Sydney Barrister Robert Reitano has taken The Australian Financial Review to task for misrepresentation of the Government’s bill to abolish the ABCC, following an article in that paper on March 2, 2012. 

The Barrister’s letter is an important clarification to ensure fairness and accuracy in the debate about the bill, it is therefore reproduced here in full, with the Barrister’s permission.

ABCC does not have criminal role

Your “Plan to scrap ABCC irks industry” (March 2) serves to highlight the way in which media misstatement can be a powerful weapon deployed to resist reform of the current archaic and oppressive laws applying to the building industry.

Your article claims that the bill to abolish the ABCC would “prevent the new regulator from investigating a case, including a criminal case, if the employer and union have settled their dispute”. The statement entirely misrepresents the legal effect of the amendments. It gives a false impression of the role of the workplace inspectorate in the building industry.

The ABCC does not have the power to investigate or prosecute criminal matters. It enforces laws relating to workplace relations involving the imposition of civil penalties. The distinction between laws involving civil penalties and criminal laws is long-standing.

The ABCC has never had a role in criminal proceedings. It is misleading to suggest the new body proposed by the bill would be a “watered down” version of the ABCC because it has no criminal law enforcement role. It never had one to start with.

Your misstatement is made worse by referring to the specific amendments dealing with the settlement of proceedings. Those provisions deal with the settlement of a “building proceeding” which is defined in the bill as “a civil proceeding in relation to etc”. The amendments have nothing to do with limiting criminal proceedings on the basis of the resolution of a civil matter involving private litigants.

These matters are fundamental to informed debate about the Bill. If there is a need to strike a balance between the current draconian laws applying exclusively in the building industry and fairness, the rhetoric must, at least, descend to match the reality. It is unfortunate that some industry bodies, politicians and apparently now the media are intent on conducting the public argument about the ABCC as though it were a question of how best to stamp out criminality in the building industry. That has nothing to do with the real issues.

Robert Reitano Barrister Sydney NSW

[The letter was printed in the Australian Financial Review on Page: 57 Tuesday, 06 March 2012 ]

 The CFMEU wrote similarly to The Australian newspaper on February 22, 2012, following an article in that newspaper, also misstating the legal effect of the amendments. Neither the letter or a correction to the story  were published by The Australian.