Regulations 7.1 to 7.5 of the principal regulations are no longer required because the amending Act repeals Chapter 7 of the Act.

 

New section 7.1 - Interested persons

 

The Amending Act establishes the role of the Independent Assessor - Special Building Industry Powers who may, on application from 'interested persons', make a determination that the coercive interrogation powers contained in the Act as amended will not apply to a specified project (an 'exemption determination').

 

This section prescribes, for the purposes of paragraph 36(2)(b) of the Act as amended, that the definition of 'interested person' will include a 'building industry participant' who is involved in a building project, or who has a member involved in a building project. This means that all employers, employees, their respective associations and the client(s) who have a direct connection to a building project are able to make an application to the Independent Assessor.

 

New section 7.2 - Determining that powers to obtain information do not apply

 

Subsection 39(3) of the Act as amended sets out the matters to which the Independent Assessor must have regard before issuing an exemption determination.

 

This section would prescribe two additional criteria. These are the views of other interested persons in relation to the building project and whether a building industry participant who is an 'interested person' has complied with workplace relations laws (as defined by section 12 of the Fair Work Act 2009) in relation to the building project, including orders of a court or tribunal made in relation to the laws.

 

New section 7.3 - Application for examination notice

 

Section 45 of the Act as amended sets out when and how the Director of the FWBII may apply to a nominated presidential member of the Administrative Appeals Tribunal (AAT) for an examination notice.

 

This section prescribes an additional requirement for the purposes of paragraph 45(3)(b) being that in an application for an examination notice, the Director must include information about the likely impact of complying with the examination notice on the person who is the subject of the application.

 

New section 7.4 - Issue of examination notice

 

Section 47 of the Act as amended prescribes the factors that an AAT presidential member must consider when determining an application for an examination notice.

 

This section provides that, in addition to the factors set out in subsection 47(1) of the Act as amended, the presidential member of the AAT who hears the application for the issue of an examination notice must also be satisfied:

*         that the nature and seriousness of the investigation warrant the issue of the examination notice (paragraph 7.5(2)(a)); and

*         that complying with the examination notice will not have an unreasonably detrimental impact on the person who is the subject of the proposed notice in as far as the impact is known (paragraph 7.5(2)(b)).

 

The inclusion of the words 'in as far as the impact is known' reflects the fact that there may be a limited amount of information that a presidential member has before him or her upon which to base such an assessment. 

 

New section 7.5 - Form of examination notice

 

This section provides that an examination notice must be in the relevant form prescribed in Schedules 7.1, 7.2 or 7.3 to the Regulations.

 

New section 7.5A - Information included in examination notice

 

This section provides that if an examination notice requires a person to produce documents to the Director, the examination notice must specify the documents or the kinds of documents that the person must produce.

 

Item [6] - Sections 7.9 and 7.10

 

This item substitutes regulations 7.9 and 7.10 with new Division 7.2 - Expenses incurred in attending an examination (new sections 7.9 - 7.13).

 

New section 7.9 - What this Division is about

 

This new section provides that the Division sets out allowances that are payable to a person who is issued with an examination notice requiring him or her to attend an examination. Subsection 58(2) of the Act as amended specifies that to be entitled to any of the allowances contained in this Division, the person must apply in writing to the Director within three months of the examination being completed and must provide the Director with sufficient evidence to establish that the expenses were actually incurred. 

 

New section 7.10 - Travelling allowance

 

This section establishes that a person who is required to attend an examination will be entitled to a payment towards expenses incurred travelling to and from the person's work or home and the examination location. The maximum amount payable for travel irrespective of whether the person's actual travel costs exceed that amount is $2,000 (subsection 7.10(3)). 

 

Subsection 7.10(2) sets out the amount of travel allowance that can be paid if the person attending the examination travels by air, public transport or in their own motor vehicle. The different forms of transport are provided for in recognition of the varying levels of accessibility of different locations from which people may have to travel to attend an examination. It is intended, however, that where possible, public transportation will be used in preference to a private motor vehicle.

