Heydon RC Recommendations

The recommendations of the Heydon Royal Commission noted here are

R1 Commonwealth and State governments give consideration to adopting a national approach to the registration, deregistration and regulation of employee and employer organisations, with a single regulator overseeing all such organisations throughout Australia. 

R2 State governments give consideration to the recommendations concerning the Fair Work (Registered Organisations) Act 2009 (Cth) with a view to implementing, where appropriate, those recommendations in State legislation governing State-registered organisations. 

R3 All regulatory functions of the General Manager of the Fair Work Commission and the Fair Work Commission insofar as they apply to registered organisations under the Fair Work (Registered Organisations) Act 2009 (Cth) be transferred to a new Registered Organisations Commission. The Registered Organisations Commission should be an independent stand-alone regulator. The structure of the Australian Securities and Investments Commission may provide a useful legislative model. 

R4 The Commonwealth government ensure that the registered organisations regulator is properly resourced to carry out its functions, with a separate budget for which it is accountable. 

R5 Sections 330 and 331 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to allow the registered organisations regulator to make inquiries and conduct investigations as to whether criminal offences contrary to the Fair Work (Registered Organisations) Act 2009 (Cth) have occurred. The meaning of the ‘rules of a reporting unit relating to its finances or financial administration’ be clarified to include any rules concerning officers or employees that may have a direct or indirect effect on the finances or financial administration of a reporting unit. 

R6 The registered organisations regulator have information-gathering and investigative powers similar to those conferred on the Australian Securities and Investments Commission. In particular, the registered organisations regulator be given a general power to inspect the books and records of an organisation for the purpose of ensuring compliance with the Fair Work (Registered Organisations) Act 2009 (Cth). 

R7 Amendments be made to the Fair Work (Registered Organisations) Act 2009 (Cth) to amplify the existing enforcement powers of the registered organisations regulator. In particular: (a) ss 336(1) and 336(2)(a) be amended to clarify that the registered organisations regulator may take action in relation to breaches of rules by persons other than a reporting unit; and (b) the registered organisations regulator have a power to accept an enforceable undertaking. 

R8 Section 154D of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed and replaced with a statutory provision requiring: (a) all members of the committee of management of an organisation or branch, and all officers whose duties relate to the financial management of the organisation or branch, to undertake approved training; and (b) the Secretary of an organisation or branch to ensure that employees of the organisation or branch involved with the finances or financial administration of the organisation or branch complete approved training. The registered organisations regulator’s power to conduct inquiries and investigations should include contraventions of this statutory provision. Contravention by a person of the statutory obligations should entitle the registered organisation regulator to disqualify the person from acting as an officer of an organisation or branch for a period of up to two years. 

R9 Section 141(1)(ca) of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed. A new civil penalty provision be introduced requiring organisations and branches to adopt, in accordance with their rules, policies binding on all officers and employees concerning financial management and accountability. The required policies should include policies concerning financial decision-making, receipting of money, levels of authorisation of expenditure, credit cards, procurement, hospitality and gifts, the establishment, operation and governance of related entities and any other matter prescribed by regulations. Organisations or branches should be required to review their policies every four years and to lodge a copy of their current policies with the registered organisations regulator. 

R10 A new division dealing with financial disclosures by ‘reporting units’ to their members be introduced to Part 3 of Chapter 8 of the Fair Work (Registered Organisations) Act 2009 (Cth) to replace and strengthen existing provisions concerning financial disclosure. The regime would require ‘reporting units’ to lodge audited financial disclosure statements with the registered organisations regulator on discrete topics, including (a) loans, grants and donations by the reporting unit, (b) remuneration of officers and (c) credit card expenditure. Civil penalties should apply to reporting units that fail to comply with their obligations under the regime. Further, civil penalties should also apply to officers who knowingly or recklessly make a false statement in a financial disclosure statement. 

R11 Officers with responsibility for ensuring compliance by a reporting unit with its financial obligations under the Fair Work (Registered Organisations) Act 2009 (Cth) be subject to civil penalties if they fail to take all reasonable steps to ensure the reporting unit complies with its financial obligations. 

R12 All reporting units be required to appoint a financial compliance officer with responsibility for ensuring compliance by the reporting unit with its financial obligations under the Fair Work (Registered Organisations) Act 2009 (Cth), regulations and reporting guidelines and the reporting unit’s financial policies and rules concerning finances. The financial compliance officer must be separate and independent from the Secretary. The compliance officer be subject to a statutory obligation to report any reasonably suspected breaches to the committee of management. 

