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senate vote 2017-08-09#2
Edited by
mackay staff
on
2023-11-17 12:29:30
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Title
Bills — Fair Work Amendment (Corrupting Benefits) Bill 2017; in Committee- Fair Work Amendment (Corrupting Benefits) Bill 2017 - in Committee - Add dishonesty requirement
Description
<p class="speaker">Linda Reynolds</p><p>The committee is now considering the Fair Work Amendment (Corrupting Benefits) Bill 2017 as amended.</p>-
- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2017-08-09.49.3) introduced by NSW Senator [Doug Cameron](https://theyvoteforyou.org.au/people/senate/nsw/doug_cameron) (Labor), which means they won't be integrated into the bill.
- ### What did these amendments do?
- Senator Cameron [explained that](https://www.openaustralia.org.au/senate/?gid=2017-08-09.52.1):
- > *These amendments have the effect of changing the proposed offence of making and receiving cash and in-kind payments from a strict liability offence to one where the defendant has to act dishonestly. [...]*
- >
- > *As it currently is drafted, even though this offence has a maximum of two years imprisonment, there is no need for the giver or receiver of a benefit to intend that it is dishonest, corrupt or improper. [...]*
- >
- > *This means that a person can be found criminally liable under the proposed provisions for simply providing funds to a union if those funds do not fall within categories determined by the government as ones that they deem acceptable.*
- ### Amendment text
- > *(14) Schedule 1, item 3, page 7 (line 24), after "defendant", insert "dishonestly".*
- >
- > *(15) Schedule 1, item 3, page 10 (line 3), after "defendant", insert "dishonestly".*
<p class="speaker">Doug Cameron</p><p>Just to reiterate, we have dealt with a number of amendments—items (2), (3), (4), (5), (7), (9), (11), (12) and (13)—on sheet 8143, and they were agreed to by the government. In hindsight, I think that the government's agreeing to these amendments demonstrates how badly this bill was drafted. Whereas we have no tolerance for corruption in any form, the bill is based on recommendations by Commissioner Heydon in the final report of a royal commission that was a public and political attack on the trade union movement. The final report of that royal commission was released more than 12 months ago, yet the Department of Employment has confirmed that there was no stakeholder consultation on the process of drafting the bill. I suppose if there had been some stakeholder consultation the concerns that were raised by the ACTU, the employer groups and the Law Council of Australia would have been considered by the minister. But, as is typical of this minister, anything that can be done to attack the trade union movement, diminish collective bargaining and weaken workers' access to proper advice and conditions on the job will be done.</p><p>The department first issued drafting instructions on 10 February 2017 and the bill was introduced on 22 March, so it took just a few weeks to draft this bill. What this has shown is that the minister has had to capitulate on so many of the amendments that we have put forward. This was an inadequate process. There are still problems in the way in which the offences have been drafted, and the AI Group have said that some important changes are needed to the bill to ensure fairness to employers, employees, registered organisations, officers of registered organisations and employees of registered organisations. Given the flaws in the bill identified by both employer and employee representatives, Labor is proposing a reasonable package of improvements. None of them could be said to thwart the intention of the bill or render the offences impotent. On the other hand, they do address some of the overreach, whether intentional or not, in the drafting of the offences, which have potentially significant consequence for both unions and employers.</p><p>I just want to take the opportunity to have a look at this government's position on alleged corruption within the trade union movement and consider it against the blind eye that they turn to corruption in a range of areas, particularly in business. You know, we've had offshore-bribery allegations against some of the biggest companies in Australia. Do you ever hear that lot over there, that rabble of a government, get up and take any umbrage about those issues? No, you don't hear any speeches about that, but you hear speech after speech after speech against the union movement in this country, designed to try to diminish the union movement's capacity to operate effectively for its membership. Offshore bribery is an international offence and it's got huge implications for companies in this country and huge implications for our economy. If some of these companies get banned from operating internationally, you watch the job losses; you watch the problems that will be identified.</p><p>We had the Panama papers from Mossack Fonseca, where Australians were named about moving money offshore for illegitimate purposes. Did we hear any speeches from this rabble of a government? No, we don't hear anything about that. We've got multinational corporate profit shifting—shifting their profits overseas to minimise tax payments in this country. It gets hardly any attention from this government. We have banks behaving badly, banks behaving illegally, and banks ripping off ordinary Australians. I have to concede that Senator Williams has been consistent in his position in relation to banks. But do you ever hear much from the coalition itself on the issue of banks? No. Why won't they have a royal commission? Senator Williams knows why there should be a royal commission. We understand why there should be a royal commission.