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Transcript of press conference: 27 March 2003: Canberra: the Building and Construction Industry Royal Commission.



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THE HON TONY ABBOTT MP

MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS

Transcript

The Building and Construction Industry Royal Commission

Press Conference - Canberra

TONY ABBOTT: my statement you've heard Robert McClelland's response, you've had an hour or so to browse through the volumes tabled today and obviously this is now the chance to ask any questions that are on your mind.

So, who wants to go first?

QUESTION: [Inaudible]

TONY ABBOTT: Look, I think that's premature to ask that question. Plainly we have an interim task force, which is doing an excellent job, headed by Nigel Hadgkiss. The Australian Building and Construction Commission which Commissioner Cole has recommended is going to be an altogether a larger and more complex institution than the interim task force. But, look, at this stage we've only just got the recommendation. It hasn't gone to Cabinet. It will require legislation to be established, so I think we're still quite a way off any move to set it up. And when we're a bit closer to it, that'll be a time to maybe ask that question. It's a good question, though.

QUESTION: [Inaudible]

TONY ABBOTT: I'm not sure that it requires major changes to the Trade Practices Act so much as the mirroring of some of the Trade Practices Act provisions in this new Act. But certainly there is a big legislative program envisaged by these recommendations, should they be adopted in large measure by the government. And obviously all of the government's legislative program has to run through the Senate, which we don't control.

One of the things that I've always found is that while the Australian Democrats for all sorts of reasons don't especially like what they see as 'ideological', in inverted commas, measures. If they think a measure is necessary to tackle a practical problem, they're happy to give it serious consideration.

So I would be confident of getting a fair hearing from the Australian Democrats. And I would think that there would be many decent people inside the Labor Party who, whatever they might say publicly, would welcome a serious move to clean up the semi-corrupt culture which has operated for far too long in this industry.

QUESTION: [inaudible]

TONY ABBOTT: That's a fair point you make, and certainly some of the recommendations are close to legislative changes that the government has sought to make in a general sense. I guess the difference is that Commissioner Cole is recommending industry specific changes, rather than general changes.

The other difference is that unlike us politicians he has spent the best part of 18 months closely analysing this industry. And he spent 12 months listening to a procession of witnesses come through his court room telling him what things are really like on the ground.

So I think these recommendations for change, coming from a person of Commissioner Cole's standing, coming after such a thorough inquiry, will have, I hope, added persuasiveness to the minor parties in the Senate.

QUESTION: [inaudible]

TONY ABBOTT: I guess anything which involves legislation ultimately involves at least potentially a political contest. I would like to think that it might be possible to put some of that partisanship behind us now that the report is out. I don't think a fair-minded reader of the report, particularly the recommendations tabled today, would say that this has been in any sense a party-political exercise as far as Justice Cole is concerned.

I think that he's done his job with great thoroughness and with scrupulous fairness. And I can understand why, for all sorts of reasons, people might think that they've got to come out and mouth the party line today. But I'd like to think that when we actually get down to specific consideration of concrete bits of legislation, a more fair-minded attitude might prevail.

QUESTION: [inaudible] saying the Australian building [inaudible] should be a one stop shop. But on the other hand [inaudible] what's the rationale [inaudible] ?

TONY ABBOTT: Well, we live, Mark, in a complex modern society and we have a complex modern economy. And almost inevitably everything is connected to everything else. And what Commissioner Cole is essentially saying is a watchdog which is similar in some respects, if confined to one industry, to the ACCC. Now, the ACCC, in some ways overlaps with other agencies. There are some things that the ACCC looks at which are in part within the purview of other agencies and so it will be with this if this is what the government ultimately sets up.

So, look, I just don't think we can avoid that kind of overlap. The important thing is to manage it effectively. And one of the recommendations that the Commissioner makes is that there be officer seconded to this new commission from various State police forces and other appropriate agencies.

And provided everything approaches this in a spirit of cooperation and trying to get on with the job of appropriate law enforcement in the industry, I don't think we'll have any huge problems.

