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Building and Construction Industry Improvement (Consequential and Transitional) Bill 2005

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2004 - 2005

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT (CONSEQUENTIAL AND TRANSITIONAL) BILL 2005

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and Workplace Relations, the Honourable Kevin Andrews MP)

 



AMENDMENTS TO THE BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT (CONSEQUENTIAL AND TRANSITIONAL) BILL 2005

 

 

OUTLINE

 

The proposed amendments to the Building and Construction Industry Improvement (Consequential and Transitional) Bill 2005 (the C&T Bill) will accommodate proposed amendments to the substantive Building and Construction Industry Improvement Bill 2005 (BCII Bill).

 

The key amending provisions will amend commencement information, application and transitional provisions, and insert provisions dealing with records of the Royal Commission into the Building and Construction Industry.

 

 

FINANCIAL IMPACT STATEMENT

 

The proposals in these amendments are budget neutral.

 

 

 

 



NOTES ON AMENDMENTS

 

 

Item No. 1 - Clause 2, page 2 (table item 2)

Item No. 2 - Clause 2, page 2 (table item 3, column 1)

Item No. 3 - Clause 2, page 2 (table item 4)

Item No. 4 - Clause 2, page 2 (table item 6)

Item No. 5 - Clause 2, page 2 (end of table)

 

1.1       Items 1 to 5 will amend commencement information in subclause (1) of the C&T Bill.

 

1.2       Section 4, subsections 7(1), (3) and (9) will be taken to have commenced on 9 March 2005.

 

1.3       Sections 8, 9, 11 and 12 and subsection 7(2) commence on the day on which the C&T Act receives Royal Assent.

 

1.4       Schedule 1, items 2 to 42 will commence on the day the C&T Act receives Royal Assent.

 

1.5       Schedule 1, items 53, 54 and 56, will be taken to have commenced on 9 March 2005.

 

1.6       Schedule 3 will commence on the day on which the C&T Act receives Royal Assent.

 

Item No. 6 - Clause 3, page 3 (line 2)

Item No. 7 - Clause 3, page 3 (line 2)

Item No. 8 - Clause 3, page 3 (after line 5)

 

2.1       Items 6 to 8 will amend clause 3 of the C&T Bill.  Clause 3 provides that ‘each Act’ specified in a Schedule to the C&T Bill is amended or repealed as set out in the relevant items in that Schedule, and that any other item operates according to its terms.  The amendment will extend operation of clause 3 to include ‘each regulation’.  The amendment will additionally provide that the amendment of any regulation does not prevent the regulation, as so amended, from being amended or repealed by the Governor-General.

 

Item No. 9 - Clause 7, page 4 (after line 11)

Item No. 10 - Page 4, at the end of Part 2 (after line 17)

Item No. 11 - Page 4, at the end of Part 2 (after proposed clause 8)

 

3.1       Items 9, 10 and 11 will amend the C&T Bill by inserting application and transitional provisions for sections 79, 176 and 241A of the Building and Construction Industry Improvement Act 2005 (the BCII Act).

 

3.2       Section 79 of the BCII Act will apply to building industrial action that occurs after the commencement of that section, regardless of when the course of action began.

 

3.3       Section 176 of the BCII Act will apply to contracts entered into at any time, whether before or after the commencement of that section.  Section 176 allows actions that could previously only be brought in the Federal Court to also be brought in the Federal Magistrates’ Court.  The intention of section 176 is merely to improve procedures for access to relief in respect of unfair contracts.  It does not alter the substantive rights or obligations of the parties in any way.

 

3.4       Section 241A of the BCII Act renders certain kinds of agreements (project

agreements) unenforceable.  The proposed application provision preserves the enforceability of project agreements made under State industrial laws before the commencement of section 241A for three years after commencement.  It merely prevents these kinds of agreements from being rendered unenforceable by virtue of only section 241A and does not grant enforceability to an agreement that would otherwise be unenforceable.

 

Item No. 12 - Page 4, at the end of Part 2 (after proposed clause 9)

 

3.5       Item 12 will amend the C&T Bill by inserting proposed clause 11, that provides for the transfer of custody of certain records of the Royal Commission into the Building and Construction Industry (the Royal Commission) to the Australian Building and Construction Commissioner (ABC Commissioner).

 

3.6       Subclause (1) provides that original records of the Royal Commission, held by the Commonwealth pursuant to subsection 22(2) of the Archives Act 1983 (Archives Act), are transferred into the custody of the ABC Commissioner as if the ABC Commissioner received them in accordance with a direction pursuant to subsection 22(3) of the Archives Act.  The clause will facilitate the transfer of records and overcome delays that would arise from procedural processes normally attaching to such a direction.

 

3.7       The records to be transferred to the ABC Commissioner are limited to those that were produced to the Royal Commission and are deemed to be records of the Commonwealth under subsection 22(2) of the Archives Act.  This excludes records that were produced by persons employed or retained by the Royal Commission.  This ensures that internal Royal Commission records are not transferred to the ABC Commissioner.

