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Tuesday, 26 June 2012
Page: 4467


Senator MARSHALL (Victoria) (13:41): I also rise to speak on the Fair Work (Registered Organisations) Amendment Bill 2012. In my contribution I will address some of the comments Senator Abetz made. Firstly, let me give an important summary, one that was a little bit missed in Senator Abetz's contribution, about the purpose of the bill and what it is for and why it is important for the government to act at this point in time.

It does surprise me a little bit that the opposition seems to want to criticise the government when they do things and it wants to criticise the government when they do not do things. When the government move to act and tighten up the laws in relation to registered organisations, we are criticised for doing so. But if we had not moved to tighten up some of the laws that apply to registered organisations, we would have been accused of failing to do so. The opposition, once again, seeks to walk both sides of the road and there is complete inconsistency with what it says.

This bill, as we know, seeks to increase the accountability—financial and otherwise—of registered organisations and their office holders. The bill will improve the way that investigations into breaches of the registered organisations provisions are conducted. The proposed amendments in the bill seek to achieve this aim. There will be a requirement that the rules of all registered organisations must deal with disclosure of remuneration and pecuniary and financial interests. There is a threefold increase to civil penalties under the Fair Work (Registered Organisations) Act. There is a strengthening of the investigative powers of Fair Work Australia and there is a requirement that education and training be provided to officials and registered organisations about their governance and accounting obligations. All these things are things that the opposition, in various ways, have raised as issues that need to be dealt with, yet when the government seek to introduce amendments to the bill to deal with these issues, they criticise us for doing so.

Senator Cash: It's not tough enough—you know it's not tough enough. Where are the imprisonment provisions?

Senator MARSHALL: I notice that Senator Cash is already on her high horse. I am sure she will get out her membership of the HR Nicholls Society and start flashing that around to us at any moment now.

Registered organisations include unions and employer associations, and the Education, Employment and Workplace Relations Legislation Committee, of which I am chair, heard from both in an inquiry which we conducted last Friday. While, ideally, the committee would always like more time to deal with any piece of legislation that comes before the committee, the Senate as usual was up to the challenge; the committee was up to the challenge. We heard from a number of witnesses, some called by the opposition and some called by the government, and we were able to analyse this bill and its effect. We heard from a good cross-section of the community, and I will go to some of those submissions in a minute. All the submissions to the inquiry expressed in principle support for increased accountability for registered organisations and their office holders. It is worth noting at this point in time that these rules, these regulations, these laws that apply to registered organisations are in fact laws that were put in place by Mr Tony Abbott when he was minister for industrial relations in the previous government. This is the first time that these laws that were originally introduced by Mr Abbott have been updated. They are being updated because of some obvious circumstances, which I will go into in a moment, which have undermined confidence in the ability of those laws to deal with governance issues in some registered organisations, and that is a shame.

The people who made representations about the bill included, for instance, the Australian Industry Group, which represents employers. They expressed support for the bill, agreeing on the importance of greater disclosure by registered organisations. The Australian Council of Trade Unions expressed their support for the bill and its measures to address issues arising from the recent investigation into the Health Services Union branches. This is important. The Australian Industry Group is itself a registered organisation that represents other registered organisations. The ACTU is not a registered organisation but is a peak body that represents registered organisations under federal laws and various state laws.

It is no secret that public confidence in registered organisations has recently been undermined by the actions of a small number of officials in some parts of the HSU. We do not want to go into the proposition that Senator Abetz puts to us that the Senate should decide the guilt or otherwise of individuals involved in that. That will ultimately be a matter for the courts in various jurisdictions, and that should happen and take its proper course. But what it has highlighted is that there are serious governance issues with that union that clearly need to be addressed. Again, instead of the opposition attacking this government for actually doing something about it, they should be commending this government for acting quickly and appropriately to address some of those issues.

