2.3
The committee first reported on the Competition and Consumer Amendment
(Competition Policy Review) Bill 2017 (the bill) in its Report 6 of 2017,
and requested a response from the treasurer by 14 July 2017.[1]
2.4
The treasurer's response to the committee's inquiries was received on
3 August 2017 and discussed in Report 9 of 2017.[2]
2.6
The committee requested further information from the treasurer by 20
September 2017 in relation to the human rights issues identified in relation to
increased penalties for secondary boycotts.
2.7
The treasurer's further response to the committee's inquiries was
received on 9 October 2017. The response is discussed below and is reproduced
in full at Appendix 3.
2.8
Schedule 6 to the bill proposes to increase the
maximum penalty applying to breaches of the secondary boycott provisions
(sections 45D and 45DB of the Competition Act) from $750,000 to $10,000,000.
2.9
Currently, section 76(2) of the Competition Act provides
that individuals cannot be fined for contravention of the boycott provisions. However,
this is subject to section 45DC(5) which provides that where an organisation is
not a body corporate, proceedings for damages can be taken against an officer
of the union as a representative of union members. These damages can be
enforced against the property of the union, or against any property that
members of the union hold in their capacity as members.
2.10
The right to strike is protected as an aspect of
the right to freedom of association and the right to form and join trade unions
under article 22 of the ICCPR and article 8 of the International Covenant on
Economic Social and Cultural Rights (ICESCR). The right to strike, however, is
not absolute and may be limited in certain circumstances.
2.11
The statement of compatibility acknowledges that
the measure may engage work-related rights:
2.12
The statement of compatibility contends that the measure engages but
does not further limit work-related rights. However, where a measure increases
the penalties imposed in relation to provisions which limit human rights, this
has consistently been considered to constitute a further limitation on the
relevant right. The statement of compatibility does not explain the objective
of the measures, nor engage in an assessment of proportionality against the
limitation criteria.
2.13
The initial analysis noted that the scope of the right to
strike under international human rights law is generally understood as also
permitting 'sympathy strikes' or primary as well as secondary boycott
activities.[5] The statement of compatibility does not explain what kinds of matters
are not considered to have a 'dominant purpose' relating to employment, such
that secondary boycott activities are prohibited and the increased penalty is
to apply. The previous analysis stated that further information would assist
the committee’s assessment of the measure.
2.14
The committee therefore requested the advice of the
treasurer as to:
2.15
The right to freedom of assembly and the right to freedom of expression
are protected by articles 19 and 21 of the ICCPR. As noted in the initial human
rights analysis, the right to freedom of assembly and the right to freedom of
expression may be limited for certain prescribed purposes. That is, that the
limitation is necessary to respect the rights of others, to protect national
security, public safety, public order, public health or morals. Additionally,
such limitations must be prescribed by law, reasonable, necessary and
proportionate to achieving the prescribed purpose.
2.16
The initial analysis noted that as the increased penalty may have the
effect of discouraging certain kinds of protest activities, it may engage and
limit the right to freedom of assembly and expression. These rights were not
addressed in the statement of compatibility.
2.17
The committee therefore requested the advice of the
treasurer as to:
2.18
The treasurer's initial response provided the following information in
relation to the proposal to increase penalties for secondary boycotts:
2.19
In relation to the compatibility of this measure with the right to
freedom of association and the right to freedom of assembly and expression, the
treasurer's response stated:
2.20
The previous analysis noted that the information provided in the
treasurer's initial response usefully indicates that the measure pursues a legitimate
objective and is rationally connected to that objective. It was further noted
that the 'dominant purpose' of employment exception is an important and
relevant exception to the prohibition on secondary boycotts in section 45D.[6]
2.21
However, the examples did not make clear to what extent the exemption
would provide any protection to sympathy strikes or related assembly. It was
noted that in a broad range of contexts such as outsourced employment models,
conduct against entities that may not be a person's direct employer may be seen
as an aspect of the right to strike, freedom of expression or assembly.
2.22
There is also an exemption from section 45D if the conduct is not
'industrial action' and it is engaged in for a dominant purpose substantially
related to environmental or consumer protection. However, the measure may still
have the effect of prohibiting campaigns and protest action that may use
boycotts as a technique. It was noted that there is no exception provided on
the grounds, for example, that the boycott action relates to human rights
matters. Further, the previous analysis raised the possibility that the section
45DB may prohibit cross-border sympathy strikes or solidarity action including
in relation to international supply chains or in support of Australian workers.[7] This means that the relevant sections may prohibit an aspect of the right to freedom
of association, the right to freedom of expression and the right to freedom of
assembly as understood in international law. The very substantial increase in
penalty proposed by the measure makes these provisions less likely to be proportionate
limitations on these rights.
2.23
Accordingly, the committee requested the advice of the treasurer as to
whether:
2.24
The treasurer did not address the committee's specific questions in
relation to the secondary boycott provisions. These questions were aimed at
obtaining relevant information for the purpose of examining the human rights
compatibility of the increased maximum penalty for secondary boycotts in the
context of the existing regime. This included the extent of any limitation on
the right to freedom of association, the right to freedom of expression and the
right to freedom of assembly including the scope of relevant exceptions to
secondary boycott provisions.
2.26
As set out in the initial human rights analysis where a measure
increases the penalties imposed in relation to penalty provisions which limit
human rights, this has consistently been considered to constitute a further limitation
on the relevant right. The fact that what matters are subject to secondary
boycott provisions have been in place for several decades does not address the
question of whether these provisions are otherwise compatible with human
rights. In this respect, international treaty monitoring bodies have raised
specific human rights concerns in relation to Australia's secondary boycott
provisions and called on Australia to amend these provisions.[8] The underlying question remains whether the relevant exceptions are broad
enough to protect freedoms of association, expression and assembly, or
nonetheless broad enough such that the limitations on these rights are
proportionate, bearing in consideration the very substantial increase in
penalties proposed by the measure. In light of these issues and the absence of
information from the minister, it is not possible to conclude that the measure
is compatible with human rights.
2.29
The committee first reported on the Electoral and Referendum Amendment
(ASADA) Regulations 2017 (the ASADA regulations) in its Report 11 of 2017,
and requested a response from the Minister for Finance by 1 November 2017.[9]
2.30
The Special Minister of State responded to the committee's inquiries.
The response, which includes input from the Australian Sports Anti-Doping
Authority (ASADA), was received on 1 November 2017. The response is discussed
below and is reproduced in full at Appendix 3.
2.31
The ASADA regulations amend the Electoral and Referendum Regulation 2016 (the electoral and referendum regulation) to include ASADA on the list of
prescribed authorities for the purposes of the Commonwealth Electoral Act
1918. The effect of the amendment is that the Commonwealth Electoral Commission
may give ASADA commonwealth electoral roll information for the purpose of the
administration of the National Anti-Doping Scheme within the meaning of the Australian
Sports Anti-Doping Authority Act 2006 (the ASADA Act).[10]
Compatibility of the measure with
the right to privacy
2.32
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and the right to
control the dissemination of information about one's private life.
2.33
The initial human rights analysis stated that the amendments engage and
limit the right to privacy by providing for the disclosure of elector's
information (which includes personal information such as a person's name and
address) from the commonwealth electoral roll to ASADA.
2.34
The statement of compatibility acknowledges that the right to privacy is
engaged, but explains the measure is a permissible limitation as it is
reasonable, necessary and sufficiently precise to ensure that it addresses only
those matters it is intended to capture under the ASADA Act.
2.35
The statement of compatibility explains the objective of the measure as
being 'necessary in the interests of public safety and for the protection of
public health'.[11]
The statement of compatibility further explains that the measure will assist
the work of ASADA in investigating violations under the National Anti-Doping
scheme. The initial analysis noted that, while generally these matters are
capable of constituting legitimate objectives for the purposes of international
human rights law, the statement of compatibility provides no information about
the importance of these objectives in the specific context of the measure. In
order to show that the measure constitutes a legitimate objective for the
purposes of international human rights law, a reasoned and evidence-based
explanation of why the measure addresses a substantial and pressing concern is
required. The statement of compatibility also does not provide any information
as to how the measure is rationally connected to (that is, effective to
achieve) the objectives.
2.36
As to the proportionality of the measure, limitations on the right to
privacy must be no more extensive than what is strictly necessary to achieve
the legitimate objective of the measure. The statement of compatibility
explains that having access to the electoral roll will 'assist the work of
ASADA in investigating violations under the National Anti-Doping scheme'.[12] The statement of compatibility continues:
Providing access to the Commonwealth electoral Roll to ASADA
for the purpose of administering the National Anti-Doping scheme, it would be
particularly beneficial:
-
for identifying persons who are subject to tip-offs;
-
for locating athletes for testing purposes;
-
for establishing additional information to facilitate additional
records checks;
-
for establishing the identity of co-habitants and associations of
interest;
-
for linking seizures of Performance and Imaging Enhancing Drugs
to the occupants of the intended destination addresses; and
-
for maintaining the confidentiality of ASADA enquiries.
2.37
The statement of compatibility does not provide further information as
to whether these reasons for accessing information on the electoral roll are
the least rights restrictive means of achieving the stated objectives. For
example, based on the information provided it is unclear whether 'establishing
the identity of co‑habitants and associations of interest' is strictly
necessary to achieve the stated objectives of public safety and protection of
public health.
