Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CONSTRUCTION INDUSTRY AMENDMENT (PROTECTING WITNESSES)
BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment, Senator the Honourable Eric Abetz)
Outline
CONSTRUCTION INDUSTRY AMENDMENT
(PROTECTING WITNESSES) BILL 2015
OUTLINE
The Construction Industry Amendment (Protecting Witnesses) Bill 2015 (the Bill) amends the
Fair Work (Building Industry) Act 2012 (Fair Work (Building Industry) Act) to extend the period
during which the Director of the Fair Work Building Industry Inspectorate can apply to a
nominated Administrative Appeals Tribunal presidential member for an examination notice by a
further two years.
Construction Industry Amendment i Senate
(Protecting Witnesses) Bill 2015
Financial Impact Statement
FINANCIAL IMPACT STATEMENT
Nil
Construction Industry Amendment ii Senate
(Protecting Witnesses) Bill 2015
Statement of Compatibility with Human Rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Construction Industry Amendment (Protecting Witnesses) Bill 2015
The Construction Industry Amendment (Protecting Witnesses) Bill 2015 (the Bill) is compatible
with the human rights and freedoms recognised or declared in the international instruments listed
in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Fair Work (Building Industry) Act 2012 (Fair Work (Building Industry) Act) creates an
industry-specific workplace relations compliance regime for the building and construction
industry.
Under the Fair Work (Building Industry) Act, the Director of the Fair Work Building Industry
Inspectorate (the Director) may apply to a nominated Administrative Appeals Tribunal (AAT)
presidential member for the issue of an examination notice in order to obtain information
relevant to an investigation into a suspected contravention of the Fair Work (Building Industry)
Act or a designated building law by a building industry participant. An examination notice may
require a person to give certain information or documents to the Director, or to attend before the
Director to answer questions relevant to an investigation not less than 14 days after the
examination notice is given to the person.
Section 46 of the Fair Work (Building Industry) Act currently has the effect that the Director
cannot apply for an examination notice after 1 June 2015.
The Bill amends the Fair Work (Building Industry) Act to extend the period during which the
Director can apply to a nominated AAT presidential member under section 45 for an
examination notice by two years. It also inserts a note explaining that the effect of section 46, as
amended, is that applications cannot be made under section 45 after 1 June 2017.
Human rights implications
The definition of `human rights' in the Human Rights (Parliamentary Scrutiny) Act 2011 relates
to the core seven United Nations human rights treaties.
The Bill engages the following rights:
the right to a fair trial contained in Article 14 of the International Covenant on Civil and
Political Rights (ICCPR); and
the right to privacy and reputation under Article 17 of the ICCPR.
Right to a fair trial
Article 14 of the ICCPR provides that all persons shall be equal before the courts and tribunals,
and that in the determination of any criminal charge against a person, that person is entitled to a
fair and public hearing by a competent, independent and impartial tribunal established by law.
Construction Industry Amendment iii Senate
(Protecting Witnesses) Bill 2015
Statement of Compatibility with Human Rights
Subarticle 14(3) sets out a range of guarantees that everyone shall be entitled to in the
determination of any criminal charge against them. This includes the right not to be compelled to
testify against himself or herself or to confess guilt.
Right to privacy and reputation
The right to privacy in Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with
a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a
person's reputation.
As noted in the UN Human Rights Committee, General Comment 16:
As all persons live in society, the protection of privacy is necessarily relative.
However, the competent public authorities should only be able to call for such
information relating to an individual's private life the knowledge of which is
essential in the interests of society as understood under the Covenant.
Examination powers
The Royal Commission into the Building and Construction Industry (the Cole Royal
Commission) considered that coercive information gathering powers were necessary on the
grounds that the regulator would not be able to adequately perform its functions without them
due to the closed culture of the industry. In making this recommendation, the Cole Royal
Commission stated that:
I recommend that the ABCC should be given the same powers as those possessed by
the ACCC under ss 155 to 156 of the Trade Practices Act 1974...This is because the
ABCC will need to penetrate the veil of silence behind which many decisions to take
unlawful industrial action are hidden. Those who will be best placed to give
information concerning breaches of the civil law will often, even usually, be complicit
in those breaches.1
The `Transition to Fair Work Australia for the Building and Construction Industry Report',
prepared by the Honourable Murray Wilcox QC (the Wilcox Report) also confirmed the ongoing
need for coercive information gathering powers. Justice Wilcox noted that anecdotal evidence
demonstrated that `it would be unwise not to endow [the new regulator] with a coercive
interrogation power' in light of the ongoing significant degree of contravention of the relevant
industrial laws in the industry.2
As a result of these findings and recommendations, the Fair Work (Building Industry) Act
includes provisions that enable the Director to exercise coercive information gathering powers in
certain limited circumstances. The exercise of these powers is subject to oversight mechanisms
and a number of other safeguards that ensure the right to privacy is limited only to the extent
necessary to ensure that building industry participants observe the applicable workplace relations
laws.