 

3.8       The transfer is to take place as soon as practicable following commencement of this provision (subclause (2)).

 

3.9       Subclause (3) deals with the manner in which records must be dealt with by the ABC Commissioner.  It allows for records owned by persons other than the Commonwealth to be returned to those persons (paragraph (b)) and ensures that where such records are returned, a copy of the record is provided to the Australian Archives (paragraph (c)).  A sunset clause ensures that the custody of all relevant records is transferred to the Australian Archives within 5 years of the commencement of this section (paragraph (d)).

 

3.10     Subclause (4) provides for the transfer to the ABC Commissioner of an electronic copy of the electronic version of records of the Royal Commission, where the Commonwealth has an electronic version.  The transfer is not contingent on whether the Commonwealth is able to deliver the original of the record under subclause (1).  This deals with the possibility that the record is no longer held by the Commonwealth.

 

3.11     The electronic copy of the electronic version provided to the ABC Commissioner will include any objective coding data attached to that record.  Objective coding data is objective information such as the author and addressee of the record, the date of the record, and the nature of the record.  This data is being provided to assist with the effective management of the records provided to the ABC Commissioner.  Any subjective information attached to the record, such as commentaries or notes about the content of the records made by persons employed or retained by the Royal Commission will not be made available to the ABC Commissioner.

 

3.12     Custody of the electronic version of the records (including both objective and subjective coding data) remains with the Commonwealth.

 

3.13     Subclause (5) enables regulations to be made that would allow the further transfer of records that remain in the possession of the Commonwealth.  This transfer could involve the ABC Commissioner being given either custody of the records, or access to the records (or electronic copies of the records).

 

3.14     Subclause (6) specifies the way in which the ABC Commissioner is taken to have received the records that are transferred to it.  This ensures that the transfer is taken to be for the purpose of the ABC Commissioner performing its functions and powers.  This clarifies the way in which the ABC Commissioner can use and deal with the transferred records.  Paragraph (b) ensures that the transferred records are afforded the same confidentiality as information collected by the ABC Commissioner in the course of its operations.  However, to the extent that the transferred records had already been lawfully made public by other means, their status would not be affected by this subclause.

 

3.15     Subclause (7) specifies that the ABC Commissioner is able to retain the transferred records for as long as the ABC Commissioner considers it desirable for the purpose of exercising powers and functions of office.  This will allow the ABC Commissioner to resist requests from the owners of the records for their return, if this is considered desirable for the purpose of the ABC Commissioner’s powers and functions.  However, the owners will still be able to access the records and make copies.  This subclause will not prevent the owners of records or other parties from initiating court action to retrieve the records.

 

3.16     Subclause (8) ensures that the protection for individuals against self-incrimination that would usually apply to records of a Royal Commission continues to apply to the transferred records.  This means that the ABC Commissioner’s use of the records against the individuals that provided them to the Royal Commission would be subject to section 6DD of the Royal Commissions Act 1902 .  Section 6DD of the Royal Commissions Act 1902 makes inadmissible the fact of the production of the document or other thing.

 

3.17     Subclause (9) ensures that any rights to claim legal professional privilege over the transferred records continue to exist.

 

3.18     Subclause (10) defines terms for the purposes of this clause.

 

Item No. 13 - Page 4, after proposed clause 11

 

4.1       Item 13 will insert a new part entitled ‘Part 3 - Miscellaneous’, and clause 12 into the C&T Bill.  This clause allows regulations to be made for the purposes of the C&T Act.

 

Item No. 14 - Schedule 1, page 5 (after line 8)

Item No. 15 - Schedule 1, page 5 (after proposed item 18)

Item No. 16 - Schedule 1, page 5 (after proposed item 19)

Item No. 17 - Schedule 1, page 5 (after proposed item 21)

 

5.1       Items 14 to 17 will amend Schedule 1 to the C&T Bill to provide for the insertion of references to the BCII Act into the relevant provisions of the Workplace Relations Act 1996 .  Schedule 1 proposes amendments to the WR Act consequential upon the commencement of the BCII Act.

 

Item No. 18 - Schedule 2, page 7 (before line 4)

 

6.1       Item 18 will amend Schedule 2 to the C&T Bill.  Schedule 2 proposes amendments to Commonwealth legislation other  than the WR Act that are consequential to the enactment of the BCII Act.

 

6.2       The proposed amendment will amend paragraph (a) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to insert a reference to the BCII Act.  This amendment will exempt decisions made under the BCII Act from the operation of the ADJR Act.  This is consistent with the existing exemption for the WR Act and its predecessors.

 

Item No. 19 - Page 7 (after line 8), at the end of the Bill

7.1       Item 19 will insert a new schedule entitled ‘Schedule 3 - Amendment of the Financial Management and Accountability Regulation 1997’.  The Schedule will amend the Financial Management and Accountability Regulations 1997 , to prescribe the Office of the Australian Building and Construction Commissioner as a prescribed agency for the purposes of the Financial Management and Accountability Act 1997.