A Bill for an Act to amend the Building and Construction
Industry Improvement Act 2005, and for related purposes
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Building
and Construction Industry Improvement Amendment (Transition to Fair Work) Act
2009.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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2. Schedule 1
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A day or days to be fixed by Proclamation.
However, if any of the provision(s) do not commence within
the period of 6 months beginning on the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that period.
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3. Schedule 2
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The day on which this Act receives the Royal Assent.
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Note: This table
relates only to the provisions of this Act as originally passed by both Houses
of the Parliament and assented to. It will not be expanded to deal with
provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Amendments
Building and Construction Industry
Improvement Act 2005
1 Section 1
Omit “Building and Construction Industry Improvement Act 2005”,
substitute “Fair Work (Building Industry) Act 2009”.
Note: This item amends the short title of the Act.
If another amendment of the Act is described by reference to the Act’s previous
short title, that other amendment has effect after the commencement of this
item as an amendment of the Act under its amended short title (see section 10
of the Acts Interpretation Act 1901).
2 Section 3
Repeal the section, substitute:
3
Object of this Act
The object of this Act is to provide a
balanced framework for cooperative, productive and harmonious workplace
relations in the building industry by:
(a) ensuring compliance with workplace
relations laws by all building industry participants; and
(b) providing information, advice and
assistance to all building industry participants about their rights and
obligations; and
(c) providing an effective means of
enforcing those rights and obligations; and
(d) providing appropriate safeguards on
the use of enforcement and investigative powers; and
(e) improving the level of
occupational health and safety in the building industry.
3 Subsection 4(1)
Insert:
AAT presidential member means a person who is
a presidential member of the Administrative Appeals Tribunal under the Administrative
Appeals Tribunal Act 1975.
4 Subsection 4(1) (definition of ABC Commissioner)
Repeal the definition.
5 Subsection 4(1) (definition of ABC Inspector)
Repeal the definition.
6 Subsection 4(1)
Insert:
Advisory Board means the Fair Work Building
Industry Inspectorate Advisory Board referred to in section 23.
7 Subsection 4(1) (definition of AIRC)
Repeal the definition.
8 Subsection 4(1) (definition of bargaining representative)
Repeal the definition.
9 Subsection 4(1) (definition of building enterprise
agreement)
Repeal the definition.
10 Subsection 4(1)
Insert:
building matter has the meaning given by
subsection 59C(3).
11 Subsection 4(1) (definition of civil penalty provision)
Repeal the definition.
12 Subsection 4(1) (definition of collective agreement)
Repeal the definition.
13 Subsection 4(1) (definition of Commissioner)
Repeal the definition.
14 Subsection 4(1) (definition of Commonwealth authority)
Repeal the definition.
15 Subsection 4(1) (paragraph (d) of the definition of Commonwealth
industrial instrument)
Omit “AIRC”, substitute “Australian Industrial Relations
Commission”.
16 Subsection 4(1)
Insert:
Commonwealth Ombudsman means the person for
the time being holding office as Ombudsman under the Ombudsman Act 1976.
17 Subsection 4(1) (definition of Deputy ABC Commissioner)
Repeal the definition.
18 Subsection 4(1) (paragraph (a) of the definition of designated
building law)
Omit “this Act,”.
19 Subsection 4(1)
Insert:
Director means the Director of the Fair Work
Building Industry Inspectorate referred to in section 9.
20 Subsection 4(1) (definition of eligible condition)
Repeal the definition.
21 Subsection 4(1) (definition of employee organisation)
Repeal the definition.
22 Subsection 4(1) (definition of enterprise agreement)
Repeal the definition.
23 Subsection 4(1)
Insert:
examination has the meaning given by
subsection 51(1).
24 Subsection 4(1)
Insert:
examination notice means an examination notice
issued under Division 3 of Part 1 of Chapter 7.
25 Subsection 4(1)
Insert:
Fair Work Building Industry Inspector means:
(a) the Director; or
(b) a person appointed as a Fair Work
Building Industry Inspector under section 59.
26 Subsection 4(1)
Insert:
Fair Work Inspector has the same meaning as
in the FW Act.
27 Subsection 4(1)
Insert:
Fair Work Ombudsman has the same meaning as
in the FW Act.
28 Subsection 4(1) (definition of full‑time
Commissioner)
Repeal the definition.
29 Subsection 4(1) (definition of Grade A civil penalty
provision)
Repeal the definition.
30 Subsection 4(1) (definition of Grade B civil penalty
provision)
Repeal the definition.
31 Subsection 4(1)
Insert:
Independent Assessor means the Independent
Assessor—Special Building Industry Powers referred to in section 36B.
32 Subsection 4(1) (definition of industrial body)
Repeal the definition.
33 Subsection 4(1) (definition of industrial instrument)
Repeal the definition.
34 Subsection 4(1) (definition of industrial law)
Repeal the definition.
35 Subsection 4(1)
Insert:
inspector means a Fair Work Building Industry
Inspector.
36 Subsection 4(1)
Insert:
investigation means an investigation to which
Part 1 of Chapter 7 applies.
37 Subsection 4(1)
Insert:
lawyer means a person who is admitted to the
legal profession by a Supreme Court of a State or Territory.
38 Subsection 4(1)
Insert:
nominated AAT presidential member means an
AAT presidential member in respect of whom a nomination is in force under
section 44 to issue examination notices under Division 3 of Part 1
of Chapter 7.
39 Subsection 4(1)
Insert:
Office means the Office of the Fair Work
Building Industry Inspectorate referred to in section 26J.
40 Subsection 4(1) (definition of part‑time
Commissioner)
Repeal the definition.
41 Subsection 4(1) (definition of penalty unit)
Repeal the definition.
42 Subsection 4(1) (definition of protected industrial
action)
Repeal the definition.
43 Subsection 4(1)
Insert:
safety net contractual entitlement has the
same meaning as in the FW Act.
44 Subsection 4(1)
Insert:
this Act includes the regulations.
45 Subsection 4(1) (definition of transitional award)
Omit “meaning given by the Workplace Relations Act”, substitute
“same meaning as in the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009”.
46 Subsection 4(1) (definition of unlawful industrial
action)
Repeal the definition.
47 Subsection 4(1) (definition of Workplace Relations Act)
Repeal the definition.
48 Subparagraph 5(1)(d)(iv)
Repeal the subparagraph, substitute:
(iv) the on‑site
prefabrication of made‑to‑order components to form part of any
building, structure or works;
49 Chapter 2
Repeal the Chapter, substitute:
Chapter 2—Fair Work
Building Industry Inspectorate
Part 1—Director
9
Establishment
There is to be a Director of the Fair
Work Building Industry Inspectorate.
