The Rudd Government should move earlier than 2010 to fix one of Australia’s worst laws, the ABCC legislation, which denies building workers their industrial rights. Not for 100 years have similar wobbly laws blighted industrial relations in this country, which now suffers under a criminal investigatory model operating in a non-criminal, industrial context, as Professor George Williams says.
THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION:
ANAPPROPRIATE USE OF PUBLIC POWER?
Addressto a forum on Industrial Laws Applying in the Australian Construction Industry
National Press Club, Canberra, 25 August 2008
By George Williams
Anthony Mason Professor of Law, University of NewSouth Wales
…and Member of Civil Liberties Australia (CLA)
I have been asked to talk about the coercive and investigatorypowers of the Australian Building and Construction Commission (ABCC) under the Building and Construction IndustryImprovement Act 2005.
I approach these powers not as someone who has ever worked in theconstruction industry, but as a public lawyer whose focus is on the use, andoccasional misuse, of public power by Australian institutions since Federationin 1901.
Set against this background, the powers conferred on the Commissionare exceptional. In fact, they are not just exceptional, they are unwarranted.
SCOPE OF COERCIVE POWER
The Building and ConstructionIndustry Improvement Act states:
52 ABC Commissioner’spowers to obtain information etc.
(1)If the ABC Commissioner believes on reasonable grounds that a person:
(a) has information or documents relevant to an investigation; or
(b)is capable of giving evidence that is relevant to an investigation;
theABC Commissioner may, by written notice given to the person, require theperson:
(c)to give the information to the ABC Commissioner, or to an assistant, by thetime, and in the manner and form, specified in the notice; or
(d)to produce the documents to the ABC Commissioner, or to an assistant, by thetime, and in the manner, specified in the notice; or
(e)to attend before the ABC Commissioner, or an assistant, at the time and placespecified in the notice, and answer questions relevant to the investigation.
This power could be used to require a person to:
- reveal all their phone and email records, whether of a business or personal nature.
- report not only on their own activities, but those of their fellow workers.
- reveal their membership of an organisation, such as a union.
- report on discussions in private union meeting or other meetings of workers.
The provisions can be applied not only to a person suspected ofbreaching the law, but to:
- workers in the building industry not in any way suspected of wrongdoing.
- innocent bystanders.
- the families, including children of any age, of workers in the industry.
- journalists and academics (or even, to take what might seem a farfetched example, a priest regarding what someone has told them in the confession box).
I am not saying that the law has often or will be used in this way,but the problem is that the law permits this to occur. It is a basic principleof the rule of law that a statute should go no further than its justified use.The proper scope of the law should not depend upon the discretion and goodwillof the holder of the power.
Lest there was any doubt as to its scope, the Act also states:
53 Certain excuses notavailable in relation to section 52 requirements
(1)A person is not excused from giving information, producing a document, oranswering a question, under section 52 on the ground that to do so:
(a) would contravene any other law; or
(b)might tend to incriminate the person or otherwise expose the person to apenalty or other liability [but Use/derivativeuse indemnity]; or
(c) would be otherwise contrary to the public interest.
Section 52(7) is remarkable in further overriding secrecy provisionsin other laws:
(7) The operation of this section is notlimited by any secrecy provision of any other law (whether enacted before orafter the commencement of this section), except to the extent that the secrecyprovision expressly excludes the operation of this section.
Forthis purpose, secrecy provision means a provision that prohibitsthe communication or divulging of information.
Section 52(7) has the potential to even override national securitylaws relating to ASIO. Even if information must be kept secret to protect thecommunity or the national interest, it may need to be revealed under the ABCCAct. The possibility puts the ABCC law at a higher level than the nationalsecurity laws themselves.
These sections ensure that the Commission’s coercive powersoverride:
- any protection of journalists sources.
- privacy law.
- possibility even Cabinet confidentiality.
