Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT AMENDMENT (TRANSITION TO
FAIR WORK) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace
Relations, the Honourable Julia Gillard MP)
BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT AMENDMENT (TRANSITION TO
FAIR WORK) BILL 2009
OUTLINE
The Building and Construction Industry Improvement Amendment (Transition to
Fair Work) Bill 2009 (the Bill) would create a strong but fair set of
compliance arrangements for the building and construction industry.
The Bill implements the following reforms:
. it abolishes the Office of the Australian Building and Construction
Commissioner and creates a new agency, the Office of the Fair Work
Building Industry Inspectorate (the Building Inspectorate) to
regulate the building and construction industry;
. it removes the existing building industry specific laws that
provide:
- higher penalties for building industry participants for breaches of
industrial law, and
- broader circumstances under which industrial action attracts
penalties;
. it includes a capacity for the Director of the Building Inspectorate
to compulsorily obtain information (including through requiring a
person to attend an examination and answer questions) or documents
from a person whom the Director believes has information or
documents relevant to an investigation;
. it introduces the following safeguards in relation to the use of the
power to compulsorily obtain information or documents:
- use of the powers is dependent upon a presidential member of the
Administrative Appeals Tribunal being satisfied a case has been made
for their use,
- persons summonsed to interview may be represented by a lawyer of
their choice and their rights to refuse to disclose information on
the grounds of legal professional privilege and public interest
immunity will be recognised,
- people summonsed for examination will be reimbursed for their
reasonable expenses, including reasonable legal expenses,
- all examinations are to be videotaped and undertaken by the Director
or an SES officer,
- the Commonwealth Ombudsman will monitor and review all examinations
and provide reports to the Parliament on the exercise of this power,
and
- the powers will be subject to a five year sunset clause. The
decision on whether the coercive powers will be extended after five
years will be made following a review of their use and ongoing need;
. it creates an office, the Independent Assessor, who, on application
from stakeholders, may make a determination that the examination
notice powers will not apply to a particular project;
. it also retains the provisions that establish the Office of the
Federal Safety Commissioner and its related OHS Accreditation
Scheme.
Financial Impact Statement
The financial impact of the Bill is budget neutral.
NOTES ON CLAUSES
In these notes on clauses, the following abbreviations are used:
|FW Act |Fair Work Act 2009 |
|FWA |Fair Work Australia |
|FWO |Fair Work Ombudsman |
|NES |National Employment Standards |
|SES |Senior Executive Service employee |
|employee | |
|the Act |Building and Construction Industry Improvement Act |
| |2005 |
|the Bill |Building and Construction Industry Improvement |
| |Amendment (Transition to Fair Work) Bill 2009 |
|WR Act |Workplace Relations Act 1996 |
Clause 1 - Short title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The table in this clause sets out when the Bill's provisions commence.
Clause 3 - Schedule(s)
3. This clause provides that an Act that is specified in a Schedule is
amended or repealed as set out in that Schedule, and any other item in a
Schedule operates according to its terms.
Schedule 1 - Amendments
Building and Construction Industry Improvement Act 2005
Item 1 - Section 1
4. This item amends the title of the Act to reflect the new Fair Work
framework. The new title is the Fair Work (Building Industry) Act 2009.
5. This Bill is drafted as though all of the amendments to the Building and
Construction Industry Improvement Act 2005 proposed by the Fair Work
(State Referral and Consequential and Other Amendments) Bill 2009 have
been enacted.
Item 2 - Section 3
6. This item amends the object of the Act in section 3. The main object of
the Act is to provide a balanced framework for cooperative, productive
and harmonious workplace relations in the building industry. Section 3
provides for this to be achieved by:
. ensuring compliance with workplace relations laws by all building
industry participants;
. providing information, advice and assistance to all building
industry participants about their rights and obligations;
. providing an effective means of enforcing those rights and
obligations;
. providing appropriate safeguards on the use of enforcement and
investigative powers; and
. improving the level of occupational health and safety in the
building industry.
7. The object of the Act will have particular relevance to the role of the
Independent Assessor as set out in proposed Division 2 of Part 1 of
Chapter 7 of the Act. The Independent Assessor must have regard to the
object of the Act when considering whether to make a determination under
section 39(1) that section 45 (allowing the Director to make an
application to a nominated AAT presidential member for an examination
notice) does not apply in relation to one or more building projects.
Items 3 to 47 - Subsection 4(1)
8. These items amend the definitions in the Act as required because of
other amendments. These items insert new definitions of concepts
inserted by the Bill, including definitions of:
. AAT presidential member;
. Advisory Board;
. building matter;
. Commonwealth Ombudsman;
. Director;
. examination;
. examination notice;
. Fair Work Building Industry Inspector;
. Fair Work Inspector;
. Fair Work Ombudsman;
. Independent Assessor;
. inspector;
. investigation;
. lawyer;
. nominated AAT presidential member;
. Office;
. safety net contractual entitlement; and
. this Act
Item 48 - Subparagraph 5(1)(d)(iv)
9. This item amends the definition of building work to exclude a reference
to off-site pre-fabrication of made-to-order components. It is intended
that the amended definition will exclude manufacturing that takes place
in permanent off-site facilities and is separate from the building
project but that pre-fabrication of building components that takes place
on auxiliary or holding sites separate from the primary construction
site(s) will remain covered by the definition of building work.
Subsections (3) and (4) provide for the definition of building work to
include or not include activities prescribed by the regulations.
Item 49 - Chapter 2
10. This item repeals Chapter 2 of the Act and replaces it with new
sections 9 to 26M explained below.
Section 9 - Establishment
11. This section establishes the statutory office of the Director of the
Fair Work Building Industry Inspectorate.
Section 10 - Functions
12. Section 10 sets out the functions of the Director. The functions of the
Director are broadly similar to the functions of the FWO under the FW Act
but relate only to the building industry. While the functions of the FWO
do not exclude the building industry, it is expected that the FWO and the
Director will work co-operatively to ensure that the Director is solely
responsible for building industry matters and will carry out the full
range of the Director's functions in relation to the building industry.
13. A function of the Director is to promote harmonious, productive and
cooperative workplace relations in the building industry and compliance
with designated building laws and the Building Code by building industry
participants. A key aspect of this function is to assist building
industry participants to understand and comply with their rights and
obligations under designated building laws and the Building Code by
providing education, assistance and advice. Designated building laws
include the FW Act, the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 and industrial instruments made under
the WR Act and the FW Act.
14. Assisting building industry participants to understand and comply with
their rights and obligations under designated building laws and the
Building Code may involve:
. providing general information (e.g., fact sheets, guides and other
guidance materials);
. developing and implementing targeted education campaigns; and
. responding to requests for advice or information (e.g., on the
operation of the General Protections provisions in the FW Act).
15. It is also a function of the Director to monitor compliance with
designated building laws and the Building Code by building industry
participants. The Director also has the function of inquiring into and
investigating any suspected contraventions by a building industry
participant of a designated building law, a safety net contractual
entitlement or the Building Code. Inspectors would be able to exercise
various powers to investigate compliance. Part 2 of Chapter 7 sets out
the powers that inspectors have and when those powers may be exercised.
16. Safety net contractual entitlement is defined in subsection 4(1) as
having the same meaning as in the FW Act. The FW Act defines safety net
contractual entitlement in section 12 to mean an entitlement in a
contract of employment about any of the subject matters described in
subsections 61(2) or 139(1) of the FW Act. This includes, for example, a
contractual entitlement to wages in excess of minimum wages set out in a
modern award or enterprise agreement. It also includes a contractual
entitlement to paid parental leave. Inspectors may only investigate
contraventions of safety net contractual entitlements in certain
circumstances, as set out in subsection 706(2) of the FW Act. The
Director would also be able to apply for an examination notice in
relation to an investigation into a suspected contravention of a safety
net contractual entitlement subject to subsection 36A(2).
17. The Director will be able to commence proceedings in a court or make
applications to FWA (paragraph 10(d)) and may represent building industry
participants who are or may become parties to proceedings in a court or
to a matter before FWA under a designated building law where such
representation would promote compliance with designated building laws
(paragraph 10(f)).
