Wednesday, 14 March 2012
Education, Employment and Workplace Relations Legislation Committee; Reference
Madam Acting Deputy President, thank you for the opportunity to speak and support the motion of Senator Abetz to right a wrong and, I suggest, reverse what could well be a miscarriage of justice. This matter should have been the subject of scrutiny by the Education, Employment and Workplace Relations Legislation Committee at its hearing in Melbourne. It was known very well by the Labor Party and by the Greens that they were going to introduce this amendment to the parliament at the next opportunity. I support Senator Abetz when he quite rightly says that this matter, incomplete at its last assessment and adjudication, must now go back to the same committee—not to some new process, as Senator Marshall has just indicated—to complete its own process of investigation.
We have the disgusting and regrettable circumstance in which not only the Law Council but also three state attorneys-general have raised concerns about dilution of the building and construction industry regulator's role. They have equally raised their concerns since this circumstance was raised in this chamber the other day. It is unconscionable; it is unacceptable. For those who participated in that hearing, it has been an insult. I suggest that it is an insult to the Senate, to senators and to the process of law in this country. Senator Abetz's statement earlier and his motion before the Senate is to right that wrong.
This would allow—as you would understand, Madam Acting Deputy President—a circumstance where the regulator would not be able to undertake investigations and bring charges in relation to matters that have been settled between parties outside the scrutiny of law. They would not have the powers that the police, ASIC, the Fair Work Ombudsman or any other equivalent regulator has. It would surely be a precedent in the Australian parliament and in Australian law where at least one of the parties could possibly engage in illegal activity—paying or bullying the other party to the extent that they settle prior to the time a regulator could address the issue.
Relatively recently in the state of Victoria, we had a precedent with the West Gate Bridge project. Two parties, a major employer and a union, found themselves the subject of adjudication, investigation and, I think, a $1.3 million fine as a result of those two parties doing exactly what this amendment would prevent: a circumstance where the regulator was able to investigate, enforce, fine and bring them to justice. If this amendment were passed and that same event occurred again, as happened in the West Gate Bridge project, the two parties could settle away from public scrutiny and there would be no opportunity for a regulator or an investigator to examine that event.
What are we going to find? Are we going to find a new raft of brokers whose role it is to professionally broker these deals between the parties? I asked Senator Arbib this very question. He said he was happy to take my question relating to whether the matter should go back to the very committee that investigated it, and all he could say to me was:
I am happy to take that on notice and seek the views of the minister.
So we appear to have a circumstance now where the Senate is subordinate to the other place and we rush back to the other place to seek instructions. This is its own chamber. This is the place of review. This is the place where the sorts of investigations that Senator Abetz, I and others want to pursue should be pursued, not at the behest or whim of somebody in the other place. Even more interesting, Senator Arbib then said:
We believe the new body will provide a tough cop on the beat …
If we take that to any state or federal legislative circumstance then two people could get into a dispute, one could decide that they want to buy their way out of it, they could pay or bully the other party—clearly an event that is illegal under Australian law—and the police, or whichever regulatory authority investigates it, could be told, 'No, the two parties have done a sweetheart deal and you can no longer investigate it.'
I address some of the statements expressed by Law Council President Catherine Gale. She said that the proposed amendments may give rise to many unintended consequences for the independent regulator. She said:
There is potential for significant waste of tax-payers money if the regulator is forced to discontinue litigation or an investigation …
Can't you just imagine the circumstance: two parties are in dispute; the regulator is involved; one of the parties decides it would be cheaper to buy off the other crowd, using, I would suggest, a broker or doing it directly; and they go to the regulator and say, 'Despite the time and taxpayer money that you have invested in this process, unfortunately we have arrived at a deal.' Catherine Gale went on to say that the amendments would also mean that the regulator would need to be expeditious in commencing proceedings to preserve the integrity of the prosecutorial process.
It is unprecedented that we would have the Law Council and three state attorneys-general protesting about the possible illegality of this action when it could be readily addressed by returning the matter to the committee which has the charge from this place to investigate the matter. It must go back to that committee so that it can be truly examined and then it must come back to the Senate to address the concerns expressed by the Law Council and lawmakers in the different states to give some level of satisfaction and comfort to the Australian community.