Lambie to vote against ABCC legislation because it breaches rule of law and basic civil liberties

Independent JLN Senator for Tasmania Jacqui Lambie has delivered a speech to the
Senate, which details the reasons why she will vote against the Liberal’s ABCC
legislation.
The following is a small excerpt from Senator Lambie’s speech. (see attached)
“Mr President, in summary this legislation allows for:
• New coercive powers with retrospective operation,
• Exclusion of judicial review without proper justification,
• Inappropriate delegations of legislative power,
• Insufficiently defined and overly broad discretionary powers,
• Inappropriately reverses the onus of proof in certain circumstances,
• A lack of oversight in the process of authorizing the use of extraordinary coercive
information gathering powers,
• Incompatible with the right to freedom of association and the right to form and join
trade unions,
• Exclude a particular legal practitioner from an examination
These are the reasons why the Law Council of Australia – an independent, credible expert
legislative body representing 60,000 Australian lawyers effectively say that this is bad, poorly
written legislation.
These are the reasons why this legislation should not be passed.” said Senator Lambie.

Senator Lambie’s Speech.

Building and Construction Industry (Improving Productivity) Bill
2013 [No. 2] [and]
Building and Construction Industry (Consequential and
Transitional Provisions) Bill 2013 [No. 2]
Speech – Senator Lambie
18.4.16
Mr President,
I rise to make known my views and vote on the:
Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2] [and]
Building and Construction Industry (Consequential and Transitional Provisions) Bill
2013 [No. 2]
… or as most Australians have come to know these bills as the ABCC legislation.
Mr President,
It will not come as a shock to the Senate when I say that I will not support this
legislation and I will vote – as I have done in the past – against it, when the second
reading vote is called.
In the course of this speech I’ll detail the reasons why I’ve decided to oppose this
legislation.
Despite voting against this legislation in the past – in an expression of good will to