10
Functions
The Director has the following
functions:
(a) to promote:
(i) harmonious, productive
and cooperative workplace relations in the building industry; and
(ii) compliance with
designated building laws and the Building Code by building industry
participants;
including by providing
education, assistance and advice to building industry participants;
(b) to monitor compliance with designated
building laws and the Building Code by building industry participants;
(c) to inquire into, and investigate,
any act or practice by a building industry participant that may be contrary to a
designated building law, a safety net contractual entitlement or the Building
Code;
(d) to commence proceedings in a
court, or to make applications to FWA, to enforce designated building laws and
safety net contractual entitlements as they relate to building industry
participants;
(e) to refer matters to relevant
authorities;
(f) to represent building industry
participants who are, or may become, a party to proceedings in a court, or a
party to a matter before FWA, under a designated building law, if the Director
considers that representing the building industry participants will promote
compliance with designated building laws;
(g) to disseminate information about
designated building laws and the Building Code, and about other matters
affecting building industry participants, including disseminating information
by facilitating ongoing discussions with building industry participants;
(h) to make submissions and provide
information to the Independent Assessor in accordance with this Act;
(i) any other functions conferred on
the Director by any Act.
Note: The Director also has the functions of an
inspector (see section 59A).
11
Minister’s directions
(1) The Minister may, by legislative
instrument, give directions to the Director about:
(a) the policies, programs and
priorities of the Director; and
(b) the manner in which the Director is
to perform the functions or exercise the powers of the Director.
(2) The Minister must not give a direction
under subsection (1) about a particular case.
(3) The Director must comply with a direction
under subsection (1).
(4) Despite anything in section 44 of
the Legislative Instruments Act 2003, section 42 of that Act
applies to a direction under subsection (1) of this section.
12
Minister may require reports
(1) The Minister may, in writing, direct the Director
to give the Minister specified reports relating to the Director’s functions and
powers.
Note: See also section 66, which restricts the
disclosure of personal information in a report.
(2) The Director must comply with the
direction.
13 Delegation by the
Director
General power to delegate
(1) Subject to subsections (2) and (3),
the Director may, in writing, delegate all or any of the Director’s functions
or powers under any Act to:
(a) a member of staff referred to in
subsection 26K(1); or
(b) an inspector.
Functions and powers that must not be delegated
(2) The Director must not delegate his or her
functions or powers:
(a) as an inspector; or
(b) under section 45 (which deals
with applying for an examination notice); or
(c) under subsection 50(3) or (4) (which
deal with varying the time for compliance with an examination notice).
Functions and powers that may only be delegated to SES
employees
(3) The Director must not delegate his or her
functions or powers under the following provisions to anyone other than a
member of staff referred to in subsection 26K(1) who is an SES employee:
(a) subsection 51(2) (which deals with
conducting an examination);
(b) subsection 51(4) (which deals with
administering an oath or affirmation at an examination).
Delegate subject to direction
(4) In performing functions or exercising
powers under a delegation, the delegate must comply with any directions of the
Director.
Details of delegation must be published
(5) As soon as practicable after delegating
any function or power under this section, the Director must publish details of
the delegation.
Note: See also sections 34AA and 34AB of the Acts
Interpretation Act 1901.
14
Annual report
(1) The Director must, as soon as practicable
after the end of each financial year, prepare and give to the Minister, for
presentation to the Parliament, a report on the performance of the Director’s
functions and the exercise of the Director’s powers during that year.
Note 1: See also section 34C of the Acts
Interpretation Act 1901, which contains extra rules about annual reports.
Note 2: See also section 66, which restricts the
disclosure of personal information in a report.
(2) The report must include:
(a) details of directions given by the
Minister during the financial year under section 11 or 12; and
(b) details of delegations by the Director
under section 13 during the financial year; and
(c) details of recommendations made to
the Director by the Advisory Board during the financial year.
15
Appointment
(1) The Director is to be appointed by the
Minister by written instrument.
(2) The appointment is to be on a full‑time
basis.
(3) The Minister must not appoint a person as
the Director unless the Minister is satisfied that the person:
(a) has suitable qualifications or
experience; and
(b) is of good character.
(4) The Director holds office for the period
specified in the instrument of appointment. The period must not exceed 5 years.
(5) The Director holds office on the terms
and conditions (if any) in relation to matters not covered by this Act that are
determined by the Minister.
16
Acting appointments
(1) The Minister may, by written instrument,
appoint a person to act as the Director:
(a) during a vacancy in the office of Director
(whether or not an appointment has previously been made to the office); or
(b) during any period, or during all
periods, when the Director:
(i) is absent from duty or
from Australia; or
(ii) is, for any reason,
unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Note: See sections 20 and 33A of the Acts
Interpretation Act 1901.
17
Remuneration
(1) The Director is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the
Director is to be paid the remuneration that is prescribed by the regulations.
(2) The Director is to be paid the allowances
that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
18
Leave of absence
(1) The Director has the recreation leave
entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Director leave
of absence, other than recreation leave, on the terms and conditions as to
remuneration or otherwise that the Minister determines.
19
Engaging in other paid employment
The Director must not engage in paid
employment outside the duties of his or her office without the Minister’s approval.
20
Disclosure of interests
The Director must give written notice to
the Minister of all material personal interests that the Director has or
acquires and that conflict or could conflict with the proper performance of the
Director’s functions.
21
Resignation
(1) The Director may resign his or her
appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day
it is received by the Minister or, if a later day is specified in the
resignation, on that later day.
22
Termination
(1) The Minister may terminate the
appointment of the Director for misbehaviour or physical or mental incapacity.
(2) The Minister must terminate the
appointment of the Director if:
(a) the Director:
(i) becomes bankrupt; or
(ii) applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or
her creditors; or
(iv) makes an assignment of
his or her remuneration for the benefit of his or her creditors; or
(b) the Director is absent, except on
leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Director engages, except with
the Minister’s approval, in paid employment outside the duties of his or her
office (see section 19); or
(d) the Director fails, without
reasonable excuse, to comply with section 20.
Part 2—Fair Work Building Industry Inspectorate Advisory Board
23
Establishment
The Fair Work Building Industry
Inspectorate Advisory Board is established by this section.
24
Role
The Advisory Board is to make recommendations
to the Director about:
(a) policies to guide the performance of
the Director’s functions and the exercise of the Director’s powers; and
(b) the priorities of, and the programs
to be implemented by, the Director; and
(c) any matter that the Minister
requests the Advisory Board to consider.
25
Membership
The Advisory Board consists of the
following members:
(a) the Director;
(b) the Fair Work Ombudsman;
(c) one member who has experience or background
in employee representation in the building industry;
(d) one member who has experience or
background in employer representation in the building industry;
(e) no more than 3 other members.
