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Tuesday, 2 March 2004
Page: 20575


Senator SANTORO (5:13 PM) —On the face of it, codifying offences so that what constitutes an offence is always clear seems to be sensible policy. It is too often the case that you find that those who would argue against codification—say, on the grounds that it limits or is too prescriptive of judicial responses—are those who are seeking to find some excuse for people to continue to flout the law. No-one would want to limit judicial reasoning or trespass on the sound jurisprudence that almost always flows from learned judges applying their minds and their training to problems of the law, but in the Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003 no such action is proposed. Indeed, except at one remove, it does not even impinge on the freedom of thought of judges at all.

According to the opposition spokesman on workplace relations, the member for Rankin in the other place, this is `a vacuous piece of legislation'. He said that in his speech on the bill in the House of Representatives. It is not the legislation that is vacuous; the member for Rankin's comments were in fact vacuous. The member for Rankin's comments are often the very model of Labor Party vacuity when they are not just barefaced expositions of his and his party's preference for a return to the union closed shop and special privilege for the union movement. Amongst the dross that the opposition spokesman delivers, there are sometimes little shafts of light that illuminate his thinking. He said in the same speech on this bill in the House of Representatives:

For 100 years Australia has supported an Industrial Relations Commission as an independent umpire being able to arbitrate on disputes.

He can get 10 out of 10 for history there. Both sides of Australian politics have always supported the Australian Industrial Relations Commission. The essential difference, which is clear in this bill—and it is clear why Labor is opposing it—is that the side of politics that supports an independent Industrial Relations Commission is this side. We support an Industrial Relations Commission that is armed with effective weapons against union thuggery and provided with a clear mission statement by the legislature with regard to what it may order.

Labor prefer to keep things obscure. They use the smoke and mirrors method of hiding things. I talked about smoke and mirrors last night when debating another bill. They say they are all for independent arbitration but they really mean they are all for unions and their operatives being able to continue to get away with flouting the law. There is no intention in this bill or by this government to undermine the basic rights of anyone. The opposition suggest that doing so is the Prime Minister's passion and the fixation of the former minister, my friend and the present Minister for Health and Ageing.


Senator George Campbell —Madam Acting Deputy President, I rise on a point of order. I am reluctant to take this point of order but, given the precedent that was set this morning by Senator Ian Campbell, I have to take a point of order on Senator Santoro who appears to be reading his speech word for word contrary to the provisions of standing order 187.


The ACTING DEPUTY PRESIDENT (Senator Kirk)—There is no point of order.


Senator SANTORO —Obviously, I am speaking—


Senator George Campbell —Madam Acting Deputy President, I do not want to take issue with the chair, but it is obvious to anyone who is sitting in this chamber that Senator Santoro is reading his speech word for word, which is contrary to the provisions of standing order 187, as was pointed out succinctly before lunch by Senator Ian Campbell.


Senator McGauran —Madam Acting Deputy President, I rise on the point of order. The second point to which Senator George Campbell rose was not a point of order; it was in fact a challenge to your initial ruling. It is quite obvious to all in the chamber that Senator Santoro is reading from copious notes, which is well within the standing orders.


Senator SANTORO —I was about to say that, actually.


The ACTING DEPUTY PRESIDENT —There is no point of order, Senator Campbell. I understand that Senator Santoro is referring to copious notes.


Senator SANTORO —This was going to be a considerably briefer speech than it is about to become, because I am quite happy to depart from my copious notes—as you quite correctly have determined they are—and take up a point that Senator Murray made in his speech. I was going to make this point anyway in the course of referring to my prepared copious notes. The point I wanted to make in response to Senator Murray is that this government, of which I am a member, are not anti-union.


Senator George Campbell —Absolute rubbish!


Senator SANTORO —What we are is anti the irresponsible leadership of the party of the senator opposite me who seeks to frivolously interfere in the delivery of a contribution that is technical in nature and does require significant preparation and explanation—at least from my point of view. And we have people like Senator George Campbell—


Senator George Campbell —I didn't kick the first ball.


Senator SANTORO —Senator Campbell, you should be treating people the way that you would like to be treated. The point that I make in response to one of the points made by Senator Murray is that we are not anti-union. In fact, successive Liberal governments, including the Fraser government and the Howard government, have been elected by people who have abandoned you. Those non-Labor governments have been elected by voters who abandoned the union movement, who have been walking out on you in droves. Quite honestly they resent the ugly attitude and the ugly face of unionism that you represent in this place. They resent the fact that when you were a union leader, as one of my learned colleagues mentioned—I think it was Senator Abetz—close to 200,000 people associated with your union lost their jobs.


Senator George Campbell —Maybe you should go back into the history of your party.


Senator SANTORO —I do not go back. I read union history and I lament the fact that people like you existed and you led the movement to the shameful situation that it is in at the moment, declining membership—



Senator SANTORO —You can laugh and you can smirk: `Yeah, we got Senator Santoro going.' You just got what you deserved: a reminder, on the public record, of your absolute blind commitment to ideology that to the vast majority of Australians is worth absolutely nothing anymore. We are not anti-union; we represent more Australian workers than you ever will. When you come up with frivolous interventions such as the one you just did, you deserve to be treated with the contempt that you and your union movement are treated with. They just do not like people like you. That is why you are heading south in terms of union membership and votes.