2.38
Further, whilst these reasons for access are specifically identified in
the statement of compatibility, the amendment itself is drafted more broadly,
stating that information can be accessed for 'the administration of the
National Anti-Doping Scheme (within the meaning of the Australian Sports
Anti-Doping Authority Act 2006)'.[13]
2.39
'Administration' appears to be broad in scope, particularly in contrast
to the purposes identified for access to the electoral roll for other
prescribed authorities. For example, the identified purposes for access
to the electoral roll for the Australian Federal Police is detailed in Clause 7
of Schedule 1 to the electoral and amendment regulation, and is more
prescriptive, as follows:
-
identifying or locating offenders, suspects or witnesses; or
- deciding whether suspects can be eliminated from an investigation; or
- target development; or
- intelligence checks; or
- protecting the safety of officers, staff members, AFP employees and
special members; or
- law enforcement; or
- surveillance; or
- identification or potential or actual disaster victims, and notification
of victims' families; or
- security vetting of AFP officers or potential AFP officers.
2.40
The initial analysis stated that the broad wording of the amendment
raises questions as to whether the measure as currently drafted is sufficiently
circumscribed.
2.41
Another relevant factor in assessing the proportionality of a measure is
whether there are adequate safeguards in place to protect the right to privacy.
In this respect the statement of compatibility states:
The disclosure of such information is protected in the first
instance by the discretion of the Electoral Commission who can decide when and
how to give this information, to the prescribed authority.[14]
2.42
No further information is provided in the statement of compatibility as
to the scope of the discretion of the Electoral Commission, including any
relevant safeguards. In any event, while the existence of a discretion is a
relevant factor, it often is not, by itself, an effective human rights
safeguard. No other information is provided about whether there are adequate
and effective safeguards in place to protect against unintended use of
information or on-disclosure to third parties.
2.43
The committee therefore sought the advice of the minister as to:
- whether there is reasoning or
evidence that establishes that the stated objective addresses a pressing or
substantial concern or whether the proposed changes are otherwise aimed at
achieving a legitimate objective for the purposes of international human rights
law;
- how the measure is effective to
achieve (that is, rationally connected to) that objective; and
- whether the limitation is a
reasonable and proportionate measure for the achievement of the stated
objective (including whether the measure is sufficiently circumscribed and
whether there are adequate and effective safeguards with respect to the right
to privacy).
Minister's response
2.44
In relation to whether there is reasoning or evidence that establishes
that the stated objective addresses a pressing or substantial concern, the
minister's response outlines Australia's international obligations in relation
to anti-doping in its capacity as a party to the UNESCO International
Convention (UNESCO Convention) against doping in sport, in particular
Australia's obligation to implement arrangements consistent with the principles
of the World Anti-Doping Code. The minister further explains that:
In Australia, the illicit status of many performance and
image enhancing drugs (PIEDs) mean they are at high risk of being supplied
through unregulated markets, giving rise to the risk that they are counterfeit,
or produced in underground laboratories. The abuse of pharmaceutical grade
substances to improve sporting performance also carries inherent health risks.
Furthermore, there is a need to counter the trafficking of PIEDS produced
outside of controlled environments as they create additional public safety
risks.
The Australian Criminal Intelligence Commission 2015-16
Illicit Drug Report reveals that in 2015-16, there were 6877 PIED
detections at the Australian border. In 2015-16, the report reveals a record
number of steroid arrests in Australia.
Highlighting the potential health and safety risks of doping,
in November 2015, the Essendon Football Club pleaded guilty to two breaches of
the Victorian Occupational Health and Safety Act 2004.
In its 2013 report, the Australian Crime Commission (ACC)
examined the new generation of performance and image enhancing drugs in sport,
namely peptides and hormones. In this report, the ACC identified organised
crime involvement in the distribution of PIEDs and evidence of personal
relationships of concern between professional athletes, support staff and
organised criminal identities.
Having access to data held by the Australian Electoral
Commission builds ASADA's detection capability and provides a mechanism to
deter doping behaviours in sport (due to the greater possibility of getting
caught). It supports ASADA's ability to detect and disrupt the activities of
persons within its jurisdiction involved with the use, administration,
possession or trafficking of doping substances, which is in the interest of the
protection of public health. The amendment enhances ASADA's ability to support
other agencies who share mutual interests in the disruption of the PIEDs
market, which is in the interests of public safety.
2.45
The further information provided in the minister's response as to
compliance with Australia's international obligations in relation to
anti-doping regimes and the risks to health and safety associated with
anti-doping supports the conclusion that the stated objectives are likely to be
considered legitimate objectives for the purposes of international human rights
law.
2.46
In relation to how the measure is effective to achieve (that is,
rationally connected to) its objectives, the minister's response explains that
as the science of doping becomes more technologically advanced, the
identification of doping through the collection and analysis of samples (testing)
alone has become less effective. The minister explains that this makes it
necessary to combine such testing with other forms of detection to allow for an
effective anti-doping program to operate. The minister further explains that:
Accessing electoral information will allow ASADA to ensure
its inquiries are appropriately targeted, in particular in relation to the
identification of persons known or suspected to be involved in the receipt, use
and distribution of PIEDS [performance enhancing drugs] to facilitate doping
activities. It also minimises the need for ASADA to ask sporting organisations
about individuals, thereby minimising the scope for the identity of a person
under suspicion to be released by third parties.
2.47
Based on the information provided in the minister's response, it appears
that collection of electoral role information is rationally connected to the
stated objectives of the measure.
2.48
In relation to whether the limitation is proportionate to the stated
objective, the minister also provided a detailed and relevant response. In
response to the committee's query as to whether 'establishing the identity of
co‑habitants and associations of interest' is strictly necessary to
achieve the stated objectives of public safety and protection of public health,
the minister's response explains the rationale for the broadly-worded
provision:
Establishing the identity of co-habitants and associations of
interest is critical in linking PIEDs imports to intended recipients and
thereby supporting investigations of possible anti-doping rule violations,
including the possession, use and trafficking of PIEDs. Such activities may
involve a range of persons as highlighted in the 2013 ACC report which
determined doping programs were being facilitated by sports scientists, high
performance coaches, sports staff, doctors, pharmacists and anti-ageing
clinics. The ACC report highlighted the sophisticated nature of doping
programs, noting a complex supply and distribution network exists to satisfy
the high demand for anabolic steroids, peptides and hormones by sub-elite and
recreational athletes, body builders and increasingly, ageing Australians. The
ACC report also highlighted the involvement of criminal groups in the
distribution of PIEDs and, in some cases, the direct associations between
athletes and criminal identities.
Often the substances being used were not approved for human
use, thereby increasing the risks to public health and public safety.
ASADA recently investigated two matters that, in part,
involved the import of PIEDs via the mail system into Australia. In one case,
the person used a range of different names and addresses, at least one of which
was linked to a parent, to attempt to import the PIEDs successfully and without
detection. In the other matter, one attempted PIEDs import was addressed to the
co-habitant of an athlete. As the co-habitant was out of the country for a
significant length of time at the point of the seizure, ASADA assessed that the
intended recipient was the athlete. These matters highlight the importance of
understanding who is linked to addresses associated with PIEDs seizures and the
association's athletes and persons suspected of attempting to import PIEDs, and
the propensity of persons within ASADA's jurisdiction to use subterfuge to thwart
the detection of their misconduct.
2.49
As to the safeguards in place to protect the right to privacy, the
minister's response provides detailed information as to the safeguards that are
in place under the ASADA Act:
Anti-Doping arrangements have been established with due
reference to the protection of the rights of individuals involved in sport. The
UNESCO Convention explicitly refers to protecting the rights of individuals. In
complying with the Code, anti-doping organisations around the world, including
ASADA, are required to operate in accordance with the International Standard
for the Protection of Privacy and Personal Information.
Under the Australian Sports Anti-Doping Authority Act 2006,
protected information is defined as information that:
- was obtained under or for the purposes of this Act or a
legislative instrument made under this Act; and
- relates to the affairs of a person (other than an
entrusted person); and
- identifies, or is reasonably capable of being used to
identify, the person.
Part 8 of the Act makes it an offence for the CEO, ASADA
staff and certain other bodies/persons, to disclose protected information.
However, it is not an offence if the disclosure is authorised by this Part or
is in compliance with a requirement of certain other laws.
-
Unauthorised disclosure of
protected information can result in a 2 year custodial sentence.
- ASADA meets the PROTECTED level
certification under the Commonwealth Protective Security Framework, and has
mature systems to protect information;
Section 14 of the Act specifies the rights of athletes and
support persons.
2.50
The minister's response explains that these safeguards are complemented
by the mechanisms under the Electoral Act which protect against unintended use
or on-disclosure to third parties, including penalties for breaching
non-disclosure provisions.
2.51
Noting the extensive range of safeguards in place to protect a person's
right to privacy, it is likely that the measure would be considered
proportionate to the stated objective for the purposes of international human
rights law.
Committee response
2.52
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.53
Based on the information provided, it is likely the measures will
be compatible with the right to privacy.
Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill
2017
Purpose |
Seeks to amend the Fair
Work (Registered Organisations) Act 2009 to expand the grounds upon which
a person can be disqualified from holding office in a union; expand the
grounds upon which the registration of unions may be cancelled; or for a
union to be placed into administration; and provide a public interest test for
amalgamations |
Portfolio |
Employment |
Introduced |
House of Representatives,
16 September 2017 |
Rights |
Freedom of association; to
form and join trade unions; just and favourable conditions at work;
presumption of innocence (see Appendix 2) |
Previous report |
9 of 2017 |
Status |
Concluded examination |
Background
2.54
The committee first reported on the Fair Work (Registered Organisations)
Amendment (Ensuring Integrity) Bill 2017 (the bill) in its Report 9 of 2017,
and requested a response from the Minister for Employment by 20 September 2017.[15]
2.55
The minister's response to the committee's inquiries was received on
3 October 2017. The response is discussed below and is reproduced in full
at Appendix 3.
The right to freedom of association and the right to form and join trade
unions
2.56
The bill contains a number of schedules which impact on the internal
functioning of trade unions.
2.57
The right to freedom of association includes the right to form and join
trade unions. The right to just and favourable conditions of work also
encompasses the right to form trade unions. These rights are protected by the
International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR).[16]
2.58
The interpretation of these rights is informed by International Labour
Organization (ILO) treaties, including the ILO Convention of 1948 concerning
Freedom of Association and Protection of the Right to Organize (ILO Convention
No.87) and the ILO Convention of 1949 concerning the Right to Organise and
Collective Bargaining (ILO Convention No. 98).[17] ILO Convention 87 protects the right of workers to autonomy of union processes
including electing their own representatives in full freedom, organising their
administration and activities and formulating their own programs without
interference.[18] Convention 87 also protects unions from being dissolved, suspended or
de-registered and protects the right of workers to form organisations of their
own choosing.[19]
2.59
The initial human rights analysis stated that a number of measures in
this bill, by limiting the ability of unions to govern their internal
processes, engage and limit these rights.
Disqualification of individuals from holding office in a union
2.60
Schedule 1 of the bill would expand the circumstances in which a person
may be disqualified from holding office in a registered organisation (such as a
trade union or employers association) and make it a criminal offence for a
person who is disqualified from holding office in a registered organisation to
continue to hold office or act in a manner that would significantly influence
the organisation.[20]
2.61
Specifically, the Fair Work Commissioner, the minister or another person
with sufficient interest may apply to the Federal Court for an order
disqualifying a person from holding office in a union. The Federal court may
disqualify a person if satisfied that a ground for disqualification applies and
it would not be unjust to disqualify the person having regard to the nature of
the ground, the circumstances and any other matters the court considers
relevant. Under proposed section 223 the grounds for the disqualification
include:
- a 'designated finding ' or contempt of court;
- a 'wider criminal finding' or contempt of court; or
-
two or more failures to take reasonable steps to prevent such
conduct by a union while the person was an officer of that union;
- corporate impropriety; or
- a person is not a 'fit and proper' person having regard to a
range of factors.[21]
2.62
Under proposed section 9C, a 'designated finding' is defined to include
a finding that a person has contravened a civil penalty provision of industrial
laws or committed particular criminal offences.[22] 'Wider criminal finding' is defined to include that the person has committed an
offence against any law of the Commonwealth or a State or Territory.[23]
2.63
The bill would additionally expand the definition of 'prescribed
offence' for the purposes of an automatic disqualification for five years to
include an offence under a law of the Commonwealth, a State or Territory or
another country, punishable on conviction by imprisonment for life or a period
of five years or more.[24]
Compatibility of the measure with
the right to freedom of association and the right to just and favourable
conditions at work
2.64
The initial analysis stated that expanding the circumstances in which
individuals can be disqualified from holding office in a union engages and
limits the right to freedom of association, the right to just and favourable
conditions at work and in particular the right of unions to elect their own
leadership freely. International supervisory mechanisms have explained the
scope of this right and noted that:
The right of workers' organizations to elect their own
representatives freely is an indispensable condition for them to be able to act
in full freedom and to promote effectively the interests of their members. For
this right to be fully acknowledged, it is essential that the public
authorities refrain from any intervention which might impair the exercise of
this right, whether it be in determining the conditions of eligibility of
leaders or in the conduct of the elections themselves.[25]
2.65
The right to freedom of association may be subject to permissible
limitations providing certain conditions are met. Generally, to be capable of
justifying a limitation on human rights, the measure must address a legitimate
objective, be rationally connected to that objective and be a proportionate way
to achieve that objective. Further, article 22(3) of the ICCPR and article 8 of
the ICESCR expressly provide that no limitations are permissible on this right
if they are inconsistent with the guarantees of freedom of association and the
right to collectively organise contained in the ILO Convention No. 87.
2.66
The statement of compatibility identifies the objective of the measure
as 'improving the governance of registered organisations and protecting the
interests of members'.[26] It points to evidence from the Final Report of the Royal Commission into Trade
Union Governance and Corruption (Heydon Royal Commission) in support of this
objective.[27] The statement of compatibility further explains that the measure, by ensuring
the leadership of unions act lawfully, addresses these objectives.[28] The initial analysis stated that the objective identified is likely to
constitute a legitimate objective for the purposes of international human
rights law.
2.67
The statement of compatibility further provides that the measure is a
proportionate limitation and notes that the Federal Court will supervise the
disqualification process.[29] It was noted in the initial analysis that, while it is a relevant safeguard
that disqualification orders are to be made by the Federal Court, it is unclear
that this alone is sufficient to ensure that the measure constitutes a
proportionate limitation. Relevantly, conduct that could result in
disqualification is extremely broad and includes a 'designated finding', that
is, a finding of a contravention of an industrial relations law (including
contraventions that are less serious in nature). This would include taking
unprotected industrial action.[30]
2.68
As noted previously, as an aspect of the right to freedom of association,
the right to strike is protected and permitted under international law. The
existing restrictions on taking industrial action under Australian domestic law
have been consistently criticised by international supervisory mechanisms as
going beyond what is permissible.[31] The previous analysis assessed that it appears that the proposed measure could
lead to the disqualification of an individual for conduct that may be protected
as a matter of international law. In this respect, the measure would appear to
further limit the right to strike. Additionally, this aspect of the measures
raises questions about its rational connection to the stated objective of
protecting the interests of members, where members may be of the view that
taking particular forms of industrial action are in their interests.
2.69
It was further noted that under the proposed measure, a person may be
disqualified from holding office in a union on the basis of their failure to
prevent two or more contraventions by their union that amount to a 'designated
finding' or a 'wider criminal finding' or contempt of court. As noted above,
'designated findings' are defined to apply in relation to a broad range of
contraventions of industrial law including taking unprotected industrial
action. Where a union has engaged in two or more such contraventions, the
effect of the measure could be that the entire elected union leadership could
be subject to disqualification. This is regardless of whether or not union
members agreed to participate in, for example, conduct which lead to
'designated findings' or contempt of court and whether they considered that
this was in their best interests.
2.70
In this respect, the disqualification process may have a very extensive
impact on freedom of association more broadly. It was unclear from the
information provided in the statement of compatibility how the breadth and
impact of this measure is rationally connected to the stated objective of
'improving the governance of registered organisations and protecting the
interests of members' and whether the measure is the least rights restrictive
way of achieving this objective as required in order to be a proportionate
limitation on human rights.
2.71
The committee therefore requested the further advice of the minister as
to:
- how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (in particular, whether the measure is the
least rights restrictive way of achieving its stated objective; the extent of
the limitation including in respect of the right to strike, noting previous
concerns raised by international supervisory mechanisms; and the existence of
relevant safeguards).
Minister's response
2.72
The minister's response explains the scope of the current law providing
for automatic disqualification from office as well as the limited discretionary
power for the Federal Court to order disqualification. The minister's response
further explains that the bill would expand the categories of offence where a
person may be subject to automatic disqualification as well as providing the
Federal Court with broad discretionary power to disqualify a person in
circumstances where a ground for disqualification exists. The minister's
response further states that there is currently no penalty for a person who is
disqualified from acting as a 'shadow officer'.
2.73
The minister's response provides some information in relation to whether
the expansion of the grounds for disqualification is effective to achieve its
stated objective:
The amendments to the disqualification provisions of the RO Act
are made in response to the recommendations of the Royal Commission into Trade
Union Governance and Corruption (Royal Commission) concerning the current
disqualification regime. The Royal Commission identified that the current disqualification
scheme provides no consequence for acting while disqualified or for committing
serious criminal offences.
For example, the Royal Commission noted that a person against
whom a civil penalty has been imposed for a contravention of the statutory
officers' duties cannot be disqualified from holding office under the current
disqualification provisions. This is the case even if the conduct that led to
the imposition of a civil penalty clearly demonstrated the person was unable or
unwilling to uphold the standards reasonably expected of a person holding
office in an organisation.
Providing for the possibility of disqualification from office
and restricting who can be elected to office, in circumstances where a ground
for disqualification has been made out and the Federal Court considers
disqualification just, is a rational means of ensuring greater compliance with
the standards of conduct reasonably expected of officers, and a rational method
for improving governance of organisations more generally.
