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Bills requiring further information to determine
human rights compatibility
Building and Construction Industry
(Improving Productivity) Bill 2013
Building and Construction Industry
(Consequential and Transitional Provisions) Bill 2013
Introduced: House of
Representatives, 14 November 2013
Summary of committee concerns
The committee seeks further information on various aspects of these
bills to determine their compatibility with the right to equality and
non-discrimination, the right to freedom of association and to engage in
collective bargaining, the right to freedom of assembly, the right to freedom
of expression, the right to privacy, the right to a fair hearing, and the
prohibition against self-incrimination.
These two bills give effect to the government's election commitment to
re‑establish the Australian Building and Construction Commission (ABCC).
The bills replicate provisions which have previously been in force in
legislation in Australia. Following the Royal Commission into the Building and
Construction Industry conducted by the Hon Terence Cole QC, which reported in
2003, the then government introduced the Building and Construction Industry
Improvement Act 2005 (the 2005 Act).
The 2005 Act implemented many of the recommendations of the Royal Commission
and established the Office of the Australian Building and Construction
Commissioner. While the 2005 Act was aligned with the Workplace Relations
Act 1996 and mirrored certain of its provisions, the 2005 Act specifically
targeted the building and construction industry. It made unlawful a range of
actions which had been identified by the Royal Commission as prevalent in the
industry, included the power to impose significant civil and criminal penalties,
and conferred on the ABCC a range of coercive investigative and enforcement
In 2012, the then government replaced the 2005 Act with the Fair Work
(Building Industry) Act 2012 (the 2012 Act).
This followed an inquiry by the Hon Murray Wilcox QC into the possible
operation of a specialist building and construction division of the proposed
new Fair Work Australia.
In doing so, Mr Wilcox considered the operation of various provisions of the
2005 Act, including their continued need, and additional safeguards that would
be appropriate if such provisions were retained.
The 2012 Act abolished the ABCC and created a new agency, the Office of
the Fair Work Building Industry Inspectorate, currently operating as Fair Work
Building and Construction (FWBC). The role of this agency is to assist and
monitor the implementation of workplace relations laws in the building and
construction industry by providing education and advice and undertaking
compliance activities. The 2012 Act also removed the provisions making certain
industrial actions unlawful and imposing higher penalties on building industry
participants and introduced a range of additional safeguards to support the
The current bills remove the changes made by the 2012 Act and
re-introduce many of the provisions of the 2005 Act. According to the statement
of compatibility accompanying the main bill, 'the Bill is intended to
substantially replicate the Building and Construction Industry Improvement
Building and Construction Industry (Improving Productivity) Bill
The Building and Construction Industry (Improving Productivity) Bill 2013
(the main bill) re-establishes the ABCC by replacing the existing Office of the
Fair Work Building Industry Inspectorate (or FWBC). The bill:
establishes the ABCC and appoints the Australian Building and
Construction Commissioner (the ABC Commissioner), including the terms and
conditions of the Commissioner, the staff of the Commission and the people who
assist the Commissioner;
allows the Minister to issue a Building Code – a code of practice
that persons working in the industry must comply with;
continues the role of the Federal Safety Commissioner and deals
with the appointment and functions of the Commissioner;
prohibits 'unlawful industrial action' or 'unlawful picketing'
(which includes bans on working, employees failing to attend work or employers
locking out employees), subjects a person who engages in such conduct to a
'Grade A civil penalty', and provides for the ability of 'any person' to apply
for injunctions to restrain unlawful industrial action or unlawful picketing;
prohibits actions relating to constitutionally-covered entities which
involve the coercion of, or application of undue pressure on, persons in
relation to the engagement of contractors and employees, choice of
superannuation fund and enterprise bargaining;
confers on the ABCC powers to require persons to give
information, produce documents or answer questions relating to the investigation
of a suspected contravention of the bill or a designated building law by a
building industry participant and creates an offence for non-compliance;
provides for the appointment and powers of Australian Building
and Construction Inspectors and Federal Safety Officers, including powers to
enter premises, to ask a person's name and address and to require production of
records or documents and creates civil penalties for non-compliance;
allows for the enforcement of requirements under the bill before
a court (including the imposition of pecuniary penalties and injunctions and
the rules relating to civil penalty proceedings) and enables the use of enforceable
undertakings and compliance notices.
Construction Industry (Consequential and Transitional Provisions) Bill 2013
The Building and Construction Industry (Consequential and Transitional
Provisions) Bill 2013 (the consequential bill) seeks to repeal the 2012 Act. It
continues appointments of officers and staff of the Office of the Fair Building
Industry Inspectorate and related positions, under the Australian Building and
Construction Commission. It also confirms the continuing validity of actions
taken and notices issued, and investigations commenced, under the previous
The bill provides that in general, the bill is to operate prospectively.
However, the bill provides that the information gathering powers will have
effect in relation to any (alleged) contravention of the 2005 or 2012 Acts that
occurred before the commencement of this legislation.
It also provides that the ABC Commissioner or an inspector may begin or
participate in a proceeding even if the proceeding relates to a matter that was
settled before the commencement of the bill.
Consideration by other committees
On 14 November 2013, the bills were referred to the Senate Education and
Employment Legislation Committee. That committee called for submissions on 15
November with a deadline of 22 November 2013, and reported on 2 December 2013.
The report of the majority of the committee (comprising government senators)
recommended that the bills be passed; dissenting reports by Labor Senators and
the Australian Greens' Senators recommended that the bills not be passed.
On 4 December 2013, the bills were referred to the Senate Education and
Employment References Committee, which is due to report on the last sitting day
of the Autumn session (27 March 2014). The reference to that committee includes
a number of specific questions about the government’s proposed reintroduction
of the ABCC, including whether the bills are consistent with Australia's
obligations under international law.
The Senate Committee for the Scrutiny of Bills considered the bills in
its Alert Digest No 9 of 2013, published on 11 December 2013. That committee
raised a number of concerns with the bills.
Compatibility with human rights
Statement of compatibility
Each of the bills is accompanied by a statement of compatibility.
The statement of compatibility accompanying the main bill identifies
that the bill engages the right to freedom of association,
the right to just and favourable conditions of work (including the right to
safe and healthy working conditions),
the right to a fair trial,
the right to freedom of assembly,
the right to freedom of expression
and the right to privacy.