18. It is also important that the Director be able to work with other
relevant law enforcement agencies including State and Territory
occupational health and safety authorities, police, the Australian Tax
Office, the Australian Securities and Investments Commission and the
Australian Competition and Consumer Commission. The Director may refer
matters to relevant authorities (paragraph 10(e)). The circumstances in
which the Director may disclose or authorise the disclosure of
information (other than information obtained under examination notices)
to relevant authorities is set out in section 64 of the Act. Section 65
of the Act sets out the treatment of information obtained under
examination notices.
19. The Director also has the function of disseminating information about
designated building laws and the Building Code. Information disseminated
by the Director can also include other matters that affect building
industry participants and can be disseminated by facilitating ongoing
discussions with building industry participants such as through an
industry forum.
20. The Director may make submissions or provide information to the
Independent Assessor in accordance with the Act. This will allow the
Director to make submissions to the Independent Assessor as provided for
in proposed subsection 41(1) or to provide any information requested by
the Independent Assessor under proposed subsection 41(2).
21. Any Act may also confer other functions on the Director (paragraph
10(i)).
Section 11 - Minister's directions
22. Section 11 permits the Minister to give general directions to the
Director about the Director's policies, programs and priorities and the
manner in which the powers and functions of the Director are exercised or
performed. For example, the Minister could direct the Director to focus
attention on serious rather than minor contraventions. The Minister
cannot make a general direction about a particular case.
23. Subsection 11(1) provides that directions given under this section are
legislative instruments for the purposes of the Legislative Instruments
Act 2003. This is consistent with the existing provisions dealing with
directions to the Australian Building and Construction Commissioner. The
effect of this provision is that any such directions will be required to
be lodged with the Federal Register of Legislative Instruments and tabled
in Parliament. Subsection 11(4) provides that directions given under
this section are disallowable in accordance with section 42 of the
Legislative Instruments Act 2003.
Section 12 - Minister may require reports
24. This section allows the Minister to direct the Director to provide
specific reports relating to the Director's functions and powers. For
example, the Minister may require a report on approaches to improving
compliance with fair work instruments in the building industry. As the
note to this section explains, any report provided under this section
must comply with the requirements in section 66 of the Act which restrict
the disclosure of information relating to an individual's affairs in a
report.
Section 13 - Delegation by the Director
25. Section 13 allows the Director to delegate his or her powers to a
member of staff of the Office of the Fair Work Building Industry
Inspectorate (the Office) or to an inspector. Despite this general rule,
the Director cannot delegate the following powers and functions:
. the Director's powers and functions as an inspector;
. application for an examination notice under section 45; and
. variation of the time for compliance with an examination notice
under subsections 50(3) and (4).
26. Subsection 13(3) permits the Director to delegate certain powers and
functions only to an SES staff member. These are the conduct of an
examination under subsection 51(2) and administering an oath or
affirmation at an examination under subsection 51(4).
27. The capacity to delegate most of the Director's powers and functions
will enable the staff of the Office and the inspectors to perform the
functions and exercise the powers that are necessary for the day to day
operation of the Office. For example, the Director may delegate the
notification to the Commonwealth Ombudsman of the issue of an examination
notice as required under proposed section 49.
28. Subsection 13(4) requires delegates of the Director to comply with any
directions of the Director. The Director must also publish details of
any delegations made.
Section 14 - Annual report
29. Section 14 requires the Director to produce an annual report at the end
of each financial year on the exercise and performance of the Director's
powers and functions during that year. The report would be presented to
Parliament. It is intended that the report would provide details on how
the Director has exercised the functions and powers conferred on him or
her under section 10. The Director would have discretion as to the
content of the report but certain information must be included in
accordance with subsection 14(2). The report must include details
relating to any directions given by the Minister under sections 11 and
12, delegations made by the Director under section 13 and recommendations
made to the Director by the Advisory Board.
30. Two notes refer readers to additional rules that must be considered by
the Director when producing the annual report. These additional rules
are provided by section 34C of the Acts Interpretation Act 1901 and
section 66 of the Act (disclosure of information relating to an
individual's affairs in a report).
Section 15 - Appointment
31. This section provides for the appointment of the Director. The
Director must be appointed by the Minister by written instrument. The
Director must be appointed on a full-time basis for a period of up to 5
years. Subsection 15(3) provides that the Minister cannot appoint a
person as Director unless satisfied that the person has suitable
qualifications and experience and is of good character. The Minister can
set terms and conditions for the Director's appointment that are not
covered by the Act.
Section 16 - Acting appointments
32. This section allows the Minister to appoint an Acting Director in
specified circumstances. The Acting Director will be able to exercise
all the powers and perform all the functions of the Director. Subsection
16(2) provides that the actions of a person purporting to act as the
Director would not be invalidated merely due to certain specified defects
or irregularities in connection with the appointment.
Section 17 - Remuneration
33. This section provides that the Director is to be paid the remuneration
determined by the Remuneration Tribunal. If the Remuneration Tribunal
has not made an applicable determination, the Director's remuneration
will be as prescribed in the regulations. The regulations may prescribe
allowances to be paid to the Director.
Section 18 - Leave of absence
34. This section provides that the Director's recreation leave entitlements
will be determined by the Remuneration Tribunal and that additional leave
of absence may be granted by the Minister on such terms and conditions as
the Minister determines.
Section 19 - Engaging in other paid employment
35. This section provides that the Director must not engage in paid
employment outside the duties of his or her position as Director without
the Minister's approval. Failure to comply with this requirement will
result in termination of the Director's appointment (see paragraph
22(2)(c)).
Section 20 - Disclosure of interests
36. This section requires the Director to give written notice to the
Minister of all material personal interests the Director has or acquires
that conflict or could conflict with the proper performance of his or her
functions. Failure to do so without reasonable excuse will result in
termination of the Director's appointment (see paragraph 22(2)(d)). This
is to ensure impartiality and avoid any actual or perceived conflicts of
interest.
Section 21 - Resignation
37. This section allows the Director to resign his or her appointment by
giving the Minister a written resignation. The resignation will take
effect on the day it is received by the Minister or on a later day as
specified in the resignation.
Section 22 - Termination
38. This section specifies the circumstances in which the Minister may or
must terminate the Director's appointment. This section reflects the
standard grounds for termination of appointments of statutory
officeholders. The Minister also has the power to suspend the Director's
appointment by virtue of section 33(4) of the Acts Interpretation Act
1901.
Part 2 - Fair Work Building Industry Inspectorate Advisory Board
39. This Part establishes the Fair Work Building Industry Inspectorate
Advisory Board and provides for its role, membership, the terms and
conditions of members and processes relating to the Advisory Board's
role.
Section 23 - Establishment
40. This section establishes the Fair Work Building Industry Inspectorate
Advisory Board.
Section 24 - Role
41. This section provides that the role of the Advisory Board is to make
recommendations to the Director. These recommendations are to be about:
. policies to guide the performance and exercise of the Director's
functions and powers;
. the priorities of and programs to be implemented by the Director;
and
. any matter that the Minister requests the Advisory Board to
consider.
42. For example, the Advisory Board could recommend that the Director focus
on compliance with superannuation obligations or deliver education
programs on rights of entry.
Section 25 - Membership
43. This section provides for the composition of the Advisory Board. As
well as the Director and the FWO, the Advisory Board may have up to 5
part-time members. At least one of the part-time members must have
experience or background in employee representation in the building
industry and at least one of the part-time members must have experience
or background in employer representation in the building industry.
Section 26 - Appointment of members
44. This section provides that the part-time members of the Advisory Board
are to be appointed by the Minister for a period of up to 3 years. The
note to this section explains that an Advisory Board member will be
eligible for reappointment by virtue of subsection 33(4A) of the Acts
Interpretation Act 1901.
45. Before a Minister can appoint a part-time member, the Minister must be
satisfied that the person has knowledge or experience in a relevant field
being workplace relations, law or business, industry or commerce.
Section 26A - Chair
46. This section provides for a Chair of the Advisory Board. The Minister
must appoint a member other than the Director or the FWO to be the Chair.
This section also provides for the appointment of an Acting Chair in
specified circumstances.
