Federal Register of Legislation - Australian Government

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A Bill for an Act to establish a Commission of Inquiry into the Building the Education Revolution Program, and for related purposes
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Registered 19 Oct 2010
Introduced HR 18 Oct 2010


















Commission of Inquiry into the Building the Education Revolution Program Bill 2010













Circulated by the authority of

Christopher Pyne

Commission of Inquiry into the Building the Education Revolution Program Bill 2010



The purpose of this Bill is to establish a full judicial inquiry into the Government’s Building the Education Revolution (BER) program, a $16.2 billion initiative to build and upgrade infrastructure in schools.


Public concern about the efficient use of Government funding in the BER program has been apparent since the program’s inception.  Reports indicate the emergence of serious systemic issues in the program, including:;


1.     Enormous price inflation for the provision of some capital projects, managing contractors charging, and being paid, fees excessive in comparison to the project’s value, regardless of the specific characteristics of the project;

2.     A lack of transparency from State Government authorities responsible for the stewardship of public funds; disregard of Commonwealth spending caps on project management fees the possibility that project managers have colluded to extract additional fees;  and

3.     Serious flaws in the whole design of the BER, including boilerplate and insufficiently specific allowances for the charging of fees, including contingency fees, “reporting to government fees” and “design and price risk fees” which effectively invite price inefficiency.

In response to these issues, the Government established a ‘BER implementation taskforce’ led by Mr Brad Orgill to receive, investigate and resolve complaints within the program.  The taskforce reports directly to the Government. 


The agencies responsible for managing the BER have not sought to apply any of the principles of transparency.  During this review, the taskforce which has spent millions on consultants, has declined to take details of over a hundred complaints about construction work, on the grounds it could not guarantee the anonymity of school principals, who expressed fear of retribution from the Education Department.


In the absence of any attempt to address the systemic problems, the only way to restore any public confidence in the probity of the BER is to commission a judicial inquiry with the power to summon witnesses and subpoena documents, with its own secretariat, with the ability to make genuine recommendations truly independent of Government.


The BER Implementation Taskforce, led by Mr Brad Orgill, established to examine the operation of the program, will be dissolved.  Instead the Commission will investigate inefficiencies, mismanagement, cost overruns, and payment of secret fees, preferential treatment and misallocation of resources arising from the program.


This would allow taxpayers to be given a proper, open and transparent accounting on how Government have undertaken to ensure that the objectives for the school infrastructure program have been met.


The Commission is to commence on 1 February 2011 and to report by 1 November 2011.



The Bill will have no financial impact.  The inquiry is to be funded from the ordinary annual services of government provided for in the annual appropriation bills.



Part 1 - Preliminary

Clause 1 – Short title
This clause provides for the Act, when enacted, to be cited as the Commission of Inquiry (BER program) Act 2010.


Clause 2 – Commencement

This clause provides for the Act to commence on the day after it receives Royal Assent.


Clause 3 – Act binds Crown
This clause states that the Act binds the Crown.


Clause 4 – provides for definitions


Clause 5 – Ministerial responsibility for this act

This clause states the Act is to be administered by the Attorney-General.


Part 2 – Commission of Inquiry into the BER Program

Division 1 – Establishment and functions of the Commission

Clause 6 provides for the establishment of the Commission.

Clause 7  - Terms of reference

This clause provides for the terms of reference for the Commission, which is to inquire and advise the Parliament on the following in relation to the BER program:

                     (a)  what were the protocols, guidelines, procedures and conditions of the BER program that applied to Commonwealth officers and agencies, to State and Territory governments and to contractors in relation to planning, allocation of funds, contracting, fees and pricing;

                     (b)  were these appropriate to ensure that funds would be allocated to provide the things most needed by schools, that there would be compliance with requirements, and that the BER program would achieve value for money;

                     (c)  how were they applied in practice and, in particular, what was the response of the Commonwealth to advice and correspondence received relating to the design and implementation of the BER Program, including warnings in relation to fraud and safety risks;

                     (d)  whether all relevant Commonwealth procurement and other guidelines and procedures have been complied with in relation to the BER program.


Clause 8 – Report to the Parliament

This clause provides that the Commission must submit to the president and the Speaker a report by 1 November 2011.

Division 2 – Powers of the Commission

Clauses 9 – 16 outline the powers of the Commission with respect to hearings, counsel assisting the Commission, power to summon witnesses and take evidence, self-incrimination, statement made by witness not admissible in evidence, arrest of witness failing to appear, search warrants, and in relation to documents and other things.



Division 3 –Offences

Clauses 17-27  outline offences, including unauthorised presence at hearing or publication of evidence, failure of witnesses to attend or produce documents, refusal to be sworn or give evidence, acts or omissions on different days to constitute separate offences, false or misleading evidence, destroying documents or other things, intimidation or dismissal of witnesses, preventing witnesses from attending, bribery of witness, fraud on witness, and contempt of commission.

Part 4—Operation of the Commission

Clauses 28-31 of this division provides for matters relating to the operation of the commission, including in the event of death or incapacity of the commissioner, for remuneration and allowances of the Commissioner, staff of the Commission and protection of the Commissioner and others.


Clauses 32- 33 provide for Legal and financial assistance for persons appearing before the Commission, and reimbursement of witness expenses.


Clause 34 – provides for where, in the course of its inquiry, the Commission obtains information that relates, or may relate, to the commission of an offence, or evidence of the commission of an offence against a law of the Commonwealth, of a State or of a Territory, the Commission may, if in the opinion of the Commission it is appropriate to do so, communicate the information or give the evidence to the authority or person responsible for the administration or enforcement of that law.


Clause 35 – provides that the Governor-General may make regulations, not inconsistent with the Act