Statement by ABC Commissioner Leigh Johns
I welcome the decision and the further clarification it provides about the exercise of my functions and powers.
As Whittle SM states,
It is appropriate for the court to require those vested with the power and responsibility to infringe in this way upon the normal rights of citizens to comply strictly with their legislative obligations: para 126
I agree.
I understand that workers in the building and construction industry resent the existence of a compulsory examination process that does not apply in other industries when contraventions of workplace laws are being investigated.
I sympathise with that feeling and would prefer not having to use the power.
However, that would not be a responsible course.
The ongoing level of industrial unlawfulness in the building and construction industry, especially in Victoria and Western Australia, means that the continued use of section 52 is, regrettably, necessary.
The reality is that, without such a power, some types of contravention would be almost impossible to prove because the "culture of silence" in the industry continues.
However, there would be less section 52 examinations if:
- employers and the staff of contractors and head contractors (in particular) did not insist that the ABCC issue a section 52 notice in circumstances where they should more readily voluntarily assist the ABCC in its investigations. These requests account for nearly 35% of examinations; and
- employees and their union representatives provided information about health and safety matters or "their side of the story" voluntarily and early in the investigation. Just under 50% of section 52 examinations would not have occurred if this type of voluntary assistance had been provided.
Since becoming the ABC Commissioner, I have voluntarily adopted the criteria for use of section 52 suggested by the Hon. Mr Wilcox QC (in his 2009 Report).
Section 52 will be only be used, as a last resort, where:
- the ABC Commissioner (or his delegate) has commenced an investigation;
- there are reasonable grounds to believe that a particular person has information or documents relevant to that investigation;
- it is likely to be important to the progress of the investigation that this information or evidence be obtained; and
- it is reasonable to require the attendance, 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 on the person being required to do so
I note the decision makes no finding of wrong-doing by any ABC Inspector or the then Deputy ABC Commissioner. The decision concerns important technical matters.
Having regard to the particular findings of Whittle SM:
- [Para 127], the issue of the "no lawful delegation" to the Deputy ABC Commissioner is remedied by the fact that I have already announced that, as ABC Commissioner, I will personally be presiding over section 52 examinations. Whittle SM's decision validates my decision to do so;
- [Para 128], I am seeking advice about the issue of there not being "an investigation by the ABC Commissioner" and, subject to receiving that advice, I will likely delegate (by use of section 13) my functions under section 10 of the BCII Act to all ABC Inspectors; and
- [Para 129]; future notices will state the person before whom the intended examinee will be required to appear (i.e. me). As such we will be asking the Government to amend the Schedule 7.7 (Regulation 7.10) Form.
As Commissioner, I remain determined that the ABCC evolve into a "full service regulator" in the building and construction industry, available to all industry participants, and bringing about fair and productive building and construction work.