The statement of compatibility provides a detailed discussion of the rights
engaged and argues that any limitations on those rights are justifiable. The
statement concludes that the bill 'is compatible with human rights because to
the extent that it may limit human rights, those limitations are reasonable,
necessary and proportionate'.
The statement of compatibility accompanying the consequential bill
states that the bill engages and limits the right to privacy (in relation to
the protection and disclosure of personal information under the bill). It
concludes that the bill 'is compatible with human rights because to the extent
that it may limit human rights, those limitations are reasonable, necessary and
The committee considers that, in relation to the main bill, the
statement of compatibility does not include information and data which is
necessary for an assessment of the human rights compatibility of the bill. On
various occasions, the statement of compatibility (and the explanatory
memorandum) make assertions or statements of fact which are not demonstrated by
reference to supporting data.
The committee considers that inclusion of relevant supporting
information and data in the statement of compatibility would have assisted it
in its assessment of the human rights compatibility of the main bill.
Committee view on
The committee recognises that many issues relating to industrial
relations legislation have been and continue to be contentious. The committee
acknowledges that there are a range of policy approaches that may be adopted in
relation to the regulation of labour and employment relations. The committee’s
mandate is to ensure that, whatever policies are adopted, the legislation
giving effect to those policies is consistent with Australia's international
human rights obligations.
This committee, and its predecessor committee, have set out the
principles and framework that guide its scrutiny of bills and legislative instruments
in its previous reports, and in its practice notes (in particular, Practice
Note 1). The committee’s analysis of the bills proceeds on this basis.
The bills give rise to a number of human rights concerns. The
introduction of a separate legislative regime applying only to some workers and
employers raises issues of equality and non-discrimination, both in relation to
equal protection under the law and the right to non-discrimination in relation
to rights under the relevant Covenants.
These concerns arise in relation to the proposed scheme as a whole and also in
relation to specific provisions of the bills. The bills also give rise to
concerns relating to the substantive rights themselves, including the right to
freedom of association,
the right to freedom of assembly,
the right to privacy
and the right not to incriminate oneself.
These concerns are addressed below.
Right to equality and non-discrimination
The bills are part of a legislative scheme which is targeted at a
particular sector of the economy, namely those engaged in certain parts of the
building and construction industry. It involves the introduction of
prohibitions on specific forms of industrial activity that apply only to those
engaged in that part of the industry, supported by significant investigative
powers and civil and criminal penalties which are also applicable only to those
workers and employers who fall within the scope of the legislation. The maximum
penalties that may be imposed on building industry participants appear to more
severe than those that may be imposed on participants in other industries for
the same or substantially similar conduct.
The committee recognises that it is permissible to enact legislation
relating to particular forms of economic or social activity. However, 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.
The right to equality and non-discrimination guarantees equal protection
under the law.
This requires that legislative distinctions not discriminate between people on
the basis of race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or 'other status'. Being a person
engaged in the building industry would constitute an 'other status' within the
meaning of this right. Similarly, the right to equality and non-discrimination
guarantees persons the rights set out in the International Covenant on Civil
and Political Rights (ICCPR) and International Covenant on Economic, Social and
Cultural Rights (ICESCR) without discrimination on the basis of grounds such as
those mentioned above, including 'other status'.
For example, all workers are entitled to the same rights at work, including
freedom of association and trade-union rights.
However, not every distinction based on a protected status is
discriminatory. If a difference in treatment can be shown to be based on
objective and reasonable criteria and to be a proportionate measure adopted in
pursuit of a legitimate goal, then it will not violate the guarantee of
equality and non-discrimination.
In relation to the present bills, the government must show that there
are objective and reasonable grounds for adopting a specific legislative regime
applicable only to the building and construction industry and that it is a
proportionate measure in pursuit of a legitimate objective. The bills are based
on the claim that the practices addressed are endemic to and widespread in the
building industry as compared with other industries. Assessment of
compatibility involves an assessment of whether the asserted factual basis for
the differential treatment is supported by evidence, whether the measures in
the bill are reasonably tailored to addressing those distinctive features of
the sector in question, and whether the measures appear overall to be a
and the scheme as a whole
The explanatory materials accompanying the bill argue that the specific
legislative regime is necessary on the ground that the building and
construction industry is distinctive. This is because the extent of industrial
disruption and lawlessness to be found in the building and construction
industry, as well as the distinctive nature of some of the forms of industrial
action to be found in that sector, are of a nature and dimension that set the
industry apart from other industries and a separate more stringent regime of
industrial regulation is therefore required. According to the explanatory
memorandum, the 2003 Royal Commission 'established that building sites and
construction projects were hotbeds of intimidation, lawlessness, thuggery and
The creation of the original ABCC under the 2005 Act was 'directed at the
unique nature of the building industry, and addressed specific inappropriate
and unlawful behaviour which the Royal Commission found was prevalent in the
The explanatory material also refers to the significance of the building
and construction industry for the national economy. According to the
Minister's second reading speech, the industry:
critical to a productive, prosperous and internationally competitive
Australia. The Coalition Government recognises the importance of an industry
that is vital to job creation and essential to Australia's economic and social
On this basis, the government argues that stringent industrial laws are
a permissible and effective way of pursuing the legitimate goal of reducing the
disruption and lawlessness endemic in the industry and thereby increasing
productivity in the industry and the broader economy. According to the
the ABCC existed, the performance of the building and construction sector
improved. For example, industry productivity improved, Australian consumers
were better off and there was a significant reduction in days lost through
The explanatory materials state that since the abolition of the ABCC
under the 2012 Act, 'standards of behaviour in the industry have declined. The
industry has returned to the "bad old days" where disputes are
violent and there exists thuggery and disregard for the rule of law'.
To demonstrate this, the explanatory material and the Minister in his second
reading speech describe a number of recent incidents as evidence that the
'lawlessness' has returned.
In order for the committee to carry out its assessment, it must evaluate
the factual basis of assertions regarding the distinctiveness of the building
and construction industry and the effectiveness of the scheme proposed. The
committee is concerned that in a number of respects the statement of
compatibility and explanatory memorandum do not contain such material.
the need for certain specific measures
The distinctiveness argument is made both in relation to the proposed
legislative regime generally, but is also relied on in support of specific
legislative provisions. The explanatory memorandum maintains that there are
certain forms of conduct that are peculiar to the building and construction
industry or overwhelmingly to be found in that industry, justifying both
specific prohibitions and the special investigative and penalty regime.
