Industrial Relations Amendment (Leave For Victims Of Crime) Bill
Debate resumed from 29 May.
The Hon. PETER BREEN [8.45 p.m.]: On the last occasion I referred to the consultation process that had taken place with Employers First, formerly the Employers Federation of New South Wales. I referred to the support of that organisation for the broad thrust of the legislation. The organisation raised one concern, however, in relation to the bill with regard to the length of time a person could take off work. Although the briefing note indicates that the United States of America legislation, which is the guideline for this bill, stipulates a maximum of 30 days unpaid leave in a period of 12 months, the question of how long a person involved in a case dealing with victims of crime might have leave is not spelled out in the current bill.
Mr Bracks of the employers group expressed concern about the effect that unpaid leave could have on an employer, particularly in relation to small business. One would assume that large businesses are in a position to carry employees on unpaid leave for an extended period, whereas smaller organisations are not. I note in passing that 96 per cent of businesses are small businesses. Those businesses may find it more difficult to hold a position open for a person who takes unpaid leave for an extended period.
I ask the Minister in his reply to the debate to indicate whether any consideration has been given to this question of the time that a person might take off work to give evidence or to be involved in proceedings as a victim of crime. The amendments I foreshadowed seek to reduce the definition of "violent crime" to include domestic violence. The United States model used for the bill was designed specifically for victims of domestic violence, whereas the terms of this bill exclude most forms of domestic violence, which would normally involve sentences of up to two years. However, an offence carrying a sentence of a period of five years must be involved before the provisions of the bill operate.
The list of persons who may benefit from the bill is needlessly restricted. A person who has a family member involved in crime who can be nominated to attend court and represent that person is in a good position under the bill, and the bill is to be commended for the extent to which it protects family members. But if a person suffers harm as a direct result of an apparent crime and has no family member or partner to nominate, the bill does not allow the nomination of another person to represent the victim. In that sense it is discriminatory. I ask the Government to support the amendments.
The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [8.51 p.m.], in reply: I thank all members for their contributions to the debate on the Industrial Relations Amendment (Leave for Victims of Crime) Bill. Yesterday the Leader of the Opposition raised a couple of points relating to the definition of a victim of crime. In addressing those points I refer the Leader of the Opposition to the detail of the definition of "victim of crime", whichmeans "a person who suffers harm as a direct result of an act committed or apparently committed by another person in the course of an alleged violent crime". In relation to the first part of the definition of "victim of crime", it is intended that only those upon whom the crime has been perpetrated should have access to victims leave. Family members or guardians of such a victim may have access to the leave in certain circumstances under the second and third parts of that definition.
The bill presents important enhancements to the rights of victims of serious crimes. Most importantly, it allows such victims to be secure in the continuation of their employment in the event that they have leave to attend relevant court proceedings, subject of course to the relevant provisions of the Industrial Relations Act 1996. The Hon. Peter Breen raised a number of matters of concern. The statewide average of the length of a criminal trial before the District Court in 2000 was 5.71 days. That might give a sense of perspective to one aspect of the honourable member's concerns. On the general point that he made about the views of Mr Garry Brack and the Employers First organisation, the Government has already given Employers First, and indeed all the employer groups, a commitment on that issue. I repeat: We intend to closely monitor the effect of the bill once it becomes law to ensure that it does not create potential problems that have given rise to these concerns. The balance of the matters raised in general debate is probably best dealt with in Committee through the two groups of amendments. The Government reserves the right to respond to the amendments in Committee. I commend the Industrial Relations Amendment (Leave for Victims of Crime) Bill to the House.
Motion agreed to.
Bill read a second time.
Clauses 1 to 3 agreed to.
The Hon. MICHAEL GALLACHER (Leader of the Opposition) [8.56 p.m.]: I move Opposition amendment No. 1:
Page 3, schedule 1, lines 6 to 8. Omit all words on those lines. Insert instead:
72AA Employees to whom Part applies
(1) This Part applies to all employees, including part-time employees or regular casual employees, but does not apply to other casual or seasonal employees.
(2) For the purposes of this Part, a regular casual employee is a casual employee who works for an employer on a regular and systematic basis and who has a reasonable expectation of on-going employment on that basis.
