The PRESIDENT (09:31): I remind senators that the question may be put on any proposal at the request of any senator. There being none, I call Senator Cormann.

The PRESIDENT (10:19): I ask senators to remain in the chamber, because I imagine there will be one more division. The debate was closed by the minister last night. I now put the question that the bill be read a second time.

Senator FARRELL (South Australia) (10:27): The opposition makes it very clear that it's totally opposed to this legislation. The fact that we're in the committee stage and are dealing with amendments, particularly amendments by the government, is a pretty good indication that there's something crook about this bill. The government will be moving amendments. While they will improve the bill—it won't be as bad as it was going to be—the fact of the matter is—

Senator Pratt: Doesn't make it right!

Senator FARRELL: I take that interjection from Senator Pratt. The fact of the matter is that a bad bill can't be made better with these amendments. This legislation is designed to deal with integrity. It is trying to improve integrity in one section of the community. But what do we know about the integrity of this government, the government that's proposing this legislation? The fact of the matter is that a government with no integrity can't seriously introduce a piece of legislation to improve integrity in the body politic of Australia. Obviously, we have a government that is well past its use-by date—it's getting up to seven years. The reality is that each day that goes by in this parliament we see another example of a government that has no interest in integrity. If it did, then when the first issues regarding Minister Taylor arose—where either he, his office or somebody else sent to a New South Wales newspaper a letter clearly detailing false and misleading allegations—Minister Taylor would have immediately resigned. That is what would have happened if the minister had had some integrity. But, even if he wasn't prepared to do that, if we had a Prime Minister who had some integrity, then that Prime Minister would have called upon the minister to immediately tender his resignation or, at worst, step aside while those issues were being dealt with. But what do we see? Further indications that this government is not a government of integrity. Therefore, if it has no integrity, how can it introduce a bill into this parliament that seeks to impose so-called integrity measures on other parts of the community?

There is a police investigation into Minister Taylor about his behaviour regarding this document. Forget about the source of the complaint; the reality is that we now have a senior minister of the Crown being investigated by the New South Wales Police Force. When that became clear, that would have been the first opportunity, of course, for Minister Taylor to stand aside or resign. I would have thought resignation was appropriate in these circumstances, but he could have stood aside. That would be the integrity thing for this government to do. But what's happened? The minister has stayed in his place—no suggestion, whatsoever, that he's going to move. So, what is the integrity thing to do for a government? The Prime Minister should have gone and had a quiet little conversation with Mr Taylor and said, 'Look, you're now under a police investigation. Serious issues have been raised.' Bear in mind that these are on top of all the other allegations that have been raised about this particular minister over the last six months. This is not a first offence, let's be clear. There are a whole series of allegations about this particular minister and about conflict of interest. So he's not coming to this debate as a cleanskin. The integrity thing to do would be for the Prime Minister to get up and say, 'Okay, you've got this investigation happening. Either resign or stand aside while we get the results of the investigation.' That would have been the correct thing to do.

What does this Prime Minister do in these circumstances? Does he call upon the minister to resign? No. He rings his good mate, his next-door neighbour—I forget who took whose rubbish bins out, whether it was the Prime Minister taking the police commissioner's rubbish bins out or the police commissioner taking the Prime Minister's rubbish bins out, but either way it was completely inappropriate for a prime minister to ring a chief of police about investigations into one of his ministers. Firstly, the Prime Minister should have been the one making the call about Minister Taylor. He should have been the one saying, 'Look, this is inappropriate.' He's done nothing in those circumstances. What a complete breach of propriety for the Prime Minister to seek to put pressure on by ringing the police commissioner in New South Wales. That's a completely inappropriate thing for the government to do.

We talk about integrity. The government are saying they want to improve integrity in the body politic of Australia—they're particularly focused on unions—but how do they have any credibility when all of these things are happening within their government on issues specifically in respect of integrity, yet they do nothing about it? How can the Australian community take the government seriously? When they refuse to take integrity measures in respect of their own government, how can anybody believe that they'll be serious about integrity measures within trade unions and within the Australian working community?

Of course, the fact of the matter is that they're not serious about this. They are simply not serious about this legislation. What they are after is not improving integrity; what they are after is a reintroduction of Work Choices. Former Prime Minister Tony Abbott made it very clear what the Liberal Party position was on Work Choices. He said it was 'dead, buried and cremated' and he went to an election with that very promise—he promised the Australian workforce that the Liberal Party had learnt its lesson from the 2007 election. In fairness to Prime Minister Abbott, he did oppose Work Choices in the Howard government. I think he was the only minister who opposed it. So, I think that, when he had the opportunity to kill, bury and cremate Work Choices, that is what he genuinely wanted to do, and he took it to the Australian people. But Work Choices is now roaring back. It's like a zombie. It should have been cremated, but, zombie-like, it has come back. It has been brought back, on this day, in order to reintroduce all of those things that sought to weaken unions but, more importantly, deny ordinary working Australians the opportunity of improving their wages and conditions.

What do we know about Australian industry? I know that you, Temporary Chair Griff, have a background in retail. You've seen all of the figures that have been coming out about retail sales. Retail sales in this country have flatlined. That's always a pretty good barometer of what's happening in the community. Why are retail sales flatlining in this country, Temporary Chair? You know the answer: people have no extra spending money to go into the shops and buy things. Wages, under this government, have stagnated in this country. And there are no signs anywhere that that's about to change.

How do I know that? Well, when the Reserve Bank starts dropping interest rates, what do you know? You know that the economy is in big trouble. What is the Reserve Bank saying at the moment? It hasn't stopped cutting interest rates. It's got another two in its arsenal. It says it's not going to go below 0.25, but it's got another two. That's a sign that this Australian economy is in heaps of trouble. It's in deep trouble.

So, at a time like this, a good and sensible government would be doing a couple of things. It would start trying to ramp up the economy—start trying to get the economy moving again. But also it would be supporting workers to get wage rises. That's what they'd be doing. They be out there doing every single thing they could to ensure that workers were able to go out and bargain with their employers or apply to awards to get increases, so that ordinary working people in this country could, for the first time under this government, start getting decent wage rises. But no! What is this government seeking to do? By virtue of this piece of legislation, what this government is seeking to do is to ensure that the very organisations to whom we give the job of getting wage rises in this country are going to be bogged down in paperwork. And, if that paperwork turns out to be a bit tardy or a bit mistaken, those unions are going to lose their registration. That's a preposterous thing to do in circumstances where the economy is travelling so badly. The government should be doing exactly the opposite of what this legislation is proposing to do. The government should be getting out there and saying to unions: 'Go as hard as you can, because we want to start stimulating this economy. We want to get more people employed.'

That's the other thing I didn't talk about: what's happening with unemployment. I know that you, Temporary Chair Griff, know this is true because of what is happening in your own state of South Australia. Unemployment is rising. So, wages are stagnating, retail sales figures are flatlining and, of course, unemployment is going up. All of the things that this government ought to be doing right now to get the economy moving will be set back and made more difficult if this legislation passes, because, if unions are tied up doing paperwork or tied up in the courts by virtue of all of the new powers that employers will have to stop them doing their job, then the reality is that wages won't just stagnate like they're doing at the moment; they'll simply go backwards, unemployment will continue to rise and the economy will spiral down and down.

I say to the crossbench, and I can't see too many of them—yes, of course, you, Mr Temporary Chair; I've spotted you—rethink what it is you're doing here. If the government has to introduce all of these amendments to their own legislation, that's a pretty good clue that there's something really wrong with the legislation in the first place. While they might ameliorate some of the absolutely worst aspects of the legislation, they don't solve the problem. This bill certainly doesn't restore integrity to unions or to workers who rely on those unions; it simply ties these people up in a whole lot of paperwork, litigation and conflict when they should be doing the very thing that this economy absolutely needs right at the moment—that is, stimulating wage growth, getting the economy moving again and ensuring that unemployment starts going down rather than going up. I see you nodding quite a bit there, Temporary Chair. I hope that's an indication that you're agreeing with everything I'm saying, because we need to ensure, when this bill is voted on sometime after 4.30 this afternoon, that exactly what Tony Abbott said should happen to Work Choices happens here too: this bill should be 'dead, buried and cremated'.

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (10:42): by leave—I move government amendments (1) to (48) on sheet RC114 together:

(1) Schedule 1, item 8, page 5 (line 23), omit ", or another country,".

(2) Schedule 1, item 11, page 6 (lines 10 and 11), omit ", the Minister or another person with a sufficient interest".

(3) Schedule 1, item 11, page 6 (lines 15 to 20), omit subsection 222(1), substitute:

(1) The Commissioner may apply to the Federal Court for an order under this section if the Commissioner considers that any of the grounds for disqualification set out in section 223 apply in relation to a person.

Note: A person who reasonably believes that a ground applies may refer the matter to the Commissioner (see section 223A), but the Commissioner does not need a referral to make an application under this section.

(4) Schedule 1, item 11, page 6 (line 23), omit "the Court".

(5) Schedule 1, item 11, page 6 (line 24), before "is satisfied", insert "the Court".

(6) Schedule 1, item 11, page 6 (line 26), omit "does not consider that it would be unjust", substitute "the Commissioner satisfies the Court that it would not be unjust".

(7) Schedule 1, item 11, page 6 (after line 31), after subsection 222(2), insert:

(2A) The Court must not make the order unless it is satisfied that, having regard to the gravity of the matters constituting the ground, disqualification would not be unjust.

(8) Schedule 1, item 11, page 7 (line 4), omit subsection 222(4).

(9) Schedule 1, item 11, page 7 (lines 6 to 10), omit subsection 223(1), substitute:

Designated finding or contempt in relation to designated law

(1) A ground for disqualification applies in relation to a person if:

(a) a designated finding within the meaning of paragraph 9C(1) (a) (criminal) is made against the person (other than a designated finding that relates to an offence covered by subsection (4)); or

(b) both:

   (i) one or more designated findings within the meaning of paragraph 9C(1) (b) (civil) have been made against the person within the last 10 years (other than a designated finding that relates to a contravention covered by subsection (4)); and

   (ii) the maximum penalty, or combined total of the maximum penalties, for the contravention or contraventions to which the designated finding or findings relate is, or is equivalent to, at least 180 penalty units (see section 4AA of the Crimes Act 1914 for the value of a penalty unit); or

(c) the person is found to be in contempt of court in relation to an order or injunction made under a designated law.

(10) Schedule 1, item 11, page 7 (lines 20 to 30), omit subsection 223(3), substitute:

Multiple failures to prevent contraventions etc. by organisation

(3) A ground for disqualification applies in relation to a person if:

(a) more than one of the following is made against any organisation in relation to conduct engaged in while the person is an officer of the organisation:

   (i) a designated finding within the meaning of paragraph 9C(1) (a) (criminal);

   (ii) a designated finding within the meaning of paragraph 9C(1) (b) (civil);

   (iii) a finding that the organisation is in contempt of court in relation to an order or injunction made under a designated law; and

(b) at least one of them is covered by subparagraph (a) (i) or (iii); and

(c) the person failed to take reasonable steps to prevent the conduct.

(11) Schedule 1, item 11, page 7 (after line 30), after subsection 223(3), insert:

(3A) A ground for disqualification applies in relation to a person if:

(a) 2 or more designated findings within the meaning of paragraph 9C(1) (b) (civil) have been made against any organisation within the last 10 years in relation to conduct engaged in while the person is an officer of the organisation; and

(b) the combined total of the maximum penalties for the contraventions to which the designated findings relate is, or is equivalent to, at least 900 penalty units (see section 4AA of the Crimes Act 1914 for the value of a penalty unit); and

(c) the person failed to take reasonable steps to prevent the conduct.

(12) Schedule 1, item 11, page 8 (line 1), omit the heading to subsection 223(4), substitute:

Breach of directors ' and officers ' duties

(13) Schedule 1, item 11, page 8 (before line 3), before paragraph 223(4) (a), insert:

(aa) a designated finding is made against the person and it relates to an offence against, or a contravention of, a provision of Division 2 of Part 2 of Chapter 9 (general duties in relation to the financial management of organisations); or

(14) Schedule 1, item 11, page 9 (after line 5), at the end of Division 3, add:

223A Referral to Commissioner

(1) If a person (the referrer) reasonably believes that a ground set out in section 223 applies in relation to a person, the referrer may refer the matter to the Commissioner.

(2) The referral must:

(a) be in writing; and

(b) identify and provide contact details for the referrer; and

(c) set out the basis for the reasonable belief mentioned in subsection (1).

(3) The Commissioner may, but is not required to, take action in relation to the referral.

Note: If the Commissioner considers that a ground set out in section 223 applies in relation to a person, the Commissioner may apply for an order under section 222 (disqualification orders).

(15) Schedule 1, item 14, page 11 (lines 11 and 12), omit ", Minister, or a person with a sufficient interest".

(16) Schedule 1, item 17, page 12 (line 8), omit "223(1) (b)", substitute "223(1) (c)".

(17) Schedule 1, item 17, page 12 (line 14), omit "223(3) (a) (ii)", substitute "223(3) (a) (iii)".

(18) Schedule 1, item 17, page 12 (after line 17), after paragraph 17(2) (b), insert:

(ba) for the ground mentioned in subsection 223(3A):

   (i) a designated finding made in relation to conduct engaged in after commencement; and

   (ii) a failure, after commencement, to take steps as mentioned in the subsection;

(19) Schedule 2, item 4, page 15 (line 7), omit "An applicant", substitute "The Commissioner".

(20) Schedule 2, item 4, page 15 (line 8), omit "an applicant", substitute "the Commissioner".

(21) Schedule 2, item 4, page 15 (lines 11 to 13), omit "only if the organisation satisfies the Court that cancellation would be unjust", substitute "if the Commissioner fails to satisfy the Court that cancellation would not be unjust".

(22) Schedule 2, item 4, page 15 (line 23) to page 16 (line 14), omit sections 28 to 28B, substitute:

28 Application for cancellation of registration

The Commissioner may apply to the Federal Court for an order cancelling the registration of an organisation, if the Commissioner considers that any one or more of the grounds in Division 3 exist in relation to the organisation.

Note: A person who reasonably believes that a ground exists may refer the matter to the Commissioner (see section 28HA), but the Commissioner does not need a referral to make an application under this section.

28A Application for alternative orders

The Commissioner may apply to the Federal Court for any one or more of the orders under Division 5 in relation to an organisation, if the Commissioner considers that any one or more of the grounds in Division 3 exist in relation to the organisation.

Note: A person who reasonably believes that a ground exists may refer the matter to the Commissioner (see section 28HA), but the Commissioner does not need a referral to make an application under this section.

28B Multiple applications

(1) Nothing in this Part prevents the Commissioner applying under section 28 for cancellation of registration and under section 28A for alternative orders in relation to the same organisation.

(2) If the Commissioner does so, the Court must deal with the applications together.

(23) Schedule 2, item 4, page 16 (lines 24 to 30), omit paragraph 28C(1) (b), substitute:

(b) affairs of the organisation or a part of the organisation have been or are being conducted in a manner that is contrary to the interests of the members of the organisation or part as a whole; or

(24) Schedule 2, item 4, page 17 (line 30), after "units", insert "(see section 4AA of the Crimes Act 1914 for the value of a penalty unit)".

(25) Schedule 2, item 4, page 19 (after line 28), at the end of Division 3, add:

28HA Referral to Commissioner

(1) If a person reasonably believes that a ground in this Division exists in relation to an organisation, the person may refer the matter to the Commissioner.

(2) The referral must:

(a) be in writing; and

(b) identify and provide contact details for the person making the referral; and

(c) set out the basis for the reasonable belief mentioned in subsection (1).

(3) The Commissioner may, but is not required to, take action in relation to the referral.

Note: If the Commissioner considers that a ground in this Division exists in relation to an organisation, the Commissioner may apply for orders under either or both Divisions 4 and 5 (cancellation of registration and alternative orders) in relation to the organisation.

(26) Schedule 2, item 4, page 20 (line 5), omit "must", substitute "may".

(27) Schedule 2, item 4, page 20 (lines 9 and 10), omit "organisation does not satisfy the Court that it would be unjust to cancel its", substitute "Commissioner satisfies the Court that it would not be unjust to cancel the organisation's".

(28) Schedule 2, item 4, page 20 (lines 18 and 19), omit "organisation satisfies the Court that it would be unjust to cancel its", substitute "Commissioner fails to satisfy the Court that it would not be unjust to cancel the organisation's".

(29) Schedule 2, item 4, page 20 (after line 22), after subsection 28J(1), insert:

(1A) The Court must not cancel an organisation's registration unless it is satisfied that, having regard to the gravity of the matters constituting the ground, cancellation would not be unjust.

(30) Schedule 2, item 4, page 21 (lines 11 and 12), omit "organisation satisfies the Court that it would be unjust", substitute "Commissioner fails to satisfy the Court that it would not be unjust".

(31) Schedule 2, item 4, page 21 (after line 12), after subsection 28L(1), insert:

(1A) The Court must not make an order under this Division unless it is satisfied that, having regard to the gravity of the matters constituting the ground, the order would not be unjust.

(32) Schedule 2, item 4, page 22 (line 9), omit subsection 28M(3).

(33) Schedule 2, item 9, page 24 (lines 24 to 26), omit paragraphs 343(2) (a) to (c).

(34) Schedule 4, item 2, page 34 (lines 19 to 22), omit the paragraph beginning "Before an amalgamation can take effect", substitute:

Before an amalgamation can take effect, the FWC must decide whether the amalgamation should be subject to a public interest test. The amalgamation does not take effect if the FWC decides that the public interest test is to apply to the amalgamation and that the amalgamation fails that test.

(35) Schedule 4, item 6, page 35 (lines 13 to 15), omit subsection 67(4), substitute:

(4) Subsection (2) does not authorise the FWC to dispense with deciding under subsection 72A(1):

(a) whether the test in paragraph 72A(1) (b) (the public interest test) is to apply to a proposed amalgamation; or

(b) if the public interest test is to apply to the proposed amalgamation—whether the amalgamation is in the public interest.

(36) Schedule 4, item 7, page 35 (lines 19 to 27), omit section 72A, substitute:

72A Decision whether the public interest test is to apply to the proposed amalgamation and, if so, whether the amalgamation passes that test

(1) Before fixing an amalgamation day under section 73 for a proposed amalgamation, the FWC must:

(a) decide whether the test in paragraph (b) (the public interest test) is to apply to the amalgamation; and

(b) if the public interest test is to apply to the amalgamation—decide whether the amalgamation is in the public interest.

Note 1: The FWC must have regard to the matters in section 72D in deciding whether the amalgamation passes the public interest test.

Note 2: An amalgamation does not take effect if the FWC decides that the public interest test is to apply to the amalgamation and that the amalgamation fails that test (see section 72F).

(2) The FWC must, and may only, decide under paragraph (1) (a) that the public interest test is to apply to the amalgamation if there is information before the FWC that at least 20 compliance record events have occurred for at least one of the existing organisations concerned in the amalgamation within the 10 year period ending on the day the application, or the most recent application, under section 44 is lodged in relation to the amalgamation.

Note: The FWC has ways of informing itself about whether events have occurred (see section 590 of the Fair Work Act).

(3) The FWC may make decisions under subsection (1) at any time after an application under section 44 is lodged with the FWC in relation to the amalgamation.

72AA Writing and publication requirements for these FWC decisions

(1) The FWC's decisions under subsection 72A(1) must be in writing.

(2) The FWC must give written reasons for any decision it makes under that subsection.

(3) Such a decision, and the reasons for it, must be expressed in plain English and be easy to understand in structure and content.

(4) The FWC must publish such a decision, and the reasons for it, on its website or by any other means that the FWC considers appropriate. The FWC must do so as soon as practicable after making the decision.

(5) Subsections (1) and (4) do not limit the FWC's power to put decisions in writing or publish decisions.

(37) Schedule 4, item 7, page 35 (line 29), omit "(1) The FWC must", substitute "If the public interest test in paragraph 72A(1) (b) is to apply to a proposed amalgamation, the FWC must".

(38) Schedule 4, item 7, page 36 (lines 1 to 3), omit paragraph 72B(1) (a), substitute:

(a) fix a time and place for hearing submissions in relation to:

   (i) the matters mentioned in subsection 72D(1) (record of compliance with the law); and

   (ii) whether the amalgamation is otherwise in the public interest; and

(39) Schedule 4, item 7, page 36 (lines 9 to 18), omit subsection 72B(2).

(40) Schedule 4, item 7, page 37 (lines 3 to 10), omit subsection 72C(2), substitute:

(2) The FWC must have regard to any submissions made.

(41) Schedule 4, item 7, page 37 (line 13), after "deciding", insert "under paragraph 72A(1) (b)".

(42) Schedule 4, item 7, page 37 (line 16), omit "and age", substitute ", age and gravity".

(43) Schedule 4, item 7, page 37 (line 19), omit "section 72A", substitute "paragraph 72A(1) (b)".

(44) Schedule 4, item 7, page 37 (line 23), after "deciding", insert "under paragraph 72A(1) (b)".

(45) Schedule 4, item 7, page 38 (line 30), omit "section 72A", substitute "paragraph 72A(1) (b)".

(46) Schedule 4, item 7, page 39 (line 2), omit "section 72A", substitute "paragraph 72A(1) (b)".

(47) Schedule 4, item 9, page 39 (lines 11 and 12), omit "the FWC has decided under section 72A that the amalgamation is in the public interest", substitute "after concluding its decisions under section 72A the FWC is not prevented by subsection 72F(1) from fixing an amalgamation day for the amalgamation,".

(48) Page 42 (after line 22), at the end of the Bill, add:

Schedule 6—Functions of the Commissioner

Fair Work (Registered Organisations) Act 2009

1 Section 329AB

Before "The Commissioner", insert "(1)".

2 At the end of section 329AB

Add:

(2) In carrying out the Commissioner's function of promoting efficient management of organisations and high standards of accountability of organisations and their office holders to their members, the Commissioner must give priority to matters that raise serious or systemic concerns.

The government is moving a number of amendments to the bill, to respond to responsible and constructive suggestions from senators and from stakeholders, aimed at ensuring the bill targets only sufficiently serious misconduct engaged in by registered organisations and their officials. Specifically, the amendments will:

limit standing to apply to the Federal Court for an order seeking disqualification from office, cancellation of registration or the making of an alternative order to the Registered Organisations Commission only, and allow for a person who reasonably believes a ground applies to refer the matter to the commissioner;

provide that the sum of the maximum penalties for designated findings must be above a certain threshold and within a certain time frame before certain grounds for disqualification can apply;

clarify that, before the court can make a disqualification, cancellation or alternative order, it is the commissioner who must satisfy the court that disqualification, cancellation of registration or the making of an alternative order would not be unjust, including by reference to the gravity of the matters constituting the ground;

clarify that the court may, but is not required to, make disqualification, cancellation or alternative orders when satisfied of the relevant statutory criteria;

remove, as a ground for cancellation of registration and alternative orders, affairs of the organisation or party being conducted in an oppressive, unfairly prejudicial or unfairly discriminatory manner against a member or class of members;

remove an offence under a law from other country, punishable on conviction by imprisonment for life or a period or five years or more, as a proscribed offence for the purposes of the automatic disqualification regime;

better target the public interest test for proposed amalgamations of registered organisations by allowing the Fair Work Commission to decide as a threshold matter whether the public interest test is required based on the compliance history of the relevant organisations; and

finally, provide that, in carrying out his or her statutory function of promoting efficient management of organisations and high standards of accountability of organisations, which includes taking the new disciplinary action available under the bill, the commissioner must prioritise matters that raise serious or systemic concerns. As I have said, the government's moving of these amendments is about responding to sensible, constructive suggestions from those senators who have taken the time to consider the legislation on its merits and who have engaged with their own stakeholders and constituents on it, and it is also about taking reasonable and constructive suggestions from stakeholders within the industrial relations committee to ensure that the bill is targeted to that sufficiently serious misconduct engaged in by registered organisations and their officials.

That contrasts dramatically with the approach of those opposite, which is to pretend that there is nothing to see here, that there is nothing wrong with the system, that it requires no adjustment or amendment. Apparently we should not require registered organisations to operate within the law and be responsive to the law in a rule-of-law nation. This government does not agree with that view, so I have moved those amendments, and I table a supplementary explanatory memorandum relating to the government amendments to be moved to the bill.

Senator SHELDON (New South Wales) (10:45): Isn't it interesting that yesterday we heard this whole Trumpism of fake news. Somehow there was a mandate to turn around and make these sorts of changes to the representation of working people in this country—to rip out their rights to democratically decide about unions amalgamating; to take away their democratic right to say who their leadership is; to turn around and put substantial resources, in case after case that will result from this point system that is being proposed, into defending what obviously, even to some courts, will be defendable cases. But those substantial resources will be taken away from the fight against wage theft.

Six billion dollars were stolen in the construction industry. We have a government who has not acted on the task force about the exploitation of migrant workers. We see today that, in the last three years, temporary workers in this country have risen from 1.8 million to 2.2 million—where people have been grossly exploited. In all the studies carried out, average incomes are well below the minimum wage. And yet the government turns around and says that the people who can hold all that to account have to be tied up in defending what are defendable cases, 'Don't worry; the court will make a decision about what is in the public interest!'

This is directed at the minister. When I give these examples, I want to hear from the minister whether these are legitimate, defendable cases and why are unions going to be paying for legitimate, defendable cases? The following examples are on industrial action, taking in regard the issue of public safety. As is often the case, working Australians in democratically elected unions use industrial action to draw the public's attention to issues of safety in workplaces that affect not only members but also the public at large. These sorts of actions are deemed illegal and unprotected by the Fair Work Act. They are!

Now, under the government's amendments to the ensuring integrity bill, unions and their officials would be punished twice: first, with fines that already exist and, second, with a punitive demerit system resulting in the disqualification of officials and deregistration of whole unions. These punitive fines would soak up members' money and divert resources from the core business of unions, which is representing members and lifting the boat for all Australians on income. If a union accrues more than 900 demerit points in a 10-year period, it will allow applications to be made for a union official's disqualification or the union's deregistration. These amendments are at odds with the core business of unions fighting for and delivering the rights and conditions of everyday working Australians.

Firstly, I draw the minister's attention to the armoured car industry, in which workers are regularly faced with the threat of violence, robbery and, in some instances, injury or death. The Senate Education and Employment Committee inquiry into the ensuring integrity bill heard firsthand from Charles McKay, a 25-year veteran and worker for Armaguard. He testified about a string of attacks and assaults on armoured car workers between 1994 and 1995 and in the early 2000s. In the instance that a worker had been assaulted or murdered, and as was the case at Armaguard if workers were devastated and scared for their lives, they decided to take unprotected industrial action to raise the issue of public safety with the company, outside of the bargaining process. Under this bill it would be deemed illegal and a breach of the Fair Work Act. The Armaguard industrial actions led to the Peterson inquiry in New South Wales in February 1997. The recommendations that flowed from this inquiry led to a number of safety measures being implemented for saving lives in the armoured car industry to this day.

The second example is that of public safety in hospitals in my home state of New South Wales. Our hospitals have some of the highest rates of assault, with 465 incidents in the last year alone. There are thousands of health workers in New South Wales and hundreds of thousands across Australia, who deserve to go to work without the fear of injury or assault. The work that they do is paramount to the health and wellbeing of all citizens, including in my home state of New South Wales. We know that assaults in our hospitals can be prevented, or the risk substantially reduced, by properly resourcing hospitals with the staff and support necessary to provide security. Health workers know that this is a problem. Your Health Services Union has been raising it with the state government, but those pleas have fallen on deaf ears.