2.74
The minister's response highlights what are seen as gaps in current
regulation. However, the response does not address whether the basis and
breadth of the proposed grounds for disqualification are effective to achieve
the previously stated objective of 'improving the governance of registered
organisations and protecting the interests of members'.[32] As previously stated, the
proposed grounds for disqualification are extremely broad. Relevantly, conduct
that could result in disqualification includes a 'designated finding', that is,
a finding of a contravention of an industrial relations law, including
contraventions that are less serious in nature. This would include taking
unprotected industrial action.
2.75
In relation to the impact of the bill on the right to strike as an
aspect of the right to freedom of association, the minister's response states:
In response to the Committee's specific concern, the Bill
does not contain provisions circumscribing the right to strike as protected by
the right to freedom of association. The Bill does not alter the circumstances
in which industrial action will be considered protected industrial action, or
the consequences provided for failures to comply with Part-3-3 of the Fair Work
Act, dealing with industrial action.
2.76
It is acknowledged that the measure does not alter the requirements for
taking protected industrial action in Part 3-3 of the Fair Work Act. However,
what it does is render non-compliance with these provisions a ground for
disqualification from holding office in a registered organisation. That is, the
measure creates an additional sanction or disincentive for taking industrial
action that does not or may not comply with the requirements of Part 3-3 of the
Fair Work Act. As set out at [2.68] above, the existing restrictions on taking
industrial action under Australian domestic law have been consistently
criticised by international supervisory mechanisms as going beyond what is
permissible under international human rights law. For these reasons the measure
appears to further engage and limit the right to strike. Further, this aspect
of the measure continues to raise concerns that it is not effective to achieve
the stated objective of protecting the interests of members, where members may
be of the view that taking particular forms of industrial action are in their
interests.
2.77
In relation to whether the limitation is proportionate, the minister's
response states:
The Bill seeks to achieve its objectives by providing
appropriate mechanisms to disqualify a person from holding office in
circumstances where a person has failed to uphold the standards expected of a
person acting as an officer in an organisation. These mechanisms are administered
and supervised by the Federal Court. The Federal Court is an impartial and
independent judicial body from which appeals to the full Federal Court and
ultimately the High Court are available. Providing the Court with this
discretion avoids any risk of excessive or arbitrary interference in the free
functioning of organisations.
These are reasonable and proportionate methods of ensuring
that officials who deliberately disobey the law are restricted in their ability
to be in charge of registered organisations. This will serve to protect the
interest of members and guarantee public order by ensuring the leadership of
registered organisations act lawfully.
2.78
While it is a relevant safeguard that disqualification orders are to be
made by the Federal Court, this alone is insufficient to ensure that the
measure constitutes a proportionate limitation. The court's discretion in
determining that a ground for disqualification exists and that it would not be
unjust to make such an order does not address the breadth of the grounds for
disqualification in the proposed legislation that the court will apply. The
response does not address the specific concerns raised in the initial analysis
regarding the breadth of the proposed powers of disqualification. As noted
above, 'designated findings' are defined to apply in relation to a broad range
of contraventions of industrial law including, for example, taking unprotected
industrial action or a failure to comply with union right of entry provisions.
Where a union has engaged in two or more such contraventions, the effect of the
measure could be that the entire elected union leadership could be subject to
disqualification. This is regardless of whether or not union members agreed to
participate in, for example, conduct which lead to 'designated findings' or
contempt of court and whether they considered that this was in their best
interests.
2.79
The expanded basis for criminal offences to constitute a ground for
either mandatory or discretionary disqualification also raises a concern that
some of these offences may be unrelated to a person's capacity or suitability
to perform functions in union office. In this respect, international
supervisory mechanisms have cautioned that:
Conviction on account of offences the nature of which is not
such as to call into question the integrity of the person concerned and is not
such as to be prejudicial to the exercise of trade union functions should not
constitute grounds for disqualification from holding trade union office, and
any legislation providing for disqualification on the basis of any offence is incompatible
with the principles of freedom of association.[33]
2.80
More generally, the response also does not address the findings by
international supervisory mechanisms which indicate that generally broad scope
should be afforded to unions to choose their leadership freely.[34] Applying these findings by international supervisory mechanisms to the proposed
measures, it appears that the scope and extent of the limitation on holding
union office goes beyond what is permissible as a matter of international human
rights law.[35] As such the measure appears likely to be incompatible with the right to
freedom of association.
Committee response
2.81
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.82
The preceding analysis indicates that the measure is likely to be
incompatible with the right to freedom of association.
Cancellation of registration of registered organisations
2.83
The registration of a registered organisation (union or employer
association) under the Fair Work (Registered Organisations) Act 2009 (Registered Organisations Act) grants the organisation a range of rights and
responsibilities including representing the interests of its members.[36] The bill seeks to expand the grounds for the cancellation of the registration
of registered organisations under the Registered Organisations Act. Under
proposed section 28, the Fair Work Commissioner, the minister or another person
with sufficient interest can apply to the Federal Court for an order cancelling
registration of an organisation, if the person considers there are grounds for
such cancellation. These grounds include:
- A substantial number of officers or two or more senior officers
have engaged in conduct abusing their position, perverted the course of
justice, engaged in corruption, acted in their own interests rather than the
interests of the members of the whole, conducted affairs of the organisation in
a manner that is oppressive or prejudicial to a class of members or contrary to
the interests of the members as a whole;[37]
- 2 or more 'designated findings' or 'wider criminal findings' have
been made against the organisation;[38]
- The organisation is found to have committed a serious criminal
offence (defined as an offence punishable by at least 1,500 penalty units);[39]
- That there have been multiple 'designated findings' against
members;[40]
- That the organisation has failed to comply with an order or
injunction; or
- That the organisation or a substantial number of members have
organised or engaged in 'obstructive industrial action'.[41]
2.84
Under proposed section 28K, if the court finds that a ground is
established it must cancel the organisation's registration unless the
organisation can satisfy the court that it would be unjust to cancel its
registration (having regard to the nature of the matters constituting that
ground; the action (if any) that has been taken by or against the organisation;
the best interests of the members of the organisation as a whole and any other
matters the court considers relevant).
2.85
The Federal Court would also be empowered to make a range of alternative
orders including the disqualification of certain officers, the exclusion of
certain members or the suspension of the rights of the organisation.[42]
Compatibility of the measure with the right to freedom of
association and the right to just and favourable conditions at work
2.86
By expanding the grounds upon which unions can be de-registered or
suspended, as the previous analysis stated, the measure engages and limits the
right to freedom of association and the right to just and favourable conditions
at work. In this respect, it was noted that international supervisory
mechanisms have recognised the importance of registration as 'an essential facet
of the right to organize since that is the first step that workers' or
employers' organizations must take in order to be able to function efficiently,
and represent their members adequately'.[43] They have further noted that 'the dissolution of trade union organizations is a
measure which should only occur in extremely serious cases' noting the serious
consequences for the representation of workers.[44]
2.87
Although the statement of compatibility contends that this measure does
not limit the ability of individuals to form and join trade unions, it
nevertheless provides some information as to whether the limitation on the
right to freedom of association is permissible.[45] It states that the measure has the:
...sole objective of protecting the interests of members and
guaranteeing the democratic functioning of organisations under the stewardship
of officials and a membership that respects the law and thus maintains public
order.[46]
2.88
However, this statement appears to identify multiple objectives and does
not provide evidence as to which, if any, of these objectives addresses a
substantial and pressing concern.
2.89
Even if the protection of the interests of members and/or the democratic
functioning of unions and/or the maintenance of public order are to be
considered legitimate objectives, it must be shown that the limitation imposed
by the measure is effective to achieve (rationally connected to) and
proportionate to these stated objectives.
2.90
The statement of compatibility argues that the measure addresses the
costly and lengthy deregistration process and will 'facilitate the continued
existence and functioning of an organisation or some of its component parts in
circumstances in which one part of the organisation is affected by
maladministration or dysfunction associated with a culture of lawlessness'.[47] The initial analysis noted that, while the measures may undoubtedly make the
deregistration of unions easier, many of the grounds for cancellation could
relate to less serious contraventions of industrial law or to taking unprotected
industrial action such that it is unclear how the cancellation of union
registration would necessarily be in the interests of members or would
guarantee the democratic functioning of the organisation. For example, union
members may have democratically decided to take unprotected industrial action
and hold the view it is in their best interests to do so.
2.91
As set out above at [2.68], restrictions on taking industrial action in
Australian domestic law have been subject to serious criticisms by
international treaty monitoring bodies as going beyond permissible limitations
on the right to strike as an aspect of the right to freedom of association.
Cancelling the registration of unions for undertaking such conduct further
limits the right to freedom of association. It was further noted that the court
would be empowered to exclude particular members from union membership in a way
that would appear to undermine their capacity to be part of a union of their
choosing. The breadth of the proposed power to cancel union registration raises
specific questions about whether it is sufficiently circumscribed with respect
to its stated objectives.
