EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 56
Issued by the authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations
Building and Construction Industry Improvement Act 2005
Building and Construction Industry Improvement Amendment Regulations 2011 (No. 1)
The Building and Construction Industry Improvement Act 2005 (the Act) permits the Australian Building and Construction Commissioner (the Commissioner) to issue a notice requiring a person to appear before the Commissioner, or an assistant, and answer questions relevant to an investigation. Schedule 7.7 to the Building and Construction Industry Improvement Regulations 2005 (the Principal Regulations) provides a template for the notice.
Subsection 78(1) of the Act provides that the Governor-General may make regulations prescribing matters either required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 78(2)(c) of the Act provides that the Governor-General may make regulations which make provision for the form of notices that are required or permitted to be given under the Act.
These Regulations make a minor amendment to address a criticism from the South Australian Magistrates Court in Commonwealth Director of Public Prosecutions v Ark Tribe (24 November 2010) that a notice issued in the form specified by Schedule 7.7 to the Principal Regulations did not meet the requirements of paragraph 52(1)(e) of the Act which provides that a notice include the person before whom the recipient must appear.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003. They commence on the day after they are registered on the Federal Register of Legislative Instruments.
The Regulations have no compliance cost to business or impact on business and individuals or the economy.
Australian Building and Construction Commissioner was consulted during the development of these Regulations.
Overview
The Building and Construction Industry Improvement Amendment Regulations 2011 (No. 1) were introduced to amend the Building and Construction Industry Improvement Act 2005, enacted by the Australian Parliament. The primary purpose of the Act was to improve the performance and productivity of the building and construction industry, and the regulations aim to address a specific criticism identified by the South Australian Magistrates Court in the case of Commonwealth Director of Public Prosecutions v Ark Tribe. The court found that a notice issued under the Act did not comply with the requirement to specify the person before whom the recipient must appear, as mandated by section 52(1)(e) of the Act. The Regulations were made under the authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, and they seek to ensure that notices issued by the Australian Building and Construction Commissioner meet all legal requirements. These amendments do not impose any compliance costs on businesses or individuals, nor do they have any impact on the economy.
Scope and Application
The Building and Construction Industry Improvement Act 2005 applies to individuals and entities involved in the building and construction industry, encompassing various industries and activities related to construction work. The Act applies across the Commonwealth of Australia, and its jurisdiction extends to regulating the industry to improve productivity, performance, and workplace relations. The Act's scope includes the issuance of notices by the Australian Building and Construction Commissioner to individuals to appear before the Commissioner or an assistant to answer questions pertinent to an investigation. The Act's application is extended through subordinate instruments, such as the Building and Construction Industry Improvement Amendment Regulations 2011 (No. 1), which were made to amend the notice requirements to comply with a criticism from the South Australian Magistrates Court. These Regulations have no compliance cost or impact on businesses or individuals and do not introduce any exclusions, exemptions, or thresholds.
Key Provisions
The Building and Construction Industry Improvement Amendment Regulations 2011 (No. 1) modify the form of notices required or permitted under the Building and Construction Industry Improvement Act 2005 (the Act). Specifically, section 78(2)(c) of the Act authorises the Governor-General to make regulations that prescribe the form of notices, and these Regulations amend the template provided in Schedule 7.7 of the Building and Construction Industry Improvement Regulations 2005 (the Principal Regulations) to address a criticism from the South Australian Magistrates Court in Commonwealth Director of Public Prosecutions v Ark Tribe (24 November 2010). The criticism pertained to the requirement under section 52(1)(e) of the Act that a notice must include the person before whom the recipient must appear, a requirement that the Court found was not met by the original notice form.
The Act imposes several obligations on parties within the building and construction industry. Under section 78(1) of the Act, the Australian Building and Construction Commissioner (the Commissioner) is authorised to issue a notice requiring a person to appear before the Commissioner or an assistant and answer questions relevant to an investigation. The Commissioner must ensure that the notices comply with the form prescribed by the regulations. Additionally, any person receiving such a notice is required to comply with the notice and appear as directed, failing which they may be subject to further legal action. The regulations, particularly the amended notice form, ensure that the process is legally robust and meets judicial standards.
The Act and the Regulations impose specific consequences for non-compliance with the notice requirements. Under section 52(2) of the Act, failure to comply with a notice can result in criminal charges, including fines and imprisonment. The maximum penalties for such offences are significant, reflecting the seriousness with which the Act treats non-compliance. The amended regulations ensure that the notices are legally sound and compliant with judicial requirements, thereby reducing the risk of such penalties for the recipients. Additionally, the Act allows for civil proceedings to be taken against persons who fail to comply with a notice, which can result in court-ordered penalties or other remedies.
In summary, the Building and Construction Industry Improvement Amendment Regulations 2011 (No. 1) address a specific legal oversight identified by the South Australian Magistrates Court. By amending the form of the notice required under the Act, the Regulations ensure compliance with judicial standards and reduce the risk of legal challenges to the notices issued. The Act and the Regulations impose significant obligations on the Commissioner and on individuals subject to the notices, with serious criminal and civil consequences for non-compliance. These changes are designed to support the effective enforcement of the building and construction industry laws.