QUESTION: [inaudible]

TONY ABBOTT: Well, look, I didn't sit through those hearings and I have to say that phoenix companies are not my specialty. It's not a …

QUESTION: [inaudible]

TONY ABBOTT: Yes, well look, you know I would be the last person to say that everything government does is done perfectly and I would be the first to admit that we can always improve. Everything government does is essentially a work in progress, and we're always trying to get better at it.

I fear that there are many things which are never going to be as good as we like, and I guess our experience of the tax laws over several hundreds of years is that there is almost no tax that someone won't try to avoid. There is almost no rule that someone won't try to get around.

Now, that's not an argument for - against new systems, new structures and better enforcement. I mean the whole point of this - of the principal recommendations, is better law enforcement in this industry but nevertheless, you know, the situation is never going to be as good as we would like it.

QUESTION: [inaudible]

TONY ABBOTT: Yeah, well as I understand it, existing agencies that might in some way foreshadow the kind of agency that this construction commission could be are already encouraged to information share. And certainly that is part of the recommendation that Commissioner Cole makes. That all of these organisations have got to do a lot more talking to one another. A lot more information sharing, so that things that are discovered by one organisation which, in the regulatory patch of another organisation, can then get appropriate handled.

QUESTION: [inaudible]

TONY ABBOTT: Well, I think that the Building and Construction Commission, if established, would be a very different - would create a very different culture. And certainly I think that we would find that under any such system the same kind of more rigorous law enforcement that you get in other areas of activity. I mean one of the points that I've made about workplace relations issues generally is that there is an absence of serious law enforcement. If you break the road rules you get fined. If you break the corporate law, the ACCC or ASIC come down on you like a tonne of bricks. If you break the criminal law you go to gaol.

The one area of law which doesn't seem to have the kind of supervision, the kind of investigation, the kind of rigorous follow up, with penalties at the end, seriously penalties at the end, is workplace law.

Now, this is perhaps not such a problem in most industries because the market can sort these things out. But as I tried to point out in that speech, this is a singular industry. It's not subject to competition in the way many of our other industries, which in the past have suffered from serious industrial problems, are. And that's why we need a different approach.

But see this new commission, it will bring prosecutions, it will enforce judgments, it will do the sorts of things which are currently left to the parties to do and which are rarely done. And I think it will create quite a difference.

As for the culture of some of the commissions, I think that is a problem frankly. I think that is a problem. I think that in some of our commissions there is far too much acceptance of unacceptable behaviour. I think in some of our commissions bad behaviour is taken for granted rather than dealt with properly, and I'd like that to change.

QUESTION: [inaudible]

TONY ABBOTT: Well, I think the short answer is we'll have to wait and see. But any commission would obviously be set up under Federal law, not State law. And I guess the relationship between this Federal Commission, if established, and State bodies and State courts would follow the usual sorts of lines that these kind of cross-jurisdictional matters follow.

QUESTION: [inaudible]

TONY ABBOTT: Well, I mean at the moment if I'm running a business and I suffer an unlawful strike I've got to go to the Commission and get a Section 166 certificate, and then I've got to go to a competent court and then get damages orders. Now, the commission will invariably want to know what I've done to stop the strikes, so I will probably have had to do a whole lot of things before I even get into the Commission to talk about the 166 certificate.

And, of course, in each appearance before the commission I'll probably have to argue the case almost from scratch because even if the circumstances haven't substantially changed, the other side will say that they have.

So we're probably talking about many days of expensive argument in the Commission before we get our Section 166 certificate, and then we've got probably quite a lot of argument before the Federal Court or some other appropriate court before we get a damages order. And, as you know, collecting evidence for these things is not always easy either.

So, as I read the recommendations, what Commissioner Cole is driving at is an expert panel of assessors who will swiftly be able to assess the damage caused by unlawful strike action. And mechanisms whereby swift application can then be made to some appropriate body for orders against those causing that damage through unlawful strikes.

