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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Building and Construction Industry Security of Payment (Review) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 July 2017.)

Mr WINGARD (Mitchell) (11:03): I rise today to speak on the Building and Construction Industry Security of Payment (Review) Amendment Bill. I say to the house that I will be supporting this bill through this house but reserve my right to make any amendments between the houses pending the answers to questions in the committee stage and further consultation with stakeholders. We notice that this has been floating around the place for quite a while; in fact, in December 2015 the Senate Economics References Committee—

The DEPUTY SPEAKER: Excuse me, member for Mitchell. Before you continue, we just need to establish if you are the lead speaker.

Mr WINGARD: Yes, I am.

The DEPUTY SPEAKER: You are on unlimited time.

Mr WINGARD: Thank you. As I was saying, in December 2015 the Senate Economics References Committee inquiry into insolvency in the Australian construction industry found:

It is a fundamental right of anyone who performs work in accordance with a contract to be paid without delay for the work they have done.

We looked further and progressed a pathway to get to the point we are at today. Since 2015, quite a bit of time has passed and a lot of consultation has taken place. I know that the Office of the Small Business Commissioner has done a lot of work in this space and I have had briefings with him. I thank him very much for his time and his input.

Under the regime of the act, a claimant is deemed to be entitled to a payment on a claim pursuant to the act unless the respondent provides a payment schedule setting out how or why payments will be made or withheld. If a claimant is dissatisfied with the payment schedule offered by the respondent, a claimant can take the matter to adjudication via the authorised nomination authority, which will appoint an adjudicator.

Alternatively, if the respondent simply fails to provide a payment schedule, or provides a payment schedule but fails to pay in accordance with it, then any unpaid part of the claim automatically becomes a debt and is able to be enforced through a court. I mentioned that the Small Business Commissioner has had quite an extensive look at this. The concern really centres around the way these payments are transferred through. Of course, we always want businesses to be paid. Cash flow in this industry is very important, and the industry works together to make sure that this cash flow is passed through so that everyone can keep surviving.

We know that there are a number of legislative changes with this bill, and we will talk more about those at the committee stage, but there are a number of non-legislative changes as well. One of the non-legislative changes is the establishment of ongoing education programs to promote the legislation and educate the broader industry. That is something the Small Business Commissioner raised. I am very interested to see how this education is going to happen, how the measure of success will be put in place to know that this education is working and kicking through and also how much this education program will cost.

How much is the government intending to spend on this education program? I know that the industry as a whole has been working very hard to educate their members as such, and they are very keen to improve the outcomes from the education and engage in that aspect of the proposed regulatory changes that are on the table. What we fundamentally have here are a number of issues we need to talk about with this legislation. We will tick through a few of them and, as I pointed out already, we will be exploring these further at the committee stage.

One of the key points is the Christmas shutdown period, which was outlined in the legislation. I thank the Small Business Commissioner for coming forward with that. What this in fact says is that the Christmas shutdown period will be from 22 December to 10 January. As a whole, I think the industry finds making this change to be a good outcome; in fact, I think it was suggested by industry. They see that it will stop an ambush of security of payment claims just prior to shutting down for the Christmas period, so that is a very good thing. This bill also proposes to make the commissioner responsible for the administration of security of payment. Whilst as a whole this looks like quite a promising aspect, there are some clarifications that we may seek to find out. That is another provision that the amendments make.

The publication of adjudication decisions is something else that this amendment puts forward. Clause 5 provides that the powers of the commission will extend to the publication of adjudication determinations. Clause 6 allows for a $20,000 penalty if copies of determinations are not provided by the authorised nominating authority as required. However information that is protected by legal professional privilege, or might tend to be self-incriminating, will be looked at there as well. We have a couple of concerns that we will flesh out a little bit more. With the publication of adjudications, putting up this information and saying that someone has not paid or is not paying can and will potentially cause a lot of issues and some panic within the industry.

We have concerns that if an adjudication goes up and it says that Joe Blow is not making payments, or Mary Jones is not making her payments on time, that could cause a rush against their business and see a lot of people trying to claim their cash and cause a cash-flow problem for that business. We are a little bit concerned that if they go up too early, it could cause a bit of a problem. Again, we will find out a little bit more about that as we go through the committee stage.

Another option is to make the commissioner responsible for the governance of ANAs. This gives quite a bit more power to the Small Business Commissioner. It does not seem to be a major concern, but there could be a couple of issues there that we will flesh out in conversation. The bill also introduces a new crime relating to non-payment, and this is a little bit of a concern. Clause 7 creates a new crime relating to assaults, threats and intimidation relating to non-payment of claims under the act. It states:

A person must not directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate, a person in relation to an entitlement to, or claim for, a progress payment under this Act.

There are a couple of questions that arise here. Firstly, does it include both parties—the person being paid and the person making the payment? There is also the question about the legalities. Why is this not covered under criminal law? You cannot threaten anyone at any stage, whether it is in a building contract or any situation, so criminal law obviously has a place here as well.

The bill also goes on to point out that an individual can be fined up to $50,000 or imprisoned for two years, and a company can be fined up to $250,000. The behaviour of an employee, agent or officer is imputed to the body corporate. Again, the question there is: where does this fit in with criminal law, as far as this is concerned, and what are the implications there? I mentioned some of the non-legislative changes—the regulation changes—and I have mentioned the education program. That is something that we would like to see as well.

There is also talk about the creation of a good behaviour test for principal contractors. The Small Business Commissioner will work with the industry advocate to test principal contractors for behaviour for metropolitan projects costing $4 million or more, or for regional projects costing $1 million or more. It is not yet understood how this duplicates or interacts with the prequalification process and whether the limits are considered reasonable. Industry has a couple of concerns about that.

In relation to the development of a building and construction industry code, the Small Business Commissioner currently has additional powers to compel mediation under industry codes covering farming, the sale of motor vehicles and franchising of newsagents. It is proposed to add a fifth code. The code would allow the commissioner to compel attendance at mediation meetings and other forms of alternative dispute resolution, compel the exchange of information and answer questions, and the power to engage experts.

Failure to comply could trigger penalties of up to $50,000 for corporations and $10,000 for an individual. Parties are not identified for noncompliance, so these codes are really seen as a last resort for managing disputes according to the Small Business Commissioner and getting a bit of clarification around that would be very good.

