Nick Xenophon (SA, Independent) Share this | Hansard source

I indicate that I will be supporting the disallowance motion, but I want to put a number of caveats in relation to that. I want to acknowledge that I had lengthy discussions with both the coalition and the government in the last 24 hours in relation to this. I also indicate that this morning I spoke to Martin O’Malley, who is a senior official of the CFMEU in South Australia. We had a good discussion, and he is someone with whom I have a very good working relationship and whose views I take into account. His view, obviously, is that this disallowance motion should not be supported, but I support it for these reasons. I indicated to the government that I did not have a difficulty in relation to parts (a) and (b) of the directions, but I understand the government’s position that it is a package of measures and directives, and they have a position that all the directives should be a part of this. I did not have a problem with respect to (a) and (b) because they reflect what is already in the act to make it clearer, firstly, in terms of the issue of legal representation and, secondly, in relation to the Commonwealth’s obligation to act as a model litigant. I think that, if the government is minded at some other stage to issue an amended directive, I would certainly support those without hesitation.

Secondly, in relation to parts (c), (d) and (e), they relate to an alteration of the section 52 powers, and I think it would be fair to say in an objective sense that the matter that is the subject of the ministerial directive is also, in a substantive form, the subject of the legislation that will be before the Senate in the spring session to deal with the whole issue of the ABCC’s powers and the extent to which those powers ought to be curtailed or modified as a result of the Wilcox review. My principal difficulty is one of process, in that what we are seeing is that the minister, by virtue of subparagraphs (c), (d) and (e) in her directive, is pre-empting, in a sense, both the Senate inquiry process and the legislation that will come before the Senate to consider this. That is something that I think is quite unusual and goes beyond what I think would be a reasonable exercise of the minister’s powers. Senator Fisher alluded to the issue of whether it could have been subject to, at the very least, administrative challenge in terms of going beyond the powers.

It is also fair to indicate that, in relation to coercive powers, the powers in section 52 of the Building and Construction Industry Improvement Act are similar to the ACCC’s powers in section 155 of the Trade Practices Act, the Australian Taxation Office’s powers in section 353 of the Taxation Administration Act and ASIC’s powers in section 19 of the Australian Securities and Investments Commission Act. They are not unprecedented, but the issue is whether those powers have been exercised reasonably, whether they ought to be curtailed and whether the issue of unfair work practices ought to be curtailed by legislation. The powers should also relate to the issue of unreasonable action by employers. I think it would be fair to say that the ABCC has done little or nothing to deal with the issue of behaviour of employers that I think would be unacceptable in any reasonable workplace. These are matters that I think need to be looked at.

I refer back to my conversation this morning with Martin O’Malley from the CFMEU in South Australia. Where I share common ground with Mr O’Malley is on the issue of occupational health and safety. I think we need tougher occupational health and safety laws. If there is industrial action on a legitimate occupational health and safety ground, the ABCC should exercise its powers very cautiously and ensure that workplace safety is of primary concern. I also have a concern in relation to the matters of process and I have indicated to the minister my position on this privately. I look forward to working with the government so that we can have some comprehensive reforms of the ABCC legislation or of legislation that will perform a similar function but with the excesses curtailed. I look forward to that debate when the matter is dealt with in the spring session of the Senate.