Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

At the request of Senator Abetz, I move:

That the Directions in Relation to Coercive Powers, made on 17 June 2009 under section 11 of the Building and Construction Industry Improvement Act 2005, be disallowed.

The opposition seeks to disallow the ministerial direction on the basis that the ministerial direction not only goes beyond the minister’s powers under the existing Building and Construction Industry Improvement Act but seeks to put the issues that are the subject of the ministerial direction beyond the reach of parliamentary process, beyond the reach of parliamentary scrutiny and beyond the reach of parliamentary will.

The government will attempt to say that what the minister is trying to do in the ministerial direction is simply to put in place what is already in the existing Building and Construction Industry Improvement Act. If it is in the existing act then why is a ministerial direction needed? The answer is: because it is not already in the existing act, and putting it in the act requires parliamentary process, parliamentary scrutiny and the exercise of parliamentary will, as should be the case. The government does not have the political courage to put the matters that are the subject of the ministerial direction before parliament, as part of parliamentary process and scrutiny and subject to parliamentary will. It knows that this parliament will not pass legislation to the effect of the ministerial direction because it would be a very clear breach of the government’s election promise that the existing powers of the Australian Building and Construction Commission will remain as they are until January 2010.

The ministerial direction clearly goes beyond the minister’s powers under the act. Under the existing act, the minister does have the power to specify the manner in which the Australian Building and Construction Commission must exercise its powers and functions. But the ministerial direction goes far beyond ‘the manner in which the Australian Building and Construction Commission must exercise its powers and functions’. It goes directly to those powers and functions themselves. It cuts back those powers and functions; it curtails those powers and functions. Two clear examples: firstly, the ministerial direction requires the Australian Building and Construction Commission to provide a person subject to investigation with the ability to object to that process through a court or tribunal. What is the ABCC to do with the proposed investigation if a court or tribunal upholds the objection? If that aspect of the ministerial direction is designed to stop the Australian Building and Construction Commission exercising the investigative powers that exist at the moment, then it very clearly curtails its power. If that is not the intent of that part of the ministerial direction then why is there a need to make it?

The second clear example is the supposed requirement in the ministerial direction that the Australian Building and Construction Commission, before proceeding with an investigation under section 52 of the existing act, must provide a report to a member of the Administrative Appeals Tribunal, acting in their ‘personal capacity’—whatever that means—about the proposed investigation and then take into account the views of that member of the AAT before proceeding with the proposed investigation under section 52. Again: if the intent is not to require the ABCC to desist with the investigation if the views of the AAT member are negative—that is, that the investigation not be proceeded with—then why have that provision in the ministerial direction? If that is the intent of that aspect of the ministerial direction then clearly the ministerial direction curtails the current investigative powers of the ABCC. Those are but two examples of the ways in which the ministerial direction clearly goes beyond simply directing the manner in which the ABCC must exercise its powers and functions and, rather, directly cuts and curtails those powers and functions.

The government does not have the courage to put these matters to this parliament as a legislative amendment. These matters are not in the existing legislation, and the government does not have the courage to put them before parliament to subject them to parliamentary scrutiny and parliamentary will because it knows it is in clear breach of its election promise to keep the existing powers of the ABCC in place until January 2010. This motion must be supported.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens have been consistent in our opposition to the ABCC. We have always argued it is unacceptable to have workplace relations laws that take away the right to silence; deny people their choice of a lawyer; provide powers to compel evidence, with the possibility of jail for noncompliance; and impose severe restrictions on the rights of workers to organise and bargain collectively. The direction from the minister in relation to coercive powers, the subject of this disallowance motion, restores basic procedural fairness and democratic rights to workers subject to the extraordinary powers given to the ABCC. It is a direction that, in the Greens’ view, is too little too late. In our opinion, the minister should have given this direction 18 months ago. For us, it is outrageous that the ALP government has left in place for so long these undemocratic practices of the ABCC. We will not be supporting this disallowance motion. Our position has always been and continues to be that the ABCC should be abolished immediately. In fact, I introduced a bill to that effect last year.

What the minister’s direction does is, firstly, to allow persons to have legal representation of their choice and for their lawyers to engage in the basic practice of representing their clients. Jeez! That’s a breakthrough, isn’t it! For example, they can sit next to their clients, consult with them and speak on their behalf. The extraordinary restrictions on legal representation under the current practices of the ABCC are contrary to our basic democratic practices. Building workers should not be treated as members of organised crime syndicates. The coercive powers of the ABCC can be and have been used in situations where workers have taken industrial action for whatever reason, including occupational health and safety concerns. These circumstances are in no way comparable to the types of crimes that usually attract and can justify such powers and restrictions on legal representation.

We labelled the ABCC a Star Chamber from the beginning, and in our opinion the restoration of the basic rights of legal representation is long overdue. Paragraph (b) of the directive requires an agency established under Commonwealth law to comply with the Commonwealth’s obligation to act as a model litigant. We would say this is hardly controversial. Paragraph (c) provides that a person can raise objections to a particular exercise of section 52 power and for that objection to be tested in a court or tribunal. Again, the Australian Greens agree with this direction. We must bear in mind that the extraordinary coercive and investigative powers in section 52 include the powers to compel information, documents or the giving of evidence. Further, there is little investigatory threshold, and the extreme consequence of not complying with a notice from the ABCC is imprisonment. Given that ordinary building workers can face jail merely for not attending an interview in relation to a union meeting—indeed, in South Australia there is a worker currently facing a jail term—this discretion is an important safeguard in the exercise of these powers to make sure they are used appropriately. We are not talking about serious crimes against persons or the community. Rather, we are talking about instances where workers are exercising their democratic rights to take industrial action. Again, we would say this is hardly controversial. Paragraphs (d) and (e) similarly insert entirely appropriate safeguards in the use of these very extraordinary powers. The Greens note that these two paragraphs do not prevent the ABC Commissioner from using his powers but merely put in place additional steps with the intention of ensuring that the use of these powers is appropriate and necessary.