26
Appointment of members
(1) A member of the Advisory Board (other
than the Director or the Fair Work Ombudsman) is to be appointed by the
Minister by written instrument.
Note: A member of the Advisory Board is eligible for
re‑appointment (see subsection 33(4A) of the Acts Interpretation Act
1901).
(2) The Minister must not appoint a person as
a member unless the Minister is satisfied that the person has knowledge of, or
experience in, one or more of the following fields:
(a) workplace relations;
(b) law;
(c) business, industry or commerce.
(3) A member appointed by the Minister holds
office on a part‑time basis.
(4) A member appointed by the Minister holds
office for the period specified in the instrument of appointment. The period
must not exceed 3 years.
26A
Chair
(1) The Minister must appoint a member (other
than the Director or the Fair Work Ombudsman) to be the Chair of the Advisory Board.
(2) The Minister may, by written instrument,
appoint a member (other than the Director or the Fair Work Ombudsman) to act as
the Chair:
(a) during a vacancy in the office of
Chair (whether or not an appointment has previously been made to the office);
or
(b) during any period, or during all
periods, when the Chair:
(i) is absent from duty or
from Australia; or
(ii) is, for any reason,
unable to perform the duties of the office.
Note: See sections 20 and 33A of the Acts
Interpretation Act 1901.
26B
Remuneration of members
(1) A member appointed by the Minister is to
be paid the remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the member
is to be paid the remuneration that is prescribed by the regulations.
(2) A member appointed by the Minister is to
be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
26C
Leave of members
(1) The Minister may grant the Chair leave of
absence on the terms and conditions that the Minister determines.
(2) The Chair may grant leave of absence to
any other member on the terms and conditions that the Chair determines.
(3) The Chair must notify the Minister if the
Chair grants to a member leave of absence for a period that exceeds 6 months.
26D
Resignation of members
(1) A member appointed by the Minister may
resign his or her appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day
it is received by the Minister or, if a later day is specified in the
resignation, on that later day.
26E
Termination of appointment
(1) The Minister may terminate the
appointment of a member (other than the Director or the Fair Work Ombudsman)
for misbehaviour or physical or mental incapacity.
(2) The Minister must terminate the
appointment of a member (other than the Director or the Fair Work Ombudsman)
if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or
her creditors; or
(iv) makes an assignment of
his or her remuneration for the benefit of his or her creditors; or
(b) the member is absent, except on
leave of absence, from 3 consecutive meetings of the Advisory Board.
26F
Other terms and conditions
A member (other than the Director or the
Fair Work Ombudsman) holds office on the terms and conditions (if any) in
relation to matters not covered by this Act that are determined by the
Minister.
26G
Meetings
(1) The Chair must convene:
(a) such meetings of the Advisory Board
as are, in his or her opinion, necessary for the performance of its role; and
(b) at least 2 meetings of the Advisory
Board in each financial year; and
(c) such meetings of the Advisory Board
as are requested by the Director.
(2) The quorum for a meeting is the Chair,
the Director and the Fair Work Ombudsman.
(3) A question arising at a meeting of the Advisory
Board is to be decided by a majority of the votes of the members present and
voting.
(4) The Chair must preside at all meetings.
(5) At a meeting, the Chair has a
deliberative vote and, in the event of an equality of votes, has a casting
vote.
26H
Decisions without meetings
(1) The Advisory Board is taken to have made
a decision at a meeting if:
(a) without meeting, a majority of the
members indicate agreement with the decision; and
(b) that agreement is indicated in
accordance with the method determined by the Advisory Board under subsection (2);
and
(c) all the members were informed of
the proposed decision, or reasonable efforts were made to inform all the
members of the proposed decision.
(2) Subsection (1) applies only if the Advisory
Board:
(a) has determined that it may make
decisions of that kind without meeting; and
(b) has determined the method by which
members are to indicate agreement with proposed decisions.
(3) The Advisory Board must keep a record of
decisions made in accordance with this section.
Part 3—Office of the Fair Work Building Industry Inspectorate
26J
Office of the Fair Work Building Industry Inspectorate
The Office of the Fair Work Building
Industry Inspectorate is established by this section.
26K
Staff
(1) The staff of the Office are to be persons
engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the Director and the staff of the
Office together constitute a Statutory Agency; and
(b) the Director is the Head of that
Statutory Agency.
26L
Persons assisting the Director
The Director may also be assisted:
(a) by employees of Agencies (within
the meaning of the Public Service Act 1999); or
(b) by officers and employees of a
State or Territory; or
(c) by officers and employees of
authorities of the Commonwealth, a State or a Territory;
whose services are made available to the Director in
connection with the performance of any of his or her functions.
Note: For example, State or Territory employees
could be made available to assist the Director in providing education in a
particular region.
26M
Consultants
The Director may, on behalf of the
Commonwealth, engage persons having suitable qualifications and experience as
consultants to the Director. The terms and conditions of the engagement of a
person are such as are determined by the Director in writing.
Note: See also section 71 of the Public
Service Act 1999, which makes provision for State employees to perform
services in an Agency (as defined in that Act).
50 Section 28
Repeal the section.
51 Chapters 5 and 6
Repeal the Chapters.
52 Part 1 of Chapter 7
Repeal the Part, substitute:
Part 1—Powers to obtain information etc.
Division 1—Preliminary
36
Definitions
Building project
(1) For the purposes of this Part, a building
project is a project that consists of, or includes, building work.
Interested person
(2) For the purposes of this Part, each of
the following is an interested person in relation to a building
project:
(a) the Minister;
(b) a person prescribed by the
regulations for the purposes of this paragraph.
36A
Application of this Part
General
(1) 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.
Limitation on Director’s powers
(2) However, the Director may exercise powers
under this Part in relation to a suspected contravention by a building industry
participant of a safety net contractual entitlement only 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.
Division 2—Role of the Independent Assessor
Subdivision A—Establishment and appointment etc. of the Independent
Assessor
36B
Establishment
There is to be an Independent Assessor—Special
Building Industry Powers.
36C
Functions and powers
The Independent Assessor has the
functions and powers conferred on him or her by or under this Act.
36D
Minister may require reports
(1) The Minister may, in writing, direct the
Independent Assessor to give the Minister specified reports relating to the
Independent Assessor’s functions and powers.
(2) The Independent Assessor must comply with
the direction.
37
Appointment
(1) The Independent Assessor is to be
appointed by the Governor‑General by written instrument.
(2) The appointment is to be on a part‑time
basis.
(3) Before the Governor‑General appoints
a person as the Independent Assessor, the Minister must be satisfied that the
person:
(a) has suitable qualifications or
experience; and
(b) is of good character.
(4) The Independent Assessor holds office for
the period specified in the instrument of appointment. The period must not exceed
5 years.