Section 26B - Remuneration of members
47. This section provides that members of the Advisory Board who are
appointed by the Minister will be paid remuneration as determined by the
Remuneration Tribunal. If the Remuneration Tribunal has not made an
applicable determination then the members of the Advisory Board will be
paid remuneration as prescribed by the regulations.
Section 26C - Leave of members
48. This section allows the Minister to grant the Chair a leave of absence
on terms and conditions as determined by the Minister. Leave of other
members is to be determined by the Chair. If the Chair grants a period
of leave to a member in excess of 6 months, the Chair must notify the
Minister.
Section 26D - Resignation of members
49. This section provides that members appointed by the Minister may resign
from the Advisory Board by written resignation. The resignation will
take effect on the day it is received by the Minister or on a later day
as specified in the resignation.
Section 26E - Termination of appointment
50. This section specifies the circumstances in which the Minister may or
must terminate the appointment of an Advisory Board member other than the
Director or the FWO. This section reflects the standard grounds for
termination of appointments of statutory officeholders.
Section 26F - Other terms and conditions
51. This section allows the Minister to set other terms and conditions of a
member's appointment in relation to matters not covered by the Act. This
section does not apply to the Director or the FWO.
Section 26G - Meetings
52. This section requires the Chair to convene at least 2 meetings of the
Advisory Board in each financial year. The Chair may convene additional
meetings if the Chair thinks it is necessary for the performance of the
Advisory Board's role. A meeting must also be held at the Director's
request.
53. Subsection 26G(2) provides that the quorum for a meeting of the
Advisory Board is the Chair, the Director and the FWO. This means that a
meeting of the Advisory Board may not proceed unless the quorum is
present. The Chair must preside at all meetings.
54. Under subsection 26G(3), questions arising from a meeting of the
Advisory Board will be decided by a majority of the votes of the members
present and voting. If there is an equality of votes the Chair will have
the casting vote.
Section 26H - Decisions without meetings
55. This section allows the Advisory Board to make a decision without a
meeting and provides rules for the making of such decisions.
Part 3 - Office of the Fair Work Building Industry Inspectorate
56. This Part deals with the establishment and staffing arrangements of the
Office of the Fair Work Building Industry Inspectorate.
Section 26J - Office of the Fair Work Building Industry Inspectorate
57. This section establishes the Office of the Fair Work Building Industry
Inspectorate.
Section 26K - Staff
58. This section provides that the staff of the Office of the Fair Work
Building Industry Inspectorate are to be persons engaged under the Public
Service Act 1999.
59. Subsection 26K(2) provides that the Director and the staff of the
Office together constitute a Statutory Agency for the purposes of the
Public Service Act 1999 and that the Director is the head of that
Statutory Agency.
60. Agency Heads have a number of functions under the Public Service Act
1999 in relation to the operations of their organisations, including
responsibility for staffing arrangements as an employer on behalf of the
Commonwealth and financial management.
Section 26L - Persons assisting the Director
61. This section allows the Director to be assisted by:
. employees of Agencies within the meaning of the Public Service Act
1999;
. officers and employees of a State or Territory;
. officers and employees of authorities of the Commonwealth, a State
or Territory.
62. The services of these persons may be made available to the Director in
connection with the performance of any of his or her functions.
63. This section ensures that the Director has the ability to draw upon the
skills, expertise and experience of these employees or officers to assist
in the performance of the Director's functions.
64. The note provides an example of how this may occur, for example, by
State or Territory governments offering or agreeing to make their
employees' services available to assist the Director in providing
education in a particular region. Another example of assistance that may
be provided could be responding to requests for advice or information
within a region.
Section 26M - Consultants
65. Section 26M allows the Director to engage persons as consultants to the
Director. Such persons must have suitable qualifications and experience
and would be engaged on terms and conditions as determined by the
Director.
Item 50 - Section 28
66. This item repeals existing section 28 of the Act. Section 28 provides
that building industry participants may be required, under threat of a
civil penalty, to provide a report on compliance with the Building Code
issued under the Act.
67. Inspectors or Federal Safety Officers will continue to be able to
investigate compliance with the Building Code using their powers under
the Act.
Item 51 - Chapters 5 and 6
68. The report 'Transition to Fair Work Australia for the Building and
Construction Industry' (the Wilcox Report) recommended that the
provisions of the FW Act governing the conduct of employers, employees
and industrial associations and penalties for contraventions of the FW
Act apply unchanged to building industry participants. The Government
accepted that recommendation. This item gives effect to that
recommendation by repealing the provisions dealing with unlawful
industrial action and other building industry-specific workplace
relations prohibitions.
Item 52 - Part 1 of Chapter 7
69. Part 1 of Chapter 7 deals with contraventions of civil remedy
provisions. As other amendments will repeal all existing civil remedy
provisions in the Act, these provisions are no longer required and are
therefore repealed by Item 52. This Part will be replaced with a new
Part relating to powers to obtain information. This Part contains
sections 36 to 58 as explained below.
Part 1 - Powers to obtain information etc.
Division 1 - Preliminary
Section 36 - Definitions
70. Section 36 defines the terms building project and interested person for
the purposes of this Part.
71. Building project is defined as a project that consists of, or includes
building work. Building work is defined in section 5 of the Act.
72. Interested person is defined as the Minister and any other persons
prescribed by the regulations.
Section 36A - Application of this Part
73. Section 36A sets out the types of investigations to which this Part
applies. This Part applies to an investigation by the Director into a
suspected contravention by a building industry participant of a
designated building law or a safety net contractual entitlement.
74. Subsection 36A(2) provides that the Director may only exercise powers
under this Part in relation to a suspected contravention by a building
industry participant of a safety net contractual entitlement if the
Director reasonably believes that the building industry participant has
contravened a provision or term referred to in subsection 706(2) of the
FW Act. Subsection 706(2) of the FW Act refers to the following:
. a provision of the NES;
. a term of a modern award;
. a term of an enterprise agreement;
. a term of a workplace determination;
. a term of a national minimum wage order;
. a term of an equal remuneration order.
75. The safety net contractual entitlement under investigation does not
need to be the same subject matter as the statutory entitlement listed
above.
Division 2 - Role of the Independent Assessor
Subdivision A - Establishment and appointment etc. of the Independent
Assessor
Section 36B - Establishment
76. This section establishes the statutory office of the Independent
Assessor - Special Building Industry Powers.
Section 36C - Functions and powers
77. This section provides that the Independent Assessor has the functions
and powers conferred on him or her by or under this Act.
Section 36D - Minister may require reports
78. This section allows the Minister to direct the Independent Assessor to
provide specific reports relating to the Independent Assessor's functions
and powers. For example, the Minister could require a report about the
numbers and types of applications being received by the Independent
Assessor.
Section 37 - Appointment
79. This section provides for the appointment of the Independent Assessor.
The Independent Assessor must be appointed by the Governor-General by
written instrument. The Independent Assessor must be appointed on a part-
time basis for a period of up to 5 years. Subsection 37(3) provides that
the Minister must be satisfied that the person has suitable
qualifications and experience and is of good character before the
Governor-General can appoint the person as the Independent Assessor. The
Governor-General can set terms and conditions for the Independent
Assessor's appointment that are not covered by the Act.
Section 37A - Acting appointments
80. This section allows the Minister to appoint an Acting Independent
Assessor in specified circumstances. The Acting Independent Assessor
will be able to exercise all the powers and perform all the functions of
the Independent Assessor. Subsection 37A(2) provides that the actions of
a person purporting to act as the Independent Assessor would not be
invalidated merely due to certain specified defects or irregularities in
connection with the appointment.
Section 37B - Remuneration
81. This section provides that the Independent Assessor is to be paid the
remuneration determined by the Remuneration Tribunal. If the
Remuneration Tribunal has not made an applicable determination, the
Independent Assessor's remuneration will be as prescribed in the
regulations. The regulations may prescribe allowances to be paid to the
Independent Assessor.
Section 37C - Leave of absence
82. This clause provides that the Independent Assessor's recreation leave
entitlements will be determined by the Remuneration Tribunal and that
additional leave of absence may be granted by the Minister on such terms
and conditions as the Minister determines.
