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Tuesday, 29 November 2005
Page: 72


Senator BARTLETT (5:38 PM) —I would like to make a few brief comments on behalf of the Democrats, given that our regular spokesperson on this issue is otherwise detained at the moment, presiding over the Senate. The issues here, as you would well know, Mr Acting Deputy President Murray, are both as narrow as what on the face of it are fairly innocuous regulations in lots of respects that simply give effect to legislation that was passed by the Senate and as wide as the whole political history of the government’s fairly flagrant misuse of taxpayers’ money, calling a politicised royal commission that, quite frankly, did not produce value for money.

Nonetheless, the royal commission did produce information that the Democrats tried to get maximum value out of. We participated comprehensively in follow-up Senate committee inquiries to try to filter out some of the extreme ideologically driven rhetoric and half-facts that the government was putting forward and to try to get to the actual facts and the truth. In that context, you also have to filter out the understandable self-interest of the building industry unions. It is completely understandable because they are looking after their interests from their position. The Democrats’ position on industrial relations, from our inception and particularly in the last decade or so, has been to try to find the middle path between the union focus and the industry focus, to try to filter out the self-interest and to look at the facts to see what is actually happening on the ground and what sorts of changes in law might benefit the situation.

In one sense this is another manifestation of that very partisan and politicised debate that goes back quite a long period of time. Our comments are on the record in a number of places and on a number of occasions, including a range of Senate committee reports and a range of debates in this chamber and outside it. I do not want to revisit all those in detail today, beyond saying again that we thought that the royal commission was much more partisan than it needed to be. I certainly think that, if we are going to spend tens of millions of dollars on a royal commission, it would have been a much greater indication of the government’s seriousness if they had undertaken a royal commission into the grotesque and widespread problem of child sexual assault. The Senate repeatedly passed resolutions calling for a royal commission into that area, and the Prime Minister said, ‘We’re better off putting the money straight into child protection.’ Of course, the federal government did not put any extra money into child protection, but they did manage to find tens of millions of dollars to have a politically motivated royal commission into the building industry instead. I think that was very much to their discredit.

The fact that the royal commission was politically motivated on the part of the government and was not the best use of public funds should not, nonetheless, suggest that there were not issues in the building industry that needed attention. The government is focused on the issues from the point of view that all the problems are with the unions. There are certainly some isolated and individual problems with some union officials, and I think there is certainly sufficient evidence to demonstrate that, but there are also problems with others in other parts of industry. The inappropriate behaviour of others on the business side of things in some respects generated a vicious cycle of almost making it inevitable that you would get counteractions and reactions on the part of others in the work force.

The Democrats’ view, after looking at this matter in a lot of detail, was that there was a case for some action but not the sort of extreme and draconian action that the government proposed at the time. I can well recall the amount of time that the Democrats put in—and, indeed, the time was put in by not just our spokesperson Senator Murray but me as the party leader at the time—in trying to negotiate a balanced position between the government, the minister and the then shadow minister, Dr Emerson. I am fairly sure that it was on the very final sitting day at the end of June 2004, in a quite late night sitting, that we tried to negotiate a balanced position that would provide some extra powers and some scope for action to try to break through and address some of the real problems that existed, without providing the sort of draconian and extreme powers that were not only unnecessary but also likely to be misused and, as often happens in those circumstances, likely to be counterproductive as well. The decision the Democrats took at that time, which was a difficult but, I believe, balanced one, was a perfect example of the responsible use of the balance of power that we were able to exercise at that time and on a range of other occasions in the industrial relations arena.

I addressed that history a little in my comments on the misnamed Work Choices bill when I spoke on that last night, so I will not revisit all that. But it is important to give that history, because that legislation was negotiated and passed after a lot of work looking at the evidence through comprehensive Senate committee inquiries trying to cut through all the political rhetoric and self-interest to look at the public interest. Following from that, a set of regulations was put forward which, again, we put a lot of work into negotiating, not just with the government and the industry but also with the relevant unions. Despite not supporting it, the unions recognised what our position was. They still contributed and participated in trying to make those regulations as effective as possible as well as focused on the problem they were trying to address rather than just giving a blank cheque. So we put that effort in with those regulations and with the guidelines about how those powers would be used.

