Not merely did Australian Building and Construction Commissioner Nigel Hadgkiss break the law in preventing ABCC staff from accurately advising employers, Employment Minister Michaelia Cash might have broken the law when she established the ABCC with Hadgkiss as its head. Only a tortured interpretation of the legislation lies between her and what appears to be a blatant breach of it.

According to section 21 of the act that establishes the ABCC, the Building and Construction Industry (Improving Productivity) Act 2016:

The Minister must not appoint a person as a Commissioner unless the Minister is satisfied that the person:

                     (a)  has suitable qualifications or experience; and

                     (b)  is of good character; and

                     (c)  will uphold the APS Values set out in section 10 of the Public Service Act 1999, including by performing his or her functions in an apolitical manner and acting impartially and professionally.

It’s (c) that is the problem for Cash: when the ABCC was established on December 2 last year, by her own admission she had known for over a month about Hadgkiss’ “behaviour” (her word). Clearly Hadgkiss’ “behaviour” in preventing staff from making sure employers were given accurate information — information that was of benefit to unions seeking to meet with workers on-site — wasn’t consistent with the second APS value:  “The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.” Nor, for that matter, was Hadgkiss’ behaviour “impartial” or “professional”.

[‘Rule of law’ an optional extra for ABCC chief Nigel Hadgkiss]

After admitting last week she had known of Hadgkiss’ behaviour since October last year, Cash realised the spot this put her in, so she hastily began making a distinction between what she knew of the “allegations” against Hadgkiss by the CFMEU, and his later admission of a breach. This distinction was undermined by reporting in The Australian — not exactly a friend of the CFMEU — that, according to government sources, the government “knew what was going on” about Hadgkiss. And what action did Cash take in response to the “allegations” about Hadgkiss? After all, under section 28(c) of the act, she has the power to terminate the ABC Commissioner’s appointment “if the Commissioner fails to perform his or her functions with impartiality as between all categories of building industry participants”. Hadgkiss’ actions were a blatant example of partiality.

But Cash’s real defence is that she didn’t actually appoint Hadgkiss to the ABCC at all, thus getting her off the hook. Given the ABCC didn’t exist until December 2, how does that work? Cash is relying on the fact that the transitional provisions legislation that accompanied the ABCC Act provided that the director of the Fair Work Building Inspectorate — the predecessor body of the ABCC — continued in the new role of ABC Commissioner. So it wasn’t Cash who appointed Hadgkiss, but her predecessor Eric Abetz in 2013. QED.

[Not so funny anymore: Cash appointed Hadgkiss knowing of his behaviour]

But there are a couple of problems with that. One is an academic one: the actual wording of the transitional act as introduced by the government says that “the instrument appointing the person to that office has effect, after the transition time, as if it were an instrument made by the Minister under 9 subsection 21(1) of the new Act appointing the person” i.e. Hadgkiss’ rolled-over appointment was to be regarded as effectively as if he’d been appointed by Cash.

The other is that this was Cash’s legislation. She was responsible for it after the election; it was introduced into the House of Reps in August last year, then introduced into the Senate in November, by which point Cash knew of Hadgkiss’ behaviour. Cash led the debate at the end of November that resulted in the bill being significantly amended. A simple government amendment would have removed the automatic continuation of Hadgkiss’s appointment. Cash, despite knowing about Hadgkiss’ behaviour, chose not to do so.

If you believe Chuckles Cash, though, it was all Eric Abetz’s fault that she ended up putting on the ABCC a bloke who had broken the law and blatantly breached public service values. 

Peter Fray

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Editor-in-chief of Crikey

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