However, the explanatory memorandum and statement of compatibility do not
provide any supporting data.
For example, the main bill proposes the introduction of a new prohibition
on certain forms of picketing, backed by extensive coercive powers and higher
penalties than apply to other cases of such behaviour.
The statement of compatibility states that:
limitation pursues the legitimate aim of prohibiting picketing activity that is
designed to cause economic loss to building industry participants for
industrial purposes. Although infrequent, this type of activity is almost
entirely unique to the building and construction industry and can have a severe
impact on participants in this sector.
The statement of compatibility does not indicate the material on which
the claim that the use of picketing intending to cause economic loss as a means
of exerting industrial pressure is exclusive to the building and construction
industry is based. No study of the nature of industrial action across different
industries is referred to. Recent cases indicate that there are instances of
picketing in a number of industries.
In another example, the effect of the bills will be to subject building
industry participants to higher penalties for conduct that is similar to that
which is prohibited under the Fair Work Act 2009 and subject to lower
penalties under that Act. Under the Fair Work Act, the maximum civil penalty
that may be imposed on an individual is 60 penalty units ($10,200) and on a
corporation the maximum is 1,000 penalty units ($170,000). The proposed
penalties under the current Bill will be 200 penalty units ($34,000) for an
individual and 1,000 penalty units ($170,000) for a corporation.
Accordingly, in relation to actions which are prohibited under the current Bill
and the Fair Work Act, building industry participants will be subject to civil
penalties that are, so far as individuals are concerned, more than three times
the maximum penalty that may be imposed on those who are not building industry
The committee considers this issue also raises the question of whether
there is an objective and reasonable justification for the differential
treatment. The committee notes the comments made by the Hon Murray Wilcox QC:
There is no justification for selecting a different
maximum penalty, for the same contravention, simply because the offender is in
a particular industry. Of course, both the circumstances of the contravention
and the offender’s previous contraventions (if any) will be taken into account
by the court in determining the actual penalty in the particular case; but that
will be so regardless of the offender’s industry.
The Senate Scrutiny of Bills Committee noted in its report on the main
bill that ‘[a]lthough the explanatory memorandum argues, in general terms, that
higher penalties are appropriate in the building industry context, there is no
explanation of the large difference in penalties proposed by this particular
Where the Minister maintains that differential legislative
treatment of parts of the building and construction industry is based on the
existence of facts or practices which are peculiar to that industry or are
present to an extent not seen in other industries, the committee expects that
appropriate empirical evidence of this will be included in the statement of
In the present case the explanatory memorandum and statement of
compatibility accompanying the bill rely primarily on the 2003 report of the
Royal Commission into the Building and Construction Industry and on a number of
recent incidents in the industry. No data comparing the nature and incidence of
unlawful behaviour in other industries has been provided to the Parliament
which would permit the committee to objectively assess whether there is
currently a case to be made that the building and construction industry is
affected by a higher level of unlawful behaviour than other industries or
suffers from unlawful behaviour that is specific to that industry.
The committee notes that a number of laws have been adopted since
2003 to address the issues raised by the Royal Commission, the report of which
is now a decade old. Neither the explanatory memorandum nor the statement of
compatibility provides any empirical information as to the impact of these laws
on the extent of practices which the current bills propose to prohibit.
On the basis of the material provided, it is not clear that an
objective basis for the differential treatment has been clearly demonstrated.
The committee accordingly has concerns about whether the proposed legislative
scheme is consistent with the right to equality and non-discrimination.
The committee intends to write to the Minister for Employment to
seek further information on the basis on which the Minister has concluded that
the problems identified by the Royal Commission in its report of 2003 persist
on a scale that would justify the adoption of a separate legislative regime for
sectors of the building and construction industry. In particular, given that
reforms similar to those proposed were adopted in 2005 and were in force until
2012, the committee seeks details of any assessment undertaken by government of
the impact of those laws and subsequent laws on the practices which are
addressed by the bill, as well as an analysis of the critiques made of the
claims about the beneficial impact or otherwise of the legislation.
The committee also seeks empirical data comparing the nature and
incidence of unlawful behaviour in other industries. This will permit the
committee to objectively assess whether there is currently a case to be made
that the building and construction industry is affected by a higher level of
unlawful behaviour than other industries or suffers from unlawful behaviour
that is specific to that industry.
Right to freedom of association and right to form and
join trade unions
Article 22 of the ICCPR guarantees the right to freedom of association generally,
and also explicitly guarantees everyone 'the right to form trade unions for the
protection of [their] interests.' Limitations on this right are only
permissible where they are 'prescribed by law' and 'necessary in a democratic
society in the interests of national security or public safety, public order,
the protection of public health or morals, or the protection of the rights and
freedoms of others'.
Article 22(3) provides that no limitations are permissible if they are
inconsistent with the guarantees of freedom of association and the right to
organise rights contained in the International Labour Organisation Convention
of 1948 concerning Freedom of Association and Protection of the Right to
Organize (ILO Convention No. 87).
Article 8 of the ICESCR also guarantees the right of everyone to form
trade unions and to join the trade union of his or her choice. Limitations on
this right are only permissible where they are 'prescribed by law' and 'are
necessary in a democratic society in the interests of national security or
public order or for the protection of the rights and freedoms of others'.
Article 8 also sets out the rights of trade unions, including the right to
function freely subject to no limitations other than those prescribed by law and
which are necessary for the purposes set out above, and the right to strike. As
with article 22 of the ICCPR, article 8 provides that no limitations on the
rights are permissible if they are inconsistent with the rights contained in
ILO Convention No. 87.
A number of aspects of the legislation relating to the building and
construction industry adopted since 2005 have been considered by expert bodies of
the International Labour Organisation (ILO), as well as by UN human rights
Those bodies have raised concerns about the compatibility of certain measures
with the freedom of association and right to collective bargaining guaranteed
by the ILO Constitution and ILO conventions to which Australia is party. Some
of the provisions which were the subject of concern reappear in the present
bill in substantially similar form.
