The Federal Court today ruled that Deputy Australian Building and Construction Commissioner, Nigel Hadgkiss had the power to exclude a solicitor from representing a witness at an examination and there was a proper basis for him to use his discretion to exclude in this case.
This is the first time the Australian Building and Construction Commissioner’s (ABCC) compliance powers have been challenged.
Today the Judge ruled in the ABCC’s favour on the following grounds;
- Section 52 examinations are to be held in private;
- the Deputy ABC Commissioner has the power to make a non-disclosure direction;
- the Deputy Commissioner must have the power to regulate and control the conduct of proceedings before him and make orders to ensure the integrity of the investigation;
- the Deputy ABC Commissioner has the power to exclude a particular legal practitioner; and
- there was a proper basis for the exercise of the discretion to exclude Ms Boots.
The Judge concluded:
“The respondent had the power to make a direction that Ms Boots not act or appear for the applicant at the examination and there was a proper basis for the exercise of the discretion to make such a direction. However, the direction actually made by the respondent went further than this, and, to the extent that it did, it is beyond power.”
The Court proposed both parties make submissions within seven days on the appropriate form of direction and orders.
ABC Commissioner John Lloyd made the following statement:
“We welcome the decision. Today’s decision affirms and clarifies the ABCC’s compliance powers.
“The compliance powers have proven to be an effective method of obtaining information from reluctant witnesses. The use of these powers has assisted investigations which would otherwise have stalled.
“We will continue to exercise these powers in accordance with the legislation and only as a last resort where witnesses have evidence relevant to an investigation but have declined to cooperate with ABC investigators.”