Background:
- On 11 October 2010, Leigh Johns took up his 3 year appointment as the ABC Commissioner. Since that time ABC Commissioner Johns has conducted a review of the practice and procedure relating to the use of powers under s.52 of the Building and Construction Industry Improvement Act 2005 (BCII Act). As part of that review, Commissioner Johns has considered the report prepared by the Honourable Murray Wilcox QC in March 2009 (the Wilcox Report) and the decision in Commonwealth Director of Public Prosecutions v Tribe (Ark) (the Tribe Decision)
- The BCII Act provides that the ABC Commissioner with specific information-gathering powers. If the Commissioner believes on reasonable grounds that a person:
- Has information relevant to an investigation; or
- is capable of giving evidence relevant to an investigation;
the ABC Commissioner may issue a written notice under section 52 of the BCII Act, requiring that person to give the information to the Commissioner in the manner and form specified in the notice.
The Wilcox Inquiry and Report
- In June 2008 the Honourable Murray Wilcox QC was appointed to undertake consultations concerning the creation of a specialist division for building and construction within Fair Work Australia. The Wilcox Report, delivered in late March 2009 examines the possibility of conferring powers to compel evidence on a specialist division of the FWA, similar to the ABC Commissioner’s powers. The Wilcox Report recommends a specialist division be given similar powers but suggests a number of safeguards to be put in place that do not currently exist in relation to the ABC Commissioner’s powers.
- ABC Commissioner Johns has given consideration to voluntarily adopting the recommendations of the Wilcox Report that relate to information gathering activities.
Decision in Commonwealth Director of Public Prosecutions v Tribe (Ark)
- On 24 November 2010, Whittle SM of the Magistrates Court of South Australia handed down his decision in the case of Commonwealth Director of Public Prosecutions v Tribe (Ark).
- The decision in the case centred on the validity of a notice issued by the then Deputy ABC Commissioner that Mr Tribe attend an examination and provide information to the Deputy ABC Commissioner. Whittle SM found that the then ABC Commissioner had properly delegated his s.52 function under the BCII Act to the Deputy ABC Commissioner, but had not delegated his investigation function under s.10 of the BCII Act meaning that the notice was not valid. Whittle SM also found the notice issued to Mr Tribe did not strictly comply with the legislative requirements, though he decided that this issue would not itself mean the Notice was invalid.
Summary of considerations
ABC Commissioner Johns considered the following questions to determine how he will exercise the s.52 power in the future:
a) Could the ABC Commissioner formalise the criteria for use of the s.52 powers recommended in the Wilcox Report as part of the existing ‘Statement in Support’ process carried out when using the powers?
Wilcox QC recommended that an Administrative Appeals Tribunal (AAT) presidential member be charged with the duty of determining whether a person should be required to attend an examination. Under the Wilcox recommendations, the AAT member would need to be satisfied on the basis of written material that that there were reasonable grounds to believe not only that a particular person had information or documents relevant to an investigation, but that the person was ‘likely to be important in the process of the investigation’ and that the exercise of the power is reasonable ‘having regard to the nature and likely seriousness of the suspected contravention, any alternative method of obtaining the information, evidence or documents and the likely impact upon the person being required to attend and answer questions.’
The ABC Commissioner’s decision to exercise s 52 powers is informed by a Statement in Support of the exercise of the powers prepared by ABC Inspectors and reviewed by ABCC legal officers. The ABC Commissioner has determined that there is no impediment to him requiring those statements in support to address the criteria proposed in the Wilcox Report, including a more detailed ‘threshold test’.
Commissioner Johns notes that he cannot substitute the Wilcox criteria for the test established at s.52(1) of the BCII Act when it comes to deciding whether to exercise his powers. Commissioner Johns will exercise s.52 powers when the test established at s.52(1) of the BCII Act is met and when he is satisfied that the use of the power is reasonable against the considerations referred to by Wilcox QC.
Accordingly, the ABC Commissioner has determined that he will voluntarily adopt the criteria for use of s.52 powers recommended by the Wilcox Report by requesting they be addressed in a Statement of Support before using the powers.
b) Could the ABCC approach an AAT Presidential Member (acting in their personal capacity) to receive reports from the ABC Commissioner about proposed uses of s.52 (unless the industry participant requested a s.52 notice) and take advice from the AAT Presidential member about exercising the powers?
Commissioner Johns has formed the view that an AAT presidential member could not currently perform this role in their capacity as a member of the AAT. The powers and functions conferred on members of the AAT by the AAT Act relate to the constitution of the AAT as a tribunal to review administrative decisions, where jurisdiction to review those decisions is conferred by statute. The AAT does not have a role in reviewing decisions by the ABC Commissioner to exercise statutory powers.
However, a presidential member who was not a Federal Court judge could agree to perform this function in their personal capacity. The ABC Commissioner could approach the AAT with a view to seeking expressions of interest from presidential members of the AAT who would make themselves available, separate from their role as AAT members, to provide advice to the Commissioner about the proposed use of s.52 powers.
There is a risk that, by disclosing information to a member of the AAT for the purposes of obtaining advice, the ABC Commissioner may be in breach of the secrecy provisions in s.65 of the BCII Act.
