’s response to the concerns raised by the Committee in 2015 about the 2014 No. 2 Bill

The Minister’s response to the concerns raised by the Committee in relation to the 2014 No. 2 Bill was included in the Committee’s Fifth Report of 2015.[50] On the concerns raised by the Committee, the Minister pointed to the information previously provided to the Committee.[51] The Minister did not directly respond to the Committee’s request for further information about certain provisions to be included in the Explanatory Memorandum, with the Minster stating:

As the issues raised regarding the Bill have been thoroughly scrutinised by the Committee in relation to previous versions of the Bill introduced in 2013 and 2014, I rely on my earlier correspondence with the Committee on these issues.[52]

In response, the Committee stated that it was:

... unclear why the Minister is not taking the opportunity to ensure that important information is included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (section 15AB of the Acts Interpretation Act 1901). The Committee notes that amendments to explanatory memoranda are usually able to be implemented without affecting the timing of parliamentary consideration of the Bill.[53]

Policy position of non-government parties/independents

The Opposition

The ALP opposes the Bill.[54] In 2015, Labor argued that the evils which the Bill was supposed to address had in fact been addressed in the Fair Work (Registered Organisations) Amendment Act 2012, and that legislation was hardly bedded down.[55] Labor considered that the Bill imposed an unacceptable regulatory burden, partly because it cut across the earlier Act. The proposal to regulate registered organisations like corporations was ‘ideologically-driven nonsense’ because the two kinds of organisation were ‘fundamentally different’.[56] Further, the ALP argued that penalties in the Bill in fact exceeded those for officers of corporations. The provisions of the Bill would make it very hard to recruit people to positions, often voluntary, in registered organisations.[57]

The Australian Greens

The Australian Greens oppose the Bill.[58] Australian Greens Senators argued that the purposes of corporations were different from the purposes of registered organisations:

Corporations law requires directors to act in the best interests of their shareholders and to continue to make a profit. Unions, on the other hand, exist to advance the interests of the people they represent.[59]

Other non-government parties and independents

Nick Xenophon Team

Senator Xenophon voted for the 2014 Bill in the Senate in 2015.[60] During his contribution to the second reading debate, Senator Xenophon stated:

On balance, I support this legislation. I think it will overall enhance the accountability of unions to their members and I think the overwhelming number of union representatives in this country would welcome that.[61]

It does not appear that this position has changed since the election, suggesting that the Nick Xenophon Team Senators and House of Representatives Member, Rebekha Sharkie, may support the Bill.

One Nation

Recent media reports suggest that at the time of publication of this Digest, One Nation was considering supporting the Bill.[62]

Senators Hinch, Lambie and Leyonhjelm

Senator Hinch

Senator Derryn Hinch’s position on the Bill is not known at this time.[63]

Senator Lambie

Senator Jacqui Lambie has opposed all versions of the Bill.[64] At the time of the Senate vote on the 2014 Bill, Senator Lambie pointed out that corruption in corporations should be a higher priority for the Government, and that the Bill pre-empted the RCTUGC. She expressed concerns about the limitation on the right to silence imposed by the Bill.[65]

Senator Leyonhjelm

Senator David Leyonhjelm voted in favour of the 2014 No. 2 Bill in 2015.[66] Whilst there is no indication that since the election this position has changed, media reports suggest his support for the Bill may be conditional on the Government supporting changes to gun laws and the Racial Discrimination Act 1975.[67]

Ms McGowan, Mr Katter and Mr Wilkie

Ms Cathy McGowan voted against the 2014 No. 2 Bill in June 2015.[68]

Mr Katter did not vote on the original Bill in 2013 or the 2014 No. 2 Bill in June 2015.[69] His position on the Bill is not clear.

Mr Wilkie voted against the original Bill in December 2013 and the 2014 No. 2 Bill in June 2015.[70]

Position of major interest groups

Submissions to the Senate Committee inquiries examined above reveal a good deal of unease about the Bill.[71] For example, almost all the submissions to the inquiry into the original Bill by the Senate Standing Committee on Education and Employment in 2013 agreed that a high degree of accountability should be required of registered organisations, but many took issue with the specific provisions of the Bill and its timing.

Australian Industry Group

The Australian Industry Group (AiG) supports the Bill.[72] The AIG noted:

Unlike most other peak councils, Ai Group is a registered organisation in its own right... Given the unacceptable and unlawful conduct that was uncovered by the Heydon Royal Commission in respect of some (but not all) unions, it is evident that the existing laws which regulate registered organisations are inadequate. Registered organisations which comply with the law and have appropriate standards of governance have nothing to fear from the RO Bill.[73]

The AiG noted that it has previously ‘expressed a number of practical concerns about the original version of the Bill’ and that whilst it had supported the objectives of the Bill ‘we were keen to ensure that the regulatory burden imposed on registered organisations and their officers was reasonable’.[74] The AiG noted that the Bill has been amended in a manner consistent with recommendations made by the Senate Education and Employment Committee including:

  • providing exclusions from the disclosure requirements based on those in the Corporations Act
  • providing a threshold for financial disclosure obligations
  • providing that material personal interest disclosures will only be required by officers whose duties relate to the organisation’s financial management; and
  • allowing the Commissioner to grant exemptions from the statutory training requirements for officers if an individual can demonstrate significant knowledge in the relevant areas.[75]

As a result, the AiG ‘supports the RO Bill, as amended, and urges the Committee to recommend that the Bill is passed.’[76]

Australian Chamber of Commerce and Industry

The Australian Chamber of Commerce and Industry (ACCI) supports the Bill in general terms.[77] In its submission to the Senate Standing Committee on Education and Employment in September 2016, it referred to its submissions to previous inquiries into different version of the Bill, and also on the Fair Work (Registered Organisations) Bill 2012.

The ACCI noted a number of concerns about the Bill including:

  • whilst responding to notorious and reprehensible conduct is necessary ‘it should not be lost that the vast majority of employees and officers of registered organisations comply with their obligations and work diligently and ethically in advancing the interests of their members’
  • office holders in some registered organisations are volunteers, despite taking on significant responsibilities pursuant to the detailed regulatory requirements under the Act and organisation’s rules
  • while some registered organisations and their branches have significant financial resources ‘a significant portion do not’ and hence smaller registered organisations may be impacted by the regulatory burden proposed by the Bill ‘if they are required to direct additional resources toward compliance obligations’
  • proposed reforms aimed at strengthening governance obligations ‘should be implemented in a way that is cognisant of the compliance obligations already imposed upon registered organisations, particularly smaller ones that have not been the subject of recent attention’
  • enforcement measures relating to any strengthened governance obligations should be ‘appropriately targeted, adequately resourced and must not adversely impact in a disproportionate manner, those registered organisations that endeavour to do the right thing’.[78]

Despite the above concerns, the ACCI concluded that it ‘supports the policy intent underpinning the Bill as recent high profile cases of inappropriate conduct by unions suggests that registered organisations should be held to higher standards of accountability in relation to their conduct and use of members’ funds’.[79]

Other employer groups

In relation to the original Bill, the Australian Community Services Employers Association (ACSEA) and the Australian Public Transport Industrial Association both express disquiet about the regulatory burden the Bill would impose, noting that they are quite small organisations – although ACSEA supported the original Bill in principle. ACSEA also stated that the requirement in the original Bill for the disclosure of all material interests exceeded the requirements of the Corporations Act, and could act as a disincentive to standing for office in an association.[80]

In relation to the current Bill, the Master Builders Association calls for the inclusion of a ‘fit and proper person’ test for office holders. It believes that the remuneration only of elected office bearers, not of appointed managers, should be disclosed.[81]

The Australian Mines and Metals Association (AMMA) argues that registered organisations should have no special status but should be regulated in the same way as corporations.[82] However, it welcomed the amended Bill and went on to say:

While AMMA would primarily like to see unions and employer organisations being responsible to ASIC as is the case for companies, the ROs Bill’s proposed establishment of an independent Registered Organisations Commission is supported to the extent that it would harness greater expertise and independence than currently exists within the Fair Work Commission. With that in mind, AMMA supports the Bill’s creation of the new commission.[83]

Australian Council of Trade Unions

In its submission to the Senate Committee inquiry, the Australian Council of Trade Unions (ACTU) expressed the view that ‘the reasons advanced in support of the need for reform are unsound’.[84] The ACTU noted that it had made previous submissions to inquiries into different versions of the Bill and relied on those submissions to ‘call for this Bill to be emphatically rejected’.[85]

In its submission to the Senate Education and Employment Legislation Committee inquiry into the original Bill, the ACTU noted that it regarded the new civil penalties as excessive, and in many cases beyond those in the Corporations Act. [86]

In relation to the proposed criminal offences contained in the Bill, the ACTU notes:

... the availability of a greater number of criminal offences to charge people with for the same conduct doesn't mean much at all. We have made the case in previous submissions that specialised statutory offences for conduct that is already punishable by the criminal law is an entirely unnecessary addition to the Act. We have also pointed out that the corresponding criminal offence provisions in the Corporations Act have been roundly criticized and indeed the Commonwealth's own technical advisory committee has recommended that they be repealed... we have, on numerous occasions, drawn attention to the fact that under the revised framework proposed in the Bill, unionists (but not company directors) can be jailed if they refuse to answer a question that is not relevant to an investigation.[87]

The ACTU also noted in its submission on the original Bill that there were several possible incentive effects of the Bill. Whereas for unions, registration under the Registered Organisations Act gives them protection for industrial action, employer associations do not need this as it is the individual employer who takes action. Therefore, employer associations are likely simply to de‑register. It also observes that there is a worrying incentive for the ROC to raise money from penalties. Finally, it noted that some of the coercive powers apply to all members, and are therefore a disincentive to joining a union.[88]

Another concern of the ACTU’s was that the power of the Commission, to ‘do all things necessary or convenient’ for its purposes are too expansive for a regulatory body, and in particular are broader than the powers of the Australian Securities and Investments Commission (ASIC).[89] This is a point of concern also raised by the Parliamentary Joint Committee on Human Rights.[90] The ACTU was also concerned that the investigative functions, which might appropriately be a vehicle for improving management of not-for-profit bodies, are focused on prosecution and enforcement.[91] The ACTU noted that in relation to the investigatory framework proposed by the Bill:

... although the revised investigation framework contained in this Bill certainly takes up many more pages than the existing one, it doesn't add anything legitimate to the information gathering powers that plainly have seen the HSU matters thoroughly investigated and pursued (and which have since been strengthened in any event). It is clear that the drafters of the legislation were under an instruction to try and adopt and adapt the ASIC framework "because it applies to corporations and they should be the same", without any consideration being given as to what, if any, improvements actually needed to be made.[92]

Finally, the ACTU expressed the view that the Bill ‘is not about regulating the equivalents of Chief Executives or corporate boards. It is about regulating the individuals who choose, often on a voluntary basis, to commit their time to their union or employer association - even those who are only required to attend only one meeting a year’ and hence, taken as a whole, the Bill would ‘make people less inclined to participate in registered organisations’ and called upon the Government to ‘accept that it is the orthodox view that weakening participation in unions is poor economic policy’[93] and therefore to not proceed with the Bill.

Other unions

Most of the other union submissions support the ACTU submission and expand on similar concerns.[94] The Maritime Union of Australia expressed particular concern about the power of the Minister to direct the Commission.[95]

Financial implications

The Regulation Impact Statement prepared by the Department of Employment asserts that the budgetary cost to the Government of the amendments proposed by the Bill is nil.[96]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.

The Bill engages with the right to freedom of association, the right to the presumption of innocence, and the prohibition on arbitrary interference with privacy and reputation. The Government considers that the Bill is compatible because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.[97] In relation to the human rights implications of increasing the civil penalty provisions, the Government, citing the Parliamentary Joint Committee on Human Rights’ (PJCHR) Ninth Report of the 44th Parliament, states that the PJCHR:

... has previously considered that amendments in the Bill that narrow existing disclosure requirements are likely to mean that the civil penalty provisions will not be criminal for the purposes of human rights law.[98] (emphasis added).

The PJCHR in fact stated:

The committee considers that unless amendments are made to narrow the disclosure requirements of the 2014 Bill, the civil penalty provisions may be considered 'criminal' for the purposes of human rights law and require the rights guaranteed by article 14 of the ICCPR [International Covenant on Civil and Political Rights].[99] (emphasis added).

Consideration of the previous Bills by the PJCHR is detailed below.

Parliamentary Joint Committee on Human Rights

The PJCHR has considered the previous versions of the Bill in a number of reports.[100] In relation to the 2014 No. 2 Bill, after considering responses from the Minister, the PJCHR noted that ‘as a result of the changes incorporated into the ... Bill most of the Committee's previous concerns have been addressed’.[101] However, it remained concerned about the Bill’s compatibility with the following human rights:

  • the right to freedom of association[102] and
  • the right to a fair trial and fair hearing (including the presumption of innocence and the right against self-incrimination).[103]

These issues are examined below.

The right to freedom of association

The PJCHR noted that the right to freedom of association protects the right of all persons to group together voluntarily for a common goal and to form and join an association, including trade unions.[104]

The PJCHR was concerned that the proposed disclosure regime in relation to material personal interests as set out in the original Bill may ‘have been broader than was strictly necessary’ to achieve the objective of better governance of registered organisations ‘because it was not limited to officers who were responsible for the financial management of the organisation, and would also apply to officers who were volunteers’.[105] However, after considering the reductions to the scope of disclosure obligations to paid officers and the disclosure of material personal interests to officers whose duties relate to financial management provided for in the Bill, the PJCHR concluded:

In light of these changes, the committee considers that the disclosure requirement appears to be a proportionate means of achieving the stated objective of achieving better governance of registered organisations. The disclosure requirement appears to be a permissible limitation on the right to freedom of association and is accordingly likely to be compatible with this right.[106]

The right to a presumption of innocence

The PJCHR noted that generally for a law to be consistent with the presumption of innocence, it should require the prosecution to prove each element of a criminal offence beyond reasonable doubt. As a result, where an offence provision requires the defendant to carry an evidential or legal burden of proof with regard to the existence of some fact, the presumption of innocence will be undermined. This is because a defendant's failure to discharge the burden of proof may permit their conviction despite reasonable doubt as to their guilt.[107]

Whilst it is possible for offences to reverse the legal or evidential burden to a defendant, such offences must pursue a legitimate aim and be reasonable, necessary and proportionate means of achieving the aims of the law in question.[108]

The PJCHR noted that proposed section 337AC creates an offence for concealing documents relevant to an investigation which imposes a reverse legal burden on the defendant, and carries a maximum penalty of five years imprisonment. Proposed subsection 337AC(2) provides that it is a defence if 'it is proved that the defendant intended neither to defeat the purposes of the investigation, nor to delay or obstruct the investigation, or any proposed investigation ...' (emphasis added). The defendant bears the legal burden of proving this intention.

The PJCHR noted that the ‘statement of compatibility does not identify section 337AC as engaging and limiting the right to be presumed innocent’.[109] It also noted that it had sought clarification from the Minister as to why a less rights restrictive alternative, such as where the defendant bore an evidentiary (but not legal) burden, would not be sufficient.[110] The PJCHR suggested that reversing the evidentiary (but not legal burden) would:

... require the defendant to provide some evidence (for example a statement under oath) regarding intention, but would not require the defendant to prove the absence of intention on the balance of probabilities.[111] (emphasis added).

