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Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

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2002 - 2003 - 2004

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

 

 

 

WORKPLACE RELATIONS AMENDMENT (CODIFYING CONTEMPT OFFENCES) BILL 2003

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

New Clauses to be Moved on Behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and Workplace Relations, the Honourable Kevin Andrews MP)

 

WORKPLACE RELATION AMENDMENT (CODIFYING CONTEMPT OFFENCES) BILL 2003

OUTLINE

The Government’s amendments to this Bill propose to amend the Workplace Relations Act 1996 (WR Act) to:

·         increase penalties relating to certain offences under the WR Act;

·         enhance compliance powers to obtain information relevant to investigations under the WR Act; and

·         disqualify persons from holding office in a registered organisation if they receive a suspended sentence for an offence involving the intentional use of violence.

Proposed Schedule 3 updates and increases the penalties for offences under the WR Act.  The amendments will provide penalties that are at a level more appropriate to the seriousness of offences.  The opportunity has also been taken to update current references in the text of the WR Act from dollar amount penalties to penalty units.  This is consistent with Commonwealth policy on penalties.

Proposed Schedule 4 to this Bill would allow the Secretary to the Department of Employment and Workplace Relations, by written notice, to compel a person to produce information or documents and to provide information relevant to an investigation under the WR Act.  It creates an offence for failing to comply with the notice.  It also contains related provisions regarding self-incrimination, protection from liability, the confidentiality of information received and the Secretary’s powers of delegation.

Proposed Schedule 5 provide to this Bill would provide that a person is disqualified from holding office in a registered organisation if they receive a suspended sentence having been convicted of an offence involving the intentional use of violence to a person or damage to property.

To achieve this, the Bill would:

·          amend the definition of convicted of a prescribed offence

·          make necessary consequential amendments

·          provide for the transitional operation of these provisions

FINANCIAL IMPACT STATEMENT

The proposals contained in the Bill are budget neutral.

 



SCHEDULE 3 - INCREASING PENALTY LEVELS

Workplace Relations Act 1996

Item 1 - Subsection 4(1)

3.1                     This item would define penalty unit to have the same meaning as in the Crimes Act 1914 .  A penalty unit is currently $110.

Item 2 - Subsection 170NF(2)

Item 3 - Subsection 170NF(2)

3.2                     Subsection 170NF(2) sets the maximum penalty for breaching a penalty provision relating to certified agreements at $10,000 for a body corporate and $2,000 in other cases.

3.3                     These items would increase the maximum penalty under subsection 170NF(2) to 300 penalty units for a body corporate and 60 penalty units in other cases. .

Item 4 - Subsection 170VV(2)

Item 5 - Subsection 170VV(2)

3.4                     Subsection 170VV(2) sets the maximum penalty for breaching a penalty provision relating to Australian Workplace Agreements at $10,000 for a body corporate and $2,000 in other cases.

3.5                     These items would increase the maximum penalty under subsection 170VV(2) to 300 penalty units for a body corporate and 60 penalty units in other cases.

Item 6 - Subparagraph 178(4)(a)(i)

Item 7 - Subparagraph 178(4)(a)(i)

3.6                     Subparagraph 178(4)(a)(i) sets the maximum penalty for breaching a provision in an  award or order of the Commission at $5,000 for a body corporate and $1,000 in other cases.

3.7                     These items would increase the maximum penalty under subparagraph 178(4)(a)(i) to 150 penalty units for a body corporate, and 30 penalty units in other cases.

Item 8 - Sub-subparagraph 178(4)(a)(iia)(A)

Item 9 - Sub-subparagraph 178(4)(a)(iia)(A)

3.8                     Sub-subparagraph 178(4)(a)(iia)(A) sets the maximum penalty for a breach of a term of a certified agreement that continues for more than one day at $10,000 for a body corporate and $2,000 in other cases.

3.9                     These items would increase the maximum penalty under sub-subparagraph 178(4)(a)(iia)(A) to 300 penalty units for a body corporate, and 60 penalty units in other cases. 