There have been some concerns out there that some elements of this are like taking a sledgehammer to a walnut, so we will flesh that out again as we have a bit more of a conversation around this. Also, of course, as always, it would come as no surprise that we do not want to see any additional red tape that will decrease productivity in our state. We know we need to keep South Australia moving and across the board South Australia is struggling more than any other state. When you stack us up side by side, South Australia really is doing it quite tough out there, so we want to make sure South Australia is not inhibited by any of this.

There are some other elements that we would like to have a look at with this bill, and we will be raising those. One of the things that I am very keen to explore further—and here may or may not be the place—is that we have a couple of situations in New South Wales. We know that we do not want to see building companies go under, and it is not good when they do. If a building company goes under, a lot of small operators often get hit, hurt, or the worst case scenario is that they go down with them, and that is not something we want to see.

This year we had Dr Ian Oppermann here, the CEO and Chief Data Scientist in New South Wales from their Data Analytics Centre. He gave a briefing in Old Parliament House. I think everyone was invited and I think even a few from the government side came along to have a listen. The member for Colton, who is one of the more senior members of this place—and a departing member, I think, at the next election—was there. It was interesting that an outgoing member showed more interest than others.

Some of the work done in New South Wales at the Data Analytics Centre—and I would like to explore this—in gathering analysis and data means they can actually determine to a fairly high degree of certainty when a builder will become insolvent in the next three years. They can look at the data, the things that are going on in the building industry, and at what the specific builder is doing and they can calculate that to a fairly strong level of certainty. These are the sorts of things that I think in South Australia we need to be looking at, investing in and working on.

I know the government have moved to set up a data analytics centre. They are focusing on child protection first and foremost, but perhaps they are missing an opportunity here to gather some low-hanging fruit. This is something I would be very keen to explore. I also know that there is a national review going on into the security of payments situation through the small business minister's office, which is due later this year. I think there are probably some interesting concerns as to why we did not wait for that federal review to happen to see what comes out of that and to see if there is anything else we can garner from that review that may help in South Australia. That would always be beneficial, of course.

Other states have looked at this as well and looked at opportunities and ways they may or may not alter their legislation. There was a big concern in South Australia that we might follow on from Queensland, so I will be seeking to get assurance that South Australia will not be looking to follow in Queensland's footsteps where they have joint bank accounts on projects. They force both parties to have a joint bank account which is seen to be quite cumbersome and restrictive.

I note that the changes to this bill do not include that and I will be asking the minister whether he has any future thoughts on whether or not there will be the potential to bring in that joint bank account situation for projects between two parties working on any building and construction projects into the future.

They are a few of the points. We know that as far as South Australia is concerned our state is struggling. We are doing it tough and we do not want to be putting more regulation and red tape in place. That is something we are very conscious of on this side of the house. I am not so sure that those on the other side of the house have the same concerns, but it is something that we do not want to see because we know that that inhibits operations and businesses. It slows down the productivity of our state.

We want to make sure that people are safe, we want to make sure that people are getting paid, we want to make sure that the flow of funds is fair and equitable between all parties involved. One of the things, as I raised before, is the fact that the Small Business Commissioner will potentially have the authority to fine an individual and also act in situations where it is deemed there have been threatening or intimidating approaches and/or assault taking place between parties involved in a building and construction situation.

One of the questions also around that is: how many of these do we have? How many situations do we have in the building and construction industry where people have been physically intimidated or threatened, and how many times have assaults taken place on a worksite, around the provisions that we are talking about here? That is something we want to be very mindful of, to be having those quite hefty fines put in place and creating another pathway outside of the criminal law to deal with these things. It will be interesting to find out whether or not there are a great number of cases or, in fact, whether there are any at all. They will be elements that we will need to ask more questions on.

They are a few of the points that I wanted to raise. Again, we do not want to have a situation whereby we are creating more red tape, we are creating a situation where businesses are finding it too difficult to do business here in South Australia and companies are not willing to expand and grow—a small business, a subcontractor. We want to create an environment in which they feel like they can expand, bring a couple of people on and maybe turn their one-person band into a multiple person operation and start to grow and pick up more business and not have that burden of excessive regulation hanging over their head.

That is the sort of environment we on this side of the house want to create. We are focused on doing that. We have already talked about a number of aspects as far as reducing the costs and impacts on businesses. Removing the ESL remissions, we think, will put money back in the pockets of South Australian business and families. We know that will be the case, and that is the sort of thing that fires up an economy, that gets people going.

We want to have a situation where there is more money in the economy when we take government of this great state and we move things forward. We do not want to have a situation where small businesses or, as I said, single-person operators do not feel like they have an environment where they can grow their business and take on more new, young South Australians or potentially South Australians who are looking for work and put them into their operation.

I believe it is highly important that in South Australia our focus has to be on growing our state, growing our jobs and growing opportunity. That is what South Australian people really want. They want an opportunity. They do not want to be hamstrung. They do not want to be tied down. South Australians want the opportunity to be able to go forward. What you will find when you speak to all South Australians is that there is an energy out there. Someone said to me just the other day, 'If South Australia was a state, you'd buy it straightaway. If it was a business, you'd buy it if you could,' because it is not going well, but it does have plenty of upside.

One of the great features of the upside is the people in South Australia. I truly believe that the people in South Australia can take our state forward; they can actually get South Australia firing. As a government, we want to make sure we are giving them the environment and the opportunities to be able to do that. We do not want to hold them back with red tape and regulation that is unnecessary, that is a burden to them, and that does not allow them to grow and prosper.

That is how I feel about this. That is my very strong belief. I want to make sure we have a state that is prosperous into the future. I do not like seeing us sit at the foot of the table on so many measures and so many parameters that we see right across South Australia when we measure SA up against all the other states. South Australia sits at the bottom of the table, and that is not where we need to be. We are a better state than that, and we need to create those opportunities, not increase the burdens and the imposts.

That is what I am looking to explore with this. As I said, we will ask some questions on this matter when we go into the committee stage. I am happy to move the bill through to the upper house, reserving my right to make any amendments, with further consultation on this, between the houses and when we get the explanation on some of the questions that we have in committee stage, which may impact on that as well.

The Hon. A. PICCOLO (Light) (11:22): I rise in support of this bill. When the Building and Construction Industry Security of Payment Act was enacted, it was intended to ensure that a person who carries out construction work or who supplies related goods and services under a building or construction contract is entitled to receive and able to recover progress payments for carrying out that work or supplying those goods and services. Invariably this act has supported small businesses in that industry.

