The Law Council of Australia yesterday raised serious concerns about the proposed Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011, currently before the Australian Senate.

Law Council president Catherine Gale said the proposed amendments may “significantly” impact the ability of the independent regulator to enforce compliance in the building and construction industry.

Lawyers say that under the amendments, the regulator that will replace the Australian Building and Construction Commissioner will be unable to institute civil penalty litigation for breaches under Commonwealth law “because there has been a commercial settlement between the contravenor and persons affected by the offending conduct”, Gale said.

“These proposed amendments will give precedence to the interests of private litigants over the application and enforcement of Australian law.

“These amendments would significantly erode the regulator's independent regulatory role,” says the Law Council’s Gale.

The proposed amendments could bring many potential unintended consequences for the independent regulator of the building and construction industry, she said.

“There is potential for significant waste of tax-payers money if the regulator is forced to discontinue litigation or an investigation,” Gale said.

The amendments would also mean the regulator would need to be expeditious in commencing proceedings to preserve the integrity of the prosecutorial process.

“We also may have situations where undue pressure is placed on parties to settle out of court to preclude the regulator from pursuing civil penalties,” Gale said.

The Law Council said it now urges reconsideration of this legislation in light of the serious impact it will have on the role of the regulator.