Wednesday, 31 July 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019; Second Reading
I've already been outed as a relative of the member for Kennedy, so there should be nothing! I do remember hearing that same speech in about 1993—around our kitchen table.
With respect to the second reading speech, what I thought I might usefully contribute is simply to look over and correct the record on a few of the technical arguments that have been put with respect to this bill. There have been a number of emotional arguments made with respect to it. But on the actual drafting of the bill, there have been a number of things said that I think are worthy of significant correction. The first of those goes to the issue of 'standing' under the bill. A number of members opposite have argued that the bill should be opposed because of the way in which standing to take proceedings to either disqualify a person from holding office in a registered organisation or deregister an organisation is defined—in particular, the use of the definition that appears at section 222, which is 'a person with a sufficient interest'. The three persons who can make these applications are the commissioner, the minister or 'a person with a sufficient interest'. There has been a lot of argument from members opposite that the definition of 'a person with a sufficient interest' is somehow novel, unusual or unfair.
The first point to make is that the rules pertaining to standing in the bill obviously ensure consistency across the various schedules of the bill as far as possible. With respect to the concept of the minister having standing, it is already the case, under the existing provisions of the Registered Organisations Act, that the minister has standing to make an application for cancellation of the registration of a registered organisation—and that surely accords with common sense. That has been a longstanding provision in this legislation dating back to 1977. So the use of that as a reason to oppose the bill is unfounded.
The 'person with a sufficient interest' formulation is also a longstanding feature of industrial relations legislation, and that includes in relation to standing to apply for the cancellation of an organisation's registration. In fact, that formulation dates all the way back to the Conciliation and Arbitration Act 1904, which the member for Kennedy was talking about. So, again, using the idea that the standing definition of 'a person with a sufficient interest' as a reason to oppose this bill, when that has been in the industrial relations law of Australia going back to 1904, is unfounded.
I might note that Labor's own Fair Work Act continued with that formulation of words in 2009. 'Person with a sufficient interest' was a standard term used in that legislation. I might also note that 'sufficient interest' has been interpreted simply as an interest beyond that of an ordinary person. It would include those people whose rights, interests or legitimate expectations would be affected by the relevant decision. Those opposite now take great issue with this sufficient interest formulation as a basis for standing. It was in their own Fair Work Act and the formulation of that in 2009.
I might also note that when the then workplace relations minister, the member for Maribyrnong, sought to demonstrate in 2012 that the HSU East branch be put into administration, he did so arguing that he was a person with a sufficient interest in that action. The argument, and I think the words used by various members opposite, that that definition of 'person with a sufficient interest' would be weaponised is ridiculous. In any event, looking back into recent history, it was the member for Maribyrnong himself who used that basis of standing to try and argue in 2012 that the Health Services Union East branch should be put into administration. It has just been a longstanding rule in the bill.
The standing rules in the bill are based on provisions that already exist in the Fair Work Act and the registered organisations act. As a threshold issue, any applicant who is seeking an order for disqualification or deregistration is going to bear the legal onus of establishing that a relevant ground has been made out before a court can consider making an order. Merely an unsubstantiated allegation is not going to suffice. This idea that anyone can simply turn up to court, argue that they have a sufficient interest and not have a substantial case to argue before the court is absolutely absurd. First of all, that person would have to be a person whose rights, interests or legitimate expectations would be affected by the decision, like the former industrial relations minister, the member for Maribyrnong, in 2012. Then they'd have to be able to demonstrate a threshold issue. They'd have to have very good grounds and bear a legal onus of establishing a relevant ground to be made out before a court would consider making an order.
It's also the case that there are very strong existing protections against frivolous and vexatious claims in the Federal Court and the Fair Work Commission. They can both dismiss vexatious claims and order costs against any person who tries to bring them. The Federal Court has a wide range of powers with respect to vexatious litigant orders under the Federal Court Act. It is only the independent Fair Work Commission and the Federal Court who can exercise any of the powers under this bill. For disqualification or cancellation, the court is ultimately going to have to be satisfied that it would not be unjust in all the circumstances. This argument by absurdum that someone can wander in and utilise that longstanding provision in a way which weaponises the law is as untrue now as it has been for decades—indeed, since the very earliest usage of that definition back in 1904.
The second issue is with respect to disqualification, particularly automatic disqualification. There is a new ground in this bill for automatic disqualification under the trigger of a serious offence. A serious offence is if someone is convicted of an offence that carries a penalty of more than five years in prison. A ground for automatic disqualification would be if someone were convicted of a serious offence—that is, one that carries a penalty of more than five years in prison. Several members opposite, including the shadow minister himself, raised the example that someone who had twice driven without a licence could therefore be automatically disqualified from holding an official position in a registered organisation. That is simply untrue. The bill only extends automatic disqualification, as I've noted, to offences punishable by imprisonment for a period of five years or more. That drivers licence example is just absurd; it's not the case. There is no state or territory law in Australia that meets that threshold—that is, five years imprisonment—for twice driving without a licence. It's just untrue—said in here multiple times, but it's untrue. I might note that, even if someone had been automatically disqualified, they could still seek leave of the court under this bill to continue to hold office or stand for election.
One of the major problems we have at the moment, and one of the issues that this bill seeks to rectify, is that if someone is disqualified at the moment, which is a very high threshold, there is no offence that actually prevents them from still operating for all intents and purposes as an official in the union for which position they were previously disqualified. That is a ridiculous situation to let persist, and it is right at the heart of all of the problems we're experiencing trying to have a lawful culture in certain industries, particularly the construction industry.
Continuing from this point, a number of members opposite have argued that minor conduct can give rise to a ground for disqualification. Examples that have been given are of minor conduct such as mistakenly giving wrong notice under a workplace law—