Under the regime of the act, a claimant is deemed to be entitled to payment of a claim pursuant to the act unless the respondent provides a payment schedule setting out how or why payments will be made or withheld. Through the Office of the Small Business Commissioner, the government has completed a comprehensive review of this legislation across two extensive tranches of industry and stakeholder consultation. The government is determined to improve the legislation by making the processes under it less ambiguous, more transparent and broadly improving accessibility for participants that encounter issues with payments under building and construction contracts—and it is almost every day that you hear of a small subbie who unfortunately still is being hurt by lack of payments from the main contractors, the bigger companies.

As important will be the improved confidence of industry participants in the process, given the serious concerns that had been flagged by the Small Business Commissioner about the ability of some subcontractors to achieve payment, whilst head contractors broadly contended that the process is unfair and in some cases biased against them. The government expects the amendments contained in the bill to contribute to improved operation and efficiency of the updated legislation, in line with the broader industry's consultation and expectations. Indeed, a number of the proposals within the bill simply make common sense. For example, simple changes to be able to clarify the Christmas shutdown period.

The process that has been undertaken can be summarised as follows. First, the state government was obliged by legislation to commence a review of the act by December 2014. That review was initiated on behalf of the former minister for small business by the Small Business Commissioner. Secondly, former District Court judge Alan Moss undertook an initial review of the act and formulated a suite of recommendations in the Moss review.

After considering the 24 submissions received, the government tabled the Moss review in parliament on 12 May 2015. Following on from the collapse of Tagara Builders in June 2016, the Small Business Commissioner instigated a further tranche of consultation with the industry, industry associations and key stakeholders on 16 specific proposals, a number of which built upon the recommendations made in the Moss review. That two-month consultation period closed on 19 August 2016, with 37 submissions being received.

The proposed amendment bill will execute the following legislative changes to the act: it will allocate the administration of the act to the commissioner and prescribe his functions; it will insert a penalty provision against harassment, intimidation, coercion, etc.; it will permit the commissioner to publish adjudications; as mentioned, it will clarify the Christmas shutdown period; and it will replace the authorised nominator authority regime to simplify and clarify it.

There are also three non-legislative measures that are not in the bill but which will be proposed as part of the review of the act, which includes to develop and consult upon an industry code under the Fair Trading Act. One of the major benefits of our Small Business Commissioner Act is the capacity for the Governor to make regulations. Those regulations are our codes of practice, which have been instigated in a number of industries already to improve the fairness in those industries, and one of those is the farming industry. We should remind ourselves that the small business commissioner bill was opposed by those opposite at the time it was introduced, even though that commissioner is designed to support small business.

In addition, under the code there will be alternative dispute resolution mechanisms and also there are penalties involved for breaches under the act. An education program will also be established to ensure that people understand what is proposed and what people's responsibilities are under the act.

There will also be a proposal to develop a good behaviour test and policy regarding government work. In other words, the Small Business Commissioner will work cooperatively with the Industry Participation Advocate to develop a policy that will effectively impose a good behaviour test for principal contractors who bid for government projects. This is to make sure that people who are the major contractors on projects where the owner is a government agency or a government do the right thing by the subcontractors. With those few comments, I support the bill.

The Hon. M.L.J. HAMILTON-SMITH (Waite—Minister for Investment and Trade, Minister for Small Business, Minister for Defence and Space Industries, Minister for Health Industries, Minister for Veterans' Affairs) (11:28): I thank the member for Mitchell for his very constructive contribution to this debate, and also the member for Light. I know that there are a lot of small businesses in both of their electorates. It is very pleasing for small business to see the level of cooperation on both sides of the house in support of small business. I thank all members for their general support for the bill.

Working through some of the constructive observations that the member for Mitchell has made, one of the issues he raised was to do with the cost of the education program, which is a very good question to put. The government has allocated around $250,000 for this purpose. It includes the hiring of some additional staff and also some support for associations so that they can educate their members. All members would recognise the important role that associations play in getting the message out to small business.

The member for Mitchell also raised issues in regard to the publication of adjudications. The government's view is that the more transparency there is in respect of this matter the better. We do not think it will do too much harm for adjudications to be put out in the public space for all to see. In fact, we understand that Queensland already does this, and it seems to work reasonably effectively in Queensland, so we expect that it will here as well.

The member for Mitchell also raised constructive concerns in regard to intimidation and coercion and the protections that are in place in the bill to ensure that the slightly bigger enterprises do not bully or coerce the slightly smaller enterprises (the builder or the subbie) in their dealings with one another. The government is of the view, after having consulted on this rather thoroughly, that there is an issue. In fact, the Small Business Commissioner advises me that as late as this morning he met with a group of stakeholders who said that this is still a problem for them.

I know there are some in the building industry who feel that this is unnecessary. I have met with them on a number of occasions and I am sure they have expressed, as is their right and responsibility, the same views as all other members of parliament. I am sure it is isolated and not widespread, but the fact is that instances have been reported to us where the need for some protections for the little guy are necessary, and that is why we have included that in the bill. Of course, it will not be a problem if everyone does the right thing anyway. That part of the bill will only be exercised if an issue arises, so that is only fair and reasonable.

I am aware that those opposite have some concerns in respect of provisions in section 29(3) of the act to allow an ANA to appeal to the District Court for review of any decision the minister might make in regard to applications for the nomination of adjudicators. We have addressed this in response to the constructive proposition from the member for Bragg. We have moved an amendment to reflect her concern and we thank her for bringing that to our attention.

The member for Mitchell also raised concerns about a national review of security of payment arrangements. The government's feeling was that the time it might take for such a national review to complete its work might predicate a delay and that we would rather get on with implementing changes that could have a more immediate effect, given that we made certain commitments to take action, and we feel this is something we should put in train now rather than wait.

The member for Mitchell also raised issues about project bank accounts, which is a very constructive observation. We are aware that such arrangements have been put in place in Queensland and in Western Australia. We are watching that with considerable interest and we will be considering very carefully how that is functioning in those two jurisdictions. If it is working over there, we are happy to revisit that question, but, for the moment, we will wait and watch. I think there was a suggestion in regard to joint bank accounts, which is the same issue.

I have picked up most of the issues the member for Mitchell raised and I thank him for the observations. I am happy to revisit them as we go through the bill clause by clause. As I said, I thank all members for their contributions because, as we all know, on both sides of the house, small business is the engine room of the economy, and I would agree completely with the member for Mitchell on that point. We all want to do everything we can to make sure they get all the help they can from the parliament, so I thank members for their contributions and I am happy to go into committee.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

Mr WINGARD: Just to confirm the process of claims lodged right before the Christmas period, can I confirm that if a claim is lodged against a builder on 22 December it will be taken to not have actually have been received until 11 January, and then the time to respond is 15 days after that? So it will not be taken to have started until 11 January?

