EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 117

 

 

Issued by the authority of the Minister for Employment and Workplace Relations

 

               Building and Construction Industry Improvement Act 2005

 

Building and Construction Industry Improvement (Accreditation Scheme) Amendment Regulations 2006 (No. 1)

 

The Building and Construction Industry Improvement Act 2005 (the Act) provides for improved workplace relations practices in the building and construction industry in the federal jurisdiction. 

 

Section 78 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005 (the Principal Regulations) established an occupational health and safety (OHS) accreditation scheme, administered by the Federal Safety Commissioner (FSC), for persons who wish to enter into building contracts with the Commonwealth or Commonwealth authorities.  The scheme is known as the Australian Government Building and Construction Occupational Health and Safety Accreditation Scheme (the scheme). 

 

Division 2.8 of the Principal Regulations provides for the review of certain decisions made under the scheme. 

 

The Regulations amend two elements of the review arrangements.  The Principal Regulations have been amended to:

• allow the FSC to act as a reviewing officer for reviews of decisions relating to accreditation made by his or her delegate under the scheme; and
• provide that the reviewer is taken to have affirmed a reviewable decision if a decision has not been made within 90 days after receiving the request. 

 

The Principal Regulations currently provide that the FSC must appoint a person to review accreditation decisions.  The FSC may not conduct the review personally.  The delegate who conducts the review must not have been involved in making the initial decision and the FSC may not personally review accreditation decisions made by his delegate.  The amending regulations enable the FSC to internally review the decisions of his or her delegates, that is, decisions in which the FSC was not personally involved.

 

Regulation 20 also currently provides that the FSC is taken to have affirmed a reviewable decision if the person requesting the review does not receive notice of the review decision within 90 days after receiving the person's request. 

 

The amendment continues to ensure that timely action on the part of officials is encouraged and that access to Administrative Appeal Tribunal (AAT) review is not blocked.  The amendment also removes any perceived interaction between subregulation 20(7) and the mandatory requirement in regulation 21, which requires a reviewer to give notice of a decision within 28 days after it is made.  The intention of this provision is facilitative and beneficial to applicants in that its sole purpose is to trigger the ability to lodge an appeal to the AAT 90 days after the request for internal review has been made. 

 

The Senate Standing Committee on Regulations and Ordinances has raised concerns about how the current subregulation 20(7) interacts with the substantive, internal review provisions in subregulations 20(5) and (6).  Specifically, there was concern that a decision made under subregulation 20(5) might inadvertently be replaced by a deemed decision under subregulation 20(7) if, for some reason beyond the control of the person seeking the review, they did not receive notice of the initial decision.  The amendment seeks to clarify the intended operation of subregulation 20(7) to ensure that it can only operate when no actual decision has been made. 

 

Extensive consultation was undertaken in regards to the developing of the Act.  The Office of the Federal Safety Commissioner undertook extensive consultation with industry associations, employers and government agencies in relation to the Principal Regulations.  It was not considered that further consultation was required as the amendments are minor and technical in nature.  

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations will commence on the day after they are registered.

 

The Minute recommends that Regulations be made in the form proposed.

 

ATTACHMENT

 

Details of the Building and Construction Industry Improvement (Accreditation Scheme) Amendment Regulations 2006 (No. 1)

 

Regulation 1 – Name of Regulations

 

Regulation 1 provides that the title of the Regulations is the Building and Construction Industry Improvement (Accreditation Scheme) Amendment Regulations 2006 (No. 1).

 

Regulation 2 – Commencement

 

Regulation 2 provides for the Regulations to commence on the day after they are registered.

 

Regulation 3 - Amendment of Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005

Regulation 3 provides that the Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005 are to be amended as set out in Schedule 1.

Schedule 1 – Amendment

Item 1 –Regulation 20

This item substitutes regulation 20 to:

• enable the Federal Safety Commissioner to cause an accreditation decision to be reviewed (subregulation 20(6));  and
• provide that the reviewer is taken to have affirmed a reviewable decision if a decision has not been made within 90 days (subregulation 20(9)).

Item 2 –Regulation 21, at the foot

This item inserts a note at the foot of regulation 21 to alert the reader that regulation 21 is not intended to override section 27A of the Administrative Appeals Tribunal Act 1975 (AAT Act).  Regulation 21 is intended to reflect the requirement in s 27A of the AAT Act that a person who makes a reviewable decision should take reasonable steps to notify a person whose interests are affected by the making of the decision and their right to seek review by the AAT.  It is intended as an aid to potential applicants.  If the requirements in regulation 21 are not met in relation to a reviewable decision, the initial decision would not be invalidated.