The intention of this bill, and the policy position of this government, is to ensure that no-one can make a monkey out of the Industrial Relations Commission, as members opposite constantly seek to do. Codifying what constitutes contempt of the commission is a sensible step that makes it crystal clear to everyone exactly what constitutes contempt. It is not the Prime Minister's hidden policy to decimate the union movement as the member for Rankin alleged in the other place. The union movement has decimated itself and is now belatedly waking up to the fact that to be useful and therefore attractive to Australian workers who want to pay union fees for service—service, Senator Campbell, not ravings and rantings and ideologically blinkered contributions—unions actually have to provide a service. The workplace is not a place for politics.

These days the union movement is trying to muscle into all sorts of things. It has failed in the area of industrial relations. Because Australian workers do not wish to be represented in the industrial relations arena, the ugly face of unionism—not the ugly face of union members, because the vast majority of those members have been good enough over successive elections to actually elect non-Labor governments—is now muscling in on workplace occupational health and safety issues and training areas. Again, it is trying to bring into all sorts of areas—


Senator George Campbell —What do you mean we're muscling in? We've always been involved in the movement!


Senator SANTORO —Yes, but what you are doing—


Senator George Campbell —For 200 years we've been involved in the movement!


Senator SANTORO —There you go; you are not listening. I am talking about the politics of the workplace. You have lost the political battle in the area of industrial relations.


Senator George Campbell —You're talking absolute rubbish!


Senator SANTORO —It is not absolute rubbish and you know that. You just do not like it.


The ACTING DEPUTY PRESIDENT (Senator Kirk)—Senator Santoro, your remarks must be addressed through the chair.


Senator SANTORO —Through you, Madam Acting Deputy President: the workplace, as I am trying to convince Senator Campbell—rather unsuccessfully, I must admit—is not a place for politics.


Senator Abetz —He's a dinosaur.


Senator SANTORO —That is perhaps putting it a bit too kindly, Senator Abetz. It is not a place for politics; it is a place where employers and employees alike work to generate profit—another word that you do not like obviously. Australian industrial relations history is replete with examples of unions that have taken the law into their own hands, which have manufactured disputes for political purposes and which have held the country to ransom. I believe and this government believes—and on all evidence the Australian people believe—that those days are gone. The Labor Party clearly does not, and we have heard here again this afternoon a clear manifestation of that belief. The Labor Party clearly believes that it can take this country back in time. It is a little surprising that the member for Rankin apparently wants to drive the bus that would take us there.

When the former Minister for Employment and Workplace Relations introduced this bill into the House of Representatives on 19 August last year he said:

The bill seeks to codify and strengthen provisions in the Workplace Relations Act regarding contempt of the commission. A number of members opposite pointed out in the course of debate: `As far as we are aware, contempt of the commission has been a dead-letter issue. There have been no prosecutions for contempt of the commission.' But I regret to inform the House that there have indeed been plenty of contempts of the commission; it is just that there have been no prosecutions. The reason there have been no prosecutions is that the existing provisions are not entirely clear and do not contain sufficient penalties. I repeat: there have been numerous contempts of the commission over the years.

This takes up another point that was made by Senator Murray and other senators opposite—that is, there is nothing wrong with the law; it is simply not being enforced. The point the minister made in his second reading speech was that the reason the bill is back before us is that we want to make the law clearer so that contempts of the commission can be properly addressed. That is why the bill is back here. It is not a matter of its not being enforced because of deliberate intent; we are just simply trying to finetune and amend a law. It is not an anti-worker law; it is a very sensible law. Even the Labor Party, including the senator opposite who continues to interject, in full symbiosis with the union movement would have to concede the point. Do you concede the point?


Senator George Campbell —No. The law is already there; the provisions of the law are already there and they haven't been used.


Senator SANTORO —I am glad you have gone on the record because—through you, Madam Acting Deputy President—you again prove not only your ignorance but also your political and ideological obstinacy. Those opposite may choose to argue that it is sometimes valid to be in contempt of the commission. There would indeed be some intellectual validity to their argument, no matter that it is entirely wrong, were they to come clean on that point, but they cannot argue that no contempt has ever taken place, as they regularly do.

Without going back over the full history of the union movement—and I again want to make it clear at this point that it is only a minority of unions and union organisers and bosses who regularly and wilfully flout the law—for the record, we are not anti the union movement. I hope that Senator Murray is listening to this. We respect the vast majority of union members, shrinking though the number is. We have only to go back to the Cole report—the report of the Royal Commission into the Building and Construction Industry—to find evidence of numerous contempts of the Australian Industrial Relations Commission or numerous actions and events that would be in contempt of the commission if evaluated on any reasonable understanding of the law. The former minister made reference to one such instance reported by the royal commission: the Patricia Baleen industrial dispute in Victoria in late 2002, a strike that ran for almost two months, despite—indeed, in the face of—two section 127 return to work orders being issued by the commission. If that is not contempt, I just do not know what in fact can be defined as contempt.

