Bills Digest No. 6, 2017–18
PDF version [744KB]
Jaan Murphy and Andrew Cameron
Law and Bills Digest Section
7
August 2017
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Senate Education and Employment
Legislation Committee
Additional comments by ALP Senators
Dissenting Report by Australian
Greens Senators
Senate Standing Committee for the
Scrutiny of Bills
The right not to be tried or punished
twice (double jeopardy)
Reversal of evidential burden of
proof
Strict liability offences
Significant matters in delegated
legislation
Policy position of non-government
parties/independents
Opposition
Australian Greens
Other minor parties and independents
Position of major interest groups
Business groups
Law Council of Australia
Trade unions
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Right to a fair trial
Right to be presumed innocent
Human rights concerns raised by
stakeholders
Key issues and provisions: corrupting
benefits offences
Introductory provisions
Key issue: the right not to be tried
or punished twice (double jeopardy)
Giving, receiving or soliciting a
corrupting benefit
Key issue: benefit
Penalties for breaching the
corrupting benefits provisions
Cash or in kind payments
Key issue: scope of ‘legitimate
payment’ and interaction with regulation making power
Key issue: strict liability
Interaction with right to freedom of
association
Key issues and provisions: Disclosure
by organisations and employers
Background (RCTUGC)
When disclosure obligations apply
What must be disclosed?
Content of disclosure document
Penalties for false or misleading
disclosure
Timeframe for disclosure
Penalties for non-disclosure within
specified timeframes
Interaction with approval of the
enterprise agreement
Interaction with rights to freedom of
association and to organise and collectively bargain
Date introduced: 22
March 2017
House: House of
Representatives
Portfolio: Employment
Commencement: On
Proclamation or six months after Royal Assent, whichever
occurs first.
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 August 2017.
Purpose of
the Bill
The purpose of the Fair Work Amendment (Corrupting
Benefits) Bill 2017 (the Bill) is to amend
the Fair Work Act 2009
(the FW Act) to:
- create
new criminal offences related to the solicitation, giving or receipt of
corrupting benefits (applicable within the context of the industrial relations
framework created by the FW Act) and
- create
new criminal offences related to national system employers offering, promising
or providing certain ‘prohibited payments’ and other persons soliciting, receiving,
obtaining or agreeing to obtain such payments.
The FW Act also deals with negotiation and creation
of enterprise agreements (EAs). An EA is an agreement made at the enterprise
(business) level and is enforceable under the FW Act. An EA sets
out terms and conditions of employment and the rights and obligations of the
employees and the employer covered by the agreement. An EA must meet a number
of requirements under the FW Act before it can be approved by the Fair
Work Commission (FWC).[1]
The Bill would amend the FW Act to require
bargaining representatives to disclose financial benefits that they, or a
person or body reasonably connected with them, would or could reasonably be
expected to derive because of a term of a proposed EA.[2]
Structure
of the Bill
The Bill is divided into two Schedules:
- Schedule
1 deals with the proposed criminal offences related to corrupting benefits and
prohibited payments
- Organisations
registered under the Fair
Work (Registered Organisations) Act 2009 (the FWRO Act) have
certain rights under the FW Act and other legislation, including in
relation to bargaining for EAs. Registered organisations that represent the
interests of employees include trade unions and professional associations,
whilst registered organisations that represents the interests of employers or
an industry are referred to as employer organisations Schedule 2 deals with
disclosure by registered organisations and employers.
Background
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.[3]
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.[4]
Relevantly to the Bill, the terms of reference included examining the adequacy
of laws relating to trade unions, in particular in relation to:
- bribes,
secret commissions or other unlawful payments or benefits arising from
contracts, arrangements or understandings between registered employee
associations (that is, trade unions) or their officers and any other party
- the
circumstances in which funds are sought from any third parties and paid to registered
employee associations, including the use of funds solicited in the name of any
such entities, for the purpose of furthering the interests of:
- a
registered employee association
- officers
of a registered employee association
- members
of a registered employee association or
- any
other person, association or organisation and
- the
adequacy and effectiveness of existing systems of regulation and law
enforcement related to bribes, secret commissions, unlawful payments and the
solicitation of funds in general, 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 or lack of accountability
mechanisms.[5]
As summarised by Commissioner Heydon, the terms of reference
required the RCTUGC to investigate ‘both sides of any corrupt transaction’ and
therefore such investigations were ‘directed to both the person who provided
the benefit and the person who received it’.[6]
The RCTUGC subsequently made law reform recommendations where ‘a potential
problem with the existing legal and regulatory framework’ was ‘exposed by the
Commission’s inquiries’.[7]
As a result of its investigations, the RCTUGC made a
number of recommendations in relation to corrupting benefits.[8]
Briefly, the RCTUGC recommended that the Fair Work Act 2009 be amended
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 and
- make
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 or
- any
person to solicit, receive or agree to receive a prohibited payment or benefit.[9]
The RCTUGC recommended that the proposed ‘prohibited
payments’ offences should not apply to certain legitimate categories of payment.
It was recommended that the proposed offences would attract a two year maximum
term of imprisonment.[10]
Committee
consideration
Senate Education and Employment Legislation Committee
The Bill was referred to the Senate Education and
Employment Legislation Committee for inquiry and report by 9 May 2017.
Details of the inquiry and a copy of the report are at the inquiry
webpage.
The Committee received 11 submissions, primarily from
industry bodies, unions and academics.[11]
Although the majority of submissions supported the passage of the Bill, many
raised concerns with the provisions in proposed Part 3-7 of the FW Act
(at item 3 of Schedule 1 to the Bill) and recommended that those
provisions be reconsidered. For example, the Australian Industry Group (AIG)
proposed:
... the Bill be amended to achieve a more appropriate balance
between the interests of stamping out “corrupting benefits” and ensuring
fairness for employers, employees, registered organisations, officers of
registered organisations, and employees of registered organisations.[12]
A number of the submissions argued that the Bill was an
inappropriate response to the evidence gathered by the RCTUGC.[13]
One submission and a witness before the Committee instead argued for the
introduction of a federal anti-corruption body.[14]
The Committee’s report recommended that the Senate pass the
Bill, subject to the Government considering additional exemptions to the cash
or in-kind payment provisions including benefits with a nominal value,[15]
such as:
- free
or subsidised meals and/or beverages provided to union officials infrequently
or reciprocally
- gifts
of single bottles of reasonably priced alcohol, chocolate or other token gifts
given at functions, events and so forth and
- invitations
to farewell functions, annual dinners, award ceremonies and other appropriate
functions.[16]
Additional comments by ALP Senators
The Committee’s Labor Senators’ made additional comments to
the main report with additional recommendations including:
- amending
the Bill to ensure that the giving, receiving or soliciting corrupting benefits
offences (proposed subsections 536(D)(1) and (2) of the FW Act,
at item 3 of Schedule 1 to the Bill):
- require
that the giving an advantage ‘not legitimately due’ must be ‘in connection with
the affairs of the organisation or branch, including the affairs of the members
of the organisation or branch’ as this ‘was recommended by the Heydon Royal
Commission’ (RCTUGC)
- are
consistent with the Criminal Code offences and require dishonesty as an
element, define the term ‘improper’ and remove the ‘tend to influence’ test
- amend
the proposed strict liability offence regarding the giving or receiving of cash
or in kind payments between an employer and registered organisation (proposed
section 536F) to:
- contain
a fault element of dishonesty
- include,
in the list of exceptions to the offence in proposed subsection 536F(3),
requests made by registered organisations for, and receipt of, payments from
employers of wages or entitlements owed to ex-employees, and the negotiation
and settlement of disputes with employers before court proceedings are
commenced
- the
Bill be amended to ensure that the definition of 'related party' under the
proposed disclosure requirements contained in Schedule 2 be amended to specify
the registered organisation, all branches of the organisation, any entity
controlled by the organisation, and the officers and spouses and other family
members of the organisation or branch of the organisation that is the bargaining
representative.[17]
Dissenting
Report by Australian Greens Senators
The Australian Greens published a dissenting report
recommending that the Bill not be passed, and that a permanent national
Independent Commission against Corruption (ICAC) be established.[18]
The dissenting report argued that the Bill failed to address issues of
corruption in Australian society and suffered from a lack of consultation with
stakeholders.