If workers are fed up with government inaction and are scared to go to work, in case of injury and assault, including knifings, bashings, attacks with syringes and the ongoing threat of violence, if they take industrial action, that would presently be deemed as a breach of the act and would result in the collection of demerit points by the union. This is an example where the very action of this Senate, in passing a motion on 31 July this year, would be made redundant. It was where the Senate supported those very same actions. This leads to a situation where unions can be deregistered for taking what is a public interest test. They not only can be deregistered but ultimately can turn around and be held to a situation where they have to spend substantial sums of money diverted from appropriate causes in representing Australian workers' security.

Another example is the bus industry, where there has been a great deal of evidence, over many, many years, of threats of violence and assault in bus drivers' day-to-day work. A horrible situation and example was with Manmeet Alisher, a Brisbane bus driver who was killed by a homemade bomb thrown into his bus. Workers took various kinds of industrial action following that. In the same situation, bus drivers in New South Wales, particularly in my home city of Sydney, and also in Newcastle and Wollongong, have put bans on various bus routes. All of those are breaches of the Industrial Relations Act. In the cases of the bus industry and the armoured car industry I was very proud to support those workers and also very determined to make sure that I supported those workers when they decided to take that action. I encouraged others to take that action. In those circumstances I would at that time have been accountable for that illegal industrial action.

In actual fact, a number of undertakings were given in the Supreme Court regarding the armoured car disputes. In the case of the armoured car area, there was a particularly horrendous hold-up at Padstow RSL. The company at the time, Chubb, was providing services to Padstow RSL. There were four known gangs operating in the Sydney area, and one of those gangs was believed to be particularly domiciled in that area, as there had been a series of other attacks. Chubb tried to change its delivery standards on the basis of trying to win bank contracts and then trying to win club contracts to move large sums of cash from poker machines. Rather than using an armoured vehicle with a three-person crew and two escorts, with two people in each escort, for Padstow RSL in particular, because it was a high-risk position, the company decided to subcontract that work to a soft-skin operator—that was a person in a 10-year-old sedan who had been in the country, unfortunately for him, for only six months. The crim walked up to the side of the vehicle and blew his head off.

My union and I had given undertakings to the Supreme Court that we would not take further industrial action because the banks were turning around and suing us. As a result of talking to delegates following the assault, the following day delegates said that we had to have a meeting of all workers—firstly, as a result of that fatality and, secondly, how could we wait for WorkCover to make some decision over some months and various court hearings over a period of years to decide whether that is a risk to the safety of all in the armoured car, soft-skin or cash-in-transit industry. Those workers went on strike regardless of the Supreme Court undertaking and they went on strike regardless of it being a breach of what is now the Fair Work Act. Under the system that's being proposed, not only would they be fined but they would receive demerit points and would have their organisation deregistered, and I would hazard a guess that their own official would have their right of registration withdrawn as well.

I put the question directly to the minister: could these kinds of unprotected industrial actions, when successfully prosecuted, lead to the deregistration and/or the possible disqualification of a union official?

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (10:56): I thank Senator Sheldon for his contribution, which, as I understand it, broadly relates to the obstructive industrial action ground. The ground that is set out in section 28G of the bill is not a new one. It's an existing ground in the legislation, and it was included by those opposite in their Fair Work (Registered Organisations) Act 2009. But, to be clear, the bill doesn't affect in any way the ability for registered organisations to organise and for employees to take protected—that is, lawful—industrial action. It also doesn't change the longstanding industrial relation rules under the Fair Work Act.

If the question is around employees instituting a work ban because of safety concerns and whether that is grounds for cancellation, I'm advised that it's not likely that the bill would apply to this scenario because the action by the employee in participating in a work ban would not be industrial action if it's based on a reasonable concern about an imminent risk to their health or safety and the employee does not unreasonably fail to comply with the direction of their employer to perform other available work that is safe and appropriate for the employee to perform, which goes to subsection 19(2)(c) of the Fair Work Act.

If, on the other hand, the work ban, as such, is industrial action, the bill wouldn't apply if that ban is lawful—that is, protected industrial action. So, unions that organise and workers that take lawful industrial action are not impacted by this bill because, to be clear, the bill doesn't change the long-established industrial action rules under the Fair Work Act. In addition, the ground in section 28G of the bill only captures obstructive industrial action, and that is industrial action that prevents, hinders or interferes with the activities of a federal system employer, the provision of any public service by the Commonwealth, state or territory or authority thereof, or has had or is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or part of the community. So, the ground in section 28G of the bill is not new; it is an existing ground in the legislation. It was included by those opposite in their Fair Work (Registered Organisations) Act 2009. I refer to subsections 28(1)(b) and (c). There may be an assertion otherwise, but the fact is that, with the additional safeguards being introduced in this bill—the amendments that we've moved—there will actually be a higher threshold for the court to make an order than is currently the case under the existing registered organisations act.

Further to that, if I may, just on the specific example around armoured guards, we have said in relation to any number of health and public welfare concerns that the bill won't impact a person's right to stop work if it's based on a reasonable concern about an imminent risk to their health or safety. And, as I said in my previous remarks, the bill doesn't apply to lawful protected industrial action. So, unions that organise and employees that take protected work stoppages are not impacted by the bill in that context. To be very clear: even in the case of unlawful industrial action, the action has to be obstructive for it to be a ground for deregistration under the bill. That is a significant threshold, and unlawful action without those necessary features will not give rise to a ground for deregistration under the bill. In the case of the matter that Senator Sheldon has raised, as I understand it, particularly relating to the Armaguard examples, I'm advised that there are no publicly available records to suggest that any order was made in relation to this instance of industrial action, so the ground for cancellation could never apply in that context.

Senator SHELDON (New South Wales) (11:00): Minister, even if I took the genuineness of your answer at face value, frankly your advice is fundamentally inaccurate because, in the case of the armoured car industry, workers there refuse to follow directions by their employer. In the case of the bus industry, workers there refuse to follow directions from bus employers. In actual fact, they extended actions because of concerns that some workers might feel compelled to go and do work in dangerous areas because of fear of ramifications—for example, casual employees not getting shifts—or, in the case of the armoured car industry, outside work still being delivered to other businesses or continually ratcheting up the unsafe practices. I previously went through the horrific Padstow RSL shooting.

With regard to those matters and the case of the security action, first of all I put to you two things: one is that those matters can be taken to court. The unions can be turned around and found guilty, and they can also lose points as a result of getting to a trigger point. Then, they have to answer those questions in court. Now, all those actions were taken because they disagreed with direction from the employer and disagreed to do alternative work. I will just put you in the scenario. One of your workmates has just been shot dead. There are gangs operating in various parts of the city. You're trying to work out which part of the city the gang's likely to operate in. This is an industry which has inherent risk. The families of those workers are obviously concerned, as are the workers, about what the next assault or attack might be and how imminent that might be—whether it's a matter of days, weeks or months—so the workers stop work and refuse to go to other areas and do other work which could be deemed as being relatively safe and relatively low risk. They are in breach of the act. So I'm putting this to you: if they are found in breach of the act on those matters, will that add to demerit points that can result in deregistration?

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (11:03): There are two points that I think are important to reiterate. The bill won't apply, because the action by the employee of participating in the work ban would not be an industrial action, because it's based on a reasonable concern about an imminent risk to their health or safety. The scenario and the very real case that Senator Sheldon has put forward, and I appreciate that he is using specific examples, would certainly qualify in the context of an imminent risk to health or safety. I would also remind the chamber that these amendments will actually provide a higher threshold for the court to make an order than is currently the case under the existing Fair Work (Registered Organisations) Act, because this section, section 28G, and the ground only captures obstructive industrial action, and that means industrial action that, as I said before, has prevented, hindered or interfered with the activities of a federal system employer or the provision of a public service and has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community. The facts that Senator Sheldon is advancing in support of his argument don't meet, on the advice I have, that level in the context of the case you're putting forward and in the context of section 28G as it stands.

I am also advised that, on the deregistration point, as you have put it, it is absolutely a requirement for any ground for deregistration to be established that the organisation, its officers or its members have engaged in unlawful conduct. The grounds for deregistration cover a range of behaviours, including the commission of serious criminal offences, being in contempt of court and conducting the affairs of the organisation in a way that leads to the organisation, its officers or its members having a record of not complying with the law. The facts in the scenario and the circumstances that you have put to the chamber, Senator Sheldon, don't meet that test.

Senator SHELDON (New South Wales) (11:05): In 2010 a 59-year-old security guard from the Sutherland shire was shot and killed during a routine cash pick-up in Sydney's CBD. That led to an unprotected strike the following day by those workers and also workers in non-risk areas across the state of New South Wales in various parts where there had not been hold-ups on previous occasions. In actual fact, to my recollection, there had not been hold-ups for a period of over 40 or 50 years. Those workers took industrial action in solidarity with their fellow workers after someone had been shot dead. Their concern was about the company not seriously dealing with this—actually, a better way to describe this is clients demanding low-cost security arrangements. Workers took industrial action in other parts of the state. They were not in imminent risk. The union and those workers were found to have taken illegal industrial action, and points were then awarded. Under those circumstances, would that lead to deregistration?

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (11:06): The court has to be satisfied that the ground for cancellation has been made out. The Registered Organisations Commissioner bears the onus of proving that the relevant conduct occurred, whether that includes court findings and/or contraventions of the relevant laws. The court then has to determine whether cancellation would be unjust. That is broadly consistent with the test the court is currently required to apply to a cancellation application under the registered organisations act in section 28(3). In deciding whether it would be unjust to cancel an organisation's registration, the court has to consider a number of factors: the best interests of the organisation's members; the nature of the conduct that constitutes a cancellation ground; whether other action has been taken to address the conduct; and, broadly, any other relevant matters, as you would expect. The court has a broad discretion and can give regard to any other matters it considers relevant, which equips the court to fully consider any reasons why it would be unjust to cancel or disqualify. It's a very broad discretion. Under the government's amendments, the court can't make an order unless it is satisfied, having regard to the gravity of the conduct that constitutes the ground, that the making of an order would not be unjust. I would also add that, in the court's process of determining what's in the best interests of members, it is open to an organisation to present evidence of members' views on this point, and members would also, of course, be able to seek leave to appear.

Senator SHELDON (New South Wales) (11:08): So, yes, a case can be made for deregistration of the union and then an argument can be put forward—at great expense to the organisation—that the illegal action taken was understandable in the circumstances, according to the pub test. It's a breach of the law. That doesn't mean it's unethical or immoral, but it's a breach of how the law actually operates. As a result of that breach, they can then face a case. And in the case of the armoured car industry and those particular periods of assaults—at one point we had over 23 assaults and hold-ups over a period of a few months, particularly around ATMs—there were a series of industrial actions that were taken. That would have constituted a consistent position over that period and over 10 years to be answered, because there had been many strikes involving people who were not directly at imminent risk as well as people who were at imminent risk.

I'll go back to my other examples. In the bus industry and trucking we've had a series of occasions where rocks have been dropped off overhead bridges. On those occasions workers decided to ban major highways. They had been threatened with dismissal as a result of turning around and taking that action. The rock throwers could be on a weekend, in the evening or in the morning. Hundreds of trucks would use those highways. After talking to union delegates and subsequently having meetings in transport yards, which were not authorised—it's a breach because it's not protected action—the workers decided that they would not use that road any longer. Some workers were threatened that, if they didn't use that road, they would be terminated. Under those circumstances, their colleagues took industrial action to support them. They didn't want to take those roads. That was unprotected industrial action.

In fact I recall a situation where a delegate, who had been with the company for close to 30 years and had won a number of awards from the company for his diligence—he was a very staunch unionist; you can actually do both—stood up for workers and said when he thought things were wrong. When he pressed that issue, he was terminated. The workers went on strike. That was illegal unprotected industrial action. Why wouldn't they go on strike? They were upset that somebody who was standing up for them was terminated and made an example of. They knew that a court case would take months upon months, if not years, in certain circumstances. They weren't going to see him be economically damaged. They wanted the company to see the light. As a result of that strike, within 24 hours that employee was put back on. That was illegal industrial action.

Minister, under those circumstances would demerit points be allocated to a union to be deregistered if they were found guilty of what was clearly a breach of the Fair Work Act—and with a case before the Fair Work Commission, if the employer decided not to reinstate that delegate and they decided to take a court case forward? Would those circumstances in a case that was clearly a breach of the Fair Work Act result in demerit points being added to the union and the official responsible for that area? I might also add that as an official I very happily supported what those workers did.

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (11:12): Senator Sheldon, the examples that you have continued to give have a certain consistency about them, and that is the workers, the employees, that you're talking about who are taking the action. If you look at the grounds for cancellation, which I have spoken about before, it is most unlikely that the bill would apply to these scenarios because the action of the employee in participating in the work ban or in the actions you've outlined would not be industrial action; it is based on a reasonable concern about an imminent risk to their health or safety, and the employee didn't unreasonably fail to comply with the direction of their employer.

It's important that we recognise that there's more than one element to this. The second element is about the nature of obstructive industrial action. You have pointed to a number of examples where the imminent health or safety of the workers is relevant and paramount—that is, in relation to the actions that endanger the drivers you've spoken about. It would be obstructive industrial action if it:

… has prevented, hindered or interfered with:

(i) the activities of a federal system employer; or

(ii) the provision of any public service—

as I said, or:

… has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community …

So there is an even higher threshold in this bill for the court to make an order than is currently the case under the existing registered organisations act. Not only does the action have to be obstructive, within the context of the bill, but there has to be an application to the court by the Registered Organisations Commissioner in relation to that. The court then has to make a decision to agree. There are a number of steps attached to that, which I also went through in my previous comments. So there are a number of factors, and all those elements combine to say that it would not lead to the cancellation or the deregistration that you've raised.

Senator SHELDON (New South Wales) (11:15): So we're not ruling out that these matters can go to a circumstance of deregistration and also culpability, under the demerit system, against individual officials. What wasn't answered in that is the question of the sacked union delegate who had acted on behalf of those workers. A worker—who, as I said, had an exemplary record with the company—had been, as a payback for refusing to use that road, terminated. Those workers took illegal industrial action to support that worker being reinstated. That is a breach of the Fair Work Act; demerit points would be allocated for that action. That would then add to a case to be heard in the courts, amongst other cases—because, you might be surprised to hear, union delegates do get sacked reasonably regularly in different industries. And it's not because they are—as your party describes them—'thugs' but because they are hardworking people defending their workers and their fellow Australians and the general public. So, Minister, I'm still seeking an answer to the question of the union delegate being sacked and a Fair Work case being heard after an industrial action has been taken in support of that union delegate. When those demerit points are allocated, is there a case to be heard? Is there cost incurred? And can that lead to the potential of deregistration?

As you're contemplating your answer to that, I'll say this. The ROC is a judicial organisation who turned around, in the case of the Transport Workers Union, and gave them a fine for paperwork breaches, as a result of taking the matter up to court, because, the way the language of the law is set out, they, as a result of paperwork breaches—where the court ruled there was no advantage to anybody from the paperwork breaches, but it was a breach of the act—got a fine in the first instance of over $200,000. I might add: the Queensland Hotels Association, which hadn't had an election for 12 years, got a fine of $100,000. But—heaven forbid!—the system's obviously balanced! The courts are balanced! It seems very balanced to me—doesn't it to you? A paperwork breach gets a fine of over $200,000, which means you can't go out and use those resources to fight in the field, in an industry that has nine times the national average of deaths and has seen the exploitation of gig workers in the new economy, armoured car drivers being shot and bus drivers being assaulted! And we're going to have the ROC make a judicial decision. Without prejudice—'without prejudice'; that's a laugh!—they have to look at what the law says they have to do and what their obligations are. They can't say, 'I like the way he parts his hair,' or, 'I like the way she wears her dress,' or—I don't know—whatever horrible things they might say when they make these decisions. They have to make the decision based on the facts.

I'll just go back to the question. If a union delegate, as in the example I gave before, gets sacked because he puts a ban on and supports a ban, as a spokesperson for those workers, where rocks are being thrown off overhead bridges and the workers are taking illegal industrial action—which it is—will there be demerit points? And can those demerit points lead to a case and the expense of deregistration or potential deregistration if enough points are lost?

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (11:19): The bill, as it was introduced, defined 'designated finding' by reference to whether the person was found to have committed a relevant criminal offence or found to have contravened a civil penalty provision in a designated law. What the amendment at item 1 on sheet 8975 revised 2 would provide is that only contraventions of core industrial laws which result in a conviction or a court-imposed pecuniary penalty are designated findings for the purposes of the bill; a finding alone will not be sufficient. This is an amendment which further ensures that the bill only targets serious contraventions of core industrial laws, and to accommodate the amendment of this definition, of course, there are consequential amendments made throughout schedules 1, 2 and 4 of the bill. But, ultimately, Senator Sheldon, the point is that the behaviour and actions that you describe don't reach the levels set out in the bill in terms of deregistration or disqualification.

You also raised paperwork breaches. I do think it's important to remind the chamber that it is not true—it is in fact an absolute untruth—that, under the bill, registered organisations could be deregistered and their officers disqualified for trivial paperwork breaches, which include submitting a form to the regulator a few days late. But what we've seen are significant breaches characterised as paperwork breaches by registered organisations and their officers, who have sought to downplay that conduct. And you're right; there was a penalty applied to the Transport Workers Union chair. The Federal Court applied a penalty to the Transport Workers Union for breaking the law that requires organisations to keep a proper register of their members. In this case, there were repeated and serious breaches, over 12 years, of record-keeping laws. The primary judge said in that matter:

It needs to be understood by registered organisations that this is a serious piece of legislation and the apparently mundane obligations it imposes are to be obeyed.

The judge also noted that these laws can go to the very 'democratic integrity' of an organisation.

We know that, where an organisation doesn't publish financial reports or disclose loans, grants or donations, that might also be characterised as a paperwork breach—but it can actually lead to corruption. It can lead to workers getting a very bad deal from the people who represent them. It might be the case that an organisation doesn't keep ballot papers or disclose conflicts of interest; it might want to dismiss those as paperwork as well. But those breaches are serious. They can cover up fraud. They can cover up a corrupt election. So there are a range of examples in this context. I suspect those opposite wouldn't think that, if an employer failed to provide a payslip, that should in all circumstances be characterised as a trivial paperwork breach for which there should be no consequences. That is why it is important that every contravention is looked at on its relevant merits and in context. The court is properly equipped to do that and to determine what the appropriate consequences are in particular circumstances.

Senator SHELDON (New South Wales) (11:22): Minister, I appreciate you're only getting briefed from the side about the Transport Workers Union, but I just might add that the court said that no-one was materially affected, and no election was affected, by how the registration was kept and that a series of elections had taken place without any interference. It was a technical breach of substantial size.

I'll just go to another, final question. In July this year, 22,000 Health Services Union members went on strike after a series of assaults and abuse at work. In January, a worker was stabbed by a patient. Two nurses and a patient were also stabbed, with scissors, by a patient. Now, a number of those workers who went on strike were not in directly high-risk areas. In fact, you would consider a number of those workers who went on strike as being in substantially low-risk areas. They were not in imminent danger. They went on strike in solidarity, in collectivism, in unity, with fellow Australians who were being stabbed. This was not a risk question for them. It was a question of doing the right thing, and getting the government to stand up and do the right thing. It was an illegal strike by many of those workers; there was no risk to them. In the circumstances, if that union and the workers were found to have breached the Fair Work Act—which, I might add, they did, proudly—and points were awarded against that union, would that add to a case of deregistration, with all the expense that incurs and with the deflection of the substantial resources that the union is presently putting into dealing with aged care and dealing with the rip-offs in the NDIS?

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (11:24): Senator Sheldon, the scenario that you raise is a hypothetical one, but let's be very clear: in the last seven years—

Senator Sheldon: It's actually happening.

Senator PAYNE: Yes, I know it's happened, but this is a scenario in relation to an outcome under this bill. In the last seven years there have been no orders or findings made against the Australian nursing federation, I am advised, concerning unprotected industrial action. So that demonstrates that the organisations of the nursing profession, like the vast majority of unions, are able to advocate for and campaign on issues lawfully. If nurses and their unions want to advocate and campaign for particular issues, they clearly know and understand that there are lawful avenues to achieve this. There are a number of those.

But this ground for cancellation of registration is an existing ground in the legislation as included by the Australian Labor Party in the Fair Work (Registered Organisations) Act 2009. So, to the extent that you have a problem with this ground, you have an issue with your own legislation that has, in fact, sat on the books for over a decade. On that, it's important to note that there hasn't been a single application made under this ground, which reflects the appropriately significant threshold required, despite the fact that both the minister and a person interested, such as an employer, have had the power the make an application in all of that time. So, even in the unlikely event that the ground could apply, with the government amendments the court cannot make a cancellation of registration or an alternative order unless it's satisfied that, having regard to the gravity of the conduct constituting the ground, the making of the order would not be unjust. The court is required to consider whether the making of the order would not be unjust.

The court will also specifically have to consider the gravity of the matters constituting the ground to determine that cancellation would not be unjust—that is, section 28J—and the same considerations will be relevant to the court's determination on whether to make alternative orders under new proposed section 28L. You may like to assert otherwise, but the fact is that, with the additional safeguards being introduced in this bill and the amendments that I have moved here today, there will actually be a higher threshold for the court to make an order than is currently the case under the existing registered organisations act as legislated by the Australian Labor Party a decade ago, with the support of the trade union movement.

Senator FARRELL (South Australia) (11:27): I thank Senator Sheldon for his very incisive questions. He is a new addition to the parliament here but brings with him a significant amount of experience in the industry and a significant amount of knowledge about the practical problems that are going to arise from the passing of this legislation—and, I might say, he's very passionate advocate for working people—in explaining why so much is wrong with this legislation. It's been a long time since I have been a union official, but I am a great supporter of them; you can understand why when you hear the passion with which Senator Sheldon speaks about the practical issues that are going to arise from the passing of this legislation.

The minister seemed to have some information about the nurses federation and what might apply to that organisation. In New South Wales there are two organisations. There's the nursing federation, but there is also a state registered union in New South Wales, which I assume still exists. The response of the minister may have been to that federal organisation and not to the nurses organisation that is registered in New South Wales. So that might be something that Senator Sheldon might want to follow up on, if he gets an opportunity, to clarify the circumstances there. There was that old decision of Moore v Doyle where a union was divided into two separate organisations. If I recollect correctly, Moore v Doyle might have been a Transport Workers Union case.

Senator Sheldon: It was, Senator.

Senator FARRELL: Well, there you go. What a memory—a memory like a steel trap; like the Bourbons: learn nothing but forget nothing.

Senator Payne interjecting—

Senator FARRELL: My mum used to say that self-praise was no recommendation. But there was an element of self-deprecation in what I've just said. So you need to take that into account, Minister, in an assessment of the point I was trying to make. My recollection is that there is a difference between the state and federal unions, and I am just not sure these days exactly how those organisations might interact and, more particularly, how this legislation might apply to an organisation under state registration—which I'm assuming still exists for most of those public sector organisations in just about every state. So there might be different answers to that question.

In the few remaining minutes I have left to talk on this particular issue, I wanted to raise with the minister some issues regarding corporate equivalence. This was one of the great emotive issues that the government raised in its defence of this rather indefensible legislation and in seeking to draw comparisons between what obligations unions, union officials and volunteers in unions might have in respect of the legislation and similar obligations and responsibilities that might exist in the corporate sector, the people the unions are negotiating with. I think it is fair to say that, in respect of at least some of the crossbenchers, this issue seemed a determining factor in their decision to ultimately get behind the legislation—because they saw that there was some need for equivalence between what obligations you apply to a union official and what obligations you apply to a company director. But I would put to the minister that the suggestion that unions should be held to the same regulatory standard as corporations in these circumstances has an implication that the unions themselves are innately bad and need to be brought up to the same standard against which public companies are held.

But I would like to talk about the nature of unions. While the main obligation or the main purpose of companies is to carry out commercial activity with an aim to generate revenue and, of course, if they're successful hopefully make a profit, the nature of trade unions is quite a different concept in our community. It stems from quite a different philosophical basis in our society. They have a different purpose—and, might I say, a higher purpose. Rather than simply being vehicles for making money, their purpose, their obligation, is to protect the conditions, the wages and the entitlements of Australian workers. Shareholders in a company of course want to see that company make a profit so they can receive dividends and get a return on their investment. That's fair enough. That's our system. It's a capitalist system that we work in. Trade unions, on the other hand, are democratic organisations. Their work is concerned with improving—

Senator Payne interjecting—

Senator FARRELL: No; they're democratic organisations. Every union that I know of, Minister, has to face, every so often, a ballot of their members to determine whether they think they are doing a sufficiently good job to be returned to their office. That is a requirement under the legislation. But more interestingly, thanks to, I think, legislation introduced by Clyde Cameron, those ballots, as least as they relate to federal organisations, are conducted by the Australian Electoral Commission to ensure the integrity of those ballots—Senator Ayres is nodding at me. It's still the situation that if the members of an organisation are up for their regular term of office—which I think is four years for most organisations—then, of course, they conduct a ballot.

Unions have a higher purpose in our community. They're not simply about getting a return on investments. They're not simply about making a profit for their shareholders. They're out there day in, day out trying to lift the wages and improve the conditions of the people they represent—and very often the conditions of people who are not members. One of the great aspects of the Australian trade union movement is that, by and large, unions don't just raise the terms and conditions of the people that pay fees to unions; nine times out of 10, they're also raising the conditions for those who are not union members. Historically in this country—and let's face it: we have very high wages and conditions in comparison to a lot of our immediate neighbours—the unions that have managed to achieve improvements in wages and conditions have done that not only for union members but also for nonmembers. I think that in itself is another distinguishing feature where this idea of corporate equivalence between unions and companies simply doesn't apply. As I said, unions are democratic organisations, and their sole purpose is to improve the wages and conditions of their members. They're not out there making a profit and making a return on their investments. They're out there day in, day out—very hardworking union officials, like Senator Sheldon was a few months ago—to improve the standard of living of their members.

I believe the government has made some very misleading statements about the way in which the bill brings the regulation of trade unions into line with the regulation of corporations. We hear a lot about fake news these days, and my concern is that the government's attempt to draw an equivalence between unions and corporations may have misled some of the crossbenchers into thinking that that's what this legislation actually does. It certainly does not do that.

We've seen only this week the circumstances in Westpac—one of our big four banks in this country. There were 23 million breaches of AUSTRAC obligations. I didn't get a chance to read the whole story this morning, but I understand that the figure may be significantly higher than 23 million breaches of the AUSTRAC obligations. What's happened to the person who oversaw those breaches? Have they been sacked or forced to stand down from their company? Has their company been forced out of business? Has it lost its licence? No. In fact, what happened to that particular CEO of that particular company is that he was allowed to resign, apparently with the consent of the board, and then get a $2.69 million payout—shocking!

There is this idea of some equivalence between how corporations are treated by this government and how unions who work day in, day out to try to improve the living standards of their members are treated—and, of course, we know that under this government living standards are falling. Why are they falling? Because wages are not increasing. Retail sales, as I mentioned when I spoke earlier today, are flatlining or falling in this country right as we speak.