2.92
The statement of compatibility provides some arguments about the
proportionality of the measure and in particular notes the availability of
certain safeguards. These include that orders for cancellation may be limited
to part of an organisation that has been undertaking the conduct and that
workers will still be entitled to be represented by a union. The preceding
analysis raised the concern that these safeguards appeared insufficient to
ensure that the limitation is the least rights restrictive way to achieving its
stated objectives, in view of the breadth of the grounds for cancellation of
union registration set out above.
2.93
The committee therefore requested the further advice of the minister as
to:
- whether there is reasoning or evidence that establishes that one
or more of the stated objectives addresses a pressing or substantial concern,
or whether the proposed changes are otherwise aimed at achieving a legitimate
objective;
- how the measure is effective to achieve (that is, rationally
connected to) its stated objective;
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (in particular, whether the grounds for
cancellation of registration are sufficiently circumscribed); and
- the extent of the limitation in respect of the right to strike
noting previous concerns raised by international supervisory mechanisms.
Minister's response
2.94
The minister's response provides a description of provisions under the
current law for cancelling the registration of registered organisations. It
also provides a description of the proposed expansion of the grounds for
cancelling the registration or de-registration and the ability of the court to
make alternative orders instead of cancelling registration.
2.95
The minister's response also states that she does not consider that the
measure engages or further limits the right to strike. However, as set out at [2.68]
above, restrictions on taking industrial action in Australian domestic law have
been subject to serious criticisms by international treaty monitoring bodies as
going beyond permissible limitations on the right to strike as an aspect of the
right to freedom of association. It is the possibility of cancelling the
registration of unions for taking industrial action or engaging in strikes that
do not comply with Part 3-3 of the Fair Work Act which further limits this
right.
2.96
The minister's response further states that the provisions of the bill
'allowing for an application for cancellation of registration to be made on the
basis that an organisation, part of the organisation or a class of members,
have engaged in obstructive industrial action' effectively replicates the
existing provisions of the Registered Organisations Act. However, this does not
necessarily make the measure compatible with the right to freedom of
association. The response does not acknowledge that the grounds for
cancellation under the bill would extend beyond conduct that meets the
definition of 'obstructive industrial action' and may apply to minor
contraventions of industrial relations law.
2.97
As to whether the proposed measures are aimed at achieving a legitimate
objective, the minister's response states:
The amendments to the cancellation provisions of the RO Act
have the sole objective of protecting the interests of members and guaranteeing
the democratic functioning of organisations under the stewardship of officials
and a membership that respects the law and thus maintains public order.
2.98
These multiple objectives are the same as were identified in the
statement of compatibility. The minister's response provides some information
as to whether any of these objectives addresses a substantial and pressing
concern:
Extensive evidence was presented to the Royal Commission of
some organisations, branches or parts of organisations, where a culture of
little or no regard for the legislation regulating registered organisations,
and even criminal law, persists. The existence of such a culture demonstrates
the need for new mechanisms designed to ensure compliance with the existing
standards reasonably expected of organisations and their officers. It has
become clear that, in addition to the changes to industrial relations
legislation recommended by the Royal Commission, there is a pressing need to
ensure greater compliance with the existing legislative regime and relevant
criminal laws.
2.99
In relation to whether the measures are rationally connected to these
objectives, the minister's response states:
These amendments address the legitimate objective by
providing a clearer and more streamlined scheme for the cancellation of
registration of an organisation and expanding the grounds on which an
application for cancellation can be made. The new cancellation provisions make
it obvious to organisations, their officers and members, that the types of
conduct forming grounds for an application may result in the cancellation of
registration, and that misconduct and unlawful behaviour cannot ever be considered
an 'acceptable' method of achieving a desired outcome.
2.100
The minister's response further states that registration under the
Registered Organisations Act is a 'privilege' and that there should be
effective 'sanctions' and consequences for non-compliance with the law. It is
acknowledged that ensuring compliance with the law may be an important
mechanism to achieve a particular objective. However, it is not an end in
itself, and there needs to be consideration of the nature of the laws being
enforced and whether the enforcement of those laws are effective to achieve the
stated objectives of the measure as a matter of international human rights law.
In this case, it would have been useful if the minister had provided
information as to how further 'sanctioning' non-compliance with particular laws
including industrial relations laws would achieve the stated objectives of 'protecting
the interests of members' or 'guaranteeing the democratic functioning of
organisations'.
2.101
The minister's response further notes that article 8(1) of ILO
Convention 87 provides 'that, in exercising the rights provided for in the
Convention, workers, employers and their respective organisations shall respect
the law of the land'. However, this does not mean that existing Australian
domestic law or 'the law of the land' does not engage and limit the right to
freedom of association including the right to strike. In this respect, article
8(2) of ILO Convention 87 specifically states that 'The law of the land shall
not be such as to impair, nor shall it be so applied as to impair, the
guarantees provided for in this Convention.' It follows that Australia has an
obligation to ensure that Australian domestic law or 'the law of the land' is
compatible with the right to freedom of association.[48]
2.102
As set out above, international supervisory mechanisms have recognised
the importance of registration as 'an essential facet of the right to organize'[49] and that 'the dissolution of trade union organizations is a measure which
should only occur in extremely serious cases' noting the serious consequences
for the representation of workers.[50]
2.103
In relation to whether the limitation on human rights is proportionate,
the minister's response states:
The grounds for cancellation of registration proposed by the
Bill are reasonable and proportionate as, even where a ground for cancellation
exists, the Federal Court still has a discretion not to cancel the registration
of an organisation in circumstances where that disqualification would be
unjust. This ensures that cancellation remains a measure of last resort. The
Court is required to take into account the best interests of the members of the
organisation as a whole in determining whether the cancellation of registration
would be unjust.
In addition, the availability of alternative orders provides
the Federal Court with appropriate means of limiting the effect on members who
have not been involved in activity that would ground an order for cancellation.
2.104
It is acknowledged that the role provided to the Federal Court in
determining it would not be unjust to cancel registration would appear to
operate as an important safeguard in relation to the proposed measure. However,
it is unclear from the face of the legislation that this necessarily means that
cancellation will be a measure of last resort. In this respect, as currently
drafted, there is no express requirement in the legislation that the court only cancel registration as a last resort. Rather once a ground for cancellation is
established the court must cancel registration unless it would be unjust
to do so. While the court is required to consider the interests of members in
considering whether it would be unjust to cancel registration, this is only one
factor it must take into account.
2.105
Concerns remain that the role of the court may not be sufficient to
ensure that the limitation is the least rights restrictive way to achieving its
stated objectives, in view of the breadth of the grounds for cancellation of
union registration set out above. It is noted that the possible grounds for
cancelation could include two or more relevantly minor breaches of industrial
laws. Depending on the approach taken by the courts to their discretion not to
cancel registration, the cancellation powers may operate in a manner that is
not a proportionate limitation on the right to freedom of association, given in
particular that cancellation of registration is not stated in the proposed
legislation to be a measure of last resort.
Committee response
2.106
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.107
The preceding analysis indicates that the measure may be
incompatible with the right to freedom of association.
2.108
In order to improve the human rights compatibility of the
measure, the committee recommends that the court's proposed powers of
cancellation be amended so as only to be available to be exercised as a matter
of last resort where it is in the best interests of the members.
Placing unions into administration
2.109
The bill seeks to expand the grounds for a remedial scheme to be
approved by the Federal Court including through the appointment of an administrator.[51]
2.110
Proposed new section 323 enables the Federal Court to make a declaration
on a number of bases including that 'an organisation or part of an organisation
has ceased to exist or function effectively'.
2.111
New subsection 323(4) provides that an organisation will have ceased to
function effectively if the Court is satisfied that officers of the
organisation or a part of an organisation have: 'on multiple occasions,
contravened designated laws; or misappropriated funds of the organisation or
part; or otherwise repeatedly failed to fulfil their duties as officers of the
organisation or part of the organisation'.[52]
2.112
If a court makes a declaration under section 324 then it may order a
scheme to resolve the circumstances of the declaration including providing for
the appointment of an administrator; reports to be given to a court; when the
scheme begins and ends and when elections (if any) are to be held.[53]
Compatibility of the measure with
the right to freedom of association and the right to just and favourable conditions
at work
2.113
The initial assessment stated that, by allowing for unions to be placed
into administration, the measure engages and limits the right to freedom of
association and in particular the right of unions to organise their internal administration
and activities and to formulate their own programs without interference.
International supervisory mechanisms noted that '[t]he placing of trade union
organizations under control involves a serious danger of restricting the rights
of workers' organizations to elect their representatives in full freedom and to
organize their administration and activities'.[54]
2.114
The statement of compatibility states that the measure has:
...the sole objective of protecting the interests of members
and guaranteeing the democratic functioning of organisations under the
stewardship of officials and a membership that respects the law and thus
maintains public order.[55]
2.115
This is the same objective which was identified above. As noted above,
the statement of compatibility appears to identify multiple objectives and it
is unclear from the information provided whether each of these objectives
addresses a substantial and pressing concern as required under international
human rights law.