The Human Rights (Parliamentary Scrutiny) Act 2011 does not
include the ILO Constitution or ILO conventions on freedom of association and
the right to bargain collectively in the list of treaties against which the
human rights compatibility of legislation is to be assessed. Nonetheless, these
ILO standards and jurisprudence are relevant to the mandate of the committee as
they are the practice of the international organisation with recognised and
long-established expertise in the interpretation and implementation of these
rights. It is a specialised body of law which can inform the general guarantees
set out in the human rights treaties. In the current case, ILO Convention No.
87 is directly relevant, in that both article 22 of the ICCPR and article 8 of
the ICESCR expressly state that measures which are inconsistent with the guarantees
provided for in ILO Convention No. 87 will not be consistent with those rights.
The committee notes that neither the explanatory memorandum nor the
statement of compatibility for this bill include any reference to ILO
commentary on the issues raised by these bills, either generally or
specifically in relation to Australia.
The committee considers that it would assist its consideration of
the human rights compatibility of bills if the statement of compatibility
referred to the relevant practice of ILO supervisory bodies on issues raised by
a bill, particularly where the bill raises issues relating to article 22 of the
ICCPR and article 8 of the ICESCR and where ILO bodies have previously
commented adversely on provisions which are substantially similar to those
contained in a bill.
The committee intends to write to the Minister for Employment to
request that, where a bill gives rise to issues that have been considered by
ILO supervisory bodies (particularly where those bodies have made adverse
comments about human rights compatibility in relation to current Australian
legislation or similar provisions of previous Australian laws):
- the committee’s attention be drawn to those views in the
statement of compatibility; and
- the statement of compatibility include the details of the
government's formal response to those views (where available) as well as the
government’s position on whether it agrees or not with the ILO bodies’ expert
Right to organise and bargain collectively
The right to organise includes the right to bargain collectively, and is
thus guaranteed by articles 22 of the ICCPR and article 8 of the ICESCR. The
main bill seeks to introduce a new provision providing for the unenforceability
of project agreements. It provides that certain project agreements will be
unenforceable to the extent that they are made with the intention of securing
standard employment conditions for building employees working on multi-employer
sites. According to the statement of compatibility:
provision is intended to prevent the application of project or site-wide
agreements (excluding agreements that are Commonwealth industrial agreements)
to subcontractors and their employees who may already be covered by existing
agreements or who may want to enter into their own agreements.
This provision gives rise to concerns about compatibility with the right
to organise and to bargain collectively. The statement of compatibility
acknowledges that the provision limits the right to bargain collectively. The
statement then refers to the findings of the 2003 Royal Commission, which concluded
that site-wide agreements have the effect that the terms and conditions of the
employment relationship between subcontractors and their employees are
determined by processes in which they have not participated. According to the
measure is appropriate to Australia's collective bargaining framework in that
the provision is not intended to limit, nor does it prevent, collective
bargaining at the level of particular enterprises. Rather, in implementing this
recommendation of the Royal Commission, this provision supports the right to
bargain collectively by protecting the rights of employees to negotiate their
terms and conditions of employment with their employer and by ensuring that
such terms and conditions contained in enterprise agreements cannot be
undermined by site-wide agreements.
The proposed provision is substantially similar to the now repealed
section 64 of the 2005 Act. The ILO Committee on Freedom of Association and the
ILO Committee on the Application of Conventions and Recommendations (CEACR)
have each considered section 64 of the 2005 Act. The tripartite Committee on
Freedom of Association commented:
Committee emphasizes that according to the principle of free and voluntary
collective bargaining embodied in Article 4 of Convention No. 98, the
determination of the bargaining level is essentially a matter to be left to the
discretion of the parties and, consequently, the level of negotiation should
not be imposed by law, by decision of the administrative authority or by the
case law of the administrative labour authority [see Digest, op. cit., para.
851]. ... The Committee therefore requests the Government to take the necessary
steps with a view to revising section 64 of the 2005 Act so as to ensure that
the determination of the bargaining level is left to the discretion of the
parties and is not imposed by law, by decision of the administrative authority
or the case law of the administrative labour authority. The Committee requests
to be kept informed in this respect.’
The independent expert ILO Committee on the Application of Conventions
and Recommendations reiterated this concern in 2011, at a time when the then
government indicated that it proposed to introduce into the Parliament a bill
to repeal section 64 of the BCII Act, and ‘expresse[d] once again the firm hope
that the undertaken legislative reform in the building and construction
industry will soon be completed in full conformity with the Convention.’
The committee notes that two ILO supervisory bodies have taken the view
that the predecessor provision was not consistent with the right to freedom of
association and to bargain collectively. The committee also notes that the
views of the ILO supervisory mechanisms in relation to Australia on this issue
were not referred to in the explanatory memorandum or in the statement of
The committee intends to write to the Minister for Employment to
seek an explanation as to how, in light of the views expressed by the ILO
Committee on Freedom of Association and the ILO Committee on the Application of
Conventions and Recommendations, proposed new section 59 can be viewed as
consistent with the right to freedom of association and to bargain collectively
guaranteed by article 8 of the ICESCR, article 21 of the ICCPR and applicable
Right to freedom of assembly
and freedom of expression
The statement of compatibility notes that the proposed prohibition on
unlawful picketing in clause 47 of the bill restricts the right to freedom of
The committee notes it would also limit freedom of expression. The committee
notes the explanation provided in the statement of compatibility regarding how
the measure is reasonable and proportionate to achieving a legitimate aim and
has no further views on this point.
However, even if the proposed prohibition of certain types of picketing
were justified as a legitimate restriction on the freedom of assembly and other
relevant rights, that is not sufficient. If some groups are permitted to
exercise a right to a greater extent than others, then issues of discrimination
in relation to the right arise. As set out above, both the ICCPR and ICESCR
guarantee the fulfilment of the rights in the respective Covenants without
discrimination, which would include discrimination on the basis of status as a
worker in a particular industry. The statement of compatibility does not
explicitly address the issue of discrimination in the fulfilment of rights, in
relation to this right or other rights.