Item 10 - Sub-subparagraph 178(4)(a)(iia)(B)

Item 11 - Sub-subparagraph 178(4)(a)(iia)(B)

3.10                 Sub-subparagraph 178(4)(a)(iia)(B) sets the maximum penalty for a breach of a term of a certified agreement that continues for more than one day at $5,000 for each day of the breach for a body corporate and $1,000 for each day of the breach in other cases.

3.11                 These items would increase the maximum penalty under sub-subparagraph 178(4)(a)(iia)(B) to 150 penalty units for each day of the breach for a body corporate and 30 penalty units for each day of the breach in other cases.

Item 12 - Subparagraph 178(4)(a)(iib)

Item 13 - Subparagraph 178(4)(a)(iib)

3.12                 Subparagraph 178(4)(a)(iib) sets the maximum penalty for a single breach of a provision in a certified agreement at $10,000 for a body corporate and $2,000 in other cases.

3.13                 These items would increase the maximum penalty under subparagraph 178(4)(a)(iib) to 300 penalty units for a body corporate and 60 penalty units in other cases.

Item 14 - Subparagraph 178(4)(a)(ii)

Item 15 - Subparagraph 178(4)(a)(ii)

3.14                 Subparagraph 178(4)(a)(ii) sets the maximum penalty for breaching an award, order of the Commission or agreement, that is not set elsewhere in section 178, at $10,000 for a body corporate and $2,000 in other cases.

3.15                 These items would increase the maximum penalty under subparagraph 178(4)(a)(ii) to 300 penalty units for a body corporate and 60 penalty units in other cases.

Item 16 - Paragraph 178(4)(b)

Item 17 - Paragraph 178(4)(b)

3.16                 Paragraph 178(4)(b) sets the maximum penalty that a body other than a court can impose for breaching an award, order of the Commission or agreement at $10,000 for a body corporate and $2,000 in other cases.

3.17                 These items would increase the maximum penalty under paragraph 178(4)(b) to 300 penalty units for a body corporate and 60 penalty units in other cases.

Item 18 - Subsection 178(4A)

Item 19 - Subsection 178(4A)

3.18                 Subsection 178(4A) provides that a certified agreement may specify a lower or higher penalty level than that specified in subparagraph 178(4)(a)(iia) for a breach of a certified agreement that continues for more than one day.

3.19                 These items are consequential to the maximum penalties in subparagraph 178(4)(a)(iia) being increased by items 14 and 15.

3.20                 They provide that a certified agreement may, for the purposes of subparagraph 178(4)(a)(iia), specify a penalty greater or lesser than 150 penalty units for each day of the breach for a body corporate and 30 penalty units for each day of the breach in other cases.

Item 20 - Paragraph 187AD(1)(a)

3.21                 Paragraph 187AD(1)(a) sets the maximum penalty a court can impose in relation to a breach of the strike pay provisions at $10,000.

3.22                 This item would change the maximum penalty under paragraph 187AD(1)(a) to 300 penalty units.

Item 21 - Subsection 285F(3)

Item 22 - Subsection 285F(3

3.23                 Subsection 285F(3) sets the maximum penalty for a breach of the right of entry provisions at $10,000 for a body corporate and $2,000 in other cases.

3.24                 These items would increase the maximum penalty under subsection 285F(3) to 300 penalty units for a body corporate and 60 penalty units in other cases.

Item 23 - Subparagraph 298U(a)(i)

Item 24 - Subparagraph 298U(a)(i)

3.25                 Subparagraph 298U(a)(i) sets the maximum penalty for a breach of the freedom of association provisions at $10,000 for a body corporate and $2,000 in other cases.

3.26                 This item would increase the maximum penalty under subparagraph 298U(a)(i) to 300 penalty units for a body corporate and 60 penalty units in other cases.