(5) The Independent Assessor holds office on
the terms and conditions (if any) in relation to matters not covered by this
Act that are determined by the Governor‑General.
37A
Acting appointments
(1) The Minister may, by written instrument, appoint
a person to act as the Independent Assessor:
(a) during a vacancy in the office of
Independent Assessor (whether or not an appointment has previously been made to
the office); or
(b) during any period, or during all
periods, when the Independent Assessor:
(i) is absent from duty or
from Australia; or
(ii) is, for any reason,
unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Note: See sections 20 and 33A of the Acts
Interpretation Act 1901.
37B
Remuneration
(1) The Independent Assessor is to be paid
the remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the Independent
Assessor is to be paid the remuneration that is prescribed by the regulations.
(2) The Independent Assessor is to be paid
the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
37C
Leave of absence
(1) The Independent Assessor has the
recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Independent
Assessor leave of absence, other than recreation leave, on the terms and
conditions as to remuneration or otherwise that the Minister determines.
37D
Engaging in other paid employment
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.
37E
Disclosure of interests
The Independent Assessor must give
written notice to the Minister of all material personal interests that the
Independent Assessor has or acquires and that conflict or could conflict with
the proper performance of the Independent Assessor’s functions.
37F
Resignation
(1) The Independent Assessor may resign his
or her appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day
it is received by the Governor‑General or, if a later day is specified in
the resignation, on that later day.
37G
Termination
(1) The Governor‑General may terminate
the appointment of the Independent Assessor for misbehaviour or physical or
mental incapacity.
(2) The Governor‑General must terminate
the appointment of the Independent Assessor if:
(a) the Independent Assessor:
(i) becomes bankrupt; or
(ii) applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or
her creditors; or
(iv) makes an assignment of
his or her remuneration for the benefit of his or her creditors; or
(b) the Independent Assessor is
absent, except on leave of absence, for 14 consecutive days or for 28 days in
any 12 months; or
(c) the Independent Assessor engages
in paid employment that, in the Minister’s opinion, conflicts or may conflict
with the proper performance of his or her functions (see section 37D); or
(d) the Independent Assessor fails,
without reasonable excuse, to comply with section 37E.
Subdivision B—Determinations by Independent Assessor
38
Application of this Subdivision
This Subdivision applies in relation to
a building project if the building work that the project consists of, or
includes, begins on or after the commencement of this Subdivision.
39
Independent Assessor may determine that powers to obtain information do not
apply in relation to particular building project
(1) The Independent Assessor may, in
accordance with this Subdivision, make a written determination that section 45
does not apply in relation to one or more building projects.
Note 1: Section 45 provides for the Director to
make an application to a nominated AAT presidential member for the issue of an
examination notice in relation to a person in respect of an investigation.
Note 2: A determination can be varied or revoked on
application by an interested person (see subsection 33(3) of the Acts
Interpretation Act 1901) or on request by the Director (see section 43
of this Act).
(2) The Independent Assessor may make a
determination under subsection (1) in relation to a building project only
on application under section 40 by an interested person in relation to the
building project.
(3) The Independent Assessor must not make a
determination under subsection (1) in relation to a particular building
project unless the Independent Assessor is satisfied, in relation to that
building project, that:
(a) it would be appropriate to make
the determination, having regard to:
(i) the object of this
Act; and
(ii) any matters prescribed
by the regulations; and
(b) it would not be contrary to the
public interest to make the determination.
(4) A determination under subsection (1)
is not a legislative instrument.
40
Interested person may apply for determination
(1) Subject to subsection (5), an
interested person in relation to a building project (or 2 or more such
interested persons acting jointly) may apply in writing to the Independent
Assessor for a determination that section 45 does not apply in relation to
the building project.
Note: Section 45 provides for the Director to
make an application to a nominated AAT presidential member for the issue of an
examination notice in relation to a person in respect of an investigation.
(2) An application under subsection (1)
must:
(a) state the grounds on which the
application is made; and
(b) if a form is prescribed by the
regulations—be in that form; and
(c) include any other information
prescribed by the regulations.
(3) An application under subsection (1)
may relate to more than one building project.
(4) An application under subsection (1)
may be made at any time:
(a) before or after the relevant
building project has commenced; or
(b) after the relevant building
project is completed.
(5) If an interested person has made an
application (the original application) under subsection (1)
in relation to a building project, the interested person may not make a further
application under that subsection, in relation to the same building project and
on the same grounds as the original application, unless the interested person
becomes aware of new information in relation to the building project.
41
Consideration of application for determination
Opportunity for Director to make submissions in
relation to application
(1) If the Independent Assessor receives an
application for a determination from an interested person (the applicant)
under section 40, the Independent Assessor must:
(a) as soon as practicable after
receiving the application, give the Director a copy of the application; and
(b) give the Director a reasonable
opportunity to make submissions in relation to the application.
Independent Assessor may request further information
(2) The Independent Assessor may request the
applicant or the Director to give the Independent Assessor further information
in relation to the application.
(3) If a request for further information is
made under subsection (2), the applicant or the Director (as the case
requires) must give the further information to the Independent Assessor:
(a) as soon as practicable after
receiving the request; and
(b) if the request specifies that the
information must be given in writing—in writing.
Decision by Independent Assessor
(4) The Independent Assessor must decide
whether or not to make the determination. In making the decision, the
Independent Assessor must have regard to:
(a) the application and any further
information given to the Independent Assessor under subsection (3); and
(b) any submissions made by the
Director.
(5) As soon as practicable after the
Independent Assessor makes a decision under subsection (4), the
Independent Assessor must give written notice of the decision to:
(a) the applicant; and
(b) the Director.
42
Publication and period of effect of determination
(1) As soon as practicable after making a
determination under subsection 39(1), the Independent Assessor must:
(a) give a copy of the determination
to:
(i) the applicant for the
determination; and
(ii) the Director; and
(b) arrange for a copy of the
determination to be published in the Gazette.
(2) A determination under subsection 39(1)
takes effect on the day on which it is published in the Gazette.
43 Director
may request Independent Assessor to reconsider determination
(1) The Director may request the Independent
Assessor to reconsider a determination (the original determination)
made under subsection 39(1) in relation to a building project.
(2) A request under subsection (1):
(a) may be made at any time after the original
determination is made; and
(b) must be in writing and set out the
reasons for the request.
(3) If the Independent Assessor receives a
request under subsection (1), the Independent Assessor must:
(a) reconsider the original determination;
and
(b) make a determination affirming or
revoking the original determination, or varying the original determination in
such manner as the Independent Assessor considers appropriate.
(4) As soon as practicable after making a determination
under subsection (3), the Independent Assessor must give written notice of
that determination to:
(a) the Director; and
(b) the applicant for the original
determination.