</p> <p class="speaker">John Williams</p><p>Should've had it years ago.</p> <p class="speaker">Doug Cameron</p><p>'Should've had it years ago,' says Senator Williams. I think that's right. Senator Williams and I were on the economics committee when we did deal with that issue. That's been taken up, subsequently, by Senator Williams and Senator Dastyari in relation to a banks royal commission.</p><p>Labor is of the view that, if you're going to be serious about corruption and you're not biased against the trade union movement, you should deal with these issues. We have had the Greens say that we should have a national corruption oversight. Well, as I said, I don't disagree with that, but I have to indicate that there is a committee looking at that issue now, and that should be dealt with. I'm of the view that this is simply an attack on the trade union movement. It's a biased approach from this government. It's an incompetent approach by this government. We've had bank bill swap rates problems at Westpac and we've had money laundering with the Commonwealth Bank. Do you hear them getting up and saying anything about that? Not very often. They do the minimum they have to do to stop any ongoing inquiry, and they are opposed to a royal commission into the banks.</p><p>The Liberal Party itself—talk about corruption! We've got donations in Newcastle being handed over by developers, in the back seat of a Bentley, in a brown paper bag. Do you ever hear this lot say anything about that? No.</p><p class="italic">Senator Williams interjecting—</p><p>We've had 10 MPs in the NSW Liberal Party lose their seats because of the corruption that went on in the Liberal Party.</p> <p class="speaker">John Williams</p><p>Who's in charge?</p> <p class="speaker">Doug Cameron</p><p>The web of funding entities that is all over the National and Liberal parties—well, once we have a good look at that, Senator Williams, there might be a few Liberals and Nationals in jail because of that corruption.</p> <p class="speaker">Linda Reynolds</p><p>Senator Cameron, I would remind you to address your remarks through the Chair. Senator Williams, it would be appreciated if you would reduce the volume a little bit.</p> <p class="speaker">Doug Cameron</p><p>I apologise for not addressing my remarks through the chair, but Senator Williams and I have been working on these issues for many years. I understand Senator Williams's frustration at his own party and the coalition that he's part of not dealing with these issues and not dealing with them effectively—the whole web of funding entities across the coalition. Do they do anything about that? No, they do not.</p><p>And we have the latest one: the Leader of the Opposition in Victoria, Matthew Guy, attending a fundraiser with mafia figures and attempting to get funding. It is unbelievable that they don't deal with the problems on their own side, but they always concentrate on the trade union movement. We have Damien Mantach, a former state secretary of the Liberal Party both in Tasmania and Victoria, ending up in jail. That's one who's in jail, Senator Williams! A former secretary of the Liberal Party is in jail for defrauding the party of $1.5 million. Again, why is it that it's always the trade union movement that gets hauled up in this place by this rabble of a government?</p><p>In the CBA inquiry, concern was raised over whistleblowers. Has the government done anything on whistleblowers to help the public get some protection? All they did was introduce legislation for whistleblowers in the trade union movement, but not the banking industry. So if we're talking about corruption and you're talking about dealing with corruption, this mob is not dealing with corruption effectively. When we get the outcome of the parliamentary inquiry into a national ICAC, it will be interesting to see whether this lot will actually do anything about it. The evidence so far would be that, no, they won't, because they are so ideologically committed to trying to destroy the trade union movement—to destroy workers' rights to collectively bargain, to destroy workers' access to union advice on the job—that that's all they focus on when corruption is mentioned. It's always about corruption in the trade union movement.</p><p>When you look at the issues, even after a royal commission, they are miniscule against the corruption and the illegality that's going on across this nation by business and the people who donate to Senator Cash and her party—but they won't touch them. They won't go near them. There are big issues in relation to this. Every bank—the CBA, the ANZ, Macquarie Bank, the National Australia Bank, Westpac—has problems, but what do this mob do? They do nothing. They defend the banks and they will not go to a royal commission to deal with corruption there.