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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 Law Council accepts that the Bill is aimed at the legitimate objective of addressing specific issues relating to allegations of corruption and behaviour within the building and construction industry. 

4. On 19 February 2016, the Law Council made a submission regarding the public consultation by the Senate Education and Employment References Committee’s (References Committee) inquiry into the Bill. 

5. The Law Council’s submission noted that if the Bill is tested against strict rule of law principles, it is inconsistent with those principles in many respects, including 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. The Law Council’s February 2016 submission also noted that it is 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. For these reasons, the Law Council’s primary recommendation was that the Bill not be passed in its current form. 

6. If it is to be enacted, the Law Council’s February 2016 submission made 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. 

7. The Law Council notes that the current Bill is identical in terms to the Bill before Parliament in 2013 and early 2016. 

8. However, the Law Council understands that it is the Government’s intention that the Bill be passed and that many of the measures in the Bill aim to maintain the current position under industrial relations legislation or for consistency with such legislation. 

9. It also recognises that the References Committee did not accept the alternative recommendations made by the Law Council in its February 2016 submission. Further, the Law Council acknowledges that addressing many of its concerns may require a longer term exercise to review a broad range of legislation, given that they aim for consistency with industrial legislation such as the Fair Work Act.

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