Malcolm Turnbull when he first became PM – I wrote and met with him and
suggested that I could vote for it – if he was prepared to agree to a couple of small
concessions, (deregistration of the CFMEU and establishment of a federal ICAC)
which he dismissed.
However, as the community debate about these bills continued and I received more
detailed briefings from different stake holders – especially valuable were
submissions from the Australian Law Council – it became obvious that this
legislation has more holes in it than a target at a shooting range.
Shortly I’ll turn to the information I received from the Australian Law Council,
however it is important at the beginning of my contribution to this debate – to note
that the great majority of Australians, including Tasmanians are confused or unsure
about this ABCC legislation.
Most understand that this legislation is likely to be historic.
There’s a high probability that it will be defeated in this chamber – and will lead to a
Double Dissolution election on the 2nd of July.
I am not scared by the thought of a DD election. My vote will never be influenced by
threats from this Prime Minister of a DD election.
I will vote according to the merits or otherwise of this legislation and in the best
interests of Tasmanians.
And it’s clear the best interests of Tasmanians are served by strongly opposing this
legislation.
Indeed, the average Tasmanian – has little concern for this ABCC bill.
The average Tasmanian is trying to:
• provide for their families,
• losing their jobs,
• finding jobs for their children,
• accessing affordable / timely heath care in a state public health system that is
broken and badly politically managed and
• keeping warm over winter – while the threat of power cuts looms, after the
Liberals – yet again – have miss-managed another essential basic service.
• Save their trucking business after a bunch of out of touch government officials
made a ruling that took away 90% of their business in a matter of hours.
They don’t have the time or energy to invest too much energy worrying about the
Liberals’ ABCC legislation and the PM’s tricky political tactics.
Indeed, most Tasmanians would be stunned that this building legislation will not
help them – if a dodgy builder rips them off while building a house or renovating the
family home – because this legislation deals with commercial building sector – not
residential.
There are big problems within Australia’s residential building industry!
Dodgy builders, who’ve often gone bankrupt many times – are allowed by state
government building watchdogs to reinvent themselves and continue to trade – and
rip off mum and dad investors in our property markets.
And of course I’m not forgetting the subbies and tradesmen who are also taken
down – when a builder declares themselves bankrupt one day and then open for
business under another name, perhaps in a different state – a few weeks later.
Those important issues are not being dealt with in this legislation.
We could be talking about:
The introduction of a national building licensing register to replace state based
arrangements and a limit of one license per builder – with lifetime industry-wide
bans imposed on those found guilty of construction related fraud and tax evasion.
Instead we have this legislation, which the Law Council of Australia, representing
60,000 lawyers – has laughed at.
This legislation has no justification and is simply designed to:
• Bash the unions,
• Take away basic civil rights for ordinary citizens and blue collar workers
• And give the Liberal Party of Australia a political advantage over everyone else
–
• As they call an early double disillusion, federal election.
Mr President,
I now turn to some of the details of this legislation. When considering the Structure
of the Bill, the Parliamentary Library research states that the Bill contains nine
chapters.
Chapter 1 contains preliminary material, including definitions which extend the
scope of building and construction regulation
Chapter 2 establishes the ABCC and the position of the ABCC Commissioner
(the Commissioner)4
Chapter 3 provides the Minister with the power to issue a Building Code
Chapter 4 establishes the Federal Safety Commissioner
Chapter 5 deals with unlawful action, including a new offence of unlawful
picketing
Chapter 6 deals with coercion, discrimination and unenforceable agreements
Chapter 7 deals with powers of the Commissioner and other authorised
officers to obtain information
Chapter 8 deals with enforcement, and
Chapter 9 contains miscellaneous provisions, including provisions to do with
handling of information, powers of the Commissioner, and courts.
Law Council of Australia
I hadn’t realized just how badly written this legislation was until I met with the Law
Council of Australia and had a number of consultations and briefings from them.
For those who don’t know about the profile, independence, credibility and the
purpose of the Law Council of Australia, it may be worthwhile to remind the Senate
of a few important facts.
The Law Council was established in 1933, and represents 16 Australian State and
Territory law societies and bar associations and the Law Firms Australia, which are
known collectively as the Council Bodies.
Those Constituent Bodies are made up of all of the Australian states’ Law Societies
and most Australian Bar Associations – including the Law Society of Tasmania and
the Tasmanian Bar.
Their profile says that the Law Council effectively acts on the behalf of more than
60,000 lawyers across Australia.
They exist to represent the legal profession at a National level, to speak on behalf of
its Constituent Bodies on national issues and to promote the administration of
justice, access to justice and general improvement of the law.
And quite clearly – after consulting with the Law society – the ABCC will not lead to
an improvement to Australian Law. In fact that opposite will happen.
The general rule of law will be weakened should this legislation pass this Senate.
And 60,000 Lawyers agree with that statement.
There are a number of key difficulties the Law Council has found with this
legislation. Other bodies such as the Senate Committee on the Scrutiny of Bills and
the Parliamentary Joint Committee on Human Rights have identified the same key
concerns – which are:
1. The provisions of this bill only deals with corruption in the building and
constructions sector and not more broadly across various industries.
2. It applies a different set of industrial relations rules that apply only to
persons associated with the building and construction industry.
3. They provide new coercive powers with retrospective operation.
4. There is exclusion of judicial review of certain decisions without adequate
justification and contrary to a recommendation by the former
Administrative Review Council.
5. Inappropriate delegations of legislative power
6. Insufficiently defined and overly broad discretionary powers
7. Inappropriately reverses the onus of proof in certain Circumstances.
8. Inappropriately permits entry onto premises without consent or warrant.
9. A lack of oversight in the process of authorizing the use of extraordinary
coercive information gathering powers
10. The prohibition on picketing and further restrictions on industrial actions
have been found by the Parliamentary joint Committee on Human Rights
to be incompatible with the right to freedom of association and the right
to form and join trade unions.
11. The Australian Building Commissioner may exclude a particular legal
practitioner from an examination if the ABCC Commissioner concludes, on
reasonable grounds and in good faith, that the representative either will or
may, prejudice the investigation.
Mr President,
In summary this legislation allows for:
• New coercive powers with retrospective operation,
• Exclusion of judicial review without proper justification,
• Inappropriate delegations of legislative power,
• Insufficiently defined and overly broad discretionary powers,
• Inappropriately reverses the onus of proof in certain circumstances,
• A lack of oversight in the process of authorizing the use of extraordinary
coercive information gathering powers,
• Incompatible with the right to freedom of association and the right to
form and join trade unions,
• Exclude a particular legal practitioner from an examination
These are the reasons why the Law Council of Australia – an independent, credible
expert legislative body representing 60,000 Australian lawyers effectively say that
this is bad, poorly written legislation.
These are the reasons why this legislation should not be passed.
Meeting with Minister Cash
During the last sitting of this Parliament I had a meeting lasting about 45 minutes
with Minister Cash and her legal advisor – and raised these Law Council concerns.
We also talked about section 62 – which takes away the right to silence for an
Australian citizen who appears before the Commission.
Section 62 allows the government to charge and have imprisoned an Australian
citizen for 6 months – should that citizen choose to say nothing and exercise a right
to silence during an official interview.
It’s found on page 49 of the Building and Construction Industry (Improving
Productivity) Bill and reads:
62 Offence for failing to comply with examination notice
A person commits an offence if: (a) the person has been given an examination
notice; and (b) the person fails:
(i) to give information or produce a document in accordance with the notice;
or
(ii) to attend to answer questions in accordance with the notice; or
(iii) to take an oath or make an affirmation, when required to do so under
subsection 61(5); or
(iv) to answer questions relevant to the investigation while attending as
required by the examination notice.
Penalty: Imprisonment for 6 months.
A couple of things came out of our discussion with the Minister re section 62.
1) As it stands written, we aren’t sure if the imprisonment for 6 months for
exercising a right to silence is mandatory, minimum or maximum period of
time.
It’s bad enough that this extreme legislation is being entrusted to public servants
with doubts over their qualifications – but to have a question mark over whether is
it a minimum, maximum or mandatory sentence is careless and an example of very
poor legislative drafting.
The Minister tried to calm my office’s fears about removing a basic civil liberty from
Australian citizens (i.e right to silence) – by informing me that the government had
arranged for an indemnity to prosecution from any crime – should someone be
forced to incriminate themselves during those extreme interrogations.
When asked about the sorts of crimes that this indemnity covered the Minister was
forced to admit that even – if someone had committed a murder – and confessed to
that crime during an ABCC official interview they would receive an indemnity … as
long as the murder was related to the building industry.
Because if you’ve committed a murder that’s not related to the building industry
and confess during an interview covered by the provision of the ABCC legislation –
then you don’t qualify for an indemnity.
This response raised eyebrows with the Law Council.
Firstly, it’s ridiculous that this parliament is being asked to support legislation which
gives you an indemnity to murder, should you confess during an interview.
That gem came from the Minister’s own mouth in my office.
And secondly, it is completely bizarre, that the Minister and her legal advisor can
suggest that one type of murder qualifies for an indemnity – while another murder
doesn’t.
According to this Minister, if you bury the body under cement – and say the murder
was related to the building industry – then you have indemnity,…
… but if you buried the body in the woods and the murder was carried out because
of non-building related activities you don’t get an indemnity from prosecution!