(5) The Independent Assessor must, as soon as
practicable after making a determination under subsection (3) revoking or
varying the original determination, arrange for a copy of the determination to
be published in the Gazette.
(6) A determination under subsection (3)
revoking or varying the original determination takes effect on the day on which
it is published in the Gazette.
Division 3—Examination notices
44
Minister may nominate AAT presidential members to issue examination notices
(1) The Minister may, by writing, nominate an
AAT presidential member to issue examination notices under this Division.
(2) The Minister may nominate an AAT
presidential member who is a Judge to issue examination notices under this
Division only if the Judge has consented, by writing, to the nomination.
(3) A nomination ceases to have effect if:
(a) the nominated AAT presidential
member ceases to be an AAT presidential member; or
(b) the Minister, by writing,
withdraws the nomination.
(4) A nominated AAT presidential member has,
in performing a function of or connected with issuing an examination notice
under this Division, the same protection and immunity as a Justice of the High
Court has in relation to proceedings in the High Court.
45
Director may apply to nominated AAT presidential member for examination notice
General requirements
(1) If the Director believes on reasonable
grounds that a person:
(a) has information or documents
relevant to an investigation; or
(b) is capable of giving evidence that
is relevant to an investigation;
the Director may apply, in writing, to a nominated AAT
presidential member for the issue of an examination notice requiring the person:
(c) to give the information to the
Director; or
(d) to produce the documents to the
Director; or
(e) to attend before the Director to
answer questions relevant to the investigation.
Application not permitted if determination by
Independent Assessor is in force
(2) The Director may not make an application
under subsection (1) in relation to an investigation (regardless of when
the suspected contravention to which the investigation relates occurred) if the
investigation is connected with a building project in relation to which a
determination under subsection 39(1) is in force.
Note: Subsection 39(1) provides for the Independent
Assessor to make a determination that section 45 does not apply in
relation to certain building projects.
Form and content of application
(3) An application for an examination notice
must:
(a) if a form is prescribed by the
regulations—be in that form; and
(b) include any information prescribed
by the regulations.
(4) An application for an examination notice
must not relate to more than one person, but may relate to more than one
investigation.
Application must be accompanied by affidavit
(5) An application for an examination notice
must be accompanied by an affidavit by the Director including the following:
(a) the name of the person in relation
to whom the application relates;
(b) details of the investigation (or
investigations) to which the application relates;
(c) a statement that the investigation
(or investigations) are not connected with a building project in relation to
which a determination under subsection 39(1) is in force;
(d) the grounds on which the Director
believes the person has information or documents, or is capable of giving
evidence, relevant to the investigation (or investigations) referred to in paragraph (b);
(e) details of other methods used to
attempt to obtain the information, documents or evidence;
(f) the number (if any) of previous
applications for an examination notice that the Director has made in relation
to the person in respect of the investigation (or investigations) referred to
in paragraph (b);
(g) information about whether the
Director has made, or expects to make, any other applications for an
examination notice in relation to the investigation (or investigations)
referred to in paragraph (b) and, if so, the persons in relation to whom
those applications relate.
Further information
(6) A nominated AAT presidential member to
whom an application for an examination notice is made may request the Director
to give the presidential member further information in relation to the
application.
(7) If a request for further information is
made under subsection (6), the Director must give the further information
in writing as soon as practicable after receiving the request.
46
Sunset provision
The Director may not make an application
under section 45 after the end of 5 years after the day on which that
section commences.
47
Issue of examination notice
(1) A nominated AAT presidential member to
whom an application for an examination notice has been made must issue the
examination notice if the presidential member is satisfied of the following:
(a) that the Director has commenced
the investigation (or investigations) to which the application relates;
(b) that the investigation (or
investigations) are not connected with a building project in relation to which
a determination under subsection 39(1) is in force;
(c) that there are reasonable grounds
to believe that the person to whom the application relates has information or
documents, or is capable of giving evidence, relevant to the investigation (or
investigations);
(d) that any other method of obtaining
the information, documents or evidence:
(i) has been attempted and
has been unsuccessful; or
(ii) is not appropriate;
(e) that the information, documents or
evidence would be likely to be of assistance in the investigation (or
investigations);
(f) that, having regard to all the
circumstances, it would be appropriate to issue the examination notice;
(g) any other matter prescribed by the
regulations.
(2) A nominated AAT presidential member must
not issue an examination notice except in the circumstances referred to in subsection (1).
(3) An examination notice must not be issued
in relation to more than one person, but may be issued in relation to more than
one investigation.
(4) If:
(a) an application for an examination
notice is made in relation to more than one investigation; and
(b) the nominated AAT presidential
member to whom the application is made is not satisfied of the matters referred
to in subsection (1) in relation to each of those investigations;
the nominated AAT presidential member must issue the
examination notice in relation to the investigation (or investigations) in
relation to which the nominated AAT presidential member is satisfied of the
matters referred to in subsection (1).
48
Form and content of examination notice
An examination notice:
(a) must be in accordance with the
form prescribed by the regulations; and
(b) if the notice requires a person to
give information to the Director—must specify the time by which, and the manner
and form in which, the information is to be given; and
(c) if the notice requires a person to
produce documents to the Director—must specify the time by which, and the
manner in which, the documents are to be produced; and
(d) if the notice requires a person to
attend before the Director to answer questions relevant to an
investigation—must specify the time and place for the attendance; and
(e) must be signed by the nominated
AAT presidential member who issued it; and
(f) must include any other
information prescribed by the regulations.
49
Director must notify Commonwealth Ombudsman of issue of examination notice
As soon as practicable after an
examination notice has been issued, the Director must:
(a) notify the Commonwealth Ombudsman
that the examination notice has been issued; and
(b) give the Commonwealth Ombudsman a
copy of:
(i) the examination
notice; and
(ii) the affidavit that
accompanied the application for the examination notice; and
(iii) any other information
in relation to the examination notice that was given to the nominated AAT
presidential member who issued the notice.
50
Director may give examination notice to person in relation to whom it is issued
and vary time for compliance
Director may give examination notice to person in
relation to whom it is issued
(1) If a nominated AAT presidential member
issues an examination notice, the Director may give the notice to the person in
relation to whom it is issued.
(2) If an examination notice is not given to
the person in relation to whom it is issued within 3 months after the day on
which it was issued, the notice ceases to have effect at the end of that
period.
Director may vary time for compliance with examination
notice
(3) If:
(a) the Director gives an examination
notice to a person under subsection (1); and
(b) the time specified in the notice
under paragraph 48(b), (c) or (d) is not at least 14 days after the notice is
given to the person;
the Director must, at the same time as the examination
notice is given to the person, also give notice to the person of a time later
than the time specified in the notice.