R13 Auditors of reporting units be required to be registered with the registered organisations regulator. A person be entitled to be registered if the person is either (a) a registered company auditor or (b) if the registered organisations regulator is satisfied that the person has the required accounting qualifications and is a fit and proper person. The registered organisations regulator be empowered to suspend or cancel registration if satisfied that the person is (a) not a fit and proper person or (b) has failed to comply with the duties of an auditor under the Fair Work (Registered Organisations) Act 2009 (Cth). 

R14 In order to improve auditor independence: (a) The definition of ‘excluded auditor’ be expanded to include a broad class of individuals who may lack independence including any person in a ‘conflict of interest situation’. (b) The auditor rotation requirements of the Corporations Act 2001 (Cth) be applied to auditors of all reporting units. 

R15 The existing civil penalty provisions for contraventions by auditors be retained. However, the maximum penalty for an individual be increased from 60 penalty units to 200 penalty units, with the maximum penalty for a body corporate being 1,000 penalty units. 

R16 A new civil penalty provision be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) requiring organisations and branches to make and keep minutes recording the proceedings and resolutions of committee of management meetings. Documents and papers that are necessary to refer to in order to understand the effect of the minutes also be kept. The documents be retained for a minimum of 7 years. The minutes and associated documents be available upon request by members of the organisation free of charge. 

R17 The obligation to keep financial records in s 252 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to be made a civil penalty provision. 

R18 The categories of persons who can make a protected disclosure under s 337A(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) be expanded to include: (a) a former officer, employee or member of an organisation or branch; and (b) a person contracting for the supply of goods or services, or otherwise dealing with an organisation or branch of an organisation (or an officer or employee of an organisation or branch on behalf of the organisation or branch); and (c) an officer of employee of a person mentioned in (b). 

R19 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended to require the regulatory authorities entitled to receive a protected disclosure to investigate the disclosure within a specified period. 

R20 Section 337C of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed and replaced with a provision in similar terms to s 19 of the Public Interest Disclosure Act 2013 (Cth) prohibiting reprisal action against whistleblowers. This would lead to an increase in the existing maximum penalty for reprisal to two years’ imprisonment, or a fine of 120 penalty units, or both. 

R21 The definition of ‘prescribed offence’ in s 212 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended so that a person convicted of an offence against s 337C is automatically disqualified from holding office in an organisation or branch. 

R22 Provisions similar to ss 15 and 16 of the Public Interest Disclosure Act 2013 (Cth) be enacted to enable a whistleblower who is the victim of reprisal action to obtain a mandatory injunction, an apology or an order of reinstatement to employment. 

R23 Section 190 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to prohibit an organisation or branch using, or allowing to be used, its property or resources to help a candidate in an election for office in any registered organisation or branch. This recommendation is reflected in the model legislative provisions in Appendix 1 of Volume 5 of the Report. 

R24 No recommendation is made to repeal ss 182(2), 183–186 of the Fair Work (Registered Organisations) Act 2009 (Cth) at this time. On the assumption that those sections remain, that Act be amended to require an organisation or branch that has an exemption under s 186 to lodge a report with the registered organisations regulator after the completion of an election conducted pursuant to the exemption. The report should include details about how the election was conducted, whether any complaints were received and how those complaints have been addressed. 

R25 The definition of ‘office’ in s 9 of Fair Work (Registered Organisations) Act 2009 (Cth) be amended to include, in addition: (a) an office of financial compliance officer of the organisation or branch; (b) an office of a person who makes, or participates in making, decisions that affect the whole or a substantial part, of the organisation or branch; (c) an office of a person who has the capacity to affect significantly the financial standing of the organisation or branch; and (d) an office of a person in accordance with whose instructions or wishes the members of the committee of management of the organisation or branch are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the organisation or branch). 

R26 Section 283 of Fair Work (Registered Organisations) Act 2009 (Cth) be repealed to align the statutory duties of officers of registered organisations with their general law duties. 

R27 Section 286(1)(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended by inserting the words ‘honestly and reasonably’ before the word ‘believes’. 

R28 The civil penalties for contravention of ss 285-288 of the Fair Work (Registered Organisations) Act 2009 (Cth) be substantially increased. A distinction should be drawn between a ‘serious contravention’ and other contraventions. The maximum penalty for a ‘serious contravention’ should be 1,200 penalty units (currently $216,000) with no penalty for a contravention that is not a ‘serious contravention’. No distinction should be drawn between paid officers and volunteers. ‘Serious contravention’ should be defined as proposed in the Fair Work (Registered Organisations) Amendment Bill 2014 [No 2] (Cth). Consideration should also be given to amending the Corporations Act 2001 (Cth) to specify the maximum penalty for breaches of directors’ duties by reference to 1,200 penalty units rather than the fixed amount of $200,000. 