After considering the Minister’s response to the above concerns, the PJCHR concluded that whilst it accepted the need for a strong regulatory framework for registered organisations:

... the Minister's response did not directly address the committee's question as to the proportionality of the measure, and specifically whether the imposition of a less rights restrictive evidential burden would be sufficient to achieve the stated legitimate objective in this case.[112]

The PJCHR noted that its ‘usual expectation where it has raised concerns in relation to a measure in a Bill’ is that any subsequent re-introduction of such a measure should be accompanied by a statement of compatibility addressing the issue previously identified.[113] The PJCHR concluded that it ‘considers that the measure may be incompatible’ with the right to be presumed innocent.[114]

Key issues and provisions

Increased disclosure requirements

Schedule 2 of the Bill contains a number of provisions that increase the disclosure requirements of registered organisations and their officers. The Coalition’s 2013 election Policy for Better Transparency and Accountability of Registered Organisations’ (Policy) foreshadowed that these would be modelled on existing provisions in the Corporations Act.[115] The Coalition’s 2016 election policies foreshadowed the re-introduction of the Bill and increased disclosure requirements for registered organisations.[116]

The new disclosure obligations imposed on registered organisations and their officers are created by item 166 of Schedule 2, which inserts a new Part 2A into Chapter 9 of the Registered Organisations Act. Division 2 of Part 2A (proposed sections 293B to 293H) contains provisions about new disclosure obligations regarding:

  • remuneration paid to officers
  • material personal interests of officers and
  • payments made by an organisation or branch

These are discussed below.

Remuneration disclosure by officers

Proposed section 293B requires that each officer of an organisation or branch of an organisation must (either immediately or through a standing disclosure) disclose to the organisation any remuneration paid to them because they are a member of a Board, where they are a member of the Board:

  • only because they are an officer of the organisation or
  • because they were nominated for the position on the Board by the organisation, a branch or a peak council.[117]

Like the Corporations Act, the Bill does not specify any general minimum threshold amounts which trigger the disclosure requirement.[118] In addition, an officer must also disclose any remuneration paid to them by a related party of the organisation that is connected with the performance of their duties as an officer.[119] A failure to comply with the disclosure requirements attracts a maximum civil penalty for an individual of 100 penalty units (1,200 for a serious contravention) – that is, $18,000, or $216,000 for a serious contravention.[120] A ‘serious contravention’ is a contravention that materially prejudices the interests of the organisation or branch, or its members; materially prejudices the ability of the organisation or branch to pay its creditors; or is otherwise ‘serious’ (item 4 of Schedule 2). The Explanatory Memorandum to the Bill explains that the ‘serious contravention’ concept ‘was broadly modelled on subsection 1317G(1) of the Corporations Act and it is expected that similar principles would apply’.[121]

As a result of the amendment to paragraph 306(1)(a) of the Registered Organisations Act proposed by item 203 of Schedule 2, the maximum penalty for a body corporate for failure to comply with the disclosure requirements will be five times the amount specified for an individual (in this case, $90,000 or $1,080,000).[122]

Remuneration and benefits disclosure by organisations

Under the Corporations Act, the default position is that all financial reports for a financial year must comply with relevant accounting standards.[123] The relevant accounting standards impose requirements to disclose the:

  • salary of all directors in the financial statements (small proprietary companies are excepted)[124] and
  • the remuneration (which includes non-salary benefits) of all directors and at least five non-director executives with the greatest authority.[125]

Proposed section 293BC imposes a similar obligation on organisations (and branches of organisations) registered under the Registered Organisations Act, requiring them to disclose the identity of at least the five highest remunerated officers, their remuneration and the value (and form) of any non-cash benefits provided to them over the financial year. A failure to comply with the disclosure requirements attracts a maximum civil penalty of 100 penalty units (1,200 for a serious contravention).[126]

Material personal interests of officers

In his second reading speech to the original Bill, the then Minister for Education and Leader of the House, Christopher Pyne stated:

While the Corporations Act only requires directors to disclose conflicts of interest to their fellow directors, the government believes that officers of registered organisations should be required to disclose such matters to members, as they are elected by members to represent their interests. Members deserve to know who is in control of their money and where any conflicts might exist.[127]

Under the Corporations Act, the default position is that directors must disclose material personal interests in a matter that relates to the company’s affairs.[128] The term ‘personal interest’ has been interpreted by the courts as any situation where the director can derive a financial or other benefit.[129]

However, in the case of directors of public companies, the Corporations Act imposes additional disclosure requirements, requiring member approval before giving financial benefits to ‘related parties’.[130] Importantly, ‘related parties’ is defined as including certain relatives and the spouses of directors.[131]

In the case of incorporated associations, the level of disclosure required by office holders varies depending on the jurisdiction. The table in Appendix B outlines the disclosure requirements of office holders of incorporated associations, as a comparator to those proposed by the Bill for officers of registered organisations and provided for by the Corporations Act in relation to directors.

The comparison would suggest that whilst this type and level of disclosure is not new, it has previously been confined to public companies, which, generally speaking, include the companies listed on the Australian Stock Exchange. In the original Bill, the disclosure requirements would have required each officer (defined in section 6 of the Registered Organisations Act) to advise the organisation of any material personal interest in a matter that relates to the affairs of the organisation or branch that the officer, or a close relative of the officer, had or acquired.[132] However, the Bill has removed those requirements.

Instead, proposed section 293C will impose disclosure requirements on ‘disclosing officers’ of organisations akin to those imposed on directors of public companies. The Bill defines a disclosing officer as each officer of an organisation or branch ‘whose duties include duties that relate to the financial management of the organisation or branch’.

Disclosing officers of registered organisations (and branches) will be required to disclose to the organisation any material personal interest that they have or acquire in a matter that relates to the affairs of the organisation or branch.[133]

Proposed subsection 293C(5) provides that such disclosure must be made as soon as practicable after the interest is acquired and must provide details of the nature and extent of the interest and how it relates to the affairs of the organisation (or branch). In addition, proposed section 293D allows officers to provide standing notice of ‘an interest’, as is also provided for under the Corporations Act.[134]

Exceptions to the duty to disclose material personal interests

Proposed subsection 293C(4) provides a list of exceptions to the duty to disclose material personal interests, which largely (but not entirely) replicate those found in subsection 191(2) of the Corporations Act. A disclosing officer of an organisation or branch does not need to disclose a material interest if the interest:

  • arises because the disclosing officer is a member, or a representative of a member, of an organisation or a branch and the interest is held in common with the other members of the organisation or branch (replicates subparagraph 191(2)(a)(i) of the Corporations Act)
  • arises in relation to the officer’s remuneration as an officer of the organisation or branch (replicates subparagraph 191(2)(a)(ii) of the Corporations Act)
  • relates to a contract the organisation or branch is proposing to enter into that is subject to approval by the members of the organisation or branch and will not impose any obligation on the organisation or branch if it is not approved by the members (replicates subparagraph 191(2)(a)(iii) of the Corporations Act)
  • is in a contract, or proposed contract, with, or for the benefit of, or on behalf of, a related party of the organisation or branch that is a body corporate and arises merely because the officer is on the Board of the related party (replicates subparagraph 191(2)(a)(viii) of the Corporations Act) or
  • the officer has given a standing notice of the nature and extent of the interest under section 293D and the notice is still effective in relation to the interest (replicates paragraph 191(2)(d) of the Corporations Act).

However, subsection 191(2) of the Corporations Act also provides additional exceptions including where the interest arises merely because a director is a guarantor (or has given an indemnity or security) for all or part of a loan (or proposed loan) to the company, or where an interest relates to a director’s liability insurance contract.[135] The Bill does not replicate those exceptions.

Restrictions on officers taking part in decisions related to a material personal interest

The Bill prevents any officer with a material personal interest in a matter from being present during deliberations or taking part in any decision related to a matter in which they have a material personal interest, unless an exception applies.[136] Importantly proposed section 293F of the Bill will allow a disclosing officer to take part in discussions and decisions related to matters in which they have a material personal interest if:

  • the interest falls within one of the exceptions provided by proposed section 293C or
  • the members of the management committee of the organisation or branch without a material personal interest in the matter pass a resolution that sets out certain information about the matter (including the nature and extent of the interest) and allows the officer to participate in the decision. [137]

These are civil penalty provisions, which largely replicate section 195 of the Corporations Act, which provides that directors of public companies are prohibited from taking part in discussions about (and voting on) matters in which they have a material personal interest unless the interest falls under one of the exceptions to disclosure under section 191 or where the directors who do not have a material personal interest in the matter have passed a resolution that:

  • identifies the director, the nature and extent of the director’s interest in the matter and its relation to the affairs of the company and
  • states that those directors are satisfied that the interest should not disqualify the director from voting or being present.

Proposed section 293F will, therefore, impose on officers of registered organisations similar disclosure requirements to those imposed on directors of public companies.[138]

Standing notice of material and non-material interests

Proposed section 293D relates to both material and non-material interests. The nature and extent of interests disclosed must be ‘recorded in the minutes of the meeting of the committee of management’.[139] Proposed subsection 293D(6) provides that a standing notice of ‘an interest’ ceases to have effect when the particular interest ‘materially increases above that disclosed in the notice’.

Annual officer and related party disclosure reporting

Under proposed section 293J organisations and branches of organisations must produce an Officer and Related Party Disclosure Statement (ORPDS), which must be provided to members of the organisation or branch (as relevant) and a copy lodged with the Commissioner within six months of the end of the financial year.

A failure to produce the report, provide it to members or lodge it with the Commissioner attracts a civil penalty and may constitute a serious contravention.[140] The ORPDS of an organisation or branch must include details of the disclosures provided by the organisation or branch for the financial year under:

  • proposed section 293BC: certain remuneration and benefits provided by the organisation or branch
  • proposed section 293G: payments made to a related party or declared person or bodies and
  • proposed section 293H: disclosures made under the alternative disclosure arrangements approved by the Commissioner.[141]

The remuneration and benefits disclosure requirements are discussed above under the heading ‘Remuneration and benefits disclosure by organisations’. The disclosure of payments made to related parties and declared bodies and individuals and disclosures made under the alternative disclosure arrangements are discussed below.

Certain payments made by an organisation or branch to related parties or declared persons

Proposed section 293G provides that an organisation or branch must, through the ORPDS (discussed above) disclose to its membership details of each payment made in the last financial year to:

  • a related party of the organisation or a branch of the organisation or
  • to a declared person or body.[142]

No disclosure needs to be made where the related party is an officer of the organisation or branch and the payment was remuneration paid to them or was for the reimbursement of reasonable expenses incurred in the performance of their duties.[143]

The definition of a ‘declared person or body’ relates back to the disclosure, by an officer of an organisation, of material personal interests under proposed sections 293C or 293D. If the disclosed interest relates to, or is in, a person or body then that person or body is a ‘declared person or body’, until such time as the officer notifies the organisation or branch that they no longer have the declared material personal interest.[144]

The circumstances in which a payment does not need to be disclosed under proposed section 293G reflect the approach taken by the Corporations Act. Proposed subsections 293G(5A)–(5D) will exclude:

  • payments made on ‘arm’s length terms’ (replicates section 210 of the Corporations Act)[145]
  • payments that are individually and cumulatively for the financial year, less than or equal to an amount prescribed by the regulations[146] (replicates section 213 of the Corporations Act (currently the amount prescribed by the Corporations Regulations 2001 is $5,000))[147] and
  • payments given to a related party in their capacity as a member of the organisation or branch, where making the payment does not unfairly discriminate against other members of the organisation or branch (replicates section 215 of the Corporations Act).[148]

In effect, this disclosure requirement is similar to that imposed on public companies, with some differences. Public companies must not only report related party benefits, they must also seek shareholder approval before giving a financial benefit to a related party.[149]

As such, whilst the related party disclosure and reporting requirements proposed by the Bill are broadly similar to those imposed on public companies, the level of member scrutiny and accountability arguably remains lower. Shareholders of public companies have, through the approval process provided by sections 217 to 227 of the Corporations Act, direct input into the approval of related party benefits before they are provided. In contrast, whilst the Bill provides members of registered organisations similar levels of disclosure, it does not provide a requirement that related party benefits be approved by members before they are provided. As such, it could be argued that directors of public companies remain subject to more onerous governance and disclosure requirements than officers of registered organisations.

Alternative disclosure arrangements

Proposed section 293H, which provides that an organisation or branch that considers that it is ‘too onerous’ for it to comply with the proposed section 293G disclosure requirements through the ORPDS may apply to the Commissioner for permission to use an alternative disclosure arrangement.[150] In effect, proposed section 293H provides that for any alternative disclosure arrangement to be approved the organisation must (though its application) satisfy the Commissioner that:

  • special circumstances exist in relation to the organisation
  • the proposed alternative disclosure arrangement in relation to payments made by the organisation (given the special circumstances) is appropriate, whilst providing appropriate transparency
  • that the organisation has a history of high standards of financial accountability and control and
  • the proposed alternative disclosure arrangement is not otherwise contrary to law.[151]

A decision by the Commissioner to grant the application remains in force for five years.[152] The Commissioner’s decision cannot be appealed by the organisation.[153] The Commissioner can revoke the alternative disclosure arrangement in certain circumstances.[154]

Even if the application is approved however, the organisation must still comply with proposed section 293J in relation to other elements of the ORPDS—this includes proposed subsection 293J(3) which provides that details of disclosures made under proposed section 293H must be included in an organisation or branch’s ORPDS.

As neither the Bill, its Explanatory Memorandum or the Minister’s second reading speech provide a definition or description of the types of ‘special’ circumstances that would satisfy the criteria set out in proposed section 293H, nor how the provision is intended to operate, it is difficult to foreshadow how the section would be applied in a practical sense.

Civil and criminal penalty provisions

Civil penalty provisions and serious contraventions

A large number of items in Schedule 2 of the Bill increase existing civil penalties in provisions contained in the Registered Organisations Act.[155] The table at Appendix C outlines each civil penalty offence, the old amount, new amount and any increase. In addition to the increase in civil penalties, item 4 of Schedule 2 of the Bill introduces the concept of ‘serious contraventions’. This concept is linked to the increased civil penalties. A serious contravention is defined as contravention of a civil penalty provision that:

  • materially prejudices the interests of the organisation, branch or its members
  • materially prejudices the ability of the organisation or branch to pay its creditors or
  • is serious.

The wording of the definition of serious contravention contained in the Bill does not materially differ from those found in paragraphs 1317G(1)(b) and 1317G(1A)(c) of the Corporations Act, which set out circumstances in which a court may impose a higher level penalty.[156] The table titled ‘serious contraventions’ located in Appendix D outlines the civil penalties to which the increased penalties for serious contraventions apply.

Appendix D Strict liability offences

Item 230 in Schedule 2 of the Bill introduces a number of new strict liability offences. These are set out in the table located in Appendix E of the Bills Digest. The offences relate to a person‘s failure to comply with a requirement made of them relating to the conduct of an investigation by the Commissioner. Under strict liability, a defence of reasonable excuse is available, but the defendant will bear the evidentiary burden in establishing the reasonableness of their conduct.[157]

According to the Explanatory Memorandum, strict liability offences are appropriate in this context as:

...it is more practical for the accused to prove that they are not in breach of the requirement than for the prosecution to disprove that the person does not have a reasonable excuse.[158]

After considering the Minister’s response, the Senate Scrutiny of Bills Committee concluded left the determination of the appropriateness of the proposed strict liability offences to the Senate as a whole, noting that they ‘may be considered to trespass unduly on personal rights and liberties’.[159]

Criminal offence provisions

Schedule 2 proposes a number of new criminal offence provisions. These are described below.

The table in Appendix F sets out the new criminal offences proposed by the Bill. Where an offence appears to be modelled on an existing provision in the Corporations Act or Australian Securities and Investment Commission Act 2001, for ease of comparison the two offences are set out alongside each other in the table in Appendix G.

Proposed section 290A, at item 163 of Schedule 2 creates new criminal offences related to breaches of an officer’s duty of good faith, and misuse of position or information by officers and employees. They closely resemble the offence in section 184 of the Corporations Act, which prohibits similar conduct by company directors, other officers and employees. The proposed offences are punishable by a fine of up to 2,000 penalty units ($360,000) or a term of up to five years imprisonment, or both. These are the same penalties available for a breach of section 184 of the Corporations Act.