(4) The Director may, at any time after
giving an examination notice to the person in relation to whom it is issued,
give notice to the person of a time later than the time:
(a) specified in the notice under
paragraph 48(b), (c) or (d); or
(b) notified under subsection (3).
(5) A later time notified under subsection (3)
or (4) must be at least 14 days after the examination notice is given to the
person.
(6) If the person is notified of a later time
under subsection (3) or (4), the examination notice has effect as if the
later time (or the latest of those times) were the time specified in the
examination notice.
Director must give copy of notice varying time to
Commonwealth Ombudsman
(7) If a notice under subsection (3) or
(4) is given to a person, the Director must, as soon as practicable after
giving the notice, give a copy of the notice to the Commonwealth Ombudsman.
51
Conduct of examination etc.
Application of section
(1) This section applies if a person is
required by an examination notice to attend before the Director to answer
questions relevant to an investigation. An attendance before the Director for
this purpose is called an examination.
Director to conduct examination
(2) The Director must conduct the examination
of the person.
Representation by lawyer
(3) The person may, if he or she so chooses,
be represented at the examination by a lawyer of the person’s choice.
Oath or affirmation
(4) The Director may require the information
or answers given by the person at the examination to be verified by, or given
on, oath or affirmation, and either orally or in writing. For that purpose, the
Director may administer the oath or affirmation.
(5) The oath or affirmation is an oath or
affirmation that information or answers are, or will be, true.
Director must not require person to give certain
undertakings
(6) The Director must not require the person
to undertake:
(a) not to disclose information or
answers given at the examination; or
(b) not to discuss matters relating to
the examination with any other person.
53 Part 2 of Chapter 7 (heading)
Repeal the heading.
54 Division 1 of Part 2
of Chapter 7 (heading)
Repeal the heading.
55 Section 52
Repeal the section, substitute:
52
Offence—failure to comply with examination notice
(1) A person commits an offence if:
(a) the person has been given an
examination notice under section 50; and
(b) the person fails:
(i) to give the required
information by the time, and in the manner and form, specified in the notice;
or
(ii) to produce the
required documents by the time, and in the manner, specified in the notice; or
(iii) to attend to answer
questions at the time and place specified in the notice; or
(iv) to take an oath or make
an affirmation, if required to do so under subsection 51(4); or
(v) to answer questions
relevant to the investigation while attending as required by the notice.
Penalty: Imprisonment for 6 months.
Note: A court may impose a maximum fine of 30
penalty units instead of, or in addition to, a term of imprisonment. A body
corporate that is convicted of an offence may be fined up to 5 times that
maximum fine. (See subsections 4B(2) and (3) of the Crimes Act 1914.)
(2) This Part does not require a person to
give information, produce a document or answer questions if to do so would
disclose information that:
(a) is the subject of legal
professional privilege; or
(b) would be protected by public
interest immunity.
Note: A defendant bears an evidential burden in
relation to the matters in this subsection (see subsection 13.3(3) of the Criminal
Code).
56 Subsection 53(1)
Omit “section 52”, substitute “an examination notice”.
Note: The heading to section 53 is altered by
omitting “section 52 requirements” and substituting “examination
notices”.
57 Paragraph 53(1)(b)
Omit “liability; or”, substitute “liability.”.
58 Paragraph 53(1)(c)
Repeal the paragraph.
59 Paragraph 53(2)(c)
Omit “52(6)”, substitute “52(1)”.
60 Section 54
Omit “section 52”, substitute “an examination notice”.
61 After section 54
Insert:
54A
Review and report by Commonwealth Ombudsman
Director to give report etc. to Commonwealth Ombudsman
(1) As soon as practicable after an
examination of a person is completed, the Director must give the Commonwealth
Ombudsman:
(a) a report about the examination;
and
(b) a video recording of the
examination; and
(c) a transcript of the examination.
(2) The report required under paragraph (1)(a)
must include:
(a) a copy of the examination notice
under which the examination was conducted; and
(b) the following information:
(i) the time and place at
which the examination was conducted;
(ii) the name of each
person who was present at the examination;
(iii) any other information
prescribed by the regulations.
Review of exercise of powers under this Division
(3) The Commonwealth Ombudsman:
(a) must review the exercise of powers
under this Division by the Director and any person assisting the Director; and
(b) may do anything incidental or
conducive to the performance of that function.
(4) The Commonwealth Ombudsman’s powers under
the Ombudsman Act 1976 extend to a review by the Ombudsman under this
section as if the review were an investigation by the Ombudsman under
that Act.
(5) The exercise of those powers in relation
to a review by the Ombudsman under this section is taken, for all purposes, to
be an exercise of powers under the Ombudsman Act 1976.
Commonwealth Ombudsman to report to Parliament
(6) As soon as practicable after the end of
each financial year, the Commonwealth Ombudsman must prepare and present to the
Parliament a report about examinations conducted under this Division during
that year. The report must include the results of reviews conducted under this
section during that year.
(7) The Commonwealth Ombudsman may prepare
and present to the Parliament such other reports about the results of reviews
conducted under this section as the Commonwealth Ombudsman considers
appropriate.
62 Subsection 55(1)
Omit “ABC Commissioner”, substitute “Director”.
Note: The heading to subsection 55(1) is altered by
omitting “ABC Commissioner” and substituting “Director”.
63 Subsection 55(1)
Omit “section 52”, substitute “an examination notice”.
64 Paragraphs 55(2)(a) to (d)
Repeal the paragraphs, substitute:
(a) the Director;
(b) an inspector;
(c) a member of staff referred to in
subsection 26K(1);
(d) a person assisting the Director
under section 26L;
(e) a person engaged as a consultant
under section 26M.
65 Subsection 55(4)
Omit “ABC Commissioner” (wherever occurring), substitute
“Director”.
66 Section 56
Omit “ABC Commissioner”, substitute “Director”.
Note: The heading to section 56 is altered by
omitting “ABC Commissioner” and substituting “Director”.
67 Section 56
Omit “section 52”, substitute “an examination notice”.
68 At the end of Division 1 of Part 2 of Chapter 7
Add:
57
Secrecy provisions
(1) The operation of this Division is not
limited by any secrecy provision of any other law (whether enacted before or
after the commencement of this section), except to the extent that the secrecy
provision expressly excludes the operation of this section.
(2) For the purposes of subsection (1), secrecy
provision means a provision that prohibits the communication or
divulging of information.
58
Payment for expenses incurred in attending an examination
(1) Subject to subsection (2), 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
regulations, for reasonable expenses (including legal expenses) incurred by the
person in attending the examination.
(2) The person is not entitled to be paid for
expenses under this section unless the person:
(a) applies, in writing, to the
Director for payment of the expenses within 3 months after the examination is
completed; and
(b) provides to the Director
sufficient evidence to establish that the person incurred the expenses.
