Luke Hartsuyker (Cowper, National Party, Assistant Minister for Employment) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill, and I move:

That this bill be now read a second time.

Today, I introduce the Construction Industry Amendment (Protecting Witnesses) Bill 2015.

The bill maintains the existing examination powers used by the building industry regulator, Fair Work Building and Construction, to combat unlawful conduct.

The construction industry is a critical sector of the Australian economy. It is the nation's third largest employer, with more than one million workers, many employed in small businesses. It has, regrettably, been affected by unlawful conduct, thuggery and intimidation for far too long.

The government, and any objective observer, realise that Australia desperately needs a construction industry that is not plagued by lawlessness, intimidation and thuggery, and in which all participants respect the rule of law. It is what one would expect in the 21st century.

For this reason, one of this government's first tasks was to introduce a bill to re-establish the Australian Building and Construction Commission. That bill was passed by the House of Representatives in December 2013 and is currently before the Senate.

The case to re-establish an effective regulator to enforce appropriate laws, to provide sufficient penalties to deter unlawful conduct, and stop the thuggery and lawlessness in this important industry, is a powerful one.

Re-establishing the ABCC and bringing respect for the rule of law back to the building industry remains a priority for this government. I also reiterate the government's firm commitment to the advance release of the Building Code 2014, which will be administered by the ABCC.

However, the government appreciates that the Senate requires additional time to consider the ABCC bills.

Whilst this would ordinarily be a matter of scheduling, we need to stop a ticking time bomb from exploding. The compulsory powers in the current legislation to address the culture of silence and intimidation are subject to a sunset clause imposed by the former Labor government. These important powers will no longer be available to the regulator from 1 June 2015.

Accordingly, until the Building and Construction Industry (Improving Productivity) Bill 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 are dealt with by the Senate in the coming sitting period, this bill, the Construction Industry Amendment (Protecting Witnesses) Bill 2015, will extend the period during which the Director of the Fair Work Building Industry Inspectorate can exercise the agency's compulsory powers.

The bill will extend the powers for a further two years. All other aspects of the current legislation are unchanged, including the automatic immunity given to a witness over their evidence.

The ability to compel a person to provide information is vital to protecting workers and witnesses who dare to stand up to unlawfulness and intimidation and assist the regulator to clean up the industry. The powers also ensure Fair Work Building and Construction is able to carry out its investigations effectively and break down the 'culture of silence' and retribution that exists in the sector.

This bill simply extends the existing powers. These kinds of powers are not novel or new. A range of other Commonwealth regulatory bodies have compulsory powers, such as the Australian Competition and Consumer Commission, the Australian Prudential Regulation Authority, the Australian Securities and Investment Commission, the Australian Taxation Office, Centrelink and Medicare.

In 2009, the Hon. Murray Wilcox AO, QC conducted a review of the Australian Building and Construction Commission and its powers at the request of the former Labor government. He recommended that the compulsory powers be retained because he was satisfied there was still such a level of industrial unlawfulness in the industry that warranted the powers. He also said that, in reality, without such a power some types of contraventions would be almost impossible to prove.

We have recently seen the effectiveness of compulsory powers during the investigation by the Australian Competition and Consumer Commission of the alleged CFMEU secondary boycott against Boral. ACCC Chairman Sims and his agency were confronted by the culture of silence and fear of reprisal that is all too often a feature of the building and construction industry.

Mr Sims said that 'the ACCC has only been able to progress the investigation by compelling people to give evidence'. Without the ACCC's use of its compulsory powers, the serious wrongdoing alleged could not have been put before the court.

It remains the case today that law-abiding industry participants have nothing to fear from the continuation of these powers. In fact, as the name of the bill suggests, the powers will protect those people who do the right thing.

This bill provides for the continuation of arrangements already in place, which have been previously supported by both sides of parliament, and ensure individuals who are brave enough to take a stand against unlawfulness are not stood over and intimidated into silence.

The government is committed to re-establishing the ABCC and returning the rule of law to Australia's construction industry, and this bill will ensure that there is no break in the existing regulator's ability to investigate unlawfulness until the Senate has had an opportunity to consider the legislation to re-establish the ABCC.

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

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

Order! The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour and the honourable member for will have leave to continue his remarks when the debate is resumed.