Accordingly, the ABC Commissioner is considering the mechanisms by which it may be feasible to consult with a member of the AAT before exercising the compliance powers.
c) If an examination is to be conducted in private, could the ABC Commissioner notify the Commonwealth Ombudsman of the intended examination and provide an opportunity for the Commonwealth Ombudsman to monitor proceedings? Could the ABC Commissioner provide the Commonwealth Ombudsman with a transcript of all examinations?
The role of the Commonwealth Ombudsman is to investigate complaints about matters of administration, rather than take an active role in monitoring administrative actions as they take place. For this reason, it is unlikely to be within the scope of the Ombudsman’s functions to attend examinations conducted under s.52 for the purposes of monitoring the conduct of these examinations. The ABC Commissioner had formed the view that the Commonwealth Ombudsman’s power to investigate ‘actions’ that relate to a matter of administration is limited to actions that have been taken and completed, and may not extend to actions that are currently being taken by a prescribed authority.
Unless the Commonwealth Ombudsman initiated its own motion investigation or received a complaint about a particular action related to the exercise of the s.52 powers, there is limited scope for the Ombudsman to be given transcripts of examinations.
Accordingly, the ABC Commissioner will write to the Commonwealth Ombudsman on each occasion, after the s.52 powers are used, and invite the Ombudsman’s office to conduct an own motion investigation of the Commissioner’s use of the powers.
d) Is there any impediment to implementing the proposal to conduct all future s.52 examinations at the ABC Commissioner level?
Commissioner Johns has previously announced his intention to personally conduct all s.52 examinations for the foreseeable future.
The fact that the ABC Commissioner may delegate the s.52 powers or may appoint ‘assistants’ to assist in the exercise of the powers, does not mean the Commissioner is obliged to do so. The ABC Commissioner has the discretion whether to involve others in the exercise of s.52 powers.
The Commissioner confirms his decision to personally issue all notices under s.52 and preside over all examinations.
e) Are there impediments to reimbursing reasonable expenses of those summonsed to attend an examination?
Commissioner Johns has decided to adopt the recommendation of the Hon. Mr Wilcox QC to reimburse s.52 examinees the reasonable cost of travel, accommodation and other associated losses or expenses (including, in appropriate cases, lost wages) caused in responding to a s.52 Notice.
The BCII Act does not provide for the payment of travel and other associated expenses incurred by individuals required to attend before the ABC Commissioner to answer questions.
Commissioner Johns considers that funds allocated to the ABCC can be used to meet the reasonable travel expenses of people that are required to attend a particular place for questioning under s.52.
f) Could the ABC Commissioner ask the Administrative Review Council (ARC) to review and report on the use of s.52 powers against the 20 best practice principles contained in its Report, ‘The Coercive Information Gathering Powers of Government Agencies’ (May 2008, Report No. 48).
The ABC Commissioner has decided to invite the ARC to review the way in which the ABC Commissioner intends to use his s.52 powers. Although requesting external review of the ABC Commissioner’s exercise of his or her powers does not fall expressly within the functions and powers of the ABC Commissioner under the BCII Act, the ABC Commissioner has determined that it is appropriate given the nature of the s.52 powers. Accordingly, he will be writing to the ARC to invite it to conduct a review of the ABCC’s use of s.52.
g) Should the ABC Commissioner reconsider the need to conduct examinations in-private and to make confidentiality directions?
There is an implicit requirement in the BCII Act that examinations under s.52 be conducted in private. Without an amendment to the BCII Act it is unlikely that the ABC Commissioner could conduct any s.52 examinations in public.
However, the Commissioner is not obliged to issue a non-disclosure direction in relation to each examination.
Non-disclosure directions have routinely been made in previous uses of the s.52 powers requiring an examinee from disclosing the nature of the questions asked at the examination until the investigation has concluded or the direction lifted.
As part of this review the ABC Commissioner has decided that, when presiding over s.52 examinations, he will only make a similar direction where it is particularly necessary to protect the integrity of the investigation.
Delegation and legislative requirements when exercising s.52 powers
- In dealing with the issues raised by the Tribe Decision, Commissioner Johns has also:
a) Formally delegated his investigation function under s.10(b) of the BCII Act to all ABCC Inspectors.
b) Decided to take over those investigations that are currently being conducted by ABC Inspectors, where it is proposed to exercise the s.52 powers.
c) Asked the Government to amend the Schedule 7.7 (Regulation 7.10) form to deal with the failure noted by Whittle SM of the s.52 notice form provided in the BCII Regulations to state the person before whom the intended examinee is required to appear.
Impact of the Tribe Decision on current compliance activities
- The ABC Commissioner conducted an extensive review of investigations that were active at the time of the Tribe Decision where s.52 had been used.
- Of the 17 ongoing investigations 12 were the subject of litigation and five were still in the investigation phase. On review it was determined that the Tribe Decision did not impact upon any of the five investigations. Of the 12 matters that were the subject of litigation:
- 2 have been heard and a decision reserved;
- 2 have since been finalised and no further action is required;
- 2 are matters under appeal (for reasons not associated with s.52);
- 1 is to be resolved by agreement between the parties (for reasons not associated with s.52); and
- 5 litigation matters will continue as planned.