Building and Construction Industry Bill (ABCC legislation) - 18-04-16

I rise to make known my views and my vote on the Building and Construction Industry (Improving Productivity) Bill 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 —or, as most Australians have come to know these bills, the ABCC legislation. It will not come as a shock to the Senate when I say that I will not support this legislation and that, as I have done in the past, I will be voting against it when the second reading vote is called. In the course of this speech, I will detail the reasons why I have decided to oppose this legislation.

Despite voting against this legislation in the past, in an expression of goodwill when Mr Turnbull first became Prime Minister, I wrote to him and met with him. I suggested that I could vote for the legislation if he was prepared to agree to a couple of small concessions—deregistration of the CFMEU and the establishment of a federal ICAC—which he dismissed. However, as the community debate about these bills continued, and I received more detailed briefings from different stakeholders—especially valuable were the submissions from the Law Council of Australia—it became obvious that this legislation has more holes in it than a target at a shooting range. I will turn to the information that I received from the Law Council of Australia shortly. However, it is important at the beginning of my contribution to this debate to note that the great majority of Australians, including Tasmanians, are confused or unsure about the ABCC legislation.

Most understand that this legislation is likely to be historic. There is a high probability that it will be defeated in this chamber and that this will lead to a double dissolution election on 2 July. I am not scared by the thought of a double-D election—my vote will never be influenced by threats of a double-D election from this Prime Minister. I will vote according to the merits or otherwise of this legislation in the best interests of Tasmanians. It is clear that the best interests of Tasmanians are served by strongly opposing this legislation. Indeed, the average Tasmanian has little concern for the ABCC bills. Average Tasmanians are trying to provide for their families; they are losing their jobs, or they are trying to find jobs for their children. They are trying to access affordable and timely health care in a state public health system that is broken and badly politically managed, and to keep warm over the winter while the threat of power cuts looms after the Liberals have yet again mismanaged another essential basic service in Tasmania. They are trying to save their trucking businesses after a bunch of out-of-touch government officials made a ruling that took away 90 per cent of their businesses in a matter of hours. This is what matters to Tasmanians right now. They do not have the time or energy to invest too much energy worrying about the Liberals' ABCC legislation and the PM's tricky political tactics. Indeed, most Tasmanians would be stunned to learn that this building legislation will not help them if a dodgy builder rips them off while building a house or renovating the family home, because this legislation deals with the commercial building sector, not the residential sector.

There are big problems within Australia's residential building industry. Dodgy builders, often those who have gone bankrupt many times, are allowed by state government building watchdogs to reinvent themselves, and to continue to trade and rip off mum-and-dad investors in our property markets. Of course, I am not forgetting the subbies and the tradesmen who are also taken down when a builder declares himself bankrupt one day, and then opens for business under another name, perhaps in a different state, a few weeks later. Those important issues are not dealt with in this legislation. We could be talking about the introduction of a national building licensing register to replace state-based arrangements and a limit of one licence per builder, with lifetime industry-wide bans imposed on those found guilty of construction-related fraud and tax evasion. Instead, we have this legislation which the Law Council of Australia—representing about 60,000 lawyers—has laughed at. This legislation has no justification. It is simply designed to bash the unions, to take away basic civil rights from ordinary citizens and blue-collar workers, and to give the Liberal Party of Australia a political advantage over everyone else, as they call an early double dissolution federal election.

I now turn to some of the details of this legislation. When considering the structure of the bill, Parliamentary Library research states that the bill contains nine chapters: chapter 1 contains preliminary material, including definitions which extend the scope of building and construction regulation, and chapter 2 establishes the ABCC and the position of the ABCC Commissioner—the Commissioner. Chapter 3 provides the minister with the power to issue a Building Code; chapter 4 establishes the Federal Safety Commissioner; chapter 5 deals with unlawful action, including a new offence of unlawful picketing; chapter 6 deals with coercion, discrimination and unenforceable agreements; and chapter 7 deals with the powers of the Commissioner and other authorised officers to obtain information. Chapter 8 deals with enforcement, and chapter 9 contains miscellaneous provisions, including provisions to do with handling of information, powers of the Commissioner, and the courts.