The Hon. M.L.J. HAMILTON-SMITH: I thank the member for his question. I think that is a correct observation. The measure is designed to clarify that period within the building and construction sector, as well as preventing any 'ambush' claims by construction workers on the eve of the traditional industry shutdown period.

Regarding the proposed amendments to the definition of 'business day' in section 4 of the act, the amended Christmas period will operate to exclude a defined block of days, as the member has observed, from being business days under the act, effectively deferring any claims made under the act by an equivalent period.

Accordingly, a claim commenced on, say, 21 December, will run for one business day of the 15 business days that the respondent has to respond, and then be effectively suspended until 11 January the following year, when the clock commences again. A claim lodged between 21 December in any year and 10 January in the following year (inclusive) will be deemed not to have been made until 11 January in the following year. I thank the member for enabling us to clarify that point.

Clause passed.

Clause 5.

Ms CHAPMAN: This relates to some commissioner functions, and it may be remiss of me, but I am not sure whether the commissioner currently lodges an annual report to the parliament?

The Hon. M.L.J. HAMILTON-SMITH: Yes.

Ms CHAPMAN: Yes? I am happy to have a look at it if this year's has been tabled.

The Hon. M.L.J. Hamilton-Smith interjecting:

Ms CHAPMAN: Not yet? Right. Well then, could you just explain whether there were any construction contracts in the last year in which the commissioner assisted for which the contracting party was the state government?

The Hon. M.L.J. HAMILTON-SMITH: The contracting party?

Ms CHAPMAN: Yes; in the last 12 months, whether there are any contracts in which the commissioner has assisted, whereby the contracting party was the state government.

The Hon. M.L.J. HAMILTON-SMITH: I thank the member for Bragg for her question. First of all, the commissioner does produce an annual report—in fact, I am pretty sure I have just signed off on it—and it will be tabled shortly. We look forward to the opposition's comments and observations in regard to that. It has been a fairly hardworking year for the commissioner and they are doing very good work.

In regard to whether the state government has been a contracting party in any disputes, the commissioner advises me he thinks that is so, but will need to take that on notice. He will need an opportunity to gather up that information and subsequently provide it to you, so I will come back to you on that.

Ms CHAPMAN: I thank the minister for that indication; I am happy to receive that. In short, what I am seeking is: if there have been cases in which there has been assistance provided by the commissioner to negotiate payments, which contracts they were and hopefully confirmation that they have been resolved, and the basis of any resolution that was reached. My clear understanding in respect to this bill is that it does not in any way interfere with the obligation of both state and local government contracts being applicable and, as I understand it, that is going to continue.

The Hon. M.L.J. HAMILTON-SMITH: The member for Bragg’s observations are correct. I think the spirit of her question is interesting and good, and that is that it is the commissioner’s job to frankly and fearlessly keep all parties in a dispute accountable, including the government. My experience with the commissioner is that he is not backward in coming forward on any issue, regardless of whether the government is or is not at fault or involved in any matter. It is quite a good process, as it should be, and the government should be a model citizen in any contract that it has entered into. I think the process we put in place with the commissioner, which will be reinforced with this act, will underpin the important role he plays in making sure everyone gets a fair go.

Mr WINGARD: I want some clarification on what specific powers to investigate the Small Business Commissioner will have.

The Hon. M.L.J. HAMILTON-SMITH: I am advised that, under section 12 of the Small Business Commissioner Act, the commissioner does have powers to investigate, to require people to respond to him and to require people to reveal information—that is under the parent act. I am also advised by the commissioner that, under the building and construction industry code that is under development under the Fair Trading Act 1987, there are further powers to investigate. I understand that that code will mirror the four existing industry codes—farming, newsagency, motor vehicles and franchising—that are in place and will provide the Small Business Commissioner with extra powers to compel disputing parties to participate in an alternative dispute resolution, including good faith mediation.

Mr WINGARD: Likewise, with the research, can I get an explanation on what research is anticipated and what research is the Small Business Commissioner likely to do that is not already being done by industry?

The Hon. M.L.J. HAMILTON-SMITH: I wonder if the member would like to elaborate on what particular type of research he is pointing to so that we can better understand the question.

Mr WINGARD: That is my question: what research does the Small Business Commissioner foresee that he will be doing that is not already being done by industry, given that it is an added function?

The Hon. M.L.J. HAMILTON-SMITH: The Small Business Commissioner advises me that he will use all the resources he has available to him to research what is going on in the industry in regard to payments by builders to subcontractors. Some of that information he can obtain from industry associations, some of it he can obtain from direct contact with individual businesses and some of it he will be able to research from federal and state-based entities, including the university sector and various other government agencies that from time to time are required to produce reports, either through their annual reports or separately. He will conduct whatever research is necessary, using whatever devices he can get his hands on, to remain abreast of what is going on in the industry so that he is aware of trends, and any individual issues can be dealt with as they arise on that basis.

Mr WINGARD: Can I get some clarification of where and how this information will be published and made available to either the public and/or the industry?

The Hon. M.L.J. HAMILTON-SMITH: On a day-to-day basis, the Small Business Commissioner will take actions, as enabled by the act, to assist companies and individuals with resolving their disputes. From time to time, that will be reported to the minister or maybe even reported publicly by the Small Business Commissioner directly if he sees fit to do so. He will also ensure that any events recorded under this legislation are included in his annual report to parliament.

He is always available. I have specifically said to the Small Business Commissioner that he is always available to meet with members of parliament from all sides of the house should they wish to receive a briefing on any of the issues with which he deals because I think it is very important that there is openness and transparency in all of this. Through those various devices—by being available, by being open, by being accessible, through his annual report, through going directly out with public statements or asking the minister to make a ministerial statement on any matter—the Small Business Commissioner will ensure that the word gets out.

Mr WINGARD: Proposed section 7B(b) provides that the Small Business Commissioner's functions will be to publish determinations of adjudicators in relation to adjudication applications in a manner determined by the commissioner. Will the decisions be published immediately after the decisions have been made, or will there be a lag time before they are made public?