I note that the minister seemed to draw some comparison with a boss who fails to give their employees a payslip and how that's a bad thing. Well, I agree it's a bad thing. Everybody is entitled to a payslip. But, of course, if that employer does fail to provide the payslip, they don't get the sack. They're not dismissed. The organisation that fails to provide the payslip is not then deregistered and forced out of business to stop doing what they are doing. So the idea that there's any sort of comparison between an employer who fails to provide an employee with a payslip and a union who takes certain actions or fails to provide certain details to the Registered Organisations Commission, the so-called ROC, is simply preposterous. We have these unions working in the interests of their members.

This is a question I've got for the minister on this subject of corporate equivalence: is it not correct that this bill allows for union officers to be disqualified for contravening industrial or work health and safety laws but that the Corporations Act does not allow company directors to be disqualified for contraventions of those same laws?

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (11:42): There are a couple of minutes available, and Senator Farrell's canvassed a number of areas. In the context of comparison to corporate regulation and the difference between corporations and the role of unions, I did say last night in my summing-up speech that, of course, in the context of bringing forward this legislation, and in all of our work in industrial relations, we acknowledge the important role of registered organisations, both unions and employer associations, because they're representing their members' interests in the industrial relations affairs of this country, and that is a valuable contribution that should quite rightly continue. But it is the government's view that registered organisations should not be immune from the law in carrying out their functions.

Senator Farrell asked a number of questions and raised a number of issues in relation to the treatment of registered organisations versus the treatment of corporations. I can absolutely assure the chamber that the bill does not assume that registered organisations are the same as corporations. The bill does mirror some parts of corporate regulation to address concerns that have been raised by some stakeholders, but it's been appropriately adapted to the particular nature, structure and purpose of registered organisations.

Senator Farrell in his remarks also canvassed his perception of the views of other members of the Senate and the crossbench, how they might be regarding these matters and how they might be construed. I think that, from the government's perspective, we have a very healthy respect for the approach that other members of the chamber and members of the crossbench have taken to this legislation. You may not think so, Senator Farrell, but I think they are more than capable of making their own assessments on the merits of the legislation that comes before this chamber. They will consider arguments put to them by the opposition, they'll consider arguments put to them by stakeholders, they'll consider arguments put to them by government and they will, as highly capable and extremely engaged members of the Senate, make their decisions accordingly. I think to suggest otherwise would be somewhat disappointing.

In the short amount of time available, I will be very clear: the bill doesn't assume that registered organisations are the same as corporations. Where corporate regulation has some application, we have been able to mirror some parts of it to address concerns that have been raised by some stakeholders, but those processes have been appropriately adapted in the drafting to the particular nature, structure and purpose of registered organisations. There are a number of other things I would like to add in response to Senator Farrell, and I think we'll probably come back to this point.

Progress reported.

Senator DEAN SMITH (Western Australia—Government Whip in the Senate) (11:48): I present the ninth report for 2019 of the Selection of Bills Committee and I seek leave to have the report incorporated in Hansard.

Leave granted.

The report read as follows—

SELECTION OF BILLS COMMITTEE

REPORT NO. 9 OF 2019

1. The committee met in private session on Wednesday, 27 November 2019 at 7.30pm.

2. The committee recommends that—

(a) the Agriculture Legislation Amendment (Streamlining Administration) Bill 2019 be referred immediately to the Rural and Regional Affairs and Transport Legislation Committee for inquiry and report by 31 January 2020 (see appendix 1 for a statement of reasons for referral);

(b) the provisions of the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019 be referred immediately to the Community Affairs Legislation Committee for inquiry and report by 3 February 2020 (see appendix 2 for a statement of reasons for referral);

(c) the provisions of the Migration Amendment (Regulation of Migration Agents) Bill 2019 and the Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019 be referred immediately to the Legal and Constitutional Affairs Legislation Committee but was unable to reach agreement on a reporting date (see appendix 3 for a statement of reasons for referral);

(d) the provisions of the Telecommunications Legislation Amendment (Competition and Consumer) Bill 2019 and the Telecommunications (Regional Broadband Scheme) Charge Bill 2019 be referred immediately to the Environment and Communications Legislation Committee for inquiry and report by 21 February 2020 (see appendix 4 for a statement of reasons for referral);

(e) the Telecommunications Legislation Amendment (Unsolicited Communications) Bill 2019 be referred immediately to the Environment and Communications Legislation Committee for inquiry and report by 17 April 2020 (see appendix 5 for a statement of reasons for referral);

(f) the provisions of the Transport Security Amendment (Serious Crime) Bill 2019 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 21 February 2020 (see appendix 6 for a statement of reasons for referral); and

(g) the provisions of the Treasury Laws Amendment (Your Superannuation, Your Choice) Bill 2019 be referred immediately to the Economics Legislation Committee for inquiry and report by 21 February 2020 (see appendix 7 for a statement of reasons for referral).

3. The committee recommends that the following bills not be referred to committees:

Commonwealth Electoral Amendment (Transparency Measures—Lowering the Disclosure Threshold) Bill 2019

Commonwealth Electoral Amendment (Transparency Measures—Real Time Disclosure) Bill 2019

Family Law (Self-Assessment) Bill 2019

Farm Household Support Amendment (Relief Measures) Bill (No. 2) 2019

Health Legislation Amendment (Data-matching and Other Matters) Bill 2019

Interactive Gambling Amendment (National Self-exclusion Register) Bill 2019

National Self-exclusion Register (Cost Recovery Levy) Bill 2019

Military Rehabilitation and Compensation Amendment (Single Treatment Pathway) Bill 2019

Official Development Assistance Multilateral Replenishment Obligations (Special Appropriation) Bill 2019

Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures) Bill 2019

Foreign Acquisitions and Takeovers Fees Imposition Amendment (Near-new Dwelling Interests) Bill 2019.

4. The committee deferred consideration of the following bills to its next meeting:

Air Services Amendment Bill 2018

Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019

Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019

Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019

Customs Amendment (Safer Cladding) Bill 2019

Discrimination Free Schools Bill 2018

Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019

Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2019 Measures)) Bill 2019

Financial Sector Reform (Hayne Royal Commission Response—Stronger Regulators (2019 Measures)) Bill 2019

Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2019

Great Australian Bight Environment Protection Bill 2019

National Integrity (Parliamentary Standards) Bill 2019

Regional Forest Agreements Legislation (Repeal) Bill 2017

Social Services Legislation Amendment (Better Targeting Student Payments) Bill 2019

Social Services Legislation Amendment (Ending the Poverty Trap) Bill 2018

Social Services Legislation Amendment (Payment Integrity) Bill 2019

Special Recreational Vessels Bill 2019

Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019

Trade Support Loans Amendment (Improving Administration) Bill 2019

Wine Australia Amendment (Label Directory) Bill 2019.

(Dean Smith)

Chair

28 November 2019

Appendix 1

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Agriculture Legislation Amendment (Streamlining Administration) Bill 2019

Reasons for referral/principal issues for consideration:

To investigate the impact of the bill on current biosecurity systems and imported food requirements.

Any additional charges or savings associated with the amendments

Impact on biosecurity staff

Any other related matters.

Possible submissions or evidence from:

Department of Agriculture and Water Resources

National Farmers Federation

Inspector-General for Biosecurity

Border Force

Ports Australia

Shipping Australia

Committee to which bill is to be referred:

Senate Rural and Regional Affairs and Transport Legislation Committee

Possible hearing date(s):

To be determined by the committee

Possible reporting date:

31 January 2020

Appendix 2

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Australian Sports Anti-Doping Authority Amendment (Enhancing Australia's Anti-Doping Capability) Bill 2019

Reasons for referral/principal issues for consideration:

Stakeholders have raised concerns with the Opposition, mirrored in issues with this bill raised by the Senate Standing Committee for the Scrutiny of Bills, relating to the impact of certain clauses on the individual rights of athletes.

Possible submissions or evidence from:

Australian Athletes Alliance, players associations of individual sports, Exercise and Sports Science Australia, ASADA, others.

Committee to which bill is to be referred:

Senate Community Affairs Legislation Committee

Possible hearing date(s):

Suggest similar or identical timeframes to the inquiry on the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, which was referred by the Senate on 14 November following the recommendation in Selection of Bills Committee's Report No. 8 of 2019.

To be determined by the committee

Possible reporting date:

3 February 2020

Appendix 3

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Migration Amendment (Regulation of Migration Agents) Bill 2019

Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019

Reasons for referral/principal issues for consideration:

To determine whether the Parliament of Australia should vote in favour of this bill in its current form (or in an amended form), having regard to the views of industry and other key stakeholders.

Possible submissions or evidence from:

Migration Institute of Australia, Law Council of Australia, key stakeholders from the migration agent sector, Australian Migration Citizenship Service and others.

Committee to which bill is to be referred:

Legal and Constitutional Affairs

Possible hearing date(s):

To be determined by the committee

Possible reporting date:

27 March 2020

Appendix 4

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Telecommunications (Regional Broadband Scheme) Charge Telecommunications Legislation Amendment (Competition and Consumer) Bill

Reasons for referral/principal issues for consideration:

Complex levy that effectively proposes to introduce a broadband tax, and has been criticised by the Productivity Commission and the ACCC. Is a potential building block for privatisation.

Possible submissions or evidence from:

Department of Communications, Telstra, Optus, Vodafone, Vocus, TPG, Opticomm, ACCC, ACCAN and other Greenfield telecommunications providers.

Committee to which bill is to be referred:

Senate Environment and Communications Legislation Committee

Possible hearing date(s):

To be determined by the committee

Possible reporting date:

21 February 2020

Appendix 5

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of Bill:

Telecommunications Legislation Amendment (Unsolicited Communications) Bill 2019

Reasons for referral/principal issues for consideration:

To assess impacts of the bill's operation

Possible submissions or evidence from:

Fundraising Institute of Australia; CHOICE; ACMA; TIO; AEC; COTA; National Seniors; ACCC; Digital Rights Watch; Communications Alliance

Committee to which bill is to be referred:

Environment and Communications Committee

Possible hearing date(s):

TBA

Possible reporting date:

17 April 2020

Appendix 6

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Transport Security Amendment (Serious Crime) Bill 2019

Reasons for referral/principal issues for consideration:

To ensure that the Bill sufficiently achieves its intent of addressing criminal activity at Australia's security controlled airports, security regulated seaports, and security regulated offshore oil and gas facilities.

Possible submissions or evidence from:

Department of Home Affairs;

Australian Federal Police;

Australian Criminal Intelligence Commission;

Australian Institute of Criminology;

Ports Australia;

Australian Airports Association and one or two Airport Corporations (eg Sydney, Melbourne);

APPEA and/or one or two offshore oil and gas facility operators (eg INPEX, BHP, Woodside);

Fair Work Ombudsman; and

One or two relevant employee Groups (eg The Australian and International Pilots Association and the Australian Services Union)

Committee to which bill is to be referred:

Legal and Constitutional Affairs

Possible hearing date(s):

December 2019

Possible reporting date:

21/02/2020

Appendix 7

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Treasury Laws Amendment (Your Superannuation, Your Choice) Bill 2019 Reasons for referral/principal issues for consideration:

Reasons for referral/principal issues for consideration:

Potential impacts on worker's super balances. Potential defaults into underperforming funds.

Possible submissions or evidence from:

ISA, FSC, Treasury, ACTU, unions

Committee to which bill is to be referred:

Senate Economics Legislation Committee

Possible hearing date(s):

To be determined by the Committee

Possible reporting date:

21 February 2020

Senator DEAN SMITH: I move:

That the report be adopted.

Senator KENEALLY (New South Wales—Deputy Leader of the Opposition in the Senate) (11:48): I rise to speak on the report of the Selection of Bills Committee, specifically the Migration Amendment (Regulation of Migration Agents) Bill 2017 and the Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017. I rise to speak because at least one of the dates that was discussed at the committee meeting last night has been changed. I would like to put on the record why we made this decision and the absurdity that it underlines.

The opposition did seek to have a longer reporting date on both of these bills. Originally we proposed to have an inquiry into these bills run until later in March in order to give the committee more time to hold hearings and to thoroughly inspect these bills. This would allow for a proper inquiry process. We could seek submissions from key stakeholders, hold public hearings and give these pieces of legislation the attention that they deserve. This is the expectation of the community. We, the Senate, are the house of review and we should consider the laws we are passing. Senate committees, when given the time to inquire properly, can produce very productive and helpful reports; however, this was not the wish of those opposite. Rather than a significant committee inquiry, the government wanted to ram this legislation through. In the interests of cooperation, the opposition has agreed with the government to have this bill report on 18 March. This will allow the government to deal with the bill in late March in the Senate if they choose to do so.

Yet—and here is the kicker, the absurdity—the recommendations that have informed this piece of legislation were first made in 2014. A reminder to those listening: back in 2014, who was the Prime Minister? Tony Abbott. He was still the Prime Minister of Australia. The No. 1 song that year was that catchy tune 'Happy' by Pharrell Williams. Here is a sad reflection, I think, on the state of our society: they still made Coke Zero back in 2014. I don't know if the chamber agrees with me, but I really do feel like 'Coke no sugar' is a pale imitation.

Senator Dean Smith interjecting—

Senator KENEALLY: Thank you, Senator Smith, for your observation. However, back to the serious matters at hand: here we are, five years later, and it is laughable. In 2014 this government handed down a second set of recommendations in relation to the pieces of legislation that are currently before us. Five years ago, back when you could still drink Coke Zero, dance around to the song 'Happy' by Pharrell Williams and acknowledge Tony Abbott as the Prime Minister of this country, this government made a set of recommendations around migration agents. They didn't introduce them into legislation until 2017, then that legislation sat here on the Notice Paper in this Senate, not moved or acted upon by this government, and now suddenly they have this extreme urgency not to hold an inquiry but to ram it through a committee, to have a short reporting date, to get it done as fast as possible.

Let's understand here that this bill will make changes to how migration agents are registered—specifically, to how lawyers are registered as migration agents. Back several years ago, when this legislation was first moved, Labor did support it, but we do think it is right and proper that we have a thorough examination of this legislation. Things have changed. How do we know that they have changed? We know they have changed because we've had the Report of the inquiry into efficacy of current regulation of Australian migration and education agents.

Senator Cormann: Are you going to read us the report?

Senator KENEALLY: I am going to read you a section of it, thank you, Senator Cormann. In this report, no less than the now minister, Jason Wood, said that there is 'exploitation' and that a 'loophole' is being exercised by 'organised crime' to come into this country by aeroplane and then seek to use the asylum process to access the Australian labour market. That is the observation of no less than the minister, Jason Wood. We think these laws deserve a proper inquiry, we are disappointed the government tried to ram them through and we look forward to the committee doing its work.

Question agreed to.

The CHAIR (11:55): The committee is considering the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 and the amendments on sheet RC114. Senator Pratt?

Senator PRATT (Western Australia) (11:55): Senator Don Farrell has asked questions in relation to corporate equivalence, and I'm certainly not satisfied with the answers in relation to that. Evidence before the Senate committee on these issues really put to bed the idea of any real corporate equivalence in the legislation at all. So I'm keen to pursue these issues with the minister in terms of a suitable level of accountability upon corporations who also may breach occupational health and safety laws and some of the kinds of offences in this act for which union officials are targeted but which corporations seem to get away with quite frequently.

The Attorney-General's made repeated remarks about the bill striking some sort of balance or equivalence with laws that apply to corporations and company directors. Indeed, he said so in the House of Representatives in these debates. But the evidence to this committee certainly doesn't back that up. Industrial organisations are not corporations, nor are they equivalent to corporations. I note that the government's way of arguing that there was some kind of corporate equivalence between businesses and unions was simply to say, 'Well, employer organisations represent employers in the same way that unions represent workers, so we will subject employer organisations to the requirements of registration and the provisions of this act.' What a complete nonsense! Employer organisations aren't in the workplace. They're not like the employers or the employees who are the union members, who are in the workplace in the context of occupational health and safety law and in the context of any of the breaches of this proposed act. So it is an absolute nonsense to say that there is some kind of equivalence just because employer organisations will be required to keep records, membership lists et cetera in the same way that unions are. When you look at the reality of how this so-called corporate equivalence is constructed, it is an absolute nonsense.

In addition, industrial organisations are often small. They're not-for-profits overseen by elected officers who are mostly volunteers. You'd be very aware that, when you work in a corporation, the corporation's leadership are paid, and they're paid to do the industrial work. On the other hand, your union members within a workplace, who will be involved in these negotiations and in industrial action, are not. The structure and purpose of unions are not comparable to those of profit-making corporations, which do not have elected leaders.

Even if the false pretext that a registered organisation is comparable to a company were to be accepted, the bill, frankly, places a significantly more onerous obligation on registered organisations than exists for companies. A great deal of effort was taken by witnesses to highlight these issues to the Senate inquiry. We know company directors cannot be disqualified for contraventions of legislation that do not pertain to corporations. This bill increases the scope of laws and offences that a union official could be found in contravention of and subsequently disqualified for, far beyond the equivalent for company directors and corporations.

The minister highlighted that changes have been made to the legislation, but, quite frankly, this is not parity with the Corporations Act. Ms Volzke, in evidence to the committee, explained:

Changes have been made to the bill based on feedback from the previous iteration to ensure parity, as far as possible, with Corporations Act equivalents, noting that the bill has been appropriately adapted to the regulation of registered organisations ... the definitions of 'designated laws' and 'designated findings' have been amended and are now limited to core workplace laws. The concept of wider criminal findings has been removed from the bill entirely. These are core definitions which flow through the various schedules of the bill.

That has nothing to do with corporate equivalence when it comes to this legislation. The simple fact is that a union official can be disqualified for breaches of occupational health and safety law or industrial law but company directors cannot. They are not automatically disqualified. It is not a ground for a company director to be disqualified for contraventions of legislation that do not pertain to corporations.

We regularly see company directors breach industrial law. That's not a ground for disqualification under this legislation. It's only a ground for disqualification of union officials and unions. Maurice Blackburn highlighted these issues in evidence to the committee when they said:

The main problem with the policy settings underpinning the Bill is a failure to acknowledge that there are profound differences between organisations and corporations in terms of their reason for organisational existence, decision making processes and how they are resourced.

Professor Anthony Forsyth said:

… the significant differences between the two types of organisations mean that there is no basis for the automatic application of the corporate model of regulation to unions. Many of the provisions of the Bill therefore proceed from a flawed assumption.

You say that there is corporate equivalence because unions deserve to be regulated in the same way that corporations are, but you've not recognised the purpose of unions, their model of operation and how they work. In turn, you do not hold corporations to the same standard as unions and union officials under this legislation. The very best way of highlighting that is to come to grips with some of the core questions around this legislation.

I ask the minister: do you think that company directors should be subjected to possible disqualification for contraventions of industrial or work, health and safety laws? If the government agrees that it's appropriate, that would be some kind of corporate equivalence. Unions uphold occupational health and safety. That's the very reason that they go in to workplaces: to uphold occupational health and safety and to secure the working conditions of employees.

It seems absolutely ludicrous that we can have a whole debate about so-called corporate equivalence in the context of this legislation where union officials will be held to account for breaches of industrial law, health and safety laws or work safety laws but corporations are not. It is a complete furphy of a debate to say, 'Yes, we are going to regulate unions just like corporations, but we are not going to hold corporations to the same standard as which union officials and unions will be held to in this legislation.' The 'corporate equivalence' this government has debated questions of is a complete misnomer.

In the context of debates about corporate equivalence, the ACTU explained to the committee:

By extending the range of contraventions that can ground a disqualification order to industrial laws and work health and safety laws, the court-ordered disqualification regime in the Bill goes beyond that applicable in the corporate context. For example, the 'designated findings' might relate to conduct that contravenes an FWC order to stop unprotected industrial action, regardless of whether or not the union members considered that such action was in their best interests, or to a failure to give 24 hours' notice of entering a workplace to investigate a suspected contravention of a work health and safety law, because the union officer knows that if they give the requisite notice the employer will hide the evidence. On the other hand, directors of companies that engage in systematic wage theft as part of their business model, or that recklessly expose workers to risk of serious illness or injury or death, are not exposed to disqualification.

We need to take these issues very seriously in this place. I am tired of this government talking about some kind of corporate equivalence when it refuses to hold companies to account for this kind of behaviour.

Let's step through what the ACTU have said here. They have said there could be grounds for a disqualification because a union official breaches a court order in relation to unprotected industrial action. Do you know why they took that unprotected industrial action? It's because for it to be protected they would have had to go through a process that would have alerted the corporation to the fact that they were going to take industrial action on that issue. That means already they are prospectively in breach of the legislation in terms of having committed an offence that would put them up for disqualification. On the other hand, for a company that might have gone away and hidden the evidence in relation to workplace injury or illness the director is not subject to disqualification because that has taken place in their company.

The government might like to say that, on the one hand, if it is to do with occupational health and safety and there is imminent danger then that will protect the action. But these issues could be in relation to wage theft. They could also be in relation to occupational health and safety issues that are not imminent. There are big debates going on at the moment about the level of carcinogens that welders are exposed to. We have all seen the emerging evidence that's got the attention of occupational health and safety agencies in relation to silicosis, I think—I can't remember the terminology, but it's widespread in the construction industry. People are now realising that they need to go on strike and they need to make sure that industrial action is being taken seriously around a whole range of occupational health and safety issues that represent a long-term danger to someone's health.

This was exactly the case with asbestos. There is widespread use of products that may not fall inside or outside particular concerns around health at the moment, but I absolutely respect the right of people to take industrial action, protected or not, around raising awareness on those issues. We would have not had the action on asbestos that we had in our nation without unions being prepared to do that. So, Minister, do you think company directors should be subject to disqualification for contraventions of industrial— (Time expired)

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (12:10): There have been a number of issues raised both by Senator Farrell, prior to the placing of business, and by Senator Pratt. But I do find the propositions advanced by those opposite somewhat inconsistent, both internally and more broadly. It isn't clear whether they do want the Corporations Law to apply to registered organisations or whether they think registered organisations are fundamentally different and, therefore, it should not be applied. Any reading of the Hansard of both of those contributions would find that to be a very confusing proposition that they have put.

Let me make a few points. The Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 doesn't assume, as I said before to Senator Farrell, that registered organisations are the same as corporations. It does mirror some parts of corporate regulation to address concerns that have been raised by some stakeholders, but the government has, in these amendments, appropriately adapted those to the particular nature, structure and purpose of registered organisations. But there are a few points to make about registered organisations, which, if I remember correctly, were described in Senator Pratt's contribution as not-for-profit organisations and, therefore, deserving of a different approach on some matters.

It is our view that registered organisations should be as accountable to their members as company directors are to their shareholders. Much like companies, we know—and it is naive or perhaps even disingenuous to suggest—that registered organisations don't control assets worth millions of dollars. They do. They have a large amount of trust placed in them by their members. One of the reasons we know they control assets of that value is that we know what they're able to donate to those opposite. They also have special rights and privileges—

Senator Gallagher: There it is!

Senator PAYNE: It's a statement of fact. If you don't like statements of fact, you might be in the wrong job. Unions also have special rights and privileges in the industrial relations system. They have a very powerful role in the economy, they have special rights and privileges in the industrial relations system and they should be required to observe the law. They have a very powerful role in the economy. In fact, as Commissioner Heydon observed, as I recall, many modern registered organisations are large and complicated commercial enterprises. Many of the larger registered organisations receive significant revenue from commercial agreements, they operate under complex commercial structures, they have large numbers of staff, they operate over multiple jurisdictions—all of which paint a slightly different picture from that portrayed to this chamber by both Senator Farrell and Senator Pratt—and that is a very important aspect of the processes and laws that registered organisations should observe.

So the bill does not place higher standards on registered organisations and other laws placed on corporations. In fact, as far as possible, we have pursued parity with Corporations Act equivalents and maintained those. In fact, some of the comparable Corporations Act provisions carry higher penalties and broader powers than those that are contained in this bill. Let me go through some of those. For example, a single imposition of a civil penalty by the court for what are described as paperwork offences can see a director disqualified by the court, if you want to look at section 206C, section 1317E or section 344. In fact, under section 286 of the Corporations Act, what the opposition are choosing to characterise as 'paperwork breaches', such as failing to ensure compliance with obligations surrounding a financial report, can also lead to two years imprisonment where a person fails to keep required financial records for the mandated seven years. I was taken to task in the chamber earlier by Senator Sheldon over a 12-year failure by the Transport Workers Union to maintain proper records. But this is a matter which leads to two years imprisonment where a person fails to keep required financial records for the mandated seven years. The penalty that attaches to the offence of acting while disqualified from being a company director is significantly higher than the comparable offence applicable to officers of registered organisations in this bill.

Under the Corporations Act, we know that the court has a very broad power to wind up a company where it considers it just and equitable to do so. That is section 461(1)(k). There's no such broad power in this bill, which requires law-breaking or misconduct against members in all cases. Those opposite consistently, wilfully fail to acknowledge that. There is no such broad power in this bill in relation to registered organisations because what is required in this bill is law-breaking or misconduct against members in all cases. But it would seem those opposite would defend those sorts of behaviours.

Under the Corporations Act, the regulator—in this case ASIC—can disqualify directors of companies in certain circumstances without any court action being required. If you want to look at that, that's section 206F. Under the bill, the regulator cannot disqualify an organisation's officials. Only the court can do so, and only where it would not be unjust. So, while Senator Pratt a number of times in her contribution made reference to automatic deregistration of an organisation or an official, only the court could do so, and only where it would not be unjust. Under the Corporations Act, in relation to some of the matters that Senator Pratt and Senator Farrell have raised issues about, ASIC can even deregister a company in certain circumstances without any court action being required, including for not filing paperwork or paying an annual fee in time. That is section 601AB. Under this bill, only the court can deregister a union, and only where it would not be unjust to do so. There is a significant difference between the laws that apply and the application thereof.

There have been questions raised about how the bill compares more broadly with corporate regulation. What we have endeavoured to do is to broadly mirror comparable corporate regulation and industrial legislation in the states. In relation to, for example, disqualification, there are disqualification powers in part 2D.6 of the Corporations Act. That includes powers which allow courts to disqualify a person from managing corporations for a single contravention of the Corporations Act, including so-called paperwork offences, and for repeated failures to prevent a company from contravening the Corporations Act. There is some state government legislation governing labour hire registration schemes which also applies a 'fit and proper person' test to employers, requiring consideration of their history of contravening industrial and criminal laws.

In relation to deregistration, the Corporations Act provides wide powers for the court to wind up a business, including where the directors have acted in their own interests rather than the interests of the members as a whole, where they have otherwise acted unfairly or unjustly towards members, or where the court considers it just and equitable to do so. In terms of administration, another issue raised by those opposite, the administration powers in the Corporations Act provided the model for the administration provisions in this bill, and this bill also draws on the administration regime under industrial legislation in New South Wales. The bill further clarifies that the minister has standing to apply to place an organisation into administration, which was an issue raised when the Health Services Union branches were placed into administration, as those opposite might recall. In relation to public interest and the public interest test, the application of a public interest test to organisations seeking to merge, administered by the independent Fair Work Commission, is not dissimilar to the ability of the ACCC to apply public interest considerations when considering a corporate merger.

