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Wednesday, 15 February 2012
Page: 1380


Mr BANDT (Melbourne) (13:14): There is a problem with the rule of law in this country: it does not emanate from workers and their unions but, far too often, from this parliament. The rot really set in under the Howard government. When it came to immigration we saw the beginning of defining places within Australia as not really Australia, and the defining of people as having two tiers of rights. We saw terrorism laws that removed longstanding rights to silence. With Work Choices we saw the introduction of laws that gave ministers in this place the right to remove people's legitimate rights to bargain, without any say and without a hearing, and to the Labor government's shame they have kept those laws.

But we also saw the enshrining of a principle in the building industry that undermines one fundamental tenet of the rule of law. The rule of law says that you have one set of laws that applies equally to all people and that they will be judged according to an equal standard, regardless of where they come from and regardless of their status. These laws in the building industry removed the right to silence that people had, simply because they worked in a particular industry and because they turned up to work in boots and a hard hat instead of a suit and tie. That fundamental offenceagainst one of the most basic principles of the rule of law rightly drew opprobrium not just from those people who were affected but from people right across the spectrum who were concerned about civil liberties and from observers internationally who looked at these labour laws and said they did not meet basic civil rights standards.

But more than that, the legislation, which was established under the former Howard government, set up a juggernaut that had significant resources and that turned its direction and its fire on one particular group. If you look at the statistics you will see that, between October 2005 and June 2011, the ABCC commenced 91 prosecutions. Eighty-six of them were against workers, their representatives and their unions and only five were against employers. To this government's shame it became no better with the change of government. From 1 July 2009 to 30 June 2010, 29 proceedings were commenced against workers and their unions and none against employers. That is what this institution that was created was designed to do. It was not a neutral policing agency within the industry; it had a specific target. You just have to look at how it conducted its activities to see what it did.

Throughout all of this the Greens have been steadfast in their defence of the rule of law. In 2005 we opposed the Building and Construction Industry Improvement Act in the Senate. In 2004 we moved to disallow the Building and Construction Industry Improvement Regulations and used the opportunity to highlight the harsh impact the laws were having. We took an explicit policy to repeal the act and to abolish the ABCC to both the 2007 and the 2010 elections. In 2008 we introduced a private senator's bill to repeal the act in its entirety. In 2008-09 we reiterated our strong position in Senate committee inquiries and, in 2010, we moved a motion in the Senate noting the recent ILO report, which I will have more to say about in a moment, on the ABCC and calling on the government to abolish the ABCC.

We have voluntarily signed up to International Labour Organisation conventions that apply internationally, that preserve the right to organise, freedom of assembly and the right to bargain. On no less than eight separate occasions the International Labour Organisation has said to our government that the specific building industry legislation contravenes those international standards that they have signed up to. That is why, as I have alluded to before, we have had not only international law groups but civil liberties groups including, amongst others, Liberty Victoria—which is not necessarily well known for saying that it is on the side of workers but is a staunch defender of the basic principles of the rule of law, including the right to silence—come out and condemn this law, joining the likes of the ILO.

There was a time when the Labor Party agreed with all of that, when they voted against the ABCC in the Senate. In 2007, in their Forward with Fairness policy, they said:

Labor does not believe in separate industrial rules and regulations for different industries. Under Labor all employers, employees and unions across all industries will be required to comply with the rules …

They went on to talk about having specialist divisions in Fair Work Australia. It seems, though, that when it comes to Labor and its factions it does not take that long to shift on fundamental principles. If you accept everything that the coalition has said you would believe that the ABCC was being abolished tomorrow. If only that were the case.

Instead, this bill before parliament retains some of the worst excesses of the Howard government. People in the building industry remain singled out for special treatment by virtue of no other fact than they work in that industry. We still have an inspectorate that remains, for all intents and purposes, an autonomous entity—a continuation of that prosecuting juggernaut, established by the coalition, which will continue to pursue workers and their representatives with unfair proportionality. But, most distressingly, the coercive powers still remain in the legislation.

