Bills Digest no. 100 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Jaan Murphy
Law and Bills Digest Section
11 May 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 25
March 2015
House: Senate
Portfolio: Employment
Commencement: On
Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
Currently, the Fair Work (Building Industry) Act 2012
(the FWBI Act) provides the Director of the Fair Work Building Industry
Inspectorate (FWBI) with a number of coercive investigatory powers. Those
powers are subject to a sunset clause and will expire on 31 May 2015. As a
result, those powers will not be available to the FWBI after 1 June 2015.
The purpose of the Construction Industry Amendment
(Protecting Witnesses) Bill 2015 (the Bill) is to amend the FWBI Act to
extend the period of time during which the Director of the FWBI can use its
coercive investigatory powers by two years, until 1 June 2017.
Through the Building and Construction Industry (Improving
Productivity) Bill 2013 and Building and Construction Industry (Consequential
and Transitional Provisions) Bill 2013 (the ABCC Bills), the Government has
sought to re‑institute a separate workplace relations framework for the
building industry based largely on the Building and Construction Industry Improvement
Act 2005 (BCII Act). Among other things the ABCC Bills seek to
re-establish the Australian Building and Construction Commission (ABCC), along
with its previous coercive investigatory powers provided by the BCII Act.[1]
The BCII Act was (in effect) repealed and replaced
by the Building and Construction Industry Improvement Amendment (Transition
to Fair Work) Act 2012, which created the FWBI Act.[2]
The Parliamentary Library prepared comprehensive Bills Digests on the Building
and Construction Industry Improvement Amendment (Transition to Fair Work) Bill
2011 and its 2009 predecessor. Those Digests should be referenced for
background to the current Bill, including commentary on the background to the
inclusion of the sunset clause that the Bill proposes to extend by two years.[3]
However, a brief summary is provided below.
A Royal Commission into the building and construction
industry, the Cole Commission, was established in 2001. On the basis of its first
report, the Building Industry Task Force was established in 2002.[4]
The roles of the Task Force were to respond to the alleged threatening
behaviour of unions by:
- investigating
and (where necessary) taking legal action in relation to freedom of association
breaches and
- investigating
breaches of the Workplace Relations Act 1996 concerning Australian
Workplace Agreements.[5]
The Cole Commission’s final report was delivered in 2003.[6]
It found widespread disregard of laws and courts, threatening and intimidatory
conduct, and underpayment of employees’ entitlements. It catalogued a large
number and variety of misbehaviours by unions. The Cole report noted that the
short term interests of construction companies lead to their acceding to union
demands which are not in the national economic interest. It found that:
... quick fix solutions driven by commercial expediency
supplant insistence on legal rights, adherence to ethical and legal norms and
the pursuit of legal remedies.[7]
The Commission recommended, among other things, separate
legislation governing the building and construction industry and the creation
of an independent body to enforce the legislation and otherwise to supervise
the conduct of the industry. The BCII Act created such an independent
body, the Australian Building and Construction Commission (ABCC), and the
office of Australian Building and Construction Commissioner (ABC Commissioner).
Further, the BCII Act provided the ABCC with wide-ranging coercive
information gathering powers.[8]
The ABCC commenced operations on 1 October 2005, and continued to operate until
it was replaced by the FWBI.
