Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I table documents relating to orders for the production of documents concerning the Australian Building and Construction Commission.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I move:

That the Senate take note of the documents.

It's very interesting when you look at the documents that have been provided by the minister on behalf of the minister for workplace relations. What is very clear from these documents—or, should I say, from the lack of documents but in particular in relation to the redactions and the public interest immunity claims that have been made, plus everything else that has been said on behalf of the Minister for Employment and Workplace Relations in the chamber this week—is there is no question whatsoever that the Albanese government did not in any way consult with key stakeholders in the construction industry and in fact did not consult with the Australian Building and Construction Commission itself before making the snap announcement on 24 July 2022, in the media, that the Australian Building and Construction Commission, via the Building Code being stripped back to its bare legal minimum, would be neutered.

That doesn't surprise anybody. But what it shows is this: when Mr Albanese went to the election he went on a platform of integrity and transparency—and, in fact, when you look at the code of conduct in place for Mr Albanese's ministers it says:

The Albanese Government is committed to integrity, honesty and accountability and Ministers in my Government (including Assistant Ministers) will observe standards of probity, governance and behaviour worthy of the Australian people.

When you then turn to key principles, 1.3(ii) states:

Ministers must observe fairness in making official decisions—that is, to act honestly and reasonably—

and here is the part that becomes interesting—

with consultation as appropriate to the matter at issue, taking proper account of the merits of the matter, and giving due consideration to the rights and interests of the persons involved, and the interests of Australia.

You then go to public interest and fairness, in part 2 of the document:

Ministers are expected to conduct all official business on the basis that they may be expected to demonstrate publicly that their actions and decisions in conducting public business were taken with the sole objective of advancing the public interest.

You see, this is where the minister fails. This is where the Albanese government fails. Despite the code of conduct, despite the fact they had a platform of transparency and integrity, they have failed at the very first hurdle. The documents that have been tabled in response to my order for the production of documents show that.

Despite Mr Albanese saying 'I expect my ministers to consult', the only consultation that took place—this was confirmed by Minister Watt, who represents the minister for workplace relations in this place. This was confirmed by Minister Watt in response to a question I asked during Senate question time. Minister Watt confirmed on behalf of the minister that no consultation had occurred with the actual regulator, the Australian Building and Construction Commission. That, quite frankly, shows a complete lack of respect, regardless of whether or not you are ideologically opposed to the building regulator. The fact that you do not consult with them and the 150 employees employed by the regulator—they instead have to find out they are effectively being neutered and pulled back to their bare legal minimum—

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Gutted!

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I like that word, 'gutted'—on a media show, on Insiders. That is an absolute disgrace and, quite frankly, is completely in contradiction to these high standards that the Prime Minister of the Australia (a) took to the Australian people and (b) demands of his ministers, which are set out quite clearly in the Code of Conduct for Ministers.

When the code of conduct says 'behaviour worthy of the Australian people' and making decisions 'taken with the sole objective of advancing the public interest', let's look at the consultation that did occur. Minister Watt, on behalf of the minister, confirmed that the only consultation that did occur, the only public interest that was advanced by Mr Albanese and the Labor government, was in relation to the interests of the relevant unions. Minister Watt actually confirmed that the consultation that was had in relation to the neutering, or the gutting, of the Building Code was with, and I quote, the CFMMEU. That is interesting because, as we know, they are one of the Australian Labor Party's greatest financial donors. Almost $1 million a year has flowed from the CFMMEU into the coffers of the Australian Labor Party. So what you are seeing is this: money goes in and policy favours come out. This clearly shows there is now only one accord in Australia: the accord that the Albanese government has with the CFMMEU based on the almost $1 million a year that flows into the Australian Labor Party, and then the policies flow out at the behest of the relevant union.

Consultation did occur with the CFMMEU. The consultation didn't stop there, though, as Minister Watt confirmed. There was also consultation with the AWU and with the ACTU. Again: consultation with unions. I go back to the Code of Conduct for Ministers. It clearly does state, under public interest and fairness, that decisions are to be:

… taken with the sole objective of advancing the public interest.

The public interest, I hate to tell Mr Albanese, now Prime Minister of Australia, is not just the public interest for the CFMMEU, it's not just the public interest for the AWU and it is certainly not just the public interest for the ACTU.

I think that any objective observer would ask, 'How about the construction industry?' How about the in excess of, I don't know, 1.1 million employees that the construction industry employs? How about the relevant stakeholders in the construction industry that are not unions? What about, even as a matter of courtesy—nothing more and nothing less; that's what the code of conduct talks about—do you think maybe even a call before you went on Insiders and made the announcement about 150 employees? Those on the other side always talk about the rights of employees. What about the common decency in relation to the around 150 employees employed by the Australian Building and Construction Commission who were effectively told by this Labor government, 'You don't have a job,' and they found out when they watched a media program on Sunday.

