Nick Xenophon (SA, Nick Xenophon Team) Share this | Hansard source

by leave—I, and also on behalf of Senator Hinch, move amendments (1) to (29) on sheet 7954 together:

(1) Clause 3, page 2 (line 16), after "productively", insert ", without distinction between interests of building industry participants, and".

(2) Clause 3, page 3 (line 11), after "industry", add ", including by encouraging youth employment with an emphasis on engaging apprentices".

(3) Clause 4, page 4 (lines 5 to 7), omit "The ABC Commissioner, inspectors and Federal Safety Officers are given powers to obtain information. The ABC Commissioner can demand information by giving a person an examination notice.", substitute "The ABC Commissioner, inspectors and Federal Safety Officers may obtain information. An examination notice, issued by a nominated AAT presidential member on application by the ABC Commissioner, may require a person to give information.".

(4) Clause 5, page 4 (before line 23), before the definition of ABC Commissioner, insert:

AAT presidential member means a person who is a presidential member of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.

(5) Clause 5, page 4 (line 28) to page 5 (line 5), omit the definition of assistant.

(6) Clause 5, page 9 (line 10), omit "or an assistant".

(7) Clause 5, page 11 (after line 11), after the definition of lockout, insert:

nominated AAT presidential member means an AAT presidential member in respect of whom a nomination is in force under section 61A to issue examination notices under Part 2 of Chapter 7.

(8) Clause 5, page 12 (after line 4), after the definition of protected person, insert:

quarter means a period of 3 months beginning on 1 July, 1 October, 1 January or 1 April.

(9) Clause 19, page 22 (line 6), after "an inspector", insert "who is an employee of the Commission".

(10) Clause 19, page 22 (line 7), after "acting SES employee", insert "who is an employee of the Commission".

(11) Clause 19, page 22 (line 8), after "an SES employee)", insert "who is an employee of the Commission and".

(12) Clause 19, page 22 (lines 10 and 11), omit "section 61 (ABC Commissioner may give examination notice)", substitute "section 61B or 61F or subsection 61E(3) or (4) (examination notices)".

(13) Heading to clause 20, page 22 (line 27), omit the heading, substitute:

20 Quarterly and annual reports

(14) Clause 20, page 22 (before line 28), before subclause (1), insert:

(1A) As soon as practicable after the end of each quarter of each financial year, the ABC Commissioner must prepare and give to the Minister a report on the performance of the ABC Commissioner's functions and the exercise of the ABC Commissioner's powers during that quarter.

(15) Clause 20, page 22 (line 30), omit "the operations of the ABC Commissioner", substitute "the performance of the ABC Commissioner's functions and the exercise of the ABC Commissioner's powers".

(16) Clause 20, page 22 (after line 30), at the end of the subclause (1), add:

Note: See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

(17) Clause 20, page 22 (line 31) to page 23 (line 14), omit subclauses (2) and (3), substitute:

(2) A report under subsection (1A) or (1) must include:

(a) details of:

  (i) the number, and type, of matters that were investigated by the ABC Commissioner during the quarter or year (as the case requires); and

  (ii) the cost, during that quarter or year, of each such investigation; and

(b) details of assistance and advice provided during that quarter or year to building industry participants; and

(c) details of the extent to which the Building Code was complied with during that quarter or year.

Note: See also section 107, which restricts the disclosure of personal information in a report.

(3) The report must also include:

(a) details of directions given by the Minister during that quarter or year under section 17 or 18; and

(b) details of delegations by the ABC Commissioner under section 19 during that quarter or year.

(18) Clause 60, page 47 (lines 5 to 9), omit "The ABC Commissioner may require a person to give information, produce documents or answer questions relating to an investigation of a suspected contravention of this Act or a designated building law by a building industry participant. The Commissioner does this by giving a person an examination notice.", substitute "A person may be required under an examination notice issued under Part 2 to give information, produce documents or answer questions relating to an investigation of a suspected contravention of this Act or a designated building law by a building industry participant. The notice is issued, on application by the ABC Commissioner, by a nominated AAT presidential member.".

(19) Clause 61, page 48 (line 3) to page 49 (line 18), omit the clause, substitute:

61A 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 Part.

(2) The Minister may nominate an AAT presidential member who is a Judge to issue examination notices under this Part 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 Part, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

61B ABC Commissioner may apply to nominated AAT presidential member for examination notice

General requirements

(1) The ABC Commissioner may apply, in writing, to a nominated AAT presidential member for the issue of an examination notice referred to in subsection (2) if the ABC Commissioner believes on reasonable grounds that a person:

(a) has information or documents relevant to an investigation by an inspector into a suspected contravention, by a building industry participant, of this Act or a designated building law; or

(b) is capable of giving evidence that is relevant to such an investigation.

(2) The examination notice may require the person:

(a) to give information to the ABC Commissioner; or

(b) to produce documents to the ABC Commissioner; or

(c) to attend before the ABC Commissioner and answer questions relevant to the investigation.

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 ABC Commissioner including the following:

(a) the name of the person to whom the application relates;

(b) details of the investigation (or investigations) to which the application relates;

(c) the grounds on which the ABC Commissioner believes the person has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations) referred to in paragraph (b);

(d) details of other methods used to attempt to obtain the information, documents or evidence;

(e) the number (if any) of previous applications for an examination notice that the ABC Commissioner has made in relation to the person in respect of the investigation (or investigations) referred to in paragraph (b);

(f) information about whether the ABC Commissioner 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 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 ABC Commissioner 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 ABC Commissioner must give the further information in writing as soon as practicable after receiving the request.