I had not realised just how badly written this legislation was until I met with the Law Council of Australia and had a number of consultations and briefings with them. For those who do not know about the profile, independence, credibility and purpose of the Law Council of Australia, it may be worthwhile to remind the Senate of a few important facts. The Law Council was established in 1933 and represents 16 Australian state and territory law societies, bar associations and Law Firms Australia, which are known collectively as Constituent Bodies. The Constituent Bodies are made up of all of the Australian states' law societies and most Australian bar associations, including the Law Society of Tasmania and The Tasmanian Bar. Their profile says that the Law Council effectively acts on behalf of more than 60,000 lawyers right across Australia. They exist to represent the legal profession at a national level, to speak on behalf of its Constituent Bodies on national issues, and to promote the administration of justice, access to justice and general improvement of the law. After consulting with the Law Council, it is clear to me that the ABCC will not lead to an improvement to Australian law. In fact, the opposite will happen. Should this legislation pass the Senate, the general rule of law will be weakened—and 60,000 lawyers agree with that statement.

There are a number of key difficulties that the Law Council has found with this legislation. Other bodies such as the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights have identified the same key concerns, which are: (1) the provisions of this bill only deal with corruption in the building and construction sectors and not more broadly across various industries; (2) it applies a different set of industrial relations rules that apply only to persons associated with the building and construction industry; (3) they provide new coercive powers with retrospective operation; (4) there is exclusion of judicial review of certain decisions without adequate justification and contrary to a recommendation by the former Administrative Review Council; (5) there are inappropriate delegations of legislative power; (6) there are insufficiently defined and overly broad discretionary powers; (7) it inappropriately reverses the onus of proof in certain circumstances; (8) it inappropriately permits entry onto premises without consent or warrant; (9) there is a lack of oversight in the process of authorising the use of extraordinary coercive information-gathering powers; (10) the prohibition on picketing and further restrictions on industrial actions has been found by the Parliamentary Joint Committee on Human Rights to be incompatible with the right to freedom of association and the right to form and join trade unions; (11) the Australian Building and Construction Commissioner may exclude a particular legal practitioner from an examination if the commissioner concludes, on reasonable grounds and in good faith, that the representative either will or may prejudice the investigation.

In summary this legislation allows for: new coercive powers with retrospective operation, exclusion of judicial review without proper justification, inappropriate delegations of legislative power, insufficiently defined and overly broad discretionary powers, inappropriate reversal of the onus of proof in certain circumstances, a lack of oversight in the process of authorising the use of extraordinary coercive information-gathering powers, incompatibility with the right to freedom of association and the right to form and join trade unions, and exclusion of a particular legal practitioner from an examination. These are the reasons why the Law Council of Australia, an independent, credible expert legislative body representing 60,000 Australian lawyers, effectively says that this is bad, poorly written legislation. These are the reasons why this legislation should not be passed.

During the last sitting of this parliament I had a meeting lasting about 45 minutes with Minister Cash and her legal adviser and raised these Law Council concerns. We also talked about section 62, which takes away the right to silence for an Australian citizen who appears before the commission. Section 62 allows the government to charge an Australian citizen and have that citizen imprisoned for 6 months should that citizen choose to say nothing and exercise a right to silence during an official interview. It is found on page 49 of the Building and Construction Industry (Improving Productivity) Bill and reads:

62 Offence for failing to comply with examination notice

A person commits an offence if:

(a) the person has been given an examination notice; and

(b) the person fails:

(i) to give information or produce a document in accordance with the notice; or

(ii) to attend to answer questions in accordance with the notice; or

(iii) to take an oath or make an affirmation, when required to do so under subsection 61(5); or

(iv) to answer questions relevant to the investigation while attending as required by the examination notice.

Penalty: Imprisonment for 6 months.

A couple of things came out of our discussion with the minister with reference to section 62. Firstly, as it stands written, we are not sure if the imprisonment for six months for exercising a right to silence is a mandatory, minimum or maximum period of time. It is bad enough that this extreme legislation is being entrusted to public servants with doubts over their qualifications, but to have a question mark over whether is it a minimum, maximum or mandatory sentence is careless and an example of very poor legislative drafting.