If the Director believes on reasonable grounds that a person has information or documents, or is
capable of giving evidence, that is relevant to an investigation into a suspected contravention of
the Fair Work (Building Industry) Act or a designated building law, the Director may apply to a
1 Royal Commission into the Building and Construction Industry (2003), Volume 11, Page 38
2 Transition to Fair Work Australia for the Building and Construction Industry Report,(2009) paragraph 5.98
Construction Industry Amendment iv Senate
(Protecting Witnesses) Bill 2015
Statement of Compatibility with Human Rights
nominated AAT presidential member for the issue of an examination notice. Such an application
must include certain information so as to enable the AAT presidential member to assess, among
other matters, the necessity of issuing the notice. Before issuing an examination notice, the AAT
presidential member must be satisfied, for example, that:
there are reasonable grounds to believe that the person has information or documents, or
is capable of giving evidence, relevant to the investigation;
that any other method of obtaining the information, documents or evidence has been
attempted and has been unsuccessful or it not appropriate; and
that the information, documents or evidence would be likely to be of assistance in the
investigation.
The Fair Work (Building Industry) Act also requires the Director to notify the Commonwealth
Ombudsman of the issuing of an examination notice and provide him or her with a copy of the
notice and any materials that accompanied the application. As soon as practicable after the
examination of a person is completed, the Director must also give the Commonwealth
Ombudsman a report on the examination, along with a video recording and transcript of the
examination.
The Commonwealth Ombudsman is required to review the exercise of the examination powers
and to provide an annual report to the Parliament about examinations conducted during the year,
as well as any other reports about the results of reviews into the exercise of the examination
powers that the Ombudsman considers appropriate.
The Fair Work (Building Industry) Act also provides that:
A person may, if he or she chooses to do so, be represented at an examination. This
ensures that the person in question is not disadvantaged and is able to be appropriately
represented.
An examination must not take place until at least 14 days after the notice is given to the
relevant person, ensuring that that person will have an adequate opportunity to seek
advice and arrange legal representation if he or she so chooses.
A person who attends an examination as required by an examination notice is entitled to
be paid fees and allowances, fixed by or calculated in accordance with the rules, for
reasonable expenses (including legal expenses) incurred by the person in attending the
examination. This will ensure that the person is not financially disadvantaged as a result
of being required to attend an examination.
The Bill amends the Fair Work (Building Industry) Act to extend the period during which the
Director may apply to a nominated AAT presidential member for the issue of an examination
notice by a further two years (i.e. until 1 June 2017).
It is considered that the examination notice powers remain essential to allow the regulator to act
rapidly when required. This is particularly so in light of the interim report of the Royal
Commission into Trade Union Governance and Corruption (the Heydon Royal Commission)
released by Commissioner Heydon in December 2014. In this report the Heydon Royal
Commission recommended that the interim report and any other relevant materials be referred to
Construction Industry Amendment v Senate
(Protecting Witnesses) Bill 2015
Statement of Compatibility with Human Rights
the relevant authorities to consider whether criminal or civil proceedings should be brought
against named persons or organisations, or whether other investigations should be undertaken.
This included allegations against certain Construction, Forestry, Mining and Energy Union
(CFMEU) officials for such things as:
intimidation and coercion;
blackmail; and
breaches of the Corporations Act 2001.
The Heydon Royal Commission concluded that there is a `culture of wilful defiance of the law
which appears to lie at the core of the CFMEU'.3
The information obtained through examination notices allows the regulator to determine whether
breaches of the law have occurred and to make an informed judgment about whether to
commence proceedings or take other steps to ensure compliance with the law. The Fair Work
Building Industry Inspectorate has advised that information obtained through the examination
notice process has been important in around a quarter of its decisions to initiate proceedings. In
other cases, the information obtained through the notice has led to a decision not to proceed with
court action, thereby sparing the proposed respondent from the burden of court proceedings and
avoiding unnecessary use of the regulator's and the court's resources.
Therefore it is considered that to the degree that extending the period in which the Director may
apply for an examination notice limits the right to privacy contained in Article 17 of the ICCPR,
it is a reasonable, necessary and proportionate limitation in the pursuit of the legitimate policy
objective of seeking to ensure that building industry participants observe applicable workplace
relations laws.
Disclosure of information
Information obtained under an examination notice (referred to as protected information) is likely
to include personal information. Section 65 of the Fair Work (Building Industry) Act contains a
general prohibition on recording or disclosing protected information. However, there are limited
exceptions to this rule which engage the right to privacy and reputation contained in Article 17
of the ICCPR.
Protected information may only be recorded or disclosed:
for the purposes of the performance of the Director's functions or the exercise of the
Director's powers;
in the course of performing the duties of official employment; or
to the Commonwealth, a state or a territory (or an authority of the same) for the purpose
of assisting in building industry law enforcement.