Proposed section 337AB, at item 230 of Schedule 2 creates a new offence of obstructing or hindering an investigation or the execution of a warrant. A defence of reasonable excuse is available, but the defendant will bear the evidentiary burden in establishing the reasonableness of their conduct.[160] The offence is punishable by a fine of up to 100 penalty units ($18,000) or a term of up to two years imprisonment, or both.[161] The offence is broadly similar to the offence created by section 65 of the Australian Securities and Investments Commission Act 2001 (ASIC Act), which provides the same penalty as that proposed in new section 337AB.[162]

Proposed subsection 337AB(3) creates a new offence that applies specifically to occupiers or persons in charge of a premises. Under the provision, a person commits an offence if they intentionally or recklessly fail to provide a person executing a warrant all ‘reasonable facilities and assistance’ whilst executing their powers under the warrant. The offence is punishable by a fine of up to 25 penalty units ($4,500) or a term of up to six months imprisonment, or both. This offence and penalty reflect those set out in subsection 65(2) of the ASIC Act.

Proposed section 337AC creates a new offence of concealing documents relevant to an investigation. An offence is not committed if it is established that the person did not intend to defeat the purposes of an investigation, or to delay or obstruct any investigation or proposed investigation. However, the defendant will bear the evidentiary burden in establishing that they did not intend to do so.[163] The offence is punishable by a fine of up to 200 penalty units ($36,000) or a term of up to five years imprisonment, or both.[164]

Proposed section 337AE creates an offence that relates only to lawyers. Under the provision, a lawyer may refuse to comply with a direction to provide information or produce a document where it would involve disclosing a privileged communication made by, to, or on behalf of the lawyer in their capacity as a lawyer.[165] However, where the lawyer refuses to provide the information or produce the document sought, they must ‘as soon as practicable’ provide to the Commissioner a written notice setting out:

  • the name and address of the person to, by or on behalf of whom the privileged communication was made and
  • sufficient particulars to identify the document (or part of the document) containing the privileged communication.[166]

A failure to provide the above is an offence and is punishable by a fine of up to 10 penalty units ($1,800) or a term of imprisonment up to three months, or both.[167] The provision largely replicates section 69 of the ASIC Act.[168] In its submission to the Senate Inquiry, the Department of Employment noted that whilst proposed section 337AE places additional statutory obligations on lawyers claiming privilege, it ‘is not intended to otherwise abrogate common law principles of legal professional privilege’.[169]

Coercive investigatory powers

The Commissioner’s investigatory powers vis-à-vis the General Manager (GM) of the Fair Work Commission (FWC) was foreshadowed in the Government’s Policy:

 The new watchdog will have greater powers than those available to the current enforcer and will adhere to a strict charter to ensure all members of registered organisations are protected.[170]

This policy commitment was reaffirmed by the then Minister for Education and Leader of the House, Christopher Pyne in the second reading speech to the original Bill, where he stated:

The commission will have stronger investigation and information-gathering powers than those that currently apply. These will be modelled on those available to the Australian Securities and Investments Commission, which will further enhance the ability of the commissioner to provide strong and efficient regulation of unions and employer associations.[171]

The Bill contains a large number of items that significantly amend the Registered Organisations Act, and increase the scope and strength of the Commissioner’s investigatory powers compared to those possessed by the GM of the FWC under the Fair Work (Building Industry) Act 2012.[172]

Current investigatory powers

The investigatory powers of the GM are contained in Part 4 of Chapter 11 of Registered Organisations Act. In broad terms, the GM is able to conduct investigations and make inquiries in relation to the records, accounts and financial reporting by registered organisations, as well as into suspected breaches of civil penalty provisions.[173] Currently the GM can:

  • require an officer, employee (or former officer or employee) of an organisation or an auditor, to provide certain information or documents[174]
  • require an officer, employee (or former officer or employee) of an organisation or an auditor, to attend an interview and answer questions and provide documents[175] and
  • during normal business hours, enter a premises and inspect any documents and interview any employee at the premises.[176]

The Registered Organisations Act also removes, in certain circumstances, the right of a person to refuse to give information, provide documents or answers questions on the basis it would be self-incriminatory.[177] However, as is relatively common with such types of coercive powers, the privilege against self-incrimination is exchanged for ‘use’ and ‘derivative use’ immunities.[178] Subsection 337AA(7) provides that:

  • any information, documents or answers to questions given or
  • any information, documents or answers to questions obtained as a direct or indirect consequence of the giving of information, documents or answers to questions
  • cannot be used against the person in criminal proceedings or civil penalty proceedings, other than those related to making false or misleading statements or providing false and misleading information or documents.[179]

Currently, a failure to comply with a requirement to attend an interview or provide documents can result in a civil penalty of up to 30 penalty units.[180] The Registered Organisations Act also currently contains whistleblower protections.[181]

While these powers are quite expansive, they apply only to current and former officers, employees and auditors of registered organisations.

Investigatory powers of ASIC

As noted previously, the Government has stated that the proposed new coercive investigatory powers are modelled on those available to ASIC. Currently ASIC has coercive information gathering powers under both the Corporations Act[182] and the Australian Securities and Investments Commission Act 2001 (ASIC Act).[183] These include:

  • requiring the production of books[184]
  • conducting investigations into suspected breaches of the Corporations Act or any other Commonwealth, state or territory law pertaining to the management or affairs of a body corporate, managed investment scheme or financial products.[185]

In relation to investigations, section 19 of the ASIC Act allows an ASIC inspector to require a person to appear before them for examination. A person may be required to take an oath or affirmation that the statements made by the person during the examination will be true.[186] In addition, subsection 19(2) provides that an ASIC examiner may require a person to answer questions put to them during an examination. A failure to comply with either requirement is an offence. Examinations are to take place in private, and lawyers may attend but are subject to certain restrictions.[187]

In addition, like the Registered Organisations Act, the ASIC Act removes the privilege against self-incrimination. It is however, exchanged for a more limited form of ‘use’ immunity. Subsections 68(2) and (3) of the ASIC Act provide that where a person, prior to answering a question, giving information or signing a record claims that it might tend to incriminate them or make them liable for a penalty, that information or record cannot be used against them in criminal or civil proceedings other than those related to making false or misleading statements or records.

Importantly however, the ASIC Act does not specifically provide any derivative use immunity.[188] In addition, it does not extend use immunity in relation to the production of books.[189] As noted by the Administrative Review Council in 2008:

Enactment of more limited immunities for ASIC and APRA followed extensive research into the difficulties associated with corporate regulation. Such an approach had been recommended in reports by the Joint Standing Committee on Corporations and Securities and by John Kluver. The two reports found that derivative use immunities and, in some instances, use immunities would constitute an unacceptable fetter on the investigation and prosecution of corporate misconduct offences.[190] (emphasis added).

The Bill seeks to regulate registered organisations in the same manner as corporations.[191] It appears that the coercive powers proposed by the Bill have been drafted with the view that derivative use would be an unacceptable fetter on the investigation and prosecution of misconduct offences related to registered organisations. The proposed new coercive powers and immunities are detailed below.

Proposed new coercive investigatory powers

The new coercive investigatory powers and related offences are set out in items 213-230 of Schedule 2 of the Bill. From a broad perspective the key changes are that the:

  • coercive powers will no longer apply only to a current or former officer, employee or auditor of an organisation[192] but
  • will be extended to any ‘person’ who, the Commissioner believes on reasonable grounds has information or documents (or is capable of giving evidence) relevant to an investigation[193] and
  • the Commissioner can require a person to provide ‘reasonable assistance’ in connection with the investigation.[194]

These changes will significantly expand the scope of persons who are subject to the Commissioner’s coercive investigatory powers, as they are no longer confined to persons formally associated (or previously associated) with a registered organisation. There are also additional changes, including that an investigator can:

  • require a person attending an interview to answer questions on oath or affirmation[195]
  • require a person to identify property of an organisation[196]
  • apply to a magistrate for a warrant to seize documents[197]
  • execute a search warrant in conjunction with the Australian Federal Police[198]
  • make copies of any documents produced or seized[199] and
  • where documents are not produced in compliance with amended section 335, require a person to explain where they can be found or who last had possession, custody or control of the documents and where that person can be found.[200]

Proposed section 337AD, at item 230 of Schedule 2, removes the privilege against self-incrimination. However, like the ASIC Act it is exchanged for use immunity. Proposed subsection 337AD provides use immunity by providing that any information given, or the fact that the person produced a document or signed a record, is not admissible in evidence against the person, except in proceedings related to giving false or misleading statements, documents or records. Notably however, like the ASIC Act, to make use of the use immunity a person must, prior to giving the information, producing the document or signing a record, claim that it would tend to incriminate them or expose them to a penalty.[201] In addition, like the ASIC Act, no derivative use immunity is provided and a lawyer can be penalised for ‘trying to obstruct the questioning’.[202]

In relation to the ability of the Commissioner to seek, obtain and execute a warrant, the proposed provisions are similar to sections 35–39 of the ASIC Act. For ease of comparison, these are set out below in the table in Appendix H.

In addition to expanding the scope, application and strength of the Commissioner’s coercive investigatory powers, the Bill also contains important checks and balances and creates new offences related to investigations.

Item 229 amends section 337 of the Registered Organisations Act to provide that a person is not required to give information, produce documents or attend an interview where they have a ‘reasonable excuse’.[203] Importantly however, self-incrimination is not a reasonable excuse.[204] Item 208 provides that a person is not liable for more than one pecuniary penalty in relation to the same conduct. This ensures that a person who engages in a single course of conduct is not subject to multiple civil penalties.

Proposed sections 335G and 335H at item 223 provide that a person questioned during an investigation must comply with a direction to read the statement and/or sign it, and that failure to comply with the direction is an offence.[205]

The Bill also creates a number of offences in relation to investigations. These were discussed above under the heading ‘Civil and criminal penalty provisions’.

Establishment of new regulator

Schedule 1 of the Bill (and particularly item 88, which inserts new Part 3A into Chapter 11 of the Registered Organisations Act) contains provisions regarding the establishment of the Registered Organisations Commission (ROC) and the Registered Organisations Commissioner (Commissioner). Proposed section 329AA of the Registered Organisations Act establishes the Commissioner, whilst the ROC is established by proposed section 329DA. Item 6 inserts definitions of Commission and Commissioner, being the ROC and the Commissioner, into the Registered Organisations Act. These definitions point the reader to new Part 3A of Chapter 11.

The Bill provides that the ROC will consist of the Commissioner and staff (not consultants) assisting the Commissioner.[206] The function of the ROC is to assist the Commissioner in the performance of the Commissioner’s functions.[207] As is usual with such entities, the ROC has the privileges and immunities of the Crown.[208]

Item 1 of Schedule 1 makes a consequential amendment to the Fair Work Act 2009 reflecting the establishment of the Commissioner and the conferral of the administrative functions (in this instance, giving advice and assistance to registered organisations) from the FWC to the Commissioner.[209]

Items 2 to 5 amend the Fair Work Act to provide the FWC and the Full Bench of the FWC jurisdiction to hear disputes and appeals related to decisions made by the Commissioner. However, as discussed previously, proposed subsection 293H(7) of the Registered Organisations Act, at item 166 of Schedule 2, prevents a decision by the Commissioner to make or refuse to make an order for an alternative disclosure regime from being appealed to the FWC.

Appointment of the Commissioner

Proposed sections 329BA to 329BJ of the Registered Organisations Act, inserted by item 88 of Schedule 1, deal with the appointment of the Commissioner, various terms and conditions, and termination of the appointment.

Method and term of appointment

Proposed section 329BA provides that the Commissioner is appointed by the Minister through a written instrument. This appointment may only be made if the Minister is satisfied that the proposed Commissioner has suitable qualifications or experience and is of good character. Proposed section 329BB provides that a Commissioner is appointed for a period, not exceeding five years, specified in the instrument of appointment. A Commissioner may be re-appointed.[210] The Minister may appoint an Acting Commissioner during a vacancy in the office of Commissioner or for a period in which the Commissioner is absent from duty or from Australia.[211]

Remuneration of Commissioner

Proposed section 329BD provides that the Commissioner’s remuneration is to be determined by the Remuneration Tribunal in accordance with the Remuneration Tribunal Act 1973.

Termination of appointment

Proposed section 329BJ provides that the Minister may terminate the appointment of the Commissioner for misbehaviour or where the Commissioner is unable to perform their duties because of physical or mental incapacity. However, where certain circumstances arise, the Minister must terminate the appointment of the Commissioner. These include where the Commissioner:

  • becomes bankrupt
  • engages in paid outside employment without the Minister’s approval[212] or
  • fails (without reasonable excuse) to disclose any interest that does (or could) conflict with the performance of their duties.[213]

Staff and consultants of the ROC

Proposed sections 329CA to 329CC deal with staff, consultants and other persons assisting the Commissioner. Staff assisting the Commissioner will be engaged under the Public Service Act 1999 and will be drawn from the Fair Work Ombudsman (FWO).[214] The Bill also provides that the Commissioner may be assisted by employees of other Commonwealth and state and territory authorities and agencies.[215] The Commissioner may also engage consultants, provided they have ‘suitable qualifications and experience’.[216]

Ministerial directions and reporting requirements

The relevant 2013 Coalition election policy outlined the intention:

The first head of the Registered Organisations Commission will be appointed by the Minister, but will not be subject to Ministerial Direction. The Commission will be required to report to Parliament on a yearly basis.[217] (emphasis added).

Proposed section 329FA allows the Minister to give directions to the Commissioner, whilst proposed sections 329FB and 329FC relate to reporting requirements.

Ministerial directions

In contrast to the stated policy position quoted above, proposed section 329FA provides that the Minister may, by legislative instrument, give written directions to the Commissioner about the performance of the Commissioner’s functions. Directions must be of a general nature only—directions about particular matters or investigations are not permitted.[218] The Commissioner must comply with any direction. The note to the section explains that although a direction is a legislative instrument, it is not subject to disallowance by the Parliament or sunsetting under the Legislation Act 2003.[219]

Reporting requirements

The Minister is able to give written directions to the Commissioner to provide specific reports relating to the Commissioner’s functions.[220] The Commissioner must comply with the direction, which is not a legislative instrument and hence is not disallowable.[221]

In addition, the Commissioner must prepare annual reports for the Minister, which are to be tabled in Parliament.[222] The report must include:

  • details the number and types of investigations conducted[223]
  • details of any applications to the Federal Court for orders under proposed paragraph 310(1)(a)[224]
  • details of any education activities provided to registered employer or employee organisations or their members[225] and
  • any other matters prescribed by regulations.[226]

Functions and role of the Commissioner

Currently the FWC has dual roles as a both a tribunal and also an administrator.[227] The relevant 2013 Coalition election policy outlined the intention for the ROC to:

  • take on the role of registered organisations enforcer and investigator, currently held by the General Manager of the Fair Work Commission
  • provide information to members of registered organisations about their rights and act as the body to receive complaints from their members and
  • educate registered organisations about the obligations that apply to them.[228]

Proposed section 329AB provides that the functions of the Commissioner are to promote:

  • efficient management of organisations and high standards of accountability of organisations and their office holders to their members and
  • compliance with financial reporting and accountability requirements of the Registered Organisations Act

including by providing education, assistance and advice to organisations and their members.[229]

The Commissioner has additional functions including:

  • monitoring acts and practices to ensure they comply with the provisions of the Registered Organisations Act providing for the democratic functioning and control of organisations and
  • any other functions conferred on the Commissioner by the Registered Organisations Act or by another Act.[230]

The Bill is consistent with the 2013 election policy, and transfers the majority of functions pertaining to registered organisations from the FWC to the Commissioner. This includes, but is not limited to:

  • the registration and cancellation of new organisations
  • approval of amalgamations (and related ballots)
  • making orders allowing a member of an organisation to inspect financial records and
  • approving alterations to an organisation’s member eligibility rules or name.

The specific functions that have been transferred from the FWC or the GM of the FWC to the Commissioner are detailed below.

