URGENT UPDATE – QBCC “PAUSES” DIRECTIONS TO RECTIFY
Media reports have aired that QBCC is currently not requiring compliance with directions to rectify defective building work. QBCC has also commenced telephoning owners and contractors to inform them of this “pause”.
We understand the decision to not require compliance arises from a decision of a Court this week (yet to be published) that the failure of the Government to have made regulations required for section 72 of the Queensland Building and Construction Commission Act 1991 has prevented the Commission giving directions to rectify since 2019.
Section 72 of the QBCC Act provides that –
“(2A) The commission must make the direction no later than the end of the period prescribed by regulation.”
Section 72(4) of the Act relevantly provides that –
“(4) The period stated in the direction must be the period prescribed by regulation unless the commission is satisfied that, if the direction is not required to be complied with within a shorter period …”
The above provisions were inserted in the QBCC Act in 2019, and neither of the periods referred to in the provisions was prescribed by Regulation.
It is usual for legislation to avoid this issue by stating a period and subjecting it to change by regulation, so that the provision will operate whether a regulation is made or not.
Media reports suggest the QBCC had made the Government aware of the issue some time ago. Regardless, we anticipate the Government will now be urgently working to make the required regulations.
The Government will likely either pass band-aid legislation to validate directions given since 2019 or leave it to QBCC to decide whether to give again any direction that as of this week was still to be complied with.
If the Government takes the later course, that will likely call into question the validity of decisions QBCC has taken on the basis of directions given since 2019, such as whether work undertaken at the direction of the QBCC was satisfactory. Amongst other things, it would also call into question whether fines for non-compliance must be refunded, and demerit points removed.
We are carefully watching this space.
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