The Hon. M.L.J. HAMILTON-SMITH: I thank the member for his question. This particular provision stemmed from Mr Moss's review, which recommended the insertion of a provision to enable a small business commissioner to publish adjudications made under the adjudication arrangements of the act. The Small Business Commissioner advises me that he would obviously carefully review any such adjudication to look at any legal implications, corporate implications or personal implications that might have for any of the parties to make sure that there is fairness applied to any public release of information. The government's view is generally that this would further add transparency to the sometimes opaque payments arrangements that occur in the building and construction sector.

Regarding the publication of adjudications, I am advised that, as the bill is presented to the house, the commissioner will have sufficient discretion available to him to publish or not publish or publish a redacted version of any adjudication that he receives to ensure there is fairness. My advice is that the power to obtain adjudications is afforded to the commissioner by the proposed section 29(7), with the function of publishing 'in a manner determined by the Commissioner'. It is delivered by the proposed section 7B(b), as the member pointed out. It really is a matter of the Small Business Commissioner being a reasonable chap and making a sensible judgement about what should be released publicly and what should not in the interest of fairness balanced against the interest of accountability.

Mr WINGARD: Still on section 7B and further to the comments the minister just made, do you have any concerns that, by publishing any of this information early and not having a more structured way of dealing with this, information could be put into the public that could cause a run of claims from people calling for money from a business that is working through a few projects at once, so to speak?

The Hon. M.L.J. HAMILTON-SMITH: The Small Business Commissioner's focus will be on encouraging builders to pay their bills on time and on ensuring that all parties dealing with one another are doing so in a professional, fair and reasonable manner. With regard to the finer judgements about what is appropriate for a lease and what is not, we will need to rely on the judgement of the Small Business Commissioner. As you are looking at the parent act, the Small Business Commissioner is in effect an independent statutory authority. He is able to do things as he sees are appropriate. He will have to make those judgements and be accountable accordingly. Generally, I think the office will err on the side of caution when it comes to making things publicly available, taking into account the interests of all parties.

Clause passed.

Clause 6.

The Hon. M.L.J. HAMILTON-SMITH: I move:

Amendment No 1 [SmallBus–1]—

Page 4, after line 17 [clause 6(1)]—Insert:

(3e) If the Minister—

(a) refuses to grant or renew an authority under this section (otherwise than on the ground referred to in subsection (3c)(b)); or

(b) revokes an authority,

the applicant or authorised nominating authority (as the case may be) may apply to the Administrative and Disciplinary Division of the District Court for a review of the Minister's decision to take that action.

Ms CHAPMAN: I wish to indicate my appreciation to the government for having considered this matter and accommodating this amendment to ensure that there is an appropriate appeal process.

The Hon. M.L.J. HAMILTON-SMITH: I thank the member for Bragg for her contribution. It is a very constructive suggestion, and I certainly agree with her that entities should always have the right to appeal to the relevant court to have any determination by a government reviewed if they do not agree with it. I think it is a very good improvement to the bill.

Amendment carried.

The CHAIR: Member for Mitchell, you have a question?

Mr WINGARD: Yes. Why is the minister the approving authority in that process and not the Small Business Commissioner?

The Hon. M.L.J. HAMILTON-SMITH: I thank the member for the question. I am advised by the Small Business Commissioner that the parent bill, and the status quo, is that the minister has those responsibilities. It was not the intention of this particular bill to amend the fundamental principles established in the parent bill. Ultimately, the government must take responsibility for these measures, and ministers should be held to account on behalf of the government. Rather than delegate those responsibilities to the commissioner, we have not sought to modify the essential foundation of the Small Business Commissioner Act in any way through this measure.

Mr WINGARD: Section 29(3a) provides:

An application for the grant or renewal of an authority under this section must be accompanied by the prescribed fee.

How much is the prescribed fee anticipated to be?

The Hon. M.L.J. HAMILTON-SMITH: I thank the member for bringing this to my attention. I am advised that the fee will be prescribed by regulation. The Small Business Commissioner advises me that it will be under $500. Now that you have drawn it to my attention, I will be encouraging the Small Business Commissioner to ensure that it is the minimum amount humanly possible because nothing drives small businesses crazier than government fees and charges. Thank you for pointing it out. I will be watching the draft regulation when it comes to me with considerable interest to ensure that it is minimal. I thank the member for the point he has made.

Mr WINGARD: Section 29(3b) provides that the minister:

(a) may impose conditions on an authority under subsection (1) on granting or renewing the authority;

Can you provide an example of the type of conditions that might be imposed upon an authority?

The Hon. M.L.J. HAMILTON-SMITH: Obviously, the government would be wanting the ANAs involved in these matters to be acting in a professional, competent and fair way at all times. I am advised that there is a code of practice that has been agreed to between government and the industry, which sets out certain standards of behaviour, and the object is always to ensure that everybody gets a fair go. The ANAs need to behave accordingly.

I understand that the sorts of conditions that might be imposed are connected to that code of practice. I am sure that I could provide that to the member if he would like to see it, and I will ask the Small Business Commissioner to forward it to the member. My understanding is that that is largely there to ensure that, should it be necessary, the government can pull an ANA into line, shall we say, if they are straying from the code of practice.

Mr WINGARD: Can I just add to that. Maybe this could come with the answer, but how long would these conditions apply for, and is there a process for reviewing the conditions as well?

The Hon. M.L.J. HAMILTON-SMITH: I think that this is really a reserve power, that is to say that it is not something that the government would intend to do willy-nilly, if I could put it that way—impose conditions. It is really a reserve power should an ANA be straying from the code of practice, to step in and take action on an isolated basis for a specific issue.

It is foreseeable that parties would complain about the conduct of an ANA and express their disappointment that they are not behaving in accordance with the code of practice, and this reserve power would be there to ensure that the government can take action. I am not sure if it is envisaged that there be any particular time frame or time line, or much guidance there other than to provide the ability for the Small Business Commissioner to recommend that action be taken to pull an ANA into line if they are going off track.

Mr WINGARD: Section 29(3b) provides that the minister:

(b) may vary or revoke a condition of an authority under subsection (1), or impose further conditions on an authority, at any time by notice in writing to the authorised nominating authority.

What is the process for varying or revoking the conditions of the authority? Added to that, what type of appeal process is there for the ANA?

The Hon. M.L.J. HAMILTON-SMITH: I am advised that the Small Business Commissioner anticipates it is unlikely that this power would ever be needed, but it is a power to revoke the authority of an entity if it has failed to comply with the act or any conditions set out before it. I assume, and I will need to get the Small Business Commissioner's advice, that, if an ANA were unhappy with that, they would have some appeal process to the relevant court to dispute that ruling.