Section 37D - Engaging in other paid employment
83. This section provides that the Independent Assessor must not engage in
any paid employment that conflicts or may conflict with the proper
performance of the Independent Assessor's functions. Failure to comply
with this requirement will result in termination of the Independent
Assessor's appointment (see paragraph 37G(2)(c)).
Section 37E - Disclosure of interests
84. This section requires the Independent Assessor to give written notice
to the Minister of all material personal interests the Independent
Assessor has or acquires that conflict or could conflict with the proper
performance of his or her functions. Failure to do so without reasonable
excuse will result in termination of the Independent Assessor's
appointment (see paragraph 37G(2)(d)). This is to ensure impartiality
and avoid any actual or perceived conflicts of interest.
Section 37F - Resignation
85. This section allows the Independent Assessor to resign his or her
appointment by giving the Governor-General a written resignation. The
resignation will take effect on the day it is received by the Governor-
General or on a later day as specified in the resignation.
Section 37G - Termination
86. This section specifies the circumstances in which the Governor-General
may or must terminate the Independent Assessor's appointment. This
section reflects the standard grounds for termination of appointments of
statutory officeholders.
Subdivision B - Determinations by Independent Assessor
Section 38 - Application of this Subdivision
87. This section provides that the Independent Assessor can only exercise
his or her powers if building work on the project begins on or after the
commencement of this Subdivision. This means that determinations under
section 39(1) may not be made in relation to a building project where
building work has already started before the commencement of the Bill.
Section 39 - Independent Assessor may determine that powers to obtain
information do not apply in relation to particular building project
88. This section allows the Independent Assessor to determine that section
45 does not apply in relation to a particular building project. Section
45 allows the Director to apply to a nominated AAT presidential member
for an examination notice.
89. The effect of a determination would be to prevent the Director from
making such an application. It would also prevent a nominated AAT
presidential member from issuing an examination notice if a determination
has been made in relation to a particular building project to which the
investigation is connected.
90. A determination made under subsection 39(1) can apply in relation to
more than one building project. The Independent Assessor can only make a
determination if there has been an application in accordance with
proposed section 40. There is no capacity for the Independent Assessor
to act on his or her own motion.
91. A note to subsection 39(1) directs readers to subsection 33(3) of the
Acts Interpretation Act 1901 which gives the Independent Assessor the
power to vary or revoke a determination after it is made. The Director
may make an application to the Independent Assessor under section 43 to
request the Independent Assessor to reconsider the decision.
92. Subsection 39(3) provides that the Independent Assessor must be
satisfied that it would be appropriate to make the determination before
he or she can make a determination under subsection 39(1). The
Independent Assessor must have regard to the object of the Act and any
matters prescribed by the regulations when considering whether he or she
is satisfied that it would be appropriate to make a determination.
Matters prescribed by the regulations might include, for example, a
demonstrated record of compliance with workplace relations laws,
including court or tribunal orders, in connection with the building
project. The Independent Assessor must also be satisfied that it would
not be contrary to the public interest to make a determination.
93. A determination made under subsection 39(1) is not a legislative
instrument within the meaning of section 5 of the Legislative Instruments
Act 2003. This provision is merely declaratory of the law and is
included to assist readers. It does not amount to an exemption from the
Legislative Instruments Act 2003.
Section 40 - Interested person may apply for determination
94. This section sets out who may apply for a determination under
subsection 39(1) and how and when an application may be made.
95. An application for a determination under subsection 39(1) may be made
by an interested person, or by two or more interested persons acting
jointly. Section 36 defines interested person to be the Minister and any
other person prescribed by the regulations. An application must state
the grounds on which it is made and be in the form prescribed by the
regulations if there is a prescribed form. The regulations may also
provide for any other information to be included.
96. Subsections 40(3) and (4) provide that an application for a
determination may relate to more than one building project and may be
made at any time before or after the building project has commenced or
after it has been completed. This means that applications may be made in
relation to future or proposed building projects or projects that have
finished.
97. Subsection 40(5) prevents an interested person from making repeated
applications in relation to the same building project on the same grounds
where there is no new information.
Section 41 - Consideration of application for determination
98. Section 41 provides rules for the Independent Assessor's consideration
of an application for a determination.
99. The Independent Assessor must give the Director a copy of any
application that is made and must give the Director a reasonable
opportunity to make submissions in relation to the application. This is
because the Director may have information that may be relevant to the
Independent Assessor's decision in relation to the application. For
example, the Director may inform the Independent Assessor that the Fair
Work Building Industry Inspectorate is investigating a number of
suspected contraventions of designated building laws in connection with
the relevant building project.
100. The Independent Assessor will also have the capacity under subsection
41(2) to request further information from the applicant or from the
Director in relation to the application. The Independent Assessor has
the capacity to request information from the Director so that the
Independent Assessor may obtain any relevant information even where the
Director either decides not to make a submission in relation to the
application as provided for in paragraph 41(1)(b) or the information in
question was not contained in the submission. Any further information
given will need to be taken into account by the Independent Assessor when
making his or her decision (see subsection 41(4)) along with the
information provided in the application and any submissions made by the
Director.
101. The applicant and the Director must be informed of the decision by the
Independent Assessor as soon as practicable after it is made.
Section 42 - Publication and period of effect of determination
102. Section 42 requires the Independent Assessor to give a copy of any
determinations made to the Director and to the applicant and to publish
determinations in the Gazette. The Independent Assessor must do this as
soon as practicable after making a determination.
103. A determination takes effect on the day on which it is published in
the Gazette.
Section 43 - Director may request Independent Assessor to reconsider
determination
104. This section allows the Director to request the Independent Assessor
to reconsider a determination he or she made under subsection 39(1).
105. It is not intended that this section apply only where the Director
believes that the Independent Assessor made an incorrect decision. It
will also apply where the Director believes that there has been a change
in the underlying circumstances relating to the building project such
that the criteria that were satisfied at the time of the Independent
Assessor's original decision to make a determination are no longer
satisfied. In reconsidering the determination, the Independent Assessor
will only have regard to the same criteria that he or she was required to
have regard to under subsection 39(3) when making the determination.
106. The Director may make a request to reconsider a determination at any
time after the determination is made. The request must set out the
reasons for the request and must be in writing.
107. Subsection 43(3) provides that, if the Director makes a request to the
Independent Assessor to reconsider the determination, the Independent
Assessor must reconsider the determination and make a determination
either affirming or revoking the decision, or varying it as appropriate.
108. As soon as practicable after the Independent Assessor makes such a
determination, the Independent Assessor must give written notice of the
determination to both the Director and the applicant for the original
determination and arrange for a copy of any determination revoking or
varying the original determination to be published in the Gazette.
109. A determination revoking or varying the original determination takes
effect on the day on which it is published (see subsection 43(6)).
However, where no determination is in force, the Director may apply to a
nominated AAT presidential member for the issue of an examination notice
for the purpose of investigating suspected contraventions of designated
building laws regardless of when the suspected contravention occurred
(see subsection 45(2)).
Division 3 - Examination notices
Section 44 - Minister may nominate AAT presidential members to issue
examination notices
110. This section deals with the process for AAT presidential members to be
nominated to issue examination notices.
111. Subsection 44(1) provides that the Minister may, by writing, nominate
an AAT presidential member to issue examination notices.
112. However, if the presidential member is a Judge then subsection 44(2)
provides that a nomination may only be made if he or she consents to the
nomination in writing.
113. Subsection 44(3) sets out when a nomination ceases to have effect.
114. Subsection 44(4) provides that a nominated presidential member will
have the same protection and immunity in relation to issuing an
examination notice as a High Court Justice has in relation to High Court
proceedings.
Section 45 - Director may apply to nominated AAT presidential member for
examination notice
115. This section sets out when and how the Director may apply for an
examination notice.
116. Subsection 45(1) provides that the Director may only apply for a
notice if he or she believes on reasonable grounds that a person has
information or documents or is capable of giving evidence relevant to an
investigation. An application for an examination notice must be in
writing.
117. An examination notice may require a person to either give information
or produce documents to the Director or appear before the Director and
answer questions relevant to the investigation.
118. Subsection 45(2) provides that the Director may not make an
application for an examination notice in relation to an investigation if
the investigation is connected with a building project in relation to
which a determination of the Independent Assessor is in force under
subsection 39(1).
