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Thursday, 25 June 2009
Page: 4294


Senator FISHER (11:44 AM) —At the request of Senator Abetz, I move:

That the Directions in Relation to Coercive Powers, made on 17 June 2009 under section 11 of the Building and Construction Industry Improvement Act 2005, be disallowed.

The opposition seeks to disallow the ministerial direction on the basis that it not only goes beyond the minister’s powers under the existing Building and Construction Industry Improvement Act but seeks to put the issues that are the subject of the ministerial direction beyond the reach of parliamentary process, beyond the reach of parliamentary scrutiny and beyond the reach of parliamentary will.

The government will attempt to say that what the minister is trying to do in the ministerial direction is simply to put in place what is already in the existing Building and Construction Industry Improvement Act. If it is in the existing act then why is a ministerial direction needed? The answer is: because it is not already in the existing act, and putting it in the act requires parliamentary process, parliamentary scrutiny and the exercise of parliamentary will, as should be the case. The government does not have the political courage to put the matters that are the subject of the ministerial direction before parliament, as part of parliamentary process and scrutiny and subject to parliamentary will. It knows that this parliament will not pass legislation to the effect of the ministerial direction because it would be a very clear breach of the government’s election promise that the existing powers of the Australian Building and Construction Commission will remain as they are until January 2010.

The ministerial direction clearly goes beyond the minister’s powers under the act. Under the existing act, the minister does have the power to specify the manner in which the Australian Building and Construction Commission must exercise its powers and functions. But the ministerial direction goes far beyond ‘the manner in which the Australian Building and Construction Commission must exercise its powers and functions’. It goes directly to those powers and functions themselves. It cuts back those powers and functions; it curtails those powers and functions. Two clear examples: firstly, the ministerial direction requires the Australian Building and Construction Commission to provide a person subject to investigation with the ability to object to that process through a court or tribunal. What is the ABCC to do with the proposed investigation if a court or tribunal upholds the objection? If that aspect of the ministerial direction is designed to stop the Australian Building and Construction Commission exercising the investigative powers that exist at the moment, then it very clearly curtails its power. If that is not the intent of that part of the ministerial direction then why is there a need to make it?

The second clear example is the supposed requirement in the ministerial direction that the Australian Building and Construction Commission, before proceeding with an investigation under section 52 of the existing act, must provide a report to a member of the Administrative Appeals Tribunal, acting in their ‘personal capacity’—whatever that means—about the proposed investigation and then take into account the views of that member of the AAT before proceeding with the proposed investigation under section 52. Again, if the intent is not to require the ABCC to desist with the investigation if the views of the AAT member are negative—that is, that the investigation not be proceeded with—then why have that provision in the ministerial direction? If that is the intent of that aspect of the ministerial direction then clearly the ministerial direction curtails the current investigative powers of the ABCC. Those are but two examples of the ways in which the ministerial direction clearly goes beyond simply directing the manner in which the ABCC must exercise its powers and functions and, rather, directly cuts and curtails those powers and functions.

The government does not have the courage to put these matters to this parliament as a legislative amendment. These matters are not in the existing legislation, and the government does not have the courage to put them before parliament to subject them to parliamentary scrutiny and parliamentary will because it knows it is in clear breach of its election promise to keep the existing powers of the ABCC in place until January 2010. This motion must be supported.