Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 [2017] AUSStaCSBSD 68 (22 March 2017)

• Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017
• Search and entry powers, privacy, reversal of evidential burden of proof and privilege against self-incrimination 39

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Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017

Purpose	This bill seeks to amend Fair Work Act 2009 to: • repeal the requirement for four yearly reviews of modern awards from 1 January 2018; • enable the Fair Work Commission to overlook minor procedural or technical errors when approving an enterprise agreement; • apply the complaint-handling powers of the Minister for Employment and President of the Fair Work Commission (FWC) to all FWC Members; and • apply the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 in relation to FWC Members
Portfolio	Employment
Introduced	House of Representatives on 1 March 2017

Search and entry powers, privacy, reversal of evidential burden of proof and privilege against self-incrimination ^[39]

1.56 Proposed section 641B aims to modify the application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (the JMIPC Act) to allow a Commission to be established by the Houses of Parliament to investigate and report on alleged misbehaviour or incapacity of a Fair Work Commission (FWC) Member. The JMIPC Act establishes a framework for the conduct of investigations by a Parliamentary Commission, with powers to hold hearings and take evidence on oath, require the production of documents and issue search warrants.

1.57 The committee raised a number of scrutiny issues in relation to the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 (the JMIPC Bill) when it was before the Parliament. As this bill seeks to expand the ambit of the JMIPC Act to include FWC Members, the committee takes this opportunity to direct Senators' attention to its previous comments about the JMIPC Bill in relation to:

• the power of a Commission to issue search warrants;^[40]

• balancing privacy and reputational interests of persons subject to investigation by a Commission;^[41]

• reversal of the evidential burden of proof where a person wishes to use a 'reasonable excuse' defence to offences relating to failure of a witness to appear or failure of a witness to produce a document or thing;^[42] and

• abrogation of the privilege against self-incrimination.^[43]

1.58 The committee draws these scrutiny comments to the attention of Senators and leaves to the Senate as a whole the appropriateness of expanding the ambit of the JMIPC Act to include FWC Members.

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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[39] Schedule 3, item 1, proposed section 641B of the Fair Work Act 2009.

[40] Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 4 of 2012, 21 March 2012, pp 8–9.

[41] Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 4 of 2012, 21 March 2012, p. 9.

[42] Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 4 of 2012, 21 March 2012, p. 10.

[43] Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 4 of 2012, 21 March 2012, pp 10–11.