We've also looked, in the legislation and in these amendments, at how the standing provisions in the bill compare to those in the Corporations Act. Under the Corporations Act, the company, a creditor, a contributor, a director, a liquidator or ASIC can apply to the court for a company to be wound up, and ASIC can apply for a disqualification order. Indeed, under section 601AB of the Corporations Act, ASIC has the power to deregister a company without the involvement of an independent umpire, such as the Federal Court, on grounds including a failure to pay a fee within a specified period. Under this bill, however, as amended, only the Registered Organisations Commissioner will have the standing to apply for a deregistration or cancellation order, and the decision is ultimately a matter for the court. Concerning the appointment of an administrator, beyond those who already have standing under the act, only the Registered Organisations Commissioner, which is the relevant regulator, and the minister, to ensure that there are no repeats of the Health Services Union uncertainty, have been given standing.

Senator Pratt also raised a number of issues in relation to recent events in the banking industry, and Westpac specifically. So I wanted to be very clear about the remedies which are available under the law in relation to matters such as this. But let me clarify a few points first. Firstly, it is simply not true, as I said in my summing-up speech last night, that a union could be deregistered merely for submitting paperwork late. That could not happen under the bill. Accidentally lodging paperwork late will not mean a union is deregistered. Under the bill, there is no conduct that will automatically result in deregistration. It is all at the discretion of the court, which cannot deregister a registered organisation if it would be unjust to do so. Lodging paperwork late will not even, in and of itself, give rise to a possible ground for cancellation. I would challenge those opposite to point to any provision in the deregistration schedule of the bill, any single provision, just one, that provides a ground for deregistration of an organisation for three trivial paperwork breaches—because that is the myth that you have been propagating around this legislation. So I challenge you to point to that provision in the deregistration schedule.

There's been a great deal made of the supposed disparity between the powers of the court to wind up a company and the grounds in this bill for deregistration of organisations—again, issues raised by both Senator Farrell and Senator Pratt. I've gone through in some detail, provision by provision in the corporations legislation, the extremely broad powers of the court to wind up a company, but let me just reiterate. Under section 461 of the Corporations Act, an application can be brought to the court to wind up a company for a range of reasons. They include if directors have acted in their own interests, rather than in the interests of the members, or in a manner that appears to be unfair or unjust to other members; where the affairs of the company are being conducted in a manner that is oppressive or unfairly prejudicial or discriminatory to members, or in a manner that is contrary to the interests of the members of the whole; or where the court is of the opinion that it is just and equitable that the company be wound up.

Let me remind the Senate of that provision: where the court is of the opinion that it is just and equitable that the company be wound up. This last ground provides the court with a very wide discretion to wind up a company. There is nothing comparable to that in this bill in relation to registered organisations. And we know, because they have been canvassed in this chamber and in the other place, that there are also multiple additional safeguards in this bill that are not available in the corporations context—but they have been completely ignored by those opposite. For instance, under the bill, the court cannot make a cancellation of registration or an alternative order unless it is satisfied that, having regard to the gravity of the conduct constituting the ground, the making of the order would not be unjust.

In relation to banking, specifically, and the matters that Senator Pratt raised, the government's new Banking Executive Accountability Regime, brought in last year, contains significant new penalties for relevant organisations that breach their obligations under that regime. For example, the Australian Prudential Regulation Authority can seek civil penalties of up to $210 million—a million penalty units—against organisations or disqualified persons for breaching their obligations. There are a number of other provisions that apply under the Banking Executive Accountability Regime. But in every single speech in this chamber in the last two days in this debate—34 speakers in 11 hours of debate—this has been wilfully and completely ignored, therefore and thereby presenting a completely misleading interpretation of the legislation to the Senate and to the Australian public. It's irresponsible not to acknowledge the points that I have made. It is irresponsible not to acknowledge that there is not automatic deregistration. Those opposite continue to assert it. It is not the case. There is an obligation on those in this chamber to deal fairly with the material that is before the chamber, and that is what the government seeks to do.

Senator AYRES (New South Wales) (12:25): There is such a gulf between the experience and attitudes of senators opposite and, if I might say so, the minister when setting out this legislation. There is a vast gulf between the workplaces of Australia, the industries of Australia, the workers of Australia, the people who on a day-to-day basis deal with the industrial relations system to try to advance the cause of workers—the people who are trying to lift productivity and skills in Australian workplaces—and members of the government here, who, I have to say, are illiterate in industrial relations terms.

I listened carefully to what the minister had to say. It was an artful outline of the belligerent approach that underlines the government's philosophy in industrial relations. I'll try to put this as a compliment. It was outlined in soporific, bureaucratese that reminded me of what a human relations director sounds like when they turn up at a regional bank to make people redundant or when they turn up to close a factory. In industrial relations terms, the only thing worse than that coming from a minister from the Commonwealth is having a Western Australian lawyer as the effective minister for industrial relations and workplace relations. This country has had too many overpaid Western Australian lawyers practising in industrial relations. The Western Australian disease of hypermilitancy, particularly from mining and building employers, influenced by the American approach, has had a profound negative effect on this country's industrial relations and on the way that the institutions respect each other. It has infected the HR Nicholls Society, the IPA and all these funny little groups and sloganeers on the conservative side. It has meant that all we're left with on the benches opposite is shallow people with shallow talking points who don't understand the issues that confront Australian workplaces, Australian industrial relations and Australian workers.

Industrial relations is not like the traffic act. It should not be a system that is designed to deal with breaches of the law, like breaking the speed limit when entering a small country town. It is about managing conflict. It should be about facilitating collective bargaining and extending collective bargaining. It should be about encouraging cooperation and mutual respect in Australian workplaces. It should be about dealing with exploitation. It should be about dealing with the crisis of wage theft that this government is overseeing. It should be about lifting the wages and living standards of Australian workers. It should be about dealing with the big challenges—falling productivity; the future of work in terms of the big technological changes that are coming; gender inequality at work; and the skills crisis in Australian workplaces. The current industrial relations system is capable of dealing with none of these issues. All of them will be made worse by the constant denigration of the industrial relations institutions and by hyperlegalising and binding up in red tape the institutions that are there to look after Australian workers and Australian workplaces.

Australian unions in the 1904 arbitration act submitted themselves to obligations and to registration. They submitted themselves to some limits on the right to strike after the bitter industrial struggles of the 1890s. The right to strike has been described by at the very least Alan Bogg, who is a very senior British academic, as the canary in the coalmine for democracies. It has never been legal in Australian industrial relations terms or in Australian law for workers to strike, but it has been a regular occurrence, it has facilitated our democracy, it has emboldened people to fight for better wages and it has been critical to the development of this country in economic and civic terms.

There is a creeping legalism, a tendency towards authoritarianism, that is a feature of this act and a feature of the government's overall approach to industrial relations and workplace relations. Industrial relations is really about balancing efficiency, equity and voice. It is not the Traffic Act, and I am disturbed by how far from literacy in these principles those opposite are. It is extraordinary to rely upon the royal commission that this government under Tony Abbott commissioned all that time ago. It was hopelessly politicised, hopelessly compromised. It had a commissioner who himself was hopelessly compromised and hopelessly politicised. The two things he did that year were hand down a decision of the royal commission and run Liberal Party fundraisers. We need an evidence based approach, not a student politicians approach. We need the adults in charge in industrial relations.

The truth is, if you look at the evidence, strong unions and collective bargaining rights mean higher employment, lower unemployment, higher productivity and higher wages. It is not the Fabian Society putting that position. It is not the Labor Party putting that position. It is not one of the Labor Party's think tanks putting that position. It is the IMF and the OECD. They call for sector-wide collective bargaining and stronger union rights in order to lift wages in Western economies, to lift productivity, to deal with unemployment and to kickstart these economies back into some semblance of economic growth, some semblance of decent shape and some capacity to compete in the years after the global financial crisis.

The economy in Australia is stagnant, productivity is declining, real wages are falling—falling dramatically for many workers in the economy—and the wage share of national income continues to fall. We should be strengthening collective bargaining, strengthening collective bargaining institutions and dealing with a system that actually manages conflict and leads unions and employer organisations, employers and workers to step up and deal with the challenges.

Even the BCA, normally more empathetic to your show over there, is out there calling for a more national approach and more institutional cooperation. As I said, this is a government that does not realise the challenges that are in front of us and is in a single-minded way, while the economy is falling down around its ears, obsessed with bashing unions and with getting stuck into their ideological opposition, rather than managing the economy for all Australians and doing things institutionally that are required to lift up Australians rather than push them down. It is lazy, it is complacent and it is shonky. It is a government that has no plan, is loose with the truth and has an incapacity to act in the national interest.

I want to know how the fit and proper test will apply to some of the significant developments in our economy and our society that have occurred over the last century. If this bill had applied, what would it have meant for those builders labourers who went on strike, who picketed and boycotted, who marched and rallied, who occupied buildings in the green bans in the 1970s in Sydney? What would it have meant for workers and for unions who defied Robert Menzies, the hero of those people opposite, in trying to send pig iron to Japan—unionists, steelworkers, waterfront workers in the Illawarra? What would it have meant for those workers and their capacity to take democratic industrial action? What about the pickets and strikes and protests that workers engaged in in the anti-apartheid struggles? What about the boycotts of Dutch companies on the waterfront in order to support the Indonesian Republican movement, which was critical in the foundation of the Republic of Indonesia? It would all be illegal industrial action, all absolutely within the parameters of what the minister's set out. What does that mean for the democratic rights of Australian workers into the future and whether we can again do those things that are necessary to protect our democracy and to advance the rights of people here and overseas?

I myself was engaged in boycott and strike and picket action around many of these issues. In particular, during the East Timor crisis, airline workers boycotted particular airlines in order to support the people of East Timor in the struggles that they were going through. It was deliberate. It was planned. We didn't hide it. I announced it at a press conference. It was absolutely contrary to the legislation at the time. I want to know whether Australian workers in the airline industry or on the waterfront would be able to do the same thing again.

What about those people who fought so hard during the James Hardie dispute? We just need to get a picture of the morality that drove the people who ran CSR and James Hardie. A personnel manager wrote a memo in the 1970s which said, 'Even if the workers die like flies, they will never be able to pin anything on CSR.' The predecessor of the minister opposite acted for James Hardie and CSR. She was famous for trying to delay the deathbed hearings of workers afflicted by asbestos and mesothelioma. She regularly made applications to defer hearings, demanding to know why the fact that a worker was sick meant that they could jump the queue. In contrast, the unions were engaged in legal action, political lobbying, but, yes, strikes and protests. I want to know whether those kinds of deliberate political strike actions, boycott actions, are going to put Australian workers in the firing line and make it less likely that people will participate in democratic action.

There is a big contrast here. Westpac bank: 23 million breaches—we're now told maybe 29 million, maybe 30 million—of Australian money-laundering legislation, some of it to facilitate child sex exploitation in the Philippines. Why is the government obsessed with taking action on union officials, members and delegates and not able to deal effectively with regulation in the banking sector? Why is there a double standard? Why are the directors of James Hardie still present and active in Australian corporate life, still regarded as leaders and directors of boards in Australian corporate life? The directors of Rockpool; the Calombaris empire's restaurants; 7-Eleven; Domino's; Michael Hill jewellers; all of the shonky building subcontractors; all of the people who run the shonky labour hire companies in the agriculture sector who have been pinged recently, who've been prosecuted effectively recently over wage theft—why are those people being treated differently to union officials and to union members?

Minister, is it not correct that this bill allows for union officers to be disqualified on application by the minister or any person with sufficient interest, such as employers or employer organisations, but that applications to disqualify company directors can only be brought on by the regulator? I have quite some experience in dealing with the regulators in administrations and corporate insolvency events where people rip off workers' money, and I've never seen a more pea-hearted, soft, ineffective capacity to recover workers' money. I'd have no confidence in their capacity to deal effectively with company directors. (Time expired)

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (12:40): Senator Ayres has raised a number of issues which I'd like to respond to. I want to start by going back to an issue which was discussed, if I recall correctly, in question time yesterday around the underpayment of wages—wage theft—which is a matter the senator raised. I reiterate that the government has absolutely no tolerance for any exploitation of workers, and that includes the underpayment of wages and entitlements by any employer. We have taken what amounts to unprecedented action to date to protect vulnerable workers. We've funded, in additional resources and more powers for the Fair Work Ombudsman, over $60 million and we have increased penalties against law-breaking employers up to 10-fold.

What it has meant for the Fair Work Ombudsman, in a very practical sense, is that they recovered 60 per cent more money for workers in 2018-19 compared to the amount recovered in the Labor Party's last year in office, which was 2012-13. The Fair Work Ombudsman have also secured more than double the number of court ordered penalties against employers. That effort of the Fair Work Ombudsman is securing outcomes. We also see that with the higher penalties we've introduced and the first decision taking into account our new protecting vulnerable workers legislation was handed down by the court in late August, awarding penalties of more than $125,000 against operators of two sushi outlets, I believe, in Queensland. They are important steps.

The Fair Work Ombudsman's firmer stance is also starting to deliver results. The latest data confirms that we have seen double the number of litigations filed, a 60 per cent increase in the amount of money recovered for workers by the FWO this calendar year to date, compared with the last, and almost 20 per cent more employees benefiting from FWO recovery action. Those steps are important. It is very important to send that message to employers who seek to underpay, mistreat or exploit their workers in that way.

There are a number of other initiatives, which, as I've said in the chamber before, we are also pursuing. We're drafting legislation for the first time to introduce criminal penalties for the worst forms of worker exploitation. That was one of the key recommendations of the Migrant Workers Taskforce. We have released a discussion paper which focuses on identifying further improvements to the protection of employees' wages and entitlements. That covers stronger civil penalties, greater deterrence for sham contracting, and closely examining the suitability of employers' liability where entities in their supply network are flouting employment laws. We've heard some pretty high-profile examples of underpayments in recent years. Whether it's Woolworths, the ABC, the MAdE Establishment group of companies or Maurice Blackburn, which was invoked by Senator Pratt earlier, that is a reminder to all employers to conduct ongoing checks of workplace compliance and ensure that they are paying their employees what they are entitled to and what they are owed.

Senator Ayres also raised questions about the fit and proper criteria—the ground in the bill. This is a ground which was recommended by Commissioner Heydon. The criteria the court must consider when deciding if a person is fit and proper to hold office in an organisation are directly relevant to whether a person is suitable to be in such a position of trust and responsibility, and I would note that there is already a fit and proper person test in the Fair Work Act for a person to be granted a right of entry permit. I do think that we should all be able to agree that a person who has been found to be dishonest, violent or unfit to exercise rights of entry to workplaces is probably not a person who should be in charge of a registered organisation or trusted to act in the best interests of its members.

In relation to the equivalent in the corporations sphere and the corporations legislation, there are certain fitness and propriety tests that apply. A number of the states and territories have requirements under their labour hire schemes. In Queensland and in Victoria, for example, if you want to perform the functions of an auditor under the Corporations Act, you must be a fit and proper person. To gain an Australian Financial Services licence from ASIC a person must not be unfit, and, in determining this, ASIC must take into account the person's fame, character and integrity. For an entity that seeks admission on the Australian Stock Exchange, each director and proposed director must be of good fame and character, and that is a provision which exists there.

In this bill, the fit and proper person ground for disqualification lists several matters related to workplace laws, with some additional considerations—particularly around fraud and dishonesty, and particularly around the use of violence. That is very similar, as I said, to the fit and proper person test already found in the Fair Work Act when determining whether someone should be granted a right of entry permit. I would also reiterate that it is a matter which is still left to the court to adjudicate on.

Senator Ayres also raised some examples around whether the bill would have applied to, for example, those exercising or participating in union action in the 1970s in Sydney in relation to green bans. To be very clear: the bill doesn't prevent unions from organising or employees from attending social issue campaigns during hours they're not rostered to work. Attending these sorts of events outside of employees' working hours is not industrial action.

In addition, the bill doesn't apply to lawful protected industrial action. It means that unions that organise and employees that participate in protected work stoppages and then attend rallies during the work stoppages are not impacted by the bill. And, even in the case of unlawful industrial action, the action must be obstructive, with a number of qualifiers attached to that as well, for it to be a ground for deregistration under the bill, and that was an issue that I discussed at some length earlier this morning with Senator Sheldon and Senator Farrell.

This requires that the action must have 'prevented, hindered or interfered with' the activities of an employer, or any relevant public service, or had a substantial adverse effect on the safety, health or welfare of the community. That is a significant threshold, and unlawful industrial action without these features doesn't and won't give rise to a ground for deregistration under the bill. I also wanted to reinforce and reiterate that this obstructive industrial action ground is an existing ground for deregistration under the current registered organisations act, an act that was legislated by those opposite in 2009. So, to the extent that Senator Ayres and others may have an issue or a concern with this ground, then they do, apparently, have an issue that they've not raised previously with their own legislation that has sat on the books for over a decade.

So, in terms of the issues that Senator Ayres has raised, and addressing those, as to 'fit and proper person' and the issue of wage theft and whether, to use one of his examples, in the green bans context, the bill would have applied, they are issues which the government would respond with.

Senator AYRES (New South Wales) (12:48): It appears to me that the minister or the government wilfully misunderstands the problem around wage theft. There are much bigger examples emerging of wage theft. It's not because the government and the regulator have become more effective at discovering them. It's because the government's approach on industrial relations has emboldened wage theft as a business model. It has deliberately weakened the capacity of unions to do that work. And that work has been, traditionally, the role of trade unions in the Australian economy. It's traditionally work that's occurred, in many cases, unseen and unmeasured.

It is true that over the course of the last two or three decades the role of the public sector in that area has become more significant. There is a real contrast, I reckon. This is the one area where the government wants to in-source the capability and kill the capability of the non-government sector to do that kind of social justice work because there's a deliberate political strategy of undermining the capacity of trade unions to do that work. That is in real contrast to what the Howard government did, which was about outsourcing public work dealing with employment services that was done expertly in the public sector to organisations who had no capacity or expertise to do that work. They effectively ruined the Australian employment services sector when they did it.

I don't want to spend much more time on the James Hardie dispute. I think the reason that the minister hasn't responded to that is that it's such a crippling example of hypocrisy in corporate Australia and hypocrisy from the government. The AMWU secretary Paul Bastian, who led that dispute, is an old friend of mine. He said:

If Scott Morrison's union busting bill is passed, the delegates, organisers and officials that campaigned for justice for sufferers of asbestos-diseases could be excluded from the leadership of our union and our union could be deregistered.

If these laws had existed at the time, there's a real chance James Hardie could have successfully used them to tie up our union and our officials in costly and time-consuming legal actions in an attempt to defeat us. That would have affected not only our union, but the many Australians suffering from asbestos diseases.

Minister, when you characterised the provisions of the act that limit the basis upon which unlawful industrial action can be used as a ground for deregistration of a union or in dealing with an individual's capacity to serve as an officer in a union you talked about obstruction and about unlawful industrial action that prevents, hinders or interferes with the activity of an employer or affects the safety, health and welfare of the public. Consider the James Hardie dispute and consider the action of those brave builders and labourers who stood up to corporate interests and corrupt interests in the city of Sydney to defend public heritage and public housing. They absolutely prevented, hindered and interfered with the activity of an employer. That was the point. In the James Hardie dispute, workplaces stopped in work time. It prevented employer activity. It hindered the effectiveness of factories all over Western Sydney. I know; I was one of the people who organised it. It absolutely was unlawful action designed to do all of those things, to put pressure on corporate Australia, put pressure on the government and put pressure on one of the most miserable pea-hearted Prime Ministers this country has ever seen, the former Prime Minister Tony Abbott, who slandered Bernie Banton, who worked with us to lead that dispute. It was absolutely the point of that industrial action.

What your legislation does, doesn't it, is discourage that kind of democratic union action? Sure, it's unlawful. Sure, people face the consequences of making that democratic decision to take on their employer or to attend a protest in work time. We've got to work through the democratic consequences of that. But they make a democratic decision to do it and the country is finer for it. Our democracy is stronger for it. The Sydney skyline is better for it. And there are thousands and thousands of asbestos mesothelioma sufferers and their families who are profoundly better off for the kind of industrial action that your legislation, the legislation that you've come to this place to try and defend, is trying to discourage. That's what it's all about. Why is there a double standard here? Why is that kind of democratic action discouraged, and what will be the impact? What's the chilling effect of that going to be upon Australian democracy?

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (12:54): I don't actually accept the premise of the proposition that Senator Ayres has put. I did speak in response to his previous statement and question around the thresholds for the action to be regarded as obstructive—for that to be a ground for deregistration under the bill—and that goes to all of the cases on which he's advanced his argument, whether it's in relation to asbestos, whether it's in relation to a social campaign such as the green bans campaign or whether it's in relation to public health. I indicated that the action must have done one of two things: either prevented, hindered or interfered with the activities of an employer or relevant public service; or had a substantial adverse effect on the safety, health or welfare of the community.

I also reminded the chamber—and Senator Ayres, conveniently, chose to ignore this—that the obstructive industrial action ground is an existing ground for deregistration under the current registered organisations act. This government didn't legislate the current registered organisations act; it was legislated by those opposite. So, as I said previously, to the extent that they have an issue with this ground for deregistration, they've got a problem with their own legislation, which has stood on the books for over a decade. I would note—now in the absence of Senator Ayres—that there hasn't been a single application made under this ground which reflects the appropriately significant threshold required. That's despite the fact that both the minister and a person interested, such as an employer, have had the power to make an application for all of that time.

Whilst those opposite might like to assert otherwise, the fact is that with the additional safeguards being introduced in this bill, and with the amendments that we have moved and we are speaking to this afternoon, there will actually be a higher threshold before the court can make an order than is currently the case under the registered organisations act. To be clear, those additional safeguards include a requirement for the commissioner to satisfy the court that it would not be unjust to cancel the registration, taking into account:

(i) the nature of the matters …

(ii) the action … taken—

in relation to the matters—

(iii) the best interests of the members—

and—

(iv) any other matters—

including the public health objectives of such action, to go specifically to those health issues that Senator Ayres raised. And the court is prohibited from making the order unless it is satisfied that, having regard to the gravity of the matters constituting the ground, disqualification would not be unjust.

I also remind the chamber that only the commissioner will have standing to bring an application. So in relation to these amendments, to be very clear, only the regulator can make applications to the court to disqualify or to deregister—not the minister, not the government, not an employer, not any other person. And only the court can make orders to disqualify or to deregister.

Senator Ayres also raised questions in relation to the rights and powers of registered organisations. I want to remind the chamber that, as the case has been made by the Attorney-General and Minister for Industrial Relations in the other place, the bill doesn't remove any powers that the unions currently have under the Fair Work Act or the Fair Work Act (Registered Organisations) Act, nor does it stop them from exercising their rights under the law. The bill does nothing to diminish the right to form a union or to join a union. It doesn't limit the legal rights of unions to organise, to bargain, to take protected industrial action, to represent their members, to investigate safety or underpayment issues or to exercise rights of entry. The performance of these functions by unions is, as acknowledged by the government—in fact, as acknowledged by me in my summing-up speech last night on behalf of the government and in remarks I have made today—a vital element of our industrial relations framework and that will remain the case. What the bill does ensure though, quite simply, is that unions, registered organisations and their officers abide by the law and act in the best interests of their members.

Claiming that this bill will stop unions from being able to do their jobs is absolutely misleading. It is a myth that those opposite have been trying to perpetuate in relation to the legislation, but the legislation is clear on the face of it: it does not diminish anyone's right to form a union or join a union to engage in all of those activities that I listed.

Senator GALLACHER (South Australia) (13:00): I have a couple of questions to go to the minister. In setting out those questions, I just want to go to a contribution I made yesterday which relates to wage theft. Basically, there was a worker who worked from 2 November to March 2017. His exact words were: 'I was so happy to get a job I just took an ABN number as being a condition of that job.' He didn't bring anything to work like a truck or a tool or a set of vehicles. He basically brought his driving skill and his uniform of the day. Six years later, he got the sack. In getting the sack, he went to the appropriate person, the Fair Work Ombudsman. He got a decision from the Fair Work Ombudsman—not a nod or a wink or a cup of tea and a chat about 'Perhaps you've got no case,' but a decision—issued on 13 July 2018 against the people who had employed him who had incorrectly classified him as a contractor, not an employee, incorrectly paid him and failed to pay his superannuation. So he had a decision from the Fair Work Commission saying, 'Pay this man his due entitlements within seven days.'

The Australian Taxation Office looked at his nonpayment of super and said: 'You're owed super; there are no two ways about that.' The ATO's action is so slow that he has no idea where it's up to. So he's owed for the underpayment of wages and he's owed for the underpayment of super and he's proceeded, under the existing laws that your government has in place, to a decision under the Fair Work Act 2009—Melbourne, 13 July 2018, and a decision or a finding of contravention of the Fair Work Ombudsman, dated 19 October 2018. He got no money. He's got no job. He hasn't been paid.

What would happen, Minister, if a group of his fellow workers were to take a bit of umbrage at the fact that this person's been incorrectly classified, incorrectly paid, denied his superannuation and gone to the legal jurisdictions of the country—the Fair Work Ombudsman, the Fair Work Commission and the ATO—and the some sum total of those three organisations is a zero result for the worker, absolutely nothing years after he commenced this action. I dare say that if this were an organised yard (a) it probably wouldn't happen because we'd be on the ball a bit earlier than this poor worker and (b) if the employer refused to pay some action could ensue—and all of that action would be illegal. And were it to be spontaneous—that is, not organised by the union per se or its official—you could issue against the individual workers. You could fine them. If it's proven to have been organised by the officials or the union, you can fine them—and there's not a lot of discretion in that these days.

So you've got a situation where wage theft is rampant, someone follows all the protocol of the land, all the laws of the land, to get all the way down the path of paper decisions and no result financially. And your response is to make it tougher for unions to try and do their job. Your response is: 'We're going to ensure integrity.' I think we're going to have a little bit of an issue along the way. So I'd like the minister to say: why is it that the Fair Work Ombudsman will not pursue a director of a company who is proven by that organisation to have underpaid? Why is it that, when there's a decision of the Fair Work Commission ordering those people to pay, the Fair Work Ombudsman won't take them on, yet they will take on, on very spurious grounds, all sorts of other activities alleged to have happened or to have been conducted by trade unions and others?

The type of offence in the legislation is that, if you don't lodge the paperwork that says you donated $1,000 or more, it's a $21,000 fine. You can get fined $21,000 if you're a union and you don't lodge all the paperwork which says who you donated $1,000 or more to. But, if you're a company and you underpay a worker $11,000 plus 9½ per cent super, the Fair Work Ombudsman doesn't even pursue you. It just issues a bit of paper and says, 'That's what they should pay.' If you don't pay, nothing happens. I think the minister needs to answer both those questions. What is the penalty for the Fair Work Ombudsman not doing its job in taking on directors, if there is a penalty in that respect? It seems to me quite remiss for that to be the way it is.

There have been two cases in Adelaide, two absolutely catastrophic cases, which lead us to this issue of safety and how this legislation works when there is an unsafe situation. The Supreme Court of South Australia has on its books a tale of woe which is incredible. The company truck was involved in a near miss, with an employee driver. The next day the company truck was involved in a fatality. The company truck had poor brakes—catastrophically faulty brakes. The driver ended up doing 160 kilometres an hour down a hill. He killed two people and lost his leg. There's a clear evidentiary trail that there was a failure of maintenance and there was a failure in that an employee driver had a near miss. What was the response? The response was to put a labour hire person in the truck, who had even less training, skill and experience than the employee driver.

I'll tell you what used to happen in that particular yard, because I know that organisation exceedingly well. It's a waste company in Adelaide that's operated for many years. I'll tell you what would happen if that truck was reported by an employee driver to have faulty brakes. The Transport Workers Union delegate in that yard would've said: 'It doesn't move. If it moves, no-one in this yard is moving.' Now, that's illegal. It might have saved a fatality or two, but it's illegal. What you have now, with the safety problems that are arising in transport, is people being sent out in unserviceable, unsafe vehicles, and there is no immediate remedy other than court action after a fatality.