Another irony in relation to the consultation is this: one of the meetings Minister Watt put on the record on behalf of the minister from the other place happened on the same day the most militant union in Australia—and that's not me saying that; that's court after court. Minister Watt did say, in response to a question from me, that he and the Labor Party respect the independence of the judiciary. That is the judiciary in Australia calling them the most militant union in Australia. Get this: the consultation that the Albanese government and the minister had with the CFMMEU occurred on the same day that the most militant union in Australia received a record fine—this is a fine by the courts—of $840,000 for threatening unlawful strikes on Brisbane construction sites.

What we see is that they talk big on integrity, they talk big on transparency and they wave around their Code of Conduct for Ministers. And guess what? When they are asked about consultation with relevant stakeholders, when they have to produce documents—I do want to say to the chamber that over the break I will be going through these documents very carefully, because it's often not what the documents say, it's what the documents don't say that is actually a reflection on the government. The amount of redaction in these documents is actually astounding for a government that went to the Australian people on the bases of a platform of integrity and transparency. Well, guess what? When it comes to the Australian Building and Construction Commission, when it comes to the construction industry, there is none.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Consultation: do you know who I think should have been consulted? I think the safety inspectors who were scared off worksites by CFMMEU violence should have been consulted. What an irony, what an absolute irony, that the situation is so bad on Queensland construction sites because of the activities of the CFMMEU. In my home state of Queensland, in Senator Watt's home state of Queensland, the situation got so bad that the Together union had to take protected industrial action so that their members, workplace health and safety inspectors, did not have to attend 17 construction sites in Queensland because of the violence, the intimidation, the bullying, the thuggish behaviour of the CFMMEU construction division. That's how bad it got. That's how bad it got in Queensland. The union representing the workplace health and safety inspectors had to take action to protect the workplace health and safety inspectors. That is how bad it got.

Maybe they should have been, Senator Watt, consulted. Maybe they should have been allowed to put on the public record what they've gone through in terms of dealing with this thuggish, brutish, bullying behaviour of the CFMMEU. But, of course, when the minister put out his media release on 24 July 2022, he didn't even mention the CFMMEU. It's not even mentioned in three pages. He couldn't even bring himself to mention the CFMMEU, because they're an embarrassment. They're an embarrassment for the Australian Labor Party because the ALP is institutionally incapable of dealing with their thug behaviour. Unlike former Prime Minister Bob Hawke, who dealt with the BLF, the current day Labor Party is institutionally incapable of dealing with the construction division of the CFMMEU.

I asked the minister representing the relevant minister this week some questions arising out of what is referred to as the Boggo Road Cross River Rail case. For senators who don't come from my home state of Queensland, one of the most significant infrastructure projects occurring in Queensland at the moment, a multibillion-dollar construction project is the Cross River Rail. On 28 July 2022, the Federal Court brought down a judgement, last week, in relation to the CFMMEU. This is what the judge said. These aren't my words; these aren't a politician's words. These are the words of a member of the independent judiciary. 'I've take into account both the circumstances of the contravention itself and of each of the contraveners. There is clearly a persistent adherence to a strategy of noncompliance by all three respondents.' His Honour then quoted the High Court in the Pattinson case, which I referred to in this place last week: 'The greater financial incentive will be necessary to persuade a well resourced contravener'—that is, the CFMMEU—'to abide by the law rather than to adhere to its preferred policy and will be necessary to persuade a poorly resourced CFMMEU that its unlawful policy preference is not sustainable. The more determined a contravener is to have its way in the workplace and the more deliberate its contravention is, the greater will be the financial incentive necessary to make the contravener accept that the price of having its way is not sustainable.' That's what our High Court said. Maybe those opposite should have consulted the High Court or, at the very least, consulted the decisions of the High Court and the decisions of the Federal Court.

When I look at the history of these decisions, I have pages and pages of this stuff in relation to contraventions of the CFMMEU—pages and pages! I'm going to read out some—just some—of the Queensland infrastructure projects which have been impacted by unlawful behaviour of the CFMMEU. If those opposite had engaged in that reasonable consultation of the court decisions, they could have read it. They still can. The projects include the Enoggera army barracks, QUT Kelvin Grove campus, Lady Cilento Children's Hospital, Queensland's institute of medical research, the Bruce Highway Caloundra-Sunshine Coast upgrade, Legacy Way, Port Connect, Cairns Performing Arts Centre, Queensland Performing Arts Centre and Ronald McDonald House—even Ronald McDonald House, for goodness sake!

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Disgraceful! They help kids with cancer!

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Exactly, Senator Cash! How do you defend this sort of stuff?