R29 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended by introducing a new s 290A that imposes criminal liability on officers of registered organisations or branches who dishonestly or recklessly breach the statutory duties imposed on them by ss 286-288 of the Fair Work Registered Organisations Act 2009 (Cth). The section be modelled principally on s 184 of the Corporations Act 2001 (Cth), except that the reference in s 184(1) to ‘intentionally dishonest’ should be replaced by ‘dishonest’. The maximum penalty should be the same as that under the Corporations Act 2001 (Cth), being 2,000 penalty units ($360,000) or five years’ imprisonment, or both. 

R30 New s 293A be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) prohibiting an organisation or a branch of an organisation (or any related entity of the organisation or branch including any State registered organisation or branch) from indemnifying, paying or reimbursing an officer of the organisation or branch for any fine or civil penalty imposed on the officer for conduct in connection with the organisation or branch. The provision may usefully be based on ss 199A-199C of the Corporations Act 2001 (Cth). Contravention should be a criminal offence of strict liability. An organisation that contravenes the provision should be subject to a maximum penalty of 500 penalty units ($90,000) and every officer involved in a contravention should be subject to a maximum penalty of 100 penalty units ($18,000). Consideration should be given to reviewing the penalties under ss 199A and 199B of the Corporations Act 2001 (Cth). 

R31 Section 148B of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed and replaced with a civil penalty regime that, broadly speaking, requires officers of registered organisations and branches of registered organisations to disclose material personal interests that they, or their relatives, have or acquire in relation to the affairs of the organisation or branch. Key features of a suggested regime are set out in the body of the report. Consideration should also be given to increasing the penalty for contravention of s 191 of the Corporations Act 2001 (Cth). 

R32 A provision similar to s 195 of the Corporations Act 2001 (Cth) be introduced to the Fair Work (Registered Organisations) Act 2009 that, in broad terms, prevents officers of an organisation or branch who have a disclosable material interest in a matter from being present during any deliberation, or being involved in any decision, about the matter. The provision should be a civil penalty provision with a maximum penalty of 100 penalty units. 

R33 New provisions, modelled on ss 236-242 of the Corporations Act 2001 (Cth), be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) allowing a current or former member or current or former officer of a registered organisation or branch of the organisation to apply to a State Supreme Court or the Federal Court for leave to bring, or intervene in, a proceeding on behalf of a registered organisation. 

R34 The provisions in Part 3 of Chapter 9 of the Fair Work (Registered Organisations Act 2009 (Cth) (ss 297-303A) concerning breach of orders be amended to include orders made by the Federal Circuit Court. 

R35 The maximum penalty for breach of the provisions in Part 3 of Chapter 9 of the Fair Work (Registered Organisations Act 2009 (Cth) concerning breach of court orders by officers and employees of registered organisations or branches be increased to 1,200 penalty units. 

R36 The definition of ‘prescribed offence’ in s 212 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to include an offence under a law of the Commonwealth, a State or Territory, or another country, which is punishable on conviction by a maximum penalty of imprisonment for life or 5 years or more. 

R37 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended to make it a criminal offence for a person who is disqualified from holding office in a registered organisation to continue to hold an office. The offence should be an offence of strict liability with a maximum penalty of 100 penalty units or imprisonment for two years, or both. 

R38 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended by inserting a new provision giving the Federal Court jurisdiction, upon the application of the registered organisations regulator, to disqualify a person from holding any office in a registered organisation for a period of time the court considers appropriate. The court should be permitted to make such an order if the person: (a) has, or has been found to have, contravened a civil remedy provision of the Fair Work Act 2009 (Cth), or a civil penalty provision of the Fair Work (Registered Organisations) Act 2009 (Cth) or the Work Health and Safety Act 2011 (Cth); (b) has been found liable for contempt; (c) has been at least twice an officer of a registered organisation that has, or has been found to have, contravened a provision of the Fair Work Act 2009 (Cth) or the Fair Work (Registered Organisations) Act 2009 (Cth) or has been found liable for contempt while the person was an officer and each time the person failed to take reasonable steps to prevent the contravention or the contempt; (d) has, or has been found to have, at least twice contravened a provision of the Fair Work Act 2009 (Cth) or the Fair Work (Registered Organisations) Act 2009 (Cth); or (e) is otherwise not a fit and proper person to hold office within a registered organisation or branch; and the Court is satisfied that the disqualification is justified. 

