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Wednesday, 7 March 2001
Page: 22742

Senator HEFFERNAN (Parliamentary Secretary to Cabinet) (5:32 PM) —I table a revised explanatory memorandum relating to the Treasury Legislation Amendment (Application of Criminal Code) Bill 2001 and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—


The purpose of this bill is to make consequential amendments to certain offence provisions in legislation administered by the Treasurer to reflect the application of the Criminal Code Act 1995 to existing offence provisions from 15 December 2001.

The Treasury Legislation (Application of Criminal Code) Bill 2000 makes amendments to the Financial Sector Shareholdings Act 1998, Foreign Acquisitions and Takeovers Act 1975, Insurance Act 1973, Life Insurance Act 1995, Prices Surveillance Act 1983, Productivity Commission Act 1998, Retirement Savings Accounts Act 1997, Superannuation Industry (Supervision) Act 1993 and aspects of the Trade Practices Act 1974 which do not require consultation with the States.

In addition, the Bill makes a number of amendments to the Corporations Law made necessary by changes in the Corporate Law Economic Reform Program Act 1999.

Further bills will be introduced to make consequential amendments to taxation laws, the Corporations Law, the Australian Securities and Investments Commission Act 1989 and aspects of the Trade Practices Act 1974 which require consultation with the States.

This Bill provides for amendments which specify the physical elements of an offence and corresponding fault elements (where these fault elements vary from those specified by the Code) and specify whether an offence is one of strict or absolute liability. In the absence of such an amendment, offences previously interpreted as being one of strict or absolute liability would be interpreted as not being one of strict or absolute liability. In addition, any defences to an offence are being re-stated separately from the words of the offence. Use is being made of this opportunity to convert penalties expressed as dollar amounts to penalty units.

The Bill does not change the criminal law. Rather, it ensures that the current law is maintained following application of the Criminal Code Act to Commonwealth legislation.



I reintroduce the Workplace Relations Amendment (Unfair Dismissals) Bill 1998.

The Bill will amend the Workplace Relations Act 1996 to exclude new employees of small businesses (other than apprentices and trainees) from the federal unfair dismissal regime and to require a six month qualifying period of employment before new employees (other than apprentices and trainees) can access the federal unfair dismissal remedy.

This Bill is the same Bill that was introduced into the House of Representatives on 12 November 1998 and passed by the House of Representatives on 2 December 1998, but rejected by the Senate on 14 August 2000.

The Government is not reintroducing this Bill because it wants to have an election over it. The Government is reintroducing this Bill to implement its mandate and policy, and to unlock small business access to some 50,000 new jobs which could be created in the economy if this Bill was passed.

The proposed small business exemption has been the subject of an almost unprecedented degree of political obstructionism. In less than four years, it has been voted down in one form or another on eight occasions by the Labor Party and on five occasions by the Australian Democrats.

On each occasion these parties have done so, they widen the chasm between their rhetoric and practice when it comes to small business issues.

More importantly, on each occasion Labor and the Australian Democrats oppose this measure they leave more families coping with unemployment to continuing economic and social disadvantage. They vote against giving small business employers the confidence to take on unemployed Australians without the risk of being tied up for months in the unfair dismissal courts.

The Coalition's workplace relations policy at the October 1998 federal election, More Jobs Better Pay, committed the Coalition to the re-introduction of this measure as a priority on being re-elected, after it was three times rejected in the previous parliament. This we have done, only to still be blocked in implementing our mandate. Again today, we ask the parliament to let the government legislate to keep its promises.

The case for the passage of the bill is overwhelming. Whilst in our first term the government made major inroads into the reform of workplace relations, including improvements to the worst aspects of Labor's job-destroying unfair dismissal laws, it is widely recognised that ongoing labour market reform is required to drive unemployment down further.

That is an aspiration we as a government have. It should be shared by this parliament. To achieve that goal requires a willingness by this parliament to ease the burden of unfair dismissal laws on the employment generator of our economy - small business.

The government recognises that passage of this Bill now requires the Labor Party and the Australian Democrats to abandon the political obstructionism that has to date characterised their stance. They would be required to balance in a different way competing interests between the purpose of unfair dismissal laws and the negative impact these laws have on small businesses and the rights of unemployed Australians to access new jobs. If they did so, and allowed this Bill to pass, they might even be given credit within the broader community.

What is required is less political opportunism, and a more objective and commonsense analysis of the evidence in support of this Bill.

That evidence has been communicated to the Labor Party and the Australian Democrats in writing, orally, in public and in private. Last year a majority report of a Senate Committee recommended that the Bill be passed without amendment. Despite this, Labor and the Democrats still claim that there is no evidence linking the impact of unfair dismissal laws on hiring intentions by small business employers.

