When investigating a suspected contravention, Australian Building and Construction Inspectors (ABC Inspectors) will use all avenues available to them to seek relevant information voluntarily. If information cannot be voluntarily obtained, the Australian Building and Construction Commissioner (ABC Commissioner) may consider using examination powers contained in the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act).
What are the examination powers of the ABCC?
With the appropriate approval, the ABC Commissioner may require you to:
- attend and answer questions at an examination
- provide information
- produce documents.
The ABC Commissioner can legally use the powers if they believe on reasonable grounds that a person:
- has information or documents relevant to an investigation
- is capable of giving evidence relevant to an investigation.
When can the ABC Commissioner use the examination powers?
The ABC Commissioner may use their examination powers to investigate a suspected breach by a building industry participant1 of:
- the BCIIP Act
- the Fair Work Act 2009 (including the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009)
- the Independent Contractors Act 2006
- an award or transitional award
- workplace agreements
- pre-reform certified agreement or a pre-reform Australian Workplace Agreement
- an order of the Fair Work Commission
- the Australian Fair Pay and Conditions Standard
- a fair work instrument
- the National Employment Standards.
The powers can only be used if approved by a nominated presidential member of the Administrative Appeals Tribunal (AAT). The AAT must be satisfied certain criteria are met before issuing an examination notice, including that other methods have been attempted to obtain the information. The other methods may include voluntarily providing information and cooperating with an ABC Inspector’s investigation.
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 outlined 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 at www.ombudsman.gov.au/publications/reports/inspection.
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 which will have been issued by a presidential member of the AAT. The notice, which is a legal document, will come with a letter designed to help you understand your rights and obligations for the proposed examination.
How much time do I have to comply?
The Notice will specify a time which is at least 14 days from the date on which you are given the notice for you to comply with it. 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?
If you are required to attend an examination, you are entitled to be paid fees and allowances, fixed by or calculated in accordance with relevant rules. You can claim reasonable expenses incurred in attending the examination.
You are not entitled to be paid for expenses unless you apply, in writing, to the ABC Commissioner for payment of the expenses within three months after the examination is completed. You must give the ABC Commissioner sufficient evidence to establish that you incurred the expenses. Your 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:
- don’t attend to answer questions or fail to answer questions while attending
- fail to provide the required information or documents as listed in the notice
- fail to take the required oath or affirmation.
Penalties include imprisonment for six months and/or a fine of up to $6,300.
Can I disclose what happened in my examination?
Yes, you are not restricted from disclosing information about your examination.
The information you provide in an examination is considered protected information. ABCC staff are not allowed to publicly disclose this information except in limited circumstances. Read more about how your personal information can be used by the ABCC at abcc.gov.au/your-personal-information.
Will the examination be recorded?
Yes, so that there is an accurate record of what occurs in the examination, it will be recorded. 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, and you will have a chance to suggest corrections. The examination will also be video-taped.
Can the information I provide be used as evidence against me in court?
No. Neither information you provide, nor information taken 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?
Contact us directly for more information or advice about your individual circumstances:
- Hotline: 1800 003 338
- Email: enquiry [at] abcc.gov.au
- Website: www.abcc.gov.au
1To learn more about what defines a ‘building industry participant’ and ‘building work’ please refer to the ‘Our jurisdiction’ fact sheet, available at abcc.gov.au/resources.