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Monday, 8 March 2004
Page: 20922


Senator ABETZ (Special Minister of State) (12:48 PM) —The Australian people paid good money to see Jurassic Park when they could in fact come in here from time to time and listen to the Australian `Extremes' and see dinosaurs at work. What we have just heard is another example of the Australian `Extremes' no longer pursuing a Green agenda but showing their extreme left wing Trotskyite ideology. We have just heard from the senator opposite the suggestion that Bob Carr, the Labor Premier of New South Wales, Senator Collins, Senator Buckland and other Labor senators are in fact class traitors—they really do not look after the working class as they should. The extremism of the contribution is quite bizarre. In fact, it dates back to the old divisive policies of class warfare when there used to be a Berlin Wall and there—


Senator Buckland —Mr Acting Deputy President, I raise a point of order. I was just thinking in my mind that `class traitor'—


Senator ABETZ —Well, that is a start!


Senator Buckland —It is a lot more than you have being doing, Senator. I was thinking about `class traitor'. Is it parliamentary to call another senator a traitor of any type?


The ACTING DEPUTY PRESIDENT (Senator Lightfoot)—As I heard it, Senator Abetz did not call Senator Collins or Senator Buckland class traitors.


Senator Buckland —Certainly, Senator Collins and I—


The ACTING DEPUTY PRESIDENT —I am speaking in answer to the point of order. You may resume your seat, Senator Buckland. Senator Abetz did not call either Senator Collins or you, Senator Buckland, class traitors. He was referring to the speech that made you look as if you were or that assumed that you were. There is a difference.


Senator Brown —Mr Acting Deputy President, on the point of order, I do not see the difference. I ask that, if you insist on that ruling, it be referred to the President for an adjudication.


The ACTING DEPUTY PRESIDENT —Do you have any objection to that being referred, Senator Abetz?


Senator ABETZ —There are a few people in this place with glass jaws. I am more than happy to withdraw to get the debate going. Your summary, Mr Acting Deputy President, is absolutely right and the Hansard record will disclose that yet again Senator Brown is wrong. I am happy to withdraw to allow the debate to occur.


The ACTING DEPUTY PRESIDENT —Thank you.


Senator ABETZ —What was implied, Mr Acting Deputy President, by the Greens speech—


The ACTING DEPUTY PRESIDENT —We have dealt with the point of order, Senator Abetz. Were you going to continue?


Senator ABETZ —Yes. What was implied by the Australian Greens senator opposite was that Bob Carr and others were class traitors. That is the proposition that I was putting because it was suggested that the Labor Party—


Senator Brown —Mr Acting Deputy President, I raise a point of order. The standing orders are quite clear on this. One may not reflect on a member of another parliament in Australia, either. If that was a reference to Bob Carr, the Premier of New South Wales, it is out of order in this place.


The ACTING DEPUTY PRESIDENT —Senator Brown, I am undecided as to whether it was a reflection and I have therefore decided that there is no point of order.


Senator ABETZ —Thank you, Mr Acting Deputy President. It is amazing that, when you point out the extremism of the Australian Greens on industrial and other legislation, they enter the debate with the greatest of glass jaws and make all sorts of frivolous interruptions to try to stop the flow of the debate. Anybody reading in the Hansard what Senator Nettle said—and, might I add, I think there would be many better reads around the place—would see an extremism permeating her speech which unfortunately reflects that extreme ideology. The reflections in her speech against the Labor Party, including against the New South Wales Premier and Labor senators opposite, would indicate that the Greens position themselves to the extreme left of the Australian Labor Party when it comes to matters of industrial relations.

People listening to this debate may be surprised that the principal purpose of this bill is to prevent orders of the AIRC being circumvented. The bill simply obliges officers and employees of registered organisations to refrain from taking action that would frustrate the operation of a court or AIRC order which applies to their organisation or to its officials, employees or members. Basically, put in colloquial terms, if you do not cop the umpire's decision there must be a consequence. That is what we as a government believe very strongly. If you are going to have an orderly system of industrial relations in this country then you have to have an umpire, and the umpire may from time to time make a wrong decision or a decision that you do not like. It happens all the time in all other walks of life, including on the sports field, but at the end of the day you have to accept the umpire's decision. There are very serious consequences on the cricket field if somebody seeks to dispute an umpire's decision; they can lose their whole takings for one match. It is the same with AFL players. They can be disqualified from partaking in a game of football.

I ask senators opposite what is more important: accepting the umpire's decision on a sports field or accepting the umpire's decision in industrial relations matters? You know what would happen on the sports field if the sportsmen and sportswomen did not have to accept the umpire's decision. There would be mayhem. Similarly, in the Australian industrial relations arena there would be absolute mayhem if the umpire's decision did not have to be abided by. Let me say at the outset that we as a government hope that these provisions will never have to be used because everybody will accept the umpire's decision. But if you do not cop the umpire's decision then there has to be a consequence. Those opposite, with their left-wing ideology, are simply unwilling to accept that. They want to say, `We want the right to pick and choose on what occasions—'


Senator Brown —We'll see what you say on the next bill.