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of
Bills (Scrutiny Committee) raised a number of concerns about the Bill, and
sought additional information from the Minister about several aspects of the
Bill.[19]
The Committee’s concerns are briefly discussed below.
The right
not to be tried or punished twice (double jeopardy)
Proposed section 536C of the FW Act, at item
3 of Schedule 1 to the Bill, provides that proposed Part 3-7
of the FW Act, which would introduce the new offences proposed by the
Bill (including those related to the giving, receiving or soliciting of
corrupting benefits or making certain payments) does not exclude or limit the
concurrent operation of a state or territory law. The Scrutiny Committee
summarised the provision as providing ‘that even if an act or omission
(or similar act or omission) would constitute an offence under this proposed
Part and would constitute an offence or be subject to a civil penalty under state
or territory law, these offence provisions can operate concurrently’.[20]
This means that a person could be liable to be tried and
punished for an act or omission twice – under a state or territory law and under
the proposed (Commonwealth) offences (commonly referred to as ‘double jeopardy’).[21]
The Committee sought advice from the Minister regarding
whether proposed section 536C would have the effect of limiting an
individual's right not to be tried or punished for the same offence. The
Minister’s response referred to subsection 4C(2) of the Commonwealth Crimes Act 1914,
which provides that if an act or omission constitutes an offence under both a
state or territory law and a Commonwealth law, a person who has been punished
under the state or territory law cannot be punished under the Commonwealth law.
The Minister argued that this provision guarantees that a person cannot be
punished for the same conduct under both a state or territory law and the
offences provided for in proposed Part 3-7 of the Bill and that it’s
operation is not displaced by proposed section 536C.[22]
The Senate Standing Committee noted the Minister’s response and made no further
comment on this issue.[23]
However, it should be noted that while subsection 4C(2) of the Crimes Act
prevents the punishment of a person for a Commonwealth offence in circumstances
where they have already been punished for a state or territory offence based on
the same act or omission, it does not appear to prevent the reverse situation—that
is, the punishment under state or territory law of a person for the same
conduct for which they have been punished under a Commonwealth law. This issue
was explored by the Parliamentary Joint Committee on Human Rights and is dealt
with in more detail below.
Reversal of
evidential burden of proof
Proposed section 536F will criminalise the making
of cash or an in kind payment by an employer to an employee organisation or
prohibited beneficiary in certain circumstances. Proposed subsection 536F(3)
provides a number of exceptions (offence specific defences), if a number of
conditions are met. The note to proposed subsection 536F(3) provides that the
defendant will bear an evidential burden in establishing that one of the
exceptions applies.[24]
The Committed noted that whilst the defendant bears an
evidential burden under proposed subsection 536F(3) (requiring the defendant to
raise evidence about the matter), rather than a legal burden (requiring the
defendant to positively prove the matter), it expected ‘any such reversal of
the evidential burden of proof to be adequately justified’.[25]
Due to the lack of detail in the Explanatory Memorandum, the Committee sought further
information from the Minister.[26]
The Minister responded by explaining that accused persons
usually bear the evidentiary burden when raising a defence to the charge
against them, and that the particular defences in proposed section 536F
are matters which would be peculiarly within the knowledge of the accused and
would be significantly easier for the defendant to raise than for the
prosecution to disprove.[27]
Despite the Minister’s explanation the Scrutiny Committee maintained its
concern that the offence set out in proposed section 536F is overly
broad and relies too heavily on defences to carve out legitimate transactions.
As a result, the Committee considered that the proposed provision ‘may unduly
trespass on personal rights and liberties’.[28]
Strict
liability offences
The Committee noted that in a criminal law offence the
proof of fault (for example, intent) is usually a basic requirement. However,
offences of strict liability remove the fault (mental) element that would
otherwise apply.[29]
As noted earlier, proposed section 536F will
criminalise the making of cash or in kind payment by an employer to an employee
organisation or prohibited beneficiary in certain circumstances. Proposed
subsection 536F(2) applies strict liability applies to certain elements of
that offence. Likewise, proposed section 536G makes it an offence to
receive or solicit a cash or in kind payment in certain circumstances. Proposed
subsection 536G(2) applies strict liability to one element of the offence.
The Committee noted that the Explanatory Memorandum states
that the strict liability elements of the offences in proposed sections 536F
and 536G ‘are jurisdictional in nature’.[30]
The Committee further noted that the Guide to framing Commonwealth offences,
Infringement notices and enforcement powers explains that ‘a jurisdictional
element of an offence is an element that does not relate to the substance of
the offence, but instead links the offence to the relevant legislative power of
the Commonwealth’. However, the Committee noted that various aspects of the
offences are not ‘obviously designed to connect the offence to a head of
Commonwealth legislative power’ and therefore it was ‘not clear to the Committee
that the provisions stated as being jurisdictional in nature meet the
definition [of a jurisdictional element] in the Guide to Framing
Commonwealth Offences’.[31]
The Minister responded to the Committee’s concerns by
explaining that the Guide to Framing Commonwealth Offences states that
elements of offences that provide for strict liability can be justified by
virtue of:
- being
jurisdictional in nature and/or
- necessary
to provide the required deterrent effect.[32]
The Minister stated that the strict liability paragraphs
of the offences in proposed sections 536F and 536G are either in
relation to jurisdictional matters (that is, they do not relate to the
substance of the offence but instead link the offence to a legislative power of
the Commonwealth underpinning the regulation of national system employers and
national system employee organisations) or are required in order to provide a
sufficient deterrent effect.[33]
The Committee responded to the Minister’s submission by
stating that no evidence had been provided that a fault element would weaken
the deterrent effect, and expressing the view that strict liability should only
be applied where the penalty does not include imprisonment and where there is a
cap on a monetary penalty of 60 penalty units. This contrasts with the proposed
strict liability provisions of the Bill that impose a maximum penalty of two
years imprisonment and/or 500 penalty units.[34]
Significant
matters in delegated legislation
The Committee noted that a number of the Bill’s provisions
leave significant detail to be prescribed in the regulations, including detail
such as:
- that
a person will commit an offence where certain actions are taken, or benefits
given, to persons with a 'prescribed connection' with the person or who are
persons or bodies prescribed by the regulations
- a
defence which provides that the provision of cash or in kind payments to certain
persons will not constitute an offence if the cash or in kind payment is 'a
non-corrupting benefit prescribed by, or provided in circumstances prescribed
by, the regulations'
- where
exceptions are provided to an offence, the regulations can nonetheless prescribe
a cash or in kind payment that would be captured by the offence provision
- the
meaning of a cash or in kind payment (the payment of which results in an
offence) can be prescribed by regulations
- the
definition of a 'prohibited beneficiary' (payment to whom may be an offence)
includes a person who has a prescribed connection with the relevant
organisation.[35]
The Committee noted that significant matters, such as
matters that form part of an offence or civil penalty provision, should be
included in primary legislation unless a sound justification for the use of
delegated legislation is provided.[36]
Therefore the Committee sought advice from the Minister as to:
- why
it is considered necessary and appropriate to leave many of the elements of
these offence or civil penalty provisions to delegated legislation and
- the
type of consultation that it is envisaged will be conducted prior to the making
of these regulations (which set out the details to be prescribed) and whether
specific consultation obligations (beyond those in section 17 of the Legislation
Act 2003) can be included in the legislation (with compliance with such
obligations a condition of the validity of the legislative instrument).
The Minister advised that the elements left to delegated
legislation are necessary because potential new arrangements may arise that are
not currently contemplated by the Bill.[37]
The Committee responded by commenting that it does not consider it appropriate
to include elements of an offence or civil penalty provision in delegated
legislation, and reiterated its general view that where significant matters are
delegated to subsidiary legislation then specific consultation provisions ought
to be included in the Bill.[38]
These issues are explored in further detail below under
the heading ‘Key issues and provisions’.