I was very pleased to hear the testimony of the Assistant Secretary of the ACTU, Mr Tim Lyons. Mr Lyons's view was that the package of measures contained in the bill will collectively address the underlying failings that became apparent during the recent investigation by Fair Work Australia. Certainly as a union member and a passionate believer in the role that unions play, there is no-one who feels more strongly than me that the overwhelmingly profesĀ­sional and honourable work of registered organisations should not be tainted by the actions of a few. It is in that spirit that I support this bill absolutely. I do not think that there are any issues with the vast majority of unions or other registered organisations such as employer organisations in raising the standards of governance and disclosure. I think that is proper and appropriate. There is a tripling of the current fines that, as I indicated, were put in place firstly some time ago when Mr Abbott was industrial relations minister in the previous Howard government. There are now much more rigorous disclosure provisions. All these things are very important.

The bill also enables Fair Work Australia to behave the way I think we would like them to be able to behave. Senator Abetz talks about Stuart Wood's advice that Fair Work Australia were able to directly disclose to the policing authorities matters contained in their investigation. Of course, whenever there are legal disputes, half of the advice is always wrong. When you have two legal opinions and they are contradictory opinions, one is going to be right and one is going to be wrong. Fair Work Australia had advice to say that they could not do that directly. Ultimately they did achieve that result by going through the Commonwealth Director of Public Prosecutions, so the report and all the supporting documentation has in fact been provided to the police authorities in both New South Wales and Victoria. It did get there, but the problem we had is that Fair Work Australia felt constrained by their legislation in that they were not able to do that directly.

In part, the position is supported by Mr John Lloyd, who was the former Commissioner of the Australian Building and Construction Commission. At the hearing where Mr John Lloyd appeared, and I will talk about his submission in more detail later, he indicated that the act that governed his commissionership—the AustĀ­ralian building improvement act, I think it was called—specifically allowed for him as Commissioner of the ABCC to hand over investigative material and evidence to the police forces in the relevant states. So in many ways the fact that there were specific provisions in that bill to allow for that disclosure probably supports Fair Work Australia's position. But, again, I am not a lawyer—thank heavens, most people would say—and I do not want to get into which lawyer was right in the opinion that they gave. What is important is that the government has moved to clarify the situation to ensure that Fair Work Australia can provide any evidence it collects to the police. Again, that is something the opposition want to criticise, but when we go and do it they criticise us for doing it too. It seems you cannot win with this opposition. You are dammed if you do and you are dammed if you don't.

This issue itself was the subject of a further Senate estimates hearing and Senator Abetz talked about the fact that Mr Doug Williams had said in a memo that there should be an ability to provide some information arising from the investigation to the police. This was portrayed by Senator Abetz and others through the press as a 'smoking gun'. As chair of that committee in estimates, I recalled Fair Work Australia at the request of the opposition to answer more questions about that detail. The smoking gun turned into an empty water pistol. That is all it was. There was no smoke; there was no gun. It was an absolute fizzer. There were three hours of questioning about the smoking gun, as it was portrayed, and it was an absolute fizzle. When the officers were asked about that issue, they answered the questions and left the opposition absolutely flat-footed and with hollow accusations that went nowhere. Senator Abetz now complains, 'Why didn't the press follow that matter and other matters more fully?' It is because the press were watching too and they saw it was a no smoking gun. It was a complete beat-up. The officers acted appropriately in every instance and that was obvious to everyone who was watching the committee. It is important to understand that Senator Abetz wants to argue, as other people who submitted to the committee argued, that registered organisations should be treated the same way as corporations. It has to be understood that these are constitutional matters—again, reminding people I am not a lawyer; I will not give constitutional advice about trading corporations. Even some of the people on the other side will understand that registered organisations are very different to corporations that trade for profit. Unions are organisations that exist to serve their members.

Senator Cash: Oh, really?

Senator MARSHALL: Yes, really, Senator Cash.

Senator Cash: Or to rob them blind.

Senator MARSHALL: If you had any understanding of unions or anything else to do with industrial relations, you would not be so quick to step in with your mocking contributions. You really know very little about these matters at all. Just because you are over the other side and somebody has given you a speech to read out to filibuster for the rest of the evening certainly does not mean that you or many of your colleagues do know about these matters. I see the guilty look on your face; did I get it in one?