Wilcox Report and Fair Work
(Building Industry) Act 2012
When the Labor Government came to power in 2007, its
policy commitment was to abolish the ABCC but to maintain a separate,
specialist inspectorate for the building and construction industry within the
new Fair Work Australia (later the Fair Work Commission). It commissioned
Murray Wilcox to report on the best way of achieving this.[9]
The basis for including a sunset clause in the FWBI Act
was outlined in the Wilcox Report, which reviewed the operation of the BCII
Act and the broader issue of ‘the creation of the specialist division for
building and construction work within Fair Work Australia’.[10]
The Wilcox Report observed that the ABCC had ‘made a significant contribution
to improved conduct and harmony’ in the industry, but that there was more to be
done and hence it was still necessary to have a specialist body focused on the
industry.[11]
Chapter 5 of the Wilcox Report examined the compulsory
interrogation power in detail. Section 52 of the BCII Act gave
the ABCC the power to compel a person to provide information, or produce
documents, or attend before the ABC Commissioner and answer questions, if the
Commissioner believed that the person had the required information or documents
or was capable of giving evidence that was relevant to an investigation. A
person was not excused from giving information on the grounds that to do would
contravene another law or would incriminate the person or would be against the
public interest. However, such information could not be used against the person
in a later prosecution. Such powers had been given to other Commonwealth
agencies such as the Australian Taxation Office, the Australian Competition and
Consumer Commission, the Australian Securities and Investments Commission, and
the Australian Crime Commission.[12]
The Wilcox Report noted that in the context of the
building and construction industry, the most frequently recurring types of
contraventions of the law ‘seem to be unlawful industrial action, coercion of
strike pay and breach of the freedom of association provisions’ and that in these
types of cases ‘evidence about conversations may be essential; if not to
establish the basic facts, in order to sheet home responsibility to particular
people’.[13]
The Wilcox Report noted:
As Mr Dixon SC pointed out in his Opinion, it is a
characteristic of most of the types of conduct of employees, and their unions,
that might fall foul of the Fair Work Bill (when it becomes law), that it
will not be documented; the only way to ascertain exactly what happened
in conversations and meetings will be to ask somebody who was there.
It follows from all this, it seems to me, that any tough new
regulator in the building and construction industry will need a power of
coercive interrogation; at least under present conditions.
However, the position may change. Even some of the employer
associations concede it may not always be necessary for the regulator to
have a coercive interrogation power. They suggest it may be desirable to review
the situation in (say) five years and, for that purpose, impose a sunset
clause on the relevant part of the new legislation. I think there is
merit in this.[14]
(emphasis added)
As a result of the above, the Wilcox Report made the
following recommendation:
The Director of the Building and Construction Division be
invested with a power, similar to that contained in section 52 of the Building
and Construction Industry Improvement Act 2005, to cause people
compulsorily to attend for interrogation, but subject to the safeguards
contained in Recommendation 4; and
(i) the grant of this power be reviewed after five
years;
(ii) in order to ensure review,
the provisions in the new legislation providing for compulsory interrogation be
made subject to a five-year sunset clause.[15]
The Gillard Government introduced the Building and
Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
(the 2011 Bill), which was broadly consistent with the recommendations of the
Wilcox Report.[16]
The 2011 Bill was passed with the support of most cross-bench Members and
Senators in March 2012, becoming the FWBI Act. The FWBI Act
created the FWBI in June 2012, and provided it with coercive powers along the
lines recommended in the Wilcox Report.[17]
Importantly, those coercive powers are subject to a sunset clause (contained in
section 46 of the FWBI Act) and thus will not be available to the
FWBI after 1 June 2015.
However, relevantly to debate about the current Bill, the application
of a sunset clause to the FWBI’s coercive investigatory powers was a controversial
issue amongst stakeholders when proposed in relation to the 2011 Bill.
For example, industry groups such as Australian Industry Group (AIG) argued in
2009 that there was no evidence that the ‘present conditions’ in the building
and construction industry would not remain present in five years, and hence
there was no justification for the inclusion of a provision that would automatically
terminate the coercive investigatory powers of the FWBI at a set date.[18]
Likewise in 2009 the Australian Chamber of Commerce and Industry (ACCI) opposed
applying a sunset clause to the coercive powers provided by the FWBI Act
to the FWBI.[19]
A number of construction unions argued against providing
any coercive powers to the FWBI in 2009, whilst other commentators expressed
the view at the time that the imposition of a sunset clause was a ‘highly
desirable’ improvement, but that ‘even with these safeguards the coercive
powers provided... are not justified’.[20]
In addition to the inclusion of the sunset clause being a controversial
and divisive issue amongst stakeholders at the time, the recommended review of
the coercive investigatory powers provided by the FWBI Act to the FWBI
has not yet occurred.
Why is the Bill needed?