R39 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended to require reporting units to lodge an audited financial disclosure statement (see Recommendation 10) providing details in respect of (a) loans, grants and donations (including in-kind donations) made to reporting units in excess of $1,000 and (b) other payments made to reporting units in excess of $10,000. 

R40 Legislation be enacted amending the Fair Work Act 2009 (Cth) to include a provision criminalising the giving or receiving of corrupting benefits in relation to officers of registered organisations, with a maximum term of imprisonment of ten years.  

R41 Legislation be enacted amending the Fair Work Act 2009 (Cth) making it a criminal offence for an employer to provide, offer or promise to provide any payment or benefit to an employee organisation or its officials. Certain legitimate categories of payment should be permitted, subject to strict safeguards. An equivalent criminal offence should apply to any person soliciting, receiving or agreeing to receive a prohibited payment or benefit. A two year maximum term of imprisonment should apply to the commission of these offences. 

R42 Consideration be given, in consultation with the Australian Accounting Standards Board, to amending the Fair Work (Registered Organisations) Act 2009 (Cth) to require reporting units to prepare consolidated financial statements, as well as separate financial statements for the reporting unit’s controlled entities. Consideration also be given to repealing s 148C of the Fair Work (Registered Organisations) Act 2009 (Cth). 

R43 The Fair Work Act 2009 (Cth) be amended to prohibit any term of a modern award, enterprise agreement or contract of employment permitting an employer to deduct, or requiring an employee to pay, from an employee’s salary an amount to be paid towards an election fund. 

R44 Provisions be introduced into the Fair Work (Registered Organisations) Act 2009 (Cth) concerning the registration of election funds in relation to elections for office in registered organisations or their branches. In order to be registered, election funds should be required to meet certain minimum governance standards, operate a separate bank account for election donations and expenditures, and report annually in relation to the operation of that account. Unregistered election funds should not be permitted to receive election donations or make electoral expenditures in connection with elections for office in any registered organisation or branch. This recommendation is reflected in model legislative provisions in Appendix 1 to Volume 5 of the Report. 

R45 Legislation, either standalone or amending the Corporations Act 2001 (Cth), be enacted dealing comprehensively with the governance, financial reporting and financial disclosures required by worker entitlement funds. The legislation should provide for registration of worker entitlement funds with the Australian Securities and Investments Commission, and contain a prohibition on any person carrying on or operating an unregistered worker entitlement fund above a certain minimum number of persons. Key recommended features of the legislative scheme are explained at paragraphs 93 and 95 of Volume 5, Chapter 5 of the Report. 

R46 In consequence of the enactment of the legislation recommended by Recommendation 45, Class Order [CO 02/314] not be extended. In further consequence, s 58PB of the Fringe Benefits Tax Assessment Act 1986 (Cth) be repealed and the fringe benefits tax exemption in s 58PA(a) be amended to refer to registered worker entitlement funds. 

R47 Amendments be made to Chapter 7 of the Corporations Act 2001 (Cth), or relevant regulations, requiring specific disclosure by registered organisations of the direct and indirect pecuniary benefits obtained by them in connection with employee insurance products. The detail and mechanism should be a matter of consultation. In broad terms, the provisions should require: (a) a branch of a registered organisation, and an officer of a branch of a registered organisation, (b) that arranges or promotes a particular insurance product providing cover for employees of an employer, or refers an employer to a person who arranges or provides such a product (whether in enterprise bargaining or otherwise), (c) to disclose in writing to the employer in no more than two pages the nature and quantum of all direct and indirect pecuniary benefits that the branch or any related entity receives or expects to receive, or which are available only to the branch’s members, from the issuer of the product, or any arranger or promoter, or any related entity. 

R48 The Fair Work Act 2009 (Cth) be amended to require an organisation that is a bargaining representative to disclose all financial benefits, whether direct or indirect, that would or could reasonably be expected to be derived by the organisation, an officer of the organisation or a related entity as a direct or indirect consequence of the operation of the terms of a proposed enterprise agreement. A short, simple and clear disclosure document should be provided to all employees before they vote for an enterprise agreement. 

R49 Section 194 of the Fair Work Act 2009 (Cth) be amended to make unlawful any term of an enterprise agreement requiring or permitting contributions for the benefit of an employee to be made to any fund (other than a superannuation fund) providing for, or for the payment of, employee entitlements, training or welfare unless the fund is: (a) a registered worker entitlement fund (see Recommendation 45); or (b) a registered charity. 