Register of registered organisations

Items 9 and 10 of Schedule 1 amend the functions of the FWC in relation to registered organisations. Reflecting the transfer of most administrative functions to the Commissioner, the FWC will be limited to keeping a register of organisations. Items 11, 14–17, and 21–26 make consequential amendments related to the items that must be recorded in the register by the GM.

Cancellation of registration of an organisation

Currently the GM is able to apply to the Federal Court for an order cancelling the registration of an organisation where it has failed to comply with an order of the Federal Court made under subsection 336(5) of the Registered Organisations Act (for example, an order to rectify a contravention of the reporting guidelines). Items 12 and 13 of Schedule 1 of the Bill would transfer that power to the Commissioner, reflecting the transfer of administrative functions from the FWC to the Commissioner.

Regulating amalgamations and withdrawals

Currently, section 94 of the Registered Organisations Act allows certain persons to make an application to the FWC for a ballot to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation. Such an application must be accompanied by a written proposal.[231] Where the applicant has insufficient information to prepare a written proposal, the GM may either give the applicant certain information, or direct the amalgamated organisation to do so.[232] Items 18–20 transfer these powers to the Commissioner. Item 12 of Schedule 2 of the Bill increases the civil penalty for failure to comply with such directions from 60 to 100 penalty units (from 300 to 500 in the case of a body corporate).

Items 27 to 29 of Schedule 1 transfer responsibility for hearing applications (and objections to applications) for an organisation or branch to be exempted from the requirement that elections be conducted by the Australian Electoral Commission (AEC) from the GM to the Commissioner, reflecting the transfer of administrative functions from the FWC to the Commissioner.

Federal Court enforcement of directions contraventions

Item 7 of Schedule 1 of the Bill defines a directions contravention as contravention of one of the listed subsections. In effect, a directions contravention is where:

  • an order or direction is made by the Federal Court or FWC and
  • that order or direction applies to:
    • a registered organisation or
    • an officer, employee or member of a registered organisation and
  • that order or direction is contravened or otherwise not complied with.

As provided for by item 85 of Schedule 1, only the Minister (or a person authorised in writing by the Minister) may apply for a civil penalty order under Chapter 10, Part 2 in relation to a directions contravention.

Oversight and conduct of elections

Under the Registered Organisations Act, the GM has a number of powers and functions related to the conduct of, and investigation into, elections for office holders of registered organisations.[233] Items 30–55 of Schedule 1 transfer these responsibilities and powers from the GM and/or FWC to the Commissioner. The items do not make any other amendments to the powers or responsibilities beyond their transfer.

Financial reporting oversight

Under the Registered Organisations Act, registered organisations must comply with a number of financial record keeping, auditing and reporting obligations. This includes lodging various statements with the GM,[234] and providing details of certain types of loans, grants or donations made by the organisation.[235]

The Registered Organisations Act also provides that members must be provided copies of operating, general purpose financial and auditors’ reports, and that they are also able to access other financial records of an organisation in certain circumstances.[236] Items 56–65 and 71–84 of Schedule 1 transfer the responsibility to receive (and where necessary scrutinise) and disclose (upon application in certain circumstances) financial reports prepared by registered organisations, from the GM and/or FWC to the Commissioner. They do not make any other amendments to the powers or responsibilities beyond their transfer.

Determination of reporting units

Many of the accounting, auditing and financial reporting obligations are imposed on organisations on a reporting unit basis. The Registered Organisations Act provides that a reporting unit is:

  • where the organisation is not divided into branches, the whole of the organisation[237] or
  • where the organisation is divided into branches, each branch.[238]

However, the Registered Organisations Act allows for alternative reporting units. This can include where the organisation is divided into branches, the whole of the organisation or reporting units comprised of two or more branches of the organisation.[239]

Whilst the GM retains certain powers related to the determination of reporting units within an organisation, items 67–70 of Schedule 1 provide that the GM must consult with the Commissioner in relation to the obligation to be satisfied in relation to certain matters.[240]

Financial reporting compliance investigations

Chapter 11 of the Registered Organisations Act provides that the GM is responsible for various compliance matters, including conducting inquiries and investigations into organisations’ compliance with their financial reporting obligations. Items 87, 89–115, 117, and 123 of Schedule 1 of the Bill transfer these responsibilities and powers to the Commissioner, make other technical amendments and (in conjunction with proposed section 343B at item 124 of Schedule 1) clarify the Commissioner’s ability to delegate certain functions and powers. They do not make any other amendments to the powers or responsibilities beyond their transfer.

Item 116 of Schedule 1 extends the potential application of whistleblower protection by allowing protected disclosures to be made to the Commissioner or staff members of the ROC.

Proposed section 343B establishes that the Commissioner may, in writing, delegate any function or power to a staff member of the ROC other than those listed in proposed subsection 343B(2). The powers that cannot be delegated include:

  • applying to the Federal Court to have the registration of an organisation cancelled[241]
  • making arrangements for the conduct of elections where the Federal Court makes an order under paragraph 206(4)(c)[242] and
  • applying to the Federal Court for pecuniary penalty, compensation or other orders under section 310, as amended by item 85 of Schedule 1.[243]

However, proposed subsection 343B(3) provides that the Commissioner’s functions and powers in relation to making inquiries or conducting investigations in relation to financial reporting compliance by organisations can be delegated not only to staff members of the ROC, but also to ‘any other person or body’ that the Commissioner is satisfied has significant experience or knowledge in accounting, auditing, financial reporting or conducting compliance investigations and audits or another field prescribed by the regulations.[244]

The effect of proposed subsection 343B(3) is to allow the Commissioner to delegate certain investigatory powers and functions to consultants or other relevant bodies with particular expertise. However, proposed subsection 343B(4), inserted by item 237 of Schedule 2 ensures that functions and powers under Division 3, Part 3B of Chapter 11 (questioning an attendee on oath or affirmation, inserted by item 223 of Schedule 2) can only be delegated to a member of the staff assisting the Commissioner, and not to consultants or other relevant bodies.[245]

Disqualification of officials

The Registered Organisations Act provides that persons convicted of certain offences (mostly related to dishonesty and fraud) are disqualified from holding office in an organisation.[246] Item 55 of Schedule 1 amends subsection 215(5) to allow the organisation, a member of the organisation or the Commissioner (rather than the GM) to apply to the Federal Court for a declaration that a person is not eligible to be a candidate for election or to be appointed to an office in the organisation. It does not make any other amendments beyond the transfer of standing before the Federal Court in relation to such applications.

Item 209 of Schedule 2 inserts proposed section 307A which allows the Federal Court to make an order disqualifying a person who contravenes a civil penalty provision from holding office in a registered organisation, if the Court is satisfied that the disqualification is justified. According to the Bill’s Explanatory Memorandum, it was ‘broadly modelled’ on section 206C of the Corporations Act.[247] For ease of comparison, the two provisions are set out in the table in Appendix G.

Other provisions

Financial training requirements for officers

Proposed sections 293K and 293L (item 166, Schedule 2) provide that officers whose duties include duties relating to financial management of the organisation or branch must undertake approved training that relates to and covers the officer’s financial duties. That training must be approved by the Commissioner and can be provided by the organisation, a peak council or other body or person approved by the Commissioner.

Proposed section 293M provides that the Commissioner may, on application, grant an exemption from the requirement to undertake training under section 293K, provided that the Commissioner is satisfied that the relevant officer has a proper understanding of his or her financial duties because of experience as a company director, officer of a registered organisation or other professional qualifications and experience.

Technical amendments to civil penalty provisions

A large number of items make technical amendments to the Registered Organisations Act’s existing civil penalty provisions.[248] They replace all occurrences of the phrase ‘Maximum penalty’ with ‘Penalty’. This does not, however, result in the imposition of fixed mandatory penalties, as section 4D of the Crimes Act 1914 provides that any offence set out in the manner provided in the Bill is ‘is punishable on conviction by a penalty not exceeding the penalty so set out’ (emphasis added).[249]

Information sharing

Item 212 in Schedule 2 inserts proposed section 329G into the Registered Organisations Act, to provide for information sharing. It sets out the circumstances under which information acquired by persons in the course of performing their duties with the Commission or FWC may be disclosed and for what purposes.

Evidentiary use of certain materials

Proposed sections 337AF to 337AL and 337N (item 230 Schedule 2) clarify the application of the Evidence Act 1995 (Cth) to questioning during an investigation and the admissibility of certain types of evidence in proceedings against persons who have attended interviews as part of an investigation. Briefly, statements made under oath or affirmation during an investigation are admissible unless:

  • by virtue of the use immunity provided by proposed subsection 337AD(3), the evidence is inadmissible in proceedings against the person who provided it
  • the evidence is not relevant and the person objects to the admission of the evidence of the statement
  • the statement is qualified or explained by another statement made by the person during the investigation, which is not tendered in the proceedings and the person objects or
  • the statement discloses matters in respect of which the person could claim legal professional privilege, and the person objects to its admission.[250]

Financial management of the ROC

Proposed sections 329EA to 329EC (item 88 Schedule 1) provide that the ROC will have, for the purposes of the Financial Management and Accountability Act 1997 (FMA Act), a Special Account. The Bill’s Explanatory Memorandum notes that whilst the ROC will be financially independent from the FWO, for the purposes of the FMA Act, the Fair Work Ombudsman will be the Chief Executive responsible for the Special Account.[251]

Other administrative functions

Items 125 and 127 to 128 of Schedule 1 transfer various administrative functions pertaining to the lodgement of records and issuing of certificates stating that a person was an officer of an organisation at particular time from the GM to FWC. They do not make any other amendments to the powers or responsibilities beyond their transfer.

Transitional provisions

Items 129 to 137 in Schedule 1 and items 242 to 246 in Schedule 2 are transitional in nature and provide that any processes and proceedings commenced but not finalised by the GM are transferred to the Commissioner. Item 137 provides that the Minister may, by legislative instrument, make rules relating to transitional matters. Item 245 provides that during the 12 months after the commencement of the Registered Organisations Act, prior to approving an alternative disclosure arrangement under proposed section 293H (at item 166 of Schedule 2), the Commissioner must take into account any exemption provided to the organisation under section 148D of the Registered Organisations Act as in force prior to commencement of the amendments made by the Bill.

Concluding comments

The Bill has attracted significant attention and interest from key stakeholders and interest groups. A key issue raised by the Bill is the appropriateness of regulating registered organisations in the same manner as corporations. As discussed in this Digest, if passed, the Bill would arguably require higher levels of disclosure by registered organisations than is required from public companies. In addition, officers of registered organisations would be subject to higher levels of scrutiny than some directors and all officers or committee members of incorporated associations, which it may be argued are, in some instances, a closer analogue to registered organisations than corporations.

The Bill also introduces significant new coercive powers. The abrogation of the right against self-incrimination is exchanged only for use immunity, and no derivative use immunity is provided.

In addition, the Bill significantly increases the penalties for misconduct offences and introduces new criminal penalties, the appropriateness of which has, and is likely to continue to, attract attention and debate.


Appendix A

Table 1: Royal Commission into Trade Union Governance and Corruption recommendations relevant to the Bill

Recommendation

Does the Bill, as drafted, fulfil the recommendation?

Recommendation 5: Scope of regulators power

Sections 330 and 331 of the Fair Work (Registered Organisations) Act 2009 (the FWRO Act) be amended to allow the registered organisations regulator to make inquiries and conduct investigations as to whether criminal offences contrary to the Fair Work (Registered Organisations) Act 2009 (Cth) have occurred.

Partly. Whilst not amending the provisions referred to by the RCTUGC themselves, viewed as a whole the new investigatory powers proposed by the Bill will enable the ROC to determine whether criminal offences have occurred.

Recommendation 5: Scope of regulators power

The meaning of the ‘rules of a reporting unit relating to its finances or financial administration’ be clarified to include any rules concerning officers or employees that may have a direct or indirect effect on the finances or financial administration of a reporting unit.

No.

Recommendation 6: Powers of the regulator

The registered organisations regulator have information-gathering and investigative powers similar to those conferred on the Australian Securities and Investments Commission. In particular, the registered organisations regulator be given a general power to inspect the books and records of an organisation for the purpose of ensuring compliance with the Fair Work (Registered Organisations) Act 2009 (Cth).

Yes. The new powers are provided by items 213–230 of Schedule 2 of the Bill are consistent with (and modelled on) those provided to ASIC.

Recommendation 7: Powers of the regulator

Amendments be made to the Fair Work (Registered Organisations) Act 2009 (Cth) to amplify the existing enforcement powers of the registered organisations regulator. In particular, subsection 336(1) and paragraph 336(2)(a) be amended to clarify that the registered organisations regulator may take action in relation to breaches of rules by persons other than a reporting unit.

No.

Recommendation 7: Powers of the regulator

The FWRO Act be amended so that the registered organisations regulator has a power to accept an enforceable undertaking.

No.

Recommendation 10: Reporting to members

A new division dealing with financial disclosures by ‘reporting units’ to their members be introduced to Part 3 of Chapter 8 of the Fair Work (Registered Organisations) Act 2009 (Cth) to replace and strengthen existing provisions concerning financial disclosure. The regime would require ‘reporting units’ to lodge audited financial disclosure statements with the registered organisations regulator on discrete topics, including (a) loans, grants and donations by the reporting unit, (b) remuneration of officers and (c) credit card expenditure.

No.

Recommendation 10: Reporting to members

Civil penalties should apply to reporting units that fail to comply with their obligations under the regime. Further, civil penalties should also apply to officers who knowingly or recklessly make a false statement in a financial disclosure statement.

Yes. Proposed sections 293B to 293H.

Recommendation 11: Financial compliance obligations

Officers with responsibility for ensuring compliance by a reporting unit with its financial obligations under the Fair Work (Registered Organisations) Act 2009 (Cth) be subject to civil penalties if they fail to take all reasonable steps to ensure the reporting unit complies with its financial obligations.

No.

Recommendation 12: Financial compliance officer

All reporting units be required to appoint a financial compliance officer with responsibility for ensuring compliance by the reporting unit with its financial obligations under the Fair Work (Registered Organisations) Act 2009 (Cth), regulations and reporting guidelines and the reporting unit’s financial policies and rules concerning finances. The financial compliance officer must be separate and independent from the Secretary. The compliance officer be subject to a statutory obligation to report any reasonably suspected breaches to the committee of management.

No.

Recommendation 16: Record keeping (Minutes)

A new civil penalty provision be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) requiring organisations and branches to make and keep minutes recording the proceedings and resolutions of committee of management meetings. Documents and papers that are necessary to refer to in order to understand the effect of the minutes also be kept. The documents be retained for a minimum of seven years. The minutes and associated documents be available upon request by members of the organisation free of charge.

Yes. item 19 and proposed subsections 293C(6) and 293D(4).

Recommendation 23

Section 190 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to prohibit an organisation or branch using, or allowing to be used, its property or resources to help a candidate in an election for office in any registered organisation or branch.

This recommendation is reflected in the model legislative provisions in Appendix 1 of Volume 5 of the Report.

No.

Recommendation 25

The definition of ‘office’ in section 9 of Fair Work (Registered Organisations) Act 2009 (Cth) be amended to include, in addition:

  • an office of financial compliance officer of the organisation or branch
  • an office of a person who makes, or participates in making, decisions that affect the whole or a substantial part, of the organisation or branch
  • an office of a person who has the capacity to affect significantly the financial standing of the organisation or branch; and
  • an office of a person in accordance with whose instructions or wishes the members of the committee of management of the organisation or branch are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the organisation or branch).

No.

Recommendation 26

Section 283 of Fair Work (Registered Organisations) Act 2009 (Cth) be repealed to align the statutory duties of officers of registered organisations with their general law duties.

No.

Recommendation 27

Section 286(1)(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended by inserting the words ‘honestly and reasonably’ before the word ‘believes’.

No.