2.116
In relation to the proportionality of the measure, the statement of
compatibility identifies a range of matters which do not address the
proportionality of the measure but rather address the aims or goals of the
regime.[56] The test of proportionality is concerned with whether a measure is sufficiently
circumscribed in relation to its stated objective, including the existence of
effective safeguards. In this respect, concerns arise regarding the scope of
conduct that may lead a union to be placed into administration. Given the
potential breadth of the definition of 'designated laws',[57] the initial analysis stated that the proposed measure makes it possible for a
declaration to be made in relation to less serious breaches of industrial law
or for taking unprotected industrial action. The consequences of placing a
union under administration may have significant consequences in terms of the
representational rights of employees and any current campaigns or disputes.
2.117
The committee therefore requested the further advice of the minister as
to:
- whether there is reasoning or evidence that establishes that one
or more of the stated objectives addresses a pressing or substantial concern,
or whether the proposed changes are otherwise aimed at achieving a legitimate
objective;
- how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (in particular, whether the grounds for placing
unions under administration are sufficiently circumscribed).
Minister's response
2.118
The minister's response provides a description of the current framework
in the Registered Organisations Act for placing a registered organisation into
administration as well as providing a description of proposed changes to
declare an organisation has ceased to function effectively.
2.119
In response to whether the measure pursues a legitimate objective for
the purposes of international law, the minister's response states:
These measures have the sole objective of protecting the
interests of members and guaranteeing the democratic functioning of
organisations under the stewardship of officials and a membership that respects
the law and thus maintains public order.
2.120
These multiple objectives are the same as were identified in the
statement of compatibility. The minister's response provides some information
as to whether any of these objectives addresses a substantial and pressing
concern:
The Final Report of the Royal Commission identified numerous
examples of organisations no longer serving the interests of their members
because of pervasive breaches of duties by officers and widespread and repeated
law-breaking by union officials. The proposed changes will improve the
effectiveness of the administration provisions by allowing the Federal Court to
take appropriate remedial and facilitative action to overcome such
maladministration or dysfunction associated with a culture of lawlessness or
financial maladministration.
The proposed changes pursue the legitimate objective of
ensuring that organisations are functioning effectively to be able to serve the
interests of their members.
2.121
The minister's response further argues that the measure is rationally
connected to the objective of ensuring that organisations are functioning
effectively to be able to serve the interests of their members 'because the new
grounds for a declaration are all instances of an organisation not acting in
the interests of their members and therefore not functioning effectively'. While
ensuring that registered organisations act in the interests of their members
may constitute a legitimate objective, it is unclear from the minister's
response the basis for this claim that the new grounds for a declaration are all instances of an organisation not acting in the interests of members. No
reasoning or evidence is provided in this respect.
2.122
It is noted that some of the proposed grounds for a declaration would
appear to be rationally connected to the stated objective. However, there are
also concerns that the proposed grounds for a declaration may capture conduct
that does not run contrary to the interests of members. A registered
organisation's repeated non-compliance with 'designated laws' as ground for
determining that an organisation has ceased to function effectively is
potentially of concern in this respect. This is because designated laws are
defined broadly to include breaches of industrial relations laws (including
minor or less serious breaches) or conduct related to taking unprotected
industrial action. It is unclear whether minor, less serious or technical
breaches are necessarily, in all cases, contrary to the interests of members.
Further, it may also be that members have decided on a democratic basis to
engage in conduct such as, for example, taking unprotected industrial action
precisely because they consider it is in their interests to do so. This raises
concerns that the measure as formulated does not appear to be rationally
connected in all respects to ensuring that registered organisations act in the
interests of members.
2.123
As to whether the limitation is reasonable and proportionate to achieve
the stated objective, the minister's response states:
The measures are reasonable and proportionate for the
following reasons:
- The new grounds under which the
Federal Court may make a declaration are clearly set out and if present,
indicate that an organisation is not serving the interests of their members and
is not functioning effectively.
- Limit the effect on members who
have not been involved in maladministration or unlawful activity by providing
for orders to be limited to the part of the organisation that has conducted
those activities.
- Relief is discretionary and the
Federal Court may find that no action is necessary or justified.
- Consistent with the current
administration provisions, the Court must be satisfied that an order (should it
choose to make one) would not do substantial injustice to the organisation or
any member of the organisation.
2.124
These appear to be relevant safeguards in relation to the operation of
the measure. However, given the scope of the grounds for a declaration there
are questions that remain about whether the measure is the least rights
restrictive approach in all circumstances. Accordingly, at least in relation to
some proposed grounds for placing a union into administration, the measure
would not appear to be a proportionate limitation on the right to freedom of
association.
Committee response
2.125
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.126
The preceding analysis indicates that the measure may be
incompatible with the right to freedom of association.
2.127
In order to improve the human rights compatibility of the
measure, the committee recommends that the measure be amended so that prior to
placing a registered organisation into administration the court must be
satisfied that it is in the best interests of the members.
Introduction of a public interest test for amalgamations of unions
2.128
Under proposed section 72A, before fixing a date for an amalgamation of
unions, the Fair Work Commission must decide that the amalgamation is in the
'public interest'.[58] In determining whether an amalgamation is in the 'public interest' the Fair
Work Commission must have regard to a range of factors including record of
compliance with the law, the impact of the amalgamation on employees and
employers in the industry and any other matters. In relation to compliance with
the law, the Fair Work Commission must decide that the amalgamation is not in
the public interest if the organisation has a record of not complying with the
law.[59]
Compatibility of the measure with
the right to freedom of association and the right to just and favourable
conditions at work
2.129
As the previous analysis noted, by inserting a public interest test in
relation to the amalgamations the measure engages and limits the right to
freedom of association, and particularly the right to form associations of
one's own choosing. International supervisory mechanisms have noted concerns
with measures that limit the ability of unions to amalgamate stating that
'[t]rade union unity voluntarily achieved should not be prohibited and should
be respected by the public authorities'.[60]
2.130
The statement of compatibility identifies the objective of the measure
as 'enhancing relations within workplaces and to reduce the adverse effects of
industrial disputation'.[61] No information is provided as to whether this addresses a pressing and
substantial concern as required to constitute a legitimate objective for the
purposes of international human rights law. The initial analysis stated that it
cannot be assumed that industrial disputes necessarily have adverse effects
given that the right to take industrial action is protected as a matter of
international law. In this respect, international treaty monitoring bodies have
consistently viewed this right 'by workers and their organizations as a
legitimate means of defending their economic and social interests'.[62]
2.131
The committee therefore requested the further advice of the minister as
to:
-
whether the measure pursues a legitimate objective for the
purposes of international human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (in particular, whether the measure is the
least rights restrictive way of achieving its stated objective, whether the
measure is sufficiently circumscribed, the extent of the limitation including
in respect of the right to strike noting previous concerns raised by
international supervisory mechanisms and the existence of relevant
safeguards).
Minister's response
2.132
The minister's response describes the current arrangements for
amalgamation. It notes that under the current provisions, once an application
for amalgamation of organisations is lodged with the Fair Work Commission
(FWC), it must set a hearing date to approve the 'scheme of amalgamation'.
Unless an exemption is granted, the FWC will then direct the Australian
Electoral Commission to conduct a secret postal ballot of members of each of
the organisations. Providing certain preconditions are satisfied (the ballot
has no irregularities; the FWC is satisfied that there are no relevant pending
proceedings against the existing organisations; and the newly amalgamated
organisation will be bound by the obligations of the existing organisations),
the FWC fixes an amalgamation day on which the new organisation will become the
only registered organisation, and the amalgamated organisations will be
de-registered.
2.133
The minister's response describes the proposed amendments to
amalgamations to introduce a public interest test:
The [FWC], in determining the public interest, will take into
account:
-
the impact on employees and
employers in the industries concerned,
- any history the organisations may
have in breaking the law, taking into account the age and incidence of such
contraventions, and
- other relevant matters which could
include the impact of a merger on the Australian economy.
The existing organisations concerned will be able to be [sic]
make submissions about the public interest, as will organisations and bodies
that represent industries potentially affected by the merger and those who
represent employees and employers in those industries.
The Registered Organisations Commissioner, the Minister for
Employment and a Minister who has responsibility for workplace relations in a
referring state will also be able to make submissions. Submissions can also be
made by any person with sufficient interest in the proposed amalgamation, that
is, those whose rights, interests or legitimate expectations would be affected.
Current section 73 of the RO Act provides for the Commission
to set an amalgamation day where certain preconditions are met. This provision
will be amended to clarify what pending proceedings are relevant to the
decision as to whether to fix an amalgamation day. These will include some
criminal and some civil proceedings.
2.134
As to whether the measure pursues a legitimate objective for the
purposes of international law, the minister's response states:
The public interest test for amalgamations will improve
organisational governance, protect the interests of members, ensure that
organisations meet the minimum standards set out in the RO Act and address
community concerns by creating a disincentive for a culture of 'contempt for
the rule of law' that has been identified amongst some registered
organisations. It is a pressing and substantial concern, such as is required to
constitute a legitimate objective for the purposes of international human
rights law, that this culture is present in some registered organisations
seeking to amalgamate.
2.135
In relation to whether the measure is rationally connected to (that is,
effective to achieve) that objective, the minister's response states:
The introduction of a public interest test will be effective
in meeting this objective as it will reduce the risk of an adverse effect of an
amalgamation of existing organisations. This is because a culture of
lawlessness in one or more amalgamating organisations will be prevented from
pervading into the other organisations involved in an amalgamation...