Policy
position of non-government parties/independents
Opposition
The Australian Labor Party has indicated that it ‘broadly’
agrees with ‘the objectives of the Bill’ whilst arguing for several amendments
to reduce the breadth and reach of the offence provisions, as noted above under
the heading ‘Additional comments by ALP Senators’.[39]
In the second reading debate in the House of Representatives, the Shadow
Minister for Employment and Workplace Relations, Brendan O’Connor, stated that
whilst ‘we will look at this legislation in good faith, because as I said we do
not tolerate corruption in any form’, the ALP:
... want[s] to make sure that this Bill is not designed in a
way that is unfair to workers or that is uneven in its application. We do not
want to see the effects of this Bill being manifestly unfair and so we are
going to seriously look at the construction of the provisions that go to the offences
within the Bill. We are also going to look at the exemptions, particularly in
relation to cash payments or in-kind payments to registered organisations,
because there are a lot of legitimate reasons that employers and unions work
together for the public good or, indeed, for the good of the workforce of that
company and the members of that union.[40]
He also expressed a view that the Bill ‘is narrowly
focused’ and hence:
It really begs the question: are there comparable provisions
to stamp out other forms of corrupt payments between companies? Do we have
sufficient offences to ensure that we can deal with corrupt payments to public
officials and foreign officials ...? If in fact those laws are fine and work, why
is it then that those offences are constructed in a different manner to the
offences that are contained within this Bill?[41]
This would appear to suggest that the Opposition’s support
for the Bill may be conditional on certain amendments being made, such as those
referred to in the ALP Senator’s additional comments in the Senate Education
and Employment Legislation Committee’s report on the Bill.
Australian
Greens
The Australian Greens oppose the Bill, and have argued
instead for the creation of a national Independent Commission Against Corruption.[42]
Other minor
parties and independents
During the Bill’s second reading debate in the House of
Representatives, Adam Bandt of the Australian Greens moved an amendment that
would have declined to give the Bill a second reading and called on the
Government to instead ‘establish a National Independent Commission Against
Corruption’.[43]
Independents Cathy McGowan and Andrew Wilkie voted for the amendment, which was
unsuccessful.[44]
The position of other minor parties and independents is
not yet known.
Position of
major interest groups
Business
groups
A number of business groups made submissions to the Senate
Education and Employment Legislation Committee’s inquiry into the Bill. The
submissions were broadly supportive of the Bill. For example, the Business
Council of Australia wholly supported the Bill in its current form and made no
recommendations for amendments.[45]
In contrast, however, the Australian Industry Group (AIG) suggested a raft of
changes to ‘ensure fairness to employers, employees, registered organisations,
officers of registered organisations, and employees of registered organisations’.[46]
The AIG’s recommended changes include reductions in the maximum penalties for
offences, additional defences and exclusions to ensure innocent conduct is not
rendered an offence, and removing ‘vague and uncertain’ language from the Bill.
Law Council
of Australia
The Law Council of Australia also recommended amendments,
including to ensure that the meaning of the term ‘improperly’ is clarified in
the Bill and through the preparation of a supplementary Explanatory Memorandum.[47]
Trade unions
A number of unions made submissions to the Senate Education
and Employment Legislation Committee’s inquiry into the Bill. Those submissions
opposed the Bill.[48]
Putting aside general policy-based opposition to the Bill, specific concerns
were expressed regarding:
- differences
in the drafting of the offence provisions with those proposed by the RCTUGC[49]
- placing
criminal offences in an industrial relations Act[50]
- the
confinement of the offences to union related bribes[51]
- the
proposed strict liability offences[52]
- the
limited exceptions to the cash or in-kind offence[53]
and
- certain
aspects of the disclosure requirements in Schedule 2 (for example, the
definition of ‘related party’ and employer disclosure only to employees rather
than also to bargaining representatives).[54]
The submission by the Australian Council of Trade Unions
(ACTU) identified that there are contrasting views of the role of unions in
Australia including:
- that
unions are only servicing organisations in the nature of legal service
providers, or agents in employment negotiations and
- that
unions have broader representative functions, including building workers’
collective voice and power in society.[55]
The Electrical Trades Union of Australia (ETU) also argued
that the Bill ‘is not in the best interests of the nation’ as it was ‘part of a
politically motivated ideological government agenda against unions’. The ETU
instead recommended:
...the establishment of a National Anti-Corruption body that
has jurisdiction over the public and private sectors, as well as
parliamentarians...[56]
Financial
implications
The Explanatory Memorandum states that the budgetary cost
to the Government of the amendments proposed by the Bill is nil.[57]
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
Government notes that the Bill engages the following rights:
- the
right to freedom of association, including the right to form and join trade
unions the right of trade unions to function freely
- the
right to take part in public affairs and elections
- the
right to freedom of opinion and expression
- the
right to work and the right to just and favourable conditions of work and
- the
right to the presumption of innocence and associated minimum guarantees.[58]
After assessing the human rights implications of the Bill,
the Government considers that the Bill is compatible.[59]
The human rights issues arising from the above are discussed below under the
heading ‘Key issues and provisions’.
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR) has
reported twice on the Bill, first on 9 May 2017 and then again on 20 June 2017.[60]
The Committee initially raised concerns with the Bill’s
potential impingement on the right to a fair trial (in relation to double
jeopardy) and the right to be presumed innocent, and sought the Minister’s
response in relation to these matters.
Right to a
fair trial
The PJCHR noted that Article 14(7) of the International
Covenant on Civil and Political Rights (ICCPR) contains a specific
guarantee of the right to a fair trial in the determination of a criminal
charge, which includes the right not to be tried and punished twice for an
offence for which a person has already been finally convicted or acquitted
(sometimes referred to as the principle of double jeopardy).[61]
As set out above under the heading Senate Standing
Committee for the Scrutiny of Bills, proposed section 536C of the FW
Act, at item 3 of Schedule 1 to the Bill, provides that proposed
Part 3-7 of the FW Act, which would introduce the new offences
proposed by the Bill does not exclude or limit the concurrent operation of a state
or territory law.[62]
The PJCHR noted that whilst section 4C of the Commonwealth Crimes
Act (discussed above) provides that a person is not liable to be punished
under a Commonwealth law if they have been punished for an offence under
the law of a state or the law of a territory based on the same conduct, the Crimes
Act does not address possible prosecution under a state or territory law
after being prosecuted under a Commonwealth law.[63]
After considering the Minister’s response, the PJCHR noted
that whilst New South Wales, Western Australia and the Australian Capital
Territory (ACT) legislation offers protection against double punishment for Commonwealth
offences:
... information is not provided in relation to the other states
and territories. If such laws preventing double punishment do not exist in
particular states or territories a person may face double punishment and the
measure risks being incompatible with the right not to be tried and punished
twice for the same offence. As a matter of international human rights law the
Commonwealth has the relevant powers and responsibilities to ensure that the
right not to be tried or punished twice for the same offence is complied with
at all levels of government – including in the law of the states and
territories – in respect of the measure.[64]
Therefore the PJCHR concluded that ‘it cannot be concluded
that the measure is compatible with the right not to be tried and punished
twice for the same offence’.[65]
Right to be
presumed innocent
The PJCHR noted that Article 14(2) of the ICCPR contains
a specific guarantee of the right of a defendant to be presumed innocent.[66]
The PJCHR noted that strict liability offences—such as proposed
section 536G (which makes it an offence to receive or solicit a cash or in
kind payment in certain circumstances, discussed above under the heading Senate Standing
Committee for the Scrutiny of Bills)—engage and limit the right to be
presumed innocent as they allow for the imposition of criminal liability without
the need for the prosecution to prove fault. [67]
Accordingly, the PJCHR sought further information from the Minister on the
appropriateness of the use of strict liability in the Bill.[68]
After considering the Minister’s response, the PCJHR
noted:
It is a serious matter for an individual to be found guilty
of a criminal offence in circumstances where they are not at fault in respect
of particular elements of the offence. The Minister's response argues that it
would not be appropriate to apply a fault element to the offence because there
should be sufficiently robust internal governance and accounting mechanisms in
place, or the defendant should be properly aware of the relevant circumstances,
and applying a fault element would weaken the deterrent effect of the
provision. Acknowledging this justification, no specific evidence is provided
to support the argument that inclusion of a fault element would necessarily
weaken the deterrent effect, noting that the fault element may be designed to
include knowledge as well as recklessness as to relevant facts ... Further, in
relation to the proportionality of the measure, it is noted that the penalty is
significant and that a person found guilty of an offence under these provisions
may be subject to a maximum period of two years imprisonment and/or 500 penalty
units. This accordingly is a significant limitation on the right to be presumed
innocent.[69]
As a result, the PJCHR concluded that it was not possible
to find that the strict liability offences contained in proposed section
536G were compatible with the presumption of innocence.[70]
Human
rights concerns raised by stakeholders
Human rights concerns were also raised by a number of
submitters to the Senate Education and Employment Legislation Committee inquiry
into the Bill, including the ETU, which argued that the Bill would
inappropriately impinge on several human rights including:
- the
right to freedom of association
- the
right to freedom of opinion and expression
- the
right to take part in public affairs and elections
- the
right to organise
- the
right to engage in collective bargaining and
- the
right to the presumption of innocence.[71]
Key issues and provisions:
corrupting benefits offences
Item 3 of Schedule 1 to the Bill would insert
new Part 3-7 into the FW Act, containing offences dealing with
corrupting benefits and prohibited payments. Proposed Part 3-7 contains proposed
sections 536A to 536H.
