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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1109 ..

amendment further specifies that the issuance of a mandatory requirement on the corporation or partnership by the nominee is only a defence against prosecution if the failure to comply with the mandatory requirement is the reason for the nominee committing an offence under this clause.

MRS DUNNE (5.08): The Liberal opposition will be supporting these amendments because they clarify the situation with the nominees. The issue in relation to nominees is causing angst in the building industry. On reflection, and as a result of discussion, especially with the drafters, I see that the concerns are not strongly founded, but again this is one of the messages that the minister and his officials need to get out into the community. We will be supporting these amendments because they clarify the situation.

MS TUCKER (5.08): The Greens will be supporting these amendments. The role of nominees in providing work quality assurance and in having a somewhat public role in that regard has been somewhat contentious. This clause provides that both the nominee and the construction company would commit an offence if they failed to supervise relevant construction services or failed to ensure that those services comply with the act. Interestingly, in regard to the nominee, the HIA and the MBA have interpreted the clause as being an issue primarily of discipline. They argue that it should be the company’s or partnership’s responsibility to discipline a nominee for doing the wrong thing and that only if the company fails to effectively discipline the nominee can and should the registrar take action against it.

They have argued “this process recognises the sanctity of the employment relationship as well as the fiduciary duty that a nominee owes to the company or partnership”. The Greens would take the view that the employment relationship does not enjoy such sanctity and that nominees for a construction company also owe a responsibility to the public through the registrar. This clause ensures that the nominee carries the personal responsibility for ensuring that the work is supervised and complies with the act. If they the company do not accept directions when it is mandatory to do so, then the nominee will not be held accountable for the actions of that company.

While the HIA and MBA may prefer that nominees are simply qualified employees of the business this more public role for nominees delivers improved quality assurance and accountability. This amendment is important; however, it echoes an improvement of the process discovered in the development of the Architects Bill, which we can expect to debate shortly. The bill, as presented, would ensure that a nominee would not be committing an offence if they gave their employer and the registrar the mandatory notice. These amendments make clear that the nominee is protected only if the mandatory requirement that was ignored would have otherwise prevented failure.

MS DUNDAS (5.10): The Democrats will be supporting these amendments also. I understand that they simply clarify that a building nominee is exempted from prosecution for an offence if they notify the firm of particular events against the act and that has not been complied with.

Amendments agreed to.

Clause 31, as amended, agreed to.

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