119. Subsection 45(3) enables regulations to prescribe both a form for the
application and additional information that may be required beyond that
set out in subsection 45(5).
120. An application for an examination notice may only relate to one person
(subsection 45(4)). This does not prevent the Director from making
simultaneous or later separate applications in relation to other persons
in regard to the same investigation.
121. An application may be made to examine a person, or require them to
produce information or documents, in relation to more than one
investigation. In these circumstances the pre-requisites for granting a
notice would need to be satisfied in relation to each investigation.
Subsection 47(4) enables the presidential member, in dealing with such an
application, to issue a notice only in relation to the particular
investigation(s) where those pre-requisites are satisfied.
122. The matters that must be covered in the application are set out in
subsection 45(5). It provides that the application must be accompanied
by an affidavit. As well as the mandatory matters set out in this
subsection, the Director would also be expected, when making an
application, to take into consideration the factors of which the
presidential member must be satisfied in order to issue a notice (see
subsection 47(1)).
123. Consistent with the use of this power as a last resort, the
application must set out what alternative methods have been attempted to
obtain the information, documents or evidence (paragraph 45(5)(e)).
124. Paragraphs 45(5)(f) and (g) ensure that the presidential member is
aware of other applications or likely applications relevant to the
investigation(s). The Director must disclose if there have been any
previous applications in relation to the person and the same
investigation(s) and if any other applications have been, or are likely
to be, made in relation to the same investigation. These factors are
included as they may be a relevant consideration for the presidential
member in determining whether it is appropriate in all of the
circumstances to issue a notice (see paragraph 47(1)(f)).
125. A presidential member may request further information in relation to
the application. The Director must provide that information in writing
and as soon as practicable after receiving the request.
Section 46 - Sunset provision
126. This section implements the Wilcox Report recommendation that the
compulsory examination power be subject to a sunset clause. It provides
that an application for an examination notice may not be made after the
end of 5 years after the day on which proposed section 45 commences. It
is intended that, before the end of that period, the Government would
undertake a review into whether the compulsory examination powers
continue to be required.
Section 47 - Issue of examination notice
127. This section sets out the factors that the AAT presidential member
must consider when determining an application. These factors include
that the presidential member must be satisfied that:
. the investigation is not connected with a building project in
relation to which a determination under subsection 39(1) is in
force;
. there are reasonable grounds to believe the person has information
or documents or is capable of giving evidence relevant to the
investigation;
. all other methods of obtaining the material or evidence have been
tried or were not appropriate;
. the information or evidence would be likely to be of assistance to
the investigation; and
. it would be appropriate, having regard to all of the circumstances,
to issue the examination notice.
128. The requirement to be satisfied that it is appropriate in all of the
circumstances is intended to ensure that the presidential member takes
into account all of the relevant circumstances when making a decision as
to whether the issue of an examination notice is warranted. These could
include whether the alleged breach is sufficiently serious or whether
being required to comply with a notice would have an undue impact on the
person.
129. Paragraph 47(1)(g) allows regulations to prescribe additional matters
for the presidential member to be satisfied of before issuing a notice.
130. Subsection 47(2) ensures that a notice could only be issued in
accordance with subsection 47(1). This means that the notice could only
be issued on application and when the presidential member is satisfied of
each of the criteria set out in paragraphs 47(1)(a) -(g) and could not be
made in any other circumstances.
131. Subsection 47(3) makes clear that an examination notice may be issued
in relation to more than one investigation but must not be issued to more
than one person. This does not prevent separate notices being issued to
other persons in relation to the same investigation(s).
132. Subsection 47(4) deals with situations where a notice is sought
against a person in relation to multiple investigations and the
requirements of subsection 47(1) are not met with respect to each of the
investigations. It provides that the presidential member must issue a
notice in relation to each investigation where those requirements are
met. This will ensure that an application relating to multiple
investigations is not dismissed because the legislative criteria are not
satisfied in relation to one investigation.
133. A decision by the presidential member to issue or not issue an
examination notice will, like all decisions under the Act, be exempt from
the Administrative Decisions (Judicial Review) Act 1977.
Section 48 - Form and content of examination notice
134. Section 48 sets out what must be included in an examination notice.
135. A form for the examination notice will be prescribed by the
regulations. The regulations may also prescribe additional information
to be contained in the notice.
Section 49 - Director must notify Commonwealth Ombudsman of issue of
examination notice
136. This section is a machinery provision relating to the monitoring of
the use of the examination power by the Commonwealth Ombudsman. It
requires the Director to notify the Ombudsman that a notice has been
issued as soon as practicable after the notice has been issued and
provide the Ombudsman with a copy of the notice and the material provided
to the presidential member to support the application.
Section 50 - Director may give examination notice to person in relation to
whom it is issued and vary time for compliance
137. Section 50 provides that the Director is responsible for giving to the
relevant person the examination notice issued by the nominated AAT
presidential member.
138. The Director has discretion not to give the notice to the relevant
person as it would be open to the Director to decide that,
notwithstanding that a notice was issued, he or she did not wish to
proceed with the examination. If the Director does not give a notice
within three months of it being issued by the nominated AAT presidential
member, the notice ceases to have effect (subsection 50(2)). This is to
ensure that notices are only given in circumstances where the nominated
AAT presidential member has had regard to contemporary information about
all of the relevant circumstances.
139. The Director will also have the power to vary the time at which a
person is required to attend or provide documents (subsections 50(3)-
(5)). The Director must vary the time if they give an examination notice
to a person and the time in that notice is less than 14 days after the
notice was given (for example, because the Director experienced
difficulties in giving the notice). The Director may also, at any time
after giving a notice, vary the time. In both circumstances, the new
time must be at least 14 days after the examination notice is given to
the person.
140. This power is necessary to ensure that the person is given at least 14
days notice of their requirement to attend as well as providing
flexibility to set an alternate time or date such as where it is
desirable to accommodate the wishes of the person subject to the notice.
141. Subsection 50(6) provides that, if notice of a later time is given,
the examination notice has effect as if the later time was the time
specified in the notice.
142. Subsection 50(7) provides that, if the Director varies the time for
compliance with an examination notice, the Director must give a copy of
the notice as varied to the Commonwealth Ombudsman as soon as
practicable. This is to assist the Commonwealth Ombudsman to review and
report on the exercise of the Director's powers to obtain information as
provided for in proposed section 54A.
Section 51 - Conduct of examination etc
143. This section sets out the rules for when a person is required to
attend before the Director and answer questions.
144. Subsection 51(1) provides that this is to be called an examination.
145. The Director is required to conduct the examination (subsection
51(2)). This power may be delegated, but only to an SES employee in the
Office of the Fair Work Building Industry Inspectorate. This means that
the Director or SES employee would be the person questioning the person
being examined.
146. A person who is being examined will be entitled to be represented at
the examination by a lawyer of the person's choice (subsection 51(3)).
The reference to a lawyer of "the person's choice" is intended to make
clear that there is no express or implied power on the part of the
Director to refuse a person representation by a particular lawyer because
that lawyer has represented or is also representing another person who
has been examined. This subsection is intended to displace the decision
in Bonan v Hadgkiss (Deputy Australian Building and Construction
Commissioner) [2006] FCA 1334 which held that there was a discretionary
power under the examination provisions in the existing Act to exclude a
particular legal practitioner from appearing or acting at an examination.
147. Subsections 51(4) and (5) provide that the Director may require
information or answers to be given on or verified by oath or affirmation.
As it is possible for an SES employee to conduct the examination under a
delegation, this power may also be delegated to an SES employee (see
paragraph 13(3)(b)).
148. Subsection 51(6) provides that the Director cannot require a person to
give an undertaking not to disclose information or answers given at the
examination or to discuss matters relating to the examination with any
other person. This will mean, for example, that a person cannot be
prevented from discussing their experiences at the examination with
family members.
Item 53 - Part 2 of Chapter 7 (heading)
Item 54 - Division 1 of Part 2 of Chapter 7 (heading)
149. Items 53 and 54 delete the headings of Part 2 and Division 1 of Part 2
of Chapter 7 as a consequence of inserting new Part 1 of Chapter 7.