The ABCC Bills, whilst having been passed by the House of
Representatives, remain before the Senate. As noted by the Minister ‘the
Government appreciates that the Senate requires additional time to consider the
ABCC Bills.’[21]
The ABCC Bills would, if passed, provide a permanent legal basis for the use of
coercive investigatory powers by the ABCC. However, if the ABCC Bills are not
passed then the sunset period on the use of coercive investigatory powers
contained in the FWBI Act will expire. Hence those powers will no longer
be available to the FWBI from 1 June 2015.[22]
The Government argues that coercive investigatory powers
are necessary to ensure the FWBI ‘is able to carry out its investigations
effectively and break down the “culture of silence” and retribution’ that it
argues still exists in the building and construction sector.[23]
Put simply, the Government is of the view that the ‘present conditions’ in the
building and construction industry justify (at the minimum) the continuation of
the availability of coercive investigatory powers for another two years or
(preferably) their permanent availability.
As a result, to ensure that the coercive powers are still
available to the FWBI whilst the ABCC Bills are considered, the Bill seeks to
extend the FWBI Act sunset clause by two years.
Senate Selection of Bills Committee
The Senate Selection of Bills Committee referred the Bill
for inquiry and report (see below) to ensure a ‘thorough and complete
assessment on the potential impact on workers’ rights’.[24]
Senate Education and Employment
Legislation Committee
The Bill was referred to the Senate Education and Employment
Legislation Committee for inquiry and report.[25]
The Government Senators’ Report recommended that the Bill be passed on the
basis that:
... the extension of the FWBC's powers is a measured and
reasonable response to the unique circumstances confronting any regulator in
the building and construction industry.[26]
The Labor Senators’ dissenting Report recommended that the
Bill not be passed until ‘the Government conducts an independent review into
the extension of the sunset clause.’[27]
The Greens’ dissenting Report recommended that the Bill not be passed on the
basis that ‘there should be no separate agency and no separate powers in the
form outlined in this legislation.’[28]
Senate Standing Committee for the
Scrutiny of Bills
At the time of writing the Senate Standing Committee for
the Scrutiny of Bills had not yet considered the Bill.
Parliamentary Joint Committee on
Human Rights
At the time of writing the Parliamentary Joint Committee on
Human Rights had not yet considered the Bill.
Previously (in 2007) the ALP had opposed the need for a
building and construction industry-specific regulator.[29]
It would appear that currently the ALP does not support the proposition
advanced by the Government that as the building and construction industry is ‘plagued
by lawlessness, intimidation and thuggery’,[30]
an industry‑specific regulator with coercive powers is required, with
Senator Urquhart stating (in relation to the ABCC Bills) that the Government:
... has failed to mount a reasonable case about why the
building and construction industry is so unique that it needs a special body
with these draconian powers and penalties.[31]
(emphasis added).
Whilst the ALP (when in Government) provided the FWBI with
its current coercive powers, it also introduced the various safeguard
mechanisms on their use and foreshadowed that ‘their use and ongoing need’
would be subject to a review, which would then form the basis of any decision on
‘whether the coercive powers will be extended’ after the expiry of the sunset
clause, clearly foreshadowing the view that they were not intended to be a
permanent feature of the FWBI’s powers as a regulator and would only be
provided as long as they were needed to change the culture of the sector.[32]
In their Dissenting Report on the Senate Education and
Employment Legislation Committee Inquiry into the Bill, the ALP Senators stated
that:
Until the Government conducts an independent review into the
extension of the sunset clause we will not support the extension of coercive
powers. Labor Senators recommend that the Senate oppose the Bill.[33]
In 2010, Senator Siewert introduced the Building and
Construction Industry (Restoring Workplace Rights) Bill 2010 into the Senate.[34]
The Bill (as with its 2008 predecessor Bill) sought to repeal the BCII Act
and the Building and Construction Industry Improvement (Consequential and
Transitional) Act 2005, which would have had the effect of returning
building industry supervision to the Fair Work Ombudsman. Senator Siewert
stated in her introduction to the Bill:
These laws [the BCII Act and the Building and Construction
Industry Improvement (Consequential and Transitional) Act 2005] are some of
the most pernicious ever to have passed through this place. They strip away
internationally recognised rights of workers in the building and construction
industries. This Bill is intended to ensure such laws no longer exist in
Australia. A consequence of the repeal of the BCII Act is the abolition
of the Australian Building and Construction Commissioner (the ABCC). The ABCC
has sweeping powers that have no place in the regulation of workplaces.
