Powell v Australian Building and Construction Commissioner & Anor; Victorian Workcover Authority v Australian Building and Construction Commissioner & Anor

Bell, Keane and Edelman JJ of the Full Federal Court considered two applications for judicial review concerning the Australian Building and Construction Commissioner's (ABCC) powers. The first application, brought by Powell, challenged the ABCC's decision to issue a notice under section 56 of the *Building and Construction Industry (Improving Productivity) Act 2013* (Cth) (BCIPI Act) requiring the production of documents. The second application, brought by the Victorian WorkCover Authority (VWA), sought to quash a notice issued by the ABCC under section 56 of the BCIPI Act, which directed the VWA to produce documents relating to an investigation into a workplace fatality. Both applicants argued that the ABCC lacked the necessary jurisdiction to issue the notices, contending that the BCIPI Act did not confer power on the ABCC to compel the production of documents from state bodies like the VWA, particularly when those documents were already subject to state-based regulatory oversight.

The central legal issue before the Full Federal Court was whether the ABCC had the statutory authority under section 56 of the BCIPI Act to issue a notice requiring a state authority, such as the Victorian WorkCover Authority, to produce documents relevant to an investigation, even where those documents were related to the state authority's own regulatory functions. This involved an interpretation of the scope of the ABCC's investigative powers and the extent to which the BCIPI Act could operate extraterritorially or in relation to state agencies. The court was required to determine if the BCIPI Act's provisions for obtaining information were intended to override or coexist with the investigative powers of state bodies.

The Full Federal Court held that the BCIPI Act, including section 56, conferred broad powers on the ABCC to obtain information and documents, and these powers were not limited by the fact that the information was held by a state authority or related to its regulatory functions. The court reasoned that the language of section 56 was clear and unambiguous, granting the ABCC the power to require the production of documents from any person, which included state bodies. The court rejected the argument that the ABCC's powers were confined to the federal sphere or that they were implicitly limited by the existence of state regulatory regimes, emphasizing that the BCIPI Act was intended to establish a national regulatory framework for the building and construction industry. Consequently, the court found that the ABCC had acted within its statutory authority in issuing the notices.

The applications for judicial review were dismissed.