61C 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 an inspector has commenced the investigation (or investigations) to which the application relates;

(b) 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);

(c) that any other method of obtaining the information, documents or evidence:

  (i) has been attempted and has been unsuccessful; or

  (ii) is not appropriate;

(d) that the information, documents or evidence would be likely to be of assistance in the investigation (or investigations);

(e) that, having regard to all the circumstances, it would be appropriate to issue the examination notice;

(f) 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).

61D Form and content of examination notice

An examination notice must:

(a) if a form is prescribed by the regulations—be in that form; and

(b) if the notice requires a person to give information under paragraph 61B(2) (a) to the ABC Commissioner—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 under paragraph 61B(2) (b) to the ABC Commissioner—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 ABC Commissioner to answer questions relevant to an investigation—specify the time and place for the attendance; and

(e) be signed by the nominated AAT presidential member who issued it; and

(f) include any other information prescribed by the regulations.

Note: See also sections 62 (offence for failing to comply with examination notice), 79 (power to keep records or documents), 102 (self-incrimination) and 103 (protection from liability).

61E ABC Commissioner may give examination notice to person in relation to whom it is issued and vary time for compliance

ABC Commissioner 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 ABC Commissioner 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.

ABC Commissioner may vary time for compliance with examination notice

(3) If:

(a) the ABC Commissioner gives an examination notice to a person under subsection (1); and

(b) the time specified in the notice under paragraph 61D(b), (c) or (d) is not at least 14 days after the notice is given to the person;

the ABC Commissioner 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 ABC Commissioner 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 61D(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.

61F Conduct of examination etc.

Application of section

(1) This section applies if a person is required by an examination notice to attend before the ABC Commissioner to answer questions relevant to an investigation.

ABC Commissioner to conduct examination

(2) The ABC Commissioner 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 ABC Commissioner 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 ABC Commissioner 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.

ABC Commissioner must not require person to give certain undertakings

(6) The ABC Commissioner 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.

(20) Clause 62, page 49 (line 20), before "A person", insert "(1)".

(21) Clause 62, page 49 (after line 30), at the end of the clause (before the penalty), insert:

Note: A court may impose a maximum penalty 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 penalty (see subsections 4B(2) and (3) of the Crimes Act 1914).

(22) Clause 62, page 49 (after line 31), at the end of the clause (after the penalty), add:

(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).

(23) Clause 62, page 49 (line 28), omit "subsection 61(5)", substitute "subsection 61F(4)".]

(24) Clause 64, page 50 (lines 17 to 25), omit the clause, substitute:

64 ABC Commissioner must notify Commonwealth Ombudsman of issue of examination notice

(1) As soon as practicable after an examination notice has been issued, the ABC Commissioner 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.

(2) If notice under subsection 61E(3) or (4) is given to a person, the ABC Commissioner must notify the Commonwealth Ombudsman as soon as practicable after giving notice.

(25) Clause 65, page 51 (line 16), omit "and any assistant", substitute "and any person assisting the ABC Commissioner".

(26) Clause 65, page 51 (lines 27 to 31), omit subclause (6), substitute:

(6) As soon as practicable after the end of each quarter of each financial year, the Commonwealth Ombudsman must prepare and present to the Parliament a report about examinations conducted during that quarter. The report must include the results of reviews conducted under this section during that quarter.

(27) Clause 106, page 87 (line 23), omit "(annual reports)", substitute "(quarterly and annual reports)".

(28) Clause 107, page 88 (line 26), omit "(annual reports)", substitute "(quarterly and annual reports)".

(29) Clause 120, page 97 (before line 30), before paragraph (4) (a), insert:

(aa) matters required or permitted by this Act to be prescribed by the regulations; or

(ab) matters necessary or convenient to be prescribed for carrying out or giving effect to this Act; or

The first two clauses of these amendments are something that Senator Hinch has worked on. I commend him for it. They relate to broadening the scope of the objects of the bill, to add the words 'encouraging youth employment with an emphasis on engaging apprentices,' which is a very worthy objective, and I think it puts a focus on the bill.

I will spend more time speaking in relation to examination notices and AAT oversight. These amendments maintain the current administrative oversight for the use of coercive powers. An Administrative Appeals Tribunal presidential member will be required to issue the examination notice, rather than the ABC Commissioner as the current bill allows. This is a safeguard against any misuse of coercive power. Other associated provisions from part 3, chapter 7, have also been incorporated.

These amendments addresses some concerns about the coercive powers in this bill, although I note that coercive powers are used in other pieces of legislation with the ACCC, ASIC, APRA, but it is important to note that the coercive powers are not new. In 2012, under the former Labor government coercive powers were retained, with safeguards, for the FWBC. One of those safeguards was oversight by the AAT, which required an AAT presidential member to issue the examination notice.

These amendments also clarify that a person who is the subject of an examination notice does have the right to a lawyer. There have been countless times when I have heard senior members of the opposition say that this bill takes away the right to legal representation. The text of clause 61(4) of the current bill states :

A person attending before the ABC Commissioner, or before an assistant, as mentioned in paragraph (2)(c) may be represented by a lawyer if the person chooses.

It seems pretty clear that there is a right to legal representation. However, to make it abundantly clear, these amendments will change the wording to read:

The person may, if he or she so chooses, be represented at the examination by a lawyer of the person's choice.

I think we can all confidently say that, without a doubt, someone who is the subject of an examination has the right to legal representation and to choose their own lawyer. There are also amendments to ensure that the AAT presidential members appointed to issue examination notices continue to do so when the ABCC is established. I am very happy to answer any questions in respect of these amendments.