Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 [2017] AUSStaCSBSD 67 (22 March 2017)

• Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
• Privilege against self-incrimination 33
• Reversal of evidential burden of proof37

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Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017

Purpose	This bill seeks to amend the Fair Work Act 2009 to: • introduce higher penalties for 'serious contraventions' of prescribed workplace laws; • increase penalties for record-keeping failures; • prohibit employers asking for 'cash back' from their employees; • clarify the accessorial liability provisions relating to underpayments by franchisees or subsidiaries; • provide the Fair Work Ombudsman with new formal evidence-gathering powers; and • prohibit anyone from hindering or obstructing an investigator, or giving the Fair Work Ombudsman false or misleading information or documents
Portfolio	Employment
Introduced	House of Representatives on 1 March 2017

Privilege against self-incrimination ^[33]

1.46 Proposed section 713 provides that a person is not excused from giving information, producing a record or document or answering a question under specified sections of the Fair Work Act 2009 on the ground that to do so might tend to incriminate them or expose them otherwise to a penalty or liability. This provision therefore overrides the common law privilege against self-incrimination which provides that a person cannot be required to answer questions or produce material which may tend to incriminate himself or herself.^[34]

1.47 The committee recognises there may be circumstances in which the privilege can be overridden. However, abrogating the privilege represents a serious loss of personal liberty. In considering whether it is appropriate to abrogate the privilege against self-incrimination, the committee will consider whether the public benefit in doing so significantly outweighs the loss to personal liberty.

1.48 The explanatory memorandum explains why it is necessary to abrogate the privilege, noting that it is necessary to ensure the Fair Work Ombudsman (FWO) has all the available, relevant information to carry out its statutory functions and without abrogating the privilege the information may not be gathered and this could lead to significant delays in workers recovering unpaid entitlements or there could be insufficient evidence to commence proceedings.^[35]

1.49 In considering whether it is appropriate to abrogate the privilege against

self-incrimination, the committee generally expects that any information gained through abrogating the privilege should only be available for use in criminal proceedings when they are proceedings for giving false or misleading information in relation to the disclosure of information the person has been forced to make. This therefore requires a use and derivative use immunity to be included to ensure that the information or documents produced, or anything obtained as a direct or indirect consequence of the production of the information or documents, is not admissible in evidence in most proceedings.

1.50 A use and derivative use immunity is included where a person produces a record or document as required under paragraph 709(d) or 712(1) of the Fair Work Act 2009. However, only a use immunity is provided in relation to an individual who gives information, produces a record or document, or answers a question under a FWO notice. A derivative use immunity (which prevents information or evidence indirectly obtained from being used in criminal proceedings against the person) has not been included. The explanatory memorandum explains why this was not included:

Provision of a derivative use immunity means that further evidence obtained through a chain of inquiry resulting from the protected evidence cannot be used in relevant proceedings, even if the additional evidence would have been uncovered by the regulator through independent investigation processes. A related issue is that it can be very difficult and time-consuming in a complex investigation to prove whether evidence was obtained as a consequence of the protected evidence or obtained independently.
The burden placed on investigating authorities in conducting a prosecution before the courts is the main reason why the powers of the Australian Securities Commission (now the Australian Securities and Investment Commission) were amended to remove derivative use immunity. The explanatory memorandum to the Corporations Legislation (Evidence) Amendment Bill 1992 [at p. 1] provides that derivative use immunity placed:
...an excessive burden on the prosecution to prove beyond a reasonable doubt the negative fact that any item of evidence (of which there may be thousands in a complex case) has not been obtained as a result of information subject to the use immunity...^[36]

1.51 The committee appreciates it may be difficult and time-consuming to prove that an item of evidence was not obtained as a result of a person being required to answer questions or give information or documents to the Fair Work Ombudsman. However, the committee notes that this provision applies in the context of employees or employers who may be compelled to give evidence – it does not apply in the context of corporate regulation. The committee considers that the privilege against self-incrimination is an important right under the common law and any abrogation of that right represents a significant loss to personal liberty. As such, the committee considers it would be more appropriate if a derivative use immunity were included to ensure information or evidence indirectly obtained from a person compelled to answer questions or provide information or documents under a FWO notice could not be used in evidence against them.

1.52 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of the abrogation of the privilege against self-incrimination.

The committee draws Senators' attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee's terms of reference.

Reversal of evidential burden of proof^[37]

1.53 Proposed section 707A(1) introduces a civil penalty provision in relation to intentionally hindering or obstructing the Fair Work Ombudsman or an inspector. Proposed subsection 707A(2) provides two exceptions to this civil penalty provision, stating that it does not apply if the person has a reasonable excuse or the person was not shown the Ombudsman or inspector's identity card or they were not told about the effect of this section. The maximum penalty for contravention of the provision is 60 penalty units.

1.54 The explanatory memorandum indicates that a person wishing to make a 'reasonable excuse' bears an evidential burden (requiring that person to raise evidence about the matter), but not a legal burden (requiring the person to positively prove the matter).^[38] While the explanatory memorandum provides reasons for reversing the burden of proof in relation to this 'reasonable excuse' exception, no reasons are provided for reversing the burden of proof in relation to the exception where the person was not shown the relevant identity card or told about the effect of the section. The committee expects any such reversal of the evidential burden of proof to be justified, particularly as it is not clear to the committee why such matters would be peculiarly within the knowledge of the person who may be subject to the penalty.

1.55 As the explanatory materials do not address this issue, the committee requests the Minister’s advice as to why it is proposed to place an evidential burden on a person seeking to rely on the exception in proposed paragraph 707A(2)(b) (i.e. where the person was not shown the inspector's identity card or told about the effect of the section).

Pending the Minister's reply, the committee draws Senators' attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee's terms of reference.

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[33] Schedule 1, item 39, proposed new section 713 of the Fair Work Act 2009.

[34] Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328.

[35] Explanatory memorandum, p. 19.

[36] Explanatory memorandum, p. 21.

[37] Schedule 1, item 48, proposed paragraph 707A(2)(b) of the Fair Work Act 2009.

[38] Explanatory memorandum, p. 24.