</p><p>We have to be a bit cynical about what this is all about. We are of the view that this is simply about diminishing the capacity of the trade union movement to operate effectively. That's why we have a range of amendments that we are putting up to try and make this bill a bit better, but I'm not sure that all of the advice that we are providing through this approach in the committee will be heeded by the government. I'm not sure if this government is ever going to treat the trade union movement with the respect it should have in this country. We've seen the Reserve Bank Governor say that, if workers don't get wage increases—and the key way workers get wage increases in this country is through the actions and support of their unions—then the economy will continue to decline.</p><p>There are huge issues in relation to this bill. The incompetence in the context of the bill that's before us is unbelievable. We have a range of amendments that we are proposing. Our amendments would go some way to dealing with the problems in this bill, but, Minister, can you explain why the focus is on the trade union movement and the other issues are ignored?</p> <p class="speaker">Michaelia Cash</p><p>Senator Cameron, I disagree with approximately 99.9 per cent of what you have just stated to the Senate. You are also completely, totally and utterly wrong in relation to the inference that this bill targets unions. You will be aware that the bill clearly targets both employers and registered organisations. The bill is drafted to stop illegitimate payments between employers and employee organisations. The bill makes it an offence to both offer or provide and to solicit or receive a corrupting benefit. Therefore, an employer who offers or pays a corrupting benefit to an official will be guilty of the same offence as an official who requests or receives the benefit.</p><p>I will give you an example: payments made by an employer in the maritime industry totalling approximately $540,000 to the MUA, ostensibly for sponsorship of maritime industry conferences. The royal commission found that the payments were more likely made for industrial peace, as the company declined to have its logo displayed at the relevant conferences despite its sponsorship. In that case, the employer is as liable as the registered organisation that received the benefit. So, Senator Cameron, in response to your allegation that the bill only targets unions, you could not be more incorrect. The commissioner himself found that giving a payment and receiving a payment is as bad, and that is why the bill is clearly drafted to apply equally to registered organisations and employers.</p> <p class="speaker">Doug Cameron</p><p>Well, Minister, if that's the case, why do you need the involvement of a union for this bill to activate? Can you explain to me what happens in relation to two companies engaging in corrupt activity, or a registered organisation and a company engaging in corrupt activity?</p> <p class="speaker">Michaelia Cash</p><p>Senator Cameron, again, you would be aware that this bill deals with payments in relation to, for example, the receiving or soliciting of the payments, known as the 'corrupting benefit'. It deals directly with the employer who is, at that time, giving the payment to the union or, vice versa, the union that is soliciting the payment from the employer. So you require both parties in the transaction.</p> <p class="speaker">Doug Cameron</p><p>Well, I ask the question again: what about corruption from a registered employer organisation and a company? Where does that fit?</p> <p class="speaker">Michaelia Cash</p><p>Senator Cameron, that is actually dealt with by the Corporations Act.</p> <p class="speaker">Doug Cameron</p><p>Can you take me to where that's dealt with in the Corporations Act?</p> <p class="speaker">Michaelia Cash</p><p>Senator Cameron, the situation of persons bribing directors and other officers of employers is already prohibited by the Commonwealth Corporations Act. The Corporations Act imposes broad duties on officers and employees of constitutional corporations. Breaching these duties can give rise to criminal liability in respect of receiving corrupting benefits. This is in contrast to the duties imposed on union officials under the registered organisations act, which are presently limited to the financial management of the organisation.</p><p>Under section 184, a director or officer commits an offence if they are reckless or intentionally dishonest and fail to exercise their powers or discharge their duties in good faith in the best interests of the corporation or for a proper purpose. Section 184 also makes it an offence for a director, officer or an employee to use their position dishonestly with the intention of gaining advantage for themselves or someone else. Section 79 of the Corporations Act extends liability to those who are involved in a contravention of these offences, so union officials bribing employers to act improperly could also be captured. Basically, in answer to your question, the situation of persons bribing directors and officers of other employers is already prohibited by the Commonwealth Corporations Act.</p> <p class="speaker">Doug Cameron</p><p>But you still haven't explained the equivalence. This is a new set of provisions in this bill directly for the trade union movement. What's the equivalence? You've outlined a range of penalties and obligations, but where is the equivalence to this bill? If an employer organisation and a company engage in corruption, where's the equivalence?</p> <p class="speaker">Michaelia Cash</p><p>I merely repeat my previous answer.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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