Recommendation 28

The civil penalties for contravention of subsection 285–288 of the Fair Work (Registered Organisations) Act 2009 (Cth) be substantially increased. A distinction should be drawn between a ‘serious contravention’ and other contraventions. The maximum penalty for a ‘serious contravention’ should be 1,200 penalty units (currently $216,000) with no penalty for a contravention that is not a ‘serious contravention’. No distinction should be drawn between paid officers and volunteers. ‘Serious contravention’ should be defined as proposed in the Fair Work (Registered Organisations) Amendment Bill 2014 [No 2] (Cth).

Consideration should also be given to amending the Corporations Act 2001 (Cth) to specify the maximum penalty for breaches of directors’ duties by reference to 1,200 penalty units rather than the fixed amount of $200,000.

Yes. Item 4 of Schedule 2 of the Bill. See also Table 4: serious contravention civil offence provisions below.

Recommendation 29

The Fair Work (Registered Organisations) Act 2009 (Cth) be amended by introducing a new s 290A that imposes criminal liability on officers of registered organisations or branches who dishonestly or recklessly breach the statutory duties imposed on them by ss 286-288 of the Fair Work Registered Organisations Act 2009 (Cth).

The section be modelled principally on s 184 of the Corporations Act 2001 (Cth), except that the reference in s 184(1) to ‘intentionally dishonest’ should be replaced by ‘dishonest’. The maximum penalty should be the same as that under the Corporations Act 2001 (Cth), being 2,000 penalty units ($360,000) or five years’ imprisonment, or both.

Yes. Proposed section 290A.

Recommendation 30

New s 293A be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) prohibiting an organisation or a branch of an organisation (or any related entity of the organisation or branch including any state registered organisation or branch) from indemnifying, paying or reimbursing an officer of the organisation or branch for any fine or civil penalty imposed on the officer for conduct in connection with the organisation or branch.

The provision may usefully be based on subsection 199A–199C of the Corporations Act 2001 (Cth). Contravention should be a criminal offence of strict liability. An organisation that contravenes the provision should be subject to a maximum penalty of 500 penalty units ($90,000) and every officer involved in a contravention should be subject to a maximum penalty of 100 penalty units ($18,000). Consideration should be given to reviewing the penalties under subsection 199A and 199B of the Corporations Act 2001 (Cth).

No.

Recommendation 33

New provisions, modelled on subsection 236–242 of the Corporations Act 2001 (Cth), be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) allowing a current or former member or current or former officer of a registered organisation or branch of the organisation to apply to a state Supreme Court or the Federal Court for leave to bring, or intervene in, a proceeding on behalf of a registered organisation.

No.

Recommendation 34

The provisions in Part 3 of Chapter 9 of the Fair Work (Registered Organisations Act 2009 (Cth) (ss 297–303A) concerning breach of orders be amended to include orders made by the Federal Circuit Court.

No.

Recommendation 35

The maximum penalty for breach of the provisions in Part 3 of Chapter 9 of the Fair Work (Registered Organisations Act 2009 (Cth) concerning breach of court orders by officers and employees of registered organisations or branches be increased to 1,200 penalty units.

Partly. See Table 4: serious contravention civil offence provisions below.

Recommendation 36

The definition of ‘prescribed offence’ in section 212 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to include an offence under a law of the Commonwealth, a state or territory, or another country, which is punishable on conviction by a maximum penalty of imprisonment for life or five years or more.

No.

Recommendation 38

The Fair Work (Registered Organisations) Act 2009 (Cth) be amended by inserting a new provision giving the Federal Court jurisdiction, upon the application of the registered organisations regulator, to disqualify a person from holding any office in a registered organisation for a period of time the court considers appropriate. The court should be permitted to make such an order if the person:

  • has, or has been found to have, contravened a civil remedy provision of the Fair Work Act 2009 (Cth), or a civil penalty provision of the Fair Work (Registered Organisations) Act 2009 (Cth) or the Work Health and Safety Act 2011 (Cth)
  • has been found liable for contempt
  • has been at least twice an officer of a registered organisation that has, or has been found to have, contravened a provision of the Fair Work Act 2009 (Cth) or the Fair Work (Registered Organisations) Act 2009 (Cth) or has been found liable for contempt while the person was an officer and each time the person failed to take reasonable steps to prevent the contravention or the contempt
  • has, or has been found to have, at least twice contravened a provision of the Fair Work Act 2009 (Cth) or the Fair Work (Registered Organisations) Act 2009 (Cth) or
  • is otherwise not a fit and proper person to hold office within a registered organisation or branch; and
  • the Court is satisfied that the disqualification is justified.

Partly. Proposed section 307A and subsection 215(5).

Recommendation 39: Corrupting benefits

The Fair Work (Registered Organisations) Act 2009 (Cth) be amended to require reporting units to lodge an audited financial disclosure statement (see Recommendation 10) providing details in respect of (a) loans, grants and donations (including in-kind donations) made to reporting units in excess of $1,000 and (b) other payments made to reporting units in excess of $10,000.

Partly. Proposed sections 293B-D and 293G.

Recommendation 40: Corrupting benefits

Legislation be enacted amending the Fair Work Act 2009 (Cth) to include a provision criminalising the giving or receiving of corrupting benefits in relation to officers of registered organisations, with a maximum term of imprisonment of ten years.

This recommendation is reflected in the model legislative provisions in Appendix 1 to Volume 5 of the Report.

No.

Recommendation 41: Corrupting benefits

Legislation be enacted amending the Fair Work Act 2009 (Cth) making it a criminal offence for an employer to provide, offer or promise to provide any payment or benefit to an employee organisation or its officials. Certain legitimate categories of payment should be permitted, subject to strict safeguards. An equivalent criminal offence should apply to any person soliciting, receiving or agreeing to receive a prohibited payment or benefit. A two year maximum term of imprisonment should apply to the commission of these offences.

This recommendation is reflected in the model legislative provisions in Appendix 1 to Volume 5 of the Report.

Legitimate payments would include:

  • deductions from employee wages to pay membership dues for persons who are genuinely members of the union
  • genuine wage claim payments: payment to union as agent for a group of employees in settlement of a claim or dispute between employees and employer
  • payments for a charitable or benevolent purpose
  • payments for goods and services provided by the union in the ordinary course of business at the prevailing market price
  • payments made pursuant to a court order, judgement or award.

No.

Recommendation 42: Disclosure of financial relationships between unions and relevant entities

Consideration be given, in consultation with the Australian Accounting Standards Board, to amending the Fair Work (Registered Organisations) Act 2009 (Cth) to require reporting units to prepare consolidated financial statements, as well as separate financial statements for the reporting unit’s controlled entities. Consideration also be given to repealing section 148C of the Fair Work (Registered Organisations) Act 2009 (Cth).

No.

Appendix B

The table below compares the disclosure requirements of officers/committee members of incorporated associations in each Australian jurisdiction. As noted under the heading ‘Commencement of the Bill and retrospectivity’ if the Bill is passed unamended by both Houses or via a joint sitting, the increased disclosure requirements for officers of registered organisations would operate retrospectively from 1 July 2014. As noted in the Background section of this Digest, most trade unions (which represent 45 of the 112 organisations registered under the Registered Organisations Act[252]) are (or started as) incorporated associations governed by the laws of a particular state or territory. As incorporated associations are not-for-profit body corporates that exist to advance the interests of their members (rather than to make profit) they make for a useful comparator in terms of the disclosure requirements imposed on the officers of registered organisations.

Table 2: comparison of officer disclosure

ACT

NSW

NT

QLD

SA

TAS

VIC

WA

Officers must disclose any direct/indirect pecuniary interest in a contract.

Penalty: 20 penalty units.[253]

Officers must disclosure any direct or indirect personal interests.

Penalty: 60 penalty units.[254]

Officers must disclose direct/indirect pecuniary interest in a contract.

Penalty: 200 penalty units.[255]

No requirements for officers to act in good faith or disclose personal interests et cetera.[256]

Committee members must disclose direct or indirect pecuniary interest in a contract or proposed contract with the association.

Penalty: up to $5,000.[257]

No requirements for officers to act in good faith or disclose personal interests et cetera.[258]

Committee members must disclose any ‘material personal interest’ in a matter being considered by the committee.

Penalty: ten penalty units.[259]

Committee members must disclose direct/indirect pecuniary interest in a contract.

Penalty: $500.[260]

 

Appendix C

This table outlines civil penalty offences contained in the Registered Organisations Act. It outlines both the previous and new penalties, expressed in penalty units with the amount applicable to a person listed first, then a body corporate second (for example: 60/300). The table also notes any increase in the penalty amount.

Table 3: civil penalty provisions

Offence Provision in Act Old penalty (PU) New penalty (PU) Increase (in PU)
Failure to lodge membership agreement 151(2) 60/300 60/300 None
Failure to lodge assets and liabilities agreement 152(3) 60/300 60/300 None
Failure to remove non-financial members from the register 172(1) 60/300 60/300 None
Failure to lodge election related information 189(2) 60/300 60/300 None
Failure to keep and lodge records 230(1), (2) 60/300 60/300 None
Failure to keep records for seven years 231 60/300 60/300 None
Failure to lodge information with ROC 233(1), (2) 60/300 60/300 None
Failure to provide access to records 235(2) 60/300 60/300 None
Failure to deliver records 236(1) 60/300 100/500 40/200
Prohibited appointment of auditor 256(3)-(6) 60/300 60/300 None
Prohibited removal or auditor 263(2)-(5) 60/300 60/300 None
Failure to distribute auditors reasons for resignation 264(3) 60/300 60/300 None
Failure to present full report to members 266(1) 60/300 60/300 None
Failure to provide information to members 272(3), (5) 60/300 60/300 None
Making frivolous of vexatious applications for orders for inspection of financial records 274(1) 60/300 60/300 None
Disclosing information acquired during an inspection 276(1), (2) 60/300 60/300 None
Failure to provide a copy of rules or lists of officers to a member 347(1) 60/300 60/300 None
Failure to lodge/enter into register termination of membership agreement 151(11) 60/300 60/300 None
False declarations about register 52(1) 60/300 100/500 40/200
False statement in relation to register 52(3) 60/300 100/500 40/200
Failure to comply with direction to provide information 95(3C) 60/300 100/500 40/200
Failure to make declarations (or making false statements) about ballots to withdraw from amalgamated organisations 104(1), (3) 60/300 100/500 40/200
Failure to provide statement of membership 169 60/300 100/500 40/200
False representation of membership (or resignation of membership) of an organisation 175, 176 60/300 100/500 40/200
Failure to make declarations (or making false statements about) elections 192(1), (3) 60/300 100/500 40/200
Failure to respond to the AEC regarding an adverse post-election report 198(1) 60/300 100/500 40/200
Failure to make adverse post-election report response (or an extract) available to members 198(4), (5) 60/300 100/500 40/200
False statements in relation to adverse post-election report response (or an extract) 198(8) 60/300 100/500 40/200
False statements in relation to information lodged with the FWC/ROC 233(3) 60/300 100/500 40/200
Failure to notify (or making false statements about) particulars of loans, grants and donations to ROC 237(1), (3) 60/300 100/500 40/200
Failure of financial statements to give a fair and true view of the reporting units financial position and performance 253(3), (4) 60/300 100/500 40/200
Failure to prepare operating report 254(3), (4) 60/300 100/500 40/200
Failure to have auditor engaged 256(1) 60/300 100/500 40/200
False statement by auditor 257(10) 60/300 100/500 40/200
Failure of auditor to report suspected breach of the Registered Organisations Act or reporting guidelines 257(11) 60/300 100/500 40/200
Failure of reporting unit to forward notices to auditor 259 60/300 100/500 40/200
Failure to provide full or concise report, or auditors report to members 265(1), (4), (5) 60/300 100/500 40/200
Making false or misleading statements in relation to reports, accounts or statements 267 60/300 100/500 40/200
Failure to lodge reports with ROC 268 60/300 100/500 40/200
Failure to prepare and lodge financial reports and auditors reports within specified timeframes 270(4)–(7) 60/300 100/500 40/200
Failure to provide member copies of financial and auditors reports within specified timeframes 270(6) 60/300 100/500 40/200

Source: Fair Work (Registered Organisations) Amendment Bill 2014.

Appendix D

This table outlines the civil penalty offences contained in the Registered Organisations Act which attract an increased penalty for a serious contravention. A serious contravention attracts a maximum civil penalty of 1,200 penalty units (6,000 for a body corporate). Currently this equates to $216,000 for an individual and $1,080,000 for a body corporate. The table outlines both the previous and new penalties, expressed in penalty units with the amount applicable to a person listed first, then a body corporate second (for example: 60/300). The table also notes any increase in the penalty amount.

Table 4: serious contravention civil offence provisions

Offence Provision Old Amount (PU) New Amount – standard violation (PU) New Amount – serious violation (PU) Increase – standard violation
(PU) 		Increase – serious violation
(PU)
Breach of officer’s duties 285(1), 286(1), (2) 60/300 100/500 1,200/6,000 40/200 1,140/5,700
Improper use of position or information by an officer or employee 287, 288 60/300 100/500 1,200/6,000 40/200 1,140/5,700
Contravening a direction or order Various[261] 60/300 100/500 1,200/6,000 40/200 1,140/5,700
Failure of officers to disclose certain remuneration 293B N/A 100/500 1,200/6,000 New New
Failure to disclose material personal interest of officers 293C N/A 100/500 1,200/6,000 New New
Officer taking part in making a decision related to a material personal interest 293F N/A 100/500 1,200/6,000 New New
Failure to prepare, lodge or provide to members an officer and related party disclosure statement 293J N/A 100/500 1,200/6,000 New New
Failure of officer to undertake approved training 293K N/A 100/500 N/A New N/A

Source: Fair Work (Registered Organisations) Amendment Bill 2014.

 

Appendix E

This table outlines the strict liability civil penalty offences proposed by the Bill. The table outlines the penalties, expressed in penalty units with the amount applicable to a person.

Table 5: strict liability civil offence provisions

Offence Provision Amount (PU)
Failing to take an oath or affirmation 337AA(1)(a) 60
Prohibited person attending questioning 337AA(1)(b) 60
Failure of person to read and/or sign a record of statements made during questioning 337AA(1)(c) 60
Failure to comply with conditions associated with provision of record of statements made during questioning 337AA(1)(d) 60
Failure of lawyers to comply with direction to stop addressing an investigator or questioning a person being interviewed 337AA(2) 60

Source: Fair Work (Registered Organisations) Amendment Bill 2014.


Appendix F

This table outlines each of the new criminal offences contained in the Bill. The table outlines both the maximum penalties (in penalty units) and the maximum term of imprisonment.

Table 6: criminal offence provisions

Offence Provision Amount (PU) Term
Breach of good faith, improper use of position and improper use of information 290A 2,000 5 years
Obstructing an investigation or execution of a warrant 337AB(1) 100 2 years
Failing to provide reasonable facilities and assistance to a person executing a warrant 337AB(3) 25 6 months
Concealing documents relevant to an investigation 337AC 200 5 years
Failure of lawyer to provide required written notice when claiming legal professional privilege 337AE(3) 10 3 months
Making false misleading statements, or providing false or misleading documents or information 337(1) 100 2 years

Source: Fair Work (Registered Organisations) Amendment Bill 2014.

 

Appendix G

The table below provides the new criminal offence provisions contained in the Bill alongside their equivalents in the Corporations Act 2001 and Australian and Securities and Investment Commission Act 2001.

Table 7: comparison of criminal offences

Proposed section in the Bill Equivalent section in the Corporations Act 2001 or Australian Securities and Investment Commission Act 2001

290A Good faith—officers of organisations and branches

(1) An officer of an organisation or a branch commits an offence if he or she:

(a) is reckless; or

(b) is intentionally dishonest;

and fails to exercise his or her powers or discharge his or her duties:

(c) in good faith in the best interests of the organisation; or

(d) for a proper purpose.

Use of position—officers and employees of organisations and branches

(2) An officer or employee of an organisation or a branch commits an offence if the officer or employee uses his or her position dishonestly:

(a) with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the organisation; or

(b) reckless as to whether the use may result in himself or herself or someone else directly or indirectly gaining an advantage, or causing detriment to the organisation.