Two aspects of the issue arise in relation to unlawful picketing. First,
to the extent that the type of picketing in question is prohibited only by
building industry participants (if that is the case), no justification is
offered why this should be so. If the picketing causes economic loss to others,
it is not clear why that protection should be provided only to those in the
building industry. Conversely, it appears that the picketing in question would
be covered under the Fair Work Act, so that non-building industry workers and
unions would be covered. However, they would not be subject to the same
information-gathering regime or to the same penalties. This also gives rise to
the issue of whether there is an objective and reasonable basis for
distinguishing between the building and other industries.
The committee recognises that the restrictions on picketing
pursue objectives that are legitimate, insofar as they are intended to protect
the rights and interests of others. The committee considers that a case can be
made that the restrictions bear a rational connection to the achievement of
that objective, but that the severity of the penalties imposed may give rise to
issues of proportionality.
In addition, the committee is of the view that the provisions
give rise to issue of compatibility with the right to non-discrimination in the
fulfilment of rights guaranteed by article 2(1) of the ICCPR and article 2(2)
of the ICECSR, insofar as they apply more severe penalties and a more stringent
enforcement regime to those engaged in such activities in the building
The committee intends to write to the Minister for Employment to
seek clarification as to:
- how the application of the provisions relating to unlawful
picketing only to building industry participants is compatible with article
2(1) of the ICCPR with respect to articles 19, 21 and 22 of the ICCPR and
article 2(2) of the ICESCR with respect to article 8 of the ICECSR; and
- whether the picketing addressed by the bill would fall within
prohibitions contained in the Fair Work Act 2009 and, if so, why those
provisions would not provide an adequate legislative response in relation to
the building and construction industry as they do in relation to other
Right to privacy – coercive
Proposed new chapter 7 of the main bill confers powers on the ABCC to
require, by written notice (an examination notice), a person to produce
information, documents or to attend before the ABC Commissioner to answer
questions where the ABC Commissioner reasonably believes that the person has
information or documents relevant to an investigation by an inspector into a
suspected contravention, by a building industry participant, of the bill or a
designated building law or is capable of giving evidence relevant to such an investigation.
Failure to comply with a notice constitutes a criminal offence, which carries a
maximum penalty of imprisonment for six months.
The proposed new information-gathering power is substantially similar to
section 52 of the 2005 Act. The coercive investigatory powers of the 2005 Act
(including section 52) and the desirability of continuing them were the subject
of review by the Hon Murray Wilcox QC in his review of the 2005 Act. Mr Wilcox
took the view that, notwithstanding the considerable criticism that these
coercive powers had received, it was appropriate to continue to make these
powers available to the regulator for a further period, subject to a sunset
However, he considered it essential to include a number of safeguards in
relation to the exercise of those powers.
As a result, the current provisions in the 2012 Act provide for a
two-stage process for the exercise of the power. Where the Director of the
Fair Work Building Inspectorate believes on reasonable grounds that a person has
information or documents, or is capable of giving evidence, that is relevant to
an investigation, the Director may apply to a nominated AAT presidential member
for the issue of an examination notice. Such an application must include
certain information so as to enable the presidential AAT member to assess,
among other matters, the necessity of issuing the notice. The AAT member must
be satisfied, for example, that there are
reasonable grounds to believe that the person has information, documents
or evidence, or is capable
of giving evidence, relevant to
investigation, that any other method
obtaining the information, documents or evidence (i) has
been attempted and has been
unsuccessful; or (ii)
is not appropriate,
and that the information,
documents or evidence would be
to be of assistance in the investigation.
The 2012 Act also requires notification of the issue of an examination
notice, and the provision of a copy of the notice and supporting documentation to
the Commonwealth Ombudsman.
It also requires the Ombudsman to review the exercise of the examination powers
and to provide an annual report to Parliament about examinations conducted
during the year, as well as any other reports about the results of reviews into
the exercise of the examination powers that the Ombudsman considers
The FWBC reported in 2013 that in the year 2012-2013 it had successfully
applied for the issue of two examination notices as part of one investigation
(which was continuing as of 30 June 2013), and that it had not applied for the
issue of any other examination notices during that period. FWBC did not conduct
any examinations under section 45 of the FWBI Act during the reporting period.
In 2013 the Commonwealth Ombudsman reported on one examination.
This bill proposes to continue some, but not all, of the additional
protections that form part of the existing coercive information gathering
powers under the 2012 Act.
These powers and associated provisions give rise to significant human rights
concerns because of their breadth, the deployment of coercive powers in
relation to civil wrongdoing rather than serious criminal offences, their
application only to one part of the workforce, the limited procedural
safeguards restricting and monitoring their use, the abrogation of the right of
persons not to incriminate themselves, and the significant maximum penalty
available for a failure to cooperate.
The right to privacy prohibits arbitrary or unlawful interference with a
person's privacy, family, home or correspondence. Limitations must seek to
achieve a legitimate objective, bear a rational connection between the
limitation and the objective and be proportionate to the objective.
The statement of compatibility justifies the inclusion of the provision
by reference to recommendations arising out of the 2003 Royal Commission, which
recommended that the ABCC should be given the same coercive powers as those
possessed by the Australian Competition and Consumer Commission under the Trade
Practices Act 1974.
According to the Royal Commissioner, the ABCC would need this power ‘to
penetrate the veil of silence behind which many decisions to take unlawful
industrial action are hidden. Those who will be best placed to give information
concerning breaches of the civil law will often, even usually, be complicit in
Accordingly, it appears to the committee that, on the basis of the
explanatory materials, the powers are deemed as necessary to enable information
gathering that will lead to the identification of persons engaged in unlawful
industrial action. Further, due to the prevalence of such conduct in the
building and construction industry, such powers are deemed to be necessary to
bring about greater harmony in the industry and higher levels of productivity.
The committee considers that the goal of seeking to ensure that
participants in an industry observe the workplace relations laws that apply to
that industry (assuming the substance of those laws are otherwise consistent
with human rights including freedom of association and the right to bargain
collectively) is a legitimate objective within the meaning of the ICCPR and
Assertions that a measure will contribute to the achievement of the
objective are not sufficient to discharge the onus of demonstrating there is a
rational connection where the matter is capable of evaluation in light of
empirical evidence. While it may be difficult to predict the impact of
particular legislative provisions, there is some experience under the similar
provisions of the 2005 Act and the 2012 Act, as well as discussion in the
industrial relations literature which assesses the relative impact of coercive
power regimes and more collaborative regimes.