(3) An application under paragraph (2)(a)
must:
(a) if a form is prescribed by the
regulations—be in that form; and
(b) include any information prescribed
by the regulations.
69 Division 2 of Part 2 of Chapter 7
Repeal the Division, substitute:
Part 2—Fair Work Building Industry Inspectors
Division 1—Appointment
59
Appointment
(1) The Director may, in writing, appoint as
a Fair Work Building Industry Inspector:
(a) a person who has been appointed,
or who is employed, by the Commonwealth; or
(b) a person who has been appointed,
or who is employed, by a State or Territory, or who holds an office or
appointment under a law of a State or Territory.
(2) The Director may appoint a person as an
inspector only if the Director is satisfied that the person is of good
character.
(3) An inspector is appointed for the period
specified in the instrument of appointment. The period must not exceed 4 years.
Note: An inspector is eligible for reappointment
(see subsection 33(4A) of the Acts Interpretation Act 1901).
59A
Director is an inspector
The Director is an inspector by force of
this section.
59B
Identity cards
(1) The Director must issue an identity card
to an inspector appointed under section 59.
(2) The Minister must issue an identity card
to the Director.
Form of identity card
(3) The identity card must:
(a) be in the form approved by the
Director; and
(b) contain a recent photograph of the
inspector.
Inspector must carry card
(4) An inspector must carry the identity card
at all times when performing functions or exercising powers as an inspector.
Offence
(5) A person commits an offence if:
(a) the person ceases to be an
inspector; and
(b) the person does not, within 14
days of so ceasing, return the person’s identity card to the Director or the
Minister (as the case may be).
Penalty: 1 penalty unit.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
Defence—card lost or destroyed
(7) Subsection (5) does not apply if the
identity card was lost or destroyed.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
Division 2—Powers
59C
Inspectors’ powers under Fair Work and other Acts
(1) An inspector has the same functions and
powers as a Fair Work Inspector.
(2) However, the functions and powers of an
inspector:
(a) may be performed or exercised only
in relation to a building matter; and
(b) are subject to such conditions and
restrictions as are specified in his or her instrument of appointment.
(3) A matter is a building matter
if it relates to a building industry participant.
(4) For the purposes of the performance of
the functions and the exercise of the powers of an inspector in relation to a
building matter:
(a) a reference in an Act to a Fair
Work Inspector has effect as if it were a reference to an inspector; and
(b) a reference in an Act to the Fair
Work Ombudsman has effect as if it were a reference to the Director.
(5) To avoid doubt, this section does not
provide for the Fair Work Ombudsman to give directions to an inspector under
section 704 or 705 of the FW Act.
59D
Director’s powers under Fair Work Act
(1) The Director has the same functions and
powers, in relation to a building matter, that the Fair Work Ombudsman has
under section 715 of the FW Act.
Note: Section 715 of the FW Act provides for the
Fair Work Ombudsman to accept written undertakings in relation to contraventions
of that Act.
(2) The functions and powers conferred under subsection (1)
are in addition to the functions and powers the Director has because of the
operation of subsection 59C(4).
59E Inspectors’
power to monitor compliance with Building Code
(1) Inspectors are also to monitor compliance
with the Building Code.
(2) For this purpose, an inspector has the
functions and powers under Subdivision D of Division 3 of Part 5‑2
of the FW Act that he or she would have if the Building Code were a fair work
instrument.
59F
General directions by the Director
(1) The Director may, by legislative
instrument, give a direction to inspectors relating to the performance of their
functions or the exercise of their powers as inspectors.
(2) The direction must be of a general nature
only, and cannot relate to a particular case.
(3) An inspector must comply with the
direction.
59G
Particular directions by the Director
(1) The Director may give a direction to an
inspector relating to the performance of the inspector’s functions or the
exercise of the inspector’s powers as an inspector.
(2) The inspector must comply with the
direction.
(3) If a direction is in writing, the
direction is not a legislative instrument.
70 Division 3 of Part 2 of Chapter 7
(heading)
Repeal the heading, substitute:
Part 3—Federal Safety Officers
Division 1—Appointment
71 Before section 62
Insert:
Division 2—Powers
72 Subsection 62(14)
Repeal the subsection.
73 Subsection 63(14)
Repeal the subsection.
74 Section 64
Repeal the section, substitute:
64
Disclosure of information by the Director
Information to which this section applies
(1) This section applies to information
(other than protected information within the meaning of section 65) that
is:
(a) information acquired by the
Director in the course of performing functions, or exercising powers, as the
Director; or
(b) information acquired by an
inspector in the course of performing functions, or exercising powers, as an
inspector; or
(c) information acquired by a member
of staff referred to in subsection 26K(1) in the course of performing
functions, or exercising powers, as a member of staff; or
(d) information acquired by a person
in the course of assisting the Director under section 26L, or in the
course of performing functions, or exercising powers, as a consultant under
section 26M; or
(e) information acquired by a person
in the course of assisting an inspector in performing functions, or exercising
powers, as an inspector.
Disclosure that is necessary or appropriate, or likely
to assist administration or enforcement
(2) The Director may disclose, or authorise
the disclosure of, the information if the Director reasonably believes:
(a) 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
(b) that the disclosure is likely to
assist in the administration or enforcement of a law of the Commonwealth, a
State or a Territory.
Disclosure to the Minister
(3) The Director may disclose, or authorise
the disclosure of, the 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 this Act, the FW Act
or the Fair Work (Transitional Provisions and Consequential Amendments) Act
2009.
Disclosure to the Department
(4) The Director may disclose, or authorise
the disclosure of, the information to:
(a) the Secretary of the Department;
or
(b) an SES employee, or an APS
employee, in the Department;
for the purpose 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 this Act, the FW Act or the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009.
Disclosure to the Fair Work Building Industry
Inspectorate Advisory Board
(5) The Director may disclose, or authorise
the disclosure of, the information to the Advisory Board if the Director
reasonably believes that the disclosure is likely to assist the Advisory Board
in performing its role.
Interaction with section 66
(6) Subsections (2) to (4) have effect
subject to section 66.
64A
Disclosure of information by the Federal Safety Commissioner
Information to which this section applies
(1) This section applies to information that
is:
(a) information acquired by the
Federal Safety Commissioner in the course of performing functions, or
exercising powers, as the Federal Safety Commissioner; or
(b) information acquired by a Federal
Safety Officer in the course of performing functions, or exercising powers, as
a Federal Safety Officer; or
(c) information acquired by an APS
employee assisting the Federal Safety Commissioner; or
(d) information acquired by a person
in the course of performing functions, or exercising powers, as a consultant
under section 34.
