Noel Washington: Facing prison for not answering a question.

Mocking the rule of law

Time's up for the ABCC says George Williams.

I have been asked to talk about the coercive and investigatory powers of the Australian Building and Construction Commission (ABCC) under the Building and Construction Industry Improvement Act 2005.

I approach these powers, not as someone who has ever worked in the construction industry, but as a public lawyer whose focus is on the use, and occasional misuse, of public power by Australian institutions since Federation in 1901. Set against this background, the powers conferred on the Commission are exceptional. In fact, they are not just exceptional, they are unwarranted.

The Building and Construction Industry Improvement Act states in section 52 that the ABC Commissioner's powers to obtain information etc. are:

(1) If the ABC Commissioner believes on reasonable grounds that a person: (a) has information or documents relevant to an investigation; or (b) is capable of giving evidence that is relevant to an investigation;

the ABC Commissioner may, by written notice given to the person, require the person:

(c) to give the information to the ABC Commissioner, or to an assistant, by the time, and in the manner and form, specified in the notice; or (d) to produce the documents to the ABC Commissioner, or to an assistant, by the time, and in the manner, specified in the notice; or (e) to attend before the ABC Commissioner, or an assistant, at the time and place specified in the notice, and answer questions relevant to the investigation.

This power could be used to require a person to:

• reveal all their phone and email records, whether of a business or personal nature;
• report not only on their own activities, but those of their fellow workers;
• reveal their membership of an organisation, such as a union;
• report on discussions in private union meetings or other meetings of workers.

The provisions can be applied not only to a person suspected of breaching the law, but to:

• workers in the building industry not in any way suspected of wrongdoing;
• innocent bystanders;
• the families, including children of any age, of workers in the industry;
• journalists and academics (or even, to take what might seem a farfetched example, a priest regarding what someone has told them in the confession box).

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