 

Subsection 7.10(4) would provides that when deciding whether public transport is available, regard must be had to whether a public transport system was operating by which the person attending the examination could conveniently travel to the examination place in a reasonable time before the witness's required attendance and return to their work or residence in a reasonable time after the witness's attendance at the examination.

 

New subsection 7.10(5) defines 'public transport' as any form of passenger transport available for use by the public on payment of a fare. This includes bus, train, ferry and taxi.

 

New section 7.11 - Accommodation allowance

 

New subsection 7.11(1) provides that a person who is required to attend an examination is entitled to a payment towards meeting the expenses incurred for accommodation when the witness is required to be absent overnight to attend that examination.

 

New subsection 7.11(2) provides that the amount of accommodation allowance is the amount calculated at the accommodation rate that is payable under the Taxation Office Determination for the lowest salary range.

 

When determining whether an accommodation allowance is necessary, regard will be had to the time of the earliest public transport that the person could have conveniently used to travel to the place of the examination on the day that the examination is scheduled to occur and the time of the latest public transport that could conveniently be used to return to the person's workplace or residence after the examination.

 

New subsection 7.11(4) defines the 'Taxation Office Determination' as the Determination that sets out the amount that the Commissioner of Taxation considers reasonable for the substantiation exception in Subdivision 900-B of the Income Tax Assessment Act 1997. It also defines 'public transport' as any form of passenger transport that is available for use by the public on payment of a fare.

 

New section 7.12 - Attendance allowance

 

New subsection 7.12(1) provides that a person who is required to attend an examination is entitled to a payment towards meeting any loss of earnings that the person incurs when the witness is necessarily absent from the witness's work to attend the examination.

 

New subsection 7.12(2) provides that the amount of the attendance allowance is the amount (defined as 'usual pay') that a person would otherwise have been entitled to receive for performing his or her normal duties. The term 'usual pay' is intended to ensure that a person is entitled to recover the full amount that they would have received during the relevant period, including amounts such as loadings.

 

New subsection 7.12(3) provides that when claiming the attendance allowance, the person must provide evidence that confirms his or her usual pay and that he or she did not receive that amount for the time when the he or she was necessarily absent to attend the examination.

 

This requirement prevents a person who has, for example, been paid annual leave for the day that he or she is absent in order to attend the examination from receiving a double benefit in the form of both the payment for annual leave and a payment of the attendance allowance. It would not, however, prevent a person who has received a payment at the rate of his or her base pay from applying for an attendance allowance to cover any allowances or loadings that would have been payable had the person actually attended work.

 

New section 7.13 - Legal allowance

 

New subsection 7.13(1) provides that a person who is subject to an examination notice is entitled to a payment, termed a 'legal allowance', towards meeting the legal costs and disbursements that the person has reasonably incurred for a lawyer to represent them at the examination.

 

New subsection 7.13(2) provides that the amount of the legal allowance that is payable is the amount calculated using the costs set out in the Federal Magistrates Court Rules 2001. It is intended that the applicable amount will be that set out in the General Federal Law column of Stage 1 of Schedule 1 to the Federal Magistrates Court Rules 2001.

 

Item [7] - Chapter 8

 

This item omits Chapter 8 of the principal regulations.

 

These regulations are no longer required as they relate to provisions of the Act that were repealed by the Amending Act.

 

Item [8] - Schedule 3.1

 

This item omits Schedule 3.1 to the principal regulations. Schedule 3.1 is no longer required as the Amending Act repealed the section to which it relates.

 

Item [9] - Schedules 7.1 to 7.7

 

This item substitutes Schedules 7.1 to 7.7 of the principal regulations with new Schedules 7.1 to 7.5 to reflect amendments to the Act that are made by the Amending Act.

 

New Schedule 7.1 is modelled on Schedule 7.6 of the principal regulations and sets out the form for an examination notice which requires a person to give information to the FWBII Director.

 

New Schedule 7.2 is modelled on Schedule 7.1 of the principal regulations and sets out the form for an examination notice which requires a person to produce documents to the FWBII Director.

