The Bill is compact but contains several drafting and implementation features that can generate operational risks, interpretive questions, and timing complications.
Scope phrasing and classification effect: Section 13A(1) states that "an employer in" the two named industries "is not an employer for the services industry." The Bill does not define "services industry" within the inserted provision. Stakeholders will need to refer to the principal Act’s definitions to determine precisely which parts of the principal Act are displaced by the exclusion. The "despite this Act" phrasing signals an overriding effect, but practitioners must map how that interacts with the principal Act’s existing definitional and substantive provisions to understand obligations and entitlements that fall away or are deferred.
Unspecified appointment mechanics for the reviewer: The Bill requires an "appropriate independent party" to conduct the review and prescribes certain disqualifications based on prior employment within five years (s 13A(4)). The Bill does not set out the Minister’s appointment process, whether the appointment must be in writing, whether the costs of the review are to be met from appropriation, nor whether there are minimum methodological standards for the review. These gaps leave room for disputes about whether an appointment satisfied statutory requirements or whether the review process was adequate.
Definitions left open: The Bill disqualifies persons who have been officers or employees of a "peak body representing the interests of employers or employees" in the prior five years (s 13A(4)(ii)(2)). The Bill does not define "peak body" or set objective criteria for what counts as representation of employer or employee interests. That absence creates scope for argument about whether a particular prior role engages the disqualification.
The substance of the review finding: The test the reviewer must address is whether applying the Act to the industry is "unlikely to cause material adverse effects on business viability or employment in the ACT" (s 13A(5)). The phrase contains three uncertain elements: the probabilistic term "unlikely", the qualifier "material", and two distinct outcome areas "business viability" and "employment in the ACT." Reasonable disagreement is possible about the meaning of these terms and about the thresholds or evidence adequate to establish the required finding. The Bill does not set out evidentiary standards or metrics for "material adverse effects" or define the temporal horizon for the predictive assessment.
Timing and the nine sitting days requirement: The Minister must table the review and a statement of reasons at least nine sitting days before signing the disallowable instrument (s 13A(6)). That is a pre-signing obligation. In practice that creates a dependency on the Assembly’s sitting calendar and on the possibility of adjournments or expedited signings. The Bill does not prescribe what happens if sittings are suspended or whether the nine sitting days may be counted in different ways; the procedural requirement may therefore create practical timing complexity for the Minister and administrative officials.
No maximum exclusion period or review frequency specified: The Bill forbids any inclusion day earlier than 1 July 2027 but does not place a latest date on when the Minister must act. There is no statutory deadline by which the Minister must commission the review or decide on inclusion. That means the exclusion could persist indefinitely unless otherwise constrained by political or administrative forces. The Bill also does not require periodic re‑review or set review scope beyond the single finding required before inclusion.
Absence of enforcement or penalties for procedural non‑compliance: While the Bill prescribes mandatory duties and preconditions for the Minister, it creates no bespoke sanction for non‑observance. The lack of statutory penalties means that non‑compliance would likely be addressed through political channels or general administrative law remedies; those remedies may be slower and less predictable than statutory enforcement mechanisms.
Potential inconsistency with other obligations: Employers, advisers and workers must consider how the temporary exclusion alters compliance in practice with other statutory regimes or industrial instruments. Because the Bill alters only classification within the principal Act, failure to properly map interlocking obligations could cause inadvertent non‑compliance with other statutes or instruments that assume coverage or non-coverage by the portable schemes.
These drafting features and omissions are potential operational pitfalls. They do not alter what the Bill mandates; rather they indicate areas where careful administration, clear appointment processes, transparent review methodology, and precise drafting of the disallowable instrument will be necessary to avoid disputes and uncertainty.