Low threshold
A further problem is the low threshold for the use ofthe ABCC’s powers. There are broad definitions of key terms like ‘buildingwork’ and ‘unlawful industrial action’, and of ‘investigation’ itself in s52(8):
investigation means an investigationby the ABC Commissioner into a contravention, by a building industryparticipant, of a designated building law.
designated building law means:
(a)this Act, the Independent Contractors Act2006 or the Workplace Relations Act; or
(b) a Commonwealth industrial instrument.
industrial instrument means an awardor agreement …
Hence the ABCC’s powers extend beyond criminal activity to the mostminor or petty award breaches. In aid of this, confidentiality and secrecy canbe overridden and the Commission can compel someone to provide incriminatingevidence. Even then the information sought need not be necessary for theinvestigation of the breach, it need only be ‘relevant to an investigation’.
Penalties
Failure to comply with the Commission’s s 52 powers means that aperson can be jailed under s 52(6) for 6 months. Surprisingly, there is nooption for a fine in lieu of imprisonment.
Elsewhere, such as for unlawful industrial action, civil penaltiesare imposed of up to $22,000 for a person (nearly half of average annual wage)or $110,000 for an organisation.
These big fines are not just a union problem. For example, the Actimposes the $110,00 penalty in regard to:
59(14) The occupier of premises must not refuse or unduly delay entry to the premises by an ABC Inspector exercisingpowers under this section.
Civil penalties apply not only to the person but under s 48(2) to ‘aperson who is involved in a contravention’ This is defined in extremely broadterms to include a person who:
(c) has been in any way, by act or omission,directly or indirectly, knowinglyconcerned in or party to thecontravention.
A person is also defined to include ‘an industrial association’.
WHERE ARE THESAFEGUARDS?
The following safeguards are all absent:
Warrants:
- None is required from a judicial officer (as is common in other areas like phone tapping) or even the Attorney-General as per ASIO powers.
Review under the AdministrativeDecision (Judicial Review) Act:
- is excluded (despite this even applying to decisions to ban terrorist organisations under the federal Criminal Code). The grounds of review excluded for ABCC decisions include:
– a breach of the rules ofnatural justice
– procedures required by law notobserved
– making of the decision animproper exercise of power
– fraud has taken place
– power exercised in bad faith
– abuse of power
ABCC powers balanced against democratic rights like freedom ofspeech and the right to silence:
- There is no such backstop in Australian law because we, alone among all democratic nations, lack a national bill or charter of rights. While that is another story, it does mean that we lack the mechanism that other nations have to ensure that the worst excesses of power are blunted. We may like to talk about ‘our rights at work’, but the reality is that until these rights are put into law they can often be merely rhetoric, and, as this law shows, can be too easily taken away. There are few better examples of why Australia needs a national charter of rights than the ABCC and its powers.
It is bad enough to ever give such unchecked powers to a governmentminister, it is even worse to confer them on an unelected body that is notanswerable in Parliament. This represents a concentration of executive power ofthe worst kind.
ONE OTHER ISSUE
The definition of ‘building industrial action’ in s 36 rightlyexcludes:
(g) action by an employee if:
(i)the action was based on a reasonable concern by the employee about an imminentrisk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or heremployer to perform other available work, whether at the same or anotherworkplace, that was safe for the employee to perform.
However, it goes on to say:
(2) Whenever a person seeks to rely onparagraph (g) of the definition of building industrial action insubsection (1), that person has the burden of proving that paragraph (g)applies.
This can put workers in an impossible bind.
They need not only have a reasonable concern about an imminent riskto health or safety, but need to be sure they can prove this as a matter ofadmissible evidence in court, something that may well require legal advice.Workers may not take the risk of breaching the law and so may endangerthemselves.
It is possible to find this shifting of onus of proof in some of theHoward government’s anti-terror laws. It should not be there, and certainlyshould not be here.
ASSESSMENT
Each of these elements is, by itself, legally objectionable.
But, taken together, they are of even greater concern.