 

New Schedule 7.3 is modelled on Schedule 7.7 of the principal regulations and sets out the form for an examination notice which requires a person to attend before the FWBII Director to answer questions relevant to an investigation.

 

New Schedule 7.4 is modelled on Schedule 7.4 of the principal regulations and sets out the form for a notice of taking samples of goods and substances to be used by Federal Safety Officers.

 

New Schedule 7.5 is modelled on Schedule 7.5 of the principal regulations and sets out the form for a notice requiring production of a document to be used by Federal Safety Officers.

 

Schedules 7.2 and 7.3 of the principal regulations are no longer needed because of amendments made to the Act by the Amending Act.

 

 

ATTACHMENT B

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Building and Construction Industry Improvement Amendment Regulation 2012 (No. 1)

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Building and Construction Industry Improvement Amendment Regulation 2012 (No. 1) (the proposed Regulation)

The Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 amended the Building and Construction Industry Improvement Act 2005 (the BCII Act) to create a new Act, the Fair Work (Building Industry) Act 2012 (FWBI Act) which creates a strong set of compliance arrangements for the building and construction industry. In particular, it abolishes the Office of the Australian Building and Construction Commissioner and creates a new agency, the Office of the Fair Work Building Industry Inspectorate to regulate the building and construction industry.

 

The purpose of the proposed Regulation is to amend the Building and Construction Industry Improvement Regulations 2005 to make necessary and appropriate provision in relation to a range of substantive matters set out in the FWBI Act.

 

Human Rights Implications - Right to Privacy

The FWBI Act includes a capacity for the Director of the Fair Work Building Industry Inspectorate (the Director) to obtain information relevant to an investigation, including through requiring a person to attend an examination and answer questions (Part 1 of the Act). 

 

Section 45 of the FWBI Act provides for the Director to apply to a presidential member of the AAT for an examination notice if he or she believes on reasonable grounds that a person has information or documents or is capable of giving evidence relevant to an investigation. When an examination notice is issued to a person that person is required to comply with the notice (for example by producing a relevant document within the specified timeframe, or attending an examination in person) and failure to comply with an examination notice is an offence.

 

Sections 7(3) and 7(4) of the proposed Regulation promote the right to privacy in Article 17 of the International Covenant on Civil and Political Rights in that they prescribe additional safeguards to those provided in the FWBI Act; these safeguards are intended to further ensure that a person's right to privacy is not unduly or arbitrarily affected by the issuing of an examination notice under the FWBI Act.

 

The right to privacy in Article 17 relates to both a person's right to control their own personal information and protect their reputation, and to a person's right to autonomy in the personal and work spheres of their life. The issuing of an examination notice engages with Article 17 because a person may be compelled to provide personal information, or to attend an examination at a specified time thus restricting their autonomy.

 

 

Subsections 45(3), (4) and (5) of the FWBI Act set out the matters that must be covered in the Director's application, and include any information prescribed by the regulations (subparagraph 45(3)(b)). Section 7(3) of the proposed Regulation further provides that the application must include information about the likely impact of the issue of the examination notice on the person who will be issued the notice.

 

Section 47 of the FWBI Act prescribes the factors that the AAT presidential member must consider when determining an application.  These factors include that the presidential member must be satisfied that it would be appropriate, having regard to all of the circumstances, to issue the examination notice and that the information or evidence would be likely to be of assistance to the investigation. The presidential member must also have regard to any matter prescribed by the regulations (subparagraph 47(1)(g)). Section 7(4) of the proposed Regulation prescribes that the presidential member must also be satisfied that the nature and seriousness of the suspected contravention justifies the issue of the examination notice and that the issue of the notice will not have an unreasonably detrimental impact on the person, in as far as the impact is known.

 

The draft regulation promotes the right to privacy through prescribing an additional safeguard requiring a presidential member to consider the impact of a notice on the person and whether that impact is proportionate given the nature and seriousness of the suspected contravention. In this way, proposed Sections 7(3) and 7(4) aim to ensure that a person's right to privacy is not unduly or arbitrarily limited or removed.