And then, of course, there's the sanction of deregistration for organisations which have a damages order made against them and don't actually cough up the money.

QUESTION: [inaudible]

TONY ABBOTT: Okay, well I think the government will respond initially to this report in the next few weeks. I think you can take it as read that our initial response will be on the question of our intentions in regard to the Australian Building and Construction Commission. And then probably in mid year you'll start to see some responses to the other recommendations of the Commission.

Obviously it's one thing for the government to make policy decisions: it's another thing to draft legislation. It's another thing to get the legislation into parliament. I would be disappointed if we can't get legislation into the parliament some time in the spring sittings. I'd be disappointed if we can't do that.

But I know how the wheels of government can sometimes grind, and I know that this is a government which has got an enormous amount on its plate right now.

QUESTION: [inaudible]

TONY ABBOTT: What's this? Well certainly there is no question whatsoever that the government's response to this report should be well and truly in the arena.

QUESTION: [inaudible]

TONY ABBOTT: Oh, I think realistically the middle of next year would be probably the earliest feasible date to get it up and running.

QUESTION: [inaudible] the Cabinet's also considering, Minister, the Dawson Report into the ACCC. Is this report on a different matter [inaudible] ABCC an endorsement, do you think, from Judge Cole as the way the ACCC works? [inaudible] certainly the public - the very high esteem which the public hold…

TONY ABBOTT: I think there's no doubt that the ACCC has been a very effective watchdog. It's been - and certainly on those comparatively rare occasions when it comes into the building industry, it's made an impact. No doubt about

that. And I think these recommendations from the Commission are a sign that the building industry would benefit from more ACCC type activity.

So I suppose yes in that sense it is a stamp of approval on the ACCC.

QUESTION: [inaudible]

TONY ABBOTT: Yeah, that's a fair point that you raise, Brad. I see a difference between a third non-official party interfering in relations between two other non-official parties and a situation where an official regulator or law enforcement body is looking after a whole industry. I think there's a distinction between outside interference in the commercial relationship between two entities by some non-official actor, and establishing a level playing field through regulatory activity in which those two entities can do - can exercise their freedom more fully. I mean I think that's the distinction.

I mean this is not just another third party. This is an official government body which is being contemplated which would be there to pursue certain statutory objectives and which would be there to exercise certain statutory powers.

QUESTION: [inaudible] through parliament, you mentioned that the [inaudible] your government and the previous Labor Government have been [inaudible]

TONY ABBOTT: [Laughs] Well, look, that's a fair point to put to me, but I think that the industrial tribunals lost their teeth back in 1969 with the Clarie O'Shea case and the general fall into disuse of the so-called penal sanctions. I mean that's when the industrial tribunals ceased being effective tribunals and started to be glorified talk shops. I mean that's what happened.

And, look, you know if it really was an umpire, it would have an important role. The trouble is all too often it's not an effective umpire because it doesn’t say what the law is clearly. And, if it does, it isn't able to control the players on the field. That's the problem.

And the interesting thing about most of the people who put the so-called umpire on this great pedestal is as soon as there's any suggestion to give the umpire more real power, they say, 'Oh, no, you can't possibly do that.'

I mean this government has tried to legislate to give the Commission more power to, for argument's sake, order cooling off periods. And naturally we haven't been allowed to do that. We've tried to give the Commission more power to order secret ballots, and again we haven't been allowed to do that.

So, look, we're all in favour of appropriate regulatory bodies. What we don't want is someone coming in there and trying to second guess what are appropriately decisions for the parties.

I mean it's important to have a clear well-regulated system of law within which people operate. What we don't want is kind of busy-bodies, if you like, second guessing decisions which rightly pertain to a relationship between two parties.

