The CFMEU has today issued a media release claiming that four individuals will attend an examination at the ABCC’s Melbourne headquarters.
The ABCC is unable to confirm or comment on any examinations it holds. The hearings are held in private and the confidentiality provisions of the Building and Construction Industry
Improvement Act 2005 (BCII Act), which are contained in section 65, apply.
The ABCC is, for good reason, restricted in how it can handle this information. Please see the ABCC’s ‘Protected Information’ fact sheet which sets out these legal restrictions.
The CFMEU’s media release contains several incorrect statements. The incorrect statements and facts are listed below:
- ‘Union meetings can be secretly recorded’ - the ABCC does not use any form of covert recording.
- ‘Legal representation can be denied’ - every witness has a right to legal representation.
- ‘No other body in Australia has those powers’ - The ABCC's compliance powers are based on the Australian Competition and Consumer Commission's powers and are similar to those of other government agencies with a similar regulatory function such as the Australian Securities and Investment Commission and the Australian Taxation Office.
The ABCC only uses its compliance power if a person refuses to co-operate voluntarily with an investigation.
The compliance powers contain very important protections and safeguards for witnesses. The most important protection is contained in subsection 52(3) of the BCII Act. This section provides that answers given at an examination are inadmissible against that person in proceedings, except proceedings relating to giving false answers.
Some people engaged in the industry choose not to provide information to the ABCC on a voluntary basis. Others prefer to give evidence pursuant to the power because they fear retribution if they are seen to be cooperating with an ABCC investigation.
A number of the examinations have uncovered evidence which has been used in successful prosecutions. Also, a number of the examinations have assisted the ABCC to come to a decision not to commence proceedings.
The ABC Commissioner John Lloyd made the following comments:
“The law prevents the ABCC from commenting on particular examinations or using information except in accordance with the law,” Mr Lloyd said.
“It is regrettable that the CFMEU continues to misrepresent the facts and exploit the ABCC’s adherence to the law.
“The ABCC is accountable for its use of the compliance power. It regularly reports on the use of the power.”.