I've said this before: I know that amongst the number of those opposite are people who have held senior positions in the trade union movement. I don't think any of those opposite, including Senator Sheldon, would have engaged in any sort of conduct which came within a bull's roar of that which was documented in the Federal Court case brought down last week. I can't imagine my colleague Senator Sheldon would have engaged in that conduct. I can't imagine Senator Sterle would engage in that conduct, or Senator Walsh or Senator Ciccone—all well-respected members of the Australian trade union movement. But the Labor Party seems incapable of dealing with this issue from an institutional perspective. It is just going to get worse.

Do you know, Madam Acting Deputy President, that what was said in that Boggo Road Cross River Rail case was so bad that His Honour added an annexure to the judgement—

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Which judge?

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

His Honour Judge Vasta added an annexure to the judgement—

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Which judge?

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Sorry, Senator Watt? Are you making an interjection?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

No, I was just asking if it was Judge Vasta.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

It was. Do you have anything to say about Judge Vasta?

Honourable senators interjecting—

Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

Order! Senator Scarr, please take your seat. Senators, this shouting across the chamber at each other is disorderly. I instruct senators to direct their questions through the chair.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

Point of order: Minister Watt is very close to making a reflection on the judiciary. Senator Scarr made it very clear which justice he was talking about.

He kept repeating his name—three or four times—and you kept asking, Minister Watt.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

On Senator Brockman's point of order: I wanted to clarify the name of the judge. I missed it when Senator Scarr apparently said it the first time. I just wanted to confirm that it was Justice Vasta, as I understand.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

You know exactly who it is, and we know the point you're trying to make.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'm just trying to get some clarity about which judge we're talking about.

There are a lot of judges who've said a lot of things about the ABCC, and I'll refer you to them as well.

Sue Lines (President) Share this | Link to this | Hansard source

Senator Watt, please resume your seat. That was a debating point. There are other points in time for us to have this conversation. Right now we are debating the ministerial statement that Senator Watt has provided. I would ask that we not shout across the chamber at each other. I am listening very carefully, and I would appreciate it if, if senators are going to say things that might be perceived as particularly inflammatory, they try and do it when they are making a contribution rather than doing it across the chamber at other senators. Senator Scarr, please continue your remarks.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

The conduct was so bad in that case that the judge actually added an annexure. He was so disgusted with the homophobic slurs that were used against Queenslanders in their workplace that he had to include it in an annexure. That's how bad it was.

I've got dozens of cases here. How about Justice Logan in the case of the Australian Building and Construction Commission and the CFMMEU—the Titan Cranes case? How about that case? This is what Justice Logan said, Senator Watt:

The time when enough was enough in relation to compliance with the law by this union, its immediate predecessor and, for that matter, others in history, and its officials, has well and truly passed …

That's what Justice Logan said in Queensland in dealing with the Titan Cranes case—another case involving unlawful conduct undertaken by the CFMMEU. There are pages of this. And if Senator Watt wants judges names, how about Chief Justice Kiefel, Justice Gageler, Justice Keane, Justice Gordon, Justice Edelman, Justice Steward, Justice Gleeson, the members of our highest court, the High Court. What have they said? What has the highest court in the land said? Maybe they should have been consulted or, at the very least, the judgements they've written should have been consulted. The High Court said:

The Full Court's approach in this case is apt to undermine the primacy of deterrence as the objective of the civil penalty regime in the Act is amply demonstrated once regard is had to the failure of previous penalties to have any deterrent effect on the CFMMEU's repeated contraventions of s 349(1) of the Act. The circumstance that the CFMMEU has continued to breach s 349(1), steadfastly resistant to previous attempts to enforce compliance by civil penalties fixed at less than the permitted maximum, is a compelling indication that the penalties previously imposed have not been taken seriously because they were insufficient to outweigh the benefits flowing unlawfully to the contravenor from adherence to the "no ticket, no start" policy. To the contrary, the CFMMEU's continuing defiance of s 349(1) indicates that it regards the penalties previously imposed as an "acceptable cost of doing business".

Maybe those opposite should have consulted the judgements of the highest court of this land.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on this ministerial statement regarding the Australian Building and Construction Commission. There's been a lot of hot air from the opposition from recent changes to the building code. Let's set aside all the rhetoric and look at what the minister's instrument actually does. It amends the building code to remove some of the most inappropriate and absurd provisions.

Let's start with 13(2)(j), one of the most ideological and ridiculous sections of regulation in Australian history. That section has been used by the ABCC to run hugely expensive High Court cases about flags and stickers. Let's start with the Eureka flag case, where the ABCC spent half a million dollars on a case to stop the Eureka flag from being displayed on a crane at a building site. Where do I even start on this one? How about the fact that the ABCC was prosecuting this case on behalf of no-one? There was no-one complaining to the ABCC about the Eureka flag being displayed. The developer of the site, Lendlease, was on the same side as the CFMMEU in this dispute. Either Lendlease didn't care about the flag or, more likely, actually recognised that the workers on the site have a little thing called freedom of speech.

