When investigating a complaint, Australian Building and Construction Inspectors will use all avenues available to them to seek the relevant information voluntarily.
If they are unable to obtain the information they require voluntarily, and all avenues have been exhausted, the Australian Building and Construction Commissioner (ABC Commissioner) may consider using the examination powers provided under the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act).
The ABC Commissioner may exercise compliance powers in order to investigate a contravention by a building industry participant of:
- the BCIIP Act
- the Fair Work Act 2009
- the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
- the Independent Contractors Act 2006
- an award or transitional award, workplace agreements or a pre-reform certified agreement or a pre-reform AWA, the Australian Fair Pay and Conditions Standard, a fair work instrument and/or the National Employment Standards.
What are the examination powers of the ABCC?
With the appropriate approval, the ABC Commissioner may require a person to:
- attend to give answers at an examination
- provide information
- produce documents.
The powers can be used where the ABC Commissioner is legally permitted to, and believes on reasonable grounds that a person:
- has information or documents relevant to an investigation
- is capable of giving evidence relevant to the investigation.
The powers can be used only if approved by a nominated presidential member of the AAT and after other avenues available to the ABCC to obtain the required information have been explored. The other avenues include voluntarily providing information and cooperating with an Australian Building and Construction Inspector’s investigation.
When can the Director exercise the examination powers?
The ABC Commissioner may exercise the examination powers for the purposes of an investigation into a suspected breach of designated building laws. 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 Director’s application satisfies the matters listed in the BCIIP Act and any other matter prescribed by the regulations.
How will I be notified that I am required to comply?
You, or your legal adviser, will be given a notice by the ABC Commissioner. The notice will have been issued by a presidential member of the AAT. The notice, which is a legal document, will be accompanied by a covering letter. The covering letter is to help people understand their rights and obligations in respect of 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.
Can I claim the costs of attending an examination?
A person who attends an examination as required by an examination notice is entitled to be paid fees and allowances, fixed by or calculated in accordance with the rules. The person can claim reasonable expenses, other than legal expenses, incurred by the person in attending the examination.
The person is not entitled to be paid for expenses unless the person applies, in writing, to the ABC Commissioner for payment of the expenses within 3 months after the examination is completed and provides to the ABC Commissioner sufficient evidence to establish that the person incurred the expenses. The application must, if a form is prescribed by the rules, be in that form and include any information prescribed by the rules.
What if I do not comply?
You may incur a significant penalty if you:
- 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.
Penalties include imprisonment for six months and/or a fine of up to $5,400.
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. Read more about how your personal information is used by the ABCC.
Will the examination be recorded?
Yes, so that there is an accurate record of what is 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.
Need more information?
For further information, advice or assistance please contact the ABCC at 1800 003 338 or enquiry [at] abcc.gov.au.