Disclosure that is necessary or appropriate, or likely
to assist administration or enforcement
(2) The Federal Safety Commissioner may
disclose, or authorise the disclosure of, the information if the Federal Safety
Commissioner reasonably believes:
(a) 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
(b) that the disclosure is likely to
assist in the administration or enforcement of a law of the Commonwealth, a
State or a Territory.
Disclosure to the Minister
(3) The Federal Safety Commissioner may
disclose, or authorise the disclosure of, the information to the Minister if
the Federal Safety Commissioner reasonably believes that the disclosure is
likely to assist the Minister to consider a complaint or issue in relation to a
matter arising under this Act.
Disclosure to the Department
(4) The Federal Safety Commissioner may
disclose, or authorise the disclosure of, the information to:
(a) the Secretary of the Department;
or
(b) an SES employee, or an APS
employee, in the Department;
for the purpose of briefing, or considering briefing, the
Minister if 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 this Act.
75 Paragraph 65(3)(a)
Omit “this Act”, substitute “the performance of the Director’s
functions or the exercise of the Director’s powers”.
Note: The heading to section 65 is altered by
adding at the end “obtained under an examination notice”.
76 Paragraph 65(4)(a)
Omit “this Act”, substitute “the performance of the Director’s
functions or the exercise of the Director’s powers”.
77 Paragraph 65(5)(aa)
Omit “ABC”.
Note: The heading to subsection 65(5) is altered by
omitting “ABC”.
78 Subsection 65(8) (definition of designated ABC
official)
Repeal the definition.
79 Subsection 65(8) (definition of designated official)
Repeal the definition, substitute:
designated official means any of the
following:
(a) the Director;
(b) an inspector;
(c) a member of staff referred to in
subsection 26K(1);
(d) a person assisting the Director
under section 26L;
(e) a person engaged as a consultant
under section 26M;
(f) the General Manager of FWA;
(g) a presidential member or a
Registrar of the Administrative Appeals Tribunal, or an officer or member of
staff referred to in section 24N of the Administrative Appeals Tribunal
Act 1975;
(h) the Commonwealth Ombudsman, a
Deputy Commonwealth Ombudsman or a member of the staff referred to in
subsection 31(1) of the Ombudsman Act 1976;
(i) a person acting under a
delegation under this Act from a person referred to in any of the preceding
paragraphs.
80 Subsection 65(8) (paragraph (b) of the definition of
official employment)
Omit “ABC Inspector or Federal Safety Officer”, substitute
“inspector”.
81 Subsection 65(8) (paragraph (a) of the definition of
protected information)
Repeal the paragraph, substitute:
(a) was disclosed or obtained under an
examination notice or at an examination; and
82 Section 67
Repeal the section.
83 Section 68
Repeal the section, substitute:
68
Delegation by Minister
(1) The Minister may, in writing, delegate
all or any of the Minister’s functions or powers under Chapter 3 to:
(a) the Director; or
(b) the Federal Safety Commissioner.
(2) In performing functions or exercising
powers delegated under subsection (1), the Director and the Federal Safety
Commissioner must comply with any directions of the Minister.
Note: See also sections 34AA and 34AB of the Acts
Interpretation Act 1901.
84 Sections 69 and 70
Repeal the sections.
85 Section 71
Omit “ABC Commissioner” (wherever occurring), substitute
“Director”.
Note: The heading to section 71 is altered by
omitting “ABC Commissioner intervention” and substituting “Director
may intervene”.
86 Section 72
Omit “ABC Commissioner”, substitute “Director”.
Note: The heading to section 72 is altered by
omitting “ABC Commissioner” and substituting “Director”.
87 Sections 73 and 73A
Repeal the sections.
88 Section 74
Omit “ABC Commissioner”, substitute “Director”.
Note: The heading to section 74 is altered by
omitting “ABC Commissioner” and substituting “Director”.
89 Section 75
Repeal the section, substitute:
75
Jurisdiction of the Federal Court
Jurisdiction is conferred on the Federal
Court in relation to any matter arising under this Act.
90 Paragraph 75A(1)(a)
Repeal the paragraph.
91 Section 75B
Repeal the section.
92 Section 76
Repeal the section, substitute:
76
Court not to require undertaking as to damages
If the Director or an inspector is an
applicant in court proceedings under the FW Act or the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009, the court
cannot require the Director, the inspector or another person, as a condition of
granting an interim injunction, to give undertakings as to damages.
93 Subsection 77(2) (paragraphs (a) to (e) of the definition
of protected person)
Repeal the paragraphs, substitute:
(a) the Director;
(b) an inspector;
(c) a member of staff referred to in
subsection 26K(1);
(d) a person assisting the Director
under section 26L;
(e) a person engaged as a consultant
under section 26M;
Note: The heading to section 77 is altered by
omitting “ABC Commissioner” and substituting “Director”.
94 Subsection 77(2) (paragraph (k) of the definition of
protected person)
Repeal the paragraph, substitute:
(k) the Independent Assessor;
(l) a presidential member or a
Registrar of the Administrative Appeals Tribunal, or an officer or member of
staff referred to in section 24N of the Administrative Appeals Tribunal
Act 1975;
(m) the Commonwealth Ombudsman, a
Deputy Commonwealth Ombudsman or a member of the staff referred to in
subsection 31(1) of the Ombudsman Act 1976;
(n) a person acting under a delegation
under this Act from a person referred to in any of the preceding paragraphs.
95 Paragraphs 78(2)(a), (d) and (e)
Repeal the paragraphs.
Schedule 2—Transitional and consequential provisions
1 Regulations may deal with transitional etc. matters
(1) The Governor‑General may make regulations
dealing with matters of a transitional, saving or application nature relating
to amendments made by this Act.
(2) In this item:
amendments made by this Act includes amendments
made by regulations under item 2 of this Schedule.
2 Regulations may make consequential amendments of Acts
(1) The Governor‑General may make regulations
amending Acts being amendments that are consequential on, or that otherwise
relate to, the amendments made by this Act.
(2) 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.
Note: This subitem ensures that the amendments can be
incorporated into a reprint of the Act.
3 Regulations may take effect from date before registration
(1) Despite subsection 12(2) of the Legislative
Instruments Act 2003 and subject to subitem (2), regulations made
under item 1 or 2 of this Schedule may be expressed to take effect from a
date before the regulations are registered under that Act.
(2) If:
(a) regulations made under item 1
or 2 of this Schedule are expressed to take effect from a date (the registration
date) before the regulations are registered under the Legislative
Instruments Act 2003; and
(b) a person engaged in conduct before
the registration date; and
(c) but for the retrospective effect
of the regulations, the conduct would not have contravened a provision of an
Act;
then a court must not convict the person of an offence, or order
the person to pay a pecuniary penalty, in relation to the conduct on the grounds
that it contravened a provision of that Act.