The amendment would provide for transparency in the operation of the bill. It addresses the distinction between groups of employees under the industrial relations system. The Opposition believes that part-time and regular casual employees should be covered under the bill. However, we also recognise that there are others outside these categories—casual or seasonal employees—who would not otherwise have an ongoing permanent employment relationship. A distinction should be made because of the unique nature of the work that they perform or the unique nature of their employment relationship.
The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [8.58 p.m.]: The Government opposes the Opposition amendment. Notwithstanding the responsible treatment of the amendment by the Leader of the Opposition, I note that the amendment was foreshadowed in the other place by the honourable member for Gosford. While debating the bill he engaged in what seemed to be an unnecessary and probably inappropriate and unwarranted attack on the union movement and the award system in this State. It was out of context and entirely insensitive to those who have been the victims of violent crime, and their families, particularly those who have had difficulty securing the type of leave provided for in the bill. The honourable member for Gosford did not even take a breath during his attack to recognise and support the needs of these people.
The Government opposes the amendment moved by the Opposition. The proposal, in effect, restricts access to victims leave to regular casuals. It is unnecessary for a number of reasons. The most important are as follows. The provisions enable an employee to access unpaid leave only for the sole purpose of attending relevant court proceedings as defined in the bill—quite carefully prescribed in the bill. As honourable members are aware, if an employer doubts an employee's genuine right to take victims leave the employer is able to request the employee to provide a certificate from a relevant official stating that the employee is in fact a victim of crime and noting the date of the relevant court proceedings. I also stress that in most cases the amount of time that an employee may need to attend relevant court proceedings should not be lengthy. As I said, I am advised that all trials in New South Wales for serious indictable offences, except murder and rare cases involving exceptional circumstances, take place before the District Court.
As I said in my second reading speech, I have been advised by the District Court that in 2000 the statewide average length of a criminal trial before the District Court was 5.71 days. I am happy to inform the House that the Premier has specifically requested that I monitor the implementation of these reforms. That commitment has been given to the various interested parties in the implementation of this legislation. Monitoring will include an analysis of the level of use of the lead provisions, the impact on business operations and costs, and an assessment of the resulting costs and benefits. My office has spoken with employer associations such as the Australian Industry Group and Australian Business about this bill. Employer associations have been encouraged to raise any specific concerns with me, the department or my office over the practical operation of these reforms once they are implemented.
The Hon. HELEN SHAM-HO [9.00 p.m.]: I support the Minister. I cannot support the amendment moved by the Opposition. New section 72AA does not apply to seasonal employees; it is very discriminatory. We are talking about victims of crime. Whether the victim is a full-time, part-time, casual or seasonal employee the victim should be protected; we are protecting the rights of victims of crime. That protection should apply across the board. I do not support the amendment.
The Hon. PETER BREEN [9.01 p.m.], by leave: I move Reform the Legal System amendments Nos. 1 to 6 and 8 to 11 in globo:
No. 1 Page 3, schedule 1 , proposed section 72AB, line 12. Omit "violent".
No. 2 Page 3, schedule 1 , proposed section 72AB, line 18. Omit "violent".
No. 3 Page 3, schedule 1 , proposed section 72AB, line 25. Omit "violent".
No. 4 Page 3, schedule 1 , proposed section 72AB, lines 26-28. Omit all words on those lines.
No. 5 Page 4, schedule 1 , proposed section 72AB, line 2. Insert "or suffers harm" after "dies".
No. 6 Page 4, schedule 1 , proposed section 72AB, line 4. Omit "violent".
No. 8 Page 4, schedule 1 , proposed section 72AB, lines 6-10. Omit all words on those lines.
No. 9 Page 4, schedule 1 , proposed section 72AC, line 29. Omit "violent".
No. 10 Page 5, schedule 1 , proposed section 72AD, line 4. Omit "violent".
No. 11 Page 6, schedule 1 , proposed section 72AG, line 29. Omit "violent".
These amendments relate to the definition of violent crime. The amendment moved by the Leader of the Opposition sought to narrow the definition of violent crime and narrow the number of people who may benefit from the bill. The legislation has the opposite effect; it seeks to expand the definition of violent crime. As the definition stands, violent crime is an indictable offence involving violence, including sexual or indecent assault, and is punishable by imprisonment for life, or five years or more.