Penalty: 2,000 penalty units or imprisonment for five years, or both.

Use of information—officers and employees of organisations and branches:

(3) A person who obtains information because he or she is, or has been, an officer or employee of an organisation or a branch commits an offence if he or she uses the information dishonestly:

(a) with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the organisation; or

(b) reckless as to whether the use may result in himself or herself or someone else directly or indirectly gaining an advantage, or causing detriment to the organisation.

Penalty: 2,000 penalty units or imprisonment for five years, or both.

184 Good faith--directors and other officers[262]

(1) A director or other officer of a corporation commits an offence if they:

(a) are reckless; or

(b) are intentionally dishonest;

and fail to exercise their powers and discharge their duties:

(c) in good faith in the best interests of the corporation; or

(d) for a proper purpose.

Use of position--directors, other officers and employees

(2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly:

(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or

(b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.

Use of information--directors, other officers and employees

(3) A person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly:

(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or

(b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.

337AB Obstructing person acting under this Part

(1) A person must not:

(a) engage in conduct that results in the obstruction or hindering of a person in the exercise of a power under this Part; or

(b) engage in conduct that results in the obstruction or hindering of a person who is executing a warrant issued under section 335L.

Penalty: 100 penalty units or imprisonment for two years, or both.

(2) Subsection (1) does not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).

(3) The occupier, or person in charge, of premises that a person enters under a warrant issued under section 335L must not intentionally or recklessly fail to provide to that person all reasonable facilities and assistance for the effective exercise of his or her powers under the warrant.

Penalty: 25 penalty units or imprisonment for six months, or both.

65 Obstructing person acting under this Part[263]

(1) A person must not:

(a) engage in conduct that results in the obstruction or hindering of a person in the exercise of a power under this Part; or

(b) engage in conduct that results in the obstruction or hindering of a person who is executing a warrant issued under section 36.

Penalty: 100 penalty units or imprisonment for two years, or both.

(1A) Subsection (1) does not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code.

(2) The occupier, or person in charge, of premises that a person enters under a warrant issued under section 36 must not intentionally or recklessly fail to provide to that person all reasonable facilities and assistance for the effective exercise of his or her powers under the warrant.

Penalty: 25 penalty units or imprisonment for six months, or both.

337AC Concealing documents relevant to investigation

(1) If the Commissioner, or a person or body to whom the Commissioner has delegated the conduct of an investigation, is investigating, or is about to investigate, a matter, a person must not:

(a) in any case—engage in conduct that results in the concealment, destruction, mutilation or alteration of a document relating to that matter; or

(b) if a document relating to that matter is in a particular state or territory—engage in conduct that results in the taking or sending of the document out of that state or territory or out of Australia.

Penalty: 200 penalty units or imprisonment for five years, or both.

(2) It is a defence to a prosecution for a contravention of subsection (1) if it is proved that the defendant intended neither to defeat the purposes of the investigation, nor to delay or obstruct the investigation, or any proposed investigation under this Part.

Note: A defendant bears a legal burden in relation to a matter mentioned in subsection (2) (see section 13.4 of the Criminal Code).

67 Concealing books relevant to investigation[264]

(1) Where ASIC is investigating, or is about to investigate, a matter, a person must not:

(a) in any case--engage in conduct that results in the concealment, destruction, mutilation or alteration of a book relating to that matter; or

(b) if a book relating to that matter is in a particular state or territory--engage in conduct that results in the taking or sending of the book out of that State or Territory or out of Australia.

Penalty: 200 penalty units or imprisonment for five years, or both.

(2) It is a defence to a prosecution for a contravention of subsection (1) if it is proved that the defendant intended neither to defeat the purposes of the corporations legislation, nor to delay or obstruct an investigation, or a proposed investigation, by ASIC.

Note: A defendant bears a legal burden in relation to a matter mentioned in subsection (2), see section 13.4 of the Criminal Code.

337AE Legal professional privilege

(1) This section applies if:

(a) under this Part, a person requires a lawyer:

(i) to give information; or

(ii) to produce a document; and

(b) giving the information would involve disclosing, or the document contains, a privileged communication made by, on behalf of or to the lawyer in his or her capacity as a lawyer.

(2) The lawyer is entitled to refuse to comply with the requirement unless the person to whom, or by or on behalf of whom, the communication was made, consents to the lawyer complying with the requirement.

(3) If the lawyer so refuses, he or she must, as soon as practicable, give to the person who made the requirement a written notice setting out:

(a) if the lawyer knows the name and address of the person to whom, or by or on behalf of whom, the communication was made—that name and address; and

(b) if subparagraph (1)(a)(i) applies and the communication was made in writing—sufficient particulars to identify the document containing the communication; and

(c) if subparagraph (1)(a)(ii) applies—sufficient particulars to identify the document, or the part of the document, containing the communication.

Penalty: ten penalty units or imprisonment for three months, or both.

69 Legal professional privilege[265]

(1) This section applies where:

(a) under this Part, Division 3 of Part 10, or Division 2 of Part 11, a person requires a lawyer:

(i) to give information; or

(ii) to produce a book; and

(b) giving the information would involve disclosing, or the book contains, as the case may be, a privileged communication made by, on behalf of or to the lawyer in his or her capacity as a lawyer.

 (2) The lawyer is entitled to refuse to comply with the requirement unless:

(a) if the person to whom, or by or on behalf of whom, the communication was made is a body corporate that is being wound up--the liquidator of the body; or

(b) otherwise--the person to whom, or by or on behalf of whom, the communication was made;

consents to the lawyer complying with the requirement.

(3) If the lawyer so refuses, he or she must, as soon as practicable, give to the person who made the requirement a written notice setting out:

(a) if the lawyer knows the name and address of the person to whom, or by or on behalf of whom, the communication was made--that name and address; and

(b) if subparagraph (1)(a)(i) applies and the communication was made in writing--sufficient particulars to identify the document containing the communication; and

(c) if subparagraph (1)(a)(ii) applies--sufficient particulars to identify the book, or the part of the book, containing the communication.

Penalty: ten penalty units or imprisonment for three months, or both.

337 Offences in relation to investigation by Commissioner[266]

(1)     A person commits an offence if:

...

(b) the person gives information, or produces a document, in purported compliance with a requirement under subsection 335(2), and the person knows, or is reckless as to whether, the information or document is false or misleading; or

(c) when attending before the Commissioner or delegate in accordance with a requirement under subsection 335(2), the person makes a statement, whether orally or in writing, and the person knows, or is reckless as to whether, the statement is false or misleading ; or

...

Penalty: 100 penalty units or imprisonment for twpo years, or both.

...

(2) Paragraphs (1)(a) and (d) do not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matters in subsections (2) to (4) (see subsection 13.3(3) of the Criminal Code).

64 False information[267]

(1) A person must not:

(a) in purported compliance with a requirement made under this Part; or

(b) in the course of an examination of the person;

give information, or make a statement, that is false or misleading in a material particular.

Penalty: 100 penalty units or imprisonment for two years, or both.

(2) A person must not, at a hearing, give evidence that is false or misleading in a material particular.

Penalty: ten penalty units or imprisonment for three months, or both.

(3) It is a defence to a prosecution for a contravention of subsection (1) or (2) if it is proved that the defendant, when giving the information or evidence or making the statement, believed on reasonable grounds that it was true and not misleading.

Note: A defendant bears a legal burden in relation to the matter in subsection (3), see section 13.4 of the Criminal Code.

Source: Fair Work (Registered Organisations) Amendment Bill 2014, Corporations Act 2001, Australian and Securities Investment Commission Act 2001.


Appendix H

The table below provides some of the new coercive power provisions in the Bill alongside their equivalents in the Australian Securities and Investment Commission Act 2001.

Table 8: comparison of coercive power provisions

Proposed section in the Bill Equivalent section in the Australian Securities and Investments Commission Act 2001

335K Application for warrant to seize documents

(1) If the Commissioner has reasonable grounds to suspect that there are, or may be within the next three days, on particular premises in Australia, documents whose production could be required under section 335, he or she may:

(a) lay before a magistrate an information on oath or affirmation setting out those grounds; and

(b) apply for the issue of a warrant to search the premises for those documents.

(2) On an application under this section, the magistrate may require further information to be given, either orally or by affidavit, in connection with the application.

35 Application for warrant to seize books

(1) Where a member or staff member has reasonable grounds to suspect that there are, or may be within the next three days, on particular premises in Australia, books whose production could be required under this Division, he or she may:

(a) lay before a magistrate an information on oath or affirmation setting out those grounds; and

(b) apply for the issue of a warrant to search the premises for those books.

(2) On an application under this section, the magistrate may require further information to be given, either orally or by affidavit, in connection with the application.

335L Grant of warrant

(1) This section applies if, on an application under section 335K, the magistrate is satisfied that there are reasonable grounds to suspect that there are, or may be within the next three days, on particular premises, particular documents whose production could be required under section 335.

(2) The magistrate may issue a warrant authorising a member of the Australian Federal Police, whether or not named in the warrant, together with any person so named, with such assistance, and by such force, as is necessary and reasonable:

(a) to enter on or into the premises; and

(b) to search the premises; and

(c) to break open and search anything, whether a fixture or not, in or on the premises; and

(d) to take possession of, or secure against interference, documents that appear to be any or all of those documents.

(3) If the magistrate issues such a warrant, he or she must set out on the information laid before him or her under section 335K for the purposes of the application:

(a) which of the grounds set out in the information; and

(b) particulars of any other grounds;

he or she has relied on to justify the issue of the warrant.

(4) A warrant under this section must:

(a) specify the premises and documents referred to in subsection (1); and

(b) state whether entry is authorised to be made at any time of the day or night or only during specified hours; and

(c) state that the warrant ceases to have effect on a specified day three that is not more than seven days after the day of issue of the warrant.

36 Grant of warrant

 (1) This section applies where, on an application under section 35, the magistrate is satisfied that there are reasonable grounds to suspect that there are, or may be within the next three days, on particular premises, particular books whose production could be required under this Division.

(2) The magistrate may issue a warrant authorising a member of the Australian Federal Police, whether or not named in the warrant, together with any person so named, with such assistance, and by such force, as is necessary and reasonable:

(a) to enter on or into the premises; and

(b) to search the premises; and

(c) to break open and search anything, whether a fixture or not, in or on the premises; and

(d) to take possession of, or secure against interference, books that appear to be any or all of those books.

(3) If the magistrate issues such a warrant, he or she must set out on the information laid before him or her under subsection 35(2) for the purposes of the application:

(a) which of the grounds set out in the information; and

(b) particulars of any other grounds;

he or she has relied on to justify the issue of the warrant.

(4) A warrant under this section must:

(a) specify the premises and books referred to in subsection (1); and

(b) state whether entry is authorised to be made at any time of the day or night or only during specified hours; and

(c) state that the warrant ceases to have effect on a specified day that is not more than seven days after the day of issue of the warrant.

335M Execution of warrant

(1) Before any person enters premises under a search warrant issued under section 335L, a member of the Australian Federal Police must:

(a) announce that the member is authorised to enter the premises; and

(b) give any person at the premises an opportunity to allow entry to the premises.

(2) However, the member of the Australian Federal Police is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated.

(3) If the occupier of the premises is present at the premises:

(a) the member of the Australian Federal Police must make available to the occupier a copy of the warrant; and

(b) the occupier is entitled to observe the search being conducted.

(4) The occupier’s right to observe the search being conducted ends if the occupier impedes the search.

(5) This section does not prevent two or more areas of the premises being searched at the same time.

(6) If documents are seized under the warrant, the member of the Australian Federal Police or a person assisting the member must provide a receipt for the documents.

(7) If two or more documents are seized, they may be covered in the one receipt.

36A Execution of warrant

 (1) Before any person enters premises under a search warrant issued under section 36, a member of the Australian Federal Police must:

(a) announce that the member is authorised to enter the premises; and

(b) give any person at the premises an opportunity to allow entry to the premises.

(2) However, the member of the Australian Federal Police is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated.

(3) If the occupier of the premises is present at the premises:

(a) the member of the Australian Federal Police must make available to the occupier a copy of the warrant; and

(b) the occupier is entitled to observe the search being conducted.

(4) The occupier's right to observe the search being conducted ends if the occupier impedes the search.

(5) This section does not prevent two or more areas of the premises being searched at the same time.

(6) If books are seized under the warrant, the member of the Australian Federal Police or a person assisting the member must provide a receipt for the books.

(7) If two or more books are seized, they may be covered in the one receipt.

335N Powers in relation to documents produced or seized

(1) This section applies if:

(a) documents are produced to a person under a requirement made under section 335; or

(b) under a warrant issued under section 335L, a person:

(i) takes possession of documents; or

(ii) secures documents against interference; or

(c) by virtue of a previous application of subsection (8) of this section, documents are delivered into a person’s possession.

(2) If paragraph (1)(a) applies, the person may take possession of any of the documents.

(3) The person may inspect, and may make copies of, or take extracts from, any of the documents.

(4) The person may use, or permit the use of, any of the documents for the purposes of a proceeding.

(5) The person may retain possession of any of the documents for so long as is necessary:

(a) for the purposes of exercising a power conferred by this section (other than this subsection and subsection (7)); or

(b) for the purposes of conducting the investigation concerned; or

(c) for a decision to be made about whether or not a proceeding to which the documents would be relevant should be begun; or

(d) for such a proceeding to be begun and carried on.

(6) No-one is entitled, as against the person, to claim a lien on any of the documents, but such a lien is not otherwise prejudiced.

(7) While the documents are in the person’s possession, the person:

(a) must permit another person to inspect at all reasonable times such (if any) of the documents as the other person would be entitled to inspect if they were not in the first-mentioned person’s possession; and

(b) may permit another person to inspect any of the documents.

(8) Unless subparagraph (1)(b)(ii) applies, the person may deliver any of the documents into the possession of the Commissioner or of a person authorised by the Commissioner to receive them.

(9) If paragraph (1)(a) or (b) applies, the person, or a person into whose possession the person delivers any of the documents under subsection (8), may require:

(a) if paragraph (1)(a) applies—a person who so produced any of the documents; or

(b) in any case—a person who was a party to the compilation of any of the documents;

to explain any matter about the content of any of the documents or to which any of the documents relate.

Note: Failure to comply with a requirement made under this subsection is an offence (see section 337).

37 Powers where books produced or seized

(1) This section applies where:

(a) books are produced to a person under a requirement made under this Division; or

(b) under a warrant issued under section 36, a person:

 (i) takes possession of books; or

(ii) secures books against interference; or

(c) by virtue of a previous application of subsection (8) of this section, books are delivered into a person's possession.

(2) If paragraph (1)(a) applies, the person may take possession of any of the books.

(3) The person may inspect, and may make copies of, or take extracts from, any of the books.

(4) The person may use, or permit the use of, any of the books for the purposes of a proceeding.

(5) The person may retain possession of any of the books for so long as is necessary:

(a) for the purposes of exercising a power conferred by this section (other than this subsection and subsection (7)); or

(b) for any of the purposes referred to in paragraphs 28(a), (b) and (d) or 30A(2)(a), (b) and (d), as the case requires; or

(c) except in the case of books required to be produced for a purpose specified in subparagraph 30A(2)(a)(ii) or 30A(2)(b)(ii)--for a decision to be made about whether or not a proceeding to which the books concerned would be relevant should be begun; or

(d) for such a proceeding to be begun and carried on.

(6) No-one is entitled, as against the person, to claim a lien on any of the books, but such a lien is not otherwise prejudiced.

(7) While the books are in the person's possession, the person:

(a) must permit another person to inspect at all reasonable times such (if any) of the books as the other person would be entitled to inspect if they were not in the first-mentioned person's possession; and

(b) may permit another person to inspect any of the books.

(8) Unless subparagraph (1)(b)(ii) applies, the person may deliver any of the books into the possession of ASIC or of a person authorised by it to receive them.