R50 A new civil remedy provision be added to the Fair Work Act 2009 (Cth) prohibiting a person from organising or taking (or threatening to organise or take) any action, other than protected industrial action, with intent to coerce an employer to pay amounts to a particular employee benefit fund, superannuation fund or employee insurance scheme. 

R51 Sections 32C(6), (6A), (6B), (7) and (8) of the Superannuation Guarantee (Administration) Act 1992 (Cth) be repealed, and all other necessary amendments be adopted to ensure all employees have freedom of choice of superannuation fund. 

R52 The Competition and Consumer Act 2010 (Cth) be amended so that the penalties for breaches of ss 45D, 45DB, 45E and 45EA are the same as those that apply to other provisions of Part IV of that Act. 

R53 The Competition and Consumer Act 2010 (Cth) be amended to clarify that to prove the existence of an arrangement or understanding, it is not necessary to establish that there be communication between each of the parties to the arrangement or understanding, merely that they hold the same understanding. 

R54 Sections 45D(1)(b), 45DA(1)(b) and 45DB(1) of the Competition and Consumer Act 2010 (Cth) be amended to provide that those sections are contravened where the conduct is engaged in for the purpose, or would have or be likely to have the effect, of causing the consequence identified in those sections. 

R55 The Competition and Consumer Act 2010 (Cth) be amended to provide that a person in competition with the fourth person referred to in ss 45D or 45DA must not knowingly engage in supply or acquisition of services to or from any third persons referred to in those sections with knowledge of the contravention by the first and second persons without first notifying the Australian Competition and Consumer Commission. Contravention of the provision should be a civil penalty provision. 

R56 The Australian Competition and Consumer Commission give consideration to whether its immunity policy in respect of the cartel provisions could usefully be extended to secondary boycott conduct and conduct indirectly leading to a secondary boycott. 

R57 The building and construction industry regulator have concurrent power with the Australian Competition and Consumer Commission to investigate and enforce secondary boycott conduct, and conduct indirectly leading to a secondary boycott, in contravention of the Competition and Consumer Act 2010 (Cth). 

R58 The Australian Competition and Consumer Commission and the building and construction industry regulator report to the responsible Minister and publish the results of all complaints and investigations made concerning, and all proceedings to enforce, the secondary boycott provisions on an annual basis. 

R59 The Competition and Consumer Act 2010 (Cth) be amended to make explicit that: (a) an enterprise agreement under the Fair Work Act 2009 (Cth) is a contract, arrangement or understanding for the purposes of the Competition and Consumer Act 2010 (Cth); and (b) an enterprise agreement that applies to an employer and an employee organisation under the Fair Work Act 2009 (Cth) is a contract, arrangement or understanding that an employer has with the organisation of employees for the purposes of s 45E of the Competition and Consumer Act 2010 (Cth). 

R60 For the purpose of seeking to combat the culture of disregard for the law within the Construction, Forestry, Mining and Energy Union, consideration be given to the enactment of special legislation disqualifying those officers of the Construction, Forestry, Mining and Energy Union that Parliament considers are not fit and proper persons from holding office in any registered organisation or branch for a specified period. 

61 There should continue to be a building and construction industry regulator, separate from the Office of the Fair Work Ombudsman, with the role of investigating and enforcing the Fair Work Act 2009 (Cth) and other relevant industrial laws in connection with building industry participants. 

R62 Legislation be enacted conferring the building and construction industry regulator with compulsory investigatory and information gathering powers equivalent to those possessed by other civil regulators. The powers set out in the Building and Construction Industry (Improving Productivity) Bill 2013 (Cth) appear appropriate in this regard. 

R63 There should be oversight by the Commonwealth Ombudsman of the powers exercised by the building and construction regulator in the manner provided for in the Building and Construction Industry (Improving Productivity) Bill 2013 (Cth). 

R64 Consideration be given to redrafting the use/derivative use immunity provisions in clauses 102 and 104 of the Building and Construction Industry (Improving Productivity) Bill 2013 (Cth) to provide protections equivalent to those available in relation to the powers exercised by the Australian Securities and Investments Commission. 

R65 The building and construction industry regulator continue to investigate and enforce the Fair Work Act 2009 (Cth) and other existing designated building laws. The power of the building and construction industry regulator to commence and maintain enforcement proceedings should not be constrained according to whether any other proceedings in respect of the same conduct have been settled. Accordingly, ss 73 and 73A of the Fair Work (Building Industry) Act 2012 (Cth) should be repealed. 