According to the Government briefing note the bill was inspired by American legislation and was developed to protect victims of domestic violence. Under New South Wales law domestic violence attracts a penalty of fewer than two years gaol. None of the victims of domestic violence would obtain the benefits of this legislation. My amendments seek to extend the operation of the bill so that unpaid leave is potentially available to all victims of crime, not only victims of serious and violent crime, so long as leave is sought for the purposes of attending court. I commend the amendments to the Committee.
The Hon. RICHARD JONES [9.03 p.m.]: I congratulate the Hon. Peter Breen on moving these amendments, which are humane and sensible. I cannot understand why the Government left victims of crime in the home out of the legislation; it does not make sense . I hope that the Government will find a way of including victims of crime in a home, if not at this time then at a later date if it does not support these amendments. I have heard a rumour that the Government will not support the amendments. Having a person nominated as a support person is a good idea and is worthy of support. I ask the Government to reconsider supporting the amendments, but if it does not support them at this time, it should later introduce an amendment to allow victims of domestic violence to be included.
Reverend the Hon. FRED NILE [9.04 p.m.]: I have some concern with the amendments, and I seek some clarification from the Government. I understand from the Minister's second reading speech that there have been discussions or agreements with the employer groups. It seemed that agreement had been reached on this bill at that time. Maybe further discussions will occur later to include the provisions contained in these amendments. The amendments highlight that when there are negotiations between the Government and various community groups, that tends to become an unofficial agreement, but not one that is set in concrete. The Committee could push for that agreement, and some members are quite happy to add other amendments without weighing up the economic costs and other effects on business. The amendments may make the bill more unworkable and cause more friction with employer groups. We need to have agreement and consensus, to move from that foundation to the next step. I would prefer that we take that approach.
The Hon. HELEN SHAM-HO [9.05 p.m.]: These are very good and sensible amendments, because we are talking about victims of crime. Whether the crime is serious or violent, the victim still has to attend court. It would be compassionate to extend this legislation to cover victims of all classes of crime, because they have to attend court. After all, it is unpaid leave. I understand that employers may be disadvantaged in some way, but certainly crime does not affect all workers; only some people are victims of crime. The Government should accept that. I congratulate the Hon. Peter Breen on moving these amendments.
The Hon. RICHARD JONES [9.06 p.m.]: I point out that the victims of domestic violence still risk losing their jobs. Surely a humane employer would not want to deny the employee time off. I really do not understand why the Government cannot accept the amendments. I hope that it rethinks its position.
The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [9.07 p.m.]: I thank the Hon. Peter Breen, the Hon. Richard Jones and the Hon. Helen Sham-Ho for their genuine interest in the rights of victims of serious crime and their families. I thank them for introducing into the debate the fact that currently some victims might not be accommodated within the legislation. However, potential cases may be reviewed further down the track.
Reverend the Hon. Fred Nile said it better than I could have when he said that these questions become a matter of balance. The Government has attempted to balance a very reasonable demand, or requirement, for victims of serious crime and their immediate families to be given leave under certain circumstances. To extend that provision to families is a laudable achievement and has been done in an attempt to obtain a consensual approach . It has the elements of a trial. In not supporting the amendments the Government is not suggesting that it will never return to the issues raised by the Hon. Richard Jones and the Hon. Peter Breen.
In discussing this matter with relevant employer groups and working through the issues, we have reached a reasonable consensus within the State's economy and with society. As the debate advanced, people had a chance to see how the process operates. The Premier has given a public commitment to employer organisations and employees that the Government will closely monitor the impact of these new arrangements on business. Clearly, the Government is prepared to look at the situation down the track. As the bill currently stands it represents what is effectively a consensual position between employer and employee interests and represents a very decent consensus.
As the Hon. Richard Jones indicated, there may be people who are, in principle, not brought within the ambit of the bill, but an important beginning in reciting these rights is to include victims of serious crime and their families. That works through most of the critical issues. As the new form of leave is introduced throughout business and people come to see it as an entitlement, not open to abuse—and I do not believe it will be abused because we have included careful provisions to make it difficult to abuse—the reality is that further revision may be possible. Again, I would like the leave to be an agreed arrangement rather than one of conflict. For that reason the Government does not support the amendments.