Introductory
provisions
Proposed section 536A provides a guide to Part 3-7, which
indicates that Part 3-7 is ‘is about corrupting benefits provided to or in
relation to organisations’. An organisation is defined in section
12 of the FW Act as an organisation registered under the Fair Work
(Registered Organisations) Act 2009 (FWRO Act). As noted
earlier, registered organisations include employee organisations (trade unions
and professional associations) and employer organisations.
Proposed section 536C provides that proposed Part
3-7 does not exclude or limit the operation of state or territory laws that are
capable of operating concurrently with the Part.
Key issue:
the right not to be tried or punished twice (double jeopardy)
Proposed section 536C creates the possibility that a
person could be tried and punished for the same act or omission twice: first as
a result of breaching the provisions set out in the Bill, and then again for
breach of a state or territory law.
The United Nations Human Rights Committee provides as
follows with respect to the right not to be tried and punished twice for the
same offence under article 14(7) of the ICCPR:
Article 14, paragraph 7 of the Covenant, providing that no
one shall be liable to be tried or punished again for an offence of which they
have already been finally convicted or acquitted in accordance with the law and
penal procedure of each country ... prohibits bringing a person, once convicted
or acquitted of a certain offence, either before the same court again or before
another tribunal again for the same offence.[72]
As discussed above, the PJCHR noted in its comments on the
Bill that section 4C of the Commonwealth Crimes Act
1914 prevented the Commonwealth from prosecuting and punishing a person
first convicted under a state or territory law.[73]
However, as the PJCHR pointed out, section 4C ‘does not address possible
prosecution under a state or territory law after being prosecuted under Commonwealth
law’.[74]
The Minister’s response to the PJCHR’s comments on the Bill advised that Western
Australia, New South Wales and the Australian Capital Territory ‘have express statutory
provisions dealing with anterior punishments for Commonwealth offences’.[75]
The PJCHR noted that information had not been provided on the situation in other
states and territories.
If the remaining states and territories do not have these
protections, then a person could potentially be tried a second time under a state
or territory law for the same conduct for which they were prosecuted under the
Commonwealth law.[76]
Giving,
receiving or soliciting a corrupting benefit
Division 2 of Part 3-7 (proposed sections 536D
to 536E) will prohibit benefits intended to influence an officer or
employee of an organisation to act improperly.
Proposed section 536D contains two offences that
collectively would make it an offence to give, receive or solicit corrupting
benefits.
Proposed subsection 536D(1) makes it an offence to
give, offer to give, or cause an offer to give a corrupting benefit. More
specifically proposed subsection 536D(1) provides that a person (the
defendant) commits the offence of giving a corrupting benefit if they:
- provide
- cause
to be provided
- offers
or promises to provide, or
- causes
an offer or promise to provide
a benefit to another person with the intention
that the benefit will influence an officer or employee of a registered
organisation to:
- perform
his or her duties or functions as an officer or employee improperly
- exercise
his or her powers or functions under the FW Act or FWRO Act improperly,
or
- give
the defendant, a spouse (within the meaning of the FWRO Act[77])
or associated entity of the defendant or any other person with a prescribed
connection to the defendant, an advantage of any kind which is not
legitimately due to the defendant or the other person.
Proposed subsection 536D(2) makes it an offence to
solicit, receive, or agree to receive a corrupting benefit and reflects the
provisions contained in proposed subsection 536D(1).
A person or entity will have a prescribed connection
to another person or entity in circumstances prescribed by the regulations.
Key issue: benefit
Proposed subsection 536D(7) provides that benefit
‘includes any advantage and is not limited to property’. In turn, proposed
subsection 536D(5) provides that an ‘advantage’ may be given in any way,
including by act or omission, or influencing another person’s acts or
omissions. The definition of cash or in kind payment contained in
proposed subsection 536F(4) (which refers to ‘a benefit that is...’) and case
law would appear to suggest that a ‘benefit’ or ‘any advantage’ captures:
- ‘not
only money but money's worth’
- goods
or services and
- other
advantages (for example, being able to engage in commercial conduct in breach
of licensing conditions).[78]
Penalties
for breaching the corrupting benefits provisions
The maximum penalties for breaching the provisions in proposed
section 536D are, for an individual, imprisonment for 10 years or 5,000
penalty units ($1,050,000), or both and for a body corporate 25,000 penalty units
($5,250,000).[79]
The Explanatory Memorandum states that the quantum set
down for the offences takes into account recommendation 40 of the RCTUGC Report,
and is based on the penalties in section 70.2 of the Commonwealth Criminal Code Act
1995 for bribery of foreign officials.[80]
However, the model legislative provisions set out in Appendix 1 of the RCTUGC
Report (and section 70.2 of the Criminal Code) provide for a maximum penalty
of 10 years imprisonment or 10,000 penalty units ($2,100,000), or both,
and 100,000 penalty units ($21,000,000) for a body corporate.[81]
The AIG’s submissions to the Senate Education and
Employment Legislation Committee argued that instead of being modelled on
federal offences relating to bribery of foreign officials, the proposed offences
should be modelled on the bribery of Commonwealth public officials offence at
section 141.1 of the Criminal Code.[82]
Cash or in
kind payments
Division 3 of Part 3-7 (proposed sections 536F to
536H) will prohibit national system employers providing cash or in kind
payments to employee organisations and related persons, other than certain
legitimate benefits specified in the Division.
Broadly speaking, a national system employer
is an employer covered and bound by the FW Act. This will turn in
part on the location of the employment relationship (state or territory) and,
in some cases, the legal status and business of the employer.[83]
Proposed section 536F makes it an offence for a national
system employer to offer, provide, or cause to offer or provide cash or
in kind payments to:
- an
employee organisation or
- a
prohibited beneficiary of an employee organisation,
where the national system employer (or an associated
entity of, or a person who has a prescribed connection with, the national
system employer) employs a person who is or is entitled to be a member of the
organisation, and whose industrial interests the organisation is entitled to
represent.
What this means in that where a person provides an
‘inappropriate’ payment to a union, they commit an offence (for example, where a
national system employer provides a cash payment to an employee organisation,
to ensure the employer’s company is treated favourably in an industrial
campaign, such as an enterprise bargaining related dispute).[84]
Proposed subsections 536F(2) provides that proposed
paragraphs 536F(1)(a), (c) and (d) are subject to strict liability, meaning
that there is no requirement for fault on the part of an accused to be
established in order for these elements of the offence to be established.[85]
Strict liability applies to the following elements:
- that
the defendant is a national system employer other than an employee organisation
- that
the person to whom cash or in kind payments are made is an employee
organisation or a prohibited beneficiary in relation to an employee
organisation and
- that
the defendant, a spouse, or associated entity of the defendant, or a person who
has a prescribed connection with the defendant, employs a person who is, or is
entitled to be, a member of the organisation and whose industrial interests the
organisation is entitled to represent.
Proposed section 536G makes it an offence for a
person to request, receive or agree to receive a cash or in kind payment if the
person is an employee organisation or an officer of an employee organisation
and the provider of the payment would commit an offence under proposed
subsection 536F(1) by making the payment or providing the benefit. Strict
liability applies to proposed paragraph 536G (1)(c) (that is, that an
offence would be committed under proposed subsection 536F(1) if the payment
or benefit was provided).