And that Mr President was the point where it became clear that this legislation was
drafted by a room full of monkeys and a typewriter.
It is very bad and poorly drafted – and has scant regard for the rule of law and basic
democratic rights.
The Law Council of Australia confirmed my opinion after a subsequent meeting to
discuss the Minister’s briefing.
I admit that there was a period when in good faith I would have passed this
legislation – had the government met certain conditions:
• Deregistration of the CFMEU,
• A viewing of the Royal Commission secret reports, and
• The establishment of a federal ICAC.
As my research and consultation on the ABCC progressed over the months, my trust
in Royal Commissioner Heydon was shattered when it became blindingly obvious
that – he had lied to the people of Australia about the so-called grave threats he’d
discovered to the power and authority of the Australian state.
I’m in a unique position to pass judgement on Commissioner Heydon’s secret
reports and findings.
Unlike most Australians and politicians I’ve read Commissioner Heydon’s secret
reports.
It’s fiction – and a lie. There are no grave threats to the Australian state.
If there were – ASIO would have been all over the Haydon Royal Commission like a
rash.
When I questioned ASIO at estimates about Heydon’s secret reports – no copy had
been referred to them – nor had ASIO even thought of asking for a copy.
A Royal Commissioner who agreed to participate in a Liberal Party fundraiser lied to
the Parliament and Australian people about the seriousness of the threat to the
Australian state – through his investigations into Union and other corruption.
And this is the debate when the question “Why?” must be asked.
Mr President,
According to Parliamentary Library research I recently commissioned, the 4 big banks
(CBA, NAB, Westpac, ANZ) over a 5 year period from 2010/11 to present day have
donated $2.56M to the Liberals, Nationals and LNP.
That’s why you won’t see a banker lose their right to silence or prove their
innocence if they are accused of an offence or crime in the finance industry.
But if this legislation passes you will see blue collar workers lose their right to silence
and the right of a presumption of innocence – while bankers are treated separately.
Indeed this law is so bad that citizens accused of murder and rape will have more
rights than a construction worker if summoned under the ABCC legislation.
Mr President,
On the 26th of August 1789 the representatives of the French people organized as a
National Assembly – believing that the ignorance, neglect or contempt of the rights
of man are the sole cause of public calamities and of the corruption of governments.
They set forth a solemn declaration detailing the natural, unalienable and sacred
rights of man. This declaration has had a profound effect on the formation of
modern western democracies and their rule of law.
Point 6 of the Declaration of the Rights of Man and the Citizen – states in part with
relation to the law:
“It must be the same for all, whether it protects or punishes.”
The United Nations Universal Declaration of Human Rights adopted and proclaimed
by the General Assembly of the United Nations on the 10th of December 1948 –
states in Article 7:
“All are equal before the law and are entitled to equal protection of the law.”
If this ABCC legislation passes, bankers have more legal rights than blue collar
construction workers.
This principle of equality before the law is one of the main foundations that
Australia was built on.
It’s one of the reasons why we fought wars against dictatorships and totalitarian
countries.
Liberals love quoting a glib and misleading catch phrase when trying to sell this
legislation:
“ Oh we need a tough cop on the beat.”
Well that cop had better treat blue collar workers the same as bankers – so that’s
why we need to tackle corruption with a Federal ICAC.
I strongly oppose the ABCC legislation and will vote against it in Tasmanian’s best
interests – on the second reading.
Rob Messenger for Senator Jacqui Lambie Senator for Tasmania