There is - as a majority of the Senate committee found. Ignoring the evidence and these findings is like burying one's head in the sand. Indeed, after months of complaining that no such evidence existed, the Labor Party even opposed the government bringing real small business employers before the Senate committee as part of its submission to give their evidence first hand. That suggests a closed mind intent on obstructionism, not a fair assessment of the policy balances which should be made by this parliament.

In fact, Labor's position has become more regressive as the months of obstructionism have passed. In August 2000 Labor adopted a national policy to expand rather than limit the adverse impact of unfair dismissal laws. Should Labor return to government they now have a policy to reintroduce the discredited unfair dismissal laws they first introduced in 1993, laws that cost thousands of jobs and even had Labor Premier Bob Carr repudiating Labor policy during the 1996 federal election campaign.

The measures in the Bill are balanced. They retain rights in respect to unlawful (such as discrimination based) dismissals for all employees (new and current), including those in small business. Further, given that the Bill applies only to new employees, it does not remove rights of existing employees in small business to access federal unfair dismissal laws should their employment be terminated.

It is an unavoidable fact that the defence of an unfair dismissal claim, however groundless, is especially burdensome for small businesses. In many larger businesses, more expertise and resources can be put into recruitment and termination procedures. Small businesses have no such resources. Even attendance of witnesses at a hearing can bring a small business to a standstill.

The Bill also proposes the introduction of a six month qualifying period. This provides a fairer balance between the rights of employers and employees. It will provide some relief for medium and larger businesses which may not benefit from the small business exemption. It will deter frivolous claims. This standardisation of a six month period will also remove the uncertainties that can affect businesses relying on probation periods introduced for specific employees. The six month period is reasonable for Australian employees and employers, and may be compared with qualifying periods in place in other countries; for example, the United Kingdom, which has a 12 month qualifying period. In 1994 Labor itself in government legislated (with Democrat support) a six month qualifying period for fixed term employees - a fact apparently lost on today's Senate.

I turn now to the terms of the Bill itself.

The exemptions are to commence on Royal Assent. However, the exemptions will not apply to existing employees. As it is intended to encourage new employment, the exclusion will only apply to employees who are first taken on by the relevant employer after the commencement of the amendments.

The exemptions are from the federal unfair dismissal provisions, only. Employees to whom the exemptions apply will still be protected by other provisions of the Workplace Relations Act in respect of termination of employment.

The exemptions do not apply to apprentices or trainees, whose position remains unaltered.

The small business exemption applies only to businesses employing 15 or fewer employees. This size of small business was chosen because of the precedent provided by the Employment Protection Act 1982 (NSW), introduced by the Wran Government, and followed by the then Australian Conciliation and Arbitration Commission in the 1984 Termination, Change and Redundancy Test Case.

The Bill provides that, in counting the number of employees in a business, casual employees are only to be counted if they have been engaged on a regular and systematic basis for at least 12 months. The intention of this exclusion is to reflect the fact that a business which occasionally engages additional casual employees is not necessarily a large business.

The qualifying period of six months will need to be continuous employment. The regulations will be able to prescribe circumstances to be disregarded in determining whether employment is continuous or not, much as is presently done in calculating length of service for the purposes of the entitlement to pay in lieu of notice.



The purpose of this Bill is to correct an administrative oversight, which resulted in Sydney (Kingsford-Smith) Airport not being declared as a `leviable' airport after 30 June 1996.

The parent legislation, the Aircraft Noise Levy Collection Act 1995 (the Collection Act) and the Aircraft Noise Levy Act 1995, establish a regime by which an aircraft noise levy can be imposed and collected at certain airports.

The funds that are raised through the levy are used to recover the costs incurred in providing an airport noise amelioration programme. In the case of Sydney, the levy raises around $38-40 million per annum and as at 31January 2001 had raised a total of $197million. Meanwhile, expenditure on the programme to 31January 2001 was $347million. This has enabled over 3300 homes and over 80 public buildings to be noise insulated.

Depending on future expenditure and recovery levels, it can be expected that the levy will need to continue for another five years.

The declaration of an airport as leviable, under Section 7 of the Collection Act, is the trigger, which enables the levy to be collected. In 1995, Sydney Airport was declared as leviable for the nine months to 30 June 1996. However, there was no subsequent declaration. This was due to an administrative oversight within the Treasury which failed to have the responsible Minister declare Sydney Airport from 1 July 1996.

This Bill will correct the oversight by deeming a declaration to have been in place from 1 July 1996. In order to validate prospective collections, the Assistant Treasurer on 21 February gazetted Sydney as a leviable airport up to and including 30 June 2006.

The amendment will not involve any departure from the purpose of the legislation and imposes no additional burden on airline operators or other businesses.

I commend the Bill to the Senate.

Debate (on motion by Senator O'Brien) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.