Page 4810 - Week 13 - Thursday, 28 November 2019
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The powers in COLA, the Construction Occupations (Licensing) Act, that relate to directors and executive officers have been tailored to the ACT system. Criminal liability for executive officers relates only to recklessly failing to notify the Construction Occupations Registrar about things the officer may reasonably know and that affect the eligibility of the corporation to operate. These include that the corporation is insolvent, has been convicted of certain offences or no longer has required insurance. It does not include technical breaches such as noncompliance with building standards. The provisions include considerations a court may make in relation to the executive officer, their position to influence the conduct of the corporation and their awareness of the commission of an offence.
Under new section 126B, directors will become liable for fines and other amounts owed by a licensed corporation only when they become overdue. If the debt is paid on time, the director is not liable for the amount. This new section is closely based on section 111B in the Queensland Building and Construction Commission Act 1991.
Other powers have a particular focus on rectification of noncompliant work under existing rectification powers as foreshadowed by reform 37 in the building regulatory reform program. They allow the registrar to make rectification orders in relation to directors of a corporation in certain circumstances. However, as for all other rectification orders, an order to a director can be made only where it is appropriate to do so.
If a corporation closes after an order is made, it is taken that the order is made in relation to the directors. This triggers the right of review. In all other cases the director will receive a notice of intention to issue an order and have the chance to make a submission to the registrar as to why the order is not appropriate. If the order is issued, the decision is also reviewable at ACAT.
The same review mechanisms that apply to individual licensees and partners in relation to occupational discipline will apply to directors. The limitations on the time actions may be taken in relation to a director are the same as those for licensees and partners.
On retrospectivity, I would like to clarify how these laws would apply and address any perceptions that these amendments are retrospective. The amendments in the bill are not retrospective. I understand that there is confusion about what retrospectivity is. A statutory provision is not retrospective simply because it relies on conduct or events that happened before the provision existed. This is a standard application of new powers. New liabilities for amounts and notifications would apply only to amounts unpaid, or notifications required, after the commencement of the relevant provision.
Actions in relation to rectification orders and occupational discipline may apply to contraventions that occurred prior to commencement, but they do not affect decisions already made under the current laws. It is an existing obligation of a director to understand the potential consequences of contraventions, and to avoid or address them as required. These powers do not apply criminal or general civil liability to directors for the contravention, but give the regulator additional options to respond to the contravention where appropriate.
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