The ABCC has been given extraordinary powers that exceed even thosegiven to police in investigating major crimes. The ABCC’s powers cannot even bedescribed as police powers because they go far beyond what the police have beengiven.
They make a mockery of the object expressed in s 3 of the Building and Construction IndustryImprovement Act to promote ‘respect for the rule oflaw’.
LIKE POWERS ELSEWHERE?
It has been said that theABCC law copies powers found elsewhere. Indeed, there are similarities to thepowers given to bodies like the Australian Competition and Consumer Commissionand Australian Securitiesand Investments Commission (ASIC).
However, the context is of vital importance. A powerappropriately given to ASIC to catch corporate criminals may be inappropriatewhen given to a body dealing with industrial disputes.
In any event, the ABCC regime is different, and moreproblematic, because:
· Other regimes do not operate in such a discriminatorymanner (for example, a body like ASIC is not given coercive powers for, say,just the automotive industry).
· Other regimes do not suffer from the same problems ofover-wide definitions and low thresholds for the use of power, let alone suchan absence of safeguards and oversight.
· The ABCC law applies a criminal investigatory model to anon-criminal, industrial context (indeed the only imprisonment under the Act isfor not complying with the ABCC’s powers). The closest Australia has come tothis in an industrial context is a First World War law. The Unlawful Associations Act 1916 wasdirected at the radical labour organisation, the Industrial Workers of theWorld (IWW). In its first months, 103 members of the IWW were imprisoned,usually for six months with hard labour, and many others were sacked.
· The ABCC law normalises extraordinary powers that shouldnot have been taken out of their criminal context. This creates a precedentthat may make common place what should be limited and exceptional. The modelcould be extended to other industries and out of the industrial context toother fields.
These powers should have noplace in a body directed at preventing unlawful industrial action whose remitincludes minor award breaches. These powers could not be justified whenpolicing breaches of the criminal law, let alone industrial disputes.
WHAT RESPONSE?
I went back to theparliamentary debates that led to the Buildingand Construction Industry Improvement Act 2005 to see what ALP members thenhad to say. They got it right by opposing the law. Indeed, they raised many ofthe same concerns, even taking them further, such as in the speech of Dr CraigEmerson in the House on 11 August 2005
[A]ninvestigator can go up to a building industry worker and ask such questions as:‘Are you or have you ever been a member of a trade union? Are you or have youever been a member of the Australian Labor Party?’ That person may have donenothing wrong and there may be no suspicion of that person having done anythingwrong, but if that person does not answer that question then this legislation cansend that person to jail for not answering a McCarthyist question.
Other speeches are similarvein, such as that of Stephen Smith who argued against the law because ‘The ABCC will have much stronger powersthan any police force in the country.’
Even people like Bob Kattersaid:
all of us should hold some grave apprehensions withrespect to the Building and Construction Industry Improvement Bill.
Nothing has altered thecorrectness of these assessments.
Could the law be fixed by greater oversight? Ibelieve not as we are dealing with a law that should not, in this form, be onthe books at all. It has no place in a modern, fair system of industrialrelations, let alone one of a nation that prides itself on its political andindustrial freedoms.
Given this, I believe thatthe minister should immediately act as an interim measure under s 11 of the Actto, as far as is possible, prevent the worst possible future uses of the ABCC’spowers. That provision reads:
11 Minister’s directions to ABC Commissioner
(1) The Minister may give written directions to theABC Commissioner specifying the manner in which the ABC Commissioner mustexercise or perform the powers or functions of the ABC Commissioner under thisAct.
(2) The Minister must not give a direction undersubsection (1) about a particular case.
(3) The ABC Commissioner must comply with adirection under subsection (1).
This should be followed by the repeal of the powersof the ABCC. Even if the body is retained until 2010, it should not hold itscurrent powers.
After 2010, whatever the new specialist divisionwithin the inspectorate of Fair Work Australia is based on, it should not bethe Building and ConstructionIndustry Improvement Act.