Item 25 - Application of amendments

3.27                 This item specifies that the amendments made by this Schedule would only apply in relation to breaches that occur after the amendments commence.



SCHEDULE 4 - COMPLIANCE ETC. POWERS

Workplace Relations Act 1996

Item 1 - After Part V

New Part VA - Compliance etc powers

Proposed new section 88AA - Secretary’s powers to obtain information etc

4.1               Proposed new subsection 88AA(1) would allow the Secretary to the Department, by written notice, to compel a person to produce information or documents, or to attend before the Secretary or an assistant and answer relevant questions if certain criteria are satisfied.  The criteria are that the Secretary believes on reasonable grounds that the person:

·         has information or documents relevant to an investigation; or

·         is capable of giving evidence that is relevant to an investigation.

4.2               Investigation is a defined term (new subsection 88AA(8)).  It means an investigation by an authorised officer for a purpose referred to in subsection 83BH(1) of the WR Act or an investigation by an inspector referred to in subsection 86(1) of the WR Act.

4.3               This proposed subsection has a three year sunset clause. 

4.4               Proposed subsection (2) requires the notice to allow a person at least 14 days to comply.

4.5               Proposed subsection (3) expressly provides that a person may be represented by a legal practitioner when attending before the Secretary or assistant.

4.6               Proposed subsections (4) and (5) provide that the Secretary or an assistant may require information or answers to be verified or given under oath or affirmation.

4.7               Non-compliance with a notice or failure to take an oath or affirmation when required to do so under proposed subsection (4) constitutes an offence under proposed subsection (6).  The Criminal Code allows for a range of circumstances to be pleaded as a defence to criminal offences.  Proposed section 88AB limits the grounds for such a defence.  However, proposed section 88AC protects persons from certain liabilities that may arise from the disclosure of information or documents pursuant to proposed section 88AA.

4.8               The proposed offence created under proposed subsection (6) is punishable by a maximum imprisonment of six months.  Subsection 4B(2) of the Crimes Act 1914 (the Crimes Act) establishes a formula by which a term of imprisonment can be converted into a pecuniary penalty.  The formula multiplies the number of months of imprisonment by five.  The resulting number is the number of penalty units used to calculate the maximum pecuniary penalty.  Section 4AA of the Crimes Act provides that a penalty unit is $110.  This would make the maximum pecuniary penalty for this offence 30 penalty units or $3,300.

4.9               Subsection 4B(3) of the Crimes Act provides that when a body corporate is convicted of an offence the court may, so long as a contrary intention does not appear, impose a penalty not exceeding five times the maximum penalty that could be imposed on a natural person.  For this offence, the maximum penalty for a body corporate would be 150 penalty units, that is, $16,500.

4.10           Proposed subsection (7) provides that the power of the Secretary to obtain information is not limited by the secrecy provisions of any other law unless that law expressly excludes the power to gather information by the Secretary or his or her assistants. 

4.11           Proposed subsection (8) defines terms used in proposed section 88AA. 

Proposed Section 88AB - Certain excuses not available in relation to section 88AA requirements

4.12           Proposed section 88AB limits the grounds on which persons can legitimately refuse to comply with a notice from the Secretary under proposed section 88AA, compelling the production of information.

4.13           Proposed subsection 88AB(1) provides individuals cannot refuse to provide information on the grounds set out in the proposed subsection, including that it might incriminate that person or contravene another law.  However, proposed subsection (2) provides that any information, answers or documents given pursuant to a notice under proposed section 88AA is inadmissible in any court proceedings other those that relate directly to the giving or failure to give information, answers or documents to the Secretary.

Proposed section 88AC - Protection from liability

4.14           Proposed section 88AC protects persons who disclose information to the Secretary, in good faith, in compliance with a notice under proposed section 88AA, from proceedings for contravening any other law (such as secrecy provisions in another law) and from civil action for damages because of that disclosure.