We had an employer in Adelaide who was jailed for 12 years for persistently sending people out in vehicles with poor brakes or no brakes. His attitude was, 'Well, he shouldn't have driven it into the pole.' The driver took evasive action. Rather than running into the traffic in front of him or careering across into the oncoming traffic, he steered off the road, hit a pole and lost his life. The employer got 12 years jail, and the findings in that case are absolutely horrendous. But what actually happens in the transport yard at five or six o'clock in the morning, when there are 50 trucks going out and someone says, 'My truck is unsafe'? What used to happen is: 'Well, if it's unsafe, mate, park it up and get another one. If there isn't another one, wait till they get you one. Send it back to the workshop.' But now that is being construed as an lawful action. It's in the enterprise agreement. If you have a yard meeting and you hold things up for an hour or two, down comes the ROC. There's no leeway at all. You're deemed to have taken unlawful industrial action, and there doesn't appear to be any remedy to safely get this situation under control. Minister, how come your Fair Work Commission doesn't take on directors who have been found to be negligent and not paying wages and super, by the Fair Work Commission, the ATO and the Fair Work Ombudsman?

In respect of safety, what's the plan here? How do we keep the travelling public safe? How do we keep the place safe? Unions will always go on the side of conservatism in terms of safety. They will advise workers not to do something if it's unsafe. I would guarantee that, if any official were contacted in South Australia or the Northern Territory, or the whole of Australia, in respect of an unsafe vehicle, their advice would be, 'Don't do it.' That then is construed as unlawful action. That official then can be cited and, after three goes, chucked out of his job. All he's trying to do is keep the world safe, keep the roads safe and keep people safe. I would be very pleased if the minister could answer that set of questions.

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (13:10): Thank you Senator Gallacher. I don't disagree about the seriousness of the issues that Senator Gallacher has raised. I know him to have a long history in this chamber, and in fact more broadly, on these issues over time. But, to be clear, the legislation that we are dealing with today is about ensuring the proper governance of registered organisations in this space. The questions that Senator Gallacher has asked in large part go to potential regulatory fixes in other regimes. The role of the Fair Work Ombudsman as it currently exists is around the recovery of wages, and I've discussed that with senators during the debate today. It is an investigative and regulatory body rather than having the role that Senator Gallacher has raised.

But I want to note for the record—and this was reported in the media earlier this month—that the Attorney-General has quite clearly said, in putting employers or corporate Australia, if you like, on notice, that, for example, directors of companies who fail to pay workers properly could be banned from sitting on boards. In specific response to Senator Gallacher, I note that the Attorney has declared that the coalition would consider empowering the Fair Work Ombudsman to pursue banning-order applications against the directors of underpaying companies. The Attorney's made the point, which is similar in some ways to the point that Senator Gallacher has made, that the impact of such action will be felt if there is something, as the Attorney said, on the line for employers in that context. The minister has also expressed support for an ACTU proposal to allow workers to go to the commission and have underpayment claims dealt with quickly and fairly. As I have also discussed in this chamber, he has referred to the second discussion paper on wage underpayment, which would canvass the specific options of banning orders and the small claims process inside the commission.

We obviously have very complex sets of awards, but the Attorney's view, and the government's view, is that the law should have the ability to provide deterrence against the sorts of behaviours that those in this chamber, including Senator Gallacher, have raised. He does not believe it is doing it effectively at the moment. In fact, I think it's worth quoting the Attorney in this regard. He observes in relation to large corporate organisations:

If their eye was on the ball, this wouldn't happen. These organisations have a massive amount of time, energy and resources devoted to ensuring they don't pay a cent more tax than they have to; they get involved in sporting teams and social issues. If they put commensurate resources into making sure they got their payrolls working in accordance with EAs, awards and the law, they wouldn't be having this problem.

Senator Ayres and Senator Farrell have raised these issues, as have you and Senator Sheldon, Senator Gallacher. So we are considering those in this process. I think that is responsive. I think that is the appropriate action of government.

But the bill we have in front of us today is about addressing the numerous examples of organisations and their officers who are repeatedly flouting the law, misappropriating funds, putting their own interests before members and generally failing to meet what are regarded as basic standards of accountability and governance. I don't think the provisions in the bill should be conflated with the Corporations Act and its regulation of officers of corporations. It is a distinct compliance regime, and we have separately introduced strengthened measures against corporate noncompliance, to which I would also draw the Senate's attention.

The government has introduced higher penalties in the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 for corporate and financial misconduct. Those amendments increased various criminal penalties to imprisonment for up to 15 years or maximum fines up to $945,000, or three times the benefit derived from the contravention. For bodies corporate, those amendments included new penalties of up to $9.45 million, or three times the benefit derived from the contravention or 10 per cent of annual turnover. We have also increased civil penalties, and penalties against individuals are now available for up to the greater of $1.05 million or three times the benefit derived from the contravention. For bodies corporate, penalties were increased similarly. So our approach to workplace exploitation, to the sorts of employers that Senator Gallacher has raised, has been dealt with as well. And, in this legislation, we have to deal with the issues before the chamber, which I have already talked about, but we can do both, Senator Gallacher. We are able to address wage underpayment and the unlawful actions of employers in cases such as those that have been raised by those opposite as well as bring this legislation forward to the chamber, to the house.

Senator FARRELL (South Australia) (13:16): I've had trouble getting on the speakers list. There've been so many wonderful speakers who have spoken today. I spoke earlier today about the passion of a new senator, Senator Sheldon, and you just saw Senator Gallacher, again from that great trade union, the Transport Workers Union, talk with passion about the problems he's experienced over a lifetime of looking after working people. I think it's an indication of the passion on this side of the chamber and the heartlessness on the other side in terms of the problems that ordinary working people are facing.

I did get a chance to quickly listen to Senator Pratt's contribution and that of another new senator, Senator Ayres, from that other great trade union, the Amalgamated Metal Workers Union. They're a terrific organisation. In my own state they were led by a fellow called John Camillo, recently retired, who had to experience the horrible circumstances of this government closing down Holden and the rest of the car industry in this country and deal with the absolutely tragic consequences of a government completely uninterested in the issues that affect working people in this country.

I do have to compliment the minister, though—one compliment you'll get from me, Minister. Often ministers come into this chamber when they're dealing with legislation and either don't know anything about the legislation they're supporting or seeking to introduce or, worse still, don't care. But I have to compliment you, Minister: you've answered all of our questions, and that's a very worthy thing to do, because we're getting answers to the questions. That's the extent of my compliment, Minister, because the problem is that the answers you're giving are confirming our worst fears about this legislation. Everything you've said to us today is an indication as to why this legislation should be rejected.

I noticed just before I left the chamber earlier that you commented on my reflections of the equivalence argument, the way the government's been arguing the equivalence argument and the effect on the crossbenchers. I want to make it clear, Minister, that I don't think the crossbenchers are going to fall for that equivalence argument. And if it is thought that I was suggesting that, then I want to make it very clear: I think the crossbenchers are smarter than the government thinks, because they're not going to buy the argument about equivalence and are quite capable of making up their own mind about this legislation. When they think about it and listen to your answers—which, in fairness to you, have been very honest answers—about the way this legislation is going to operate in practice, they will see that our position, which is that the bill should be totally rejected, is the correct position.

I notice that you were trying to put a little bit of dressing on the cake—there's a little smile from you, minister—by suggesting—

Senator Payne: I'm not sure where you're going, Senator Farrell!

Senator FARRELL: I'll get to the point. You're suggesting that the Attorney-General's got another piece of legislation in his pocket that he's waiting to introduce that is going to crack down on all of the abuses that we've seen over the last six months in particular—in practice, over seven years of this government—where managing directors have got away with things that you're now seeking to impose upon workers and their trade unions. You're giving us a little bit of a hint that maybe the Attorney-General is thinking about imposing some of those obligations that you're seeking to impose on union officials on those managing directors. I suppose the first observation about that might be: where's the equivalence argument? You're imposing all these obligations on trade union officials and their members. If there's an equivalence, why isn't that legislation there already? If you're seeking to treat managing directors, who make decisions like we saw in Westpac, in the same way as ordinary trade unionists, why isn't that legislation in place already? It's not. The reality is that there's no equivalence between the way this government treat employers and managing directors and the way they're seeking to treat the people who represent unions.

More importantly, if the government were fair dinkum and if the Attorney-General were fair dinkum about treating them the same, then why haven't we seen those amendments in the course of this debate? What's happened to those amendments? The government has managed to come up with dozens of amendments to its own legislation, but none of them do the things that you hinted at, Minister, which was to impose obligations on managing directors and directors that you're seeking to impose on trade union officials and their members. There is simply no evidence whatsoever that you're fair dinkum about doing that. If you were, you've had weeks. In fact, this bill—or variations of it—goes back to 2017. You've had all that time—the last two years—to crack down on the sorts of abuses that we've seen in Westpac only this week and all sorts of other circumstances that Senator Gallacher, Senator Sheldon, Senator Pratt and Senator Ayres have already mentioned. I won't go back over them again. With all of those circumstances, you've had an opportunity to do that, and you can do it right now. You could delay the bill. We've still got another week. We've still got all of next week to deal with this matter. There's no particular reason why this bill has to be debated today. You've got all of next week. You can go away and then come back with a bill that does treat union officials and their members in the same way that you're treating directors and owners of companies.

Senator McCarthy interjecting—

Senator FARRELL: It's been suggested by Senator McCarthy that you could even have Christmas to think about that. There's plenty of time. We're back here in February. There's plenty of time to go away, get the Attorney-General's Department to come up with all of the amendments that would do what you're hinting might be done if this legislation passes, which is to try and create some equivalence. The reality, of course, is that you're not going to do that. You won't go away and write any amendments that treat managing directors in the same way you treat union officials, because you're not fair dinkum about it.

The point I made before was that this is Work Choices mark 2. Tony Abbott told us it was dead, buried and created.

Senator McCarthy: Cremated.

Senator FARRELL: What did I say?

Senator McCarthy: Created.

Senator Payne: Created.

Senator FARRELL: Cremated, I'm sorry! It's been a long day. But, zombie-like, Work Choices is back. But, this time you've got a bit smarter. I have to give him credit: Prime Minister Morrison is smarter than John Howard. He's much more cunning and much more deceptive. He's going to do this in two stages. First of all, he's going to destroy the ability of the unions to do the work that their members pay them to do: get them wage rises and improve their conditions. He's going to tie them up in red tape and tie them up in court action, with unions using union members' money to defend the organisations, and, once he's done that, back he comes with Work Choices mark 2. That's when he really hits the workers.

As I say, Prime Minister Morrison is much smarter than Prime Minister Howard. Prime Minister Howard just went straight for the jugular when he got a majority in 2004. In 2007, not only did he lose the election but he lost his seat. In fact, I suppose you could argue that we should let this legislation go through, because we will see what happens when workers finally realise what this government is all about and what its real objective is. It's to destroy the unions that defend working people in this country, and then it's to go after the wages and conditions.

You might remember this, Senator Lines: Australian workplace agreements. Do you remember those? Workers lost all of their entitlements, all of their penalty rates and all of their access to leave and were reduced to four single terms of conditions. They weren't theoretical ideas. They were real contracts of employment that were introduced and foisted upon Australian workers.

We're not going to let this legislation go through. We're going to block it. The Greens, of course, are very supportive of us, but we want the other crossbenchers to understand that this government is simply not serious about any equivalence between workers and the managers that supervise them and that it isn't serious about trying to create an equal workplace. We know from Work Choices that it's all about totally destroying the balance between workers and managers. The idea that a 15-year-old shop assistant signing an AWA under Work Choices mark 1 had any equivalence of bargaining power with an employer was just preposterous. That's what we're going to be leading to here. You destroy the unions; you destroy their abilities.

The thing about Work Choices was that Prime Minister Howard didn't come after the unions in that same way. The unions were there to protect the workers. They were there to argue against Australian workplace agreements and, of course, ultimately they were there to ensure that that legislation was repealed—as it was under Julia Gillard. Julia Gillard was the industrial relations minister, and, of course, she was successful in removing that terrible legislation.

I've spoken about the equivalence argument, and I've still got some more questions on that, but there is another issue that needs to be addressed by the minister. It's on the issue of retrospectivity. It's custom and practice in legislation not to introduce retrospective legislation. That's always been the objective of any piece of legislation. If you introduce a new law that imposes new responsibilities and obligations on people, you don't go back and look at what they were doing before that legislation passed. You start afresh, and so if you are imposing penalties on past actions then it is not appropriate to have that sort of provision in legislation. You look forward rather than looking backwards. That is a pretty standard term in all legislation, be it federal legislation or state legislation. Parliaments by and large, of either persuasion, Liberal or Labor, have always been reluctant to look back and say, 'No, we are going to impose an obligation on something that we have previously done.' However, it would seem that there are retrospective aspects to the legislation.

Could you please explain, particularly to all the people and a few schoolkids who are sitting up there in the gallery listening very patiently—they could have gone over to watch the House of Representatives, but they have very sensibly come here to the Senate; we have far more interesting debates, I might add—why are the provisions of schedule 3 and 4, in particular, retrospective?

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (13:31): Senator Farrell has raised a number of questions, including issues that have been discussed in the chamber in his absence, but I am very happy to go over some of those in this contribution. I would note that we have had extensive discussions around the government's initiatives on wage theft and underpayment—in particular, the initiatives and legislation we have introduced around protecting vulnerable workers and the outcomes of that, including the efforts of the Fair Work Ombudsman, and the returns that has brought for employees in recent times. If I recall correctly—and I would have to go back to my previous comments—there has been a 60 per cent increase in repayments recouped for employees in this calendar year over the previous calendar year by the efforts of the Fair Work Ombudsman. The steps that we have taken on wage theft are very, very important ones and are acknowledged as so by this government because we have zero tolerance for the exploitation of workers.

The corporations and the adequacy of regulation in relation to actions in the areas that Senator Farrell has raised were also discussed this morning, and I have been through those almost section by section, in some detail. They are heavily regulated, and there is also an ability to disqualify. I think it is important to note the statements of the Attorney-General and Minister for Industrial Relations about the further work that we are intending to do. We have released discussion papers about it already. We would welcome a contribution to those discussion papers from those opposite, but I understand one has not yet been made.

Let me talk directly about the rationale for this bill. This government believes that unions, employer associations and registered organisations enjoy a privileged position in the Australian industrial relations system and, indeed, in the economy more broadly and that their members place a great deal of trust in them. We believe that there is no place in this system for those who breach this trust, for those who act in their own interests at the expense of members or for those who show nothing but contempt for the laws that apply equally to all Australians. I could go back to the Heydon royal commission and the numerous examples of flagrant disregard for the law that were uncovered by that royal commission, but I do not necessarily have to do that. Even in the time that this bill has been before the parliament, even since its introduction in the House of Representatives in July, a registered organisation in this country and seven of its officers have been penalised almost $400,000 by the courts for more than 30 contraventions of the law since this bill was introduced. This is a pattern of behaviour. It seems to be regarded as the cost of doing business. But the government doesn't accept that the cost of doing business in Australia is acceptable if it is about flouting the law, if it is about blatantly and wilfully disregarding the law that applies to all Australians.

The CFMMEU and seven of its officers have been penalised almost $400,000 by the courts for more than 30 contraventions of the law since this bill has been before the parliament, since July. Last week, we saw the ABCC again commence legal action against the same registered organisation for unlawful conduct. That unlawful conduct allegedly included workers being spat at, being called 'dogs' and 'scabs' and being photographed and filmed, with those images then being uploaded to the CFMMEU's Facebook page, where they were then further subjected to abuse and intimidation. The abuse and intimidation is not just occurring in the workplace; the abuse and intimidation is occurring online as well. That's why the government have reintroduced this bill. That's why we have brought this bill forward. It's because we don't accept that registered organisations should be allowed to flout the law. It is about restoring integrity to this system to provide that, where an organisation, a division, a branch or an officer is doing the wrong thing, something can be done to stop that misconduct and to assure members that their organisations are acting with integrity and in their interests.

I will also go to the points that the senator made in relation to employers and corporations. There are some aspects of that I would like to address. The intent of this bill is to address those numerous examples of organisations and their officers repeatedly flouting the laws, as I have said, and where they have failed to meet basically accepted general standards of accountability and governance. As special rights and privileges are attached to registered organisations and their officials in the federal industrial relations system, it's only appropriate that there are appropriate standards of conduct also applied to those officers who enjoy those privileges. The provisions in this bill apply only to registered organisations and their officers. This shouldn't be conflated with the Corporations Act and its regulation of officers of corporations. That is a very distinct and different compliance regime.

In relation to that, because the senator has asked questions about it, let me say that the government has separately introduced measures to strengthen addressing corporate noncompliance. For example, we introduced higher penalties for corporate and financial misconduct in the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019. I've been through those provisions in some detail, and I suspect the chamber does not want me to do that again. But it is very clear that the government has acted in relation to a number of these matters. From the perspective of those who would seek for the government to go further, the Attorney-General has made it clear in the discussion papers, in public comments and elsewhere that there are a range of other issues that are under consideration.

I have also been asked about retrospectivity and the operation of the bill. The bill's disqualification and cancellation of registration provisions can only be triggered by conduct that occurs after the commencement of the bill. So, no matter what your views are on behaviour that occurred before the commencement of the bill, everyone will have a clean slate on its commencement. So far as these provisions about disqualification and cancellation of registration provisions are concerned, there will be a clean slate on commencement. However, if and when unlawful or otherwise improper conduct occurs after commencement, the court can take into account previous findings of lawless conduct to determine whether that disqualification or cancellation is justified. But it can only be triggered by further lawless conduct. So there's a clean slate as of the commencement of the bill.

In relation to the schedule 3 provisions, the administration provisions, they are remedial in conduct. They are targeted at what is presently occurring. But, what is more, the scheme is not punitive; it's actually about restoring effective administration to a dysfunctional organisation or part. If the organisation's previous state satisfied the grounds for making a declaration in section 323(3) but it is no longer dysfunctional, or the affairs are no longer being carried out against the interests of the organisation, then the court cannot make a declaration as such and cannot make an order appointing an administrator to resolve these circumstances. In relation to schedule 4—that is, the application of the public interest test to amalgamations—by its nature it must look at past conduct to determine whether an organisation or officer has a history of law-breaking. That is no different to seeking information about prior law-breaking before the granting of a permit such as a right-of-entry permit, a passport or a Working With Children Check application.

In relation to Senator Farrell's question, I also want to canvass whether the ground for disqualification for right-of-entry permits operates retrospectively. The 'fit and proper person' ground for disqualification can be activated by a decision made after the bill commences by the relevant authority to refuse, revoke or suspend an entry permit. The underlying conduct that leads to a person's permit being refused, revoked or suspended by the commission can occur prior to the commencement of the bill, and the government's view is that is entirely appropriate for a number of reasons, and I will go through those briefly.

Firstly, when considering whether to refuse, suspend or revoke an entry permit, what the Fair Work Commission will usually consider is a pattern of behaviour over a significant period of time. For refusals to grant a permit, that can be over three years. That's no different to when someone applies for a passport, in my current portfolio, or applies for a Working With Children Check, where information about prior law-breaking is examined before the granting of those permits. Secondly, when a decision is made to refuse, suspend or revoke an entry permit, the Fair Work Commission is actually making a point-in-time assessment that the person is not a fit and proper person to hold a permit, and I have been through the elements of a 'fit and proper person' today. It is appropriate to include that point in time after commencement, even where it considers other matters that previously happened. Thirdly, just establishing grounds for disqualification is not sufficient for disqualification to occur.

To be very clear, as I have said in relation to a number of other points raised by those opposite: the Federal Court still needs to be satisfied that it's not unjust to disqualify the individual, considering such things as the nature of the matters constituting the grounds. In addition, under the government's amendments the court cannot make an order unless it is satisfied that, having regard to the gravity of the conduct constituting the ground, the making of the order would not be unjust. So, on the issues that Senator Farrell asked about in relation to the legislation, the government considers this to be a discrete piece of legislation, as I said in my earlier remarks—

Senator Farrell: It doesn't have to be!

Senator PAYNE: You're optimistic, Senator, but I'm afraid I'm going to disappoint you. It is a discrete piece of legislation that goes to dealing with the privileged position that registered organisations, both unions and employer organisations, have in the Australian industrial relations system and the economy more broadly, because we believe that those who hold office in those organisations and those organisations themselves should behave in a lawful and appropriate manner. They should act responsibly and they should respect the laws that apply to all Australians. But, self-evidently, as I said, even in the months that this bill has been before these chambers, that has not been the case. This bill is definitely a necessary intervention by the government in relation to the operation of registered organisations.

The only other thing I would say is that I was very interested to hear Senator Farrell use the term 'zombie-like', because the last time I heard somebody on that side of the chamber use the word 'zombie', it was used by our former colleague Senator Cameron in relation to the front bench of one of the Rudd-Gillard-Rudd governments, but I can't recall which one.

Senator GALLACHER (South Australia) (13:44): I concur with Senator Farrell. The minister has been fairly complete in her answers, but, listening carefully to her answers, someone listening to this debate could conclude that if you're a company director and you're found by the Fair Work Ombudsman to have not paid an employee correctly because you've misclassified them or the Fair Work Commission has ordered you to pay some money or the ATO has found that you haven't paid superannuation, the end result after five years is zero—zero return for the employee. Yet, if you are a union official out there trying to have a go and get some things fixed up, the end result is that you're fined, you're fined and you're fined, and this legislation would be attempting to stop you being a union official if you are fined three times or deregistered if you forget to put your paperwork in for $1,000, with a $21,000 fine and the like. If you're a company director and you choose not to obey the Fair Work Commission, the Fair Work Ombudsman or the Australian Taxation Office, there is zero penalty. That's what I heard, Minister: there is zero penalty. The Attorney-General is looking at banning people from being company directors were they to do that or other such things, but at the moment there is zero. The priority is registered organisations actively trying to get those situations fixed on a daily and hourly basis.

But I want to return to the really important issue, which the minister didn't take up: if there is a bona fide safety issue on a worksite which involves an unsafe vehicle which is going to operate on a public road and jeopardise the safety of everyone travelling on that road, and if workers, heaven forbid, take action and say, 'Look, you're not going to send that truck out with one of our labour hire people or one of our casuals, because we know from yesterday's experience with an employee driver that it's unsafe,' or if they get together in a group and say,' Hang on, we're not going to work until you fix that truck or give us another truck,' 'illegal action' is what it's called. If their organisation is involved, officials of that organisation are also involved in illegal action. Where are the bona fide safety issues in transport or, dare I say, on building sites? Where does the legislation give a carve-out for the appropriate and prudent treatment of people who are acting in the best interests of the whole community, particularly in respect of transport? If a bus doesn't have brakes, it shouldn't have schoolchildren on it. If a truck doesn't have brakes, it shouldn't be coming down the Adelaide Hills. We have two court cases in recent memory in Adelaide where an employer has been found not to have been diligent in maintaining vehicles and to have been sending out ill-trained people or people with not enough competency in those vehicles. One of the employers got 12 years jail. The jury and the judge thought his attitude was so bad that it was worthy of 12 years jail. So in transport particularly, Minister, with bona fide safety issues, how do we do it under your regime?

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (13:47): I thank Senator Gallacher for his questions. In some ways this goes to the discussion I was having with Senator Sheldon earlier about imminent health and safety concerns and actions taken in relation to them. If that is the case—if that action is being taken by the workers and it is regarded as being unlawful industrial action—even in that case the action has to be obstructive for it to be a ground for deregistration under the bill, and that has two elements to it as well. It has to have prevented, hindered or interfered with the activities of an employer or any relevant public service, and it has to have had a substantial adverse effect on the safety, health or welfare of the community, and that is a significant threshold. The examples that you and Senator Sheldon have raised with me and the chamber are all serious examples. Yours, Senator Gallacher, go to transport safety and drivers in particular. Senator Sheldon's went to violence in a particular workplace, whether it was the Armaguard example or other examples which, unfortunately, you and I, Senator Sheldon, have been familiar with in New South Wales over the years. But the threshold that is established in the bill is a significant threshold, and unlawful industrial action without those features won't give rise to a ground for deregistration under the bill.

What I would also reinforce, as I said in the previous discussion with Senator Sheldon and others, is that this obstructive industrial action ground is an existing ground for deregistration under the current registered organisations act, which was legislated by the Labor government in 2009. So, if there is a continuing concern about that, it is a concern that should be held in relation to the existing act, and it has not been raised, as far as I am aware, in relation to your own legislation, which has now sat on the books for over a decade. I would also note, as I did, I think, in answer to Senator Ayres earlier, that there hasn't actually been a single application made under that ground, which reflects the appropriately significant threshold required. Despite the fact that, in this period of time since it was legislated in 2009, both the minister and a person interested, such as an employer, have had the power to make an application for all of that time.

So I accept your serious concerns—and I have acknowledged, Senator, your long experience in these matters—but the fact is that, with the additional safeguards that are being introduced in this bill, and with the amendments that we have moved, to which we are speaking here this afternoon, there will actually be a higher threshold before the court can make an order than is currently the case under the existing registered organisations act. Those additional safeguards that lead to that higher threshold include that the commissioner must satisfy the court that it would not be unjust to cancel the registration, taking into account the nature of the matter—so the very description that you have provided to the chamber; the action taken into relation to those matters—the very description that you have provided to the chamber of the action that a driver might take; the best interests of the members—the very issue that you have raised about the protection of drivers who might be in a workplace of that nature; and any other matter—including, in this case, the public health objectives of such action. The court is prohibited from making the order unless it is satisfied that, having regard to the gravity of the matters having constituting the ground, disqualification would not be unjust—and only the commissioner will have standing to bring an application.

So, to be very clear, this is a provision, an existing ground, which is present in the current registered organisations act, which was legislated by your government. This bill in fact provides additional safeguards to constitute a higher threshold to address the issues that you and other senators have raised, Senator Gallagher.

Senator SHELDON (New South Wales) (13:51): I note also, that in answer to some other questions, the minister has raised the question of awards being complex. This is a myth that is being perpetrated by the Prime Minister—that somehow there's a complexity with awards, with what people should be paid. The complexity extends to Woolworths—the same company that can actually send you a text if you are within 50 metres of it about what you should be buying based on your purchasing history for the last three years—to Bunnings, another multi, multi-million dollar company, and to Domino's. So, apparently, wage theft occurs due to the complexity. No, it's because they are thieving. They don't put money into making sure that they pay people correctly, because they don't care; they aren't fearful of what this government will do.

As you keep demonising unions and as we are seeing it becoming more and more difficult to organise people in workplaces, we are seeing more and more wage theft. It's not a surprise that wage theft is happening. It's not a surprise that we've got a situation where there is substantial wage stagnation. Actually, the World Bank says, and the IMF has said it in reports, that it is because unionisation has declined. It has declined because legislative frames have been put in place by various governments, including this one that this government is planning on putting in. The points system that has been put forward will continue to drain unions of substantial resources.

The Registered Organisations Commission, the ROC, has been found to have improperly gone after the AWU over a matter that was 12 years old. Let's put this matter in context. We all read about that money that was being spent by the AWU 12 years ago, because it was in a press statement and in the paper. It was discussed at their National Committee of Management. It was discussed publicly about GetUp! and its operations. It wasn't like it was something that was hidden and kept quiet for 12 years. It was something that was on the public record.