Senator ABETZ —Heaven forbid! Senator Brown is interjecting. Get up on a point of order, Senator Brown, and say: `Interjections are disorderly. Please rule me out of order.'


Senator Brown —Mr Acting Deputy President, I raise a point of order. We will see whether the International Court of Justice, the umpire, gets accepted in the next piece of legislation.


The ACTING DEPUTY PRESIDENT —What is your point of order, Senator Brown?


Senator Brown —I was just taking the invitation of the minister opposite to raise one.


The ACTING DEPUTY PRESIDENT —You are being frivolous, Senator Brown. There is obviously no point of order.


Senator ABETZ —Isn't it amazing: the person who always claims the highest ethical standards of parliamentary debate seeks to have Senator McGauran put on the record for interjecting, yet within two or three minutes of that is engaging in interjections himself. That is the sort of duplicity the Australian Greens engage in day after day in this place.

Can I also deal with the comment just made by Senator Brown, that we will see what some International Court of Justice, as an umpire, might consider. I have a view that Australian laws ought to be made by the Australian parliament—determined by the Australian people at elections—and not by unelected officials in international fora around the world who are not answerable to anybody. As I indicated, if you want an orderly system of industrial relations in this country, you need an umpire and you need to be able to enforce that umpire's decision. It is not good enough to simply say, `We want to cherry pick those orders of the commission that we agree with and completely disregard and treat with contempt those decisions with which we disagree.' You have to cop all the decisions of the umpire or none at all. We say, whether or not you like the decision of the umpire, you have to accept the decision. It is a pretty simple proposition.

Those opposite, with their trade union background, find that a difficult proposition to swallow. The Australian Greens, who are even more extreme, with their extreme left-wing ideology, would find that complete anathema but I think the average Australian whom we as a government seek to represent—that is, we seek to represent not special interest groups or sectional interest groups but the large mass of the Australian people—would say that is a very fair proposition.

I repeat: no penalty can be imposed until those engaging in unlawful conduct have first been warned by either the AIRC or the Federal Court that what they are doing is unlawful. It is only after a stop order has been defied that penalties provided for under this bill have any relevance. In respect of contraventions of AIRC and Federal Court orders, the bill provides that the minister or his nominee may commence proceedings for recovery of a pecuniary penalty. No criminal sanctions are imposed. An official who is subsequently penalised by a court for breaching an order is also disqualified from holding office for a period of five years. Any such disqualification is subject to a right of appeal.

I am reminded that the bill is similar in effect to the scheme for disqualification in the Corporations Act, which provides for a person to be disqualified for managing a corporation in breach of certain civil penalty provisions which reflect on their fitness to hold office. It is in the company laws, as it ought to be. Nobody on the other side objects to it if it applies to Corporations Law, but somehow if it finds its way into industrial law and affects the people responsible for endorsing and funding those opposite, we need a different law to protect them. We as a government say: if it is good enough for Corporations Law, chances are it is also good enough for industrial or workplace relations laws. In some cases where the unlawful conduct of an official of a registered organisation damages that organisation, the bill provides that the organisation may recover the losses from the official.

Given some of the misleading contributions from those opposite, it is also necessary to emphasise what the bill does not do. First, the bill does not narrow the scope of industrial action that is protected by the Workplace Relations Act. It was therefore quite wrong for Senator Murray to suggest that the bill takes away existing rights to engage in industrial disputation or that it somehow shifts the balance between parties. It does nothing of the kind. Parties can still engage in protected action and no official, member or employee of an organisation is penalised under this bill for taking lawful industrial action. So the answer to Senator Murray's rhetorical question on the matter is that the bill ought to have no impact whatever on the ability of union officials to perform their job adequately and represent employees, unless he believes that to do that you have to breach the orders of the Industrial Relations Commission.

Second, the bill does not affect the rights of ordinary members of registered organisations. Senator Nettle, in her bizarre contribution, said that the bill `seeks to create a civil penalty provision applying to members who breach an order or direction applying to them'. That is simply misleading. The only persons affected are office holders and employees of organisations. If anything, the bill is about protecting organisations and their members from the consequences of unlawful behaviour by those in positions of leadership and authority within those bodies.

Third, the bill does not discriminate against trade unions; it applies to all registered organisations and their officials. Senator Collins suggested that the bill was unbalanced because:

Although registered organisations can and do include employer organisations, employer organisations do not engage in industrial action.

That is rather like saying that a law which prohibits jaywalking is unfair on jaywalkers and discriminates in favour of people who do not jaywalk. The message for union officials and ex-union officials is simple: the law permits you and your organisations to take industrial action, subject to certain rules. Most unions and their members comply with those rules. It is not acceptable to say that it is alright to comply with those rules most of the time. The jaywalker does not have that defence and neither should unions or employer organisations that from time to time defy court or tribunal orders. Fourth, disqualification from office is not automatic. In those instances where an official contravenes an order, the court still retains the option of not imposing a pecuniary penalty. Where no such penalty is imposed there can be no disqualification.