It is an affront to democracy to have workplace relations
laws that take away the right to silence, deny people their choice of lawyer,
provide powers to compel evidence with the possibility of gaol for non-compliance,
and impose severe restrictions on the rights of workers to organise and bargain
collectively.[35]
In relation to the 2011 Bill (which became the FWBI Act),
the Greens unsuccessfully moved a number of amendments which would have,
amongst other things, removed the coercive powers provided to the FWBI
altogether.[36]
Adam Bandt (Greens Member for Melbourne) stated:
There is a basic principle that should continue to apply:
there should be one set of laws in this country that apply uniformly to all
citizens. You should not have fewer rights in this country just because you
turn up to work in a hard hat and boots than if you turn up in a suit and tie...
If these coercive powers and this legislation remain and if we continue with
two tiers of industrial regulation in this country, where you may have fewer
rights because you work in the building industry, it will be purely and simply
because Labor wants it to remain that way. I commend the amendments to the
House.[37]
Those amendments were only supported by Bob Katter and
Andrew Wilkie (the Member for Denison) and thus were unsuccessful.[38]
Bob Katter (the Katter's Australian Party Member for Kennedy) also moved a
number of amendments, noting ‘what we are proposing here is the removal of
those coercive powers now instead of... in three years’ time’.[39]
Those amendments were also only supported by the Greens and Andrew Wilkie, and
thus were also unsuccessful.[40]
In their Dissent Report on the Senate Education and
Employment Legislation Committee Inquiry into the Bill, the Australian Greens
reiterated their previous opposition to the provision of coercive powers aimed
specifically at the building and construction industry, and indicated they will
oppose the Bill.[41]
The formal position of cross-bench
Senators (other than those discussed below) in regards to the Bill is not
clear.
Senator John Madigan
Senator Madigan opposed the ABCC Bills, stating that:
This Bill would treat one group of workers and a union
involved in the construction industry more harshly than their peers in other
industries. This is an affront to the idea that all individuals should be
treated equally before the law. It is absurd that two individuals should face
different sanctions for committing the same infringement just because one works
in the construction industry and one does not.[42]
However, Senator Madigan has not released a formal
position on the Bill itself.
Senator Jacquie Lambie
Independent Senator Jacquie Lambie opposed the ABCC Bills,
largely on the basis that the proposed coercive powers risk ‘damaging
fundamental human and civil rights’.[43]
However, Senator Lambie has not released a formal position on the Bill itself.
The major interest groups that made submission to the Senate
Education and Employment Legislation Committee Inquiry into the Bill, have not
changed their positions on the appropriateness of coercive powers generally in
the intervening years since the introduction of the Building and Construction
Industry Improvement Amendment (Transition to Fair Work) Bill 2009 (2009 Bill)
and the 2011 Bill.
Australian Industry Group
The Australian Industry Group has indicated its support
for the Bill, stating that the compulsory examination powers of the Regulator
are ‘fair, reasonable and necessary’.[44]
The AIG states that the powers:
-
Have been in place since June 2005 and have operated fairly and
appropriately throughout this whole period
-
Are similar to those possessed by ASIC, the ACCC and the ATO
-
Were a key recommendation of the Cole Royal Commission into the
Building and Construction Industry
-
Are subject to oversight by the Commonwealth Ombudsman who must
monitor and review the exercise of the examination powers, including receiving
a copy of all examination notices, and receiving a report, video recording and
transcript of every examination. The Ombudsman is required to report to
Parliament annually on the use of the examination powers and, in each annual
report, the Ombudsman has concluded that all examinations have been conducted
in accordance with legislative requirements and best practice principles.[45]
In its submission to the Senate Education and Employment
Legislation Committee Inquiry into the Bill, it noted that it supported the
Bill for a number of reasons, including that in its view:
There is simply no valid case for the abolition of the
examination powers when the CFMEU and other construction unions continue to
break the law on a very regular basis.[46]
Combined Construction Unions
The Construction, Forestry, Energy and Mining Union
(CFMEU) opposed the introduction of both the ABCC and its replacement (the
FWBI), as well as providing them with coercive investigatory powers, on the
grounds that, in its view:
- the
construction industry should be regulated by the same general laws applying to
