Jacqui Lambie (Tasmania, Independent) Share this | Hansard source

Prior to the recent historic double dissolution election I voted against what is known as the ABCC legislation. I voted against these bills because I believed that to do so was in the best interests of Tasmanians, despite the double dissolution threat from the government and knowing that our jobs were on the line. The JLN policy, which I took to the election, was to oppose the legislation. You know what? You can make all the amendments that you like, but the bottom line is that no matter what colour lipstick you put on the pig, it is still a pig.

This legislation is bad law which erodes and attacks the fundamental democratic civil rights and liberty, under the Liberal government's pretext of 'tackling lawlessness and intimidation in the construction industry'. Well, if the government really wanted to do that—if they were serious—they would have listened to me before the last election and taken legislative steps to deregister the CFMEU and bring about a national ICAC. You want to talk about corruption? You want to talk about lawlessness? You think it only happens in the construction industry. Have a look what is happening in New South Wales. It is in your own party!

It is not just me who is saying this legislation is bad law. The Law Council of Australia, when you cut through all the lawyer talk, have effectively said that this legislation has more holes in it than a target at the shooting range. Okay, the Law Council did not use those exact words; however, they did say this about the legislation:

… it is inconsistent with those principles in many respects, including those relating to the burden of proof—

I will have a look at the amendment when it goes through—

the privilege against self incrimination, the right to silence, freedom from retrospective laws and the delegation of law making power to the executive. The Law Council's February 2016 submission also noted that it is unclear as to whether aspects of the Bill which infringe upon rights and freedoms are a necessary and proportionate response to allegations of corruption and illegal activity within the building and construction industry. For these reasons, the Law Council's primary recommendation was that the Bill not be passed in its current form.

In its latest Senate Education and Employment Legislation Committee submission, the Law Council said:

The Law Council notes that the current Bill is identical in terms to the Bill before Parliament in 2013 and early 2016.

So nothing has changed. You over there did not try and fix it. You actually did not do anything. The ABCC legislation which was brought before the parliament about three years ago and then nine months ago is identical—what do you know!

This is the same legislation that gives a person of interest or witness to a crime an indemnity to murder, should they confess during one of these interviews where you lose your right to silence! How do I know that? Well that gem came from the minister's own mouth, in my office during a briefing on the ABCC legislation. It gets more bizarre. If you confess to a murder that was committed because of a dispute related to the building industry, you are granted an indemnity under this legislation. However, according to the minister, if you confess to a murder that is not related to the building industry, under questioning where you have no right to silence, you are not covered by any indemnity. More holes in it than a target at the firing range, hey! Even though I do not have any formal legal training—except for the training I received as an Australian military police member, I think it is fair to say that it is very odd that a minister can present legislation to this Senate which allows one type of murder to qualify for an indemnity while another murder does not. That situation must surely ring alarm bells for the crossbench senators sitting here listening to me right now.

So should the Law Council of Australia's previous submission on this unchanged legislation, which, in summary, allows for new coercive powers with retrospective operation, the exclusion of judicial review without proper justification, inappropriate delegations of legislative power, insufficiently defined and overly broad discretionary powers, inappropriately reversing the onus of proof in certain circumstances, and the exclusion of a particular legal practitioner from an examination. There is a lack of oversight in the process of authorising the use of extraordinary coercive information-gathering powers, and the legislation is incompatible with the right to freedom of association and the right to form and join trade unions. These are the reasons why the Law Council of Australia effectively say that this is very poor, badly written legislation.

We should be talking about the introduction of a national building licensing register to replace state-based arrangements, with a limit of one licensee per builder, and 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 has laughed at. This legislation has no justification. It is simply designed to bash the unions, let's be honest; take away basic civil rights from ordinary citizens and blue-collar workers; and give the Liberal Party of Australia a political advantage over everyone else—or so they thought when they called an early double dissolution federal election. How did that go for you over there, by the way!

It is clear the best interests of Tasmanians are served by strongly opposing this legislation. Indeed, the average Tasmanian has little concern for this bill, to be honest. The average Tasmanian is trying to provide for their families and pay their bills, keep their jobs, find jobs for their children, access affordable and timely health care in a state public health system that is broken and badly damaged, pay their power bills, help their kids pay for their university education—thank goodness we did not deregulate universities when we are here last time—worry about the increasing lawlessness that is going on in our streets, not to mention the drugs, including ice, and the influence of organised crime going on out there while you are slashing the guts out of our Federal Police budget.

As I said, the Law Council found a number of key difficulties with this legislation. Other bodies, such as the Senate Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights, have identified the same key concerns, which are, firstly, that the provisions of this bill only deal with corruption in the building and construction sector and not more broadly across various industries. Geez, why would that be! It applies a different set of industrial relations rules that apply only to persons associated with the building and construction industry. They provide new coercive powers with retrospective operation. There is exclusion of judicial review of certain decisions, without adequate justification, and contrary to a recommendation by the former Administrative Review Council. There are inappropriate delegations of legislative power, and insufficiently defined and overly broad discretionary powers. The legislation inappropriately reverses the onus of proof in certain circumstances and inappropriately prohibits entry onto premises without consent or warrant. There is a lack of oversight in the process of authorising the use of extraordinary coercive information-gathering powers. The prohibition of picketing and further restrictions on industrial actions have 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. 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.

As I have mentioned before, during the last sitting of this parliament I had a meeting with Senator Cash and her legal adviser, and I raised the Law Council's concerns. We also talked about section 62 of the bill, which takes away the right to silence of an Australian citizen who appears before the commission. Section 62 allows the government to charge and have imprisoned an Australian citizen for six months should that citizen choose to say nothing and exercise the right to silence during an official interview. And Senator Macdonald is saying he believes in freedoms! Jesus. The section is found on page 49 of the Building and Construction Industry (Improving Productivity) Bill 2013 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 regarding section 62. As it is written, we are not sure if the imprisonment for six months for exercising the right to silence is a mandatory, maximum or minimum period of time. So, as soon as I have finished, if Minister Cash can get up and answer that, that would be great. 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 just plain careless and an example of poor legislative drafting.

The minister tried to calm my office's fears about removing a basic civil liberty from Australian citizens, such as the right to silence, by informing me that the government had arranged for 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 but 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. But, 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 at the Law Council. Firstly, it is ridiculous that this parliament is being asked to support legislation which gives you an indemnity from prosecution for murder, should you confess to it during an interview. And, secondly, it is completely bizarre that the minister and her legal adviser could suggest that one type of murder qualifies you for indemnity while another type of murder does not. According to this minister, if you bury the body under cement and say the murder was related to the building industry, then guess what? You have an indemnity. But if you bury the body in the woods and the murder was carried out because of a non-building related activity, you do not get given an indemnity from prosecution. And that was the point where it became very clear that this legislation was drafted by a room full of monkeys and a typewriter. It is bad, poorly drafted legislation. No matter how many times you go back to draft it and no matter how many amendments you put through, it is crap. If it was not crap, you would have got it right in the first place and we would not have had to go to a double D.

I admit there was a period when, in good faith, I would have passed this legislation had the government met certain conditions: deregistration of the CFMEU, the viewing of the royal commission secret reports—which I hope all the crossbenchers have actually looked at because if you have not you have not done your job and you have neglected to gather all the evidence—and the establishment of a federal ICAC. What is wrong with the establishment of a federal ICAC? What are you scared of over there? What are you scared of? After Brandis, I will tell you what, you should be shaking in your boots. Your integrity leaves a lot left to be questioned.