(9) If paragraph (1)(a) or (b) applies, the person, or a person into whose possession the person delivers any of the books under subsection (8), may require:

(a) if paragraph (1)(a) applies--a person who so produced any of the books; or

(b) in any case--a person who was a party to the compilation of any of the books;

to explain any matter about the compilation of any of the books or to which any of the books relate.

Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).

(10) In this section:

"proceeding" includes:

(a) in relation to a contravention of Division 2 of Part 2--a proceeding under a law of the Commonwealth, a state or a territory; and

(b) otherwise--a proceeding under a law of the Commonwealth, or of a state or territory in this jurisdiction.

 

[1].         Links to the original Bill, its Explanatory Memorandum, second reading speech and its Bill’s Digest can be found on the original Bill’s home page: Parliament of Australia, ‘Fair Work (Registered Organisations) Amendment Bill 2013 homepage’, Australian Parliament website; Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, p. xii.

[2].         Parliament of Australia, ‘Fair Work (Registered Organisations) Amendment Bill 2014 homepage’, Australian Parliament website.

[3].         C Pyne, ‘Consideration in detal: Fair Work (Registered Organisations) Amendment Bill 2014’, House of Representatives, Debates, 15 July 2014, p. 7996; Fair Work (Registered Organisations) Amendment Bill 2014, Proposed amendments (Government [sheet BT278]).

[4].         Ibid.; Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, op. cit., p. xii.

[5].         Parliament of Australia, ‘Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2] homepage’, Australian Parliament website

[6].         Senate Education and Employment Legislation Committee, Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2] [Provisions] , The Senate, Canberra, 11 August 2015, p. 1; Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, op. cit., p. xii.

[7].         Parliament of Australia, ‘Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2] homepage’, op. cit.; Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, op. cit., p. xii.

[8].         Proclamation, Dissolution of the Senate and the House of Representatives, Government Notice Gazette C2016G00628, 9 May 2016.

[9].         Parliament of Australia, ‘Fair Work (Registered Organisations) Amendment Bill 2014 [No. 3] homepage’, Australian Parliament website; Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, op. cit., p. xii.

[10].      Parliament of Australia, 'Fair Work (Registered Organisations) Amendment Bill 2014 homepage', Australian Parliament website.

[11].      Constitution, section 57.

[12].      J Murphy and A Holmes, Fair Work (Registered Organisations) Amendment Bill 2013, Bills digest, 24, 2013–14, Parliamentary Library, Canberra, 2013.

[13].      J Murphy and A Holmes, Fair Work (Registered Organisations) Amendment Bill 2014, Bills digest, 98, 2013–14, Parliamentary Library, Canberra, 2014.

[14].      J Murphy and A Holmes, Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2], Bills digest, 91, 2014–15, Parliamentary Library, Canberra, 2015.

[15].      Fair Work (Registered Organisations) Act 2009.

[16].      Fair Work Act 2009.

[17].      S Sen, The double dissolution process: questions and references, Research note, 45, 2002–03, Department of the Parliamentary Library, Canberra, 23 June 2003: ‘A Bill re-introduced into the House of Representatives for the second time, or following a double dissolution election, can only differ insofar as it contains amendments that have been made, suggested or agreed to by the Senate.’ See also: K Magarey, Alcopops makes the House see double: 'the proposed law' in section 57 of the Constitution, Research paper, 32, 2008–09, Parliamentary Library, Canberra, 12 May 2009: ‘... commencement dates do, on occasion, have a significance, and, since there is no mechanism for determining when such an adjustment should be given that significance, the safest path for a government will be to preserve absolute textual identity.’

[18]       M Turnbull, ‘Second reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’, House of Representatives, Debates, 31 August 2016, p. 29.

[19].      Murphy and Holmes, Fair Work (Registered Organisations) Amendment Bill 2013, Bills digest, 24, 2013–14, op. cit.

[20].      T Abbott (Prime Minister), E Abetz (Minister for Employment) and G Brandis (Attorney-General), Royal Commission into trade union governance and corruption [and] terms of reference, joint media release, 10 February 2014.

[21].      E Abetz (Minister for Employment) and G Brandis (Attorney-General), Royal Commission into trade union governance and corruption established, media release, 14 March 2014.

[22].      Royal Commission into Trade Union Governance and Corruption, Letters Patent, 13 March 2014, p. 2.

[23].      The Royal Commission into Trade Union Governance and Corruption, ‘Vol. 1, Appendix 1: law reform recommendations’, Final report, The Royal Commission into Trade Union Governance and Corruption, Canberra, 28 December 2015, para. 32.

[24].      Ibid.

[25].      Senate Standing Committee for Selection of Bills, Report, 5, 2016, The Senate, 1 September 2016.

[26].      Senate Standing Committee on Education and Employment Legislation, ‘Fair Work Amendment (Registered Organisations) Amendment Bill 2014’, Inquiry homepage.

[27].      Senate Standing Committee on Education and Employment Legislation, Building and Construction Industry (Improving Productivity) Bill 2013 [Provisions], Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 [Provisions], Fair Work (Registered Organisations) Amendment Bill 2014 [Provisions] , The Senate, Canberra, October 2016, p. 3.

[28].      Labor Senators, Dissenting report, Senate Standing Committee on Education and Employment Legislation, Building and Construction Industry (Improving Productivity) Bill 2013 [Provisions], Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 [Provisions], Fair Work (Registered Organisations) Amendment Bill 2014 [Provisions], The Senate, Canberra, 2016, p. 5; Greens Senators, Dissenting report, Senate Standing Committee on Education and Employment, Building and Construction Industry (Improving Productivity) Bill 2013 [Provisions], Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 [Provisions], Fair Work (Registered Organisations) Amendment Bill 2014 [Provisions], The Senate, Canberra, 2016, p. 11.

[29].      Senate Education and Employment Legislation Committee, ‘Fair Work (Registered Organisations) Amendment Bill 2013’, Inquiry homepage.

[30].      Senate Standing Committee on Education and Employment, Fair Work (Registered Organisations) Amendment Bill 2013 [Provisions], The Senate, Canberra, December 2013; Holmes and Murphy, Fair Work (Registered Organisations) Amendment Bill 2013, Bills Digest, 24, 2013–14, op. cit., pp. 9–12.

[31].      Senate Standing Committee on Education and Employment Legislation, Fair Work (Registered Organisations) Amendment Bill 2013 [Provisions], op. cit., p. 21.

[32].      Ibid., p. 25.

[33].      Supplementary Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2013, pp. 1, 9–12; Fair Work (Registered Organisations) Amendment Bill 2013, Proposed amendments (Government [sheet BT261]).

[34].      Senate Education and Employment References Committee, ‘Fair Work (Registered Organisations) Amendment Bill 2013’, Inquiry homepage.

[35].      Senate Education and Employment References Committee, Fair Work (Registered Organisations) Amendment Bill 2013 [Provisions],
The Senate, Canberra, March 2014, recommendation 1.

[36].      Ibid., p. 51.

[37].      Senate Education and Employment Legislation Committee, ‘Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]’, Inquiry homepage.

[38].      Senate Education and Employment Legislation Committee, ‘Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2] [Provisions]’, The Senate, Canberra, August 2015, p. vii.

[39].      Ibid., p. 9.

[40].      Ibid., p. 11.

[41].      Murphy and Holmes, Fair Work (Registered Organisations) Amendment Bill 2013, Bills digest, 24, 2013–14, op. cit.; Murphy and Holmes, Fair Work (Registered Organisations) Amendment Bill 2014, Bills digest, 98, 2013–14, op. cit.; Murphy and Holmes, Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2], Bills digest, 91, 2014–15, op. cit.

[42].      Senate Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2015, The Senate, 25 March 2015, p. 16: ‘A version of this bill was first introduced into the House of Representatives on 14 November 2013 and the committee commented on it in Alert Digest No. 9 of 2013. The Minister’s response to the committee’s concerns was then published in its Fourth Report of 2014. An identical bill was introduced into the Senate on 17 July 2014 and the committee commented on it in Alert Digest No. 7 of 2014. The Minister’s response to the committee’s concerns was then published in its Ninth Report of 2014. This bill is also in identical terms to the bills mentioned above. As the committee's earlier comments are still relevant to this bill, the committee repeats relevant information from Alert Digest No. 7 of 2014.’

[43].      Senate Standing Committee for the Scrutiny of Bills, Alert digest, 9, 2013, The Senate, 11 December 2013, p. 21; Senate Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2015, op. cit., pp. 17–19.

[44].      Senate Standing Committee for the Scrutiny of Bills, Alert digest, 9, 2013, op. cit., p. 22; Senate Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2015, op. cit., pp. 17–30.

[45].      Senate Standing Committee for the Scrutiny of Bills, Alert digest, 9, 2013, op. cit., pp. 22–26; Senate Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2015, op. cit., pp. 22–30.

[46].      Senate Standing Committee for the Scrutiny of Bills, Report, 4, 2014, The Senate, 26 March 2014, pp. 127–141, Attachment C.; Senate Standing Committee for the Scrutiny of Bills, Report, 5, 2015, op. cit., pp. 343–344, 347–349, 351–354.

[47].      Senate Standing Committee for the Scrutiny of Bills, Report, 5, 2015, op. cit., p. 139. See the earlier Bills Digest in relation to: similarities of offences to those under the Corporations Act 2001 (items 223, 226–228) see pp. 18, 34–37; proposed strict liability offences, see item 230 (proposed section 337AA) and p. 18; reversal of onus of proof, see proposed section 337AC and p. 19; abrogation of the privilege against self-incrimination, see item 230 (proposed section 337AD) and pp. 19–24; broadening the scope of admissible evidence against defendants see proposed section 337AF–337AK (item 230) and pp. 31–32. All page number references are to Murphy and Holmes, Fair Work (Registered Organisations) Amendment Bill 2013, Bills digest, 24, 2013–14, op. cit.

[48].      Senate Standing Committee for the Scrutiny of Bills, Alert digest, 4, 2015, op. cit., pp. 16, 19, 22–23, 25, 27, 30; Senate Standing Committee for the Scrutiny of Bills, Report, 5, 2015, op. cit., pp. 343–344, 347–349, 351–354.

[49].      See for example: Senate Standing Committee for the Scrutiny of Bills, Report, 4, 2014, op. cit., pp. 133, 135–136, 139; Senate Standing Committee for the Scrutiny of Bills, Alert digest, 7, 2014, The Senate, 25 June 2014, pp. 19, 21, 23–24, 26–27, 29; Senate Standing Committee for the Scrutiny of Bills, Report, 9, 2014, The Senate, 16 July 2014, pp. 367.

[50].      Senate Standing Committee for the Scrutiny of Bills, Report, 5, 2015, The Senate, 13 May 2015, pp. 343–355.

[51].      Ibid., p. 456.

[52].      Ibid.

[53].      Ibid., p. 354.

[54].      Senate Standing Committee on Education and Employment Legislation, Fair Work (Registered Organisations) Amendment Bill 2013 [Provisions], op. cit., p. 21; Senate Education and Employment References Committee, Fair Work (Registered Organisations) Amendment Bill 2013 [Provisions], The Senate, Canberra, March 2014; Senate Education and Employment Legislation Committee, Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2] [Provisions], The Senate, Canberra, August 2015, p. 9.

[55].      Fair Work (Registered Organisations) Amendment Act 2012; S Lines, ‘Second reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’, Senate, Debates, 11 February 2015, p. 427.

[56].      C Bilyk, ‘Second reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’, Senate, Debates, 11 February 2015, p. 418.

[57].      Lines, ‘Second reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’, op. cit.

[58].      Senate Education and Employment Legislation Committee, Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2] [Provisions], The Senate, Canberra, August 2015, p. 11.

[59].      J Rice, ‘Second reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’, Senate, Debates, 11 February 2015, p. 414.

[60].      Australia, Senate, Journals, 79, 2013–2015, 2 March 2015, p. 2209.

[61].      N Xenophon, ‘Second reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’, Senate, Debates, 2 March 2015, p. 859.

[62].      M Doran, ‘ABCC and Registered Organisation bills scheduled for Senate debate’, ABC News, (online edition), 16 November 2016: ‘One Nation's four senators have said they may back the legislation, although Western Australia's Rod Culleton has voiced concerns.’; C Gribbin, ‘One Nation's four senators to vote for ABCC bill, Malcolm Roberts reveals’, ABC News, (online edition), 22 October 2016: ‘The party's Queensland Senator Malcolm Roberts used a speech today to outline One Nation's commitment to supporting the Australian Building and Construction Commission (ABCC) and Registered Organisations bills that triggered a double dissolution election. "Let me confirm our united party is inclined to support the Government's ABCC and [Registered Organisations] legislation as it stands, because the bills promote freedom," Senator Roberts said.’

[63].      B Potter, ‘Hinch wary on super, seeks deal’, The Australian Financial Review Weekend, 13 August 2016, p. 4: ‘On the Australian Building and Construction Commission, Mr Hinch said he didn't want to "risk anything that will hurt workers but I also loathe corruption, so somewhere between those two we’ll work out where to go".’

[64].      Australia, Senate, Journals, 79, 2013–2015, 2 March 2015, p. 2209; Australia, Senate, Journals, 107, 2013–2015, 17 August 2015, p. 2963.

[65].      J Lambie, ‘Second reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’, Senate, Debates, 2 March 2015, p. 857.

[66].      Australia, Senate, Journals, 107, 2013–2015, 17 August 2015, p. 2963. Senator Leyonhjelm also voted in favour of the 2014 Bill: Australia, Senate, Journals, 79, 2013–2015, 2 March 2015, p. 2209.

[67].      P Coorey, ‘Senate rides shotgun on lR bills’, The Australian Financial Review, 18 October 2016, p. 1; D Crowe, ‘Leyonhjelm’s offer: softer gun laws for his ABCC vote’, The Australian, 18 October 2016, p. 1; Doran, ‘ABCC and Registered Organisation bills scheduled for Senate debate’, op. cit.: ‘Liberal Democrat David Leyonhjelm has used the legislation as a bargaining tool, including on measures to change race hate laws.’

[68].      Australia, House of Representatives, ‘Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]’, Votes and proceedings, HVP 130, 25 June 2015, p. 1463.

[69].      Australia, House of Representatives, ‘Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]’, Votes and proceedings, op. cit., p. 1463; Australia, House of Representatives, ‘Fair Work (Registered Organisations) Amendment Bill 2013’, Votes and proceedings, HVP 15, 12 December 2013, p. 234.

[70].      Australia, House of Representatives, ‘Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]’, Votes and proceedings, op. cit., p. 1463; Australia, House of Representatives, ‘Fair Work (Registered Organisations) Amendment Bill 2013’, Votes and proceedings, op. cit., p. 234.

[71].      For example, see: Submissions to Senate Standing Committee on Education and Employment, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2013, The Senate, 2013.

[72].      Australian Industry Group (AIG), Submission to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014, 27 September 2016, pp. 3 and 15.

[73].      Ibid., p. 14.

[74].      Ibid.

[75].      Ibid., p. 15.

[76].      Ibid.

[77].      Australian Chamber of Commerce and Industry (ACCI), Submission to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014, 27 September 2016, p. 5. See also: ACCI, Submission to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2], 30 June 2015.

[78].      Ibid.

[79].      Ibid., p. 5.

[80].     See the Submissions by these organisations to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2013, 2013.

[81].     Master Builders Australia (MBA), Submission to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014, 27 September 2016, p. 16.

[82].      Australian Mines and Metals Association (AMMA), Submission to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014, 27 September 2016, p. 2: ‘Registered organisations of both employees (unions) and of employers should be subject to the same rules as apply to corporations. Registered organisations should be made subject to the Corporations Act in full, not specialised legislation for industrial organisations.’ (emphasis added); See also: AMMA, AMMA says all registered organisations must be treated as corporations, media release, 21 June 2012.

[83].      AMMA, Submission to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014, op. cit., p. 5.