Reverend the Hon. FRED NILE [9.10 p.m.]: I wish to clarify a point, because a false impression may have been created. The bill places a legal requirement on employers to do certain things. It does not mean that victims of domestic violence will not get leave. It does not work the other way. All employers are still free to provide leave for their employees. This bill specifies a legal requirement to grant leave in certain circumstances. As other members have said, I am sure that the majority of employers, who are decent, would give their employees leave without being forced by a bill to do so. I want to make it clear that if the amendments are defeated, that will not mean those people can no longer get leave.
The Hon. RICHARD JONES [9.11 p.m.]: I should clarify that we are talking about unpaid leave, so there is no financial loss to the employer as such. The employee will not be there to make money for the employer, but we are not talking about many cases a year. Does the Government have any idea how many people will be covered and how many will miss out as the legislation presently stands? I hope that the Government will talk with organisations such as the Public Interest Advocacy Centre and other organisations that are monitoring the situation to find out how many people actually lose their jobs as a result of harsh employers, such as McDonald's, not granting them unpaid leave.
The Hon. HELEN SHAM-HO [9.12 p.m.]: I do not know if the Opposition supports the amendments. The reality of politics is that the Government may have consensus with the employer but if the Parliament decides that this measure should be passed, the employer will have no say. If the Parliament should decide that way, we should go that way.
Question—That the amendments be agreed to—put.
The Committee divided.
Mr R. S. L. Jones
Mr Della Bosca
Mr M. I. Jones
Question resolved in the negative.
The Hon. PETER BREEN [9.29 p.m.]: I move Reform the Legal System amendment No. 7:
This amendment relates to the inclusion of a victim of a nominated support person. Currently the bill restricts the unpaid leave provisions and employment security to a victim of violent crime, to a parent or guardian of a child under 18 who suffered harm as a result of a violent crime, or to an immediate family member of a person who has died as a direct result of an act committed or alleged to have been committed in the course of a violent crime.
No. 7 Page 4, schedule 1 , proposed section 72AB. Insert after line 4:
(d) who is the support person (who may be a relative or friend) of a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of an alleged crime.
My amendment seeks to extend the category of those who can apply for unpaid leave to include a support person who may be a relative or friend nominated by the victim. This is in recognition that not all victims of crime have immediate family or a partner to whom they can turn during court proceedings. This would seem to me to be a very logical and reasonable amendment. In some cases it will be more appropriate for another person to attend court to assist the victim of the crime other than a family member. For example, where the alleged offender is a family member and a victim's account of the crime is not supported within the family, it would be quite reasonable that the victim should be entitled to get the benefit of some other person who is not a member of the family. In those cases the victim should be able to nominate a person who would then have the protection of the bill and would not incur any penalty from his or her employer for having to take time off work to attend court. I commend the amendment to the Committee.
The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [9.22 p.m.]: The Government thanks the Hon. Peter Breen for his commitment to this legislative change, and particularly for the constructive ideas that he has canvassed. However, the Government is not in a position to support this amendment—and I will try to make my explanation a little more explicit this time. Drawing on the points raised by Reverend the Hon. Fred Nile, this legislation does not suggest that an employer could not enter into an arrangement with someone in this situation. We are not suggesting that employers should not do that. However, by instituting these arrangements we are introducing rights and entitlements for employees.
As honourable members probably realise, bereavement leave and other entitlements have restrictions. For essentially practical reasons that could be subject to tyre kicking, improvement and refinement over time, the Government might consider extending this entitlement to an appropriate person as envisaged in the Hon. Peter Breen's amendment. We have come a long way in this area and we are now attempting to achieve perfection. Most other forms of special purpose leave have entitlement restrictions. Under the normal provisions of either an award or other entitlements that allow for bereavement leave, people may be granted time off following the death of someone not related to them. However, only those who fit the restrictions are entitled to claim bereavement leave. Although the amendment is well constructed and we respect the Hon. Peter Breen's sentiments, we cannot support it.
Schedule 1 agreed to.
Title agreed to.
Bill reported from Committee without amendment and passed through remaining stages.