The Commonwealth Director of Public Prosecutions (CDPP) today applied to the Melbourne Magistrate’s Court to withdraw the prosecution of Noel Washington for failing to attend an ABCC examination at the time and date specified in the Notice issued under the Building and Construction Industry Improvement Act 2005 (BCII Act).
The ABCC has been advised that the CDPP’s decision to withdraw arose out of the fact that the original proposed examination was adjourned. The CDPP stated his view that in respect of the adjourned examination it was open to a court to decide that “there was no continuing enforceable requirement to attend pursuant to the Notice.”
The adjournment of the examination was to accommodate Mr Washington’s injunction application in the Federal Court challenging its validity and the underlying ABCC investigation. He alleged the purpose of the proposed examination was improper.
The ABCC was investigating allegations that CFMEU officials engaged in threatening, intimidating and prejudicial conduct towards witnesses in an ABCC proceeding in the AIRC. Such conduct would be a criminal offence under s.816 of the Workplace Relations Act 1996 (WR Act).
The Federal Court [2008] FCA28 dismissed the injunction application finding that the examination was for the proper purpose of investigating what were alleged to be serious contraventions of the WR Act.
Marshall J rejected the argument that the ABCC investigation was improper and stated:
“The evidence does not support the proposition that the investigation would not have occurred but for a desire to question union officials about their attitude to co-operation with the ABCC.”
Mr Washington then failed to attend his re-scheduled examination, which resulted in the ABCC referring the matter to the CDPP. The decision to charge Mr Washington and subsequently to withdraw these charges was made by the CDPP.
ABC Commissioner John Lloyd said this case does not call into question the compliance powers of the BCII Act.
“The powers remain intact. The law is clear. Failure to attend an ABCC examination is an offence under the BCII Act. Any future failure to attend an ABCC examination may be referred to the CDPP.”