Closing the "Loophole"

Written by Alexander Milne, construction lawyer, Lovegrove Solicitors

17th of February 2012

The Building Amendment Bill is now being considered by Victorian Parliament, and is set to be debated in the forthcoming weeks. This Bill proposes to amend Victoria's Building Control regulation to bestow upon the Building Practitioner's Board the power to commence an inquiry into the conduct of a building practitioner who is currently suspended, as long as the inquiry commences within 3 years from the date of that building practitioner's suspension.

This Bill is billed as being the elixir to close a loophole in the existing legislation, whereby the BPB loses its jurisdiction to further sanction a Building Practitioner after they cease to be a currently registered Building Practitioner.

The Bill comes in response to a 2010 decision of the Victorian Supreme Court, in which it was found that under current legislation the BPB does not have jurisdiction to conduct an inquiry into any conduct occurring more than 3 years before the date of suspension. This is true even where the suspension takes effect subsequent to the inquiry beginning. The BPB can essentially lose its jurisdiction in the middle of an inquiry, simply because the relevant Building Practitioner becomes suspended.

In his decision in this case, Justice Bell considered the purposes of the Building Act, and noted:

‘Those purposes are weakened when some builders are able, and seen to be able, to avoid regulatory scrutiny of their practices by delaying an inquiry and ‘orchestrating’ their own suspension.’

On this basis he suggested amendment to the Building Act in the nature of the amendments now proposed. The new legislation will address this kind of loophole, and should be well received by the community and by all building practitioners who hope to see the industry be held in greater esteem.