Australian Building and Construction Commissioner Leigh Johns today announced changes to the use of powers under s.52 of the Building and Construction Industry Improvement Act 2005 (BCII Act)
This follows a review conducted by ABC Commissioner Johns in the wake of the decision in Commonwealth Director of Public Prosecutions v Tribe (Ark) (the Tribe Decision).
‘This review was essential. As a public official, I must ensure we are deliver public value, and exercise the powers conferred on us by the Australian Parliament strictly in accordance with the letter of the law,’ Commissioner Johns said.
The BCII Act provides that the ABC Commissioner, if he believes on reasonable grounds that a person has information relevant to an investigation, may issue a written notice under section 52 of the BCII Act requiring that person to attend and give information to the ABC Commissioner.
ABC Commissioner Johns conducted a review of the practice and procedure and requirements for exercising these powers, in light of recommendations made by Honourable Murray Wilcox QC, and the Tribe Decision. As a result of this review Commissioner Johns has taken the following steps:
- Ensured, through internal procedures, that the criteria recommended by the Hon. Mr Wilcox QC are applied before a decision to issue a section 52 notice will be made.
- Adopted the recommendation of the Hon. Mr Wilcox QC to reimburse s.52 examinees the reasonable cost of travel, accommodation and other associated expenses (including, in appropriate cases, lost wages) caused by their attendance under a s.52 Notice.
- Requested that the Government amend the Schedule 7.7 (Regulation 7.10) Form to address the failure in the Tribe case of the regulated s.52 notice to state the person before whom the intended examinee is required to appear.
- Confirmed that he will personally preside over all section 52 examinations to address the issue in the Tribe decision of there being ‘no lawful delegation’.
- Formally delegated functions under section 10 of the BCII Act to all ABC Inspectors to cure the last remaining defect identified in the Tribe Decision.
- Decided to invite additional external scrutiny of the exercise of section 52.
Further, Commissioner Johns undertook a comprehensive evaluation of all ABCC investigations active at the time of the Tribe Decision where s.52 was contemplated or had been used.
‘These powers are serious and are only ever used as a last resort. This extensive review and modification of the use of the s.52 powers demonstrates my commitment to exercising these powers diligently and only where necessary and appropriate,’ said Commissioner Johns.
Full detail of the ABC Commissioner’s review can be found at: ABC Commissioner review of practice and procedure – s.52 powers