Item 55 - Section 52
150. This item repeals existing section 52 and replaces it with a new
section that creates an offence of failing to comply with an examination
notice.
151. Subsection 52(1) effectively replicates existing subsection 52(6) by
making it an offence to fail to comply with requirements imposed by an
examination notice to produce documents, information or attend to answer
questions. It is also an offence to fail to take an oath or affirmation
when required to do so or to refuse to answer questions relevant to the
investigation when being examined.
152. As with existing subsection 52(6), the penalty for this offence is a
maximum of 6 months imprisonment. A note refers to the fact that,
pursuant to the Crimes Act 1914, a court may impose a maximum fine of 30
penalty units (currently $3 300) instead of, or in addition to, a term of
imprisonment.
153. Subsection 52(2) provides an exemption from the general requirement to
provide information or answer questions if the person would be required
to disclose information that is subject to either legal professional
privilege or would be protected by public interest immunity.
Item 56 - Section 53(1)
Item 57 - Paragraph 53(1)(b)
Item 58 - Paragraph 53(1)(c)
Item 59 - Paragraph 53(2)(c)
Item 60 - Section 54
154. These items make a number of amendments consequential to amendments
made by item 55.
155. Items 56 and 60 replace references to section 52 with references to
'examination notice'.
156. Item 58 repeals paragraph 53(1)(c). This paragraph currently provides
that a person is not excused from giving information, producing a
document or answering questions on the ground that it would be otherwise
contrary to the public interest to do so. This paragraph is no longer
required given the express recognition of public interest immunity in
proposed subsection 52(2).
157. The other items make necessary technical amendments.
Item 61 - After section 54
158. This item inserts a new section 54A dealing with requirements relating
to the oversight of examination notices by the Commonwealth Ombudsman.
159. Subsections 54A(1) and (2) require the Director to provide certain
material to the Ombudsman as soon as practicable after an examination has
been completed. This material consists of:
. a report, which must include a copy of the relevant examination
notice, the time and place at which the interview was conducted and
the name of each person who was present;
. a video recording of the examination; and
. a transcript of the examination.
160. The requirement to provide material to the Ombudsman in subsections
54A(1) and (2) relates only to an examination of a person in accordance
with an examination notice. It does not relate to an examination notice
requiring the person to produce documents or information. This is
because the information that must be provided to the Ombudsman under
subsections 54A(1) and (2) is only relevant to an examination of a person
and not where a person is required to produce documents or give
information. The h Ombudsman will be given a copy of all examination
notices, including those that require a person to produce documents or
give information, in accordance with proposed section 49.
161. Subsection 54A(3) requires the Ombudsman to review the exercise of
powers under this Division by the Director or by any person assisting the
Director. The Ombudsman's review may extend to the exercise of the
Director's powers relating to examination notices requiring a person to
produce documents, give information or attend before the Director to
answer questions.
162. Subsection 54A(3) also enables the Ombudsman to do anything incidental
or conducive to the performance of his or her review function. This
could include, for example, requesting further information from the
Director in relation to proceedings commenced or applications made in
relation to a person who was the subject of an examination notice.
163. Proposed subsection 54A(4) allows the Ombudsman to use the same powers
he or she has when conducting a review under the Ombudsman Act 1976 in
relation to a review under this section.
164. The Ombudsman must prepare a report as soon as practicable after the
end of each financial year on examinations conducted during that year
(see subsection 54A(6)). The report must include the results of reviews
conducted under this section during the year but can also include any
other information that the Ombudsman considers appropriate. The
Ombudsman must present the report to the Parliament.
165. The Ombudsman may also provide additional reports about the results of
reviews conducted under this section to the Parliament at other times if
he or she considers it appropriate. This is intended to allow the
Ombudsman to deal with any significant concerns he or she may have about
a particular examination or examinations without having to wait for the
mandatory annual report.
Item 62 - Subsection 55(1)
Item 63 - Section 55(1)
Item 64 - Paragraphs 55(2)(a) to (d)
Item 65 - Subsection 55(4)
Item 66 - Section 56
Item 67 - Section 56
166. These items generally make a number of amendments to sections 55 and
56 that are consequential to amendments made by other items, namely the
replacement of the position of ABC Commissioner with the Director. Items
63 and 67 replace references to section 52 with references to 'an
examination notice'.
Item 68 - At the end of Division 1 of Part 2 of Chapter 7
167. This item inserts new sections 57 and 58.
Section 57 - Secrecy provisions
168. Section 57 provides that the Director's powers to obtain information
are not limited by any secrecy provision in any other law unless a
secrecy provision expressly excludes the operation of this section. This
applies to laws enacted both before and after the commencement of this
section.
169. Secrecy provision is defined to mean a provision that prohibits the
communication or divulging of information.
170. The Director may only obtain information relevant to an investigation.
Section 58 - Payment for expenses incurred in attending an examination
171. Section 58 provides that a person who attends an examination as
required by an examination notice is entitled to payment for reasonable
expenses incurred by the person in attending the examination. Reasonable
expenses will cover matters such as travel and accommodation expenses as
well as legal expenses.
172. The method for calculating the fees and allowances a person may be
paid will be prescribed by the regulations. A person will only be
entitled to reasonable expenses. To that end, the regulations may
prescribe maximum amounts that are payable in relation to legal, travel
or accommodation expenses rather than guaranteeing payment of all
expenses actually incurred by a person.
173. Subsection 58(2) sets out the process for seeking the payment of
expenses. The person must apply in writing to the Director within 3
months of the examination being completed and provide sufficient evidence
to establish that he or she incurred the expenses.
174. Subsection 58(3) provides that regulations may be made to set out a
particular form for the application or require additional information
that must be provided.
Item 69 - Division 2 of Part 2 of Chapter 7
175. This item repeals Division 2 of Part 2 of Chapter 7 of the Act (which
dealt with the powers of ABC Inspectors) and replaces it with new
sections 59 - 59G, which provide for the appointment and powers of Fair
Work Building Industry Inspectors.
Part 2 - Fair Work Building Industry Inspectors
Division 1 - Appointment
Section 59 - Appointment
176. Section 59 permits the Director to appoint such Fair Work Building
Industry Inspectors (inspectors) as are necessary from time to time. The
Director may only appoint persons who have been appointed, or are
employed, by the Commonwealth or by a State or Territory. This would
include members of a State or Territory police force. Inspectors are
authorised to perform certain functions and have certain powers whilst
they are inspectors.
177. In order for a person to be appointed as an inspector, the Director
must be satisfied that the person is of good character (subsection
59(2)).
178. An inspector is appointed for a period of up to four years as
specified in the instrument of appointment. (subsection 59(3)).
179. A person may be re-appointed as an inspector. A note to this
subsection alerts the reader that subsection 33(4A) of the Acts
Interpretation Act 1901 which provides that the power in an Act to
appoint includes a power to re-appoint.
Section 59A - Director is an inspector
180. Section 59A provides that the Director is an inspector. This
provision avoids the need for the Director to appoint himself or herself
as an inspector and authorises the Director to perform the functions and
exercise the powers of inspectors.
Section 59B - Identity cards
181. Subsection 59B(1) requires the Director to issue an identity card to
an inspector. The Minister would be required to issue the Director with
an identity card (subsection 59B(2)). Subsection 59B(3) would provide
that the identity card is to be in the form approved by the Director and
must contain a recent photograph of the inspector.
182. Subsection 59B(4) requires an inspector to carry his or her identity
card at all times when performing functions or exercising powers as an
inspector. In the ordinary course of performing those functions or
exercising those powers, inspectors would be expected to show their
identity card to identify themselves. An inspector will be required to
show his or her identity card in particular circumstances This arises
because inspectors will have the same powers and functions and be subject
to the same conditions as Fair Work Inspectors under the FW Act. These
conditions would include subsection 708(3), which imposes a requirement
to show an identity card before or as soon as practicable after enter
premises .
183. Subsection 59B(5) creates an offence of not returning an identity card
to the Director (in the case of an inspector) or the Minister (in the
case of the Director) within 14 days of a person ceasing to be an
inspector. Identity cards must be returned as soon as practicable after
an inspector ceases to be an inspector (e.g., the inspector's appointment
ends) in order to prevent the improper use of such cards. The penalty
for committing the offence is one penalty unit.