What this means in that a trade union, officer of a trade
union or an employee of a trade union commits an offence if they request or
receive a cash or in kind payment from a national system employer that would
constitute an ‘inappropriate’ payments to that union or person (for example, for
treating the employer favourably in an industrial campaign).
Key issue: scope of ‘legitimate payment’ and interaction
with regulation making power
Proposed subsection 536F(3) provides that the
certain payments are exempt from the offence created by proposed subsection
536F(1), thereby allowing national system employers to make ‘necessary or
legitimate payments’ to trade unions such as:
- payments
to an organisation made by the deduction of membership fees from the wages of
an employee of the relevant employer where the employee has agreed in writing
to become a member of the employee organisation
- benefits
provided and used for the sole or dominant purpose of benefitting the relevant employer’s
employees
- gifts
or contributions that are deductible under section 30-15 of the Income Tax
Assessment Act 1997 and used in accordance with the law
- payments
made, at market value, for goods or services supplied to the a relevant
employer where that supply is in the ordinary course of the organisation’s
business and in relation to the ordinary course of the a relevant employer’s
business
- payments
made under or in accordance with a law of the Commonwealth or a law of a state
or territory
- benefits
provided in accordance with an order, judgment or award of a court or tribunal
or
- a
non-corrupting benefit prescribed by, or provided in circumstances prescribed
by, the regulations.[86]
Importantly, however, proposed subsection 536F(3) also
provides that the regulations may provide that a cash or in kind payment that
falls within one of the listed exceptions is not covered by that exception and
instead falls within the scope of the offence in proposed subsection 536F(1).
As noted by the Senate Standing Committee for the
Scrutiny of Bills, this would mean that such payments would still constitute an
offence.[87]
In effect, this means the regulations could potentially nullify the impact of the
exceptions in proposed subsection 536F(3).
Key issue:
strict liability
Article 14(2) of the International Covenant on Civil and
Political Rights (ICCPR) protects the right to be presumed innocent until
proven guilty according to law.[88]
This requires that the case against the person be proven beyond reasonable
doubt. Strict liability offences limit the right to be presumed innocent as
they release the prosecution from proving the fault element of the offence or
particular parts of the offence. As discussed above, in its consideration of
the Bill, the PJCHR raised concerns with the compatibility of the strict
liability elements of the proposed offences with the right to the presumption
of innocence and sought advice from the Minister on this issue.[89]
The PJCHR also drew the Minister’s attention to its Guidance Note on offence
provisions, civil penalties and human rights, which contains information on
strict liability offences.[90]
After considering the Minister’s response, the PJCHR
accepted that the application of strict liability to the requirement in
proposed paragraph 536F(1)(a) that ‘the defendant is a national system employer
other than an employee organisation’ was justifiable as that element ‘does not
relate to the substance of the offence’.[91]
However, the PJCHR considered that, at least in relation to proposed paragraphs
536F(1)(c), (d) and 536G(1)(c), ‘it is not possible to conclude that each
strict liability element is compatible with the right to be presumed innocent
beyond reasonable doubt’[92]
Interaction
with right to freedom of association
The Explanatory Memorandum argues that the amendments
prohibiting illegitimate benefits and payments:
... advance the right to freedom of association by improving
the integrity and democratic functioning of registered organisations and
ensuring that registered organisations are focussed on representing the
interests of their members rather than the discrete interests of the
organisations or its officers or employees.[93]
However, there were significant concerns raised by union
submissions to the Senate Education and Employment Legislation Committee that
the amendments impinge on the right to freedom of association and the right to
collectively bargain.[94]
The ACTU also raised concerns about how the provisions will interact with other
provisions of the FW Act. The ACTU cited section 172 of the FW
Act, which permits enterprise agreements to contain terms that relate to
the relationship between the employer and the registered organisation.[95]
The ACTU considered that the proposed provisions may make the terms of some
existing enterprise agreements unlawful.[96]
Key issues
and provisions: Disclosure by organisations and employers
Background
(RCTUGC)
The RCTUGC noted that where an organisation (or a related entity
or official) receives a financial benefit derived because of the inclusion of specific
terms in an enterprise agreement, this can lead to an actual or potential
conflict of interest for the organisation.[97]
It was also argued that deriving such benefits can lead to breaches of the fiduciary
duties of union officials to members of the union, on whose behalf they act in
negotiating an enterprise agreement.[98]
As such, the RCTUGC recommended:
Recommendation 48
The Fair Work Act 2009 (Cth) be amended to require an
organisation that is a bargaining representative to disclose all financial
benefits, whether direct or indirect, that would or could reasonably be
expected to be derived by the organisation, an officer of the organisation or a
related entity as a direct or indirect consequence of the operation of the
terms of a proposed enterprise agreement. A short, simple and clear disclosure
document should be provided to all employees before they vote for an enterprise
agreement.[99]
However, in its comments the RCTUGC had recommended
further reforms relating to the disclosure document that are not reflected in
the above recommendation:
The disclosure document should be provided to the employer
and all other bargaining representatives in the first instance and then
form part of the material to which employees are given access prior to voting
on the agreement pursuant to s 180(2) of the FW Act. The disclosure
document should also be required to be annexed to the enterprise agreement
that is lodged with the Fair Work Commission so that new employees are aware of
the benefits flowing to an employee (or employer) organisation.[100]
The Bill, whilst giving effect to recommendation 48, does
not include the other proposed requirements by the RCTUGC outlined in its
detailed comments, namely that the disclosure document:
- be
provided to all other bargaining representatives and
- annexed
to the enterprise agreement.
The reason for this omission from the Bill is not clear.
When
disclosure obligations apply
The proposed disclosure obligations apply to both
organisations that are bargaining representatives and employers (a bargaining
representative is a person nominated to participate in bargaining for a
proposed enterprise agreement and is often a union).[101]
Proposed sections 179 and 179A of the FW Act, at item 2
of Schedule 2 to the Bill provide that the organisation or employer must
disclose any ‘disclosable benefit’ when:
- for
an organisation: the organisation is a bargaining representative for a proposed
enterprise agreement that is not a greenfields agreement, and is not an
employer that would be covered by the proposed enterprise agreement[102]
- for
employers: it would be covered by a proposed enterprise agreement that is not a
greenfields agreement[103]
and
- as
a direct or indirect consequence of one or more terms of the proposed
enterprise agreement (the ‘beneficial terms’) the:
- bargaining
representative (or a related party[104])
- the
employer (or an associated entity[105])
or
- a
person or body prescribed by the regulations (collectively a ‘beneficiary’[106])
- would
or could reasonably be expected to derive (directly or indirectly) a
‘disclosable benefit’ as a direct or indirect consequence of the operation of a
term of the proposed enterprise agreement.[107]
The effect of the proposed disclosure obligation is that an
organisation that is a bargaining representative (or an employer) negotiating an
enterprise agreement must take all reasonable steps to disclose financial
benefits that they, or related parties or associates, would or could reasonably
be expected to derive because of a term of the proposed enterprise agreement, in
a disclosure document (subject to certain exceptions, discussed below).[108]
What must
be disclosed?
Proposed sections 179 and 179A provide that a
‘disclosable benefit’ is any financial benefit other than the following
financial benefits:
- in
the case of an organisation:
- a
financial benefit payable to an individual as an employee covered by the
agreement (for example, wages or wage increases) or
- payment
of a membership fee for membership of an organisation[109]
- in
the case of an employer: a financial benefit that is received or obtained in
the ordinary course of the employer’s business.[110]
In addition, regulations may prescribe that other types of
financial benefits are not disclosable benefits, for both organisations
and employers.[111]
This is a very broad definition and, as noted by the RCTUGC would:
...include fixed payments such as commissions and directors
fees as well as discretionary payments such as trust distributions and grants.[112]
Proposed sections 179 and 179A require an
organisation or employer to include the disclosable benefits in a document (‘disclosure
document’).[113]
The contents of the disclosure document and when it must be provided to employees
is discussed below.
