Senate

Revised Explanatory Memorandum

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

OUTLINE

The Building Construction Industry Improvement (Consequential and Transitional) Bill 2005 (the Bill) will provide consequential and transitional provisions for the Building and Construction Industry Improvement Act (BCII Act).

The key provisions of the Bill will:

•

provide application, saving and transitional provisions for the BCII Act;

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make consequential amendments to the Workplace Relations Act 1996 (the WR Act) and other Acts by providing for the insertion of references to the BCII Act, including amendments to the Administrative Decisions (Judicial Review) Act 1977 to exempt decisions made under the BCII Act from its operation.

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facilitate the transfer of certain records of the Royal Commission into the Building and Construction Industry (Royal Commission) to the Australian Building and Construction Commissioner (ABC Commissioner).

Part 1 deals with preliminary matters including the short title of the Bill and commencement provisions for the clauses and schedules of the Bill.

Part 2 contains application and transitional provisions for those sections of the BCII Act where the application of those sections upon commencement would otherwise be unclear.

Part 3 allows regulations to be made.

Schedule 1 makes consequential amendments to the WR Act to accommodate changes made by the BCII Act, and inserts references to the BCII Act.

Schedule 2 amends Commonwealth legislation other than the WR Act to make amendments consequential to the enactment of the Building and Construction Industry Bill 2005 (BCII Bill).

Schedule 3 amends the Financial Management and Accountability Regulations 1997 to prescribe the Office of the ABC Commissioner as a prescribed agency for purposes of the Financial Management and Accountability Act 1997.

FINANCIAL IMPACT STATEMENT

The proposals in this Bill are budget neutral.

NOTES ON CLAUSES

Clause 1 - Short Title

This is a formal provision specifying the short title of the Act as the Building and Construction Industry Improvement (Consequential and Transitional) Act 2005.

Clause 2 - Commencement

Clause 2 sets out a table with commencement information for provisions of this Bill.

The following provisions will commence on the day the Bill receives Royal Assent:

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sections 1 to 3, 5(2), 6 to 9

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items 1 to 7, 10, 12 to 18 of Schedule 1

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Schedules 2 and 3

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other provisions of the Bill not expressly covered by the table.

The following provisions will be taken to have commenced on 9 March 2005:

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section 4

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subsections 5(1), (3) and (4)

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items 8, 9 and 11 of Schedule 1.

Clause 3 - Schedule(s)

Clause 3 provides that each Act and each regulation specified in a Schedule is amended or repealed as set out in that Schedule. Other items operate according to their terms. The amendment of any regulation does not prevent the regulation, as so amended, from being amended or repealed by the Governor-General.

PART 2 - APPLICATION AND TRANSITIONAL PROVISIONS

This Part contains application and transitional provisions for Chapters 5, 6 and 8 of the BCII Act.

Clause 4 - Definitions

Clause 4 provides that unless the contrary intention appears BCII Act means the Building and Construction Industry Improvement Act 2005.

Clause 5 - Chapter 5 of the BCII Act

This clause sets out the application of sections 38, 40, 41 and 42 of the BCII Act.

Sections 38, 40, 41 and 42 of the BCII Act will apply to all building industrial action that occurs after the commencement of those sections, regardless of when the course of action began. After the commencement of those provisions, the occurrence of any building industrial action that is unlawful industrial action (as defined in section 37 of the BCII Act) will be prohibited.

Section 42 modifies the operation of the strike pay provisions of the WR Act and imposes higher penalties for a breach. Payments in relation to any building industrial action occurring after the commencement of these provisions will be prohibited under the BCII Act from that time. Any claims made for strike pay in respect of industrial action occurring after the commencement of these provisions will also be prohibited (subclause 4).

Clause 6 - Chapter 6 of the BCII Act

This clause sets out the application of section 47 of the BCII Act.

Section 47 of the BCII Act will apply to contracts entered into at any time, whether before or after the commencement of that section. Section 47 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 47 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.

Clause 7 - Chapter 8 of the BCII Act

This clause sets out the application of section 64 of the BCII Act.

Section 64 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 64 for three years after commencement. It merely prevents these kinds of agreements from being rendered unenforceable by virtue of only section 64 and does not grant enforceability to an agreement that would otherwise be unenforceable.

Clause 8 - Records of the Building Industry Royal Commission

This clause provides for the transfer of custody of certain records of the Royal Commission into the Building and Construction Industry to the Australian Building and Construction Commissioner (ABC Commissioner) established by clause 9 of the BCII Act.

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.

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.

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

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)).

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.

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.

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

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).

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.

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.

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.

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

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

PART 3 - MISCELLANEOUS

Clause 9 - Regulations

3.1 This clause allows regulations to be made for the purposes of this Bill.

SCHEDULES

SCHEDULE 1 - AMENDMENT OF THE WORKPLACE RELATIONS ACT 1996

Schedule 1 proposes amendments to the WR Act consequential upon the commencement of the BCII Act.

Many of the items will insert references to the BCII Act into the WR Act.

Item 1 provides that unless the contrary intention appears BCII Act means the Building and Construction Industry Improvement Act 2005.

Item 7 repeals and substitutes section 124(1) of the WR Act. This is a substantive provision which would ensure that the AIRC does not have the power to deal with a claim for the making of payment to employees in relation to a period during which those employees engaged, or engage in industrial action (within the meaning of section 4 of the WR Act) or building industrial action that is constitutionally-connected action (within the meaning of section 36 of the BCII Act).

SCHEDULE 2 - AMENDMENT OF OTHER ACTS

Item 1 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 2 provides that new paragraph 4(4)(a) be inserted in the Jurisdiction of Courts (Cross-vesting) Act 1987, to refer to the BCII Act.

SCHEDULE 3 - AMENDMENT OF THE FINANCIAL MANAGEMENT AND ACCOUNTABILITY REGULATIONS 1997

3.1 This Schedule will amend the Financial Management and Accountability Regulations 1997 to prescribe the Office of the ABC Commissioner as a prescribed agency for purposes of the Financial Management and Accountability Act 1997.