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Tuesday, 20 March 2012
Page: 2247


Senator FISHER (South Australia) (13:15): There was clearly a need to establish the Office of the Australian Building and Construction Commissioner, the ABCC. That need was clearly demonstrated by the Howard government established Cole Royal Commission into the Building and Construction Industry. It was necessary to stem continued lawlessness and thuggery on the country's building sites. It was necessary in order to protect, in particular, small businesses, small contrac­tors and construction industry workers.

Despite the protestations and shrill accusations of those opposite, one of the major objectives in the establishment of the ABCC was the protection of those very building and construction workers the Australian Labor Party would have the country believe they are going to protect by neutering the ABCC. The Labor Party claim they are about protecting those workers as opposed to their collective organisations, as opposed to the unions which supposedly represent and seek to protect and further the interests of those workers—rather than the interests of the union officials in charge of those unions.

Sadly, we are unlikely to hear the truth about the reality of lawlessness and thuggery on building sites and about the reality of that playing against the interests of workers—because most, if not all, of the members opposite have at some time been serving officers of one or another industrial organisation. They get it that, in order to feather their own nests in the past they needed—and in order to feather the nests of today's union officials they continue to need—to promote the supposed achieve¬≠ments of those organisations. It is also very convenient to keep the members of those organisations from realising the truth about who is working for whom.

In that context, it is no surprise to hear from members opposite that they consider the ABCC to be nothing but a tough cop on the beat, acting against the interests of workers and against the interests of unions. What a lot of poppycock. Those of my colleagues who have spoken previously in this debate responded very clearly to Senator Cameron's concern that no-one on this side seemed to have stood up for the interests of employees. No-one on this side, according to Senator Cameron, seemed to have talked about employers doing wrong in this sector. Had members opposite cared to be honest about the findings of the building industry royal commission, they would know very well that a large raft of the commission's findings about misconduct and inappropriate behaviour on Australia's building sites went to the complicity of employers in that behaviour. As my colleague Senator Back rightly pointed out, the coercive powers of the building and construction cop were able to be used, and were legislatively specifically directed at being used, against employers and management. In fact, they have been so used on countless occasions. There has also been a long list of court cases in which the ABCC has included employers and management in its prosecutions. Of course we cannot expect to hear that sort of truth from members opposite.

With respect to the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012, it was one thing to have the Senate committee consider a bill designed, in any event, to downgrade the cop on the beat to, as Senator Abetz said, a toothless tiger—reducing it to a building inspectorate within Fair Work Australia. That was one thing. But it is quite another thing to then have presented to this place an amendment cobbled together in the lower house by the Labor-Greens alliance—an amendment which has not been subject to any scrutiny by a Senate committee—which effectively says that, if an alleged perpetrator of illegal behaviour on a building site reaches agreement with another alleged perpetrator or with a victim of that illegal behaviour, the new building inspectorate is stopped dead in its tracks from either investigating or prosecuting the allegedly illegal behaviour. It is stopped from doing so even if it is part way through pursuing such an investigation or prosecution. That of course would have prevented any prosecution in respect of the West Gate Bridge in Victoria.

The unions in the building and construction industry are past masters at settling court issues on the steps of the courthouse. That is their pattern of conduct. There will be no incentive for that to happen and little likelihood of public justice for illegal behaviour given that we now have legislative encouragement—not just legislative protection but legislative encouragement—to do dirty deals on the side. Even before the Cole royal commission, this sort of behaviour was happening. As Senator Abetz says, those with deep pockets, those with money, will be encouraged to do deals again. And those with muscle, industrial muscle, will exercise it. That occurred before the Cole royal commission but never, either before the Cole royal commission or during the life of the current Australian building and construction commission, has there been legislated encouragement for the reaching of deals to allow those involved in allegedly illegal behaviour to escape investigation and potentially prosecution. It is bad law; it is crazy law. Why is this government being, arguably, crazy brave in an environment where the unions in the construction industry are already emboldened by the Labor government's promise and continued legislative attempts to neuter the construction cop? What is this government thinking?

Senator Thistlethwaite attempted to place great store in the suggestion that for this bill this government have a mandate. That is pretty cute, because of course they have busted their mandate on the carbon tax, they have busted any myth that there might have been a mandate for the mining resources tax, but on this bill Senator Thistlethwaite seems to say that the Labor government have a mandate. How can you have a mandate for a bill that was amended at the eleventh hour with an amendment not spoken of by this government at any time prior to the bill's passage through the lower house? And it was not even discussed at that time. Indeed, so little spoken of is this dirty deal, this Labor-Greens inspired amendment, that thus far, following all the attempts by the coalition to expose the amendment to scrutiny, with all the opportunities that members opposite have had to speak in response to the coalition's concerns, with all the opportunities—limited as they are by the gag—that members opposite have had to speak on the debate on this bill, not one of them has attempted to defend the indefensible contained in the amendment snuck through the lower house at the eleventh hour. They know they cannot defend something that is indefensible. I challenge the remaining government speakers to open their mouths and defend the guts of an amendment that says that even if there is on Australian building sites a sniff of illegality, of thuggishness and of lawless behaviour—in an industrial sense, of course—and even if the neutered and watered-down building inspector goes and has a look, if the perpetrator and the victim reach a deal then that is to be the end of it. I challenge any of the remaining members opposite with the opportunity to speak to defend the guts of that dirty, dirty amendment.