everyone else in the federal system and
- coercive
powers have no place in the industrial laws of a democracy.[47]
In their combined submission to the Senate Education and Employment
Legislation Committee Inquiry into the Bill, the Combined Construction Unions
(CFMEU; Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union (AMWU); Australian Workers Union (AWU); and Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia (CEPU)) noted their opposition to the Bill for a number of reasons,
including that:
The Combined Construction Unions have consistently opposed
the introduction and use of these powers in industrial matters since their
inception. The power, and the criminal sanction which attaches to it, are
excessive, unnecessary and inconsistent with internationally recognised labour
standards and the industrial norms of a modern democracy.[48]
Australian Mines and Metals
Association
In contrast, in relation to the ABCC Bills, the Australian
Mines and Metals Association (AMMA) noted that:
The current legislation’s proposed automatic repeal of the
compulsory information gathering powers in 2015 without any requirement that
the necessary cultural change be achieved would also have been a disastrous
move and AMMA welcomes the removal of that sunset provision from the
current bill.[49]
(emphasis added)
In relation to the current Bill, the AMMA noted its
support for passage of the current Bill, but also noted that it ‘continues to
strongly support the passage’ of the ABCC Bills.[50]
Other interest groups
Other major employer groups including the Master Builders
Association (MBA), the Housing Industry Association (HIA), the Australian
Chamber of Commerce and Industry (ACCI), and the AIG have also (previously) generally
welcomed the availability of coercive powers, stating their use will help restore
the rule of law in the building and construction industry.[51]
In relation to the Bill, the ACCI noted it supported the
Bill as ‘an interim measure’ pending passage of the ABCC Bills.[52]
Likewise the MBA supported the Bill on the basis that it ‘is essential so that
the FWBC, albeit with less than optimal powers, may continue its work.’[53]
The Bill’s Explanatory Memorandum Financial Impact
Statement indicates it will have ‘nil’ financial impact. However, the
Government had previously indicated that it had committed an additional $35
million over four years to the re-established ABCC.[54]
It is not clear if passage of the Bill would result in
that funding commitment being delayed until the possible re‑establishment
of the ABCC, or whether that funding commitment, or part of it, would be
re-directed to the FWBI.
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. Noting that
the Bill engages the right to a fair trial and the right to privacy and
reputation, the Government considers that the Bill is compatible, because to
the extent that it may limit human rights, those limitations are reasonable,
necessary and proportionate.[55]
However, given that the Bill proposes to extend the period
of time during which the FWBI can use the coercive investigatory powers
provided by the FWBI Act, which in turn are very similar to those
provided by the BCII Act, it would appear that the Bill raises a number
of human rights issues which are examined below under the heading ‘Key issues and provisions’.
Human rights issues raised by the
coercive powers
As noted in a previous Bills Digest, the FWBI retained the coercive
investigatory powers originally provided by the BCII Act to the ABCC to
require a person to:
- give
information
- produce
documents and
- attend
an interview to answer questions.[56]
However, the FWBI Act introduced a number of
safeguards on the use of the coercive powers (discussed below). As a result of
the similarity of the powers provided to the FWBI and the ABCC, they raise
similar human rights issues and hence any discussions around the human rights
issues raised by ABCC Bills are pertinent to the consideration of the Bill.
Safeguards on the use of coercive
investigatory powers contained in the FWBI Act
The FWBI Act introduced a number of safeguards on the
use of the coercive investigatory powers originally provided to the ABCC. Importantly
these include that:
- the
FWBI must apply for an examination notice to a Presidential Member of the
Administrative Appeals Tribunal (AAT)[57]
who
- must
be satisfied that a case has been made out for its use.[58]
The FWBI Act also provides that the Commonwealth
Ombudsman must be notified whenever an examination notice is issued.[59]
Further, the FWBI must provide a report on, and video recording and transcript
of, the examination to the Commonwealth Ombudsman, who must then review the
examination and provide annual reports to Parliament.[60]
If the Bill is passed, those safeguards will remain in place.
However, the coercive investigatory powers themselves have previously been
identified by a number of Parliamentary Committees as still raising a number of
human rights issues, as briefly summarised below.