Senator Ayres: They put out a press release.

Senator SHELDON: They put out several press releases and several interviews. But this government and the ROC, which is independently going to assess whether these matters are of public interest, are going to take these matters to court. That is disgusting, outrageous and crooked. We have a situation here now. Let's talk about corporate equivalence. Australia's oldest bank, Westpac, is the most epic corporate lawbreaker. It's like the creepy uncle of the big four banks. They facilitate paedophile rings. This is what we're facing, yet what points are they going to lose? Where is the disqualification of senior officers of their companies or their business? They are serious questions to ask. That's equivalent. But what's equivalent for one is not right for the other.

Were the government's demerit scheme applied to banks, for owing their customers so much compensation, how many points do you think they would be up? After the banking royal commission the Commonwealth Bank had to pay out a whopping $2.17 billion in compensation to customers who were ripped off. If we were to take the demerit system that applies for unions and apply that to banks, that would be 10 million penalty units incurred. The Commonwealth Bank breached the threshold, in an application being brought forward, 11,000 times. Where's the corporate equivalence? Where is it? NAB has set aside some $1.18 billion in compensation for its theft. That's 5.6 million penalty units. That is 6,222 times they have gone over the threshold. Where's the corporate equivalence? Let's take out the 23 million and many more examples that exist from their recent extravaganza of operations; Westpac and ANZ are already paying out $1.1 billion each in compensation. That's roughly 5.2 million penalties units each. If we were debating an 'ensuring integrity of banks' bill and applying the same standards then over 5,500 applications could be made against the big banks. That's corporate equivalence. But it's not just the banks; Bunnings, Domino's 7-Eleven, Fedora and Woolworths have taken millions from workers.

Talking about corporate equivalence, let's go back to a very important point that Senator Ayres raised before about 'Pig Iron' Bob—your hero, Bob Menzies, the guy who sent all the pig iron over to make bombs and maim and kill innocent people in China. Let's use your hero. That was banned. Unions banned that, and action was taken against them. Then we turn to the example of environmental questions and talk about green bans—issues that people turn around and take on, which was the most important thing that was done to save The Rocks in Sydney. Those workers went on strike, went off the job and gave up their wages to save Sydney. That would be illegal under this bill. That would be illegal under this system. They would be deregistered.

I'll use the examples of actions against Fiji and Iraq that I've been involved. The Indian government, during one of the Iraqi wars, refused to fuel Australian planes, because they wanted to keep the fuel to get their own nationals out of the Middle East. The union I'm still a member and an official of put bans on Indian flights. Do you know what happened? The fuel got released for Australian people to get out of that country. Those are breaches of the Fair Work Act, and I'm proud to say that the union said that they would stand up for Australians who were stranded in the Middle East. Fiji—in actual fact I have dealt with Mahendra Chaudhry over a number of years, seeing the work he did in Fiji when the coups occurred and the response to those coups. His son worked side by side with me for a number of years as an officer of the TWU. When the coup occurred in that country, he tells the tale—in actual fact he's a little bit held back in saying it himself. One of his compatriots, whilst they were locked in— (Time expired)

Progress reported.

The CHAIR (15:05): The committee is considering the amendments on sheet RC114.

Senator WATT (Queensland—Deputy Opposition Whip in the Senate) (15:05): I'd like to use this time to make a contribution on one aspect of this bill that I don't think has had a huge amount of attention in this debate so far, but I think it is extremely important that it does, and that is the proposal in this bill to increase the powers of the Registered Organisations Commission in relation to the activities of trade unions. The Registered Organisations Commission, which we know was an organisation set up by Minister Cash when she held the Industrial Relations portfolio, before she was demoted after her disgrace over the AWU raid, was established with the express purpose of going after unions. And that is indeed what it has done since it was created by Minister Cash.

I'll come to what the Registered Organisations Commission has done since its inception shortly, but just so that people are clear: in essence, what this bill proposes to do is to increase the powers of the Registered Organisations Commission by granting it the power to bring applications which could result in the disqualification of union officials or the deregistration of unions on the basis that a particular union official, in the view of the Registered Organisations Commission, is not a fit-and-proper person to hold that role. That is obviously an important power to bestow on any public authority—the ability to make a decision to bring an application to disqualify an elected office-bearer of a union, or of any other organisation, from office. And it does bestow a lot of power on the Registered Organisations Commission to make that determination as to who, in its view, is a fit-and-proper person. Of course, these matters would have to go to the relevant tribunal and be tested, but it's the Registered Organisations Commission that will initially make that decision about whether it considers a particular union official to be a fit-and-proper person and therefore whether that person should be disqualified from holding office.

If such an important and broad power is to be granted to a particular organisation, you really want to have some confidence that that organisation is an impartial entity—a high-calibre entity with high-calibre staff who can be trusted to use that power properly and to not use those powers for political objectives of the government of the day. We, of course, opposed the creation of the Registered Organisations Commission because we could see through what the government was doing. They were seeking to establish yet another enforcement agency to take out trade unions, to back up the ABCC, their other attack dog that they created to go after trade unions, and the Registered Organisations Commission was set up for the same purpose, if broader, because it had the power to cover all unions rather than just unions in the construction industry. So from its very beginning the Registered Organisations Commission had no credibility whatsoever as to its claims to be an independent organisation, and the way it has conducted itself ever since has only confirmed that.

Only this week we have seen the Registered Organisations Commission's independence again called into question. I said in my contribution in the second reading debate that this government really has a knack when it comes to choosing the timing of debating legislation, because in the very week that we're debating a bill that they say is about ensuring integrity in the trade union movement, we've of course seen Minister Taylor caught up in the latest scandal involving ministers of this government, which has led to the Prime Minister making personal phone calls to the police commissioner whose police force is investigating one of his own ministers—no integrity there. And there have been a series of other things that the government have done this week which have demonstrated their complete lack of integrity, while they insist on setting a ridiculous bar for trade unions.

But this is another example of the poor timing that the government have in choosing to debate this legislation this week. In the very week that the government bring in legislation to grant more powers to the Registered Organisations Commission to go after trade unions, by giving them the power to determine who is a fit and proper person and who should be disqualified from holding office as a union official, we see the Registered Organisations Commission's investigation into the Australian Workers Union, the infamous investigation which led to a police raid, going down in what newspapers have referred to as a 'humiliating defeat'. It's a humiliating defeat, on only Tuesday this week, for the Registered Organisations Commission, as the Federal Court quashes its investigation into the Australian Workers Union.

For those who haven't followed it, this is the investigation that the Registered Organisations Commission conducted into trumped up claims that former Labor leader Bill Shorten had engaged in some kind of misconduct when he was in his role as the Australian Workers Union national secretary over 10 years ago, 12 years ago. That investigation was deemed so worthy of being pursued—12-year-old trumped up claims designed to denigrate and go after the then leader of the Labor Party—that it has now resulted in a humiliating defeat, being totally quashed by the Federal Court and found to be invalid. We've now got a fight on in the court about whether the documents that were seized by the Registered Organisations Commission and the Australian Federal Police should be returned to the union, who owned those documents in the first place.

The question really is: why would this government expect anyone in the public to have any confidence that its latest unions attack dog, the Registered Organisations Commission, could conduct itself in an appropriate, impartial, independent and fair manner, when just this week we've seen the Federal Court strike down its most celebrated investigation into a union, on the basis that they did not have reasonable grounds for pursuing that investigation in the first place. Not only do those opposite want to retain the Registered Organisations Commission, despite the fact it has been completely delegitimised and exposed as another police enforcer for the political ends of this government; with this bill they want to give it more power to go after unions. Again, this is another sign of the fact that this bill is really just designed as the latest piece of armoury for the government to take on the trade union movement and, ultimately, to come after working people.

I think it's also worth mentioning some of the comments of the Federal Court judge who heard this case, because he goes into some detail about the behaviour of one of the senior officers, essentially the second-in-command at the Registered Organisations Commission, Mr Chris Enright. There are a number of comments that were made by the judge in his earlier judgement in this case, in October, which can only demonstrate again to anyone who's approaching this debate with any degree of objectivity—and I'm particularly talking here about the crossbench—why the Registered Organisations Commission is a completely inappropriate body to be given even more powers.

Here are some of the comments from the Federal Court judge in his judgement in October on this matter. At paragraph 339 he refers to the fact that he had concerns about the reliability of evidence given by Mr Enright. He says that the evidence given 'involved inconsistency and was not plausible'. This is the guy who the government has empowered—and wants to now give more powers to—to come after unions. This is a guy who gives evidence in court that is not plausible and is inconsistent. The judge found that Mr Enright's evidence about one aspect of these proceedings involved him reconstructing events in a number of ways. The judge talks about the fact and considers that it was 'unwise' for the person about to embark upon an independent investigation, that being Mr Enright, in which he recognised that Minister Cash—and we'll come to her in a moment—had a political interest, to have had direct contact with the minister's office. So, he's conducting an independent investigation into the AWU, but feels that it's appropriate to talk to the minister's office in the context of that investigation. And the judge then goes on to describe, in extremely kind terms, aspects of Mr Enright's conduct which can be characterised as 'overly enthusiastic or exuberant'. I think that's what you'd call a euphemism.

So, we have a government that establishes another attack dog to go after unions. They've got the ABCC. That's not good enough for this government, so they set up the Registered Organisations Commission as the next attack dog to go after unions. They stack it with people who they know are going to carry out their political objectives. That organisation, just this week, goes down in a blaze of glory in the Federal Court, in a 'humiliating defeat', as newspapers have described it, and has its most high profile investigation quashed by the Federal Court because it didn't have reasonable grounds for pursuing it. And, rather than doing what they should do, which is to abolish the Registered Organisations Commission for its obvious partisanship and incompetence, they now want to give it more power to go after unions. So, again, I say to the crossbench: if you need any further proof that this bill is not about cleaning up workplaces, or all the other things that the government comes up with, but is actually just the next step in this government's ongoing war against trade unions and working people in this country, then just have a look at what's happened this week. I've got the press-clippings here if you want to have a look at them: '"Humiliating defeat" for ROC as court quashes AWU case'.

Of course, as you will recall, this investigation all stemmed from the infamous conduct of Minister Cash and her office, where Minister Cash initiated this investigation by the Registered Organisations Commission by referring trumped-up claims about the former Labor leader, Mr Shorten, to the Registered Organisations Commission, knowing full well that they would do her bidding, because that's what they were set up to do in the first place. They launched an investigation into these trumped-up charges, and of course her office then went on to leak the fact that the police were going to be raiding union offices to the media, so that the media could be there to film it. As we all remember, Minister Cash, on many, many occasions, denied that her office had leaked this information. And of course the truth all came tumbling out, which is why she had to be demoted to a more junior portfolio and stripped of the IR role that she used to have to prosecute unions herself.

We had the Registered Organisations Commission in at estimates recently, and it just so happened that it was shortly after the October decision of the Federal Court in this matter, where the judge made all those scathing comments about the behaviour and conduct of Mr Enright. I put a lot of that to Mr Enright at Senate estimates, and I've got to tell you: I was gobsmacked by his nonchalance and his inability to understand what damning comments had been made about him and his organisation by a Federal Court judge.

I actually offered Mr Enright the opportunity to apologise to the people of Australia for the way that he and his organisation had carried out this investigation—found by a Federal Court judge to have no reasonable grounds, resulting in a humiliating defeat for the Registered Organisations Commission, and with all sorts of scathing comments made by the judge about Mr Enright's own behaviour. I gave Mr Enright the opportunity to give an apology to the Australian people. And you know what he did? Not only did he not apologise but he actually demanded an apology from me and other Labor senators for pursuing this. I remember Senator Sheldon was in the room, and there were a number of other senators there as well. I don't know if I've ever been more shocked by evidence given at an estimates hearing by a public servant than I was that night. These people are deluded about their objectivity. They are completely set up for the partisan purpose of going after unions—and this government, rather than abolishing them, actually wants to give them more power. I'd just ask the crossbench to reflect on that before this debate is over.

In concluding, I want to ask the minister some questions. Why should the public have any confidence in the Registered Organisations Commission, given just this week they've suffered a humiliating defeat where they were found to not have reasonable grounds for their most high-profile investigation? What assurances has the minister given to the crossbench about the Registered Organisations Commission's conduct in the future? And what changes will the government make to the Registered Organisations Commission to ensure this won't be repeated again? (Time expired)

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (15:20): Let me start by clarifying for the Senate—because one could be forgiven for not realising this from Senator Watt's contribution—that investigations by the ROC focus on both employer organisations and unions. It's wrong to say that it is a body only responsible for unions. In fact, most recently, an employer body against whom the ROC took court action was the Queensland branch of the Australian Hotels Association, and the penalty was paid by that organisation.

Let me go to some of the other questions that Senator Watt has raised. It is very important, I think, to clarify for the record that the ROC is an independent statutory regulator. It brings cases in accordance with its compliance policy—

Senator Pratt: That's not what the courts found—not very independent!

Senator PAYNE: I will come to that, Senator Pratt; thank you. The policy states that the ROC will have regard to matters such as the nature and the circumstances of the alleged contraventions; the number of contraventions; and the actual or potential consequences of the alleged contraventions, including harm to the organisation and its members. In fact, as the ROC testified during evidence to Senate committee hearings inquiring into this bill in particular, what they actually see in the course of their work is hundreds and hundreds of contraventions. But in the vast majority of cases they address them through other means, such as helping the organisations involved to rectify the issues and educating them on future compliance. Since its establishment on 1 May 2017—so over 2½ years now—the ROC have concluded five civil litigations and a further two remain before the court. Only three of those matters were commenced by the ROC; the others were commenced by the Fair Work Commission and transferred to the ROC.

So they see hundreds and hundreds of contraventions in the course of their business, but very few pieces of litigation. But the misconduct alleged in those cases included some very interesting facts. There was a failure by an organisation over more than a decade to lodge the prescribed information to enable the conduct of elections for officers, which—as I've been advised by senators in the chamber today—is a very important part of the work of registered organisations. There were failures to keep accurate lists of officers and a failure to notify changes to the list of officers. There was the artificial inflation of membership numbers over a five-year period by one organisation. There were contraventions of duties by officers, including through agreeing to accept payments for the organisation in exchange for failing to seek better terms and conditions for certain members, and through using organisation funds to pay for personal luxury vehicles. There was a failure by an organisation to lodge financial returns over a number of years. There was withholding the financial position of the organisation from members. There was a failure to keep proper financial records and the artificial inflation of membership numbers over a period of 12 years. These are exactly the sorts of issues that have brought this bill to this chamber, and it is exactly the sort of behaviour—in terms of basic accountability and transparency and in terms of the administration of an organisation, which belongs, rightly, to its members—that the government thinks should be addressed by this bill.

In relation to the observations that Senator Watt has made on the AWU v ROC matter, I think it is important to record that his statements are not an accurate representation of the circumstances. He is misleading the parliament about Senator Cash. The investigation was not initiated by Senator Cash, and the court did not make that finding. Let me talk about the role of the ROC and why it is appropriate for them to have standing to apply to the court, because Senator Watt has questioned that. It is the regulator of registered organisations. It is entirely appropriate for the Registered Organisations Commissioner to have standing to apply to the court for certain orders that concern the conduct of these organisations and their officials. To go back to the comparison that some in the opposition are trying to make around whether we are advancing the application of corporations law to equate with registered organisations or not—and I am still very confused by what those opposite really think on that matter—this is comparable to the standing that ASIC has in winding up a company or the disqualification of directors.

In this bill, however—let me be absolutely clear—the Registered Organisations Commissioner will have standing to apply for certain orders only when it believes that a relevant ground for disqualification, cancellation or alternative orders applies. It is only the Federal Court who can make a relevant order. That is actually distinct from Corporations Law, where ASIC itself can in some circumstances disqualify directors of a company or wind up a corporation without a requirement for any court action. With regard to the recent AWU v ROC matter—and I was at the most recent estimates, to which Senator Watt refers—I do want to correct some wilful falsehoods that have been advanced by those opposite. In the debate in this chamber this week some statements have been made which in my view are absolutely outrageous, particularly when they are made with the protection of parliamentary privilege. They are not supported by the facts of the matter or the judgement of the Federal Court.

The court found—and this is the finding—that the ROC's investigation was not commenced for an improper political purpose. It further found that there were entirely reasonable grounds for the Registered Organisations Commission to commence its investigation into whether the financial reporting obligations for loans and grants and donations had been contravened. In fact, to quote from the judgement, as Senator Watt did in his own remarks, Justice Bromberg stated at paragraph 127:

There is little doubt therefore, and the AWU did not contend to the contrary, that it was open for Mr Enright to come to the view … that there was a reasonable basis for suspecting contraventions of s 237(1) and that therefore, there were reasonable grounds for conducting an investigation as to whether s 237(1) was contravened by the AWU in the financial years ending 30 June 2006 and 30 June 2008.

Further, in recognising the potential for an appeal of the decision, which I note that the ROC has indicated that it intends to pursue, there is no operative order for the return of documents to the AWU, notwithstanding the fact that those opposite continue to insist that there is. Indeed, that order has been stayed, pending a hearing and determination of any appeal.

Let me add, in relation to this matter, that the court's finding was in fact that only part of the Registered Organisations Commission investigation was invalid, and that was on a technical ground concerning a provision that deems conduct that was against an organisation's rules to be in accordance with the rules if the conduct occurred more than four years ago. It is the effluxion of time that rendered that finding, one delivered by the court. While Justice Bromberg's order of 26 November this week declared the decision to investigate to be invalid, His Honour's substantive decision of 11 October 2019 found there were entirely reasonable grounds for the Registered Organisations Commission to commence its investigation into whether the financial reporting obligations for loans, grants and donations had been contravened. I am acutely aware that the ROC has publicly stated its intention to appeal this matter, and I do think further extensive comment would be inappropriate at this time. I remind the chamber that, no matter who the minister is—Minister Cash at the time or any other minister—they had no power to direct the ROC in their actions.

Senator WALSH (Victoria) (15:29): The comments and questions that I have for the minister relate particularly to the application of the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 to some groups that we seem to be being led to believe are not affected by the bill—in particular, women workers, migrant workers and low-paid workers. I ask these questions because I spent 17 years in the union movement representing many of those groups—representing many of Australia's women workers, migrant workers and low-paid workers. So far today, there's nothing that the minister has said that convinces me that these workers won't be targeted by this bill and by the government. So I seek clarity on some issues in relation to these groups, because I'm extremely concerned about the future that those workers will have under this government. I'm particularly concerned because, for these groups, unions are needed more than ever before. We have a persistent gender pay gap between women and men, we have rampant exploitation of migrant workers on farms, in cafes and in retail franchises, and today we have the lowest growth on record. Of course, that's hitting some of our lowest-paid workers hard. I'll give you, Minister, some examples that I'm concerned about and then some questions for your response.

On the issue of industrial action and unions receiving demerit points, I'm thinking of the early childhood educators that I've represented in my working life. The minister has said specifically that this bill won't affect childcare workers and described claims that the bill may affect childcare workers as 'outlandish'. These, of course, are workers who are dedicated and professional. Ninety-five per cent of early childhood educators are women, and they are some of the lowest-paid workers in the country. But it seems to me, from listening today, that this bill will impact anyone who decides that they can't win the respect and recognition that they deserve within the constraints of the Fair Work Act, and it will impact anyone who then decides to try to win that respect and recognition by taking direct protest action or unprotected industrial action.

Unprotected industrial action, as we've heard from other senators today, can occur in a variety of situations. It occurs when the Fair Work rules don't work for workers to have a say and make their case. Take those early childhood educators who have walked off the job six times over the last couple of years in a fight for equal pay. They did that because the Fair Work rules just don't help them. They really can't bargain workplace by workplace across the tens of thousands of individual workplaces that they're operating in: council centres, non-profit centres, for-profit centres and standalones. Because they don't have access to enterprise bargaining, they therefore don't have access to the protected industrial action system in order to make their wage claims effective, and they really have no mechanism to win a wage rise of the scale that they need other than engaging in direct protest action—and that's what they've resorted to. Walking off the job six times in the last two years, they've taken that direct protest action.

It could perhaps be argued that walking off the job might constitute unprotected industrial action in that sector, it could perhaps be argued that these employers are operating in the federal system and it could perhaps be argued that walking off the job in childcare centres could have a significant community impact. So, if that action had been deemed unprotected and obstructive, my understanding is that those union members could have had their union referred for disqualification of officials, to be put into administration or to be deregistered. Of course, that would hurt tens of thousands of educators, who are already so undervalued and underpaid. The union is their voice, and my concern is that this bill is trying to take their voice away. My concern is that early childhood educators could be affected by this bill, contrary to the minister's statements last night. I'll come to my question about that in a moment.

I'm also thinking today about the idea that this bill delivers equivalence between the corporate sector and unions on what we are calling paperwork breaches. I'm particularly thinking about that in relation to the wage theft that I've seen firsthand in the hospitality industry. We've already covered today that wage theft is rampant and out of control. We're still waiting for action from this government from the Migrant Workers Taskforce.

The Fair Work Ombudsman investigated hospitality last year and found something like 70 per cent of businesses to be non-compliant with the award. That noncompliance included breaches like not providing pay slips to workers, which was an example that the minister cited this morning. It's my understanding that there's no suggestion that those 70 per cent of businesses in hospitality who were found to be non-compliant with the award be deregistered or wound up. It's my understanding that there's no provision in this ensuring integrity bill to allow unions to apply to deregister companies that underpay workers or steal their wages. But it is my understanding that the very union that fights against wage theft now has to deal with this bill.

If a union racks up three paperwork breaches then it is in the firing line. Those breaches could be as minor as how the union keeps the credit card details of its members up to date or how the union submits paperwork in order to visit sites when investigating the wage theft that we're talking about. It's my understanding that, to make matters worse, it could be the very employers that the hospitality union is investigating who apply to the court for orders disqualifying a union official from office. It seems that there is no equivalence for unions in this. The union can't apply to have the directors of companies that steal wages disqualified, and there's no suggestion that the bill could be used in any way by unions to have companies that underpay their workers wound up.

The third area of concern I have in relation to the bill and the experience of some of Australia's lowest-paid workers relates to the recent merger of two of the largest unions in Australia—United Voice and the National Union of Workers, which merged to form the United Workers Union. I have concerns about what might have happened with that merger had this law been in place at the time. The merger was democratically decided. Thousands of union members voted in support of it. In fact, 45,000 union members chose to take the time to vote—in their own time they voluntarily voted in that union election. Over 90 per cent voted yes. That, of course, is exactly as it should be—union members deciding the future of their own union. They talked about it, debated it, thought about their future and voted.

Under this bill, employers can apply to block union mergers through the proposed public interest test if one of the unions meets a threshold of contraventions. It's an internationally accepted human right that union members get to freely decide what happens with their union, who it joins with and who leads it. We know from that United Workers Union case that union members are extremely engaged in their unions and have significant ownership of their unions. This bill denies those union members the ability to decide the future of their union. It allows them to be stood aside while employers and the courts decide the future of the union instead.

Again on the issue of corporate equivalence: I don't recall any union being asked whether they approve of the merger of two corporations. The government may claim that this bill is to bring the regulation of trade unions in line with that of corporations, but it seems like that is not true. Unions can't seek to have a company director disqualified when that company has been endangering people at work or stealing their wages, unions can't apply to have a corporation deregistered or wound up and unions can't apply to stop companies from merging. So, having listened to the debate today, it seems to me that this remains an extraordinary effort on the part of the government to hand over power to employers to shut down unions, and that includes unions of women, migrant workers and low-paid workers, who the government have been claiming will not be affected by this legislation.

My questions to the minister relate to those examples I just gave. The first question is in relation to early childhood educators. If those early childhood educators walking off the job six times, outside of any application for protected industrial action, was deemed unprotected action or obstructive industrial action, can you confirm that the union for early childhood educators could face deregistration proceedings under this bill?

The second question is about the example of wage theft in hospitality and the provisions of the bill in relation to that. Could you confirm whether it is the case that an employer being prosecuted by a union could apply to disqualify the official conducting that prosecution? Further to that, is there anything in this bill that would allow unions to apply to have companies that have been found to underpay workers wound up? If not, is the government proposing such legislation?

Finally, in the case of the merger of two unions that represent a lot of our lowest paid workers, migrant workers and women in this country, could the merger of United Voice and the NUW have been reversed, after being approved through a ballot of members, by application of the public interest test—on the application of a disaffected employer—if one of the unions had met the threshold of contraventions? So my question is: could the merger have been stopped after being approved by the democratic ballot of members? Also, Minister, in relation to the merger provisions, I am seeking clarification as to whether contraventions that occurred prior to the law being in place would be counted towards the threshold for any future mergers. I thank you for your answers.

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (15:43): I think I have most of the issues that Senator Walsh has raised there. Let me start by noting for the record that, in relation to migrant workers, it was this government that established the Migrant Workers' Taskforce, chaired by Allan Fels, in 2016 as part of our then election commitment to protect vulnerable workers. In March of this year, we accepted, in principle, all of the 22 recommendations of the taskforce, including the criminalisation of serious wage exploitation and the establishment of a national labour hire scheme. So that is an important step that has been taken by the government. But I will come back to that and other matters.

Senator Walsh asked about action by early childhood educators and what would be deemed obstructive behaviour. The answer that I will give to you is very similar to the answer that I gave to Senator Sheldon and to other senators. The ground in section 28G of the bill only captures industrial action that has 'prevented, hindered or interfered with the activities of a federal system employer or the provision of any public service' by a government authority; or 'had, or is having or is likely to have, a substantial adverse effect on the safety, health or welfare of the community or a part of the community'.

It's not a new ground, Senator Walsh. I would remind the chamber it's not a new ground. It is an existing ground in the legislation. It was included by your government in the Fair Work (Registered Organisations) Act 2009, and I'd point you to sections 28(1)(b) and (c). What I would assure the chamber, as I have in other responses to senators today, is that, although you may wish to assert otherwise, the fact is that, with the safeguards, which are additional safeguards, that are being introduced in this bill and with the amendments that we've moved here today, there will actually be a higher threshold for the court to make an order than is currently the case under the existing registered organisations act. And I think it is a very important note to make, Senator Walsh, and one which you and others have not acknowledged in your questions today.

If I could come to the question of underpayment of vulnerable workers and protecting vulnerable workers, and I have said this in the chamber before this week, this government has zero tolerance for the exploitation of workers by employers. That includes underpayment of wages or any other exploitation. In fact, what we have done—particularly in relation to the support for the Fair Work Ombudsman, as well as increasing penalties against employers who do break the law by up to tenfold—are very important steps.

In the last financial year, 2018-19, the Fair Work Ombudsman, with better resourcing, recovered 64 per cent more money for workers compared with the previous Labor government's last full year in office, 2012-13. We also secured more than double the amount of court-ordered penalties against employers. We see that those higher penalties that I referred to just a moment ago are also having an impact. We've seen the first decision taking into account our new protecting vulnerable workers legislation, handed down by the court in late August, and explicitly, clearly, awarding penalties of over $125,000 against the operators of two sushi outlets in Queensland.

