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Thursday, 13 August 2009
Page: 7781


Mr NEUMANN (10:15 AM) —I am happy to speak in support of the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009. The Rudd Labor government has no tolerance for unlawful and illegal behaviour, whether it is in the building industry or in any other industry in any sector of this country. Unlawful industrial action will not be tolerated by the Rudd Labor government. We will honour our commitment, and this legislation honours that commitment, which we made prior to the last federal election to ensure not only that we have a tough cop on the beat in the building and construction industry but also that we bring a degree of fairness and justice and equity into that industry.

The truth of the matter is that the Howard government, in its time in office, engaged in the persecution of workers not just in the building industry but elsewhere. Work Choices is clearly the best example of the Howard government’s lack of commitment to the terms and conditions, pay and salary and the lifestyles of Australian workers. It is a bit rich for one of the architects of Work Choices, the member for Mayo, to actually give us lectures about the rights of workers. The truth is that the Cole Royal Commission into the Building and Construction Industry was itself a political act set up by the Howard government to ensure that the salary and conditions of those hardworking men and women in the building and construction industry would find themselves subject to a different rule of law than any other worker in any other industry.

I have a fundamental belief that, whether you live in Palm Beach, Perth, the Torres Strait or Tasmania, there should be one law for all. The member for Mayo should have a really good look at the Building and Construction Industry Improvement Act. I note he did not quote in his speech from any sections of that act. I am going to say this for the purpose of those who might be listening in the gallery and for the Australian public. Let us have a look at the draconian provisions in that act. Section 52 says that the ABC Commissioner has the power by written notice given to people to obtain information in a manner and form specified in the notice to produce documents. That power means that a person who has received that notice has to reveal all their telephone and email records, whether of a business or a personal nature; report not only on their own activities but on those of their fellow workers; reveal their membership of any organisation such as a union; and report on any discussions in a private union meeting or other meetings of workers. The provisions can apply not only to a person suspected of breaching a law but to workers in the building industry not in any way suspected of wrongdoing. Also, it applies to innocent bystanders and to the families of workers in the building and construction industry, including children of any age of workers in that industry, journalists and academics. The truth is that that sort of legislation is draconian and unfair on people.

Section 53, which I note the member for Mayo did not even refer to, says certain excuses are not available in relation to section 52 requirements. Section 53(1) says:

(1)   A person is not excused from giving information, producing a document, or answering a question, under section 52 on the ground that to do so:

(a)   would contravene any other law; or

(b)   might intend to incriminate the person or otherwise expose the person to a penalty or other liability …

That is remarkable. Section 52(7) overrides the secrecy provisions in other laws. In other words, it has the potential to override national security laws relating to, for example, ASIO. The sections ensure that the ABCC has coercive powers which override the protection of journalists’ sources, privacy law and even cabinet confidentiality, according to Professor George Williams.

There are no safeguards. Warrants are not there. The review under the Administrative Decisions (Judicial Review) Act is not there. Democratic rights like the right to freedom of speech and the right to silence are stripped away. In fact, it makes a mockery of its aspirations to respect the rule of law in section 3 of the Building and Construction Industry Improvement Act. So let us not get sanctimonious about this. This is an Orwellian piece of legislation produced by the Howard government after their commissioner of choice put down a report and Howard followed it. He opportunistically used legislation and the fact that they had a majority in the Senate to do certain things. The ABCC was given extraordinary powers in an industrial context which were not even given to the police to investigate major crimes. They go far beyond the powers of the police. The ABCC regime is very different from any other regime. It acts in a discriminatory manner. For example, you can say that ASIC, the ATO or even the Child Support Agency has investigative powers, but they do not investigate those powers and take on, say, butchers or those living in Toowoomba or those who may be Catholics. The ABCC has very discriminatory powers and the law itself is a criminal investigatory model put forward in a non-criminal industrial context. That is the situation.