QUESTION: [inaudible]

TONY ABBOTT: Well, I think it was public protest that saved The Rocks. And sure, at the time the BLF…

QUESTION: [inaudible]

TONY ABBOTT: …the BLF certainly was a big part of that public protest. But, look, I have a general view that the

end doesn't justify the means. And even though saving The Rocks was plainly a good thing, illegal industrial activity - and I can't remember enough of the time to know whether the green bans were illegal - but certainly, you know, illegal industrial activity should not be pursued even for causes which might sometimes be regarded as good and worthy, the end does not justify the means.

Now, if we had a similar situation, I'm confident that there would be other ways of appropriately protecting our cultural and natural heritage.

In fact, as a local member, I'm always trying to find ways of protecting our natural and cultural heritage, and so far have managed reasonably well I think.

QUESTION: [inaudible]

TONY ABBOTT: I think if we are going to respond pre-budget on the question of the establishment of some kind of building industry commission, obviously we will have to put some kind of dollar figures on it. No doubt about that.

QUESTION: [inaudible]

TONY ABBOTT: No, but you know there is a difference between people who have permanent public sector jobs and people from the private sector who are coming in for specific purposes. I mean that's just the way life works.

But you know I know that there's been a lot of talk about Commissioner Cole's fee levels, but his fee levels, on an annualised basis, are less than what was paid to Neville Wran and Malcolm Turnbull back in the early 1990s when they were involved in the Waterfront Reform process that the then government ran.

And certainly compared to what he had been earning in private practice, he took a big cut to come and do this commission for the government.

QUESTION: [inaudible]

TONY ABBOTT: Look, that's the sort of question that you'd better ask me in about 12 months time or six months time when we're getting into the nitty gritty of this. I mean they would be people who understand enough of the industry to be able to work out fairly quickly as accurately as is possible what the cost of the industrial action was. So they'd have to be people who understand how much it costs to build a building, and they understand what kind of additional costs delay is likely to impose. But I mean who they might be and whether they might be drawn from the ranks of former union officials or former builders or former industrial commissioners I just don't know.

QUESTION: [inaudible]

TONY ABBOTT: Well, the powers of the ABCC, as I understand Commissioner Cole's recommendations, will, in some respects, mirror those of the ACCC only it will be an industry specific body rather than an economy wide body.

The sort of people who would sit on the commission would be the sort of citizens who are able to make a contribution to the proper running and administration of an organisation such as this. And - what's this? I'm talking about the commission, the ABCC. That's the sort of person that we'd have.

QUESTION: [inaudible]

TONY ABBOTT: What's this?

QUESTION: [inaudible]

TONY ABBOTT: Well look, I mean it will ultimately have the powers of enforcement which the government wants it to have and which the Senate allows it to have. The powers that the commission recommends that it should have are powers to bring actions rather than to impose penalties itself.

As I said, it's a watchdog; it's a supervising agency; it's an enforcement agency; it's a body which will attempt to take off the shoulders of private citizens and private organisations the burden of trying to enforce the law in a difficult industry like this.

QUESTION: [inaudible]

TONY ABBOTT: Well, again that's the kind of thing that the government would have to examine over time. But certainly, as Commissioner Cole seems to envision it, yes it would have those coercive powers and certainly, given the nature of the industry, that would seem to be a pretty reasonable thing to want.

QUESTION: [inaudible]

TONY ABBOTT: Well, it would have the power to make applications to the commission. I don't believe that, as recommended by Commissioner Cole, the commission - the ABCCC would supplant the Industrial Relations Commissions. It would, in its own way, work with them. And certainly I think it would end up bringing a lot of applications before them.

QUESTION: [inaudible]

TONY ABBOTT: I think it's too early to go down that path. As Robert McClelland pointed out in his response, there's much in the report that the Opposition finds attractive.

I thought it was interesting that Robert on the one hand said that this was a terrible horrible witch hunt, but, on the other hand, there was quite a lot that he could agree with there. And I wondered why someone who was such a stool pigeon of the government would then be capable of doing all these good things.

But, look, I certainly didn't find anything in my reading of the recommendations that I would not be well disposed towards. But not all of these things are within my portfolio responsibility.

And, in any event, these decisions are decisions for the government as a whole: not simply for a minister.