Content of
disclosure document
Proposed subsections 179(4) and 179A(3) set
out the content requirements of a disclosure document for organisations and
employers respectively. The provisions require the disclosure document to:
- itemise
the beneficial terms (that is, the terms of the proposed enterprise agreement under
which a beneficiary would or could reasonably be expected to obtain a benefit,
directly or indirectly as a result of the operation of the terms)
- describe
the nature and (as far as reasonably practicable) amount of each disclosable
benefit in relation to each beneficiary (and name each beneficiary) and
- any
other content prescribed by the regulations.[114]
The Explanatory Memorandum notes that the disclosure document
is intended to ‘be as short, simple and clear as possible’.[115]
It also notes that the disclosure document is not required to extract, or
provide a detailed explanation of, the beneficial terms of the proposed
enterprise agreement, and it is intended that relevant clauses could be
identified for the purposes of proposed paragraphs 179(4)(a) and 179A(3)(a)
by referring to the relevant clause numbers of the proposed enterprise
agreement.[116]
Penalties
for false or misleading disclosure
Proposed subsections 179(5) and 180(4C) provide
that an organisation or employer (respectively) must not knowingly or
recklessly make a false or misleading representation in a disclosure document. These
subsections are civil remedy provisions, attracting a maximum civil penalty of
60 penalty units ($12,600) in the case of an individual, and 300 penalty units ($36,000)
in the case of a body corporate.[117]
Timeframe
for disclosure
Section 180 of the FW Act sets out the pre-approval
steps an employer must carry out in relation to a proposed enterprise
agreement, before it can be approved by the Fair Work Commission (FWC). An
enterprise agreement must be approved by the FWC before it can come into
effect. One of the pre-approval requirements is known as the ‘access period’: this
is the seven-day period before the start of the voting process for a proposed
enterprise agreement. In summary, the employer must take all reasonable steps
to ensure that during the access period the relevant employees are:
- given
a copy of the proposed agreement and any material referred to in the agreement
and
- notified
of the time and place at which the vote will occur and the voting method that
will be used.[118]
Proposed subsection 179(3) provides that an
organisation that is required to prepare a disclosure document must provide it
to the relevant employer by the end of the fourth day of the access
period for the proposed enterprise agreement. The Explanatory Memorandum notes:
This timeframe is to ensure that the organisation has
sufficient time to prepare the disclosure document (including before the start
of the access period) and the employer has sufficient time to take all
reasonable steps to give the disclosure document to employees before they
commence voting on a proposed enterprise agreement.[119]
In turn, proposed subsections 180(4A) and (4B)
(at item 3 of Schedule 2 to the Bill) provide that where an
organisation was required to prepare a disclosure document (and provided it
within the specified timeframe), or the employer was required to prepare a
disclosure document of its own, the employer must take all reasonable steps to
ensure that (as soon as practicable) the relevant employees are:
- given
a copy of the document or
- have
access to a copy of the document throughout the remainder of the access period.
The effect of these amendments is to ensure that employees
are provided the disclosure documents during the access period and therefore
ensure:
... that employees who are asked to vote on an enterprise
agreement are properly informed about its effect, thereby enhancing the open
and informed voluntary negotiation of terms and conditions of employment.[120]
Penalties
for non-disclosure within specified timeframes
A failure by an organisation to provide a disclosure
document to the employer within the specified time-frame (discussed above)
attracts a maximum civil penalty of 60 penalty units in the case of an
individual, and 300 penalty units in the case of a body corporate.[121]
Likewise, a failure by an employer to provide a disclosure
document (prepared by an organisation or by the employer itself) to the
relevant employees within the specified time-frame (discussed above) attracts a
maximum civil penalty of 60 penalty units in the case of an individual, and 300
penalty units in the case of a body corporate.[122]
Interaction
with approval of the enterprise agreement
Section 186 of the FW Act operates to prevent the
FWC from approving a proposed enterprise agreement where the relevant employees
have not ‘genuinely agreed’ to it.[123]
In turn, section 188 of the FW Act refers to the circumstances when
employees have ‘genuinely agreed’ to a proposed enterprise agreement and
provides that the FWC must be satisfied that the employer complied with the
following in relation to the proposed enterprise agreement:
- the
various pre-approval steps[124]
- employees
were not requested to approve the proposed enterprise agreement until 21 days
after the last notice of employee representational rights was given[125]
- the
agreement was made in accordance with whichever of subsection 182(1) or (2)
applied (the making of different kinds of enterprise agreements by employee
vote) and
- there
are no other reasonable grounds for believing that the proposed enterprise agreement
had not been genuinely agreed to by the employees.[126]
Proposed section 188A provides that failure by an
organisation or an employer to comply with the disclosure requirements in
relation to a proposed enterprise agreement does not amount to
reasonable grounds for believing that the agreement has not been genuinely
agreed to by the employees. This means a failure to disclose disclosable
benefits will not prevent the proposed enterprise agreement being approved by
the FWC. The Explanatory Memorandum also notes:
Such failures are also not otherwise relevant to approval
of the agreement by the FWC. For example, if an organisation failed to give
the employer a disclosure document by the end of the fourth day of the access
period, or knowingly or recklessly made false or misleading representations in
the document, this would not prevent the employer from requesting that
employees approve the proposed enterprise agreement, and would not prevent the
FWC from approving the agreement.[127]
(emphasis added).
As such, provided the disclosable benefit is not captured
by the offences created by Schedule 1 of the Bill and an organisation or
employer is prepared to pay the relevant civil penalty, the rights of employees
‘to know about any deals derived by their employer or the union before they
vote on an agreement’[128]
could potentially be supressed and details of such financial benefits kept
secret from employees.
Interaction
with rights to freedom of association and to organise and collectively bargain
The Explanatory Memorandum argues that the amendments
requiring registered organisations and employers to disclose financial benefits
that the organisation, employer, a related party of the organisation or
associated entity of the employer would receive because of the operation of a
proposed enterprise agreement will:
... promote freedom of association by making transparent the
terms of an enterprise agreement that financially benefit a registered
organisation. By making clear any conflicts of interest that may exist, these
amendments improve the capacity of registered organisations to represent and
protect members’ interests... [and] promote collective bargaining by making
transparent the effect of terms in enterprise agreements that financially
benefit a bargaining representative or a person or body reasonably connected
with it. This ensures that employees who are asked to vote on an enterprise
agreement are properly informed about its effect, thereby enhancing the open
and informed voluntary negotiation of terms and conditions of employment.[129]
Whilst this is true if the disclosure obligations are
adhered to, where an organisation or employer is prepared to pay the relevant
civil penalty for failing to make the appropriate disclosures (or makes false
and misleading statements in the disclosure document) the proposed enterprise
agreement can nonetheless be approved by the FWC, without employees having any
knowledge of the relevant disclosable financial benefits.[130]
In turn this would suggest that there is at least a risk
that organisations or employers may, in effect, conduct a cost-benefit analysis
comparing the disclosable financial benefits and the civil penalty for failing
to disclose it and, where the financial benefit outweighs the maximum civil
penalty and disclosure of the relevant financial benefits may materially reduce
the likelihood of employees voting to approve the proposed enterprise
agreement, choose not to disclose. (However, in reality, other factors, such as
reputational risk, would also be likely to be factored into any decision on
disclosure.)
As such, whether the rights to freedom of association and
to organise and collectively bargain will be enhanced by the proposed disclosure
requirements would appear largely to turn on the degree to which organisations
and employers elect to adhere to the proposed regime.
[1]. Fair
Work Commission, Benchbook:
enterprise agreements, Fair Work Commission website, 31 July 2017, p.
22.
[2]. Explanatory
Memorandum, Fair Work Amendment (Corrupting Benefits) Bill 2017, p. i.
[3]. 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.
[4]. E
Abetz (Minister for Employment) and G Brandis (Attorney-General), Royal
Commission into trade union governance and corruption established, media
release, 14 March 2014.
[5]. Royal
Commission into Trade Union Governance and Corruption, Letters
patent, 13 March 2014, pp. 2–3.
[6]. Royal
Commission into Trade Union Governance and Corruption (RCTUGC), Final
report, ‘Vol. 1, appendix 1: law reform recommendations’, RCTUGC,
Canberra, 28 December 2015, para. 37.
[7]. Ibid.,
‘Vol. 5, appendix 1: law reform’, para. 7.
[8]. Ibid.,
‘Vol. 1, appendix 1: law reform recommendations’, pp. 131–132.
[9]. Ibid.,
‘Vol. 5, appendix 1: model legislative provisions’, pp. 3789–3796 and ‘Vol. 1, appendix
1: law reform recommendations’, pp. 131–132.
[10]. Ibid.