Proposed section 88AD- Retention and copying etc. of documents

4.15           Proposed section 88AD provides that the Secretary or assistant (as defined by proposed subsection (5)), may retain documents produced under proposed section 88AA for as long as necessary for the purpose of an investigation.

4.16           However, proposed subsections (2) and (3) provide that the person is entitled to a certified copy which must be received in all courts as if it were the original.  Proposed subsection (4) allows persons access to the original of a document provided to the Secretary or assistant where necessary.

Proposed section 88AE - Secretary or assistant may make and keep copies of documents

4.17           In addition to the making of certified copies under proposed section 88AD, the Secretary or assistant (as defined by proposed subsection (2)) may also make and keep copies of documents produced by persons under proposed section 88AA.

Proposed section 88AF - Protection of confidentiality of information

4.18           This proposed section deals with the obligations on a person (in this provision called an “entrusted person”) to protect the confidentiality of information obtained in the course of their official employment (as defined in proposed subsection (6)).

4.19           Proposed subsection (2) makes it an offence for an entrusted person to make a record of, or disclose, protected information.  The maximum penalty is imprisonment for 12 months.  See paragraph 4.9 for an explanation of how this penalty may be converted into a pecuniary penalty by operation of the Crimes Act.

4.20           Proposed subsection (3) sets out exceptions from the offence in proposed subsection (2) where the entrusted person is a designated official (as defined in proposed subsection (6)) at the time of the recording or disclosure.  The exceptions are that the recording or disclosure is:

·         for the purposes of this Act;

·         in the course of the performance of duties in the entrusted person’s official employment;

·         to assist in the enforcement in relevant law enforcement (as defined in proposed subsection (6)) and is made to a person appointed or employed by the Commonwealth, a State or Territory, or an authority of the Commonwealth, a State or Territory; or

·         in accordance with the regulations.

4.21           The exceptions in proposed subsection (3), allow for referral of information to other enforcement agencies for investigation.

4.22           Proposed subsection (4) sets out exceptions from the offence in proposed subsection (2) where the entrusted person is not a designated official (as defined in proposed subsection (6)) at the time of the recording or disclosure.  The exceptions are when the recording or disclosure is:

·         for the purposes of this Act;

·         in the course of the performance of duties in the entrusted person’s official employment, where the official employment relates to relevant law enforcement (as defined in proposed subsection (6)); or

·         in accordance with the regulations.

4.23           If a person seeks to rely on any of the exceptions under proposed subsections (3) and (4) for an alleged breach of proposed subsection (2), that person bears an evidential burden.  This reflects the Criminal Code .

4.24           Proposed subsection (5 ) provides that disclosure of personal information is take to be authorised by law for the purposes of the Privacy Act 1988 (ss.14(1)(d) - Information Privacy Principle 11) if the disclosure is made in accordance with proposed subsections (3) or (4).

4.25           Proposed subsection (6) sets out the definitions that apply under this proposed section.

Proposed section 88AG - Delegation by Secretary

4.26           Proposed section 88AG allows the Secretary to delegate all or any of his or her powers and functions under this proposed Part to the director of the Building Industry Taskforce.  In exercising delegated powers or functions the delegate must comply with any directions given by the Secretary (proposed subsection (2)).

4.27           The proposed section reflects that the powers inserted by this Schedule are intended to be used in relation to the building industry.  The directions issued by the Secretary when delegating powers would ensure that there is appropriate oversight of the use of the powers by the director of the Building Industry Taskforce.

Proposed section 88AH - Relationship with other provisions about authorised officers and inspectors

4.28           Under proposed section 88AH the powers in Division 2 of Part IVA of the WR Act relating to authorised officers, and the powers in Part V of the WR Act relating to inspectors are not affected by this proposed Part, nor is this proposed Part affected by those provisions. 

4.29           This includes authorised officers not being subject to compliance with directions of the Employment Advocate under subsection 83BG(2) of the WR Act when acting under this Part (proposed subsection (2)(a)).  Also, inspectors may act under this Part whether or not the relevant powers or functions are specified in their instruments of appointment (proposed subsection (2)(b)).

