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Re-establishment of the Australian Building and Construction Commission

1. The Law Council is grateful for the opportunity to provide this brief submission in response to the Senate Education and Employment References Committee’s (the Committee) inquiry into the re-establishment of the Australian Building and Construction Commission (ABCC) through the Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2] (the Bill) and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 (the Transitional Bill). 

2. The purpose of the Bill and Transitional Bill is to re-institute a separate workplace relations framework for the building industry based largely on the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act). The Bill would re-establish the ABCC and invest the Australian Building and Construction Commissioner (ABC Commissioner) with coercive questioning powers, introduce a new civil penalty offence of unlawful picketing, reintroduce provisions dealing with unlawful industrial action, coercion and the associated civil penalties specific to the building industry, and broaden the scope of these provisions. It would provide for penalties for building industry participants which are considerably higher than those available under the existing Fair Work Act 2009 (Cth) (Fair Work Act). 

3. The Bill has been reintroduced into the Parliament to address specific issues relating to allegations of corruption and behaviour within the building and construction industry. 

4. A number of features of the Bill are contrary to rule of law principles and traditional common law rights and privileges such as those relating to the burden of proof, the privilege against self incrimination, the right to silence, freedom from retrospective laws and the delegation of law making power to the executive. It is also unclear as to whether aspects of the Bill which infringe upon rights and freedoms are a necessary and proportionate response to allegations of corruption and illegal activity within the building and construction industry. 

5. For these reasons, the Law Council’s primary recommendation is that the Bill not be passed in its current form. 

6. If it is to be enacted, the Law Council’s submission makes a number of recommendations as to how the Bill may be strengthened to align with rule of law principles and traditional common law rights and privileges. 

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