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Tuesday, 2 March 2004
Page: 20526


Senator MURRAY (1:47 PM) —I rise to speak to the Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003. According to the government, the aim of the bill is to modernise certain offences that relate to the proceedings of the Australian Industrial Relations Commission, to enhance certainty about, and accessibility of, criminal law that operates to protect the integrity of the commission's proceedings. The Democrats strongly believe that the rule of law must apply in Australia. If the law is being flouted we support stronger law, but increased powers are only justified where there is sufficient evidence that a real and significant problem exists. I might say that if a law is being flouted it is often not necessary to introduce stronger laws; it is necessary to enforce existing laws with the right resources and the right inspectorates and the right regulators to do so.

The government argues that this bill's codification of the general contempt provision implements the approach recommended by the Australian Law Reform Commission in its report on contempt. It argues that the recommendations included that `deemed contempt' provisions like the current section 299(1)(e) should be replaced with specific statutory offences that identify contemptuous conduct. However, in their submission to the Senate inquiry into this bill, the ACTU argued that there is no indication that section 299 has ever been intended to include failure to comply with a court order or undertaking given to a court, which is disobedience contempt. The ACTU argued that there was nothing in the Australian Law Reform Commission report way back then which gave support to creating additional offences relating to contempt where these are already the subject of a specific statutory offence.

The ACTU further argued that, while recommending that deeming provisions should be removed, the Law Reform Commission specifically recommended:

No new offence covering false allegations of misconduct against tribunal or commission members for non-compliance with orders should be created unless there is a specific need for it to protect a particular tribunal or commission.

The ACTU correctly noted that the inquiry did not have evidence that there was specific need for a new offence. What we have actually seen with this bill and the Workplace Relations Amendment (Compliance with Court and Tribunal Orders) Bill 2003, possibly to be discussed later this week, is evidence for an independent national workplace relations regulator, not new laws. What we have seen is a need for existing laws to be enforced.

Section 178 of the Workplace Relations Act, `Imposition and recovery of penalties', already provides for a general offence of failing to comply with the terms of an order. A number of people can sue for a penalty for a breach of an order of the commission. They are an inspector, a party to the order, an employer who is a member of an organisation and is affected by the breach, and an organisation or an officer or employee of an organisation that is affected by the breach. We all know that `organisation' means registered organisations under the act. Section 356 of the Workplace Relations Act provides that a monetary penalty imposed under the act may be paid into consolidated revenue or to a particular person or organisation. The court will often direct that the penalty it has imposed be paid to the applicant, with reference to the applicant's costs and expenses in bringing the proceedings.

However, I understand that two problems exist. The first is that it can be costly for an employer and the employer organisation to pursue such cases, especially given that fines are paid into consolidated revenue. Secondly, once disputes have been settled, employers are reluctant to pursue offenders for fear of creating disharmony and further disputes. I do not think that those fears should be lightly dismissed. Like the ACCC and ASIC, an independent national workplace relations regulator would be responsible for pursuing such breaches. The minister, in a press release on 19 December 2002, referred to a list of 22 breaches of industrial court orders—including alleged breaches—since 1999 by four unions. This amounts to approximately five or six breaches a year. I understand that three of those cases, through the use of section 178, actually resulted in significant pecuniary penalties.

I found the following extract from the Australian Commonwealth Director of Public Prosecution's prosecution policy interesting:

Sir Hartley Shawcross QC, then Attorney-General, stated to the House of Commons [in the United Kingdom] on 29 January 1951:

“It has never been the rule in this country—I hope it never will be—that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should ... prosecute `whenever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest.' That is still the dominant consideration.”

This statement is equally applicable to the position in Australia. The resources available for prosecution action are finite and should not be wasted pursuing inappropriate cases, a corollary of which is that the available resources are employed to pursue with some vigour those cases worthy of prosecution.

Further, in Australian Paper Ltd v. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 1998, North J. in the Federal Court commented on the nature of the court's power to issue injunctions to restrain breaches of section 127. His Honour stated that, although a Federal Court injunction often operates to enforce a section 127 order, the power to issue such an injunction is an independent power with particular ramifications, and the court will not automatically issue such injunctions just because there has been a breach of a section 127 order. Breach of the court's order could result in a fine, sequestration or imprisonment, and it was important for the court to keep this in mind when considering whether to issue an injunction.