Those opposite should not get too pious about what their position is and how wonderful and virtuous the ABCC legislation is. I can think of nothing more Orwellian in terms of its nomenclature, apart from Work Choices, than the Building and Construction Industry Improvement Act. John Lloyd, the ABC Commissioner, has shown his true colours with what he has done. We have seen many prosecutions initiated and there is a degree of unbalance in the nature of the activities going on. I have had friends who have been attacked and subject to prosecution. Just yesterday I had lunch with a good friend of mine, the secretary of the plumbers union in Queensland, Bradley O’Carroll, who himself was pursued. There is a lack of even-handedness about the ABCC’s activities. Fortunately, Justice Spender, throughout the case against Brad O’Carroll, said it should never have been brought in the first place. That is just typical of what I would consider to be the unfounded coercion that the ABCC practises in relation to workers, many of whom are law-abiding Australians who go about their business providing for their families from the salary entitlements that they earn working in the building and construction industry. If there are acts of illegality and criminal behaviour in the building and construction industry then they should be subject to the full force of the law by the police and the courts. That is why we have the Australian Federal Police and the police forces of the states and territories of this country.

The member for Mayo talked a lot about following the Cole royal commission report, but the Deputy Prime Minister herself decided to look into this and appointed the Hon. Justice Murray Wilcox to provide a report and to consult stakeholders on the report, on matters relating to the creation of what we believe to be a fairer system—that is, putting the whole issue of the building and construction industry into the Fair Work Building Industry Inspectorate. Murray Wilcox came back to the government with recommendations after extensive consultation with stakeholders in the industry. Many people—employers and employees, ACCI, and the Business Council of Australia—were involved in responding to the Wilcox inquiry. We have acted on our election commitment, a commitment upon which we were elected by the Australian public. We have listened to what the Hon. Justice Murray Wilcox has had to say and we have followed his recommendations. I agree with what the Deputy Prime Minister has had to say about the vast majority of participants working in the building and construction industry: they are law-abiding men and women and wonderful citizens of this country.

The Wilcox recommendations go a long way towards bringing forward important safeguards to avoid the arbitrary, if not capricious, misuse of the powers given to the ABCC by the Howard government in this piece of legislation. The provisions in this legislation before the House today prescribe, very carefully, prudently and appropriately, clear safeguards and oversight in all the circumstances. I applaud the campaign of so many workers and their unions who have focused on this particular issue and aspect of our industrial life in this country. I have many friends in Queensland—in the BLF and the CFMEU, the Electrical and Plumbing Union and other unions—and many of them are good, hardworking, decent Australians who have been subject to the threat of these terrible laws hanging over them for far too long. We hope and expect that the coalition would respect the mandate given to us by the Australian people when we pass this legislation—not just through the House but, we hope, through the Senate—in the circumstances.

The legislation before the House goes a long way to alleviating the problems with the current legislation—legislation which so persecutes Australian workers in the building and construction industry. I have learnt in many years in politics that you cannot get everything you want and I have argued my position for a long time in the various forums of our party in relation to this. I am happy to speak on this bill and to support what I believe will be a very significant improvement in the lives, in the workplace and elsewhere, of men and women in the building and construction industry, not just in my home state of Queensland but in the whole of Australia.

The elements of this particular piece of legislation are very, very important. We are abolishing the ABCC and creating a new and separate regulatory independent ombudsman called the Fair Work Ombudsman to administer the regulatory framework for the building and construction industry. The Fair Work Building Industry Inspectorate will go a long way to bringing fairness, justice and equity into the workplaces and the building and construction industry in this country. Abolishing the ABC Commissioner and the deputy commissioners is important. I would have preferred that they had not been appointed in the first place, but I am happy that we will appoint other people in all the circumstances. The changing of the definition of ‘building work’ to remove its coverage for off site work is important to limit the scope of the legislation. The establishment of an advisory board to make recommendations to the director of a new inspectorate is important because the advisory board will make recommendations about policies to guide the performance of the director’s functions and the exercise of the director’s powers. The advisory board will consist not just of the director but a Fair Work Ombudsman and a representative from the building industry employees’ unions, as well as a building industry employer representative and other representatives.