184. Subsection 59B(6) provides that the offence is one of strict
liability. It is appropriate that this offence is one of strict
liability because of the consequences of a person who is not an inspector
misusing an identity card (e.g., unauthorised exercise of statutory
powers, including entry to premises without consent).
185. Subsection 59B(6) includes a note referring to section 6.1 of the
Criminal Code, which provides that there is no fault element for the
physical element of the offence (ie the failure to return the identity
card), and that the defence of mistake of fact is available in relation
to the physical element of the offence (e.g., the former inspector did
not know that the inspector's appointment had ceased).
186. Subsection 59B(7) provides that subsection 59B(5) does not apply if
the identity card was lost or destroyed. A note alerts the reader that
the defendant bears an evidential burden in relation to this defence in
accordance with subsection 13.3(3) of the Criminal Code.
Division 2 - Powers
Section 59C - Inspectors' powers under Fair Work and other Acts
187. Proposed section 59C provides that an inspector has the same functions
and powers as a Fair Work Inspector but may perform those functions and
exercise those powers only in relation to building matters and subject to
such conditions and restrictions as are specified in the inspector's
instrument of appointment. This ensures that an inspector would have,
for example, the same functions and powers of a Fair Work Inspector under
the FW Act and also under the Independent Contractors Act 2006 and the
Fair Work (Transitional Provisions and Consequential Amendments) Act
2009.
188. Subsection 59C(3) provides that a matter is a building matter if it
relates to a building industry participant. Building industry
participant is defined in subsection 4(1) to mean:
. a building employee;
. a building employer;
. a building contractor;
. a person who enters into a contract with a building contractor under
which the building contractor agrees to carry out building work or
to arrange for building work to be carried out;
. a building association;
. an officer, delegate or other representative of a building
association;
. an employee of a building association.
189. Subsection 59C(4) provides that, for the purposes of the performance
and exercise of the functions and powers of an inspector in relation to a
building matter, an Act has effect as if a reference to a Fair Work
Inspector were a reference to an inspector and a reference to the FWO
were a reference to the Director.
190. Section 59C therefore has the effect of ensuring that, in relation to
building matters, an inspector may, for example:
. make applications to FWA in relation to persons who hold entry
permits for the purpose of exercising rights of entry under Part 3-4
of the FW Act (see sections 507 and 508 of the FW Act);
. make applications to FWA to deal with a dispute about the operation
of Part 3-5 of the FW Act, which deals with stand down (see section
526 of the FW Act);
. make applications for orders in relation to contraventions of civil
remedy provisions contained in the FW Act (see section 539 of the FW
Act);
. make applications for orders in relation to safety net contractual
entitlements (see section 541 of the FW Act);
. exercise compliance powers for one or more compliance purposes as
set out in section 706 of the FW Act (including determining whether
the FW Act or a fair work instrument has been or is being complied
with or whether a safety net contractual entitlement has been
contravened);
. issue compliance notices where the inspector reasonably believes
that a person has contravened one or more instruments as listed in
section 716 of the FW Act.
191. The compliance powers that could be exercised by an inspector would be
the same as those that could be exercised by a Fair Work Inspector and
would include:
. entering premises in accordance with section 708 of the FW Act;
. exercising certain powers while on premises in accordance with
section 709 of the FW Act;
. asking for a person's name or address in accordance with section 711
of the FW Act;
. requiring persons to produce records or documents in accordance with
section 712 of the FW Act;
. keeping records or documents in accordance with section 714 of the
FW Act.
192. In addition, section 59C ensures that an inspector may be assisted by
a person in accordance with section 710 of the FW Act in the same way as
a Fair Work Inspector may be assisted by a person. Similarly, section
713 of the FW Act protects a person required to provide a record or a
document to an inspector that might tend to incriminate the person or
expose the person to a penalty in the same way as that section applies to
a person required to provide such records or documents to a Fair Work
Inspector.
193. Subsection 59C(5) clarifies that any directions given by the FWO to
Fair Work Inspectors under sections 704 and 705 do not apply to Fair Work
Building Industry Inspectors.
Section 59D - Director's powers under Fair Work Act
194. Subsection 59D(1) provides that the Director may accept a written
undertaking in relation to a building matter in the same way that the
Fair Work Ombudsman may accept written undertakings under section 715 of
the FW Act.
195. Subsection 59D(2) makes clear that the Director's power to accept
written undertakings is in addition to the powers that the Director has
by virtue of the Director's appointment as an inspector and the operation
of proposed section 59C.
Section 59E - Inspectors' power to monitor compliance with Building Code
196. Subsection 59E(1) requires inspectors to monitor compliance with any
Building Code issued under Chapter 3 of the Act.
197. Subsection 59E(2) ensures that an inspector has the same powers for
monitoring compliance with the Building Code that the inspector would
have if the Building Code were a fair work instrument. This would mean
that, for the purpose of monitoring compliance with the Building Code, an
inspector could, for example:
. enter premises in accordance with section 708 of the FW Act; and
. exercise powers while on premises in accordance with section 709 of
the FW Act.
Section 59F - General directions by the Director
198. Section 59F provides that the Director may give a written direction to
inspectors relating to the performance of their functions or the exercise
of their powers as inspectors. The direction must be of a general
nature. For example, the Director could direct inspectors to comply with
investigation or litigation protocols that would apply to all matters.
An inspector would be required to comply with these directions. This
will ensure a consistent approach to the way that powers of inspectors
are exercised or functions of inspectors are performed.
199. Written directions given by the Director under this section will be
legislative instruments for the purposes of the Legislative Instruments
Act 2003. The effect of this provision is that any such directions will
be required to be lodged with the Federal Register of Legislative
Instruments and tabled in Parliament.
Section 59G - Particular directions by the Director
200. Section 59G provides that the Director may give a direction to a
particular inspector about the performance of that inspector's functions
or the exercise of that inspector's powers. For example, the Director
could direct an inspector to prepare an internal report about a
particular matter or to pursue or discontinue litigation. An inspector
must comply with these directions.
201. A particular direction given under subsection 59G(1), whether given in
writing or otherwise, will not be a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003. This
provision is merely declaratory of the law and is included to assist
readers. It does not amount to an exemption from the Legislative
Instruments Act 2003.
Item 70 - Division 3 of Part 2 of Chapter 7 (heading)
202. This item repeals the heading to Division 3 of Part 2 of Chapter 7 and
replaces it with headings to new Part 3 (Federal Safety Officers) and to
new Division 1 (Appointment).
Item 71 - Before section 62
203. This item inserts a new division (Division 2) and a new heading to
that division (Powers).
Item 72 - Subsection 62(14)
Item 73 - Subsection 63(14)
204. These items repeal subsections 62(14) and 63(14). This is because
refusing or unduly delaying entry to premises by a Federal Safety Officer
exercising powers under sections 62 or 63 would fall within the scope of
section 149.1 of the Criminal Code which deals with obstruction of
Commonwealth public officials. The offence is subject to a maximum
penalty of imprisonment for 2 years.
Item 74 - Section 64
205. This item repeals section 64 and replaces it with new sections 64 and
64A dealing with disclosure of information by the Director and the
Federal Safety Commissioner.
Section 64 - Disclosure of information by the Director
206. Section 64 provides for when the Director may disclose, or authorise
the disclosure of, information acquired by persons in the course of
performing work within the Inspectorate. This includes information
acquired by the Director, inspectors, staff members, consultants and
assistants to the Director or inspectors.
207. Section 64 does not apply to information that was disclosed or
obtained under an examination notice or at an examination. Such
information is subject to the more restrictive disclosure provisions
contained in section 65.
208. Subsection 64(2) allows the Director to disclose, or authorise the
disclosure of, information if the Director reasonably believes that it
is:
. necessary or appropriate to do so for the purposes of the
performance of the Director's functions or the exercise of the
Director's powers; or
. likely to assist in the administration or enforcement of a law of
the Commonwealth, a State or a Territory.
209. This section is intended to operate in conjunction with relevant
provisions in the Privacy Act 1988, Public Service Act 1999 and Public
Service Regulations 1999 (including the APS Code of Conduct).