[11]. Senate
Standing Committee on Education and Employment, ‘Submissions’,
Inquiry into the Fair Work Amendment (Corrupting Benefits) Bill 2017, The
Senate, Canberra, April 2017.
[12]. Australian
Industry Group (AIG), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017, p. 5.
[13]. Electrical
Trades Union of Australia (ETU), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017;
Professor Andrew Stewart, Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, n.d., p. 4; Australian
Council of Trade unions (ACTU), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017, pp. 5–8;
Australian Manufacturing Workers’ Union (AMWU), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 6 April 2017, p. 1;
and Construction, Forestry, Mining and Energy Union (CFMEU), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 6 April 2017.
[14]. Electrical
Trades Union of Australia (ETU), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017, pp. 4–5;
G Dwyer (National Secretary-Treasurer, Shop, Distributive and Allied Employees'
Association), Evidence
to Senate Standing Committee on Education and Employment, Inquiry into the Fair
Work Amendment (Corrupting Benefits) Bill 2017, 12 April 2017, p. 30: ‘I
would note that my organisation was a participant in the ACTU Congress of 2015,
where the entire trade union movement unanimously supported the establishment
of an independent national corruption body with powers to address the issue of
corruption across various institutions of government, the corporate sector,
financial sector and also membership sectors in our community... a better
approach to fighting corruption should see it done on a broad basis across the
entire community, with the focus being any sector where corrupt behaviour is
identified. I think we put it in our submission that we believe the UK Bribery
Act 2010, which likewise has a very broad approach to fighting corruption
in the community, is a model that would be worth exploring. The other position
we would like to note is that, in our mind, criminal behaviour should properly
be dealt with in the criminal system. If that means that there needs to be a
corruption body overseeing our institutions to identify this and then feed that
back into the relevant criminal system, so be it, but I guess our principle is
that criminal behaviour ought to be dealt with in the criminal codes.’
[15]. A
value equivalent to one penalty unit, which was $180 at the time of the report
and is now $210 was suggested. Section 4AA of the Crimes Act
1914 sets the value of a penalty unit.
[16]. Senate
Standing Committee on Education and Employment, Inquiry
into the Fair Work Amendment (Corrupting Benefits) Bill 2017 [Provisions],
The Senate Canberra, 9 May 2017, p. 8, Recommendation 1.
[17]. ALP
Senators, Additional Comments, Senate Standing Committee on Education and
Employment, Inquiry
into the Fair Work Amendment (Corrupting Benefits) Bill 2017 [Provisions],
The Senate Canberra, 9 May 2017, pp. 11–13.
[18]. Australian
Greens Senators, Dissenting Report, Senate Standing Committee on Education and
Employment, Inquiry
into the Fair Work Amendment (Corrupting Benefits) Bill 2017 [Provisions], The
Senate Canberra, 9 May 2017, pp. 15–16.
[19]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 4, 2017, The Senate, Canberra, 29 March 2017, pp. 14–20.
[20]. Ibid.,
p. 14.
[21]. Ibid.,
p. 14.
[22]. Ibid.,
p. 14.
[23]. Ibid.,
p. 85.
[24]. Subsection
13.3(3) of the Criminal
Code Act 1995 provides that ‘a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the
law creating on offence bears an evidential burden in relation to that matter’.
[25]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 4, 2017, op. cit., pp. 15–17.
[26]. Ibid.,
p. 16.
[27]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, The Senate, Canberra, 10 May 2017, pp. 86–90.
[28]. Ibid.,
p. 89.
[29]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 4, 2017, op. cit., p. 17.
[30]. Ibid.,
p. 18.
[31]. Ibid.
[32]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, op. cit., p. 92.
[33]. Ibid.,
pp. 92–93.
[34]. Ibid.,
p. 93.
[35]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 4, 2017, op. cit., p. 19.
[36]. Ibid.,
p. 20.
[37]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, op. cit., p. 96.
[38]. Ibid.,
pp. 96–97.
[39]. See
also ALP Senators, Additional Comments, Senate Standing Committee on Education
and Employment, Inquiry
into the Fair Work Amendment (Corrupting Benefits) Bill 2017 [Provisions], op.
cit., pp. 11–13.
[40]. B
O’Connor, ‘Second
reading speech: Fair Work Amendment (Corrupting Benefits) Bill 2017’, House
of Representatives, Debates, 29 March 2017, p. 3679.
[41]. Ibid.,
p. 3681.
[42]. Australian
Greens Senators, Dissenting Report, Senate Standing Committee on Education and
Employment, Inquiry
into the Fair Work Amendment (Corrupting Benefits) Bill 2017 [Provisions],
The Senate Canberra, 9 May 2017, p. 15.
[43]. A
Bandt, ‘Second
reading speech: Fair Work Amendment (Corrupting Benefits) Bill 2017’, House
of Representatives, Debates, 23 May 2017, p. 4802.
[44]. Australia,
House of Representatives, ‘Fair Work Amendment (Corrupting Benefits) Bill
2017’, Votes
and proceedings, HVP 51, 23 May 2017, p. 763.
[45]. Business
Council of Australia, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 5 April 2017, p. 1.
[46]. Australian
Industry Group, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017, p. 3.
[47]. Law
Council of Australia, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 13 April 2017, pp. 2–3.
[48]. Electrical
Trades Union of Australia (ETU), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017;
Australian Council of Trade unions (ACTU), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017;
Australian Manufacturing Workers’ Union (AMWU), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 6 April 2017; and
Construction, Forestry, Mining and Energy Union (CFMEU), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 6 April 2017.
[49]. ACTU,
Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017, pp. 4,
5–6.
[50]. ACTU,
Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017, pp. 4–5;
CFMEU, Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 6 April 2017, p. 1.
[51]. ACTU,
Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017, pp. 4,
7–8; CFMEU, Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 6 April 2017, p. 5.
[52]. ACTU,
Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017, pp. 4,
8–9; CFMEU, Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 6 April 2017, p. 6.
[53]. CFMEU,
Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 6 April 2017, pp. 6–8;
AMWU, Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 6 April 2017, p. 1.
[54]. ACTU,
Submission
to Senate Standing Committee on Education and Employment, Inquiry into the Fair
Work Amendment (Corrupting Benefits) Bill 2017, 10 April 2017, p. 12.
[55]. ACTU,
Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 7 April 2017, pp. 8–9.
[56]. Electrical
Trades Union of Australia (ETU), Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, op. cit., p. 6.
[57]. Explanatory
Memorandum, Fair Work Amendment (Corrupting Benefits) Bill 2017, p. ii.
[58]. Ibid.,
pp. iv to v.
[59]. The
Statement of Compatibility with Human Rights can be found at page iv of the
Explanatory Memorandum to the Bill.
[60]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
4, 2017, op. cit., p. 12.
[61]. Ibid.,
p. 12
[62]. Ibid.,
p. 14.
[63]. Ibid.,
p. 14.
[64]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
6, 2017, op. cit., pp. 30–31.
[65]. Ibid.,
p. 31.
[66]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
4, 2017, 9 May 2017, p. 15.
[67]. Ibid.,
p. 15.
[68]. Ibid.,
p. 16.
[69]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
6, 2017, op. cit., pp. 33–34.
[70]. Ibid.,
p. 34.
[71]. ETU,
Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, April 2017, p. 6.
[72]. UN
Human Rights Committee, General Comment No 32, Article 14: Right to equality before
courts and tribunals and to a fair trial, UN.Doc CCPR/C/GC/32 (2007).
[73]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
4, 2017, op. cit., p. 13
[74]. Ibid.
[75]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
6, 2017, op. cit., p. 30. The relevant provisions are: section 20 of the Crimes (Sentencing
Procedure) Act 1999 (NSW); subsection 11(2) of the Sentencing
Act 1995 (WA); and subsection 191(2) of the Legislation Act
2001 (ACT).
[76]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
6, 2017, op. cit., p. 30.
[77]. ‘Spouse’
includes a de facto partner, described in the Acts Interpretation
Act 1901 as a person (whether of the same sex or a different sex) who
is in a registered relationship with the other person under a state or
territory law, or who is in a relationship with the other person and living
together with them as a couple on a genuine domestic basis: sections 2D to 2F.