The right to equality and
non-discrimination
In relation to the ABCC Bills, the Parliamentary Joint
Committee on Human Rights (PJCHR) provided a detailed discussion and analysis
of the compatibility of the coercive powers with the right to equality and non‑discrimination,
which can be found on pages six to 12 of the PJCHR’s Second
Report of the 44th Parliament[61]
and on pages 43 to 49 of its Tenth
Report of the 44th Parliament.[62]
In brief, it noted that whilst it is permissible to enact
legislation relating to particular forms of economic or social activity,
singling out a particular group of workers in a specific sector of the economy
and subjecting them to a different range of prohibitions and an accompanying
investigative and enforcement regime ‘may give rise to human rights concerns’.[63]
Further, whilst initially expressing the view that ‘it is not clear that an
objective basis for the differential treatment has been clearly demonstrated’
and that it had ‘concerns about whether the proposed legislative scheme is
consistent with the right to equality and non-discrimination’, after reviewing
the Minister’s response to its concerns, the PJCHR concluded its consideration
of the issue.[64]
The right to privacy
In relation to the ABCC Bills, the PJCHR provided a detailed
discussion and analysis of the compatibility of the coercive powers with the
right to privacy, which can be found on pages 17 to 27 of the PJCHR’s Second
Report of the 44th Parliament[65]
pages 60 to 71 of its Tenth
Report of the 44th Parliament[66]
and pages 111 to 113 of its Fourteenth
Report of the 44th Parliament.[67]
In brief, it noted that the coercive investigatory powers
give rise to significant human rights concerns because of their breadth and
availability in relation to civil wrongdoing rather than serious criminal
offences and application only to one part of the workforce.[68]
The PJCHR stated that the goal of seeking to ensure that
participants in an industry (in this case, the building and construction
industry) observe the workplace relations laws that apply to that industry is a
legitimate objective within the meaning of relevant international human rights
agreements to which Australia is a signatory.[69]
However, it also initially concluded that on the basis of the material provided
in the explanatory memorandum and statement of compatibility that a rational
connection between the conferral of coercive information‑gathering powers
on the ABCC and the achievement of the stated goals had not been clearly
demonstrated. It therefore concluded that the limitations on the right to
privacy had not been demonstrated to be a proportionate measure.[70]
After reviewing the Minister’s response to its concerns, the
PJCHR concluded certain measures contained in the ABCC (especially in the
absence of additional safeguards similar to those provided by the FWBI Act)
remained incompatible with the right to privacy.[71]
However, the concerns outlined above were partly due to the ABCC Bills’
‘limited procedural safeguards restricting and monitoring their use’.[72]
As the current Bill would not impact on the safeguards contained in the FWBI
Act, it would appear less likely to raise significant issues related to a
disproportionate impact on the right to privacy.
The prohibition against
self-incrimination
In relation to the ABCC Bills, the PJCHR provided a detailed
discussion and analysis of the compatibility of the coercive powers with the prohibition
against self-incrimination, which can be found on pages 27 to 29 of the PJCHR’s
Second
Report of the 44th Parliament and pages 73 to 75 of its Tenth
Report of the 44th Parliament.
In brief, it expressed concern about the use of coercive
investigatory powers in conjunction with the abrogation of the privilege
against self-incrimination.[73]
After considering the Minister’s response, which included significant amounts
of statistical information related to rates of industrial disputation and the
number of examinations (conducted by the ABCC and FWBI), the PJCHR concluded
that ‘the proposed measures are likely to be incompatible with the right
against self-incrimination’.[74]
In addition, the Senate Scrutiny of Bills Committee (Scrutiny
Committee) also expressed concerns about the use of coercive powers and the
abrogation of the privilege against self-incrimination.
In relation to the abrogation of the privilege against
self-incrimination, the Scrutiny Committee discussed its concerns on pages 16
to 17 of its Alert
Digest No. 9 of 2013 and pages 122 to 125 of its Fourth
Report of 2014.[75]
It requested that ‘key information’ provided by the Minister in his response to
the Committee ‘be included in the explanatory memorandum’ and concluded that
‘the question of whether the proposed approach is appropriate’ be left to ‘the
consideration of the Senate as a whole’.[76]
Is the building and construction
sector affected by ‘unlawful conduct, thuggery and intimidation’?