When organisations or their officers deliberately breach
relevant laws then there must be an effective sanction if the system of
registration is to remain meaningful. In the case of a registered organisation,
the sanction could include losing the right to act as an officer, losing the
right to expand through amalgamation, being placed into administration, or
losing registration.
If an organisation obeys the law and complies with its rules
then its activities will not be limited by the provisions in the Bill. For
example, two organisations that comply with the law would be highly likely to
satisfy the public interest test for amalgamations.
2.136
It is acknowledged that ensuring compliance with the law may be an
important mechanism to achieve a particular objective. However, as noted above,
it is not an end in itself, and there needs to be consideration of the nature
of the laws being enforced and whether the enforcement of those laws are
effective to achieve a legitimate objective as a matter of international human
rights law. Further, it is unclear that each aspect of the proposed 'public
interest' test is rationally connected to this stated objective. This is
because the FWC will also need to consider issues such as 'impact on employers'
and the impact on the Australian economy.
2.137
The minister's response additionally notes that article 8(1) of ILO
Convention provides 'that, in exercising the rights provided for in the
Convention, workers, employers and their respective organisations shall respect
the law of the land'. However, as set out above, this article needs to be
understood in the context of article 8(2) of ILO Convention 87 which
specifically states that 'The law of the land shall not be such as to impair,
nor shall it be so applied as to impair, the guarantees provided for in this
Convention.'[63] As such, article 8(1) does not provide a basis for the proposed measure.
2.138
The minister's response provides information as to whether the
limitation imposed is reasonable and proportionate. It states that the
limitation is sufficiently circumscribed as 'it
does not impact on the rights of workers to continue to be represented by a
registered organisation and takes the likely benefit to members of the existing
organisations proposing to enter into an amalgamation into account.' However,
while members may still be able to be represented by their existing union, the
measure does limit choices as to the form of representation including joining
together with another union. While the likely benefit to members in an
amalgamation is one factor to be taken into account, the FWC is required to
consider other factors including the 'impact on employers' and the 'impact on
the economy'. These factors may in fact run contrary to the interests of
members. For example, the amalgamation of unions may lead to greater campaigning
capacity which by its nature may be in the interests of members but not
employers in a particular industry. The scope of the measure as currently
formulated would appear to potentially operate to prevent unions amalgamating
on the basis of concerns that they could have too much bargaining or
campaigning power against employers. As noted above, the measure runs contrary
to jurisprudence from international monitoring bodies which states '[t]rade
union unity voluntarily achieved should not be prohibited and should be
respected by the public authorities'.[64] Even if it were accepted that the measures pursued a legitimate objective for
the purposes of international human rights law, the measure appears to be
overly broad with respect to a number of the objectives identified. For
example, it does not appear to be the least rights restrictive approach to
protecting the interests of members or even ensuring greater compliance with
the law. In order for a limitation on human rights to be proportionate it must
be the least rights restrictive way of achieving its objective.
2.139
In addition, the minister's response argues that the measure does not
further limit the right to strike. No explanation is provided as to the basis
for this claim. Indeed, the objective of the measure initially identified in
the statement of compatibility was 'to reduce the adverse effects of industrial
disputation' a further objective identified in the response is to provide an
effective 'sanction' for non-compliance with the law. In this respect, one of
the objectives of the measure may extend to 'sanctioning' industrial action
which does not comply with Part 3-3 of the Fair Work Act. As such, by providing
that the FWC must decide that the amalgamation is not in the public interest if
the organisation has a record of not complying with the law, the measure
appears to further limit the right to strike in circumstances where
non-compliance relates to taking unprotected industrial action. As set out
above, international supervisory mechanisms have consistently raised concerns
about the current restrictions on taking industrial action under Australian
domestic law.
2.140
The minister's response further argues that the measure is a
proportionate limitation on the basis that the 'measure is properly supervised
by a full bench of the [FWC] to ensure rigorous and robust consideration of
merger applications, with appropriate limitations on the [FWC's] discretion in
place'. While it is a relevant safeguard that the decision as to whether an amalgamation
is in the 'public interest' is to be made by the FWC, this alone appears to be
insufficient to ensure that the measure constitutes a proportionate limitation.
As outlined above, the measure appears to be overly broad such that it does not
appear to be the least rights restrictive approach.
Committee response
2.141
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.142
The preceding analysis indicates that the measure is likely to be
incompatible with the right to freedom of association.
Treasury Laws Amendment (Housing Tax Integrity) Bill 2017; Foreign
Acquisitions and Takeovers Fees Imposition Amendment (Vacancy Fees) Bill 2017
Purpose |
The bills seek to introduce
a range of measures including amendments to the Foreign Acquisitions and
Takeovers Act 1975 to implement an annual vacancy charge on foreign
owners of residential real estate where the property is not occupied or
genuinely available on the rental market for at least six months in a 12
month period |
Portfolio |
Treasury |
Introduced |
House of Representatives, 7
September 2017 |
Rights |
Equality and
non-discrimination; criminal process rights
(see Appendix 2) |
Previous report |
11 of 2017 |
Status |
Concluded examination |
Background
2.143
The committee first reported on the Treasury Laws Amendment (Housing Tax
Integrity) Bill 2017 and the Foreign Acquisitions and Takeovers Fees Imposition
Amendment (Vacancy Fees) Bill 2017 in its Report 11 of 2017, and
requested a response from the treasurer by 1 November 2017.[65]
2.144
The bills passed the House of Representatives on 18 October 2017 and
passed in the Senate on 15 November 2017.
2.145
The treasurer's response to the committee's inquiries was received on
9 November 2017. The response is discussed below and is reproduced in full at Appendix 3.
Introduction of an annual vacancy charge on foreign owners of residential
real estate
2.146
The Treasury Laws Amendment (Housing Tax Integrity) Bill 2017 amends the Foreign Acquisitions and Takeovers Act 1975 to implement an annual
vacancy fee payable by 'foreign persons'[66] who own residential property where the property is not occupied or genuinely
available on the rental market for at least six months in a 12 month period.
The Foreign Acquisitions and Takeovers Fees Imposition Amendment (Vacancy Fees)
Bill 2017 amends the Foreign Acquisitions and Takeovers Fees
Imposition Act 2015 to set the level of vacancy fee payable.
Compatibility of the measure with
the right to equality and non-discrimination
2.147
The right to equality and non-discrimination provides that everyone is
entitled to enjoy their rights without discrimination of any kind, and that all
people are equal before the law and entitled without discrimination to equal
and non‑discriminatory protection of the law.
2.148
'Discrimination' under articles 2 and 26 of the International Covenant
on Civil and Political Rights (ICCPR) includes both measures that have a
discriminatory intent (direct discrimination) and measures that have a
discriminatory effect on the enjoyment of rights (indirect discrimination).[67] The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral at face value or without intent to discriminate',
but which exclusively or disproportionality affects people with a particular
personal attribute.[68]
2.149
Residency is not a personal attribute protected under article 26.
However, Australia does have obligations not to discriminate on grounds of
nationality or national origin, except to the extent of the discretion
recognised under international law with respect to the treatment of
non-nationals.[69]
2.150
The statement of compatibility acknowledges that, while an Australian
citizen who is not ordinarily resident in Australia may be a 'foreign person',
the majority of individuals directly affected by the bill will not be
Australian citizens.[70] Insofar as the operation of the scheme will introduce a fee that will primarily
affect non-citizens, Australia's obligations in relation to non-discrimination
on grounds of nationality and national origin may be engaged. Where a measure
impacts on particular groups disproportionately, it establishes prima facie
that there may be indirect discrimination, in this case, indirect
discrimination against persons who are not Australian citizens.[71]
2.151
The statement of compatibility acknowledges that the right to equality
and non-discrimination is engaged and limited, stating:
The Bill limits Article 26 of the ICCPR and Articles 2 and 5
of International Convention on the Elimination of All Forms of Racial
Discrimination because the core obligations imposed by the Bill only apply to a
‘foreign person’. While an Australian citizen who is not ordinarily resident in
Australia may be a ‘foreign person’ for the purposes of this Act, it is
anticipated that the majority of individuals who are directly affected by this
Bill will not be Australian citizens.[72]
2.152
The statement of compatibility identifies the objective of the measure
as follows:
This Schedule aims to create a larger stock of available
housing in Australia by creating an incentive for foreign persons who own
residential property to either occupy that property or make it available for
rent on the rental market through the creation of a vacancy fee...[73]
2.153
The explanatory memorandum further explains that the measure is part of
a number of initiatives to address housing affordability.[74]
2.154
The right to an adequate standard of living is guaranteed by article
11(1) of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and requires that the state take steps to ensure the availability,
adequacy and accessibility of food, clothing, water and housing for all people
in Australia. In this respect, the UN Special Rapporteur on adequate housing
has recently emphasised the importance of the right to adequate housing and
noted that it is a human right which is interdependent with other human rights,
particularly the right to equality and non-discrimination and the right to
life.[75] Therefore, as noted in the initial analysis, the stated objectives of creating
more available housing in Australia and addressing housing affordability are
likely to be legitimate objectives for the purposes of international human
rights law. Introducing a vacancy fee to encourage occupying residential
property or making property available on the rental market appears to be
rationally connected to these objectives.