There was a disallowance motion moved to those regulations as well by Senator Marshall and, I think, Senator Nettle combining together and showing their shared ideological focus in that particular area. The Democrats’ view was the same: whilst there were difficult issues and valid arguments, on balance, we believed they were appropriate. There was strong criticism. I particularly remember the very strong criticism of former Senator Peter Cook when the legislation was being debated quite strongly in this chamber. And when he was speaking to me personally outside the chamber the criticism was even stronger. But the fact is that, whilst there are some significant powers that are given in this area, they do match in quite a parallel sense powers that other government agencies have, such as ASIC and others, when they are conducting investigations. They have quite strong powers. The requirements on people who are being asked to provide information are often much more extreme than we would normally expect in due processes. These are not issues one approaches lightly. That should always be done with caution and proper controls, and that is what we sought to do.

The problem is that, since the election, with the government getting a very narrow majority, but a majority nonetheless, in the Senate, they have not just put aside but basically blown out of the water all of those balanced outcomes that were agreed by the Senate. They have simply come back with their own ideologically extreme full-blown measures. That is what we saw with the dubiously named Building and Construction Industry Improvement Bill 2005 that was passed by this chamber not too long ago. I should emphasise that the Democrats opposed that legislation because it was extreme. It went further than was necessary and did not provide adequate protections.

The regulations that we are debating today, to get back to the specifics of the matter before us, endeavour to put in place some of the administrative framework surrounding the legislation that was passed. Because we did not support the legislation it is reasonable enough in one sense to say that we do not support the regulations. On the other hand, you could take a view that the regulations are not overly draconian beyond what is already there in the law that has been passed. The regulations are in many respects fairly benign; it is the law that they are attached to that is not so benign. Unfortunately, we have already lost that debate.

I should also emphasise the fairly significant amount of work the Democrats did in regard to the guidelines on how all those powers would be implemented. We got written guarantees and letters and all those sorts of things—they have also been superseded. That is very unfortunate and that, to some extent, goes to the concerns that have been raised in this debate. It is an important issue to emphasise, certainly for those of us that actively try to engage with the detail of legislation as opposed to just the political rhetoric. You can put as much effort and as many hours of work as you like into trying to get legislation and the regulations as precise and perfect as possible. It is appropriate to do that. But at the end of it all, it is still the government of the day that administer the law and regulations and oversee how those powers are used or, indeed, misused. It is much more difficult for the parliament, the Senate or indeed anybody else to have direct control over that. Once the powers are there, there is certainly always going to be a wide degree of flexibility or scope within the legislative framework for the government to allow the laws to be administered in particular ways. The lack of good faith that the government have shown in this area, as in many others, is a big part of why so many people do not have a lot of trust in this government and their willingness to stick to their word. It is not only a matter of how they allow powers to be implemented and overseen but also a matter of being given powers and then not bothering to use them for public good. So it does cut both ways.

That is really the problem about which very valid concerns have been expressed—that the powers are there and are being, in some instances, used in a way that is inappropriate and, I would suggest, counterproductive. If you are genuinely interested in addressing the problems in the industry and in trying to get meaningful and sustainable improvements, going around acting like cowboys is not going to do it. All you do is continue to maintain the cycle of antagonism that has been a cause of a lot of the problems that the Democrats have quite willingly and openly acknowledged do exist to some extent.

So that is, I guess, a history of the issue that the Senate is debating today. The issue is much wider than the regulation before us because it has that history. That history, unfortunately, has come to an end point. Because the government now have control of the Senate they have basically taken the opportunity to undo a lot of the work that was done by the Senate over previous years to get a balanced and constructive outcome. Instead, they have implemented their own ideological agenda. That ideological agenda had its starting point, as Senator Abetz clearly demonstrated through his contribution, in that very partisan and politically driven royal commission. It was so politically driven that at the time even Alan Jones was critical of its unnecessary nature.

This is the unfortunate situation we are now in. The government is now in a position, because of its narrow control of the Senate, to implement its ideological agendas and that ideology can overcome and subsume the broader public good and the necessity for balanced and constructive legislative and policy outcomes. In that circumstance, perhaps it is not surprising that the powers the government has are in some cases being used and implemented in a less than constructive, desirable and appropriate way. To summarise, the act is on the record. The Democrats opposed it. The regulations in themselves are not overly significant beyond the fact that they attach to an act that is extreme and goes beyond what was necessary. It was an act that the Democrats opposed at the time.