Ark Tribe case failed because ABCC formed ‘invalid’ belief

News

Ark Tribe case failed because ABCC formed ‘invalid’ belief

The ABCC case against CFMEU member Ark Tribe collapsed because the belief formed by Deputy Commissioner Nigel Hadgkiss that Tribe had relevant information was invalid because Hadgkiss was not in charge of the investigation, a magistrate has ruled.

WantToReadMore

Get unlimited access to all of our content.

The ABCC case against CFMEU member Ark Tribe collapsed because the belief formed by Deputy Commissioner Nigel Hadgkiss that Tribe had relevant information was invalid because Hadgkiss was not in charge of the investigation, a magistrate has ruled.
 
South Australian Magistrate David Whittle yesterday found Tribe not guilty of refusing to attend an ABCC interrogation after he was involved in a safety dispute in 2008.
 
‘It is appropriate for the court to require those vested with the power and responsibility to infringe in this way upon the normal rights of citizens to comply strictly with their legislative obligations,’ Magistrate Whittle said.
 
Delegated powers, not functions
 
In his ruling, Magistrate Whittle said ABCC Commissioner John Lloyd had delegated his powers, but not his functions under s52 of the Act. He said the formation of a belief that Tribe had relevant information for an ABCC investigation was a function, not a power.
 
Secondly the belief formed by Hadgkiss ‘was not a belief that [Tribe] could give evidence relevant to’ an ABCC investigation ‘because the investigation was being undertaken by ABCC inspectors and the Commissioner had taken no steps to assume conduct of that investigation’.
 
The Magistrate also found that the notice to Tribe of the interrogation was required to state the person before whom he was required to appear and did not do so.
 
However ‘on its own that matter would not have been sufficient to invalidate the notice’.
 
Not lawful
 
Magistrate Whittle said the notice served on Tribe was invalid and did not lawfully require tribe to comply with its terms and attend the hearing.
 
The decision has been welcomed by the union movement.
 
ACTU president Ged Kearney said it was outrageous that an ordinary worker had spent the last two years of his life with the threat of a six-month jail term hanging over his head simply because he raised concerns about the safety of a project he was working on.
 
‘This is a great day for workers’ rights,’ she said.
 
‘Justice has finally been done in Ark’s case, but the verdict is further evidence of an incompetent and unnecessary ABCC.’
 
Unjust
 
‘[The] verdict will see Australian unions redouble their efforts to have these unfair and unjust laws abolished. These laws criminalise legitimate industrial activity and deny building workers the right to silence.’
 
Workplace Relations Minister Senator Chris Evans said the government will review the extensive reasons for the decision.
 
However, the government will reintroduce the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill early next year.
 
‘This Bill will abolish the ABCC and create the Office of the Fair Work Building Industry Inspectorate to ensure employers, their organisations, employees and unions abide by their obligations under the law.
 
Safeguards
 
‘This new body will have additional safeguards for the use of its compulsory interview powers.
 
‘Importantly, the Government’s proposed building legislation will implement all of the safeguards recommended in the Wilcox report to ensure that coercive powers are used in a fair and balanced manner.’
 
‘In particular the use of these powers will be subject to pre-approval by a presidential member of the Administrative Appeals Tribunal, and to review and reporting by the Commonwealth Ombudsman.’
 
The Greens, who will have the balance of power in the Senate from next July, want the ABCC abolished and not replaced.
 
IR spokesman Adam Bandt said there is no place for laws that ‘give one group of workers fewer rights than accused criminals, let alone other workers’.
 
Post details