QUESTION: [inaudible]

TONY ABBOTT: Well, I think that the Employment Advocate is doing a good job. But because of the unique features of this industry, it's very hard for the Advocate to be effective in construction. You might remember that one of the triggers for this Royal Commission was a report by Jonathon Hamberger, which I received in, from memory, April of 2001. And Jonathon said in that report that the nature of the industry and the extent of the culture of coercion, collusion and intimidation was such that his office was inadequate to cope.

And so I don't think that the Commissioner is telling us anything that we didn't know about the office of the Employment Advocate insofar as the advocate operates in this industry.

But the Advocate operates over all industries: not just this industry. And because of the unique industrial culture of this industry, the Advocate has faced unique problems.

QUESTION: [inaudible]

TONY ABBOTT: What's this?

QUESTION: [inaudible]

TONY ABBOTT: The Advocate? Well, I think that if we had an Australian Building and Construction Commission, as envisaged by the Cole Report in place to handle freedom of association and coercive conduct in this industry, there'd be no need for the OEA to have a further role in this industry.

QUESTION: [inaudible]

TONY ABBOTT: Well, it's obviously an important issue. One of the other, I thought interesting points to Robert McClelland's response was that he really did stress OH&S. But OH&S is essentially a State responsibility. It's the States that have constitutional responsibility for occupational health and safety matters.

And while all of us as human beings have an interest in trying to protect people from workplace harm, in the end it is the States that passed the laws. It is the States which largely run the regulatory authorities.

Now, the Commonwealth, through the National Occupational Health and Safety Commission, has been attempting, for quite some years, to try to get higher and more uniform standards into various industries. But what sounds quite simple and at the level of principle and aspiration is quite simple, can be very difficult in practise. I know because I occasionally go to National Occupational Health and Safety Commission meetings and it does come within my portfolio responsibilities.

So, look, the establishment of this new Safety Commissioner, yes, the Commissioner will try to promote better standards in the industry at large. But, in the end, given the divided constitutional responsibilities, given the very limited Commonwealth powers in this area, the principal role of the Health and Safety Commissioner will be in building projects where the Commonwealth is the client or is the funder.

There are about $5 billion worth of Commonwealth funded construction projects directly and indirectly every year. So that will give this new commissioner, should the government decide to go down this path, this will give the new commissioner plenty of scope to try to ensure safer workplaces.

QUESTION: [inaudible]

TONY ABBOTT: Yes.

QUESTION: [inaudible]

TONY ABBOTT: Yes.

QUESTION: My reading of the Commissioner's recommendations is that the National Code and Guidelines should be both strengthened and applied to all Commonwealth funded projects, whether they are directly or indirectly funded. That's my reading of the Commissioner's recommendations.

Now obviously it's up to the government up to the Cabinet to decide whether to accept that. But certainly it is the government's strong desire to use its position in the industry to try to help clean it up. No doubt about that.

QUESTION: [inaudible]

TONY ABBOTT: Well, look, the first time someone in the construction industry is heavily fined, I mean heavily fined for a breach of the ordinary workplace rules, I will regard us as on the high road to reform.

Once we start getting law enforcement in this industry, the culture will change. But without a bit of serous law enforcement, we will be stuck with this culture of near anarchy forever. Because the commercial realities of this industry are such that without serious law enforcement by public agencies we are not going to get change.

Once we get serious law enforcement by public agencies, then we will get change because inevitably cultures follow institutions in this respect.

QUESTION: [inaudible]

TONY ABBOTT: I think you can take it as read that the government will not shut down the interim task force without something better to take its place. And I think you can take it for granted that the interim task force will continue until such time as a new body, a new and permanent body is there to take its place.

Okay. All done? Thanks very much. If there are further questions that people want to raise, subject to the usual parliamentary schedules, I'll be in my office. Officers of the department will be around to try to handle any very technical questions, and thanks very much for coming.

For further information contact:

Simone Holzapfel 0417 656 668

27/03/2003