Importantly, the Fair Work Ombudsman's strong stance is also delivering results. The latest data that we have confirms that we have seen double the amount of litigations filed. So they are on task. They are working very hard and getting results in terms of holding employers who would do the wrong thing to account. We have also seen a 60 per cent increase in this calendar year to date, compared with the last, in the amount of money actually recovered for workers by the Fair Work Ombudsman, and that has equated to 20 per cent more employees benefiting from Fair Work Ombudsman recovery action. So, notwithstanding the fact that those opposite say that nothing has been done, the facts—absolutely incontrovertible in this case—indicate otherwise.

We are also, as I have said in relation to the Migrant Workers Taskforce, drafting legislation to introduce criminal penalties for the first time for the worst forms of worker exploitation. I've referred before in the chamber, in question time and in other discussions and in the debate today, to the Attorney-General and Minister for Industrial Relations' discussion papers focused on identifying further improvements to the protection of employees' wages and entitlements, including stronger civil penalties, greater deterrence for sham contracting and closely examining the suitability of employers' liability where entities in their supply network also flout employment laws. We're going to release a further discussion paper, seeking feedback on the compliance and the enforcement framework, and that will include canvassing faster, more efficient remedies for workers to be able to recover unpaid wages, and empowering the Fair Work Ombudsman to pursue the banning and disqualification order applications against directors of underpaying companies. I have in previous discussions today directly quoted the Attorney-General on those matters, where he has agreed with the concerns that have been raised about these issues and indicated that they are matters also of concern to him and he wishes to see the law responsive to those matters.

Senator Walsh also said that there were specific workers—the categories of which she outlined—targeted by this bill and targeted by the government. There is nothing in this bill which targets specific workers, and I want to be very clear about that. There was also, I think, a statement—I was going to say an implication, but I think it was probably more express than that—in relation to the powers and rights of unions. I want to again clarify to the chamber that the bill doesn't remove any powers that the unions have under the Fair Work Act or the Registered Organisations Act, nor does it stop them from exercising their rights under the law. It does nothing to diminish the right to form a union or join a union. It doesn't limit the legal rights of unions to organise, to bargain, to take protected industrial action, to represent their members, to investigate safety or underpayment issues, or to exercise rights of entry. We continue to regard the performance of those functions by unions as a vital element of our industrial relations framework—and that will remain the case.

That leads me again to the question of obstructive industrial action, because that was the context in which Senator Walsh cast that point—and I want to go back to that. There have been a number of examples raised today, and Senator Walsh has added to those this afternoon. We've had raised the 1970s green bans; campaigns against asbestos companies; action by armoured car workers and transport workers; and now, in this case, action by early childhood educators. But those opposite have not been able to point to any relevant court orders or any designated findings which would actually engage, enliven, the provisions of this bill. It is not even clear to me that all of those examples constitute the sort of industrial action that the bill envisages. What that means, ultimately, is that the thresholds in the bill relating to disqualification on the obstructive industrial action ground would not actually apply. Even in the case that one of these hypothetical examples, or examples, could amount to unlawful industrial action, the bill then contains additional safeguards to ensure that important civic duty or public health campaigns would not be subject to a disqualification order.

I go back to the basic requirements of what the action would have to look like to be subject to a disqualification order and for it to be a ground for deregistration under the bill. That requires that it must have prevented, hindered or interfered with the activities of an employer or any relevant public service, or had a substantial adverse effect on the safety, health or welfare of the community. That is a significant threshold. Unlawful industrial action without these features will not give rise to a ground for deregistration under the bill. Under the bill and the amendments that we are talking about this afternoon there will be a higher threshold before the court can make an order than is currently the case under the existing Registered Organisations Act.

And, again, I remind those opposite that the threshold that is in the existing Registered Organisations Act is your threshold—your threshold, which has been in place for 10 years. This bill will provide a higher threshold, and those additional safeguards in that higher threshold include that the Registered Organisations Commissioner must satisfy the court that it would not be unjust to cancel the registration, taking into account the nature of the matters, the action taken in relation to those matters, the best interests of the members and any other matter, including the public health objectives of such actions. The court is prohibited from making the order unless it's satisfied that, having regard to the gravity of the matters constituting the ground, disqualification would not be unjust—and only the Registered Organisations Commissioner will have standing to bring that application.

Senator Walsh also raised matters in relation to paperwork, and I am happy to go back to that because a number of senators have done so. Let me again be very clear: it is simply not true that a union could be deregistered for merely submitting paperwork late. Accidentally lodging paperwork late will not mean a union is deregistered. There is no conduct that will automatically result in deregistration under the bill. It is all at the discretion of the court, which cannot deregister a union if it would be unjust to do so. In fact—and I know that facts are not what those opposite are dealing with—lodging paperwork late will not even in and of itself give rise to a possible ground for cancellation. I challenge those opposite to point to any provision in the deregistration schedule of the bill that provides for a specific ground for deregistration of an organisation for three minor paperwork breaches. I challenge them. They can't do it. They haven't done it all day and they are not able to do it now.

Briefly on mergers, we see in the government amendments a limitation of the circumstances in which a proposed amalgamation of registered organisations will be subject to a public interest test, as Senator Walsh asked about. Only some amalgamations will be subject to this test. Frankly, there will be mergers of organisations with a long history of breaking Australia's industrial relations law and the potential to spread law-breaking cultures to other organisations that should be subject to a public interest test. The amendments provide that a full bench of the Fair Work Commission will only apply the public interest test in circumstances where at least one of the organisations wishing to amalgamate has 20 or more compliance record events that have occurred in the last decade. That is only organisations that have a significant number of compliance record events during this time period. Only they will be subject to the additional oversight of the Fair Work Commission by way of the public interest test provided for in the bill.

As it stands, I'm advised there are only three organisations that clearly exceeded the requisite number of compliance record events in the preceding decade—one we spoke about earlier today, the CFMMEU, and the other two are the TWU and the Musicians Union of Australia. That means that approximately 96 per cent of registered organisations would not be subject to the public interest test as it stands, and even those four organisations that would currently be subject to it will eventually not be if they cease breaking the law, if they cease unlawful actions. Those points, I think, are important to place on the record.

The senator also asked me about the application of the public interest test in relation to corporate matters. We know that section 50 of the Competition and Consumer Act provides that in certain circumstances a merger can't go ahead if it would substantially lessen competition in any market unless the ACCC authorises it. The ACCC can only authorise a merger if it would not substantially lessen competition or the merger would benefit the public and this benefit would outweigh any detriment to the public. So there are public interest tests on both sides of this coin. I am happy to provide further information to the chamber.

Senator FARUQI (New South Wales) (15:58): The Greens have made it very clear that we oppose this bill. We don't like this bill at all. That's because this bill is a clear attack on workers and on unions and their members. This bill is a political and ideological attack on unions and their members and also the ability for unions and their members to work for the good of working people and for a fair and just society for everyone. This bill is anti-democratic, and that's why the Greens strongly oppose this bill.

We also don't think that it can be amended in a way for us to support it. We agree with Labor on that point. That goes for the government amendments that we are discussing today. However, we have circulated amendments of our own which are very measured and will make the bill just a little bit fairer and more reasonable. It is hard to make this bill really fair and reasonable; it needs to just be put in the bin to do that. These amendments won't fundamentally change the bill in a way that we would like, and that's why I want to be upfront with senators and say that, even with minor tweaks, we'll still be opposing the bill. But we do hope our amendments are considered on merit.

I want to talk a little bit about the timing and the atmosphere in which this bill has been brought into parliament. We've now come to expect headlines of possible corruption by ministers and of interference in our democracy by lobbyists almost every single week. This has really eroded trust in our democracy to a historic low. We are in a time when trust in democracy, in politicians and in government is at an all-time low. The level of democratic satisfaction has plummeted steadily and pretty drastically, from 86 per cent in 2007 to just 41 per cent in 2018. That's less than half of the community that trust our democracy, and here we are putting a bill forward which is supposed to ensure integrity of unions and their members but does nothing to ensure the integrity of the politicians sitting in here. If we go according to the way trust in democracy has been plummeting, by 2025 fewer than 10 per cent of Australians will trust our politicians and political institutions. In effect, that sort of stuff makes a government illegitimate, and it really has a very negative effect on our social and economic wellbeing. So I think this should really be a wake-up call for this government, and parliament should not be able to force workers and unions to abide by these new so-called integrity standards while letting politicians continue to escape scrutiny all the time.

I have a couple of questions for the minister. One of those is on mergers. Minister, at the moment the process by which unions merge in Australia is a democratic vote of members overseen by the Australian Electoral Commission. The entire process is overseen by the Fair Work Commission, and there are already conditions that need to be met. So, from my perspective, this new test that has been put up, the public interest test, is undemocratic and open to corporate interference. I just want to see what justification you have for government to intervene and block unions from merging. From my perspective, the only people who should be able to make that decision are the members and the unions, because otherwise, with government and ministerial interference, it just becomes a political football.

My other question is around the review of this act. We have heard so many concerns about this bill. We've spent three days in this chamber sitting here, literally hearing one concern after another about how damaging this bill will be for unions, for members, for workers and for society at large if we undermine the great work that the unions in Australia have historically done and continue to do to protect workers and their interests, rights and wages. So why, given that there are so many concerns—concerns that organisations like the Parliamentary Joint Committee on Human Rights have raised and concerns that we heard during the committee inquiry on this bill itself—don't we have a period after which this act will be reviewed and considered with an eye to whether the commission, the ROC, is acting properly on this new legislation?

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (16:03): Let me go to the question of mergers. The government has considered, based on experience, that the amendments we propose today will limit the circumstances in which a proposed amalgamation of registered organisations will be subject to a public interest test, so that only some amalgamations will be subject to this test. Mergers of organisations, as I said in part to Senator Walsh, with a long history of breaking Australia's industrial relations law and the potential to spread those cultures to other organisations should, in the view of the government, be subject to a special interest test.

So what the amendments provide for is that a full bench of the Fair Work Commission will apply the public interest test only in circumstances where at least one of the organisations wishing to amalgamate has 20 or more compliance record events that have occurred in the last 10 years. Only organisations that have a significant number of compliance record events during this time period will be subject to the additional oversight of the Fair Work Commission by way of the public interest test provided for in this bill. What the Fair Work Commission is to have regard to, in determining whether the amalgamation is in the public interest, is any compliance record events that have occurred for each of the existing organisations. That serves to significantly narrow the potential amalgamations to which the public interest test will apply to only those with a sufficiently serious record of noncompliance. Even then, it's actually a threshold decision about whether the test applies, not the test itself. The amendments also require that decisions of the Fair Work Commission relating to the public interest test must be in writing, must include reasons and must be published on the commission's website. The amendments also require the Fair Work Commission to consider the gravity of compliance record events if applying the public interest test proper.

I would also add, specifically in relation to the question Senator Faruqi raised in terms of members, that it is our view that mergers of organisations with a long history of breaking industrial relations laws can not only affect the members of those organisations; it also has an impact, an effect, on other workers, employers and the economy more broadly. The changes in the bill will give others, including employees and employers, the opportunity to have a say and make a contribution. In any case the current law as it stands does not even allow all members to vote on a merger in some circumstances.

I'll give you an example. Under the current laws there are mergers which don't go to a ballot of members. Those that do require only 25 per cent of members on the organisation's roll of voters to actually vote in order for the ballot to be valid. Only 50 per cent plus one of those voting need to vote yes in order for the amalgamation to go ahead. Mathematically that means a merger can go ahead if just 12.5 per cent of the members vote for it. We saw this in the case of the merger of the then CFMEU, the MUA and the Textile, Clothing and Footwear Union. The CFMEU, in this case, successfully applied for an exemption from a vote of its members on the merger. What it meant in that case is that the members of the largest union involved had no say in whether it went ahead. Less than six per cent of the total members of the CFMMEU, as it was formed, voted to approve that merger. That was 6,456 members out of over 110,000 members. That's despite the fact that we know certain senior officers of the CFMEU expressed opposition to the merger.

Senator Walsh in her questions raised the merger of the National Union of Workers in the United Voice merger. Only 29 per cent of the members of those unions actually voted in support of the amalgamation. In that case it was 42,860 members out of 148,434 members. In terms of whether public interest considerations apply, they're applied by the Fair Work Commission in 16 different contexts under the existing Fair Work Act. For example, the commission also has to consider the public interest before approving an enterprise agreement that would not pass the better off overall test. Additionally, until 2009, with the old Australian Industrial Relations Commission—familiar to those of us who have been canvassing these issues for some time—public interest test considerations were required to be taken into account by the commission in determining whether it exercises its powers under the registered organisations provisions. This is not an unusual step. The last iteration of the requirement was subsection 103(2) of the now repealed Workplace Relations Act 1996. That, relevantly at the time, required the AIRC to take account of the public interest when performing its functions under the registered organisations provisions. We also see public interest tests in state industrial legislation, including in Queensland, in New South Wales, in South Australia and in Western Australia.

I want to also make clear that, in terms of the public interest, the nature of the submissions or the nature of the bodies and persons by whom submissions can be made on that, the existing organisations themselves, along with other organisations representing employers or employees in the relevant industries that might be affected by a merger, will be able to make submissions on the public interest. A body is able to make submissions if it represents employers or employees in the relevant industries. Any person with a sufficient interest, as determined by the commission, will also be able to make submissions along with the Registered Organisations Commissioner and relevant ministers. The government believes that this is appropriate given the public interest nature of the test. It's similar to interested parties' ability to make submissions when the ACCC considers whether a merger would be in the public interest. Of course, it's also the case that the Fair Work Commission already has general discretion to hear from any person, and section 590 of the Fair Work Act covers that.

In the context of mergers, the Registered Organisations Act also provides specifically that the Fair Work Commission can inform any person who's likely to be interested in the matter and can receive submissions from them on certain matters, and that applies to section 54. There are also, as I pointed out to Senator Walsh, comparisons in relation to the public interest test for mergers of corporations. I won't go into those in relation to Senator Faruqi's questions, because they did not go to that. But that does give some background and outline of why we believe we do need a public interest test for mergers of registered organisations but, under the amendments that the government has moved today, in a very limited context.

Senator WATERS (Queensland) (16:11): I rise to speak on the amendments and the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019. The bill doesn't really ensure integrity, though, does it? So there's a bit of a misnomer in the title. I think we all know that the government doesn't really want to ensure integrity in any sphere, because, if it did, surely it would bring on a bill to set up an integrity commission—one that might cover the activities of politicians, public servants or business leaders that seek to influence decision-makers, much like the bill that this chamber actually passed a few months ago and that's now sitting on the House books and probably won't get a look-in, because this government doesn't really want to ensure integrity, does it? It just wants to kick its political opponents.

This whole bill is about demonising the bodies that represent workers, that stand up for all of our rights, that, in fact, delivered us a 30-hour work week and that gave us weekends. I'm a proud union member. I have been for a very long time. The Australian Services Union are the union to which I belong, and I'm grateful for the work that they've done to stick up for workers in that sector and I'm grateful for the fact that we have weekends and 38-hour work weeks. I know most of us in here often don't get to experience those things, but unions have worked for those outcomes.

What we've seen today and, in fact, what we've seen all week is the government messing with the Senate timetable to ram this bill through when what it actually, in my view, should be concerning itself with is not only restoring integrity and establishing an anticorruption body that actually stops corruption and genuinely restores integrity but also looking at workplace health and safety. I'm from Queensland, and we saw media reports in the last couple of days that found that not one, not two, but seven workers have been killed on mine sites or quarry sites in the last 18 months. We all know that workplace health and safety conditions aren't strong enough and we know they're not strongly enforced. That's exactly why we need strong unions: to protect workers' working conditions.

I am embarrassed that this government, rather than dealing with, say, national industrial manslaughter laws, is instead wanting to attack unions that are simply trying to protect workers and make sure they can go home safe at night. I had a motion to move today that noted those tragic, avoidable deaths and noting that this government, rather than demonising and attacking unions, maybe should turn its mind to national industrial manslaughter laws, but we didn't even get to motions today because this government is ramming through this particular bill. In fact, we haven't got to a lot of other business this week, again, because this government wants to ram through this bill and it just wants to attack it political opponents. I'm embarrassed and I think the people that are working on those sites and ordinary working people will be outraged.

This is a flagrant attack. If you really want to restore integrity then why are you attacking one particular sector—and a sector that represents workers, to boot? If you really want to ensure integrity, stop taking corporate donations from big business: $100 million since 2012. Policies for sale, access for sale and cushy jobs when you leave this parliament—that's the lack of integrity that this chamber should be addressing. That is exactly why we have managed to cobble together enough support not from this government but from the other people in the chamber to pass a bill to set up a national integrity commission, an anticorruption body, a federal ICAC or whatever you want to call it. We passed that bill a few months ago. As I said before, it hasn't seen the light of day in the House of Representatives, because this government does not want to ensure integrity. It actually just wants to demonise workers and crack down on unions. This is the government that brought us Work Choices. This is a government that has cut penalty rates. This is a government that turns a blind eye to underpayment of wages by its big business donors. This is not a level playing field, folks.

If you, the government, want to ensure integrity, why don't you start actually addressing those flagrant breaches of the law and why don't you crack down on that dodgy behaviour? I know those people give you money. It shouldn't actually determine your policy decisions. That's corruption. That's policy for sale. That's why we need an integrity commission—to regulate the activities of who can buy what in this place. We don't think that any of us should be for sale. We don't think that money should be having an influence on the decisions that get taken in this chamber or any other place. We think that the public interest—the interests of the community and the planet—should be what's driving the decisions that we all take collectively in these chambers.

But, no, money talks in this joint, and so we see massive corporate tax cuts and massive corporate donations. We see stagnant wages and we see wage theft. We see penalty rates cut. And we see an attack on unions in that context, where big employers and big corporates are getting to write their own rules, and this government is dancing to their tune. It's embarrassing, and it is actually making workplaces less safe.

There were seven people in Queensland on mine sites and quarries who did not deserve to not be able to return to their families one evening. This government is doing absolutely nothing about that. It is making workplaces less safe by attacking the very bodies that stand up for the rights of workers to be able to be treated fairly in workplaces, to be not discriminated against and to go home without losing a limb or losing their life. Just when you think this mob can't find a new low, they manage to find one. It is breaking the nation's collective heart.

So we will sit here late tonight. They have been doing their little deals with the crossbench to try to get this through. They have passed an hours motion so that in about 12 minutes time we will just go bam, bam, bam on the votes and we won't be able to debate this anymore. The rest of the nation is actually scratching its head, thinking, 'Why do we pay them to behave like this?'

Senator Scarr: No, they're not!

Senator WATERS: I will take that interjection from, I think, the newest senator in the room. I have been here for 10 years, mate, and I am afraid it's not getting any better. I just hope—

Senator Scarr: They're not scratching their heads.

Senator WATERS: You are not scratching your head, perhaps, but the level of confidence in the community in the decisions taken in this place is at an all-time low. Not even you could deny that. It is actually factual. Instead we have a tax on working people and on the rights of ordinary Australians to go about their business, to be fairly paid, to be not ripped off at work and to go home safe. This government thinks that it is a real legend for cracking down on unions. Sorry, but you are really letting the country down.

We will be moving a series of amendments to this bill. My colleague Senator Faruqi will be doing that when the time comes. The time will be very soon, because we are being guillotined on this. One of the amendments we will be moving is to make sure that this bill does not go ahead until we have the level playing field of a national anticorruption body. You want integrity? Then don't be selective. Don't in fact just bully one sector. Why don't you actually bring in integrity across the board? That is the amendment we will be moving. We don't want this bill to pass at all. We think it stinks. We think it is an attack, we think it is politically motivated and we think it will hurt genuine, ordinary workers. But if it does go ahead—and it looks like you have sewn up the numbers for that to happen—then at the very least have the decency to be fair-minded and to ensure that the so-called integrity in your bill's name, in the biggest misnomer in the universe, is actually going to be across the board with a national integrity commission brought in. I will leave that to my colleague to introduce.

When we have the chance to be making decent policies that improve people's lives, protect workers and—hey!—even address climate change, address financial inequality and actually fix the real problems that are out there, we have a government just kicking unions because they think it is politically popular, they think it is a nice favour for their corporate donors and, frankly, they have nothing better to do.

Well, wake up. This is why the Australian public is so disenchanted with politics. It's why the vote for big parties is the lowest it has been in history, and it does not help social cohesion, let alone economic outcomes for communities or environmental outcomes for the planet, to be descending to this sort of debate.

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (16:20): There are a number of issues which Senator Waters raised to which I want to respond. It would be lax of me not to respond to Senator Waters's assertions about a lack of debate on these matters. We know that there have been 34 speakers on the second reading debate. We know that was a debate over 11 hours. I haven't done the quick maths, but it seems to me that we have been discussing for more than five hours today the amendments before the chamber. And the only amendments that have been moved, I might say, are those moved by the government.

But Senator Waters has raised a number of other issues. She has raised concerns around workplace deaths, which are a concern for all of us. Ensuring the health and safety of workers is a priority for the government, and nothing in this bill—nothing—hinders or prevents registered organisations from being able to advocate for the health, safety and welfare of their members and of employees more generally. Recognising that any workplace death is a tragedy, I do want to note that workplace fatalities have been reducing. In fact they've fallen by almost 50 per cent, from a very, very unhappy peak in 2007, and 2019 has seen the lowest rate ever recorded. But one is too many. We know that, and so we work with the ABCC. Since its re-establishment in 2016, we've seen a continued reduction in workplace fatalities in the construction industry, and, as I said, we have seen further falls in other numbers.

The senator has also raised issues around the bill itself and why it is actually necessary. What I don't understand in this debate is why the Australian Greens are prepared to tolerate the unlawfulness and the extraordinary behaviour of some registered organisations in this country and their leadership and why they apparently consider that it doesn't require addressing. It requires addressing because it involves the intimidation of young people, of apprentices, on worksites around this country. It requires addressing because it involves the vile abuse of women in workplaces in this country, which the Greens apparently think doesn't require addressing.

I don't know how those at that end of the chamber, who preach constantly about these issues, can think that about an organisation that, in the time that this bill has been before the parliament, since July, has been fined by the Federal Court. The CFMMEU and seven of its officers have been penalised almost $400,000 by the courts for more than 30 contraventions of the law since this bill came before the parliament. If you are so supportive of appropriate treatment of women and young people, if you are so supportive of the rule of law in this country, which you advocate for—as one would expect a senator to do—why do you support unlawfulness on a grand scale that sees 30 contraventions of the law since July of this year? Why do you support the ABCC needing to commence legal action against the same organisation for unlawful conduct? This allegedly included workers being spat at, being called dogs and scabs and being photographed and filmed, with images of them uploaded to the CFMMEU Facebook and then used to troll, harass, bully and intimidate people online. Why do you support that? I don't understand that. I've been sitting in this chamber listening to the Greens for a very long time. You have a mortgage on moral outrage, but not on these issues, because you don't care. You don't care about that sort of bullying and intimidation. Well, this government does.

You have also raised issues around wage theft, and I want to be really clear that registered organisations and their officers will not be prevented from continuing to advocate for wage increases as long as they're doing it in compliance with the law. In fact, we encourage them to do so. The bill does nothing, as I have said multiple times in the chamber today, to diminish the right to form a union or to join a union, nor does it limit the rights of unions to organise, to bargain, to take protected industrial action, to represent their members or to exercise rights of entry, including to investigate suspected underpayment issues, and this government has taken steps to address issues impacting vulnerable workers with our legislation in 2019.

We have taken steps to appropriately support the Fair Work Ombudsman in the work that they do, which has seen a step change in the amount of litigation and fines being applied to employers who are doing the wrong things. But, more importantly in fact, in some cases it has seen a step change in the amount of wages being returned to those vulnerable workers, over 60 per cent more in this calendar year than in the previous year. Those amendments to the Fair Work Amendment (Protecting Vulnerable Workers) Act have increased penalties up to tenfold. We have seen—for example in your own state of Queensland, Senator Waters—sushi operators in this case fined $125,000 for their exploitation of workers and those workers appropriately recompensed for that.

The senator has also referred to a federal anticorruption body. This is another stunt by the Greens—clearly unsurprising, but another stunt. It's a delaying tactic. It's not much more than that, because this bill is very, very, very focused. It's addressing a specific issue through appropriate and focused provisions to implement recommendations of the Royal Commission into Trade Union Governance and Corruption, for example, and I do think that the introduction of the issues that Senator Waters made in relation to a federal anticorruption body shows that they are completely bereft on this matter, because apparently they don't care about blatant lawlessness in a registered organisation. They don't care about that. They don't support this bill, and they won't be supporting this bill.

The government knows that registered organisations in this country enjoy a very privileged position in the Australian industrial relations system and in the economy more broadly. And, quite frankly, there's no place in this system for those who breach the trust that is placed in them by the privilege that they hold as a registered organisation. Those who act in their own interests at the expense of their members, or those who show nothing but contempt for the law that otherwise applies equally to all Australians, won't be protected by this government. But the Greens appear to want to protect that sort of lawless behaviour. We know that the royal commission itself uncovered numerous examples of flagrant disregard for the law. We know that this is not a new culture of lawlessness. We know it's been exposed over the years. We know that, for some organisations, fines are just a cost of doing business, and we think that is absolutely unacceptable.

Where courts have penalised registered organisations for doing the wrong things, whether it is endangering workers' safety, harassing and intimidating public servants, including female police officers, throwing apprentices off job sites or trying to pocket workers' hard-earned wages in union dues, we know that that behaviour is continuing, and we know that nothing that has been done so far has curtailed that sort of behaviour. Well, it's not something that we're prepared to put up with. That's why we've reintroduced this bill. It's to ensure—and in some cases restore—integrity and to provide that, where an organisation, a division, a branch or an officer is doing the wrong thing, something can be done to stop that misconduct, to assure members that their organisations are acting with integrity and in their interests.

We have had a long discussion today across a whole range of issues, including the myths that have been perpetrated, particularly by those opposite, about this bill—the myths around paperwork, the myths around what constitutes obstructive action, the myths around why individuals should not be a fit-and-proper person and the myths around whether the corporate requirements meet the registered organisation requirements and others. But, most importantly, what this bill does is to address the numerous examples of organisations and their officers who repeatedly flout the law, misappropriate funds, put their own interests before those of their members and generally fail to meet basic standards of accountability and governance.

Senator Pratt: Shame on your for guillotining this legislation!

Senator PAYNE: I might take Senator Pratt's interjection, because we were all here on 23 June 2013—

The TEMPORARY CHAIR ( Senator Sterle ): The time allotted for consideration of this bill has expired. I will now put the questions required to conclude consideration of the bill. I will deal first with the government amendments on sheet RC114 and the amendments to those amendments circulated by the Australian Greens, which can be found on sheet 8837 revised.

The CHAIR: The question is that the amendments to government amendments (9) and (11), circulated by the Australian Greens on sheet 8837 (revised), be agreed to.

Australian Greens' circulated amendments—

(1) Amendment (9), item 11, paragraph 223(1)(a), omit "a designated finding within the meaning of paragraph 9C(1)(a) (criminal) is made", substitute "2 or more designated findings within the meaning of paragraph 9C(1)(a) (criminal) are made".

(2) Amendment (9), item 11, omit subparagraph 223(1)(b)(i), substitute:

      (i) 2 or more designated findings within the meaning of paragraph 9C(1)(b) (civil) have been made against any organisation within the last 7 years in relation to conduct engaged in while the person is an officer of the organisation; and

(3) Amendment (9), item 11, subparagraph 223(1)(b)(ii), omit "least 180 penalty units", substitute "least 210 penalty units".

