Rachel Siewert
[On November 29, Greens Senator Rachel Siewert attempted to block the adoption of the Building and Construction Industry Improvement (BCII) Act (2005) regulations in the Senate. In her speech, abridged below, she related a grim catalogue of intimidation by inspectors operating under the newly established Australian Building and Construction Commission (ABCC). The full text of her speech can be found at < http://www.rachelsiewert.org.au/500_parliament_sub.php?deptIteA HREF="mailto:mID=28"><mID=28>.]
I am moving this motion to stop bad regulations implementing bad laws. I have been confronted by chilling news of how the Building Industry Taskforce and then the ABCC have been implementing these regulations since the chamber passed the Building and Construction Industry Improvement Act.
I have been hearing scary stories of workers' families being intimidated by burly inspectors, who appear to have waited until a worker has set off to work to serve his wife or partner with a notice — pointing out in a heavy-handed manner that they are liable to a large fine or a jail term if they don't cooperate fully. I've heard stories of apprentices and migrant workers being picked on, intimidated and tricked into answering questions, without being informed of their legal rights.
I've heard about workers being invited to have an informal conversation by an ABCC inspector, only to learn that the discussion has been recorded without their consent. I've heard about workers being separated from their counsel in ABCC hearings, being seated tightly between two burly inspectors and being badgered into answering questions. I've heard stories about their counsel being ignored and denied the opportunity to intervene in heavy-handed and inappropriate lines of questioning. I've heard about workers and their counsel being denied the right to particulars that detail the matter under investigation, and of counsel being man-handled by ABCC inspectors.
I've heard reports about a hearing process that amounts to a "star chamber" in which the deputy commissioner acts in an imperious manner claiming the regulations give him the right to determine who can, or cannot, represent a worker and how they fulfill their moral, ethical and legal obligations.
No right to silence
One of the worrying things about the act and its regulations is [that it] has been made retrospective. This means that Australian workers are fronting this star chamber with no right to silence and the threat of six months' jail. They are being pursued and threatened with prosecution for taking part in, or possibly knowing of, actions that were not illegal at the time they purportedly occurred.
These workers are being denied basic democratic rights that all of us take for granted. These workers, who have not been charged with anything and may only be suspected of knowing about an offence committed by someone else, are being treated with less rights than someone who has committed a very serious criminal offence.
The ABCC has wasted no time in moving on the BCII Act and making use of its sweeping inquisitorial powers. We already have had at least eight examples of building workers within WA being targeted.
I have been contacted by a number of very distressed WA construction workers who have been subject to the bully boy tactics of the ABCC. Each of these were threatened with criminal prosecution if they revealed any of the questions asked, answers given or agreements made during their inquisition to anyone other than a legal practitioner, if they were lucky enough to be able to afford one.
I cannot characterise those practitioners as true "legal representatives" because their ability to act as counsel for their clients was obstructed by the deputy commissioner who presided over their hearings like an imperial magistrate.
Before receiving a formal notice to appear, it seems that most witnesses were approached using a variety of unethical tactics including friendly "you-can-tell-me-off-the-record" phone calls, or a letter of invitation to come in and have an informal chat. Others received what they clearly perceived as threatening phone calls or letters that outlined in great detail the penalties they could be subject to under the act, but did not touch on their corresponding rights to refuse, to have legal counsel present or to seek written particulars.
These informal approaches would then be followed up by a couple of burly inspectors turning up to the family home when the worker was not present to formally serve notice on their families. In one case the investigators tried to serve a nine- year-old child (who appears to have outsmarted them by refusing to open the door).
(There is a serious question as to whether service of a summons on a person's family constitutes "valid service". In most court jurisdictions, a witness summons needs to be served personally and cannot be served on family, friends or the like. Where there are quite serious penalties for failing to attend, the notice should be served personally.)
Inquisition
At least eight workers in WA have been served notice to appear before the ABCC in Perth. They are ordinary building and construction workers who, coincidentally, appear to belong to the building and construction union, but none are union officials, delegates or stewards, or union organisers of any kind.
The "notices to appear" are consistent in their lack of detail regarding the matter under investigation. The worker is given 14 days to appear, but given no information to allow them to prepare for the inquisition. The notices apparently state a time and date where an alleged breach occurred, and spend the rest of the notice outlining the consequences if the worker fails to appear and answer questions. These workers have to approach their inquisition blind.
But the prelude is nothing compared to the actual interrogation. It is by no means an informal interview to answer questions. It is a full-blown formal hearing, held in an adversarial courtroom-like setting in which the normal rules of fair play and jurisprudence are suspended.
Nigel Hadgkiss, former head of the Building Industry Taskforce, former National Crime Authority (NCA) liaison to the Cole Royal Commission [a $60 million exercise to vilify by implication or association every building and construction worker in Australia] and now deputy commissioner of the ABCC, presides over the hearing like a magistrate. But unlike a magistrate, Hadgkiss appears only to be bound by the procedures that he and the ABCC choose to follow.
He appears to have the unfettered right to use NCA procedures previously reserved for investigations into the mob and organised crime. Hadgkiss is not bound by democratic procedures set forth in the law and regulations by parliament. He is not subject to parliamentary or independent oversight to ensure that the principles of our democratic institutions are upheld. He is only accountable to his boss, the minister, who has created these laws and reserved the right to oversee them (and who happens to have been the former head of the WA Building Industry Taskforce under Richard Court and Graham Kierath).
Furthermore, in most court jurisdictions, if you summon a witness you are responsible for their costs of attending. In the Local Court, you need to provide them with "conduct money" — a bus fare — if you summons someone to attend. In the ABCC, the witness (who may have done absolutely nothing wrong) is responsible for their own lost wages, conduct money and legal expenses regardless of the circumstances.
If Work Choices becomes law, there will be nothing to stop workers from being unfairly dismissed because they have been compelled to respond to an ABCC summons and were absent from the workplace.
There is insufficient regulation of the activities of the ABCC and the regulations do not provide sufficient guidance, or place clear obligations on the conduct of the ABCC. Neither do they contain sufficient checks and balances to stop the investigators of the ABCC and its inspectors from crossing the line and infringing on the legal, industrial and democratic rights of ordinary working people.
It might seem like there are only a few building workers being affected by the activities of the ABCC. However there is a much larger issue at stake. If we fail to act on this, how long will it be before nurses or teachers or bus-drivers are at the receiving end of this kind of ill-treatment?
From Green Left Weekly, December 7, 2005.
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