Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I rise to speak on the Construction Industry Amendment (Protecting Witnesses) Bill 2015. This bill amends the Fair Work (Building Industry) Act 2012 to extend the period during which the director of the Fair Work Building Industry Inspectorate can apply to a nominated Administrative Appeals Tribunal presidential member for an examination notice by a period of two years. Under the current provisions of the Fair Work (Building Industry) Act the capacity for the director to make such an application will expire on the 31st of this month. These examination notices can of course compel a person to give certain information or documents to the director, or to attend in person before the director to answer questions relevant to an investigation. A failure to comply with these notices is a criminal offence. A common law privilege against self-incrimination which would otherwise apply is overridden by the Fair Work (Building Industry) Act.

The former Labor government abolished the draconian Australian Building and Construction Commission and established the Fair Work Building Inspectorate. In establishing the new body we acted on our election commitment to consult widely on its operation and functions. To that end, as the minister just referred to, the former Labor government appointed the respected former Justice Murray Wilcox AO, QC to undertake consultation and prepare a report on matters related to the creation of a specialist division of the inspectorate of Fair Work Australia. Mr Wilcox provided a report to government in 2009, and the bill which gave effect to Mr Wilcox's principal recommendations was legislated in 2012.

It is true that one of Mr Wilcox's recommendations was to retain coercive powers. However, Mr Wilcox expressly recommended the powers be subject to a sunset clause and that the retention of those powers be the subject of a review and, furthermore, that the use of compulsory interrogation be subject to the following safeguards: (1) a notice to a person compulsorily to attend for interrogation be issued only by a presidential member of the Administrative Appeals Tribunal; (2) the director or deputy director of the building and construction division preside at all compulsory interrogations; (3) the Commonwealth Ombudsman monitor proceedings at all compulsory interrogations; and (4) the Commonwealth Ombudsman report to parliament annually, and otherwise as required, concerning the exercise of the power of compulsory interrogation.

A sunset clause, by its nature, is placed in legislation to require the government to justify with evidence the need to extend. The government has not conducted any such review. Until the government provides such evidence as to the merits or otherwise of extending the sunset clause we are not in a position to have an informed view on this matter, and thus cannot support this bill.

A further issue in relation to the failure of the government to review is the partisan manner in which the Fair Work Building Inspectorate has operated since the election of the Abbott government. It is also worth noting that the Fair Work Building and Construction's annual report details that coercive powers were used only four times in 2013-14. We therefore call on the government to conduct a review rather than using the sunsetting of this provision as a political stunt in their never-ending crusade against the union movement.

Additionally, the government is seeking through another bill—which seeks to reinstate the draconian Australian Building and Construction Commission and which removes the important safeguard Mr Wilcox identified and Labor enacted—that the ABC commissioner needs to apply to a presidential member of the AAT for an examination notice. The government also seeks to remove the privilege against self-incrimination—

See this speech in context