(4) Amendment (11), item 11, omit paragraph 223(3A)(a), substitute:

   (a) 2 or more designated findings within the meaning of paragraph 9C(1)(b) (civil) have been made against any organisation within the last 7 years in relation to conduct engaged in while the person is an officer of the organisation; and

(5) Amendment (11), item 11, paragraph 223(3A)(b), omit "least 900 penalty units", substitute "least 1,100 penalty units".

(6) Amendment (11), item 11, after subsection 223(3A), insert:

   (3B) For the purposes of paragraph (3)(c) or (3A)(c), in determining whether a person failed to take reasonable steps to prevent the conduct mentioned in paragraph (3)(a) or (3A)(a), regard must be had to the office held by the person in the organisation when the conduct occurred.

The CHAIR (16:38): I will now deal with the other amendments circulated by the Australian Greens.

Senator PAYNE (New South Wales—Minister for Foreign Affairs and Minister for Women) (16:38): In relation to those amendments, the government would seek to have the Australian Greens amendment on sheet 8844 voted on separately.

Senator SIEWERT (Western Australia—Australian Greens Whip) (16:39): We indicate that we would like our amendment on sheet 8805 voted on separately as well.

The CHAIR: The question is that item 6 of schedule 3 stand as printed.

The Australian Greens opposed item 6 of schedule 3 in the following terms—

(14) Schedule 3, item 6, page 33 (lines 25 to 27), to be opposed.

The CHAIR (16:44): The question now is that the amendments on sheet 8842 revised, circulated by the Australian Greens, be agreed to.

Australian Greens' circulated amendments—

(1) Schedule 1, item 1, page 3 (after line 9), insert:

1A Section 6 (definition of serious contravention )

Repeal the definition, substitute:

serious contravention, in relation to a contravention of a civil penalty provision by an organisation, a branch of an organisation or a person who is, or was, an officer or employee of an organisation or branch of an organisation, means a contravention that:

(a) is serious or materially prejudices:

   (i) the interests of the organisation or branch, or members of the organisation or branch; or

   (ii) the ability of the organisation or branch to pay its creditors; and

(b) is committed knowingly by the organisation, branch or person; and

(c) is constituted by conduct that was part of a systematic pattern of conduct relating to one or more persons.

[serious contravention]

(2) Schedule 1, item 2, page 3 (lines 13 to 27), omit subsection 9C(1), substitute:

Designated findings

(1) A designated finding, in relation to a person, is:

(a) any conviction against the person for an offence against a designated law where a term of imprisonment is imposed on the person for the offence; or

(b) any order for the person to pay a pecuniary penalty for the serious contravention of a civil penalty provision if the pecuniary penalty ordered is 80% or more of the maximum penalty for that contravention.

[designated findings]

(3) Schedule 1, item 11, page 8 (line 10) to page 9 (line 5), omit subsections 223(5) and (6).

[not fit and proper]

(4) Schedule 1, item 17, page 12 (line 21), omit "after commencement;", substitute "after commencement.".

[consequential—not fit and proper]

(5) Schedule 1, item 17, page 12 (lines 22 to 26), omit paragraph (2) (d).

[not fit and proper]

(6) Schedule 1, item 17, page 12 (lines 27 to 29), omit subitem (3), substitute:

(3) For the purposes of paragraph 222(2) (b) of the Act as amended by this Schedule, in considering whether it would be unjust to disqualify a person from holding office in an organisation, the Court may:

(a) if matters relate to convictions, injunctions, orders, or findings against the person in a criminal or civil proceeding—only have regard to matters occurring after commencement; or

(b) otherwise—have regard to matters occurring before or after commencement.

[disqualification orders]

(7) Schedule 2, item 4, page 17 (line 1), after "having a record", insert "within the last 3 years".

[ground for cancellation]

(8) Schedule 2, item 4, page 17 (lines 25 to 27), omit paragraph 28D(a), substitute:

(a) the organisation is convicted within the last 3 years of an offence against a law of the Commonwealth or a State or Territory; and

[ground for cancellation]

(9) Schedule 2, item 4, page 18 (lines 3 and 4), omit "designated findings have been made", substitute "3 designated findings or more have been made, in separate proceedings within the last 3 years,".

[ground for cancellation]

(10) Schedule 2, item 11, page 25 (lines 20 to 22), omit subitem (2), substitute:

(2) For the purposes of subparagraph 28J(1) (b) (iv) and 28L(2) (b) (ii), and paragraph 28L(3) (b), of the Act, the Court may:

(a) if matters relate to:

   (i) convictions, injunctions, orders that relate to the organisation; or

   (ii) findings against the organisation in a criminal or civil proceeding; only have regard to such matters occurring after commencement; or

(b) otherwise—have regard to matters occurring before or after commencement.

[application of amendments]

(11) Schedule 3, item 4, page 27 (lines 17 to 26), omit subsection 323(1), substitute:

(1) The organisation, or a member of the organisation, may apply to the Federal Court for any one or more of the declarations set out in subsection (3), if the organisation or the member considers that circumstances mentioned in a paragraph of that subsection exist in relation to an organisation.

[dysfunctional]

(12) Schedule 3, item 4, page 28 (lines 14 to 20), omit paragraph 323(3)(d), substitute:

(d) that affairs of an organisation or a part of an organisation are being conducted in a manner that is contrary to the interests of the members of the organisation or part as a whole;

(13) Schedule 3, item 4, page 28 (lines 25 to 33), omit subsection 323(4).

(15) Schedule 3, page 33 (after line 27), at the end of the Schedule, add:

7 Application of amendments

[dysfunctional]

(1) In making a declaration under section 323 of the Fair Work (Registered Organisations) Act 2009 (the Act) as amended by this Schedule, the Federal Court may only have regard to circumstances that existed after commencement.

(2) Sections 323 of the Act, as in force immediately before commencement, continues in effect, after commencement and despite the amendments made by this Schedule, in relation to circumstances that existed before commencement.

(3) For the purposes of the operation of sections 323 of the Act as continued in effect by subitem (2), the amendments made by this Schedule are taken not to have been made.

(4) In this item:

commencement means the start of the day this item commences.

[dysfunctional]

(16) Schedule 4, item 7, page 36 (line 24), after paragraph 72C(1)(a), insert:

(aa) a member of the existing organisations.

[submissions]

(17) Schedule 4, item 7, page 36 (lines 33 to 36), omit paragraphs 72C(1)(e) and (f).

[submissions]

(18) Schedule 4, item 7, page 38 (lines 1 to 28), omit section 72E, substitute:

72E Compliance record events

A compliance record event occurs for an organisation if:

(a) a designated finding within the meaning of paragraph 9C(1) (a) (criminal) is made against the organisation; or

(b) the organisation is found to be in contempt of court in relation to an order or injunction made under a designated law; or

(c) a person is found to be in contempt of court in relation to an order or injunction made under any law of the Commonwealth or a State or Territory, if the person:

   (i) was an officer of the organisation at the time of the conduct to which the finding relates; and

   (ii) engaged in the conduct in the course of (or purportedly in the course of) performing functions in relation to the organisation.

[compliance record events]

(19) Schedule 4, item 13, page 40 (lines 13 to 15), omit subitem (3), substitute:

(3) To avoid doubt, a compliance record event (within the meaning of the Fair Work (Registered Organisations) Act 2009) is an event that occurred after this item commences.

[ retrospectivity ]

Question negatived.

The CHAIR: The next question is that the amendment on sheet 8844, circulated by the Australian Greens, be agreed to.

Australian Greens' circulated amendment—

(1) Page 2 (after line 12), after clause 3, insert:

4 Review of this Act

(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by this Act to the Fair Work (Registered Organisations) Act 2009 (the Registered Organisations Act ).

(2) The review must be commenced as soon as practicable after the end of 2 years after this Act commences.

(3) Without limiting the matters the review may examine, the review must examine the following:

   (a) the effectiveness of the amendments to the Registered Organisations Act made by this Act;

   (b) whether there is a need for further amendments to the Registered Organisations Act relating to the administration of dysfunctional organisations and a public interest test for amalgamations of organisations;

   (c) whether the Commissioner has acted as a model litigant in proceedings involving the Commissioner;

   (d) whether the Commissioner has, in carrying out the Commissioner's functions, focused on matters that relate to systematic patterns of conduct engaged in by organisations or officers of organisations.

(4) The Minister must ensure that the persons who conduct the review have the ability to seek independent legal advice in relation to the review.

(5) The persons who conduct the review must give the Minister a written report of the review.

(6) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

(7) An expression used in this section that is also used in the Registered Organisations Act has the same meaning as in that Act.

Question agreed to.

The CHAIR: The question now is that the amendment on sheet 8805, circulated by the Australian Greens, be agreed to.

Australian Greens' circulated amendment—

(1) Clause 2, page 2 (table item 1), omit the table item, substitute:

The CHAIR (16:49): I will now deal with the amendments circulated by Pauline Hanson's One Nation. The question is that the amendments on sheet 8975 revised (2), circulated by Pauline Hanson's One Nation, be agreed to.

Pauline Hanson's One Nation's circulated amendments—

(1) Schedule 1, item 2, page 3 (lines 13 to 27), omit subsection 9C(1), substitute:

Designated findings

(1) A designated finding, in relation to a person, is:

(a) any conviction against the person for an offence against a designated law; or

(b) any order for the person to pay a pecuniary penalty for the contravention of:

   (i) a civil penalty provision of this Act; or

   (ii) a civil remedy provision of the Fair Work Act; or

   (iii) a civil remedy provision of the Building and Construction Industry (Improving Productivity) Act 2016; or

   (iv) a WHS civil penalty provision of the Work Health and Safety Act 2011; or

   (v) a provision of a State or Territory OHS law (within the meaning of the Fair Work Act), other than an offence.

(2) Schedule 1, item 11, page 8 (line 26) to page 9 (line 5), omit paragraphs 223(6) (d) and (e), substitute:

(d) any conviction against the person for an offence against a law of the Commonwealth or a State or Territory:

   (i) involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property; or

   (ii) involving fraud, dishonesty, misrepresentation, concealment of material facts or a breach of duty; or

   (iii) that is punishable by imprisonment for 2 years or more;

(e) in any civil proceeding against the person, an order is made that relates to conduct by the person that involved fraud, dishonesty, misrepresentation, concealment of material facts or a breach of duty.

(3) Schedule 1, item 11, page 10 (lines 32 to 35), omit subsection 226(4).

(4) Schedule 1, item 17, page 12 (lines 5 and 6), omit "a finding", substitute "a conviction, order or finding".

(5) Schedule 1, item 17, page 12 (line 11), omit "a finding", substitute "a conviction, order or finding".

(6) Schedule 1, item 17, page 12 (lines 24 to 26), omit subparagraph (2) (d) (ii), substitute:

   (ii) for an event mentioned in paragraph 223(6) (d) or (e)—a conviction or order made in relation to conduct engaged in after commencement.

(7) Schedule 2, item 4, page 17 (lines 3 to 7), omit subsection 28C(2), substitute:

(2) In working out whether there is a record for the purposes of paragraph (1) (c), the Court must only have regard to the following:

(a) any designated findings made against the organisation or part or officers or members of the organisation or part;

(b) any findings that the organisation or part, or officers or members of the organisation or part, are in contempt of court in relation to an order or injunction made under a designated law.

(8) Schedule 2, item 11, page 25 (line 13), omit "findings", substitute "convictions or orders".

(9) Schedule 3, item 4, page 31 (line 22), omit "of strict liability".

(10) Schedule 3, item 4, page 32 (lines 18 to 20), omit subsection 323H(5), substitute:

(5) A person commits an offence if:

(a) the person is given a notice under subsection (3); and

(b) the person does not comply with the notice.

Penalty: 120 penalty units.

(11) Schedule 4, item 7, page 38 (line 18), omit "finding", substitute "designated finding".

Question agreed to.

The CHAIR: I will now deal with the amendments circulated by the Jacqui Lambie Network. The question is that item 9 of schedule 2, and schedules 3 and 4, as amended, be agreed to.

The Jacqui Lambie Network opposed item 9 of schedule 2, and schedules 3 and 4, in the following terms—

(27) Schedule 2, item 9, page 24 (lines 20 to 27), to be opposed.

[delegation by the Minister]

(31) Schedule 3, page 26 (line 1) to page 33 (line 27), to be opposed.

[administration of dysfunctional organisations]

(32) Schedule 4, page 34 (line 1) to page 40 (line 15), to be opposed.

[public interest test for amalgamations]

The CHAIR (16:56): The question is that the remaining amendments on sheet 8803, circulated by the Jacqui Lambie Network, be agreed to.

Jacqui Lambie Network's circulated amendments—

(1) Page 2 (after line 12), after clause 3 insert:

4 Review of this Act

(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by this Act.

(2) The review must be commenced as soon as practicable after the end of 12 months after this Act commences.

(3) The review must examine:

(a) the effectiveness of the amendments made by this Act; and

(b) whether there is a need for further amendments to the Fair Work (Registered Organisations) Act 2009 relating to the administration of dysfunctional organisations and a public interest test for amalgamations of organisations.

(4) The persons who conduct the review must give the Minister a written report of the review.

(5) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

[review]

(2) Schedule 1, item 1, page 3 (after line 9), after the item, insert:

1A Section 6 (definition of serious contravention )

Repeal the definition, substitute:

serious contravention, in relation to a contravention of a civil penalty provision by an organisation, a branch of an organisation or a person who is, or was, an officer or employee of an organisation or a branch of an organisation, means a contravention that:

(a) either or both:

   (i) materially prejudices the interests of the organisation or branch, or the members of the organisation or branch; or

   (ii) materially prejudices the ability of the organisation or branch to pay its creditors; and

(b) is:

   (i) engaged in knowingly; and

   (ii) a part of a systematic pattern of conduct relating to one or more persons.

[serious contravention; designated finding]

(3) Schedule 1, item 2, page 3 (lines 13 to 27), omit subsection 9C(1), substitute:

Designated findings

(1) A designated finding, in relation to a person, is:

(a) any conviction against the person for an offence against a designated law where a term of imprisonment is imposed on the person for the offence; or

(b) any order for the person to pay a pecuniary penalty for the serious contravention of a covered provision; or

(c) any order for the person to pay a pecuniary penalty for the contravention of a covered provision if the pecuniary penalty ordered is 60% or more of the maximum penalty for that contravention.

(1A) A covered provision is any of the following:

(a) a civil penalty provision of this Act;

(b) a civil remedy provision of the Fair Work Act;

(c) a civil remedy provision of the Building and Construction Industry (Improving Productivity) Act 2016;

(d) a WHS civil penalty provision of the Work Health and Safety Act 2011;

(e) a provision of a State or Territory OHS law (within the meaning of the Fair Work Act), other than an offence.

(1AA) However, designated finding does not include an order to pay a pecuniary penalty for a contravention of a civil penalty provision of the Fair Work Act if the conduct that constitutes the contravention consists solely of:

(a) a failure or refusal by the person to attend for work; or

(b) if the person attends work—a failure or refusal to perform any work at all while attending for work.

[designated finding; industrial action]

(4) Schedule 1, item 11, page 6 (lines 15 to 20), omit subsection 222(1), substitute:

(1) The Commissioner may apply to the Federal Court for an order under this section if the Commissioner considers that any of the grounds for disqualification set out in section 223 apply in relation to a person.

[standing]

(5) Schedule 1, item 11, page 7 (after line 3), after subsection 222(3), insert:

(3A) If, after an application is made for an order under subsection (2), the applicant and the person to whom the application relates to reach an agreement, the Court:

(a) must consider the agreement in making the order; and

(b) may make any other order the Court considers appropriate for the purposes of giving effect to the agreement.

(3B) In determining an appropriate period for a person to be disqualified from holding office in an organisation, if the person holds such an office and the term of that office has not expired at the time of the order, the Court must consider whether it is appropriate to disqualify the person for a period that exceeds the remainder of the person's term in the office.

[disqualification order]

(6) Schedule 1, item 11, page 7 (line 8), omit paragraph 223(1) (a), substitute:

(a) 3 or more designated findings have been made against the person within the last 3 years; or

[grounds for disqualification]

(7) Schedule 1, item 11, page 7 (lines 22 to 28), omit paragraph 223(3) (a), substitute:

(a) 3 or more designated findings have been made against any organisation within the last 3 years in relation to conduct engaged in while the person is an officer of the organisation; and

[grounds for disqualification]

(8) Schedule 1, item 11, page 7 (line 29), after "the person", insert ", having the authority to do so,".

[grounds for disqualification]

(9) Schedule 1, item 11, page 8 (before line 1), before subsection 223(4), insert:

(3B) For the purposes of paragraph (3) (b), in determining whether a person failed to take reasonable steps to prevent the conduct mentioned in paragraph (3) (a), regard must be had to the following:

(a) the office held by the person in the organisation when the conduct occurred;

(b) whether the conduct related to the branch of the organisation the person was a member of.

[grounds for disqualification]

(10) Schedule 1, item 11, page 8 (line 10) to page 9 (line 5), omit subsections 223(5) and (6), substitute:

Covered conduct and bringing organisation into disrepute

(5) A ground for disqualification applies in relation to a person who holds an office in an organisation if:

(a) the person engaged in covered conduct; and

(b) the person's covered conduct was part of a pattern of conduct by the person; and

(c) the person continuing to hold the office brings the organisation into disrepute.

(6) A person engaged in covered conduct if, in any criminal proceeding against the person:

(a) the person was found during the last 10 years to have committed an offence against a law (a relevant law) of the Commonwealth or a State or Territory that is punishable by a term of imprisonment of 4 years or more; or

(b) both of the following apply:

   (i) the person was found during the last 10 years to have committed 2 or more offences against one or more relevant laws and each offence was punishable by a term of imprisonment of less than 4 years;

   (ii) the sum of the terms of punishment is 4 years or more.

(7) A person engaged in covered conduct if, in any civil proceeding against the person:

(a) the person was found during the last 10 years to have contravened a law (a relevant law) of the Commonwealth or a State or Territory with a maximum pecuniary penalty of 600 penalty units or more; or

(b) both of the following apply:

   (i) the person was found during the last 10 years to have committed 2 or more contraventions of one or more relevant laws and the maximum pecuniary penalties for each contravention is less than 600 penalty units;

   (ii) the sum of the penalties is 600 penalty units or more.

(8) For the purpose of paragraph (5) (b), a pattern of conduct by a person may begin before the person became an officer of the organisation.

(9) To avoid doubt, a person continuing to hold an office in an organisation may bring the organisation into disrepute for reasons that do not relate to the person engaging in covered conduct.

[grounds for disqualification]

(11) Schedule 1, item 14, page 11 (lines 11 and 12), omit ", Minister, or a person with a sufficient interest".

[consequential—standing]

(12) Schedule 1, item 17, page 12 (lines 22 to 26), omit paragraph (2) (d), add:

(d) for the ground mentioned in subsection 223(5)—conduct engaged in, for paragraphs 223(5) (a) and (b), after commencement.

[grounds for disqualification]

(13) Schedule 1, item 17, page 12 (lines 27 to 29), omit subitem (3), substitute:

(3) For the purposes of paragraph 222(2) (b) of the Act as amended by this Schedule, in considering whether it would be unjust to disqualify a person from holding office in an organisation, the Court may:

(a) if matters relate to convictions, injunctions, orders, or findings against the person in a criminal or civil proceeding—only have regard to matters occurring after commencement; or

(b) otherwise—have regard to matters occurring before or after commencement.

[disqualification orders]

(14) Schedule 2, item 4, page 15 (lines 7 to 13), omit the paragraph beginning "An applicant can apply" in section 27A, substitute:

The Commissioner can apply to the Court for cancellation. If the Commissioner applies for cancellation and the Court finds that the ground for the application is established, the Court may consider making alternative orders instead of cancellation only if the organisation satisfies the Court that cancellation would be unjust.

[consequential—standing]

(15) Schedule 2, item 4, page 15 (line 23) to page 16 (line 14), omit sections 28 to 28B, substitute:

28 Application for cancellation of registration

The Commissioner may apply to the Federal Court for an order cancelling the registration of an organisation, if the Commissioner considers that any one or more of the grounds in Division 3 exist in relation to the organisation.

[standing]

(16) Schedule 2, item 4, page 16 (line 18), omit "or 28A".

[consequential—standing]

(17) Schedule 2, item 4, page 17 (after line 7), after subsection 28C(2), insert:

(2A) In working out whether there is a record for the purposes of paragraph (1) (c), the Court must not have regard to conduct that would constitute not complying with designated laws by officers or members of the organisation or part of the organisation if the conduct consisted solely of:

(a) a failure or refusal by the officers or members to attend for work; or

(b) if the officers or members attended work—a failure or refusal to perform any work at all while attending for work.

[industrial action]

(18) Schedule 2, item 4, page 17 (line 22) to page 18 (line 7), omit sections 28D and 28E, substitute:

28D Ground—serious offence committed by organisation

For the purposes of an application under section 28, a ground exists in relation to an organisation if:

(a) both:

   (i) the organisation is found, in criminal proceedings against the organisation in the last 3 years, to have committed an offence against a law of the Commonwealth or a State or Territory;

   (ii) the offence is punishable on conviction by a penalty for a body corporate of (or equivalent to) at least 1,500 penalty units; or

(b) 3 or more designated findings have been made in the last 3 years against a substantial number of the members of the organisation or of a section or class of members of the organisation.

[ground for disqualification]

(19) Schedule 2, item 4, page 18 (line 9), omit "or 28A".

[consequential—standing]

(20) Schedule 2, item 4, page 18 (line 23), omit "or 28A".

[consequential—standing]

(21) Schedule 2, item 4, page 19 (after line 10), after subsection 28G(2), insert:

(2A) However, subsection (2) does not cover industrial action if the action organised or engaged in by the organisation, or the members mentioned in paragraph (1) (b), consisted solely of a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work.

[industrial action]

(22) Schedule 2, item 4, page 20 (lines 7 and 8), omit paragraph 28J(1) (a), substitute:

(a) the Court finds:

   (i) that a ground set out in the application is established; and

   (ii) the conduct establishing the ground is part of serious and systemic pattern of conduct; and

[disqualification order]

(23) Schedule 2, item 4, page 20 (lines 20 and 21), omit "The Court may do this whether or not an application for any of those orders has been made under section 28A.".

[consequential—standing]

(24) Schedule 2, item 4, page 21 (lines 5 to 12), omit subsection 28L(1), substitute:

(1) The Federal Court may make orders under this Division if:

(a) the Court finds that a ground set out in an application under section 28 in relation to an organisation is established; and

(b) the organisation satisfies the Court that it would be unjust to cancel the registration of the organisation.

[consequential—standing]

(25) Schedule 2, item 4, page 23 (line 30), omit "or 28A (or both)".

[consequential—standing]

(26) Schedule 2, item 4, page 24 (line 3), omit "or 28A".

[consequential—standing]

[delegation by the Minister]

(28) Schedule 2, item 10, page 25 (line 3), omit "or 28A".

[consequential—standing]

(29) Schedule 2, item 11, page 25 (line 6), omit "or 28A".

[consequential—standing]

(30) Schedule 2, item 11, page 25 (lines 13 and 14), omit paragraph (1) (c).

[ground for disqualification]

The CHAIR (17:01): The question now is that the bill, as amended, be agreed to.

Senator O'NEILL (New South Wales) (17:06): I present the report of the Standing Committee of Privileges entitled Foreign influence transparency—a scheme for Parliament, together with the Hansardrecord of proceedings and documents presented to the committee. I move:

That the Senate take note of the report.

The Committee of Privileges reports on its inquiry into the development of a parliamentary foreign interference transparency scheme.

As background to the committee's current inquiry, it drew on the work the committee had undertaken in the previous parliament, including discussions with its House counterpart and a briefing from the officers of the Attorney-General's Department. The committee's work was undertaken as part of an inquiry that the Senate had referred in tandem with a reference in similar terms to the committee's House of Representatives counterpart. Neither committee reported prior to the May election.

In this parliament, the matter was referred on the motion of Senator Patrick and was not mirrored with a similar reference from the House to the Committee of Privileges and Members' Interests. As a consequence the Senate committee has not undertaken any further joint work on the matter with the House committee.

The committee sought a submission from Senator Patrick, as he proposed the reference in this parliament.

The executive scheme commenced in December 2018 and is set out in the Foreign Influence Transparency Scheme Act 2018. It operates with a budget of approximately $8 million for this and the next three years. It requires people who undertake certain activities on behalf of a foreign principal to register both the nature of the activity and the foreign principal for which the activity is undertaken. The scheme also provides the Secretary of the Attorney-General's Department with information gathering powers to support compliance. It's early days for the scheme and it has limited registrations, with much of the work of the departmental officers in outreach. As of 11 November, the most up-to-date figures I was able to discern for reporting to the Senate, there were 50 people and organisations registered and 194 activities.

In accordance with practice, the bill establishing the executive scheme was referred to the Parliamentary Joint Committee on Intelligence and Security. That committee made a number of recommendations, including the removal of parliamentarians from the executive scheme, noting the 'uncertainty in the interpretation of "parliamentary proceedings"'—and to avoid members of parliament being potentially required to register under two separate schemes'. The committee further recommended that the parliament develop its own transparency scheme which would require all members of the parliament to 'report on any registrable activities, or arrangements entered into, on behalf of a foreign principal'.

The recommendation to develop its own transparency scheme was picked up by the committee's inquiry in the 45th Parliament. The new terms of reference asked the committee to consider the legislative scheme in the PJCIS report when exploring the matter.

In its consideration of the legislated scheme the committee noted the number of registrants and registered activities. It considered the response made by the Director-General of ASIO, Mr Mike Burgess, at estimates on 21 October 2019. When queried about the numbers he indicated that his view was that the numbers were meaningless as the scheme 'is one of many components'. The committee also noted the media coverage of how the information gathering powers were exercised.

The committee appreciates that members of parliament are not immune to foreign interference, particularly given media reports over recent days. The executive scheme has been developed to ensure there is transparency in the activities taken on behalf of foreign principals. However, the committee considers that there is a threshold question of whether a member of parliament, acting on behalf of a foreign principal, can also meet the constitutional requirements for eligibility to sit as a senator or a member of the House of Representatives under the Constitution.

While section 44(i) of the Constitution was, during the 45th Parliament, the subject of intense focus because of dual citizenship issues, the subsection also serves to disqualify a person who is 'under any acknowledgement of allegiance, obedience, or adherence to a foreign power'. Thus, if a senator is undertaking a registrable activity on behalf of a foreign power, there is certainly a question as to whether that activity would put the senator in breach of section 44(i) of the Constitution.

The parliament has established a register relating to section 44 of the Constitution, as well as a register of interests. These registers support the parliament's transparency and act as reminders to all members of parliament of their obligations. The committee is of the view that these registers are a ready vehicle to implement any foreign transparency scheme. However, there are substantial difficulties in developing a scheme that sits by an executive scheme which not only is experiencing teething problems but excludes not only members and senators but also their staff and state and territory members of parliament. Therefore, the Committee of Privileges will continue to monitor the executive scheme with a view to developing an appropriate one for senators and for members of the House of Representatives. I commend the report to the Senate.

Question agreed to.

Senator DEAN SMITH (Western Australia—Government Whip in the Senate) (17:14): On behalf of the Rural and Regional Affairs and Transport Legislation Committee, I present the report of the committee on the provisions of the Agricultural and Veterinary Chemicals Legislation Amendment (Australian Pesticides and Veterinary Medicines Authority Board and Other Improvements) Bill 2019 and documents presented to the committee.