210. Subsection 64(3) permits the Director to disclose, or authorise the
disclosure of, information to the Minister if the Director reasonably
believes that the disclosure is likely to assist the Minister to consider
a complaint or issue in relation to a matter arising under the Act, the
FW Act or the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009. For example, this provision could enable
disclosure to the Minister if the Minister required information for the
purposes of responding to a specific complaint that has been made to him
or her.
211. Subsection 64(4) allows the Director to disclose, or authorise the
disclosure of, information to the Secretary of the Department, or an SES
or APS employee in the Department, for the purposes of briefing, or
considering briefing, the Minister if the Director reasonably believes
the disclosure is likely to assist the Minister to consider a complaint
or issue in relation to a matter arising under the Act, the FW Act or the
Fair Work (Transitional Provisions and Consequential Amendments) Act
2009.
212. This provision will allow the Department to access relevant
information to enable it to provide effective and comprehensive briefing
to the Minister in relation to a complaint or issue about a matter under
the Act, the FW Act or the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009.
213. Subsection 64(5) allows the Director to disclose, or authorise the
disclosure of, information to the Advisory Board if the Director
reasonable believes that the disclosure is likely to assist the Advisory
Board in performing its role of making recommendations to the Director.
214. Subsection 64(6) clarifies that subsections 64(2) and (4) (relating to
disclosure that is necessary or appropriate, or likely to assist
administration or enforcement and disclosure to the Department) have
effect subject to section 66 of the Act. This means that, despite the
disclosure provisions in section 64, information relating to the affairs
of an individual must not be included in a report to the Minister under
section 12 or 14 except in particular circumstances.
215. This section is consistent with the approach to disclosure of
information by the Fair Work Ombudsman in section 718 of the FW Act.
Section 64A - Disclosure of information by the Federal Safety Commissioner
216. Section 64A provides for when the Federal Safety Commissioner may
disclose, or authorise the disclosure of, information acquired by persons
in the course of performing work for the Federal Safety Commissioner.
This includes information acquired by the Federal Safety Commissioner,
Federal Safety Officers, APS employees assisting the Federal Safety
Commissioner and consultants.
217. Subsection 64A(2) allows the Federal Safety Commissioner to disclose,
or authorise the disclosure of, information if the Federal Safety
Commissioner reasonably believes that it is:
. necessary or appropriate to do so for the purposes of the
performance of the Federal Safety Commissioner's functions or the
exercise of the Federal Safety Commissioner's powers; or
. likely to assist in the administration or enforcement of a law of
the Commonwealth, a State or a Territory.
218. The Federal Safety Commissioner is also able to disclose, or authorise
the disclosure of, information to the Minister or to the Department where
the Federal Safety Commissioner reasonably believes the disclosure is
likely to assist the Minister to consider a complaint or issue in
relation to a matter arising under the Act. This is the same approach as
for disclosure by the Director.
Item 75 - Paragraph 65(3)(a)
Item 76 - Paragraph 65(4)(a)
Item 77 - Paragraph 65(5)(aa)
Item 78 - Subsection 65(8) (definition of designated ABC official)
Item 79 - Subsection 65(8) (definition of designated official)
Item 80 - Subsection 65(8) (paragraph (b) of the definition of official
employment)
Item 81 - Subsection 65(8) (paragraph (a) of the definition of protected
information)
219. These items amend section 65 of the Act as necessary to limit the
application of the section only to information that was disclosed or
obtained under an examination notice or at an examination. The
disclosure of information obtained in other ways is dealt with in
proposed sections 64 and 64A. Information disclosed or obtained under an
examination notice is subject to stricter disclosure provisions because
of the nature of the Director's powers pursuant to an examination notice.
220. Section 65 is also amended to remove references relating to the
Federal Safety Commissioner as section 65 would no longer deal with
information normally obtained by the Federal Safety Commissioner. The
Federal Safety Commissioner would normally be subject to the disclosure
provisions in proposed section 64A.
Item 82 - Section 67
221. This item repeals section 67. Section 67 is unnecessary in light of
the proposed new disclosure provision in section 64. The proposed new
disclosure provision allows disclosure of information in a wider range of
circumstances and would likely allow the publication of non-compliance in
a similar way as intended by section 67.
Item 83 - Section 68
222. This item repeals section 68 and replaces it with a new section 68.
Section 68 would allow the Minister to delegate all of his or her powers
under Chapter 3 (relating to the Building Code) to the Director or the
Federal Safety Commissioner. This is consistent with the Minister's
current powers of delegation in section 68 but with amendments
consequential to other amendments to the Act.
Item 84 - Sections 69 and 70
223. This item repeals sections 69 and 70. The repeal of these sections is
consequential to other amendments, in particular the repeal of chapters 5
and 6.
Item 85 - Section 71
Item 86 - Section 72
224. These items replace references to the ABC Commissioner with references
to the Director.
Item 87 - Sections 73 and 73A
225. This item repeals sections 73 and 73A of the Act. Sections 73 and 73A
are no longer necessary because inspectors will have the power to
institute proceedings by virtue of proposed section 59C. Subsection
59C(1) gives inspectors the same functions and powers of a Fair Work
Inspector. These powers include the power to bring proceedings for a
contravention of a civil remedy provision provided in section 539 of the
FW Act as well as powers under the Independent Contractors Act 2006.
Item 88 - Section 74
226. This item amends section 74 as necessary to require the General
Manager of FWA to keep the Director informed.
Item 89 - Section 75
227. This item amends section 75 so that it confers jurisdiction on the
Federal Court in relation to any matter arising under the Act. Existing
section 75 may be repealed because it is no longer necessary.
Item 90 - Paragraph 75A(1)(a)
228. Section 75A is to be inserted into the Act by the Fair Work (State
Referral and Consequential and Other Amendments) Bill 2009. This item
repeals paragraph 75A(1)(a), which refers to civil applications under the
Act being made to the Federal Court. This paragraph may be repealed
because, as a result of the amendments made by the Bill, civil
applications will no longer be made to the Federal Court under the Act.
Any applications made by, for example, an inspector will be made under
the FW Act.
Item 91 - Section 75B
229. Section 75B is to be inserted into the Act by the Fair Work (State
Referral and Consequential and Other Amendments) Bill 2009. This item
repeals section 75B. Section 75B may be repealed because it is no longer
required as the Federal Magistrates' Court no longer has any jurisdiction
under this Act.
Item 92 - Section 76
230. This item amends section 76 as necessary to apply to the Director or
an inspector as applicants in court proceedings.
Item 93 - Subsection 77(2)(paragraphs (a) to (e) of the definition of
protected person)
Item 94 - Subsection 77(2)(paragraph (k) of the definition of protected
person)
Item 95 - Paragraphs 78(2)(a), (d) and (e)
231. These items make amendments to sections 77 and 78 that are
consequential to other amendments.
Schedule 2 - Transitional and consequential provisions
Item 1 - Regulations may deal with transitional etc. matters
232. This item allows regulations to be made to deal with matters of a
transitional, saving or application nature relating to amendments made by
the Bill.
Item 2 - Regulations may make consequential amendments of Acts
233. This item allows regulations to be made to make consequential
amendments to other Acts that are necessary because of the amendments
made by the Bill.
234. Subitem (2) clarifies that, for the purposes of the Amendments
Incorporation Act 1905, amendments made by regulations for the purposes
of this item are to be treated as if they had been made by an Act. As
the note to this item explains, this will ensure that the amendments can
be incorporated into a reprint of the Act.
Item 3 - Regulations may take effect from date before registration
235. This item allows for regulations to be made with retrospective effect.
This is necessary to prevent unforeseen difficulties that may arise in
the transition from the system under the Act before it is amended to the
system provided for by the Bill.
236. However, as it would not be appropriate for a regulation to impose
retrospective liability under a civil penalty provision, any regulations
made under this power may not retrospectively subject a person to civil
liability. The reason for this regulation making power is to deal with
any issues that have been overlooked in the Bill and not to penalise a
person for any potential breaches of a regulation that may apply
retrospectively.
237. Subitem (2) provides that, if a regulation takes effect before it is
registered, a person cannot be convicted of an offence or ordered to pay
a penalty in relation to conduct contravening the regulation that
occurred prior to registration.