But I will ask the Small Business Commissioner to look into that question of whether the minister could arbitrarily revoke an authority without any right of appeal to a court. I think that was the substance of your question. I will have to ask the Small Business Commissioner to reflect on that point and perhaps we could deal with that in the other place. In fact, I will ask the Small Business Commissioner to ensure that that matter is addressed on the government side when it goes to the upper house should you wish to reraise it.

Mr WINGARD: Under clause 6(3c)(a), which amends section 29, the minister may limit the number of persons who may for the time being be authorised under this section. How many people does the minister anticipate would be authorised? What does 'for the time being' mean? Will the number change? Does the minister anticipate that the number will change?

The Hon. M.L.J. HAMILTON-SMITH: I think the purpose of this clause is to ensure that the Small Business Commissioner, and the minister on advice from the Small Business Commissioner, can determine how many ANAs will be allowed to operate. You may have 20, for example, wanting to operate as ANAs, but you may only want to anoint five to 10 for one reason or another. I think the point of that clause is to ensure that, on advice, the minister can do that. We understand that that reflects the current provisions in the parent act and under existing arrangements, so it is a no-change situation to ensure that we have, not necessarily an unlimited number of ANAs, but a required number of ANAs doing a good job.

Mr WINGARD: Under clause 6(7), which amends section 29(7):

an authorised nominating authority must, at the times specified by the Commissioner, provide the Commissioner with—

(a) a copy of any determination of an adjudicator appointed to determine an adjudication application on referral of the authority; and

(b) any other information specified by the Commissioner relating to the activities of the authority under this Act (including information as to the fees charged by the authority under this Act).

Will parties to a construction contract be randomly allocated and adjudicated, or will they be able to select their own adjudicator?

The Hon. M.L.J. HAMILTON-SMITH: I thank the member for his question. I am finding out about some aspects of the bill that I was not aware of as a result of the questions. The party unhappy with arrangements and seeking a resolution, the party that feels it has been disadvantaged and is seeking a payment, will go to an ANA of their choice to register their concern. The ANA will then independently nominate the adjudicator. So the party seeking a resolution will go to an ANA, but they will not necessarily get to choose which particular adjudicator. That ANA may have a group of adjudicators they use, but they will then nominate which one of those they will deploy to resolve that particular dispute. There is a level of choice but not an absolute ability to pick a particular adjudicator for reasons of fairness.

Mr WINGARD: Further to that, if someone is allocated an adjudicator that they are not happy with, is there any chance to appeal to get a different one in that process?

The Hon. M.L.J. HAMILTON-SMITH: My understanding is no. They, having gone to an ANA, having been given an adjudicator, need to stick with that in the interests of fairness and due process. Otherwise there could obviously be a risk of playing favourites.

Mr WINGARD: A follow-up question: how soon after the determination must the Small Business Commissioner have access to the determination, and what will the process be and who will monitor that?

The Hon. M.L.J. HAMILTON-SMITH: I thank the member for his question. I am advised that once the reviewing authority makes their adjudication and publishes that to the parties concerned, that should concurrently be advised to the Small Business Commissioner. In other words, the commissioner would find out about it at about the same time as the parties and then would take no further action unless required to do so or asked to do so or if the Small Business Commissioner considered he needed to do so.

The commissioner would simply gather that information and hold it and be aware of it and be in a position to respond should there be any further dispute or unhappiness with the adjudication. I am advised that may include the Small Business Commissioner publishing that information if they felt it was required. Part of the publishing process of the adjudication would be the Small Business Commissioner's role in promulgating that.

Mr WINGARD: Is there a time line associated with that?

The Hon. M.L.J. HAMILTON-SMITH: I am advised no, no particular time line or no particular deadline, if you like, between receipt and publication. I understand that is at the discretion of the commissioner.

Mr WINGARD: I refer to proposed section 29(8):

An authorised nominating authority required to provide a determination of an adjudicator or other information under this section must provide the determination or information within the time specified by the Commissioner.

Maximum penalty: $20,000.

What is the time specified likely to be?

The Hon. M.L.J. HAMILTON-SMITH: I am advised that that time frame has not yet been determined. The Small Business Commissioner is likely to do so at a later point and make it clear to parties that within a certain time frame he would like to see the results of their work and require them to provide it, but at this stage he has not determined exactly what that time frame would be. That may be something that is subsequently promulgated in regulations. He has it under consideration.

Mr WINGARD: Just further clarification: is it the responsibility of the authorised nominating authority to provide the commissioner with the determination or the parties to the construction contract?

The Hon. M.L.J. HAMILTON-SMITH: The ANA, I am advised.

Clause as amended passed.

Clause 7.

Mr WINGARD: In relation to the insertion of sections 32A and 32B, on 32A, who has the power to determine whether a person has been intimidated?

The Hon. M.L.J. HAMILTON-SMITH: I am advised that a claim of indirect assault, threats or intimidation is likely to arise as part of the mediation process, as part of the complaint and as part of the dispute which seeks a resolution, and the parties, through the ANA and the adjudication process, would seek to resolve that as part of the claiming process. The Small Business Commissioner would obviously be advised of any outcome or resolution of such a claim. Ultimately, if an allegation of assault or intimidation or threat was made and was not agreed to by the other party, obviously the aggrieved party would have the option of taking the matter to court, which would be the ultimate determinant of whether it was a fair and reasonable claim or not.

In the process of such an allegation of intimidation or assault, either the Small Business Commissioner or the police could be involved in assisting the aggrieved party to make their claim to the court. Ultimately, the final deciding authority over any such allegation would clearly need to be a court of law, because it would be a fairly serious claim. There may be instances where an allegation is made against the party and in the mediation process they agree to settle without advancing the matter to court. The whole idea is to, as much as possible, keep matters out of court. Really, ultimately, it is up to the parties. If they want to take matters to court, they can.

I am advised further that at new section 32A, where the bill inserts penalty provisions against persons natural or corporate directly or indirectly assaulting, harassing, threatening or intimidating, or attempting to do these in relation to an entitlement to or claim for a progress payment, the offence is narrowly targeted by only applying to such conduct that is directly related to the making of a claim under the act—directly related. The maximum penalty in the case of an individual is $50,000 or imprisonment for two years, and $250,000 for a body corporate.

Mr WINGARD: To clarify, the only ways the penalties outlined in 32A can be imposed by the Small Business Commissioner are if both parties agree that an assault took place or if there were criminal findings?

