Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Hansard source

I present a supplementary explanatory memorandum to the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011. I ask leave of the House to move government amendments (1) and (2) together.

Leave granted.

I move government amendments (1) and (2):

(1) Schedule 1, item 94, page 48 (lines 19 and 20), omit the item, substitute:

94 Section 73

Repeal the section, substitute:

73 Director etc. must not participate in court proceedings in relation to settled matters

(1) This section applies if:

(a) either:

  (i) the Director (or an inspector) and another party or parties are joint applicants in a building proceeding before a court; or

  (ii) the Director (or an inspector) has intervened in a building proceeding before a court under subsection 71(1); and

(b) before the court has given judgement in the proceeding:

  (i) the matter that is the subject of the proceeding is settled between the parties to the proceeding (or if more than one matter is the subject of the proceeding—one or more of those matters is settled between the parties to the proceeding); and

  (ii) a notice is filed in the court discontinuing the proceeding to the extent that it relates to the settled matter or matters.

(2) The Director (or inspector) must not continue to participate in the building proceeding to the extent that it relates to the settled matter or matters.

(3) A reference in subparagraph (1)(b)(i) to parties to the proceeding does not include a reference to the Director (or inspector).

(4) In this section:

building proceeding means a civil proceeding in relation to a matter that arises under a designated building law and involves a building industry participant.

(2) Schedule 1, page 48 (after line 20), after item 94, insert:

94A Section 73A

Repeal the section, substitute:

73A Director etc. must not institute court proceedings in relation to settled matters

(1) This section applies if:

(a) a building proceeding was instituted in a court; and

(b) neither the Director nor an inspector:

  (i) was a party to the proceeding; or

  (ii) had intervened in the proceeding; and

(c) the matter that was the subject of the proceeding was settled between the parties to the proceeding (or if more than one matter was the subject of the proceeding—one or more of those matters was settled between the parties to the proceeding); and

(d) a notice was filed in the court discontinuing the proceeding to the extent that it related to the settled matter or matters.

(2) The Director (or an inspector) must not institute a building proceeding in a court if the conduct giving rise to the proceeding was the subject of the settled matter or matters referred to in paragraph (1)(c).

(3) In this section:

building proceeding has the same meaning as in subsection 73(4).

The amendments replace schedule 1, item 95, lines 19 and 20 of the bill. The amendments provide that a director or an inspector of the Fair Work Building Industry Inspectorate is prohibited from commencing or continuing civil proceedings in a court where proceedings arise under a designated building law and involve the building industry participant and the matter of the subject of the proceedings is subsequently settled and discontinued by the parties other than the inspectorate.

I acknowledge the work of the Greens in proposing amendments to the bill and, in particular, their proposed amendment seeking to limit further proceedings when matters have settled. The government amendments will ensure that all building industry participants are not subject to multiple proceedings in relation to matters that have already been the subject of discontinued litigation as well as ensure the resources of the Fair Work Building Industry Inspectorate are more appropriately targeted to matters which remain unresolved.

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