We think these changes are long overdue. These are about restoring basic democratic rights to a group of workers in this country who have been unfairly picked on by this draconian legislation that puts in place the ABCC. We strongly support these moves. We do not think they go far enough. As I said, the government should have done it 18 months ago. We will not be supporting this disallowance motion.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Family First will be supporting this disallowance motion. This is a breach of what the government’s election policy said: that they would not tinker with this until they brought it into parliament at a certain date. I come from the state of Victoria, where, when you really think about it, there have been notorious issues in the building industry area. The Labor Party’s Forward with Fairness policy implementation plan clearly states on page 24:

… Labor will maintain the existing arrangements for the building and construction industry …

The ministerial direction is clearly a breach of that particular statement. It is quite clear that it is. The Australian Building and Construction Commission is such an important body that its very existence has seen a dramatic improvement in workplace behaviour in the industry, and I am opposed to any attempts to water it down. I am happy to have the debate in parliament, but I do not think that to go and do it sneakily through a ministerial direction, knowing that this is a contentious issue, is the right way of doing it. Under the ministerial direction, all objections will be allowed to be taken to court. This can be used just as a tactic to delay proceedings and will cause the commission to be hampered and hamstrung in their ability to continue to keep the industry clean. So, to keep it very short and sharp—because someone asked me to keep it tight—we will be supporting the disallowance motion.

Nick Xenophon (SA, Independent) Share this | Link to 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.

Mark Arbib (NSW, Australian Labor Party, Minister Assisting the Prime Minister for Government Service Delivery) Share this | Link to this | Hansard source

I thank senators for their contributions. I do not think it is surprising—it certainly does not surprise me—that Senator Fisher and other coalition senators would be maintaining their hardline, ideologically driven approach to industrial relations. The Work Choices legislation may be dead and buried, but the same ideology is still alive in the Liberal Party and on show again today.

I say through you, Mr Acting Deputy President, to coalition senators: there is not too much to worry about here. Coalition senators have obviously not read the directive notices. If they had, they would have realised that the Deputy Prime Minister is not attempting to weaken the ABCC with these directions or to water down the coercive powers. Also, we are not breaching an election commitment, as Senator Fisher has claimed. In no way does this breach our election commitments. Any informed and unbiased reading of the directions would show that the Deputy Prime Minister is simply reinforcing measures and guidelines already in place and seeking to ensure consultation by the ABCC when using its coercive powers.

The Rudd government will never tolerate unlawful action, intimidation or thuggery in the workplace and is 100 per cent supportive of keeping a tough cop on the beat in the construction sector. These directions will improve the operation of the ABCC and help allay fears concerning procedural fairness and treatment under the law. In the end, despite all the bluff and bluster that we have heard from Senator Fisher today, all these directions are really about is ensuring that existing rules, guidelines and standards are followed by all parties fairly and without bias or prejudice.

It is worth noting how we got here. Prior to the 2007 election the Labor Party promised it would retain the Office of the ABCC until 31 January 2010, when it would be replaced by a specialist fair work inspectorate. Labor is committed to implementing a strong set of compliance arrangements for the building industry, and the Rudd government has consistently stated that anyone who breaks the law will feel the full force of the law.

Labor also committed to consult extensively with industry stakeholders to ensure the transition to the new arrangements would be (1) orderly and (2) effective. On that basis, in June 2008 the Deputy Prime Minister asked the Hon. Justice Murray Wilcox QC, a retired Federal Court judge, to consult and report on matters relating to the creation of the specialist inspectorate. Mr Wilcox provided his report in March this year, having consulted with industry participants. His report has been described as ‘thoughtful and balanced’ and I entirely agree with the assessment. It is important to note that, in discussing the need for coercive powers, Mr Wilcox observed:

… the point does not go to the question of principle some people have argued, but rather the protections that may be necessary to avoid inappropriate use, or misuse, of the interrogation power.

Mr Wilcox had concerns and found problems in relation to these powers and noted that things could be done better and that some of the current practices were not best practice.

The ministerial directives take this into account. All agencies of the Australian government must conduct their affairs in accordance with best practice. The Deputy Prime Minister’s direction emphasises the need for the ABC Commissioner to comply with existing safeguards and requires the commissioner to comply with two new safeguards. As Senator Fisher has tried to point out, direction is a power that the minister has. The minister may make directions under the Building and Construction Industry Improvement Act 2005, so it is entirely within the minister’s remit.

The minister’s directions relate solely to the exercise of the coercive powers. They do not in any way affect the ABCC’s general investigative, compliance and prosecution powers. The minister’s directions include five detailed directions to the ABC Commissioner, listed (a) to (e). The first three of those just formalise the ABCC’s existing practices. The two new measures are in relation to consultation with the Administrative Appeals Tribunal. This is about consultation, process and procedural fairness. In no way is it trying to water down the ABCC.

In conclusion, we have tried to strike a balance: a tough cop on the beat in the construction sector but, at the same time, procedural fairness and the application of the law in relation to workers’ rights. That is what these directions are about. I therefore ask senators to not support the procedural motion.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The question now is that the motion moved by Senator Fisher at the request of Senator Abetz be agreed to.