Where is the government going to stop with this triumphing of essentially commercial interests, as the Law Society has said, over public interest by allowing an agency to investigate and then prosecute where it considers fit? Where is this government going to stop? This is not just about the building industry. If this bill, with that amendment in it, becomes law, it will not be just about the building industry—all of a sudden it will be about workplace relations. Does this government seriously say that if, for example, where the Fair Work Ombudsman is investigating an underpayment—perhaps a deliberate underpayment—by an employer of one or more of its workers, this novel principle they are establishing could then be extended to saying, 'Well, if that employer then pays off his or her employees then the Fair Work Ombudsman should be stopped from investigating and/or prosecuting'? I would love to hear Senator Marshall and Senator Cameron say yes to that. Does this government seriously suggest that the likes of the ACCC, the likes of ASIC and the likes of the Australia Taxation Office should be in this situation? It is not just about building industry workplace relations law; it is not just about workplace relations law—it is about the law that is the fabric of the country.

Senator Thistlethwaite, in attempting to justify the taking away of what are currently the construction industry cop's coercive powers, suggested that this bill brings those powers into line with the fabric of civil law around the country. If it is good enough to neuter the interrogative powers of the construction industry cop, why is the principle not good enough to apply to the rest of the provisions of the bill? Why is it acceptable as far as this government is concerned to have a provision that is unprecedented in law in this country; that has the Law Society saying it gives precedence to commercial interests over the public interest? This government has been conspicuous by the failure of any one of its members to attempt to justify the guts of the amendment.

Let me finish on this so-called mandate. Prior to the 2007 election Minister Gillard said:

We want to make sure that no one is engaged in improper conduct in the building industry, whether employer, union or employee.

As I have said before, that was a myth. This bill is not sticking to that promise—and the myth is busted. How is a bill which allows a side deal enabling parties to sidestep alleged illegality making sure that no-one is engaged in improper conduct in the building industry? When she said it in 2007 she might have meant it but it is clearly exposed now as a myth that is busted. In the Prime Minister's second reading speech, she said:

…a nyone who breaks a law will feel the full force of the law.

Not if you can reach a side agreement to settle. It is a myth and it is busted. But she was frank enough to say:

I am also disappointed; disappointed that there are still pockets of the industry where people think they are above the law, where people engage in intimidation and violence.

She knows that that continues to exist in the building and construction industry, as do members of the Senate Education, Employment and Workplace Relations Legislation Committee, who had their extremely brief inquiry, two hours, into this bill. The committee majority—that is, of course, the government members on the committee—offered:

the committee majority accepts Mr Wilcox's assessment that despite progress, the culture of the building and construction industry is still transforming.

Even then they accept Mr Wilcox's report to that end. They went on to say:

The bill before the committee is aimed at driving cultural change in the industry through a carrot and stick approach: rewarding good behaviour and focusing compliance measures on areas where it is needed.

How can the members of the committee still say that? I suggest that they cannot because of course since writing that report Labor and the Greens agreed in the lower house to the amendment which will stop dead in its tracks any investigation and any potential prosecution by the now toothless tiger—or as Senator Abetz says, the toothless mouse—the so-called building inspectorate, because there has been a side deal to that effect.

As for that amendment, where is the support from industry? Of course, there is none. Where is the support from unions who will be even more emboldened if not encouraged to reach these deals? That support, I suggest, has been very muted—once again, try and defend the indefensible. But what Mr Noonan, secretary of the CFMEU, has said are words to the effect: 'It makes a bit of sense, because it could save taxpayers' money in there no longer being an investigation or prosecution.'

That stands totally at odds with the independent Law Society's assessment, 'Look at it the other way around. If an investigating authority has already started to investigate and is perhaps part way through prosecuting, it is a waste and a mockery of the spend of taxpayers' money to shut the door, to stop those investigations, to stop that prosecution dead just because the perpetrator, one or more of, or the perpetrator and a victim have reached a deal about the alleged illegal conduct.' It is indefensible and that is why members opposite are so silent about it.

The Prime Minister, in continuing to make her now broken election promises, also said:

there should be absolutely vigorous, hard-edged compliance and no tolerance at all for unlawfulness—

on building and construction sites in Australia. That is what she said in her summing up speech about this bill. How is it allowing parties to agree to settle their differences when an investigation or a prosecution can be stopped dead in its tracks? How is that no tolerance at all for a breach of the law? She also said:

Each and every breach of the law is wrong and each and every breach of the law should be acted upon.

No—poppycock; it cannot be. It can be papered over by a side deal between the perpetrator, one or more of, or the perpetrator and one of the victims to a wrongdoing. This is not a mandate. This is not a bill underpinned by a mandate. This is a bill that exposes the Prime Minister's promises as myths and they are busted. A Prime Minister and a government that cannot keep their promises should not be able to keep government, and this bill should not go through this parliament.