[84].      Australian Council of Trade Unions (ACTU), Submission to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014, 27 September 2016, p. 1.

[85].      Ibid.

[86].      ACTU, Submission to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2013, 22 November 2013, p. 3.

[87].      ACTU, Submission to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014, 27 September 2016, p. 2.

[88].      ACTU, Submission to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2013), 22 November 2013, pp. 7, 13 and 35.

[89].      Ibid., pp. 12–13.

[90].      Parliamentary Joint Committee on Human Rights, Ninth Report of the 44th Parliament, 15 July 2014, pp. 24–25.

[91].      ACTU, Submission to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2013), 22 November 2013, pp. 33–35.

[92].      ACTU, Submission to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014), op. cit., p. 2.

[93].      Ibid., pp. 2–3.

[94].      See the Submissions by these organisations to the Submission to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014, 2014., and Submissions to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2013, 2013.

[95].      MUA), Submission to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014, op. cit., pp. 3–4.

[96].      Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, op. cit., p. ii.

[97].      The Statement of Compatibility with Human Rights can be found after page 54 of the Explanatory Memorandum to the Bill.

[98].      Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, Statement of Compatibility with Human Rights, p. 8.

[99].      PJCHR, Ninth Report of the 44th Parliament, 15 op. cit., para [1.137].

[100].   The original Bill was considered in the following reports: PJCHR, First Report of the 44th Parliament, 10 December 2013, pp. 21–28 and PJCHR, Fifth Report of the 44th Parliament, 25 March 2014, pp. 63–65. The 2014 Bill was considered in PJCHR, Ninth Report of the 44th Parliament, op. cit., pp. 21–28. The 2014 No. 2 Bill was considered in PJCHR, Twenty-second Report of the 44th Parliament, 15 May 2015, pp. 47–53. The No. 3 Bill was considered in PJCHR, Thirty-eighth Report of the 44th Parliament, 3 May 2016, p. 3.

[101].   PJCHR, Twenty-second Report of the 44th Parliament, op. cit., p. 48 .

[102].   Ibid.

[103].   Ibid., pp. 50–52.

[104].   Ibid., p. 48.

[105].   Ibid., p. 49.

[106].   Ibid.

[107].   Ibid., pp. 50–51.

[108].   Ibid., p. 51.

[109].   Ibid., p. 50.

[110].   Ibid., p. 51.

[111].   Ibid.

[112].   Ibid., p. 52.

[113].   Ibid.

[114].   Ibid.

[115].   Liberal Party of Australia and the Nationals, The Coalition's policy for better transparency and accountability of registered organisations, Coalition policy document, Election 2013.

[116].   Liberal Party of Australia and the Nationals, Cleaning up the construction industry, Coalition policy document, Election 2016: ‘The Coalition’s Registered Organisations Bill will restore honesty and fairness to the workplace relations system. It will strengthen existing financial accounting, disclosure and transparency obligations...’; See also: Liberal Party of Australia and the Nationals, The Coalition's commitment to fairness and transparency in workplaces, media release, 17 June 2016.

[117].   Proposed sections 293B, 293BA, 293BB.

[118].   Noting that under section 300A of the Corporations Act and table item 21 of regulation 2M.3.03 of the Corporation regulations 2001, a $100,000 threshold is prescribed for the aggregate of loans made by the disclosing entity and any of its subsidiaries to (a) a particular key management person (b) close members of the family of the key management person and (c) an entity over which any of the persons mentioned in paragraphs (a) and (b) has, directly or indirectly, control, joint control or significant influence.

[119].   Proposed paragraphs 293B(1)(b) and 293(2)(b).

[120].   Section 4AA of the Crimes Act 1914 provides that a penalty unit is currently equal to $180.

[121].   Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, p. 29.

[122].   This reflects the general approach to corporate penalties set out at section 4B of the Crimes Act.

[123].   Corporations Act 2001, subsection 296(1).

[124].   Australian Accounting Standards Board (AASB), Related party disclosures, AASB, 1017, AASB website, February 1997, rule 4.

[125].   AASB, Director and executive disclosures by disclosing entities, AASB, 1046, AASB website, January 2004, pp. 6–9 and rules 4, 5 and 6.

[126].   Proposed subsection 293BC(3), proposed section 293J.

[127].   Pyne, ‘Second reading speech: Fair Work (Registered Organisations) Amendment Bill 2013’, op. cit., p. 273.

[128].   Corporations Act 2001, section 191.

[129].   See for example Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 225 FLR 1, [2008] WASC 239 at [4509]: ‘... I think it is common ground that the phrase is not confined to pecuniary interests. It extends to non-pecuniary and indirect interests ...’

[130].   Corporations Act 2001, sections 207, 208, 209 and 210.

[131].   Corporations Act 2001, subsections 228(2) and (3). For a detailed analysis of disclosure requirements related to executive remuneration under the Corporations Act 2001 see: J Corkery and S Medarevic, ‘Executive remuneration under scrutiny: the cutting edge of the “shareholder spring”’, Corporate Governance eJournal, 1 February 2013, pp. 1–6.

[132].   Fair Work (Registered Organisations) Amendment Bill 2013, proposed subsections 293C(1), (2). ‘Relative’ is defined at section 6 of the Registered Organisations Act as the spouse, de facto partner, parent, step-parent, child, stepchild, grandparent, grandchild, brother or sister of a person.

[133].   Proposed subsections 293C(2), (3) of the Registered Organisations Act.

[134].   Corporations Act 2001, section 192.

[135].   Corporations Act 2001, paragraphs 191(2)(a)(iv) and (vi). See also paragraphs 191(2)(a)(v) and (vii), paragraph 191(2)(b).

[136].   Proposed subsections 293F(1)–(3).

[137].   Proposed subsections 293F(3) and (4).

[138].   Corporations Act 2001, section 195.

[139].   Proposed subsection 293D(4).

[140].   Proposed section 293J.

[141].   Proposed subsection 293J(3).

[142].   Proposed subsections 293G(1), (2) and (3).

[143].   Proposed subsection 293G(4).

[144].   Proposed subsection 293G(6).

[145].   Proposed subsection 293G(5A).

[146].   Proposed subsections 293G(5B) and (5C).

[147].   Corporations Regulations 2001, regulation 2E.1.01.

[148].   Proposed subsection 293G(5D).

[149].   Corporations Act 2001, subsection 208(1).

[150].   Proposed subsection 293H(8) provides that the section applies in relation to both organisations and their branches.

[151].   Proposed subsections 293H(2) and (3).

[152].   Proposed subsection 293H(5).

[153].   Proposed subsection 293H(7).

[154].   Proposed subsections 293H(6).

[155].   For example, items 7–10, 12, 14–17, 28, 29, 32–35, 41–44, 48–55, 71, 72, 79–85, 87–88, 90, 91, 100–106, 116–121, 124–125, 128–137, 148–162, 168–186, 188–196, 198–199 in Schedule 2.

[156].   Section 1317G(1)b) of the Corporations Act 2001 provides that a court may order a pecuniary penalty of up to $200,000 where there has been a contravention of a civil penalty provision that: ‘(i) materially prejudices the interests of the corporation or scheme, or its members; or (ii) materially prejudices the corporation's ability to pay its creditors; or (iii) is serious’. Subsection 1317G(1A), which applies to financial services civil penalty provisions, is similarly worded, and allows a court to impose the maximum pecuniary penalty.

[157].   Proposed subsection 337AA(3).

[158].   Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, Statement of Compatability with Human Rights, op. cit., p. 9.

[159].   Senate Standing Committee for the Scrutiny of Bills, Report, 5, 2015, op. cit., pp. 344 and 346.

[160].   Proposed subsection 337AB(2).

[161].   Proposed subsection 337AB(1).

[162].   Australian Securities and Investments Commission Act 2001.

[163].   Proposed subsection 337AC(2).

[164].   Proposed subsection 337AC(1).

[165].   Proposed subsections 337AE(1), (2).

[166].   Proposed subsection 337AE(3).

[167].   Proposed subsection 337AE(3).

[168].   For ease of comparison, the table in Appendix G sets out the two provisions alongside each other.

[169].   Australian Government Department of Employment, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Fair Work (Registered Organisations) Amendment Bill 2014, 2014, p. 6.

[170].   Liberal Party of Australia and the Nationals, The Coalition's policy for better transparency and accountability of registered organisations, op. cit., p. 5.

[171].   Pyne, ‘Second reading speech: Fair Work (Registered Organisations) Amendment Bill 2013’, op. cit., p. 19.

[172].   See for example: items 89 of Schedule 1, 212-230 of Schedule 2.

[173].   Fair Work (Registered Organisations) Act 2009, sections 330, 331.

[174].   Ibid., sections 335, 335A generally.

[175].   Ibid.

[176].   Ibid., section 337F.

[177].   Ibid., subsection 337AA(6).

[178]    ‘Use’ immunity is defined as where a person is required to answer questions which would tend to incriminate or expose him or herself to a penalty, any information or evidence given that would tend to incriminate the person may not be used against him or her directly in court. In comparison, ‘derivative use’ immunity is where any information or evidence given that would tend to incriminate the person may not be used to gather other evidence against that person: Attorney-General’s Department, A guide to framing Commonwealth offences, infringement notices and enforcement powers, Attorney-General’s Department, Canberra, September 2011, pp. 97, 98.

[179].   Fair Work (Registered Organisations) Act 2009, subsections 337AA(2), (3), (7).

[180].   Ibid., sections 305, 337 and 337AA.

[181].   Ibid., sections 337A, 337B and 337C.

[182].   Corporations Act 2001. Sections 672A and 912C provide ASIC with the power to issue disclosure notices and to require entities to provide certain statements.

[183].   Australian Securities and Investments Commission Act 2001. Sections 28 to 39B allow ASIC to require production of books. This power is governed by section 28. In addition, ASIC has broader powers under sections 13 and 19.

[184].   Australian Securities and Investments Commission Act 2001, sections 30, 30A, 31, 32A and 33.

[185].   Ibid., section 13.

[186].   Ibid., section 21.

[187].   Ibid., sections 22 and 23.

[188].   See footnote 178 for an explanation of use and derivative use immunity.

[189].   Administrative Review Council (ARC), The coercive information-gathering powers of government agencies, report, 48, ARC, Canberra, May 2008, p. 50.

[190].   Ibid.

[191].   Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, op. cit., p. xii: ‘The Bill aims to amend the RO Act to ensure as far as possible, that registered organisations are regulated in the same way as companies and directors.’

[192].   Item 216.

[193].   Item 216.

[194].   Item 220.

[195].   Proposed sections 335C, 335D at item 223 of Schedule 2.

[196].   Proposed section 335Q.

[197].   Proposed sections 335K, 335L.

[198].   Proposed section 335M.

[199].   Proposed section 335N.

[200].   Proposed section 335P.

[201].   Proposed subsection 337AD(2).

[202].   Proposed section 335F. See also: Australian Securities and Investment Commission Act 2001, section subsection 23(2).

[203].   Proposed subsections 337(2), (3) and (4).

[204].   Proposed subsection 337AD(1).

[205].   Proposed paragraph 335G(2)(a).

[206].   Proposed section 329DB.

[207].   Proposed section 329DC.

[208].   Proposed section 329DD.

[209].   Fair Work Act 2009.

[210].   Acts Interpretation Act 1901, section 33AA.

[211].   Proposed section 329BC. As per section 33A of the Acts Interpretation Act 1901, the maximum term for such appointments is 12 months.

[212].   Proposed section 329BF.

[213].   Proposed section 329BG.

[214].   Proposed subsection 329CA(1).

[215].   Proposed subsection 329CB.

[216].   Proposed subsection 329CC.

[217].   Liberal Party of Australia and the Nationals, The Coalition's policy for better transparency and accountability of registered organisations, op. cit., p. 5.

[218].   Explanatory Memorandum, Fair Work (Registered Organisations) Act 2009, p. 14.

[219].   Legislation Act 2003.

[220].   Proposed subsection 329FB(1).

[221].   Proposed subsections 329FB(2) and (3).

[222].   Proposed subsection 329FC(1).

[223].   Details to be incorporated into the report include: when each investigation was started, when it was completed and, if it has not been completed, when it is expected to be completed. See proposed paragraph 329FC(2)(b).

[224].   Proposed paragraph 329FC(2)(c).

[225].   Proposed paragraph 329FC(2)(d).

[226].   Proposed paragraph 329FC(2)(e).

[227].   Fair Work Commission (FWC), ‘Service charter’, FWC website, last updated 24 February 2016; Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, op. cit., p. vii.

[228].   Liberal Party of Australia and the Nationals, The Coalition's policy for better transparency and accountability of registered organisations, op. cit., p. 2.

[229].   Proposed paragraph 329AB(a).

[230].   Proposed paragraphs 329AB(b), (c) and (d).

[231].   Fair Work (Registered Organisations) Act 2009, subsection 95(1).

[232].   Ibid., subsections 95(3A), (3B) and (3C).

[233].   Ibid., chapter 7 generally.

[234].   This includes: a declaration that it has maintained its register of members in accordance with paragraph 230(1)(a) and subsection 230(2) of the Registered Organisations Act and lodging a copy of a list of offices in the organisation and each branch of the organisation: Fair Work (Registered Organisations) Act, paragraph 230(1)(b) and subsection 233(1).

[235].   For example, Fair Work (Registered Organisations) Act 2009, sections 229, 237.

[236].   See for example Fair Work (Registered Organisations) Act 2009, sections 265 and 272.

[237].   Ibid., subsection 242(2).

[238].   Ibid., subsection 242(3).

[239].   Ibid., subsection 242(4).

[240].   An example would be that the level of financial information available to members as a result of the proposed division into reporting units would be adequate and relevant to them: paragraph 247(1)(b).

[241].   Proposed paragraph 343B(2)(a).

[242].   Proposed paragraph 343B(2)(e).

[243].   Proposed paragraph 343B(2)(h).

[244].   Proposed paragraph 343B(3)(b).

[245].   See also Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, para 359.

[246].   Fair Work (Registered Organisations) Act 2009, Chapter 7, Part 4.

[247].   Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014,para. 256.

[248].   Items 5, 6, 11, 13, 18, 36, 39, 40, 45–47, 56–58, 68, 104, 107, 231, 240 and 241 in Schedule 2.

[249].   Crimes Act 1914 (Cth) paragraphs 4D(1)(a) and (b).

[250].   Proposed subsection 337AF(1).

[251].   Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014, op. cit., paras 40–43.

[252].   Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2013, op. cit., p. 6.

[253].   Associations Incorporation Act 1991 (ACT), section 65.

[254].   Associations Incorporation Act 2009 (NSW), section 31.

[255].   Associations Act (NT), section 31.

[256].   Associations Incorporation Act 1981 (QLD). Note however, that as per Schedule 4, regulation 23(8) of the Associations Incorporation Regulation 1999 (QLD), a committee members must not vote on a question about a contract or proposed contract with the association if they have an interest in the contract or proposed contract and, if they do vote, the member’s vote must not be counted,

[257].   Associations Incorporation Act 1985 (SA), section 31.

[258].   Associations Incorporation Act 1964 (TAS).

[259].   Associations Incorporation Reform Act 2012 (VIC), section 81.

[260].   Associations Incorporation Act 1987 (WA), section 21.

[261].   See: Fair Work (Registered Organisations) Act 2009, subsections 297(2), (3), 298(2), (3), 299(2), (3) 300(2), (3), 301(2), (3), 302(2), (3), and 303(2) (as amended).

[262].   Corporations Act 2001, section 184. The penalty for a breach of section 184 is ‘2,000 penalty units or imprisonment for 5 years, or both’. See: Corporations Act 2001, section 1311 and Schedule 3, table item 30.

[263].   Australian Securities and Investments Commission Act 2001, section 65.

[264].   Australian Securities and Investment Commission Act 2001, section 67.

[265].   Ibid., section 69.

[266].   As amended by the Bill.

[267].   Australian and Securities Investment Commissions Act 2001, section 64.

 

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