What are the examination powers of the ABCC?
During an investigation, the ABC Commissioner may apply to the AAT for a notice to require a person to:
- attend to give answers at an examination
- provide information
- produce documents.
The powers can be used where the ABC Commissioner believes on reasonable grounds that a person:
- has information or documents relevant to an investigation
- is capable of giving evidence relevant to an investigation.
The powers can be used only if approved by a nominated presidential member of the AAT.
Which laws are relevant to examinations?
When investigating a complaint, ABC Inspectors will first seek the required information voluntarily.
If they are unable to obtain the information they require voluntarily, the ABC Commissioner may consider applying to the AAT to approve the exercise of examination powers under the BCIIP Act .
The ABC Commissioner may exercise compliance powers in order to investigate a contravention by a building industry participant of:
When can the ABC Commissioner exercise examination powers?
The ABC Commissioner may exercise the examination powers for the purposes of an investigation into a suspected breach of designated building laws (outlined above). To do so, the ABC Commissioner must first apply to the AAT to issue an examination notice.
A nominated AAT presidential member must issue an examination notice if the ABC Commissioner's application satisfies the matters listed in the BCIIP Act and any other matter prescribed by the regulations.
What oversight is there of the exercise of the ABCC’s examination powers?
The Commonwealth Ombudsman reviews the exercise of the ABCC’s examination powers and reports quarterly to the Parliament about examinations conducted by the ABCC and the results of reviews conducted by the Commonwealth Ombudsman. You can view the reports on the Commonwealth Ombudsman website.
How will I be notified that I'm required to comply?
You will be served with the notice issued by the AAT.
The notice will be accompanied by a covering letter which explains your rights and obligations regarding the proposed examination.
How much time do I have to comply?
You will have at least 14 days to comply with a notice. In exceptional circumstances, a written request for a change or an extension of time may be granted. Details on how to apply for an extension are outlined in the covering letter. Alternatively, you may contact the ABC inspector.
Can I claim the cost of attending an examination?
Yes, a person can claim reasonable expenses, other than legal expenses, incurred in the process of attending the examination.
A person who attends an examination, as required by an examination notice, may be entitled to be paid fees and allowances if they:
- apply, in writing, to the ABC Commissioner for payment of the expenses within three months after the examination is completed
- provide to the ABC Commissioner sufficient evidence to establish that you incurred the expenses.
If you receive an examination notice, you will also be provided with an expenses claim form.
What if I don't comply?
A person commits an offence if they have been served with an examination notice and they:
- do not attend to answer questions, or fail to give answers while attending
- fail to provide the required information or documents as set out by the notice
- fail to take the required oath or affirmation.
The maximum penalty is imprisonment for six months.
May I disclose what happened in my examination?
Yes. You are not restricted from disclosing information from your examination.
The information provided in an examination is considered protected information. ABCC staff are not allowed to publicly disclose this information except under certain circumstances under the law.
Will my examination be recorded?
Yes. This is to ensure that there is an accurate record of what was said.
A person operating the recording equipment may be in the room. A transcript of the recording will be provided to you within a reasonable period after the examination, providing you with an opportunity to suggest corrections. The examination will also be video-taped.
Will information I provide be used as evidence against me in court?
No. Neither information you provide, nor information derived from what you provide, can be used against you in court, unless you are being prosecuted for:
- failing to comply with the notice
- knowingly providing false or misleading information, answers or documents
- obstructing, hindering, intimidating or resisting a Commonwealth official in the performance of the official's functions.