As noted earlier, the Government argues that the
availability of coercive investigatory powers to the FWBI remains necessary to
ensure it ‘is able to carry out its investigations effectively and break down
the 'culture of silence' and retribution that exists in the sector’.[77]
In other words, the Government is of the view that the ‘present conditions’ in
the building and construction industry are similar to those examined by the
Cole Report in 2003 and the Wilcox Report in 2009, and hence justify the
continued availability of coercive investigatory powers for another two years
(at least).
One of the key issues raised by the Bill is therefore
whether the building and construction sector is characterised by ‘unlawful
conduct, thuggery and intimidation’ as argued by the Government.[78]
This issue was explored in detail in previous Bills Digests.[79]
In summary, both evidence surrounding this issue and the findings of two major
reports have been interpreted in diametrically opposed ways by the Government
and the Opposition, as detailed in the table below.
Table 1: Differing views on findings of key reports
|
Report
|
Government’s view
|
Opposition’s view
|
|
Cole Royal Commission
|
Coercive investigatory
powers are needed to ‘penetrate the veil of silence behind which many
decisions to take unlawful industrial action are hidden’.
Further, without them the
regulator would not be able to adequately perform its functions due to the
closed culture of the industry.[80]
|
The case for coercive
investigatory powers on the basis of ‘supposed criminality, fraud and
corruption within the building and construction industry’ is overstated as
evidenced by the subsequent failure to ‘produce one single criminal
conviction’.[81]
|
|
Wilcox Report
|
Coercive investigatory
powers are required in light of the ongoing significant degree of
contravention of the relevant industrial laws in the building and
construction industry.[82]
|
At the time of introduction
of the 2011 Bill, coercive investigatory powers were required to be retained
‘for the time being’. However, there is evidence of continuing ‘improvements
in behaviour in the industry’ and hence once the desired cultural change
occurs, coercive investigatory powers will be unnecessary and should cease to
be available.[83]
|
Sources: as per footnotes in table above.
In addition to the two major reports noted above, the
Government also argues that the interim report of the Heydon Royal Commission[84]
also supports the necessity for retaining coercive investigatory because:
- there
is a ‘culture of wilful defiance of the law which appears to lie at the core of
the CFMEU’[85]
and
- information
obtained through examination notices allows the regulator to determine whether
breaches of the law have occurred and to make an informed judgment about
whether to commence proceedings or take other steps to ensure compliance with
the law.[86]
The Opposition has not formally commented on the interim
report of the Heydon Royal Commission, but has argued that ‘it has clearly been
a platform for people to settle scores’.[87]
Are the coercive investigatory
powers necessary?
As noted earlier in this Digest, it is argued that the provision
of coercive investigatory powers to the FWBI is necessary because of
wide-spread unlawful conduct within the building and construction industry.
It flows from this that determining whether that is the case
will therefore likely determine whether or not the provisions of
industry-specific coercive investigatory powers to the FWBI are justified. In
turn, that may also influence whether cross-bench Senators are likely to
support the Bill.
As noted earlier, the Government and Opposition, often
referring to the same statistics, reports and cases, hold opposing views as to
the current conditions and culture within the building and construction sector.
The Government’s view is that the building and construction sector is still
characterised by wide-spread unlawful conduct similar to that identified by the
Cole and Wilcox Reports. In turn, the Opposition is of the view that there is
evidence that the culture of the building and construction sector has changed.
Given the centrality of that argument for both the FWBI’s
existence and providing it with coercive investigatory powers, it would appear
likely that the Bill will generate a lot of debate around the current
conditions within the building and construction sector, and whether they
reflect a change to the types of conditions that were used to justify the
creation of the ABCC and, in turn, the FWBI, as well as providing them with
coercive investigatory powers.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. For
an analysis of those Bills and issues associated with the proposed
reintroduction of the ABCC, see: A Holmes and J Murphy, Building
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[2]. Fair Work (Building
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[10]. Ibid.,
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[11]. Ibid.,
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[12]. Ibid.,
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[13]. Ibid.,
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[14]. Ibid.,
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[15]. Ibid.,
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