It seems that the government is trying to enforce an ideology of 100 per cent compliance that is just not supported by the tradition of common law, by the commission or by the courts. I should also note that the ideology of 100 per cent compliance on behalf of the government is, it seems, pursued primarily in terms of unions, not primarily in terms of employers—and I am referring to the construction industry specifically—where we have seen little effort made to address what we are told is massive undercompliance with awards. Of course, it is hard to know or be sure of the scale of this noncompliance but, if we just look at some of the evidence presented by unions at the Senate inquiry into the building and construction industry of the millions of dollars that they have recovered in underpayment of wages, we can assume that noncompliance is occurring without penalty. This is an important point. Some of the position taking in the parliament is very much political and dedicated to achieving a particular political perception, but the general view is that this government is not union friendly and is very employer friendly. Whether that is accurate or not, the government needs to be aware of that perception and therefore needs to attend with as much rigour and vigour employer noncompliance as employee noncompliance. It is just a question of being balanced and even-handed.

I do not want to get too far off track. Clearly, section 178 of the Workplace Relations Act addresses the problem of breach of commission orders and could be enhanced by a national workplace relations regulator. In addition, it is critical to note that section 178 is a civil offence and that the proposed new provision in this bill would create a criminal offence resulting in 12 months imprisonment. It is important to point out that the commission orders not only are orders that can be enforced by courts but also can be fairly minor and deal with procedural and administrative matters. That has been a matter of concern in the committee deliberations.

With respect to the proposed new provision to make publishing a false allegation of misconduct affecting the commission a criminal offence, given the history of section 299 I have some doubts about its prospective usefulness. The Bills Digest notes that section 299 was amended in 1993, in the predecessor act, following a finding that a previous paragraph, which made it an offence to use words `calculated to bring a member of the Commission or the Commission itself into disrepute', was invalid. That case was about whether the section covered too much, such as a genuine exercise of a right of criticism. I suspect the current provision would face a similar problem. For example, the Australian Chamber of Commerce and Industry, in their submission to the inquiry into this bill, have argued that maintaining confidence in the commission must be balanced with freedom of expression, public accountability and open justice. Those were very good opinions for them to put on the record. The Australian Chamber of Commerce and Industry sought a qualification to the proposed amendment that a person `held a genuine belief that was based on reasonable grounds that misconduct has occurred'. I think we would find that anyone could argue that they held a `genuine belief' and therefore the provision would become redundant.

Of greatest concern for me was the fact that evidence presented at the inquiry found that section 299(1)(e) has never been used in prosecution. In fact, a search of the DPP database revealed no cases where action was brought under section 299. Further, there has been no evidence nor call from the AIRC that a new offence of disobeying an order is required. Of further concern is that the current section 299(l)(e) under discussion is based on the same provision then and now applying to tribunals under the Trade Practices Act 1974 and the Administrative Appeals Tribunal Act 1975. The government has not seen fit to change the contempt provisions applying to these tribunals. I think that is an important point. Where governments take a view as to what needs to be changed, generally speaking they make those changes across the whole of government and not just in one particular area of law.

I note the Department of Employment and Workplace Relations, in their submission to this bills inquiry, state that when the opportunity arises such provisions in other Commonwealth legislation will be drafted in a similar way to those being proposed in this bill. So perhaps the government is contemplating that avenue. Might I be so bold as to suggest that the government create the opportunities to amend all legislation and that, if the government were serious about redrafting the general contempt provisions to enhance certainty and accessibility of the criminal law to protect commission and tribunal proceedings, it would be simultaneously trying to amend all acts with this provision, based on a thorough review and the recommended wording which I think would be drafted by the Attorney-General's Department.

The Democrats would definitely feel more confident in supporting more specifically defined contempt provisions, if the process I suggested above were undertaken. At the moment it appears that the two new suggested provisions are there to deal with matters concerning the government with respect to industrial relations and union behaviour. For example, there is no new provision to deal with dishonest conduct, conspiracy to defraud and bribery of Commonwealth public officials, which are also contempt provisions under the Criminal Code.

Debate interrupted.