4.30           However, authorised inspectors are required to comply with identity card requirements in subsections 83BG(6) and 85(2) of the WR Act when acting under this Part.



SCHEDULE 5 - DISQUALIFICATION FROM OFFICE OF PERSON SERVING SUSPENDED SENTENCE

Part 1- Amendments

Workplace Relations Act 1996

Item 1 - Paragraph 213(c) of Schedule 1B

5.1                     This item proposes to repeal the existing paragraph 213(c) and substitute a new paragraph 213(c).

5.2                     The existing paragraph provides that a person is not convicted of a prescribed offence referred to in paragraph 212(d) unless the person has served, or is serving, a term of imprisonment in relation to the offence.

5.3                     New subsection 213(c) would replicate the above paragraph but also provide that a person is not convicted of a prescribed offence unless the person was sentenced to a term of imprisonment for the offence and the sentence is suspended for a period. 

Item 2 - After section 213 of Schedule 1B

5.4                     Proposed new section 213A defines exclusion period and reduced exclusion period for the purposes of the division.  An exclusion period is the period in which a person who has been convicted of a prescribed offence is disqualified from seeking or holding office in an organisation unless the Federal Court orders otherwise under sections 216 or 217.

5.5                     The exclusion period in relation to a person who has been convicted of a prescribed offence would mean a period of 5 years beginning on the latest of the following days:

·         the day on which the person was convicted of the prescribed offence;

·         if the person was sentenced to a term of imprisonment for the offence, the sentence was suspended for a period, and the person is not imprisoned for the offence during the period- the day immediately after the end of the period; or

·         if the person serves a term of imprisonment for the offence- the day on which the person is released from prison.

5.6                     The reduced exclusion period would mean a period specified by the Federal Court for the purposes of subparagraph 215(1)(a)(ii) under paragraph 216(2)(b) or 217(2)(b) which allow the Federal Court to specify an exclusion period of less than 5 years. 

Item 3 - At the end of section 214 of Schedule 1B

5.7                     This item would insert new subsection 214(4) into Schedule 1B. 

5.8                     Proposed subsection 214(4) would provide that a certificate signed by a specified person stating that the sentence of a person who was convicted of a specified offence is, for the purpose of an application made under section 215, 216 or 217, evidence that the sentence was suspended for that period.

5.9                     This provision would ensure that there is appropriate evidence of the fact that a suspended sentence has been imposed and when that suspended sentence did or will expire. 

Item 4 - Subparagraph 215(1)(a)(ii) of Schedule 1B

5.10                 This item would repeal subparagraph 215(1)(a)(ii) and substitute new paragraph 215(1)(a)(ii).

5.11                 The subparagraph concerns the situation where a person is refused leave to hold office for a period and that period has elapsed.

5.12                 Subsection 215(1)(a)(ii) is substituted to take account of the new definition of reduced exclusion period .  The substituted subparagraph 215(1)(a)(ii) would provide that where under paragraph 216(2)(b) or 217(2)(b), the Federal Court specified a reduced exclusion period , and that period has elapsed then a person may be eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation.

Item 5 - Paragraph 215(1)(b) of Schedule 1B

5.13                 This item would repeal the existing paragraph and replace it with a new paragraph that uses the definition of exclusion period .

5.14                 This amendment is consequential to the new references to exclusion period , as defined in proposed section 213A.

Item 6 - Subsection 216(1) of Schedule 1B

5.15                 This item would repeal subsection 216(1) and substitute new subsection 216(1).  The subsection relates to persons who have been convicted of a prescribed offence who want to make an application for leave to be a candidate to hold office, or to be appointed to hold office, in an organisation.

5.16                 The subsection is substituted to additionally provide that a person, who has within the immediately preceding 5 years completed a suspended sentence in relation to a conviction for a prescribed offence, may apply to the Federal Court for leave to be a candidate in an election or for leave to hold office.

