Construction Industry Development Agency (Transitional) Regulations 1995 No. 163
EXPLANATORY STATEMENT
Statutory Rules 1995 No. 163
Issued by the Authority of the Assistant Minister for Industrial Relations
Construction Industry Reform and Development Act Ad 1992
Construction Industry Development Agency (Transitional) Regulations
Section 56 of the Construction Industry Reform and Development Act 1992 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
The Construction Industry and Development Agency (CIDA) was established by section 14 of the Act. It is to be wound up and will cease to exist on 1 July 1995 (section 15 of the Act so provides).
Subsection 56(2) of the Act provides that regulations may be made in relation to CIDA ceasing to exist. It is proposed to make provision in relation to matters consequential upon the event.
The Commonwealth through the Department of Industrial Relations (the Department) is responsible for the winding-up of CIDA, and the Commonwealth through the Department of Industry, Science and Technology is carrying on associated functions of CIDA in the future.
There were a number of areas in which it was considered that transitional provisions wore needed. These included areas of financial control, of administrative law and in relation to possible continuing contractual obligations, of the Department, for contracts entered into by CIDA.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Construction Industry Development Agency (Transitional) Regulation
Regulation 1 provides that the title of the Regulations is the Construction Industry, Development Agency (Transitional) Regulations.
Regulation 2 provides that the Regulations commenced on 1 July 1995.
Regulation 3 provides a number of definitions, for the purposes of the Regulations.
Regulation 4 provides that the assets and liabilities, which were those of CIDA Immediately before it ceased to operate, are transferred to the Commonwealth. These assets include intellectual property owned by CIDA.
Regulation 5 provides that the Commonwealth, through the Department is substituted for, and has the same contractual rights and obligations as CIDA in any contacts to which CIDA was a party (and which were still in operation at the time of the cessation of CIDA).
Subregulation 6(1) provides that in proceedings to which CIDA was a party, which immediately before cessation were pending in any court or tribunal, the Department is after the cessation,. substituted for. CIDA as a party to the proceedings. The Department has the same rights in the proceedings as CIDA had.
Subregulation 6(2) makes clear that the Department would not be subject to criminal liability. In relation to matters to which CIDA was a party.
Regulation 7 provides that this Secretary is have prepared and to give to the Minister a report on the operations of CIDA and a financial statement relating to CIDA, for the 1994/1995 financial year. Regulation 7 further provides that before giving the financial statement to. the Minister, it is to be given to the Auditor-General, who is to report to the Minister on it.
Regulation 8 provides that any incompleted Ombudsman investigations, in relation to action taken by CIDA, are taken over by the Department.
Regulation 9 provides that where before cessation a request was made to CIDA under the Freedom of Information Act 1982 and a decision had not been made on the request at the time of the cessation, the request is to be taken as having been made to Department.
Overview
The Construction Industry Development Agency (Transitional) Regulations 1995 were enacted to address the transitional issues arising from the cessation of the Construction Industry Development Agency (CIDA) on 1 July 1995, as mandated by the Construction Industry Reform and Development Act 1992. The Act, enacted by the Australian Parliament, aimed to reform the construction industry and establish CIDA to oversee this process. With the winding up of CIDA, there was a need for clear transitional arrangements to manage the agency's remaining assets, liabilities, contractual obligations, and ongoing legal proceedings. These regulations were designed to ensure a seamless transition, assigning the Commonwealth, through the Department of Industrial Relations and the Department of Industry, Science and Technology, the responsibilities previously held by CIDA. The overarching policy objective of these regulations was to facilitate a smooth and orderly transition while safeguarding the interests of all parties involved.
Scope and Application
The Construction Industry Reform and Development Act 1992, and its subsidiary legislation, the Construction Industry Development Agency (Transitional) Regulations 1995, apply to the winding-up of the Construction Industry Development Agency (CIDA), which was established under the Act and ceased to exist on 1 July 1995. The Act and Regulations provide for the transfer of CIDA's assets, liabilities, contractual obligations, and any ongoing legal proceedings to the Commonwealth, specifically the Department of Industrial Relations. This includes the substitution of the Commonwealth in place of CIDA in any contracts that were still in operation at the time of CIDA's cessation, as well as any pending legal proceedings or investigations. The Regulations also mandate the preparation of a financial report and the transfer of any incomplete Freedom of Information requests to the Department. The Department of Industry, Science and Technology is tasked with continuing the functions of CIDA, and the Commonwealth assumes all rights and obligations of CIDA in a manner designed to ensure a seamless transition.
Key Provisions
The Construction Industry Development Agency (Transitional) Regulations 1995 (the Regulations) are designed to manage the transition and cessation of the Construction Industry Development Agency (CIDA), which was established under the Construction Industry Reform and Development Act 1992 (the Act). Section 14 of the Act established CIDA, and section 15 of the Act specifies that CIDA will cease to exist on 1 July 1995. Regulation 2 confirms that the Regulations themselves commenced on this same date.
The key provisions of the Regulations are outlined in Regulations 4 through 9. Regulation 4 provides for the transfer of all assets and liabilities, including intellectual property, that were CIDA's immediately before its cessation to the Commonwealth. Regulation 5 ensures that the Commonwealth, through the Department of Industrial Relations, assumes CIDA's contractual rights and obligations in any contracts that were still in operation at the time of CIDA's cessation. Regulation 6 addresses pending legal proceedings, stipulating that the Department of Industrial Relations will replace CIDA as a party to any proceedings that were ongoing at the cessation of CIDA, with the Department having the same rights and obligations as CIDA had. Regulation 6(2) clarifies that the Department will not be subject to any criminal liability in relation to matters CIDA was involved in.
The Regulations impose specific obligations on the Commonwealth and its departments. Regulation 7 requires the Secretary to prepare and submit a report on CIDA's operations and a financial statement for the 1994/1995 financial year to the Minister. This statement must first be reviewed by the Auditor-General, who will then report to the Minister. Regulation 8 transfers any incomplete investigations by the Ombudsman concerning CIDA's actions to the Department of Industrial Relations. Regulation 9 ensures that any Freedom of Information Act 1982 requests made to CIDA before its cessation but not yet decided upon are transferred to the Department for resolution.
The Regulations do not explicitly outline any offences or penalties for non-compliance. However, any breaches of the provisions, particularly those related to the transfer of contractual obligations, assets, and liabilities, could potentially lead to legal challenges or disputes. The implications of failing to adhere to these transitional provisions could include financial losses, legal liabilities, or disruptions to ongoing projects or contracts. It is essential for all parties involved to ensure compliance with these Regulations to facilitate a smooth transition and to avoid any unintended legal or financial consequences.