Wednesday, 31 July 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019; Second Reading
We were at the point in the second reading debate where we were discussing the issue of automatic disqualification and moving on to the discretionary qualifications that are amended by this act. One of the issues that had been raised erroneously was this contention that some very minor conduct could give rise to a discretionary ground for disqualification. The examples given by members opposite included mistakenly giving the wrong notice under a workplace law. What was said was that that threshold would mean that the legislation could be misused. That argument relating to the discretionary ground for disqualification to apply is wrong. For a discretionary disqualification, the provisions clearly require that a finding by a court is required. The designated finding requires that there is a finding in a court process that either a person has committed a criminal offence against a workplace law or a person has contravened a civil penalty provision in a workplace law.
Using the example of someone who has mistakenly given the wrong notice: that would need to be the basis of a formal finding before a court. If someone had truly mistakenly given the notice, they would argue that as a reason why there should never have been or there was a defence to a formal finding by the court as to the contravention of a civil penalty provision in a workplace law. Absent an actual contravention of a civil penalty provision—that is, a knowing wrongful giving of notice—this circumstance just would not arise. If someone did such a thing by mistake, that'd be the basis for a defence in civic court proceedings and the conviction wouldn't arise, the designated finding wouldn't exist and the process wouldn't conclude, let alone be started. Even if you had a ground existing—that is, the ground that a person committed a criminal offence against a workplace law or that the person had clearly contravened, and there was a court finding of a contravention of, a civil penalty provision in a workplace law—the court still needs to go on to a second stage where it would have to be satisfied that the disqualification was justified in all the circumstances. So this example is just wrong. It's plainly wrong, and I think it can be determined as plainly wrong from a clear reading of the act.
The third issue that was raised during the second reading debate was with respect to the insertion of a fit-and-proper-person test so that a court could make a determination after a trigger event that someone was or was not a fit and proper person. The contention from members opposite is effectively that, somehow or other, the insertion of a fit-and-proper-person test is undemocratic; I think the words used were that it hands power to unelected courts. Courts regularly make determinations as to whether or not an individual is a fit and proper person to hold certain positions. This was a ground recommended by the royal commission. The criteria that the court will need to consider when deciding whether a person is a fit and proper person to hold office in an organisation are directly relevant to whether a person is actually suitable to be in a position of trust, responsibility and, indeed, privilege, as you are if you are in a public official position in a registered organisation.
It's also notable that there is already a fit-and-proper-person test in the Fair Work Act for a person to be granted a right-of-entry permit. If you have a fit-and-proper-person test for somebody to be granted right of entry, why would you not also require someone be a fit and proper person to hold high public office in a registered organisation? Of course, that entry permit test has been there for many years. A person who is found to be dishonest, violent or unfit to exercise rights of entry to workplaces is, I think, very arguably, not a person who should be in charge or in high office in a registered organisation, nor should they be trusted to act in the best interests of the members of that organisation.
Whether disqualification should be actually ordered by a court will ultimately be a decision for an independent court, and that's where that decision, as to referencing and determining whether someone is a fit and proper person, should lie. The court will look at all of the surrounding circumstances to make a final determination as to whether someone is a fit and proper person. I also note that fitness and proprietary tests also apply right across the corporate sphere—for instance, some of them permit relevant decision-makers to take into account factors that are much broader than in the test set out in this bill. One example of many is that, for any individual to gain an Australian Financial Services Licence from ASIC, ASIC must take into account the individual's fame, character and integrity, which is in effect a fit-and-proper-person test. This is not new to the law. It's absolutely required and clearly a sensible amendment in this space.
The fourth issue I want to raise is with respect to the cancellation of registration. This is the layered, cautious, appropriate process set out in this bill for making an argument in a court that a registered organisation should have its registration cancelled or be deregistered. What I want to make absolutely clear is that the contention which has been run to media and by some people in this place—that you would have single or isolated instances of unauthorised industrial action giving rise to a court decision to deregister a whole organisation—is not correct. It is just fanciful. The examples that have been given are of bus drivers in individual instances not checking tickets, of a fast-food worker protesting conditions by refusing to ask customers if they want fries and of nurses in a nursing union protesting patient-to-nurse ratios.
The idea that this bill, as it is drafted and presented to this parliament, would allow for deregistration for such minor or isolated instances of unprotected, unlawful industrial action is patently absurd. It's untrue. To use those absurd examples, which would never lead to deregistration, shows that there aren't really proper arguments against the reforms that we have brought to this place. There has not been a union of nurses in the federated history of this country that has engaged in the level of unlawful conduct that you would need to show to allow for deregistration. Not in the 120-plus years of federation. Not even close. Very, very few union organisations would have ever met that threshold, which is the whole point of this legislation. I use the descriptor of minor— (Time expired)
The original question was that this bill be now read a second time. To this the honourable member for Watson has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. So the immediate question before the House is that the amendment moved by the member for Watson be agreed to.
I'm just seeking your guidance, under page 280 of Practice, on the requirement to vote in a certain way during divisions. Given that, when this amendment was put to the vote, the Leader of the House voted yes, does that create a requirement for him to now vote with us, which I believe this amendment would be worthy of?
There is a requirement in certain circumstances where the Speaker will demand that people vote a particular way based on what they have said. That's why I'm just seeking your guidance.
I think you have. Not having been here—and I'm not going to ever go back and sort of re-run the tape—my attitude would be that, if a member was being deliberately obstructive or wilful, I might have a certain view. I'll just refer the Manager of Opposition Business to a very valid point he made the other day, and that was that, once members have taken their seats and the vote is being counted, no-one can move.