2.155
In relation to the proportionality of the measure, the statement of
compatibility states that the limitation on the right to non-discrimination is
justified:
While the bill, if enacted, will primarily affect individuals
who are citizens of countries other than Australia, there is no less
restrictive way of achieving the objectives of the Bill. Accordingly those
limitations are reasonable, necessary and proportionate.[76]
2.156
The statement of compatibility does not address why it is necessary to
impose the vacancy fee only on foreign persons, as opposed to all persons who
may own residential property which is left vacant. Further, while the statement
of compatibility states that the measure is the least restrictive means of
achieving the stated objectives, there is no further information provided to
support this statement, including any information to explain the rationale for
differential treatment between foreign persons (the majority of whom will be
non-nationals) and residents. The initial analysis stated that information
regarding the number of foreign persons who leave properties vacant in contrast
with Australian residents is likely to be relevant to the proportionality
analysis.
2.157
The committee therefore sought the advice of the treasurer as to whether
the measure is reasonable and proportionate for the achievement of the stated
objectives (including how it is based on reasonable and objective criteria; any
evidence regarding the number of foreign persons who leave properties vacant in
contrast with Australian residents; or any other information to explain the
rationale for the differential treatment between nationals and non-nationals;
and whether there are other less rights restrictive ways to achieve the stated
objective).
Treasurer's response
2.158
The treasurer's response states that the charge is proposed to provide a
financial incentive for a foreign owner to make their property available on the
rental market and that it is expected that the measure will increase the number
of homes available to Australians wishing to rent. The response further
explains that the charge will only apply to 'foreign persons'[77] who are required to apply and subsequently receive from the Foreign Investment
Review Board approval for a residential real estate acquisition, and that the
vacancy charge forms part of and is consistent with Australia's foreign
investment framework under the Foreign Acquisitions and Takeovers Act 1975. The treasurer's response also emphasises the limited scope of the
measure, namely that the charge is only payable when a property is not occupied
or genuinely available on the rental market for at least six months in a 12
month period, and is subject to a number of exceptions, including that the
charge will not be payable where the property could not be reasonably occupied
(for example, where the property is undergoing substantial renovations, or has
been damaged).
2.159
The treasurer's response otherwise did not respond to the committee's
specific inquiries as to any evidence regarding the number of foreign persons
who leave properties vacant in contrast with Australian residents who leave
properties vacant, or any other information to explain the rationale for the
differential treatment between nationals and non-nationals.
2.160
The 2016 Census revealed that 11.2% of dwellings in Australia were
unoccupied on the night of the census.[78] It is not clear from this data how much of that amount comprises foreign owners
of residential property who have left the property vacant. A previous
parliamentary inquiry into foreign investment in residential real estate also
did not have data on this point, however it was noted that the issue was one of
concern but that it was difficult to obtain information or evidence that
foreign owned properties were being left vacant.[79] A subsequent Senate inquiry into housing affordability in Australia similarly
noted the lack of accurate or timely data tracking foreign investment in
residential real estate.[80]
That inquiry also concluded that 'a significant number of Australians are not
enjoying the security and comfort of affordable and appropriate housing' and
that 'currently Australia's housing market is not meeting the needs of all
Australians'.[81]
2.161
As noted in the initial analysis, the objectives of the measure of
increasing housing availability and reducing pressure on housing affordability
are likely to be legitimate objectives for the purposes of human rights law.
The statistical evidence as to unoccupied premises in Australia further
demonstrates that the measure is aimed at addressing a pressing and substantial
concern. It is also noted that the measure is limited in its scope such that it
will only apply when a property is not occupied or genuinely available on the
rental market for at least six months in a 12 month period, and the government
expects that the measure will increase the number of homes available to
Australians wishing to rent. In light of this information and having regard to
Australia's obligations under the ICESCR to take steps to ensure the
availability, adequacy and accessibility of housing for all people in Australia,
it appears on balance that the measure would constitute a permissible
limitation on the right to equality and non-discrimination. However, it is
noted that specific information is not available regarding the extent to which
vacancies arise in foreign-owned properties rather than properties owned by
Australian residents or citizens.
Committee response
2.162
The committee thanks the treasurer for his response and has
concluded its examination of this issue.
2.163
The committee considers that on balance the measure is likely to
be a permissible limitation on the right to equality and non-discrimination.
Civil penalty provisions
2.164
Schedule 3 of the bill provides that a civil penalty may apply where a
foreign person fails to submit a ‘vacancy fee return’[82] or keep the required records.[83] The civil penalty for failing to submit a vacancy fee return and for failing to
keep required records is 250 penalty units (currently $52,500).[84]
Compatibility of the measure with
criminal process rights
2.165
Civil penalty provisions are dealt with in accordance with the rules and
procedures that apply in relation to civil matters (the burden of proof is on
the balance of probabilities).
2.166
However, civil penalty provisions engage the criminal process rights
under articles 14 and 15 of the ICCPR where the penalty is regarded as
'criminal' for the purposes of international human rights law. The term
'criminal' has an 'autonomous' meaning in human rights law. In other words, a
penalty or other sanction may be 'criminal' for the purposes of the ICCPR even
though it is described as 'civil' under Australian domestic law.
2.167
The committee's Guidance Note 2 sets out some of the key human
rights compatibility issues in relation to provisions that create offences and
civil penalties.
2.168
The initial analysis identified that the statement of compatibility does
not discuss whether the civil penalty provisions engage human rights and has
not addressed whether they may be classified as 'criminal' for the purposes of
international human rights law.
2.169
Applying the tests set out in the committee's Guidance Note 2,
the first step in determining whether a penalty is 'criminal' is to look to its
classification under domestic law. In this instance, the penalty is classified
as 'civil' in the bill, however as stated above, this is not determinative of
its status under international human rights law.
2.170
The second step is to consider the nature and purpose of the penalty.
The penalty is likely to be considered to be criminal if the purpose of the penalty
is to punish or deter, and the penalty applies to the public in general (rather
than being restricted to people in a specific regulatory or disciplinary
context). No information addressing the nature and purpose of the penalty is
provided in the statement of compatibility. The purpose of the penalty appears
to be to punish and deter non-compliance. However, the penalty applies only to
those foreign persons who fail to submit a vacancy fee return or keep the
required records.
2.171
The third step is to consider the severity of the penalty. In this case
an individual could be exposed to a significant penalty of up to $52,500. A
penalty is likely to be considered 'criminal' where it carries a penalty of a
substantial pecuniary sanction. This must be assessed with due regard to
regulatory context, including the nature of the industry or sector being
regulated and the relative size of the pecuniary penalties being imposed. The
severity of the penalty in this particular regulatory context is unclear due to
the lack of information in the statement of compatibility.
2.172
If the penalty is considered to be 'criminal' for the purposes of
international human rights law, the 'civil penalty' provisions in the bill must
be shown to be compatible with the criminal process guarantees set out in
articles 14 and 15 of the ICCPR. In this case, the initial analysis stated that
the measure does not appear to be consistent with criminal process guarantees.
2.173
The committee therefore drew
the attention of the treasurer to its Guidance Note 2 and sought advice
as to whether:
- the civil penalty in the bill is 'criminal' in nature for the
purposes of international human rights law (having regard to the committee's Guidance
Note 2); and
- if the penalty is considered 'criminal' for the purposes of
international human rights law, whether the measures could be amended to accord
with criminal process rights.
Treasurer's response
2.174
In his response, the treasurer provides the following information:
[...]
The civil penalty provisions in the Bill should not be
considered ‘criminal’ for the purposes of international human rights law. While
the civil penalty provisions included in the Bill are intended to deter people
from not complying with the obligations imposed by the Act, none of the civil
penalty provisions carry a penalty of imprisonment and there is no sanction of
imprisonment for non payment of any penalty. In addition, the maximum pecuniary
penalty that may be imposed on an individual for contravening a civil penalty
provision is generally lower than [the] maximum pecuniary penalty that may be
imposed for the corresponding criminal offence. The statement of compatibility
therefore proceeds on the basis that the civil penalty provisions in the Bill
do not create criminal offences for the purposes of Articles 14 and 15 of the
ICCPR.
2.175
The treasurer's response acknowledges that the purpose of the penalty is
to operate as a deterrent. However, as summarised above at [2.158], the penalty
operates in a particular context, namely Australia's foreign investment regime.
The measure also applies only to particular persons, namely 'foreign persons'
(as defined) who are required to apply and subsequently receive from the
Foreign Investment Review Board approval for a residential real estate
acquisition. The treasurer also explains that the relative size of the
pecuniary penalty is smaller than any corresponding criminal penalty. Having
regard to the regulatory context and the particular context in which the
penalty applies, it is likely that the penalty would not be considered
'criminal' for the purposes of international human rights law.
Committee response
2.176
The committee thanks the treasurer for his response and has
concluded its examination of this issue.
2.177
In light of the further information provided by the minister, the
committee considers that the proposed civil penalty provisions in the bill are
unlikely to be considered 'criminal' for the purposes of international human
rights law.
Mr Ian Goodenough MP
Chair