So the ABCC spent half a billion dollars to obtain an ideological outcome that no-one—not the union, not the employers, not the workers—actually called for or supported. I think this is the very definition of a waste of money. And it doesn't stop there. The ABCC applies the same ridiculous section to other materials—for example, COVID-19 safety posters in break rooms on worksites. You might think that, during the pandemic, when construction sites were kept open to support our economy, the construction regulators would be focused on keeping workers safe. But, no, rather than support employers and unions to keep worksites COVID safe, the ABCC was investigating the COVID-19 safety posters in break rooms, not because there was any issue with the content of the poster, but because employer associations and union logos were both displayed in the bottom corner of the poster. It is just absurd that anyone can come to this building and say that. Just when we are fighting against COVID-19 safety posters. Just incredible. Half-a-million dollars on this nonsense. Then there's the women's bathrooms case. It's not enough to spend half-a-million dollars fighting about flags and stickers. Even by the standards of the former government, that's a colossal waste of money. So the ABCC is fiercely opposed to COVID-19 safety posters and to women's safety because they opposed and spent half a million dollars trying to stop a women's toilet being installed at a worksite in Melbourne—half a million dollars!

What else in this building code was struck out by this instrument? Let's look at the provision in the code that prevented employers and workers making agreements on a whole range of issues. For example, an agreement that contained clauses on matters dealing with safety—that's out; on clauses dealing with same job, same pay for labour hire workers—that's out; or clauses dealing with requirements for apprentices to be used onsite—that's out. Wow, what a surprise that we've got a problem with a lack of trained people, in this country, within the construction industry—because that's out; you can't train them, you can't come to an agreement; or clauses dealing with female participation in the workforce—that is out; or clauses dealing with sham contracting—of course, that's out.

The favourite thing is, they talk about labour productivity. The construction sector declined every year since the ABCC was established and before the pandemic. In 2017-18, the first full year of the ABCC, productivity was down 2.4 per cent. In 2018-19, productivity was down 2.6 per cent. And in 2019-20, productivity was down 2.6 per cent. Here's the real kicker. In the period between when the ABCC was abolished, by the former Labor government, and when it was re-established, productivity was actually better. Surprise, surprise, surprise! That's what happens when you interfere with the processes there. And, of course, when you see such things as sham contracting—no prosecution was done on sham contracting.

This was clearly an abuse of power and time by this previous government. It's laughable. Their incapacity to turn around and deal with wage theft and inappropriate payments that haven't been paid to workers is absolutely deplorable.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thank you, Senator Sheldon. I know that there's much more that you would have liked to have said about the ABCC but I do just want to get a couple of things on the record, specifically about the motion that we're dealing with here and regarding the order to produce documents. We will obviously be speaking further tonight about the disallowance motion, on the same matters that Senator Cash as lodged, and I'll have a bit more to say there.

Specifically on the order to produce documents, I want to make the point that the Minister for Employment and Workplace Relations has identified documents that were in scope for the Senate's order to produce documents that was moved by Senator Cash last week, and he presented those documents to me for tabling.

Senator Cash asked for correspondence between the Minister for Employment and Workplace Relations with the ABCC and the Fair Work Ombudsman. Those documents have been provided by the minister, except where they reflect deliberations of cabinet, refer to legal advice that is subject to legal professional privilege or refer to current proceedings before a court. Senator Cash also asked for briefings from the Department of Employment and Workplace Relations in relation to the changes to the building code and the potential abolition of the ABCC.

In-scope briefings on the approach to amending the building code and abolishing the ABCC were provided by the minister and had been tabled, except where they reflect deliberations of cabinet, refer to legal advice that is subject to legal professional privilege or refer to current proceedings before a court. Information that is unrelated to the specifics of the Senate order was either redacted or not provided, if it was a full page, and personal information and contact details that are not public have also been redacted.

I don't know whether there were any other speakers, particularly, on the OPD, but in the 50 seconds I have left I might just respond very briefly to a couple of things that have been said in this debate by members of the government. As I said the other day, the irony of Senator Cash, of all people, lecturing anyone about the need to consult or show courtesy—I'd like Senator Cash to advise us whether she or her office ever consulted the AWU before her office leaked a police raid on the AWU. Did they show courtesy to the AFP before their office leaked information about the police raid on the AWU? And we have consulted the Australian population, the entire Australian population, about our plans to abolish the ABCC. It's called an election. We took this policy to an election. We won the election and we now have every intention of delivering on that promise that we took to the election.

Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

The time for the debate has expired. Therefore, I'll put the question. The question is that the Senate take note of the statement as provided by Senator Watt.

Question agreed to.