After passing this legislation, Labor members would do well to remember one thing: the same worker whom they will stand next to one day, wearing a hard hat and fluoro vest, for a photo opportunity could on the next day be taken in for questioning and forced to name their workmates. That remains a fact under this bill. Workers in such an industry will continue to enjoy less liberty than workers in other industries and this kind of McCarthyism that was begun under the Howard government will continue. Perhaps the most distressing thing about that is that we have in this parliament an opportunity to fix it. We have enough support on the crossbench to remove these coercive powers and go back to something that the Labor Party only a few short years ago said it believed in. The fact that Labor are choosing not to do that is something that they themselves will have to explain to the public.

I heard a number of times during this debate a reference to the former Cole royal commission as if it were some authoritative basis for the laws that were established here. I had the privilege of representing people during that royal commission and let me give you, Madam Deputy Speaker, a couple of anecdotes about how that worked. First of all the commission was not a court. The commission was not an entity where everyone had the right to equally defend everything that was put against them in a way that you might expect in a court. So what happened? I remember one day when I was representing some people in Western Australia waking up to read in the newspaper, 'Worker locked in shipping container by unionist'. That apparently is what the royal commission was going to hear about over the next couple of days. We turned up, we heard an opening from counsel assisting about this newspaper report about a shipping container and we sat there for two days listening to the evidence. Not once did they mention a shipping container. They could not find one witness to come and corroborate it and give evidence to the royal commission. They moved on, but of course the damage was done, because this was not a fair proceeding like a court and instead was trial by media and trial by royal commission.

I remember another instance where it was said that at a site at a university employees and their union had taken unlawful industrial action and attempted to coerce a small subcontractor by walking off the job. We got halfway through that when it was found out that the reason they walked off the job was that the employer was directing them to work on a rostered day off against the enterprise agreement. So we made an application to call the employer before the royal commission to investigate the employer's breach of the enterprise agreement. No sooner had we made that application than that whole case study was shut down and we moved on to something else. That royal commission was not about looking at the real issues in the industry, the issues that arise around sham contracting which defraud the revenue of the Commonwealth potentially of up to $10 billion. It was not about looking at the exploitation of overseas labour and not paying them at local rates but rather underpaying them, which threatens them and threatens locals. It was not about looking at any of that; it was about coming up with an outcome that would enable the legislation that preceded this legislation to set up the Australian Building and Construction Commission.

If you want to know how this entity has been behaving lately, this entity that is there supposedly to neutrally police activity in the building sector, just a week or so ago in the Federal Court one case was dismissed when the judge described as sloppy the investigative practices of the ABCC. But then, more spectacularly, a criminal case that was going on a week or so ago in Victoria that relied on ABCC evidence has now resulted in the ABCC commissioner investigating his own inspectors because they destroyed evidence. Such was their zeal to see prosecutions against workers and their unions proceed that they were prepared to destroy evidence. It is no wonder it is being investigated. But it explains exactly what this organisation was really set up to do and what it is on about.

That is why it is so disappointing that Labor is choosing to retain a version of it. Now, I am not saying there are no problems in the industry. I would be the last one to say construction workers are all angels. But if we were serious about tackling problems in the industry then we would turn our attention to sham contracting, we would turn our attention to the fact that often workers are told, 'Yes, you can come and work on this job but we need you to incorporate and give us a Pty Ltd letterhead.' We would turn our attention to the underpayment and exploitation of overseas workers. And we would give the ABCC or its replacement coercive powers to investigate those things. But we don't do that—no, we continue along the path set by the Howard government.

It is a basic matter of principle. I think there should be one principle that should guide how we deal with this issue. You do not make things better by removing people's rights. You succeed in politics and in lawmaking by standing for something, by believing in one law for all and then being prepared to stand up for it and implement it when you are elected. If someone could walk into an office or a shop and drag someone away for questioning and force them to name names and force them to give details, there would be an outcry, and rightly so. People in this country do not deserve fewer rights simply because they turn up to work in boots and a hard hat compared with a suit and tie. It is my strong hope that the government will consider the amendments that we will be putting forward later so that we can get rid of these inequitable laws once and for all.