The ACTING DEPUTY PRESIDENT ( Senator Cameron ): Senator Marshall, address your comments through the chair.

Senator MARSHALL: Through you, Mr Acting Deputy President, I think I hit it in one. Someone has given Senator Cash a speech to read out here to filibuster for the rest of the day so that, again, the opposition can get up and complain that, 'We have had 20 speakers on this bill and we do not have time for a committee stage.' For these sorts of bills on any other occasion you would have a couple of speakers and you would support the government because you know the government is actually doing the right thing.

Just for your edification, Senator Cash, let me explain to you how unions are not-for-profit organisations. They do not operate for the purpose of having business or trading at a profit. In the end, the Corporations Law is fundamentally designed to regulate businesses that turn a profit or, even if they are not-for-profit businesses, are otherwise engaged in trading. Unions do not participate in businesses. They are not a business. Unions do not have shareholders and they do not have customers. They have members. Accountability and transparency need to be delivered back to members. That is best done by specialist legislation. It is how it has always been done in Australia. It is best done by having a regulatory regime that is focused on the specific nature of an industrial organisation.

The argument that the opposition runs is that we should, in fact, have registered organisations governed by the Corporations Act. It has millions of businesses within it, but it will somehow deliver greater accountability and greater regulation than a specialist regulator that simply deals with the fewer than 200 registered organisations in this country. It makes no sense and it is illogical to suggest that regulation of registered organisations would be better dealt with under the Corporations Law. It clearly would not. It is simply another furphy.

We also heard Senator Abetz refer to a number of organisations that could have appeared before the committee. He mentioned the MBA. But the Liberal Party only asked for three people to appear before the committee. They asked for Mr Doug Williams, a member of the HR Nicholls Society, they asked for Mr John Lloyd, a member of the HR Nicholls Society, and they asked for Stuart Wood QC, a member of the HR Nicholls Society, to appear. Maybe we could have just asked the HR Nicholls Society to appear in its own right instead of having members of the HR Nicholls Society appear. It was then left to the government members of the committee to actually ask employer organisations and unions to appear. It was left to the government senators to ask for registered organisations to appear. So, in the end, it was the government members of the committee that invited ACCI, the AiG and the ACTU to appear.

The one member of the HR Nicholls Society that took up the offer to appear was Mr John Lloyd. Mr John Lloyd's evidence was quite interesting, but the fact that he came to lecture the Senate on how registered organisations should govern themselves got a bit problematic for him at the end of it. Mr Lloyd, a prominent member of the HR Nicholls Society, is now a director of the IPA, a right-wing conservative think tank. He was telling the Senate how registered organisations should govern themselves. But when I asked him, 'Who are members of the IPA?' he said: 'They are just people who agree to membership. They are people from anywhere in Australia. They can just donate money. Anyone can join and donate money.' I asked, 'Is it a company?' He said: 'I'm not too sure how it is set up. There is a board of the IPA. I think it is just an organisation. It is not a company, I do not think, but I am not sure of that.' I said, 'You are a director of the IPA and you do not know how it is set up.' Mr Lloyd said: 'I know there is a board. I do not think there is a corporate structure.' Here was a director of the IPA lecturing the Senate on how registered organisations should be set up, but he does not even know how an organisation that he is a director of is governed. He does not know whether it is a company. He does not know whether it is an organisation. He does not know what it is. If you do not know what a company or an organisation is that you are a director of, how do you know what rules govern it? How do you know how to govern yourself? How do you know what rules govern that?

Here was a guy, the HR Nicholls Society champion, John Howard's Work Choices spear thrower, coming here while not knowing how his own organisation is governed. The hypocrisy of the people who the Liberal Party get to come and run their political agenda before Senate committees is absolutely breathtaking. Mr John Lloyd needs to get over himself. He needs to work out how his own organisation is governed and what legal rules apply to it before he comes lecturing us about what we are doing in this place.

Debate interrupted.