However, the statement of compatibility contains no reference to the experience
under these statutory regimes of the use of the powers or any assessment of
whether they have had any significant impact in the achievement of the similar
goals set out under the earlier legislation.
The committee considers that, on the basis of the material
provided in the explanatory memorandum and statement of compatibility, it has
not at this stage been clearly demonstrated that there is a rational connection
between the conferral of coercive information-gathering powers on the ABCC and
the achievement of the stated goals.
Reasonable and proportionate measure
The statement of compatibility merely reasserts the continuing need for
these powers by referring to the report of the Royal Commission and points to
the procedural requirements that must be followed and to the review of such
examinations by the Commonwealth Ombudsman. It concludes on the basis of these
factors that the restriction on the right to privacy involved is not arbitrary.
The committee considers there are a range of other factors which need to
be addressed in order to assess whether the powers are reasonable and
proportionate. These include:
the fact that the coercive information-gathering powers relate to
investigations of civil wrongdoing, not of suspected criminal conduct;
the fact that only participants in the building and construction
industry are subject to this legislative regime, while other workers and
employers are subject to legislation with a less stringent enforcement
the relative level of penalties imposed under this legislative
regime both in relation to the substantive civil penalty violations and for
failure to comply with an examination notice, compared with violations under
the Fair Work Act;
the fact that much, if not all, of the prohibited industrial
action covered by the bills could be viewed as falling within prohibited
conduct under the Fair Work Act;
the removal of the privilege against self-incrimination (albeit
with the provision of use and derivative use immunity);
the limited safeguards that apply prior to the issue of an
examination notice; and
any significant improvement in the conditions the Royal Commission
found existed in the building industry in light of the findings in the Wilcox
report that there had been some progress in the period 2005 to 2009.
Of particular importance in this regard is the issue of whether there
are adequate safeguards against abuse provided for under the legislation. Of
relevance are the recommendations of the Wilcox inquiry about the need for
further safeguards on the exercise of section 52 of the 2005 Act, which
corresponds in many respects to proposed section 61 of the main bill. 
Part 2 of Chapter 7 of the bill contains none of the safeguards which
the Wilcox review recommended should apply prior to the issue of an
examination notice and which were adopted in the FWBI Act. In relation to the
procedures to be adopted after the issue of an examination notice, the bill
provides for a person to be represented by a lawyer when attending before the
It also requires the ABC Commissioner to notify the Commonwealth Ombudsman of
the issue of an examination notice and relevant documentation (including a
report, a video recording and transcript of the examination)
and requires the Ombudsman to review the exercise of powers under Part 2 of
Chapter 7 and to provide an annual report to Parliament about examinations
conducted during the year, as well as any other reports about the results of
reviews into the exercise of the examination powers that the Ombudsman
Further, as noted above, even if these provisions are considered to be
compatible with the right to privacy, if some groups are permitted to exercise
a right to a greater extent than others, then issues of discrimination arise.
The issue arises here insofar as building industry participants are subject to
a regime of civil penalty provisions with higher penalties than apply under the
generic provisions of the Fair Work Act, and are subject to a more stringent
investigation and enforcement regime. To the extent that two different groups
of workers or employers are subject to different penalties and procedures for
substantially similar violations of industrial law, the question arises whether
there is an objective and reasonable basis for distinguishing between building
industry participants and others. The statement of compatibility does not explicitly
address the issue of discrimination in relation to the right to privacy.
The committee notes that the power under proposed section 61 to
compel attendance and the production of information and documents is unusual in
the context of industrial relations laws in Australia, involves a significant
encroachment on the right to privacy and needs to be clearly justified. As
presently drafted, the provision raises human rights compatibility concerns.
The committee notes that neither the explanatory memorandum nor
the statement of compatibility provides any information about the extent of the
use of similar powers under the previous and existing laws, for the purpose of
assessing whether they have been necessary for the achievement of the purposes
of that legislation and whether there have been any instances of misuse of the
The committee does not consider that the material provided
clearly establishes that this is a reasonable and proportionate measure. The
committee considers that, if the power to issue compulsory examination notices
is to be retained, additional safeguards are required. The committee is
concerned that the safeguards which were recommended by the Wilcox review and
which were included in the 2012 Act have not been included in this bill.
The committee is of the view that, in any event, the provisions
give rise to issues of compatibility with the right to non-discrimination guaranteed
by article 2(1) of the ICCPR in conjunction with article 17 of the ICCPR, and
article 2(2) of the ICESCR in conjunction with article 8 of the ICESCR, insofar
as they apply heightened penalties and a more stringent enforcement regime to
building industry participants than is applied to those who are not building
industry participants for substantially the same industrial conduct.
The committee intends to write to the Minister to:
- seek clarification as to why the application of a more
stringent enforcement regime to building industry participants than is applied
to those who are not building industry participants for substantially the same
industrial conduct should not be considered discriminatory and incompatible
with article 2(1) of the ICCPR in conjunction with article 17 of the ICCPR, and
article 2(2) of the ICECSR in conjunction with article 8 of the ICECSR; and
- to recommend that, if the coercive investigative power is to
be retained, Part 2 of Chapter 7 of the bill be amended so that the power to
issue an examination notice does not lie within the sole discretion of the ABC
Commissioner, but should be subject to independent review including the type of
safeguards which were recommend by the Wilcox review and included in the FWBI
Right to privacy – disclosure of information
Proposed new section 61(7) of the main bill provides that the power of
the ABCC to compel the disclosure of information or documents is ‘not limited
by any provision of any other law that prohibits the disclosure of information
(whether the provision is enacted before or after the commencement of this
section, except to the extent that the provision expressly excludes the
operation of this section.’ This provision is similar in scope to old section
52(7) of the 2005 Act and to section 57 of the 2012 Act.
The Wilcox inquiry described the substantially similar provision in
section 52(7) of the 2005 Act as ‘an extraordinary override provision’.
The committee considers that the provision appears to subordinate all previous
legislative decisions about the protection of confidential personal information
to the policy embodied in this particular piece of legislation which relates to
the regulation of one sector of the economy. Simply to provide, as clause 61(7)
does, that information the disclosure of which is protected under one law may
be disclosed for the purpose of another law gives rise to concerns about the
compatibility of the provision with the right to privacy guaranteed by article
17 of the ICCPR.
