Fact check: Would building workers have less rights than ice dealers under ABCC laws?
An ad campaign from the CFMEU claims that construction workers would have less rights than ice dealers under the ABCC. (CFMEU)
The Construction, Forestry, Mining and Energy Union (CFMEU) has launched a high profile campaign opposing the reintroduction of the Office of the Australian Building and Construction Commission.
It is running an advertisement on television and online, depicting an “ice dealer” and a “worker” being interrogated in a darkened room.
It claims “If Malcolm Turnbull gets his way, a worker will have less rights than an ice dealer”, pointing to the “right to remain silent” and the “right to a lawyer of your choice”.
The Labor Opposition has subsequently repeated this claim.
Shadow Minister for Employment and Workplace Relations Brendan O’Connor said on April 18, 2016 “ordinary workers in the construction industry… will have less legal rights than a criminal suspected of dealing the drug ice”.
The CFMEU’s claim is nonsense.
The union is conflating two very different concepts.
Questioning of an ice dealer is a step in the criminal justice process, and answers to the questions may lead to a conviction and jail sentence for that person.
A person examined by the ABCC is providing information as a witness to a civil investigation. They are given at least 14 days notice and have their expenses paid. Nothing they say can be used against them in subsequent proceedings.
A building worker suspected of committing a criminal offence has the same rights when interviewed by the police as an ice dealer would have.
It is also not a case of Malcolm Turnbull ‘getting his way’: there are many examples in existing laws of people being forced to hand over documents and answer questions, including under the workplace laws brought in by the Rudd-Gillard Government.
An ice dealer giving evidence to the Australian Crime Commission is also forced to answer questions.
People examined by the ABCC are entitled to representation by a lawyer of their choice, but there is a possibility that they will have to choose someone different if it is found that their first choice might prejudice the ability of the ABCC to carry out its investigation.
Investigations under the ABCC
The ABCC’s powers to obtain information are set out in Chapter 7 of the ABCC bill.
Section 60 notes that the ABCC “may require a person to give information, produce documents or answer questions relating to an investigation of a suspected contravention of [building laws] by a building industry participant.”
The contraventions the ABCC investigates are civil, not criminal matters.
The Commissioner needs to give the person an “examination notice” at least 14 days in advance.
A person who attends an examination is entitled to be paid for their reasonable expenses in attending.
Separately, if an authorised officer of the ABCC lawfully enters premises, they can require a person who has custody or access to a record or document to produce it to the authorised officer.
Right to silence
The person who receives an ABCC examination notice has to comply with it and commits a criminal offence if they do not do so (section 62).
Section 102 of the Bill makes clear that a person is not excused from compliance with the notice merely because doing so may incriminate them or make them liable to someone else.
The CFMEU compares this to the common law principle that entitles a person to refuse to answer questions or produce documents if doing so would incriminate that person.
What is the ABCC?
- ABCC: the Office of the Australian Building and Construction Commission.
- Established in 2005.
- Role was “to monitor and promote appropriate standards of conduct throughout the building and construction industry”.
- Powers included to investigate and prosecute breaches of workplace laws such as unlawful industrial action, underpayments and sham contracting.
- 2012 — under Julia Gillard, the ABCC was replaced by a body known as Fair Work Building and Construction.
- 2013 — the Abbott government introduced the Building and Construction Industry (Improving Productivity) Bill to Parliament to bring back the ABCC.
- The bill was rejected by the Senate on August 17, 2015 and again on April 18, 2016.
A spokeswoman for the union tells Fact Check that “A person accused of the criminal offence of supplying prohibited substances such as the drug ice, would be entitled to invoke the privilege against self-incrimination and refuse to answer questions either in the course of a police investigation or in any subsequent criminal trial.”
As expected, the Government rejects the CFMEU’s comparison. A spokesman for Minister for Employment Michaelia Cash tells Fact Check:
“Suggestions that construction workers have less rights than ice dealers is absurd. The ice dealer is suspected of doing the wrong thing — the victim of CFMEU thuggery who was too afraid to be seen to come forward and speak out voluntarily is not suspected of any wrongdoing.”
Putting aside the political rhetoric, experts consulted by Fact Check do say that the CFMEU is conflating two different concepts.
Professor Andrew Goldsmith of Flinders University Law School tells Fact Check:
“The comparison is flawed because it equates two different processes with distinct purposes. ABCC examinations are used to gather information from witnesses in relation to construction workplace activities whereas an interview with a criminal suspect is concerned with collecting evidence for criminal prosecution.”
The CFMEU itself stated in a February 2016 submission to the Senate that:
“[The ABCC] has never had any role in investigating breaches of the criminal law. It deals with possible industrial law contraventions, which are and always have been civil, not criminal matters.”
Labor’s Brendan O’Connor also recently noted that “the ABCC has no power to investigate breaches of criminal law or corruption”.
Information provided to the ABCC by a witness cannot be used against them in other proceedings (section 102 of the Bill), nor will they face civil or criminal liability as a result of complying with a notice (section 103).