The Hon. M.L.J. HAMILTON-SMITH: I am advised by the Small Business Commissioner that it is only envisaged that those penalties would ever be applied by a court, not by the Small Business Commissioner. Even if a claimant made an allegation and the other party admitted that they were guilty of that claim, there would not be any arbitrary imposition of a fine by the commissioner. That would probably end the matter, as long as their financial dispute was resolved. However, the provisions in the bill and those penalties in the bill are there should a court duly find against a party on the matter of assault or intimidation.

Mr WINGARD: Again for clarification, if they go to court and a judge determines under this act that they are guilty and imposes the $50,000 penalty, in an individual's case, will that go to the complainant or will it go to the court?

The Hon. M.L.J. HAMILTON-SMITH: I am advised that that would be a penalty under the act, so that would be a fine imposed upon the offending party, paid to the court or paid to the Crown through the court. There might be a subsequent claim for damages from a party as a separate matter and it might form part of a court-based resolution of a dispute that has gone beyond the mediation process, but I am advised that the $50,000 or $250,000 penalties would be a fine like any other: paid to the Crown as a penalty for the offence.

Mr WINGARD: Can I get a clarification then on what the penalty is under the criminal law for a person indirectly or directly assaulting, threatening or intimidating, or attempting to assault, threaten or intimidate a person in relation to any matter?

The Hon. M.L.J. HAMILTON-SMITH: I am advised by the Small Business Commissioner that he is not quite aware of what standard provisions may be in place for such offences in the courts—for example, assault, threatening to intimidate, etc.—in regard to any other matter not being a dispute under these arrangements but could be for anything. My expectation is that there is probably a range of provisions.

These particular provisions that we are debating, though, were based on the Work Health and Safety Act. We have taken from the Work Health and Safety Act these particular penalties, but there may be even heftier maximum penalties for such offences generically. We are not quite sure. I will ask the Small Business Commissioner to be aware of that information when the matter goes to the other place should you wish to put the question again but, for the purposes of this particular act, we have relied on the Work Health and Safety Act as a guide.

Mr WINGARD: Given those provisions, what constitutes an indirect assault under this section?

The Hon. M.L.J. HAMILTON-SMITH: I think that is probably a legal opinion. I am not a lawyer. Characteristically, in the house we do not stray into the area of trying to establish legal opinions on issues. That is to say, presumably the definitions of the offences of assault and threatening to intimidate are in a range of acts, but what would constitute a breach of those particular definitions would be a legal opinion or a matter to be determined by the relevant court, so we would probably need to consult with lawyers on that one to get clarity. Obviously, any claimant would have to prove their case in court with legal advice before a judge. The prosecution, of course, would have to make their argument, so it is probably straying into the area of legal opinion.

Mr WINGARD: How many cases is the minister aware of that would fall under this new offence?

The Hon. M.L.J. HAMILTON-SMITH: I think the quick answer is that not enough people have come forward. It has been put to the government that there is a problem and that coercive, intimidatory and threatening behaviour is occurring. It has been put to us by parties who claim they have experienced it. That is unacceptable in the view of the government and, in respect of any building contract, should not be occurring.

This type of behaviour, we are advised by certain subcontractors, too often occurs in the shadows, shall we say, in the margins of the industry. It may take many forms—for example: 'If you pursue this claim, you will never get any further work from me. If you pursue this claim, I will make sure that no builder in South Australia ever hires you again. If you pursue this claim, I will damage your reputation or I will take some action that misrepresents you and it will be the end of your business.'

These sorts of threats and this intimidation can take many forms and, characteristically, the little guy may be encouraged to give in. When you have an important builder saying to you, 'I know what you're claiming, but if you don't accept what I am offering, that's the end of you; you will never get any work with me again,' is that a threat? Is that intimidation? It is not being reported, and people are feeling as though they are defenceless against it, so we are advised. I am sure this is not widespread, and I am sure this may only be one or two bad eggs in an otherwise wonderful bucketful of excellent businesspeople.

The government will stand up for the little guy, and more people are telling us there is an issue. Where a builder and another person—perhaps their subcontractors—have reached a lawful contract for work to be done for an agreed contract price, it should not be open for the contractor to subsequently say, 'You will have to resubmit your invoice for 20 per cent less before I will accept it, and if you don't resubmit your invoice you will not get any further work from me.'

That 20 per cent is probably the subbie's profit margin, or even worse. It is how people rack up debts with a builder to get the further work, and the builder goes belly up and they have lost everything. So out goes the family home and out goes all of the equipment. In some cases, that is not only the end of your business, it can be the end of your marriage and it can be the end of your future, really. It is pretty significant.

What is in the contract is in the contract. To then say that you will take a 20 per cent haircut and that you just have to put up with it, because if you do not take the 20 per cent off then that builder will not employ you as a subcontractor again, is not particularly fair. The whole point of the legislation is to ensure that the subbies and their suppliers and employees simply get paid what they were offered at the beginning of the job, not what is subsequently put to them after the job is complete, when they have spent their money and made their investment, and the big guy turns around and says, 'Well, now I want you to chop 20 per cent off what I agreed to pay you.'

That, as I am advised by the Small Business Commissioner, could also include an implied threat of, 'And, by the way, if you take this to mediation, if you dispute this, or if you go and seek the support of the Small Business Commissioner, well, then I'll really get you.' This is what goes on out there, so we are advised. These people are mum-and-dad teams: he is an electrician and she is doing the books, or the other way around. That is what we are trying to do here: we are trying to stand up for the little guy. This is happening.

If you do not intimidate, harass or threaten, new sections 7A and 7B will simply have no work to do; they will not be needed. But we want to send a signal to these small business owners who are out there on their own. They have mortgaged the house, they have bought a van, they have bought their kit, they are out there bidding for jobs and getting the work. On a rare number of occasions, a less than scrupulous builder is saying to them, 'No, we now want you to chip 20 per cent off that and do it below cost,' and then they are on a road to bankruptcy. This is happening. We are looking out for the little guy, and the smaller they are, the keener we are to help them deal with any risk of intimidation.

The ideal outcome, having passed this bill, would be to never hear of a complaint. The ideal outcome would be for it to never arise. The fact that it is now there is sending the message to any builder—and there would only be a handful who might feel that they can throw their weight around and push the little guys—that the government is watching and that the government has put in place a capability, through the Small Business Commissioner's office and these other arrangements, to help those people out. They should never feel afraid, ashamed or deterred from seeking fairness and justice if they feel that they have been mistreated, and there need to be remedies there to deal with those who may seek to offend.