Previous non-disclosure or secrecy provisions reflect legislative decisions
that seeks to ensure that the intrusion on personal privacy necessary for
achieving the legislative purpose is not excessively broad. This is achieved by
providing that information obtained through the use of coercive
information-gathering powers may be disclosed only to those involved in the
administration of the law in question or for the purposes of related
Legitimate objective: Neither the explanatory memorandum nor the
statement of compatibility address this issue. However, the objective being
pursued by the provision is to ensure that information that is relevant to the
implementation of the legislation is available to the regulator. This would
appear to be a legitimate objective, to the extent that the substantive provisions
being implemented are otherwise consistent with human rights.
Rational connection: The measure is arguably rationally connected
to the achievement of the objective suggested above.
Proportionality: The statement of compatibility does not address
the issue of whether the measure is a reasonable and proportionate measure in
pursuit of the objective. Given that the clause proposes to disapply, for the
purposes of this legislation, all existing non-disclosure provisions in
Commonwealth law, without regard to the balance that may have been struck
between privacy interests and other interests in particular circumstances, the
provision appears disproportionate.
The committee considers that the limitations on the right to
privacy proposed by clause 61(7) have not been demonstrated to be a
Proposed new section 105 of the main bill allows for the disclosure of
information acquired by a wide range of persons in the performance of a wide
range of functions or powers. Such information may be disclosed by the ABC
Commissioner or Federal Safety Commissioner where the Commissioner reasonably
believes that it is necessary or appropriate to do so for the performance of
the Commissioner’s functions or the exercise of the Commissioner’s power, or if
the Commissioner reasonably believes that the disclosure is likely to assist in
the administration or enforcement of a law of the Commonwealth, a State or a
There is no limitation specified as to the nature of the law of the
Commonwealth, State or Territory, the administration of enforcement of which
may be assisted by such disclosure.
As the information that may be acquired by eleven different persons or
categories of persons specified under proposed new section 105(1) includes
personal information protected by article 17 of the ICCPR, the broadly defined
power to disseminate the information gives rise to compatibility issues. There
is no suggestion that it may be disseminated only in relation to laws relating
to the regulation of the building industry or that a broader dissemination is
The explanatory memorandum and the statement of compatibility provide a
summary of the provisions but do not provide any further information.
The committee considers that the limitations on the right to
privacy proposed by section 105 have not been demonstrated to be a
Right to privacy – powers of entry into premises
Proposed new section 72 of the main bill confers on authorised officers
powers to enter both business and residential premises for various compliance
purposes. Proposed new section 74 authorises the exercise of a wide range of
powers on those premises after entry. While forced entry is not permitted, the
provisions authorise entry regardless of whether consent is given. There is no
requirement for a warrant to be sought.
The provisions give rise to a number of human rights concerns, including
whether the power can be justified as necessary and whether there are adequate
safeguards against abuse, both prior to the exercise of the powers and
subsequently. The statement of compatibility provides little other than
description and general justification of the provisions.
The committee notes that the Senate Scrutiny of Bills Committee has
raised concerns about these provisions and has noted that ‘the explanatory
material do not contain a compelling justification of departure from the
general principle ... that authorised entry to premises be founded upon consent
or a warrant.’
The Scrutiny of Bills Committee has sought from the Minister justification for
the approach adopted and also advice as to whether appropriate safeguards were
considered (including the requirement of senior executive authorisation and the
adoption of guidelines for the exercise of the powers).
The committee considers that the powers of entry and related
powers raise issues of compatibility with the right to privacy guaranteed by
article 17 of the ICCPR.
The committee intends to write to the Minister to seek further
information about the lack of requirements of consent or warrant and why procedural
safeguards for the exercise of such powers have not been included.
Right to a fair hearing –
imposition of a burden of proof on the defendant
Proposed new section 57 of the main bill provides for a reverse onus of
proof in applications to a court in relation to a contravention of the
prohibition of unlawful picketing (proposed new section 47) or in relation to
any other civil remedy provision in Chapter 6 of the bill. The provision
provides that in such actions (other than proceedings for an interim
injunction), where ‘it is alleged that a person took, or is taking, action for
a particular reason or with a particular intent’ and ‘taking that action with
that intent would constitute a contravention of the section or provision’,
presumed in proceedings arising for the application, that the action was, or is
being taken for that reason or with that intent, unless the person proves
As the statement of compatibility acknowledges, the effect of the
provision is to require the defendant in such proceedings to discharge a legal
burden, that is to prove on the balance of probabilities that he or she did not
take the action in question for that reason or with that intent (including that
if the person took the action for a number of reasons, that none of the reasons
were one of the prohibited reasons).
The statement of compatibility refers to the similar provision in section 361
of the Fair Work Act.
The imposition of a burden of proof on a defendant, even in civil
proceedings, engages the right to a fair hearing under article 14(1) of the
ICCPR. The imposition of a burden, and the nature of that burden (whether a
legal burden or an evidential burden), must be justified as reasonable in the
context of the right to a fair hearing, which guarantees equality of arms and
respect for the principle of adversary proceedings. As a starting point,
normally a person who wishes to rely on a particular fact in civil proceedings
would be expected to bear the onus of proof in relation to that matter. In the
present case, all that appears to be required is proof that certain actions
have been taken, accompanied by an allegation by the plaintiff that the
motivation for the actions was a prohibited one (whether or not that is an
inference that might be reasonably drawn from the fact of the actions).
The effect of the provision is that a defendant is required to prove, on
the balance of probabilities, a negative fact, namely that the defendant’s
actions were not motivated in part or whole by a prohibited motive. This will
normally be done by the defendant seeking to demonstrate the reason for his or
The statement of compatibility justifies the reverse onus provision on
the ground that it would be difficult, if not impossible, for a complainant to
establish a person's intent because the reasons for the person's action are
peculiarly within their knowledge. Further:
presumption can be rebutted by the person on the basis that their conduct was
motivated by another purpose. Whether the alternative motivation is accepted by
the court will be determined on the balance of probabilities. It is therefore
submitted that these restrictions are reasonable in the circumstances and are
proportional, legitimate and necessary.