These exceptions to the prohibition on recording or disclosing protected information are
necessary to support the operation of the Fair Work (Building Industry) Act and law enforcement
activities more generally. Any recording or disclosure of protected information that does not fall
3 Interim Report of the Royal Commission into Trade Union Governance and Corruption (2014), Volume 1, Page 26
Construction Industry Amendment vi Senate
(Protecting Witnesses) Bill 2015
Statement of Compatibility with Human Rights
within one of the exceptions attracts a maximum penalty of imprisonment for 12 months. The
severity of this penalty provides a strong deterrent to the unauthorised use of information
through the examination notice process.
In addition, section 66 prohibits information relating to the affairs of an individual from being
included in an annual report or a report to the Minister if the individual is named or identified or
it is reasonably likely that people generally could identify the individual from the information
provided.
In light of this and the limited range of circumstances in which information may be
recorded or disclosed, it is considered that the limitations on the rights contained in Article
17 of the ICCPR are reasonable and proportionate limitations.
Privilege against self-incrimination
Subsection 53(1) of the Fair Work (Building Industry) Act provides that a person is not excused
from giving information, producing a document, or answering a question under an examination
notice on the grounds that to do so might tend to incriminate the person or otherwise expose the
person to a penalty or other liability. This limits a person's right not to be compelled to testify
against himself or herself or to confess guilt.
The abrogation of the privilege against self-incrimination was considered necessary by the Cole
Royal Commission on the grounds that the building industry regulator would otherwise not be
able to adequately perform its functions.4 After examining the necessity of the examination
notice process, the Wilcox Report concluded that a new regulator should be invested with
powers similar to those contained in the Building and Construction Industry Improvement
Act 2005.5
In recognition of the seriousness of displacing the right not to answer questions on these
grounds, however, subsection 53(2) of the Fair Work (Building Industry) Act provides a use and
derivative use indemnity in relation to information obtained in this way. This ensures that
information obtained under an examination notice cannot be used in proceedings against the
person (except in very limited circumstances, for example, in proceedings for failure to comply
with an examination notice).
The privilege against self-incrimination is clearly capable of limiting the information that may be
available to the Fair Work Building Industry Inspectorate, compromising its ability to monitor
and enforce compliance with the law. The approach adopted in the Fair Work (Building
Industry) Act is consistent with the approach in section 713 of the Fair Work Act 2009, as well
as the Work Health and Safety Act 2011 and the Competition and Consumer Act 2010.
Therefore it is considered that to the extent that the rights contained in Article 14 are limited, the
limitation is reasonable, necessary and proportionate in the pursuit of the legitimate policy
objective of seeking to ensure that building industry participants observe applicable workplace
relations laws.
4 Royal Commission into the Building and Construction Industry (2003), Volume 11, Pages 37-39
5 Transition to Fair Work Australia for the Building and Construction Industry Report,(2009), Recommendation 3
Construction Industry Amendment vii Senate
(Protecting Witnesses) Bill 2015
Statement of Compatibility with Human Rights
Conclusion
The amendments to the Fair Work (Building Industry) Act contained in the Bill are compatible
with human rights and freedoms recognised or declared in the international instruments listed in
section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that the
amendments may limit human rights and freedoms, those limitations are reasonable, necessary
and proportionate in the pursuit of legitimate objectives.
Minister for Employment, Senator the Hon. Eric Abetz
Construction Industry Amendment viii Senate
(Protecting Witnesses) Bill 2015
Notes on Clauses
NOTES ON CLAUSES
In these notes on clauses, the following abbreviations are used:
Fair Work (Building Industry) Act Fair Work (Building Industry) Act 2012
AAT Administrative Appeals Tribunal
the Bill Construction Industry Amendment (Protecting
Witnesses) Bill 2015
Clause 1 - Short title
1. This is a formal provision specifying the short title of the Bill.
Clause 2 - Commencement
2. This clause sets out when the provisions of the Bill commence.
Clause 3 - Schedules
3. This clause provides that legislation that is specified in a Schedule is amended or
repealed as set out in the applicable items in the Schedule, and any other item in a Schedule
operates according to its terms.
Construction Industry Amendment 1 Senate
(Protecting Witnesses) Bill 2015
Amendments ~ Schedule 1
SCHEDULE 1 - AMENDMENT
Fair Work (Building Industry) Act 2012
Item 1 - Section 46
4. Section 45 of the Fair Work (Building Industry) Act sets out the requirements for when
and how the Director of the Fair Work Building Industry Inspectorate may apply to a nominated
AAT presidential member for an examination notice in relation to an investigation into suspected
breaches of the Fair Work (Building Industry) Act or a designated building law.
5. Section 46 of the Fair Work (Building Industry) Act provides that an application for an
examination notice may not be made after the end of three years after the day on which
section 45 commences. Section 45 commenced by proclamation on 1 June 2012.
6. This item amends section 46 of the Fair Work (Building Industry) Act to extend the
period during which the Director can apply for an examination notice under section 45 by a
further two years.
Item 2 - At the end of section 46
7. This item inserts a note after section 46 that explains that the effect of section 46, as
amended, is that the Director may not make an application for an examination notice under
section 45 after 1 June 2017.
Construction Industry Amendment 2 Senate
(Protecting Witnesses) Bill 2015