Another important reform is the creation of an office, the independent assessor, who on application from stakeholders—and that can be employers or employees, and unions as well—can make a determination that an examination notice power will not apply to a particular project. The switch-off powers are important because these coercive powers should not apply to every single project in the circumstances and the independent assessor, if satisfied, can make a determination to switch off the powers. It would be my hope that that would happen on many, many occasions. While we retain the coercive powers there are significant amendments to implement the Wilcox recommendations, including regarding external oversight. The use of each of these powers is dependent on a presidential member of the Administrative Appeals Tribunal being satisfied that a case has been made out for their use.

Importantly, if a person is summoned they could be represented by a lawyer of their choosing and their rights not to disclose information on the grounds of legal professional privilege and public interest immunity will be recognised. That is an important safeguard in terms of civil liberties. Also their reasonable expenses could be reimbursed. All examinations are to be undertaken by senior officials, and all examinations will be videotaped and the Commonwealth Ombudsman will monitor those and review all examinations and report back to parliament on the exercise of this power. Before this examination notice can be issued, an AAT presidential member must be satisfied on reasonable grounds of a number of things. One is that you cannot get this information by any other way. We think it is important that there should be a sunset clause for the coercive powers to end at the end of five years from 1 February 2010. There will be a review prior to that sunset clause date being reached, but in all the circumstances I believe firmly that we will see an end to coercive powers in this country. The criteria which the independent assessor has regard to in terms of the public interest will be specified in regulations, which I think is important, and they will be objectively ascertainable and geographically neutral.

A very important reform which we are initiating is the ministerial direction which is being given to the ABCC. Before exercising that power, the ABCC must provide a nominated person who is a presidential member of the AAT with a report describing the person against whom the power is to be exercised and the purpose of the exercise of that power, the urgency, the likely effect on the person and whether the purpose can be achieved in any other way. In other words, you have got to show that this is absolutely necessary in all the circumstances. An objection can be taken to an appropriate court or tribunal. It is very clear oversight administratively and judicially.

What did the ABCC say about all this and the Wilcox report? The true colours of John Lloyd and co were revealed in its response to the Wilcox recommendations. If we needed some degree of objectivity and evidence based decision making coming out, we did not see that from the ABCC in its response to the Deputy Prime Minister following publication of the Wilcox report. Guess what: the ABCC says that many of the Wilcox recommendations are unnecessary or too expensive in the circumstances—for example, the video recording of every examination. The judicial and administrative reviewable oversights are unjustified, according to the ABCC. The ABCC opposes limiting the definition of ‘building work’ in the guidelines. It thinks that the exercise that it has undertaken in relation to the interrogation powers of a compulsory nature is justified in the circumstances, despite the many cases it has had thrown out. The true colours of John Lloyd and his cohorts have been clearly shown.

The legislation before the House is extremely important. It is about improving the living standards and the working conditions of men and women in the building industry. It is about bringing back a degree of fairness and justice. I can say as a Queenslander that we have not had anything like the unlawful behaviour we have seen from time to time in places like Victoria and Western Australia. My knowledge as a practising lawyer who worked in industrial law from time to time and my knowledge of the men and women who represent workers in their industries in Queensland demonstrate to me that this legislation goes a long way—not quite as far as I would hope but a long way—towards bringing back justice for building and construction industry employees in this country.

I would hope that those opposite would take the opportunity to listen to the voice of the Australian people, to help us eradicate draconian powers given to the ABCC so that the compulsory interrogation powers can be prescribed and so that we can see a modern society in Australia where building workers and their families and children are treated decently, with humanity and with a degree of justice that we as Australians believe is important across all the workplaces of this country. I warmly commend the bill to the House.