The minister tried to calm my office's fears about removing a basic civil liberty from Australian citizens—that is, their right to silence—by informing me that the government had arranged for an indemnity from prosecution for any crime should someone be forced to incriminate themselves during those extreme interrogations. When asked about the sorts of crimes that this indemnity covered, the minister was forced to admit that even if someone had committed a murder and confessed to that crime during an ABCC official interview they would receive an indemnity—as long as the murder was related to the building industry, because if you have committed a murder that is not related to the building industry and confess during an interview covered by the provision of the ABCC legislation then you do not qualify for an indemnity.

This response raised eyebrows with the Law Council. Firstly, it is ridiculous that this parliament is being asked to legislate to give you an indemnity to murder should you confess during an interview. That gem came from the minister's own mouth in my office. Secondly, it is completely bizarre that the minister and her legal adviser can suggest that one type of murder qualifies for an indemnity while another murder simply does not. According to the minister, if you bury the body under cement and say the murder was related to the building industry, then you have indemnity. But if you buried the body in the woods and the murder was carried out because of a non-building related activity, you do not get an indemnity from prosecution. That was the point where it became clear that this legislation was, quite simply, drafted by a roomful of monkeys and a typewriter.

It is very bad and poorly drafted and has scant regard for the rule of law and basic democratic rights in this country. The Law Council of Australia confirmed my opinion after a subsequent meeting to discuss the minister's briefing. I admit that there was a period when, in good faith, I would have passed this legislation had the government met certain conditions: the deregistration of the CFMEU, a viewing of the royal commission secret reports and the establishment of a federal ICAC.

As my research and consultation on the ABCC progressed over the months, my trust in Commissioner Heydon was shattered when it became blindingly obvious that he had lied to the people of Australia about the so-called grave threats he had discovered to the power and authority of the Australian state. I am in a unique position to pass judgement on Commissioner Heydon's secret reports and findings. Unlike most Australians and politicians, I have read Commissioner Heydon's secret reports. It is fiction and it is a lie. There are no grave threats to the Australian state. If there were, ASIO would have been all over the Heydon royal commission like a bloody rash. They would have been over it and they would have known about it. When I questioned ASIO at estimates about Heydon's secret reports, no copy had been referred to them nor had ASIO even thought of asking for a copy of the secret reports. A royal commissioner who agreed to participate in a Liberal Party fundraiser lied to the parliament and the Australian people about the seriousness of the threat to the Australian state through his investigations into union and other corruption. This is the debate in which the question 'Why?' must be asked.

According to Parliamentary Library research I recently commissioned, over a five-year period from 2010-11 to the present day the four big banks—the Commonwealth, NAB, Westpac and ANZ—have donated $2.56 million to the Liberal and National parties. That is why you will not see a banker lose their right to silence or prove their innocence if they are accused of an offence or crime in the finance industry. But if this legislation passes you will see blue-collar workers lose their right to silence and the right to a presumption of innocence while bankers are treated separately. Indeed this law is so bad that citizens accused of murder and rape will have more rights than a construction worker if summoned under the ABCC legislation.

On 26 August 1789 the representatives of the French people organised as a national assembly—believing that the ignorance, neglect or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments. They set forth a solemn declaration detailing the natural, unalienable and sacred rights of man. This declaration has had a profound effect on the formation of modern Western democracies and their rule of law. Article 6 of the Declaration of the Rights of Man and of the Citizen states in part with relation to the law:

It must be the same for all, whether it protects or punishes.

The United Nations Universal Declaration of Human Rights, adopted and proclaimed by the General Assembly of the United Nations on 10 December 1948, states in article 7:

All are equal before the law and are entitled … to equal protection of the law.

If this ABCC legislation passes, bankers have more legal rights than blue-collar construction workers. This principle of equality before the law is one of the main foundations Australia was built on. It is one of the reasons we fought wars against dictatorships and totalitarian countries. Liberals love quoting a glib and misleading catch phrase when trying to sell this legislation: 'Oh, we need a tough cop on the beat.' Well that cop had better treat blue-collar workers the same as bankers—that is why we need to tackle corruption with a federal ICAC.

I strongly oppose the ABCC legislation and in Tasmania's best interests will vote against it at this second reading stage.