This application was for review of a decision by the respondent on 22 March 2019 to make a rectification order pursuant to section 38 of the Construction Occupations (Licensing) Act 2004 (COLA) requiring the applicant to take certain stated actions to rectify building work done at premises in Bruce, ACT (premises).
The applicant raised a threshold issue whether, on the proper construction of section 35(3) of COLA, the rectification order made on 22 March 2019 was invalid because it was made more than 10 years after the day on which the ‘act that caused the contravention happened, or ended’, which the applicant claimed was a day that was earlier than 18 September 2008, when a certificate of occupancy was issued. The applicant’s position was that if the Tribunal was satisfied that the 10 year period had expired, the Tribunal should make an order under section 68(3) of the ACT Civil and Administrative Act 2008 (ACAT Act) setting aside the decision and substituting a decision not to make a rectification order on the grounds that the respondent had no jurisdiction to do so, without entering upon the merits of the decision.
The applicant acknowledged that its submissions were contrary to a decision of the Tribunal in Koundouris v Construction Occupations Registrar & Ors (Administrative Review)  ACAT 92 (Koundouris) but submitted that the decision was wrong and that we should not follow it.
As it appeared that a preliminary question would dispose of this issue without the need for a full hearing on the merits, a preliminary question was formulated as follows: whether on the proper construction of section 35(3) of COLA when the respondent made the rectification order, the 10 year period mentioned in section 35(3) had expired such that the respondent had no power to make the order?
However, during the hearing of the preliminary question it became apparent that the answer to the preliminary question would not have any relevance to the outcome of the hearing.
In short, the limitation on the registrar’s power to make a rectification order arises if, and only if, two conditions are met: first, that “a submission is made” and second, that the “submission … satisfies the registrar” that the act that caused the contravention happened, or ended, more than 10 years before the relevant day. The ‘submission’ referred to in section 35(3) is the “submission made within the time mentioned in the notice” referred to in section 35(1)(c).
ACAT was satisfied that, on the proper construction of section 35(3) and in circumstances where it is conceded by the applicant that no submission was made to the respondent about the expiry of the 10 year period, either within the five day period for submissions stated in the section 34 notice or within any extension of that period granted subsequently:
- the respondent was not required to consider the issue whether the 10 year period had expired before deciding to make a rectification order; and
- the issue whether the 10 year period had expired does not arise on the merits review of the respondent’s decision to make the rectification order.
In those circumstances, the registrar’s power to make an order under section 38 is unconstrained by any considerations relating to the time at which the contravention happened, or ended. The time at which the act that caused the contravention happened, or ended, is an irrelevant consideration.
ACAT then decided that, in circumstances where the preliminary question raised issues of statutory construction that, although irrelevant to this application, were likely to be of wider importance (including to the respondent in administering its powers in respect to the making of rectification orders) and the issues had been fully argued, it would be both useful and appropriate to provide an answer to the preliminary question.
The preliminary question raises two issues. First, when did the 10 year period in section 35(3) of COLA commence? Second, when did the 10 year period end? The first issue required ACAT to identify the day when the ‘act that caused the contravention happened, or ended’, which is partly a question of statutory construction and partly a question of fact. The second issue required ACAT to identify the ‘day the registrar proposes to make the order’, which is purely a question of statutory construction.
Ultimately ACAT held that the relevant ‘act that caused the contravention’ in this case was the failure of the applicant, at all material times up to and including the date on which the respondent issued the certificate of occupancy, to carry out building work in accordance with the requirements of section 42 to achieve compliance with the performance requirements in clauses BP1.1, FP1.3 and FP1.4 of BCA 2006.
For the purposes of answering the preliminary question in this case, ACAT found that the act that caused the contravention ended on 18 September 2018 when the respondent issued the certificate of occupancy.
On the second issue ACAT held that section 35(3) can work only if the ‘day on which the registrar proposes to make the order’ is a day that the licensee, in receipt of the section 34 notice, can identify at the time it receives the notice. The opportunity given by section 35(3) for the licensee to make a submission, within the time stated in the section 34 notice, to the effect that the registrar lacks power to make a rectification order because the 10 year period has expired, would be meaningless unless there is a certain end day against which the expiry of the period can be measured.
The day on which the section 34 notice is given to the licensee is that day. In this case, that happened on 7 September 2018. That was not more than 10 years after the day on which the act that caused the contravention ended, which ACAT found was 18 September 2008.