Compliance powers
Section 52 of the BCII Act gives the ABC Commissioner power to compel a person to:
• provide information;
• produce documents; or
• attend to answer questions at an examination.
Why would the ABC Commissioner exercise compliance powers?
The ABC Commissioner may exercise compliance powers for purposes of an investigation into a contravention by a building industry participant of:
• the Building and Construction Industry Improvement Act 2005;
• the Workplace Relations Act 1996;
• the Independent Contractors Act 2006; or
• an award or transitional award, a collective agreements or pre-WorkChoices certified agreement, an order of the Australian Industrial Relations Commission, or the Australian Fair Pay and Conditions Standard.
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 ABC 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 can be contacted to answer any questions arising in relation to the notice.
Any action taken relating to the use of compliance powers is in accordance with the ABCC’s policy entitled Guidelines in relation to the exercise of Compliance Powers in the Building and Construction Industry October 2005 (the Guidelines). The Guidelines advise building industry participants of their rights and obligations and explain how examinations will be conducted.
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. The case is currently the subject of a further appeal to the Full Court of the Federal Court.
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.
Further information about the Bonan v Hadgkiss decision can be found in our media statement - Federal Court finds ABCC had the power to exclude solicitor (PDF 35KB) and our Media Backgrounder – Bonan v Hadgkiss (PDF 31KB).
What happens if I refuse to comply?
Non-compliance with such a notice is a serious offence under subsection 52(6) of the BCII Act with a penalty of up to six months’ imprisonment.
Further information
Further information about the ABCC’s compliance powers is available from our fact sheet, Compliance Powers of the Australian Building and Construction Commissioner and the Guidelines in relation to the exercise of Compliance Powers in the Building and Construction Industry (PDF 68.5KB).
The ABCC regularly produces reports into the use of its compliance powers;
Compliance powers Report 1 October 2005 - 31 March 2008 (PDF 60KB)
Compliance Powers Report 1 October 2005 - 31 August 2007 (PDF 63KB)
Compliance Powers Report 1 October 2005 - 30 June 2006 (PDF 70KB)
Compliance Powers Report 1 October 2005 - 31 December 2006 (PDF 73.9Kb)