[78]. Bacon
v Salamane (1965) 112 CLR 85; [1965]
HCA 22 as per Taylor J; Guillot v Hender [1999]
FCA 322; (1999) 104 A Crim R 589 (cited with approval in Joyce v
Grimshaw [2001]
FCA 52; (2001) 182 ALR 602) where false statements made to a fishing
regulator ‘made with a view to... [enable] the defendants to fish for a further
quantity of orange roughy equivalent to the amount which had been underdeclared’
was deemed to be a ‘benefit’ or advantage within the context of the relevant
criminal provision at issue.
[79]. Section
4AA of the Crimes
Act 1914 provides that a penalty unit is equal to $210.
[80]. Explanatory
Memorandum, p. 4.
[81]. RCTUGC,
Final
report, ‘Vol. 5, appendix 1: law reform’, op. cit., p. 7
[82]. AIG,
Submission
to Senate Education and Employment Legislation Committee Inquiry into the Fair
Work Amendment (Corrupting Benefits) Bill 2017, op. cit., pp. 5–6.
[83]. Fair Work Act 2009,
section 14; Fair Work Commission, ‘Benchbook:
enterprise agreements’, Fair Work Commission website, 31 July 2017, p. 12.
A national system employer is ‘an employer covered and bound by
the national workplace relations law’. In general the concept includes: all
employers in Victoria (with limited exceptions in relation to some State public
sector employees), the Northern Territory and the Australian Capital Territory;
all employers on Norfolk Island, the Territory of Christmas Island and the
Territory of Cocos (Keeling) Islands; private enterprise employers in New South
Wales, Queensland and South Australia; private enterprise employers and local
government employers in Tasmania; employers that are constitutional
corporations in Western Australia (including Pty Ltd companies)—this
may include some local governments and authorities; the Commonwealth and
Commonwealth authorities, and the employers of waterside employees, maritime
employees and flight crew officers in interstate or overseas trade or commerce.
[84]. Explanatory
Memorandum, Fair Work Amendment (Corrupting Benefits) Bill 2017, p. 7; AIG, Submission
to Senate Education and Employment Legislation Committee Inquiry into the Fair
Work Amendment (Corrupting Benefits) Bill 2017, op. cit., p. 7.
[85]. Section
6.1 of the Criminal
Code Act 1995 (Cth).
[86]. Proposed
paragraphs paragraph 536F(3)(a)–(g); Explanatory Memorandum, Fair Work
Amendment (Corrupting Benefits) Bill 2017, p. 8.
[87]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 4, 2017, op. cit., p. 19; Senate Standing Committee for the
Scrutiny of Bills, Scrutiny
digest, 5, 2017, op. cit., pp. 95–97.
[88]. International
Covenant on Civil and Political Rights, done in New York on 16 December
1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13
November 1980; Art. 41 came into force for Australia on 28 January 1994).
[89]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
4, 2017, op. cit., pp. 15–16.
[90]. Parliamentary
Joint Committee on Human Rights, Guidance
note 2: Offence provisions, civil penalties and human rights, December
2014.
[91]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
6, 2017, op. cit., p. 33.
[92]. Ibid.,
p. 34
[93]. Explanatory
Memorandum, pp. v–vi.
[94]. ETU,
Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, April 2017, p. 5;
CFMEU, Submission
to Senate Standing Committee on Education and Employment, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, 6 April 2017, p. 2.
[95]. ACTU,
Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Fair Work Amendment (Corrupting Benefits) Bill 2017, op. cit., p. 9. See
paragraph 172(1)(b) of the FW Act.
[96]. Ibid.,
p. 10.
[97]. RCTUGC,
Final
report, ‘Vol. 5, appendix 1, law reform’, RCTUGC, op. cit., para. 11.
[98]. Ibid.,
footnote 5.
[99]. Ibid.,
recommendation 48.
[100]. Ibid.,
para. 26.
[101]. Fair
Work Commission, ‘Benchbook:
Enterprise Agreements’, Fair Work Commission website, 31 July 2017, p. 21.
[102]. Proposed
paragraphs 179(1)(a) and (b). A ‘greenfields’ agreement is an EA relating
to a genuine new enterprise (including a new business, activity, project or
undertaking) which is made at a time where the employer or employers have not
yet employed any of the persons who will be necessary for the normal conduct of
the enterprise and who will be covered by the agreement: Fair Work Commission,
‘Benchbook:
Enterprise Agreements’, Fair Work Commission website, 31 July 2017, p. 22.
[103]. Proposed
paragraph 179A(1)(a).
[104]. Item
1 of Schedule 2 of the Bill inserts a definition of ‘related party’
into section 12 of the FW Act, which provides that the term has the same
meaning as in the FRWO Act. Briefly, a ‘related party’ of a registered
organisation is defined in section 9B the Fair Work
(Registered Organizations) Act 2009 as including: officers of the
organisation, their spouses, and relatives of officers and spouses; an entity
controlled by the organisation or by one of the previously mentioned persons;
an entity controlled by another entity controlled by the organisation; an
entity that has been a related entity within the previous six months; an entity
that has reasonable grounds to believe it is likely to become a related party
at any time in the future; and an entity that acts in concert with a related
party on the understanding that the related party will receive a financial
benefit if the organisation gives the entity a financial benefit. The
definition of related party also applies to branches of organisations
(subsection 9B(8)).
[105]. ‘Associated
entity’ is defined in section 12 of the FW Act by reference to section
50AAA of the Corporations
Act 2001. In simple terms, two or more entities are associated entities
when they are related to or connected to one another. Those relationships or
connections arise either automatically, due to the relationship of the one to
the other, or on the facts, based on a relevant agreement or concerted activity
(for example). The Corporations Act provides that one entity (the
associate) is an associated entity of another (the principal) in any of the
following circumstances: (1) the associate and the principal are related bodies
corporate, within the meaning of section 50 of the Corporations Act;,
(2) the principal ‘controls’ the associate, within the meaning of section 50AA
of the Corporations Act; (3) the associate controls the principal and
the operations, resources or affairs of the principal are material to the
associate; (4) the associate has a ‘qualifying investment’ in the principal,
the associate has significant influence over the principal, and the interest is
material to the associate; (5) the principal has a qualifying investment in the
associate, the principal has significant influence over the associate, and the
interest is material to the principal; or (6) a third entity controls both the
principal and the associate, and the operations, resources or affairs of the
principal and the associate are both material to the third entity.
[106]. Proposed
paragraphs 179(1)(c), 179A(1)(b).
[107]. Proposed
paragraphs 179(1)(c), 179A(1)(b) and subsections 179(2) and 179A(2).
[108]. Explanatory
Memorandum, pp. 12–14.
[109]. Proposed
paragraphs 179(6)(a), (b).
[110]. Proposed
paragraph 179A(4)(a).
[111]. Proposed
paragraphs 179(6)(c), 179A(4)(b).
[112]. RCTUGC,
Final
report, ‘Vol. 5, appendix 1, law reform’, RCTUGC, op. cit., para. 24.
[113]. See
proposed subsections 179(1), (3)–(4), 179A(1), (3) and 180(4A) and
(4B).
[114]. Proposed
paragraphs 179(4)(a)–(d) and 179A(3)(a)–(d).
[115]. Explanatory
Memorandum, pp. 13 and 14.
[116]. Ibid.
[117]. Item
5 of Schedule 2; note to proposed subsections 179(5); 180(4C).
See also subsection 546(2) of the FW Act.
[118]. Fair
Work Act 2009, subsections 180(2)-(4).
[119]. Explanatory
Memorandum, pp. 12–13.
[120]. Ibid.,
p. vii.
[121]. Item
5 of Schedule 2; proposed
subsections 179(1), (3), note to proposed subsection 179(1). See
also subsection 546(2) of the FW Act.
[122]. Item
5 of Schedule 2; proposed
subsections 180(4A), (4B) and notes to those proposed subsections. See
also subsection 546(2) of the FW Act.
[123]. Ibid.,
paragraph 186(2)(a), section 188.
[124]. Ibid.,
subsections 180(2), (3) and (5).
[125]. Ibid.,
subsection 181(2).
[126]. Ibid.,
paragraph 188(c).
[127]. Explanatory
Memorandum, p. 15.
[128]. Ibid.
[129]. Ibid.,
op. cit., pp. vi–vii.
[130]. Proposed
section 188A.
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