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The bill seeking to reestablish the Australian Building and Construction Commission (“ABCC”), being the Building and Construction Industry (Improving Productivity) Bill 2013 (“ABCC bill”),  was passed by majority in the House of Representatives on 19 October 2016. Before the ABCC bills can be become law, they must be approved by a Senate in which the Coalition Government does not hold a majority and where the passage of those bills lay in the hands of minor parties, specifically the Nick Xenophon Team (“NXT”), the Derryn Hinch Justice Party and One Nation. In a statement made on 20 October 2016, Senator Nick Xenophon raised concerns about the propriety of allowing the ABCC to simultaneously play the roles of investigator of breaches of relevant legislation, assessor of compliance with relevant legislative requirements and the imposer of sanctions for breaches. While some have dismissed Mr Xenophon’s comments as an attempt to leverage the Government’s need for his support in exchange for the Government’s later support for NXT proposed bills, it remains that Senator Xenophon’s comments raise some pertinent questions about the separation of powers and whether the ABCC, if passed into law, could survive a challenge in the High Court as to its Constitutional validity on that basis.


While there are a number of government bodies operating at the state level, such as the Building Commission of Western Australia, that play the role of investigator, assessor and imposer (at least the first instance), the critical question for Commonwealth bodies such as the ABCC is whether its administrative functions, namely its investigation and assessment functions, are sufficiently separate from its judicial function as imposer of sanctions. Under the Commonwealth Constitution, a Commonwealth government body cannot exercise judicial and administrative functions simultaneously. This has been a well established principle of Constitutional law since the landmark Boilermakers’ case in 1956.


Reviewing the draft text of the ABCC bill, it appears the ABCC only operates as an inspector and assessor and that all imposition of sanctions are reserved for the Courts. Indeed, comparisons can be drawn to the role and function of the Fair Work Ombudsman under the Fair Work Act.


Notwithstanding Senator Xenophon’s comments, it appears that if the ABCC bill passes, it is likely to survive criticism that it offends the separation of powers doctrine.

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