Mr WINGARD: I apologise, but I did not get the actual number. How many cases is the minister aware of that would fall under this offence?

The Hon. M.L.J. HAMILTON-SMITH: The Small Business Commissioner advises me that, anecdotally, by direct word of mouth from people who feel that they have been intimidated and abused, there have been at least five recently but more through the contacts of his office. We anticipate that this is an issue. Even this morning, he had several people recount to him examples of where they felt they had been unreasonably treated.

So it is an issue; it is not being reported. Hopefully, it will not be reported because it will not be occurring, but we do feel that there is a need, because we have listened to these people, to put something in place to protect them. There has not been a long list of official complaints. I do not think we are aware of any prosecutions alleging intimidation, and we think that the reason for that is that the little guys are just copping it.

We think that what is happening is that they are just getting done over in these isolated few cases and going away and taking the loss. Some of them may be quietly going into financial difficulty as a consequence, but it is an issue and we are out for the little guy. We hope that these provisions will not need to be enacted, but the fact that they are there may deter someone from abusing the subcontractors and, if it does, that is a good thing because it has achieved its goal.

Mr WINGARD: I request a clarification on that answer. Will clause 7 go two ways? You mentioned looking after the little guy. If there are two small businesses in operation, one of which has a couple of people and it subcontracts someone in to do some more work for them, if the threat and the intimidation comes back from the subcontractor to the person holding the contract, can they enact clause 7 and take action in that matter?

The Hon. M.L.J. HAMILTON-SMITH: My expectation would be that the answer is yes. For example, I could envisage circumstances where a subcontractor may seek to intimidate a builder. For example, 'I said I would do this work for you at this fixed price; I now want more and, if you don't pay me more, I am going to incorrectly wire your house,' or, 'I am going to make sure that the plumbing doesn't work,' or, 'I am going to make sure that I sabotage your project.' I could imagine that sort of unscrupulous behaviour coming from a smaller subcontractor directed towards a builder.

Under the arrangements not only in this act but in the parent act and in the common law there would be remedies there, but what this process provides for is for the two parties to be heard, to air their dispute before a responsible adjudicator appointed by an ANA and to resolve the matter directly, with always the option of taking the matter to court if they see fit. I think the member makes quite a good observation that this needs to go both ways in order to be fair.

The government recognises that builders themselves are small businesses in many cases, and it is a very tough business with very tight margins. Managing your subbies is a major challenge for builders, and we get that. The idea is that this is also a protection for them from unscrupulous or irresponsible subbies.

For example, another case I can imagine is where a subbie produces work of a substandard level. They have been quoted at a certain price, the subbie underperforms and the work is no good. The contractor says, 'Well, I'm only paying you 75 per cent of that because the work is not up to standard.' There is a dispute, and then the small subcontractor makes some threat towards the builder; this is a two-way thing. We are very sensitive to this.

We have met with industry stakeholders on this quite significantly. I have met personally with most of the larger associations on repeat occasions to hear their concerns because I wanted to make sure everybody had a fair go. For example, the Housing Industry Association I know were opposed to the inclusion of this offence, and they queried the imputation of the offending bodies corporate, etc. We listened to them. The Master Builders Association were not opposed to the offences outright but argued that they duplicated existing criminal offences—true, but we think we have laid further protections through this measure into the industry. The Law Society of South Australia was not opposed to the inclusion of these offences but has queried the definition of the word 'intimidation'.

There are other groups and individual companies with whom the Small Business Commissioner and I have met to talk these issues through. We really want to make sure it is fair to everyone so it can be used both ways. That is what dispute resolution is all about. From my experience with these things, money can usually resolve these disputes if everyone feels they are getting a fair go with the financial outcome. Accusations and other things generally tend to go away once everyone has got it off their chest and everyone feels that the parties have dealt with each other fairly and responsibly with regard to their financial issue before them.

Clause passed.

Clause 8 passed.

Clause 9.

Mr WINGARD: Should a review provision be enacted, apart from the interim reviews the commissioner will provide to the minister?

The Hon. M.L.J. HAMILTON-SMITH: I am advised by the commissioner that we feel that there need not be a review. Of course, the parliament itself can always cause such a review. The government would always be happy to entertain a reraising of these issues at some point in the future if those opposite hear reports that it is not working. We would be more than happy to always throw the questions open again and reconsider either the regulations or the parent act.

We ourselves will certainly be canvassing with stakeholders how this is working in the months and years that follow. We did not feel it was appropriate to have any sunset clause or formal review process in the legislation but, rather, we preferred to institute the measures and then listen to the industry about how they are working and take any subsequent action if needed.

Mr WINGARD: Given that the original act had a sunset clause to trigger this review, is it not prudent to follow the same process?

The Hon. M.L.J. HAMILTON-SMITH: I am advised that the original act envisaged one review—this is it—and there was no perceived need for a successive series of reviews. We are making these changes with a view to putting them in place, but of course we are always open to change if it does not work or we think it will work, so there was no sense that we should lock in a further period of review.

Clause passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. M.L.J. HAMILTON-SMITH (Waite—Minister for Investment and Trade, Minister for Small Business, Minister for Defence and Space Industries, Minister for Health Industries, Minister for Veterans' Affairs) (12:34): I move:

That this bill be now read a third time.

I would like to thank all members for their contribution today, particularly members opposite, because I think we are all on the same page in regard to the need to support small business. It is an important bill. As it has come out of committee, it seeks to improve the payment process for subcontractors and suppliers. The government has fulfilled its obligations not only to formally review the act—and I would like to thank former judge Alan Moss for the role he played in providing that review—but also to actively seek industry feedback on not only the review but a further consultation paper prepared by the Small Business Commissioner.

As a government, we are determined to improve this legislation by making the process under it less ambiguous and more transparent and by broadly improving accessibility for participants who encounter issues with payments under building and construction contracts. We want to improve the confidence of the industry participants in the process of security of payment given the serious concerns that have been flagged by the Small Business Commissioner and the industry with the support of judge Alan Moss's work.

At the end of the day, this is about people being paid in a fair manner for work or goods they have supplied. I can advise the house that the Office of the Small Business Commissioner now has a staff member dedicated to working with the building and construction industry and its membership groups on an education program as well as a dispute resolution process. As minister, I am keen to ensure fairness in the industry to ensure that it becomes an industry where people are properly paid. I know that is the case already in 99.9 per cent of cases, but what I think we have achieved today is to make the industry fairer, more wholesome and more reasonable for all involved. I commend the house for its support for the measure.

Bill read a third time and passed.

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