Section 52 of the BCII Act gives the ABC Commissioner power to compel a person to:
- provide information
- produce documents
- attend to answer questions at an examination.
Why would the ABC Commissioner exercise compliance powers?
The ABC Commissioner may exercise compliance powers in order to investigate a contravention by a building industry participant of:
- the Building and Construction Industry Improvement Act 2005
- the Fair Work Act 2009
- the Independent Contractors Act 2006, or
- an award or transitional award, a collective agreements or a pre-WorkChoices certified agreement.
When would the ABC Commissioner exercise compliance powers?
The powers are used where the ABC Commissioner believes on reasonable grounds that a person:
- has information or documents, or
- is capable of giving evidence relevant to an ABC Commissioner’s investigation.
The powers will only be used after other avenues available to the ABCC to obtain the required information have been explored unsuccessfully. Those other avenues include a witness voluntarily providing information and signing a witness statement for an ABCC inspector.
What happens when the Commissioner decides to use his compliance powers?
Where the Commissioner or a Deputy Commissioner decides that an examination is justified, he issues a notice to attend with a covering letter to help explain to the witness the requirements of the notice.
The letter also explains that the witness may, if the witness so chooses, be represented by a barrister or solicitor. The letter will always nominate a contact officer who will answer any questions arising in relation to the notice.
Who is able to represent a witness at an examination?
The Federal Court has confirmed that the Deputy ABC Commissioner has the power to exclude a particular legal representative from representing a witness at an examination.
In Bonan v Hadgkiss, Deputy ABC Commissioner Hadgkiss excluded a particular legal representative because she had appeared for another witness. Mr Hadgkiss ruled that her appearance for a second witness may have prejudiced the investigation. The Federal Court upheld this ruling. An appeal was filed but was subsequently permanently stayed. In the unusual circumstance where a particular legal representative is excluded, the witness is given time to arrange for alternative legal representation of their choosing.
What happens if I refuse to comply?
Failure to attend a proposed examination at the time and place specified in a notice is a criminal offence under s.52(6) of the BCII Act, with a maximum penalty of six months imprisonment. The ABC Commissioner may refer such a suspected criminal offence to the Commonwealth Director of Public Prosecutions (CDPP). The CDPP is the independent statutory authority responsible for the prosecution of alleged criminal offences against the laws of the Commonwealth.
The ABCC has referred two matters for failure to attend an examination to the CDPP. Both referrals have resulted in the CDPP conducting prosecutions.
Lloyd v Washington
In October 2007, Noel Washington was served with a notice to attend an ABCC examination under s.52 of the BCII Act. Mr Washington and others initially challenged the s.52 notices addressed to them in the Federal Court on the ground they had been issued for an improper purpose. The Federal Court hearing resulted in the original date for the examination having to be adjourned. The Federal Court dismissed the challenge in January 2008.
The CDPP commenced proceedings against Mr Washington in the Magistrates Court in Victoria for failing to attend the proposed examination. On 28 November 2008 the CDPP decided to withdraw the proceedings on the basis that ‘there was no continuing enforceable requirement (for Mr Washington) to attend’ the proposed adjourned examination.
Commonwealth Director of Public Prosecutions v Tribe
In September 2008, Ark Tribe was served with a notice to attend and answer questions at a proposed ABCC examination on 2 October 2008. Mr Tribe failed to attend the proposed examination. The ABCC referred the matter to the CDPP in January 2009.
The CDPP made the decision to commence proceedings against Mr Tribe, filing proceedings in the Magistrates Court on 11 February 2009.
The hearing commenced on 15 June 2010. During proceedings the parties made submissions as to whether an ABCC officer was a proper complainant, or whether the complaint had to be made by the ABC Commissioner.
On 18 June 2010 Magistrate Whittle ruled in favour of the CDPP's submission that any person could be a proper complainant.
The hearing took place on 20-22 July 2010 and the parties made additional legal submissions to the Court on 13 September 2010.
On 24 November 2010 Magistrate Whittle found Ark Tribe not guilty of failing to attend a compulsory examination with the ABCC.
Compliance powers reports
The ABCC regularly issues a report on the exercise of its compliance powers. These reports cover the ABCC use of its compliance powers since 1 October 2005.