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.
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.
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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.
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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.
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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.
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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.
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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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