The Senate Committee for the Scrutiny of Bills commented in relation to
it may be accepted that a person’s intent is a matter peculiarly known to the
person, intentions and motivations (whether lawful or unlawful) may be
difficult to prove as they will not necessarily be reflected in objective
evidence. That is, although peculiarly within a person’s knowledge, matters of
intention may nonetheless remain difficult to prove. In this respect it is
noted that the explanatory materials do not indicate why, in practice, it is
considered that a person will, in this context, be able to produce evidence of
a lawful intention. As such the committee seeks the Minister's further
advice as to the justification for, and fairness of, the proposed approach.
The committee shares the concerns of the Scrutiny of Bills
Committee. The committee further notes that the statement of compatibility
refers to the existence of similar provisions in the Fair Work Act, but
provides no information on the operation of those provisions in practice. Such
information would be of assistance to the committee in determining whether
provisions similar to clause 57 have operated fairly in practice.
The committee intends to write to the Minister for Employment to
seek further information about the practical operation of existing provisions
in the Fair Work Act 2009 that are similar to the proposed new section
57 (in particular sections 361 and 783) and in particular whether any
difficulties have arisen for defendants on whom a legal burden has been placed
that have affected their right to a fair hearing under article 14(1) of the
Proposed new section 102(1) of the main bill provides that a person is
not excused from providing information or documents in response to certain
requests for that information or material, on the ground that to do so would
contravene any other law or might tend to incriminate the person or otherwise expose
the person to a penalty or other liability. These are:
an examination notice issued under proposed new section 61
a request made under proposed new section 74(1)(d) by an
authorised Federal Safety Officer or inspector who has entered premises; or
a notice under proposed new section 77(1) issued by an authorised
officer to produce a record of document.
Proposed section 102(2) provides for use and derivative use immunity in
relation to information or documents provided pursuant to an examination notice
under proposed section 61. This protection applies to all proceedings (other
than the common exceptions related to the failure to comply with an examination
notice, provision of false information and the obstruction of Commonwealth
officials). Proposed section 102(3) also provides for use and derivative use
immunity in relation to information or documents provided under proposed
sections 74(1)(d) and 77(1), but only in relation to criminal proceedings
(other than the common exceptions mentioned above).
The statement of compatibility relies on the recommendation of the 2003 Royal
Commission that the right of a person to refuse to comply on the basis that to
do so might tend to incriminate the person be removed, subject to the provision
of use and derivative use immunity in both criminal and civil matters. The
statement of compatibility contains no information about the use of these
powers under the previous or current laws that might provide the basis for an
assessment of whether the removal of the protection is necessary.
The committee notes that clear justification must be provided for the
abrogation of the right not to incriminate oneself, even where use and derivative
use immunity is provided. The protection afforded by the provision of use and derivative
use immunity does not constitute the full protection provided for by the privilege
against self-incrimination. The committee considers the approach adopted by the
Senate Standing Committee for the Scrutiny of Bills to be helpful in assessing
whether the abrogation of the protection is permissible from a human rights
The committee notes that the Senate Scrutiny of Bills Committee has sought from
the Minister for Employment ‘a fuller explanation of the public interest and
why the abrogation of the privilege is considered absolutely necessary.’
The committee intends to write to the Minister for Employment to
seek further information about the use that has been made of the compulsory
evidence gathering powers under the 2005 Act and the Fair Work Act 2009,
as well as further explanation of how, in light of that experience and the
passage of over a decade since the Royal Commission report, the abrogation of
the privilege is justifiable.
Civil penalty provisions
Part 2 of Chapter 8 of the main bill sets out the pecuniary penalties
that may be imposed for violations of the civil penalty provisions in the bill,
as well as the procedures that are to be followed. As noted above, the maximum
pecuniary penalty that may be imposed on individuals for Grade A civil penalty
violations is 200 penalty units ($34,000).
Although the penalties are described as ‘civil’ under domestic law, for
the purposes of human rights law, they may under certain circumstances be considered
‘criminal’, and attract the protections applying to criminal charges and
criminal proceedings in the ICCPR.
The statement of compatibility addresses in some detail the question of
whether the civil penalty provision should be characterised as ‘criminal’ for
the purposes of human rights compatibility analysis.
Taking into account the committee’s Interim Practice Note 2 on civil penalties,
the statement of compatibility considers the classification of the penalty
under Australian law, the nature of the penalties (which it argues are regulatory
in nature), and the severity of the penalty.
The committee notes that proposed new section 81 of the main bill
specifies separately the power of a court to impose a pecuniary penalty on a
defendant and an order to pay compensation to a person for damage suffered by
the person as a result of the contravention of a civil penalty provision. The
pecuniary penalty, which may be sought by the regulator and any other person
with an interest, may be ordered to be paid to the Commonwealth or some other
person if the court so directs. This may suggest that the pecuniary penalty
order is not compensatory and may provide a basis on which the provision should
be characterised as criminal.
The committee also has concerns about the severity of the penalties that
may be imposed on individuals of up to $34,000 (200 penalty units). The
severity of a penalty may in itself be sufficient to justify the
characterisation of a provision as ‘criminal’. The statement of compatibility
addresses the issue as follows:
of the primary drivers behind
industry specific legislation for the
building and construction industry is the need for higher penalties to apply. Despite this, the
Courts act independently in
determining the appropriate penalty to
apply within the limits set out in the legislation and are informed by considerations
of proportionality. While the Courts will have the ability to apply high
penalties, this will only be applied to the most severe cases.
This does not provide any basis on which to assess the severity of the
penalty, and the committee considers that the sum that may be imposed by way of
a pecuniary penalty on an individual may be sufficiently large so as to
constitute a criminal penalty.
The committee considers that the pecuniary penalty for Grade A
civil penalty violations, which carries a maximum penalty of $34,000 (or 200
penalty units) for an individual, might reasonably be characterised as criminal
for the purposes of human rights law. As a result, proceedings for their
enforcement would be required to comply with the guarantees that apply to
criminal proceedings under articles 14 and 15 of the ICCPR, including the right
to be presumed innocent, the right not to be tried or punished twice for the
same offence and the right to the privilege against self-incrimination.
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