Fifth, it is not correct to say, as Senator Nettle did, that there is no attempt to relate the magnitude of the penalty to the magnitude of the breach of the act. She says this based on the incorrect premise that the sanctions imposed by the bill will apply to minor administrative breaches of the act. Perhaps the honourable senator should read clause 227, which would require the Federal Court to have regard to the nature and circumstances of the contravention and the nature of the person's involvement in the contravention when considering an application to negate or reduce the disqualification period.

Sixth, the bill does not relate to minor administrative breaches of the act. Senator Nettle said that the bill would allow for disqualification from holding office for breach of provisions relating to the keeping of records, auditing and reporting to members. Again, she has misunderstood the effect of the bill. It only relates to breaches of orders or directions of the Federal Court or the commission and not to the breach of other civil penalty provisions. The government finds erroneous comments of this sort all the more disappointing, given that these proposals have been around for some time and that there was a Senate inquiry into the bill. The Department of Employment and Workplace Relations provided a detailed briefing to the inquiry and departmental officials appeared before the inquiry and were available to answer technical questions on the bill. Some senators now demanding more information or demonstrating a limited understanding of the bill did not even manage to attend the committee hearings on the bill.

Some senators have questioned the need for this legislation, asserting that either there are not many breaches of court or commission orders or else that any breaches are trivial and should be ignored. The government is pleased that the overall level of industrial disputation is at an all time low, but that is not an argument for turning a blind eye to industrial action which is not permitted by law. The government is concerned that there is a fairly steady stream of cases where court and commission orders to stop industrial action are being defied. Departmental estimates suggest about 15 per cent of such orders are being disobeyed. Thankfully, noncompliance with orders is not rampant, but that is not to say that it is not a serious issue.

Letting even isolated instances of deliberately unlawful conduct go unpunished is an invitation to more widespread noncompliance in the future. Although some contraventions arguably involve minor disruptions to business, many do not. For example, during the dispute at the Patricia Baleen gas plant in 2002, return to work orders were defied for weeks as part of a campaign by a number of unions which lasted for almost three months. Such noncompliance erodes confidence in the commission, the courts and the system as a whole and is unfair on those who play by the rules. Yet, bizarrely, Senator Collins in her contribution suggested that this legislation somehow undermines the role of the commission. I simply remind Senator Collins that it was in fact a past Labor government that sacked every single member of the Australian Industrial Relations Commission and then reappointed the commission the next day or very shortly thereafter, leaving one person off it. That is the way that the Australian Labor Party, if ever they were allowed back into power, would deal with the Australian Industrial Relations Commission, which they now claim to be supporting. The way they treated the Industrial Relations Commission then was shameful and they have never apologised for doing it. Therefore, we can assume that, should they be so minded and if they were re-elected, they would do the same again in the future.

Senator Murray has suggested that the government has not presented sufficient evidence to demonstrate that a real and significant problem exists. Senator Collins referred to a list of 22 potential breaches, previously identified by the department. In December 2002 Minister Abbott issued a media release citing 22 instances where orders appear to have been breached between 1999 and 2002. Senator Collins says that these were only potential breaches. Nothing hangs on this point, though, as `potential' here only means that some of the matters were not pursued to absolute finality in the courts.

Senator Collins makes no reference to the further six matters identified by the department in the material tendered to the Senate hearing into the bill on 22 October. The department has subsequently identified a further clutch of matters which raise the count of potential contraventions to above 30. More could probably be found if required, but those already identified ought to be enough to persuade any responsible government that there exists a real problem requiring attention. In answer to Senator Murray, I note that neither he nor other Democrat senators attended the Senate hearing when departmental officers were available to answer questions on the bill. It might help if Senator Murray were to say what evidence would persuade him and his colleagues that this matter requires attention.

I could make some other comments on the nonsense that was put before us during the second reading debate, but I think I have dealt with most of the issues. If need be, we can deal with the other issues in the detail during the committee stages. I thank honourable senators for their contribution to this debate. I will simply summarise the purpose of this bill. We hope that everybody will comply with orders of the AIRC or Federal Court and that the bill's provisions will never need to be used. The simple principle is: if you do not cop the umpire's decision, there must be consequences. We believe that; it is unfortunate that those opposite do not.


The ACTING DEPUTY PRESIDENT (Senator Lightfoot)—The question is that the bill be read a second time.

A division having being called and the bells being rung—


Senator Jacinta Collins —I seek leave to call the division off.

Leave granted.


The ACTING DEPUTY PRESIDENT —I will put the question again. The question is that the bill be read a second time.

Question agreed to.

Bill read a second time.