The bill before us has one objective: to ensure that the commission is respected. The Labor Party and others can only vote against this bill if they are prepared to countenance continued contempt of the commission. The argument the Labor Party put forward over this bill is a political argument. If they were genuinely arguing it on administrative grounds, or on grounds of support for the rights and duties of the commission, they would not be arguing at all. They would be rushing to pass the bill.

It would be instructive at this time to take the Labor Party through the actual provisions and intent of the bill. The bill amends section 299(1)(e) of the Workplace Relations Act which makes `contempt of the commission' a criminal offence. The new offences clearly identify each type of conduct that constitutes contempt and the bill increases the level of penalties for such offences. There are three key elements to the government's overall compliance policy in relation to breaches of the court and commission orders: contempt proceedings for breaches of Federal Court orders, which are to be initiated either by the Attorney-General or the Minister for Employment and Workplace Relations where there is evidence of defiance and where instituting the action is in the public interest; civil proceedings for breaches of commission orders under section 178 of the Workplace Relations Act, which will be investigated and enforced by inspectors appointed under the Workplace Relations Act; and criminal proceedings under the statutory contempt provisions in part XI of the Workplace Relations Act, which will be investigated by Workplace Relations Act inspectors and prosecuted by the Director of Public Prosecutions.



Senator George Campbell —He is reading from his copious notes.


Senator SANTORO —If the honourable senator actually listened, he might learn something. This bill concerns criminal proceedings for contemptuous behaviour in relation to the commission. It clarifies the scope of the offence relating to conduct that amounts to contempt of the commission contained in existing section 299 of the Workplace Relations Act. In other words, while it does create new offences, it actually codifies what constitutes contempt on a basis that I believe most people would already clearly understand to be contempt and enforces action and appropriate penalties against such contempt. It means that union organisers would no longer be able to thumb their noses at the commission with impunity or, indeed, immunity.

The government believes this bill is necessary to ensure that the law, and in particular the application of criminal law, is clear; that it is accessible to those who believe they have a case; and, further, that it is capable of delivering legislated remedies for unlawful action. In this it is no different from any other bill that supports the criminal justice system. The industrial landscape is not one that should be quarantined from the force of the law, as senators opposite would want. Industrial disputes are not some sort of game, as the Labor Party apparently believes. They are not necessarily minor or momentarily diverting arguments between friends.

We should perhaps again go through all of the other reasons why this bill is necessary and should be passed. This bill amends Workplace Relations Act offences relating to contemptuous behaviour against the Australian Industrial Relations Commission so that it is clear and unambiguous. It codifies section 299(1)(e) of the Workplace Relations Act, which is currently a catch-all provision, prohibiting any offence that would, if the commission were a court of record, be a contempt of that court. It deals with the problem that this kind of `deemed contempt' provision imports the common law of contempt with all its uncertainties and complexities. As contempt of the commission is a criminal offence, it should be stated with certainty—with certainty that currently does not exist. It is the responsibility of the parliament, this Senate, to ensure that its laws are as clear as possible.

The bill clearly sets out specific forms of contemptuous behaviour which will attract criminal sanctions under the legislation. This implements the approach recommended by the Australian Law Reform Commission that `deemed contempt' provisions—such as the current section 299(1)(e)—should be replaced by specific statutory offences that identify contemptuous conduct. Existing offences in generally-applying legislation such as the Crimes Act and the Criminal Code already prohibit some contemptuous conduct in relation to the commission. This bill only creates a new offence to prohibit conduct not already adequately covered by the existing offences. The bill also updates penalties for a range of offences under part XI of the Workplace Relations Act, many of which have not been substantively revised for more than 15 years, and of course the world has moved on considerably in those 15 years.

The proposed new offences are: engaging in conduct which contravenes an order of the commission, publishing a false allegation of misconduct affecting the commission, and inducing a person to give false evidence to the commission. These would, I am sure, be viewed by most Australians as offences against which the law should act rather than stand idly by while offenders treat it with contempt. It is this sort of contemptuous behaviour that has hitherto escaped penalty. I do not believe that there is any reasonable Australian out there who would not see the sense that exists in the provisions of this bill that we are debating here today.

Like most Australians, most union members and officials are sensible people who understand that the law must be obeyed. I did not need the prompting of the honourable senator opposite for me to have considered my contribution and included those comments in my prepared statement. I did not need you, or indeed Senator Murray or anybody else in this room, to force me to say what I said. You have no monopoly over caring for people and workers, Senator.


Senator Crossin —Oh, dear, dear!


Senator SANTORO —Don't shake your head and give me a gentle clicking, because it just does not make sense. You have no monopoly; you are not the only politicians, senators and worker representatives with the hearts. You simply are not, and people are voting with their feet, as we have said before. This bill will prevent contempt of the commission and any reasonable Australian would be supporting that, as you should.