The ability of the building and construction industry’s regulator to enforce compliance with industry legislation will be significantly reduced by proposed amendments to the Building and Construction Industry Improvement Act.
The Law Council of Australia (LCA) has raised concerns about the proposals under the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill, which will abolish the Australian Building and Construction Commissioner, urging a reconsideration of the legislation in light of the serious impact it will have on the role of the industry’s regulator.
"Under the amendments, the regulator that will replace the Australian Building and Construction Commissioner will be unable to either institute or continue 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,” said LCA president Catherine Gale.
“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.”
Gale also said the proposed amendments could give rise to many unintended consequences for the independent regulator of the building and construction industry.
“There is potential for significant waste of tax-payers money if the regulator is forced to discontinue litigation or an investigation,” she said.
According to Gale, 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,” she said.