By contrast, statements made by a suspected criminal during an interview with police can be used as evidence in a criminal trial.
Assistant Professor Joel Butler of Bond University Law School tells Fact Check:
“The difference is significant: even if a person giving evidence to the ABCC admits that they committed some wrongdoing, that ‘confession’, as far as the law is concerned, never happened. The person’s ‘right to silence’ is therefore preserved.”
The existence of the ABCC does not change the procedures that exist if a worker is accused of crime, for instance assault on a building site, where the right to silence continues to be in place.
Professor Goldsmith says “A construction worker who is accused of committing a workplace-related crime will have the same rights when interviewed by police and when in court as an accused ice dealer would have”.
Compelling people to answer questions or provide documents is not new, and will continue to happen even if Mr Turnbull does not “get his way”.
The potential for self-incrimination cannot be used as an excuse under existing workplace law, including:
Criminal lawyer Greg Barns tells Fact Check that “Drug dealers involved in serious, organised crime can end up being examined by the Australian Crime Commission”.
A person who does not answer questions when requested by the Australian Crime Commission commits an offence.
Assistant Professor Joel Butler tells Fact Check: “There are many instances where people can be called for examination and have no choice about answering questions.”
These include investigations about:
Choice of lawyer
It is clear from section 62 of the Bill that a person attending before the ABCC can be represented by a lawyer if they wish.
The CFMEU’s advertisement is careful to refer to the right to a “lawyer of your choice”. The union argues that the ABCC has the power to stop a particular lawyer from representing the examinee.
Such a power is not included in the wording of the bill (or the law that governed the Howard-era ABCC).
However, in 2006, Federal Court Judge Anthony Besanko found that the ABCC could exclude a particular lawyer if it concluded “on reasonable grounds and in good faith that to allow the [legal] representation either will, or may prejudice the investigation”.
In that particular case, the lawyer represented two people, each being examined separately but in relation to the same issues. The court accepted that the knowledge the lawyer gained from the first examination “would inevitably prejudice” the subsequent examination.
It is unclear how frequently such a power would be used by the ABCC.
Assistant Professor Butler tells Fact Check :
“ASIC can exclude legal representatives from examinations that they run but it only happens on rare occasions. It has typically occurred when the lawyer is suspected of involvement in the same alleged wrongdoing as the clients they are representing.”
Even if a lawyer is excluded, the examinee will still choose the replacement.
An ice dealer facing criminal charges can choose their own lawyer and barring extraordinary circumstances the person cannot be removed.
But in practice, lawyers are reluctant to represent multiple parties to the one crime.
Mr Barns tells Fact Check that “Representing several accused in the one crime is fraught with danger for both the barrister and the clients, given the potential conflicts of interest that could arise.”
“I have seen accused people having to change barristers shortly before trial because of conflicts.”
Does it target workers?
The CFMEU’s video uses an emotive depiction of a worker in high-visibility clothing.
But in fact the bill does not single out workers — anyone who has information or documents or is capable of giving evidence relevant to an investigation into “a suspected contravention, by building industry participant” of the bill or “a designated building law” may receive an examination notice.
Someone suspected of wrongdoing may be examined, but examinees can also be victims, workers who will not voluntarily ‘dob on their mates’, management and even bystanders.
Suspicion that someone has committed a criminal offence on a building site, such as assault, will not in itself justify the issuing of an examination notice.
According to a CFMEU submission made to the Royal Commission on Trade Union Governance and Corruption, over the six year period that the ABCC operated between 2005 and 2011, 204 examination notices were issued made up of:
- 138 to employees
- 54 to management
- 10 to union officials
So the majority of notices went to employees, but at least 25 per cent went to the “bosses”.
- CFMEU Facebook post, April 17, 2016
- Labor Herald, ‘Australia get ready: a double-dissolution election in the depths of winter”, April 19, 2016
- Submission by the AMWU, AWU, CFMEU, TWU to Senate Education and Employment Legislation Committee, February 19, 2016
- Fair Work Building & Construction, Role of the ABCC
- Royal Commission on Trade Union Governance and Corruption, Final Report, Chapter 8
- Holding Redlich, Key changes to building and construction workplace laws
- Parliament of Australia, Building and Construction Industry (Improving Productivity) Bill 2013
- Australian Crime Commission Act 2002, s 30
- Australian Securities & Investments Commission, ASIC’s compulsory gathering powers
- Bonan v Hadgkiss (Deputy Australian Building and Construction Commissioner)  FCA 1334, October 12, 2006
- Building and Construction Industry (Improving Productivity) Bill 2013
- Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2], Explanatory Memorandum, 2016
- Competition and Consumer Act 2010, s 155
- Fair Work Act 2009. s 713
- Fair Work (Building Industry) Act 2012. s 53
- Fair Work (Registered Organisations) Act 2009, s 337
- Taxation Administration Act 1953, s 8C
- Work Health and Safety Act 2011, s 155