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The facts about the blatantly misleading CFMEU ad campaign on the ABCC

On 17 April we published a story about this misleading and deceptive CFMEU ad with the title 

More misleading bulltish from the CFMEU 

If a commercial entity subject to the Trade Practices Act made statements like those in this ad they'd be liable for a charge of misleading and deceptive conduct.

People who are asked to testify at the ABCC aren't charged with a crime.   Whatever they say to the ABCC can't be used against them.  There's a long held legal principle that if co-ercive powers (like a summons or subpoena) are used to elicit evidence, then that evidence can only be used in the forum and for the purpose that it was issued.

There are heaps of times we have a legal obligation to answer questions - registering your car, getting government payments, professional registrations and the like.   If you're in paid employment you have to answer your boss's reasonable questions.  

This crap from the CFMEU is crap and they know it's crap.   Even the ABC's Fact Checking unit couldn't paper over it!

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The claim

The Construction, Forestry, Mining and Energy Union (CFMEU) has launched a high profile campaign opposing the reintroduction of the Office of the Australian Building and Construction Commission. 

It is running an advertisement on television and online, depicting an "ice dealer" and a "worker" being interrogated in a darkened room.

It claims "If Malcolm Turnbull gets his way, a worker will have less rights than an ice dealer", pointing to the "right to remain silent" and the "right to a lawyer of your choice". 

The Labor Opposition has subsequently repeated this claim. 

Shadow Minister for Employment and Workplace Relations Brendan O'Connor said on April 18, 2016 "ordinary workers in the construction industry... will have less legal rights than a criminal suspected of dealing the drug ice". 

The verdict

The CFMEU's claim is nonsense. 

The union is conflating two very different concepts. 

Questioning of an ice dealer is a step in the criminal justice process, and answers to the questions may lead to a conviction and jail sentence for that person. 

A person examined by the ABCC is providing information as a witness to a civil investigation. They are given at least 14 days notice and have their expenses paid. Nothing they say can be used against them in subsequent proceedings. 

A building worker suspected of committing a criminal offence has the same rights when interviewed by the police as an ice dealer would have. 

It is also not a case of Malcolm Turnbull 'getting his way': there are many examples in existing laws of people being forced to hand over documents and answer questions, including under the workplace laws brought in by the Rudd-Gillard Government. 

An ice dealer giving evidence to the Australian Crime Commission is also forced to answer questions. 

People examined by the ABCC are entitled to representation by a lawyer of their choice, but there is a possibility that they will have to choose someone different if it is found that their first choice might prejudice the ability of the ABCC to carry out its investigation.

Investigations under the ABCC

The ABCC's powers to obtain information are set out in Chapter 7 of the ABCC bill.

Section 60 notes that the ABCC "may require a person to give information, produce documents or answer questions relating to an investigation of a suspected contravention of [building laws] by a building industry participant."

The contraventions the ABCC investigates are civil, not criminal matters

The Commissioner needs to give the person an "examination notice" at least 14 days in advance.

A person who attends an examination is entitled to be paid for their reasonable expenses in attending. 

Separately, if an authorised officer of the ABCC lawfully enters premises, they can require a person who has custody or access to a record or document to produce it to the authorised officer.

Right to silence

The person who receives an ABCC examination notice has to comply with it and commits a criminal offence if they do not do so (section 62). 

Section 102 of the Bill makes clear that a person is not excused from compliance with the notice merely because doing so may incriminate them or make them liable to someone else. 

The CFMEU compares this to the common law principle that entitles a person to refuse to answer questions or produce documents if doing so would incriminate that person.

What is the ABCC?

  • ABCC: the Office of the Australian Building and Construction Commission.
  • Established in 2005. 
  • Role was "to monitor and promote appropriate standards of conduct throughout the building and construction industry".
  • Powers included to investigate and prosecute breaches of workplace laws such as unlawful industrial action, underpayments and sham contracting.
  • 2012 — under Julia Gillard, the ABCC was replaced by a body known as Fair Work Building and Construction. 
  • 2013 — the Abbott government introduced the Building and Construction Industry (Improving Productivity) Bill to Parliament to bring back the ABCC. 
  • The bill was rejected by the Senate on August 17, 2015 and again on April 18, 2016. 

A spokeswoman for the union tells Fact Check that "A person accused of the criminal offence of supplying prohibited substances such as the drug ice, would be entitled to invoke the privilege against self-incrimination and refuse to answer questions either in the course of a police investigation or in any subsequent criminal trial."

As expected, the Government rejects the CFMEU's comparison. A spokesman for Minister for Employment Michaelia Cash tells Fact Check:

"Suggestions that construction workers have less rights than ice dealers is absurd. The ice dealer is suspected of doing the wrong thing — the victim of CFMEU thuggery who was too afraid to be seen to come forward and speak out voluntarily is not suspected of any wrongdoing."

Putting aside the political rhetoric, experts consulted by Fact Check do say that the CFMEU is conflating two different concepts. 

Professor Andrew Goldsmith of Flinders University Law School tells Fact Check:

"The comparison is flawed because it equates two different processes with distinct purposes. ABCC examinations are used to gather information from witnesses in relation to construction workplace activities whereas an interview with a criminal suspect is concerned with collecting evidence for criminal prosecution."

The CFMEU itself stated in a February 2016 submission to the Senate that: 

"[The ABCC] has never had any role in investigating breaches of the criminal law. It deals with possible industrial law contraventions, which are and always have been civil, not criminal matters."

Labor's Brendan O'Connor also recently noted that "the ABCC has no power to investigate breaches of criminal law or corruption". 

Information provided to the ABCC by a witness cannot be used against them in other proceedings (section 102 of the Bill), nor will they face civil or criminal liability as a result of complying with a notice (section 103). 

By contrast, statements made by a suspected criminal during an interview with police can be used as evidence in a criminal trial.

Assistant Professor Joel Butler of Bond University Law School tells Fact Check: 

"The difference is significant: even if a person giving evidence to the ABCC admits that they committed some wrongdoing, that 'confession', as far as the law is concerned, never happened. The person's 'right to silence' is therefore preserved."

The existence of the ABCC does not change the procedures that exist if a worker is accused of crime, for instance assault on a building site, where the right to silence continues to be in place. 

Professor Goldsmith says "A construction worker who is accused of committing a workplace-related crime will have the same rights when interviewed by police and when in court as an accused ice dealer would have".