Item 7 - Paragraph 216(2)(b) of Schedule 1B

5.17                 This item would repeal paragraph 216(2)(b) and substitute new paragraph 216(2)(b).

5.18                 The existing paragraph concerns when the Court refuses a person leave to hold office in an organisation but specifies a period of less than 5 years for which the person is disqualified from holding office.  The substituted paragraph would include an additional paragraph that the Court could order a reduced period beginning when a person convicted of a prescribed offence has received a suspended sentence for a period and that period has expired.

5.19                 This amendment is consequential to the amendment by Item 3 of when a person is convicted of a prescribed offence.

Item 8 - Paragraph 217(2)(b) of Schedule 1B

5.20                 This item would repeal paragraph 217(2)(b) and substitute new paragraph 217(2)(b).

5.21                 The paragraph provides that where an existing office holder, who is convicted of a prescribed offence, applies for leave to hold office and is refused the Court may specify that they are unable to hold office for a period of less than 5 years beginning on the latest of the days specified.

5.22                 The substituted paragraph provides for the additional case of a person who has received a suspended sentence.  In such a case the reduced period is to run from the day immediately after the end of the period of the suspended sentence.

Part 2 - Application, transitional and savings provisions

Item 9 - Application

5.23                 This item would make it clear that the provisions in Part 1 of proposed Schedule 5 apply to persons convicted of a prescribed offence, whether the person is convicted before or after the commencement of the Part. 

Item 10 - Transitional

5.24                 This item would provide for the transitional operation of the provisions in proposed Schedule 5.  The provisions are to apply where a person, convicted of a prescribed offence, is an office holder in an organisation at the time that Part 1 of proposed Schedule 5 commences and that person, before the commencement of Part 1 of proposed Schedule 5, received a suspended prison sentence. 

5.25                 It would provide that an existing office holder disqualified by the commencement of Part 1 of Proposed Schedule 5 will not cease to hold office until the end of 28 days after the amendments commence.  This transitional provision prevents a person from being immediately required to cease holding office if they were convicted of a prescribed offence, as amended, more than 28 days before the amendments commence. 

5.26                 Further, the proposed provisions provide that nothing done by the person before the commencement of that Part in fulfilment of that office is affected by the amendments made by that Part. 

5.27                 The item would provide that the person would be able, subject to subsection 217(4), to apply to the Federal Court under section 217 of Schedule 1B to the WR Act for leave to continue to hold office in the organisation within 28 days after the commencement of Part 1 of proposed Schedule 5. 

Item 11 - Savings - applications and orders under section 216 of Schedule 1B to the Principal Act

5.28                 This item would provide for the situation where a person makes an application to the Federal Court under section 216 of Schedule 1B to the WR Act prior to the commencement of Part 1 of this Schedule.  It provides that the application is to be dealt with as if Schedule 1B to the WR Act had not been amended by Part 1 of proposed Schedule 5. 

5.29                 It would provide that if the Federal Court makes an order before the commencement of Part 1 of proposed Schedule 5, or in reliance on Schedule 1B not having been amended, then that order has effect after the commencement of Part 1 of this Schedule as if Schedule 1B had not been amended by that Part.

Item 12 - Savings - applications and orders under section 217 of Schedule 1B to the Principal Act

5.30                 This item would provide for the situation where a person has made an application under section 217 of Schedule 1B, before the commencement of Part 1 of this Schedule.  It provides that application is to be dealt with as if Schedule 1B had not been amended by that Part.

5.31                 It would provide that if the Federal Court makes an order under section 217 before the commencement of Part 1 of this Schedule, or in reliance on Schedule 1B not having been amended at the time of application, then that order has effect after the commencement of Part 1 of proposed Schedule 5 as if Schedule 1B had not been amended by that Part.

Item 13 - Interpretation

5.32                 This item would provide that Schedule 1B to the Principal Act means Schedule 1B to the WR Act .