R66 The Fair Work Act 2009 (Cth) be amended: (a) to increase the maximum penalties for contraventions of ss 343(1), 348 and 355 (coercion) and ss 417(1) and 421(1) (prohibited industrial action) to 1,000 penalty units for a contravention by a body corporate and 200 penalty units otherwise; and (b) to provide that picketing by employees or employee associations is ‘industrial action’, and to deal specifically with the consequences of industrially motivated pickets. 

R67 The civil penalties for contravention of Part 3-4 of the Fair Work Act 2009 (Cth) be increased. The maximum penalty be increased to 1,000 penalty units (currently $180,000). The maximum penalty for contravention of Part 7 of the Work Health and Safety Act 2011 (Cth) be set at $180,000. Consideration also be given to expressing penalties in the Work Health and Safety Act 2011 (Cth) in terms of penalty units rather than dollar amounts. 

R68 Section 513 of the Fair Work Act 2009 (Cth) be amended to include additional permit qualification matters. The additional permit qualification matters are set out in the model legislative provisions in Appendix 1 to Volume 5 of the Report. 

R69 A new provision be inserted into Fair Work Act 2009 (Cth) which requires permit holders to complete approved right of entry training annually in relation to the rights and responsibilities of permit holder. 

R70 A new provision 512A be inserted into the Fair Work Act 2009 (Cth) which creates an obligation on both a registered organisation and an applicant for a right of entry permit to disclose the permit qualification matters. Significant penalties should be imposed for failing to comply with this section.  

R71 Section 510 of the Fair Work Act 2009 (Cth) be amended so that it requires a right of entry permit to be suspended or revoked by the Fair Work Commission if: (a) an official has failed to complete approved training; or (b) a new permit qualification matter has arisen which means the official is no longer a fit and proper person.  

R72 Section 515 of the Fair Work Act 2009 (Cth) be amended by inserting at the end of subsection (1) the words ‘to a fit and proper person’. 

R73 Section 119 of the Work Health and Safety Act 2011 (Cth) and the equivalent provisions of the equivalent State Acts be repealed and replaced with new ss 119 and 119A which provide that prior written notice of entry is to be provided except where the permit holder has a reasonable concern that (a) there has been or is contravention of the Act and (b) that contravention gives rise to a ‘serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard’. 

R74 The Work Health and Safety Act 2011 (Cth) be amended so as to make it clear that the burden of proving that a permit holder has a suspicion that is reasonable for the purposes of s 117(2) or a concern that is reasonable for the purposes of s 119A lies with the person asserting that fact. 

R75 The Fair Work Act 2009 (Cth) and Work Health and Safety Act 2011 (Cth) and the equivalent State Acts be amended to prohibit the exercise of rights of entry by more than two permit holders of the same organisation on the one workplace at the same time. 

R76 The Fair Work Act 2009 (Cth) be amended so that permit holders exercising rights under s 482 or s 483 of that Act must leave a site within a reasonable time if requested to do so by a Fair Work Inspector or Fair Work Building Industry Inspector who is on the site. Further, the Work Health and Safety Act 2011 (Cth) and equivalent State Acts be amended so that permit holders exercising rights under those Acts must leave a site within a reasonable time if requested to do so by an inspector who is on the site. Consequential amendments be made to: (a) confer powers on Fair Work Inspectors, Fair Work Building Industry Inspectors and inspectors under the Work Health and Safety Act 2011 (Cth) to make the above requests; and (b) create civil penalty offences for failure to comply with such requests. 

R77 The Royal Commissions Act 1902 (Cth) be amended to dispense with the requirement for personal service of a summons or notice to produce in circumstances where: (a) a solicitor accepts service on behalf of the addressee; (b) the addressee agrees to an alternative method of service; or (c) (in relation to a notice to produce only) the addressee has been served with a notice to produce previously by the Royal Commission in question, whether that notice was effected personally or otherwise. 

R78 The Royal Commissions Act 1902 (Cth) be amended to increase the penalties for a failure to comply with a summons to attend, a failure to comply with a notice to produce, a failure to be sworn or answer questions, and a failure or refusal to provide documents to at least a maximum penalty of two years’ imprisonment or a fine of 120 penalty units, or both. 

R79 The provisions relating to the reception and use of surveillance device evidence in the Surveillance Devices Act 2004 (Cth) in relation to Royal Commissions be reviewed.