Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Hansard source

The government opposes the amendments. Amendments (6) and (7) would permit the court to find that a contract was unfair or harsh even if the contract was fair when it was entered into. So it would allow the rewriting of commercial contracts applying to independent contractors even when the terms of a contract are fair when entered into. The government believes that that would create substantial commercial uncertainty. The current case law supports the proposition that the existing federal unfair contracts jurisdiction is concerned only with the unfairness or harshness of a contract at the time the contract is made.

Amendment (7) is unnecessary. The federal unfair contracts jurisdiction proposed by the bill allows applications to be made even after the contract has ended, and therefore the suggested amendment to clause 12 is unnecessary. The High Court in the Dingjan case indicated that contracts can be reviewed after they have terminated.

In relation to amendment (8), the current section as it stands provides that a court may make orders to place the parties to the services contract as nearly as practicable back to the position they were in before the unfairness or harshness occurred. This merely reflects the existing federal unfair contracts jurisdiction. The proposed amendment would broaden the scope of the orders that a court could make, consistent with the state Labor regime in New South Wales.

The government says that amendment (9) is unnecessary because clause 17(2) already provides that a court may order a party to pay costs if they have ‘by unreasonable act or omission’ caused another party to the unfair contracts proceedings to pay costs. That is already provided for and those sorts of provisions in all legislation—I say that as a personal comment—are always good to ensure that parties to court disputes do not behave unreasonably. It is an incentive for them not to do so if they think that costs can be visited upon them, but we already have that in clause 17(2).

Question negatived.

Bill, as amended, agreed to.

WORKPLACE RELATIONS LEGISLATION AMENDMENT (INDEPENDENT CONTRACTORS) BILL 2006

Bill—by leave—taken as a whole.

by leave—I move government amendments (1) to (5) together:

(1)    Clause 2, page 2 (at the end of the table), add:

Note:  Subsection 904(2A) permits the Court to grant an injunction for a breach of this section, and section 838 deals with interim injunctions.

I table a supplementary explanatory memorandum relating to the government amendments to the Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006. The memorandum was circulated in the chamber on 28 November 2006.