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MAGISTRATES COURT (BUILDING INFRINGEMENT NOTICES) REGULATION 2008 (NO 10 OF 2008)
2008
THE
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY
MAGISTRATES COURT (BUILDING INFRINGEMENT NOTICES)
REGULATION 2008
SUBORDINATE LAW
SL2008-10
EXPLANATORY
STATEMENT
Presented by
Mr Simon Corbell MLA
Attorney General
Part 3.8 of the Magistrates Court Act 1930 provides that offences
prescribed under a regulation made under that Act can be dealt with by way of an
infringement notice. The Magistrates Court (Planning and Development
Infringement Notices)
Regulation 2008 is to be made under that
Act and will enable infringement notices to be issued for prescribed offences
under the Planning and Development Act 2007, and for prescribed offences
under the Planning and Development Regulation 2008.
• a certifier under the Building Act 2004 issues a building approval for work in the absence of a relevant required development approval under the Planning and Development Act 2007 existing;
• a certifier under the Building Act 2004 issues a building approval in respect of defective plans in the absence of a relevant required development approval under the Planning and Development Act 2007 existing, and if the plans were not defective that development approval would have been required for the work.
Section 1
—Name of regulation—provides that the regulation is called—Magistrates Court (Building Infringement Notices) Regulation 2008.
Section 2
—Commencement—provides that the regulation commences upon
the commencement of the Building Legislation Amendment Act 2007, schedule
1, part 1.1, amendment 1.46, and provides in a note that the naming and
commencement provisions automatically commence on the notification day (see
Legislation Act, s 75 (1)).
It is necessary to delay commencement of the
regulation until the commencement of the above-mentioned amendment 1.46, as that
amendment has the effect of inserting into the Building Act 2004, new
offence provision that the regulation relies upon and refers
to.
Section 3
—Purpose of Regulation—provides that the purpose of the
regulation is to allow for infringement notices under the Magistrates Court
Act 1930, part 3.8 for certain offences against the building
legislation.
The dictionary to the regulation defines what that
term means—
building legislation
means––the Building Act 2004 and the Building (General)
Regulation 2008.
However, the Building Legislation Amendment Act
2007, has provisions, which when commenced, will amend the Building Act
2004. It is intended that references in the regulation to the Building
Act 2004 mean that Act as amended by the Building Legislation Amendment
Act 2007.
Section 4
—Dictionary—provides that the dictionary at the end of the
regulation is part of the regulation. The dictionary defines certain terms used
in the regulation. A definition in the dictionary applies to the entire
regulation unless the definition, or another provision of the regulation,
provides otherwise or the contrary intention otherwise appears (see Legislation
Act, s 155 and s 156 (1)).
Section 5
—Notes—provides that a note included in the regulation is,
in law, not part of the regulation; it is purely explanatory. See the
Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Section 6
—Administering authority—provides that the construction occupations registrar is the administering authority in relation to the issue of infringement notices under the regulation. Under the Legislation Act 2001, dictionary, part 1, that term is defined as follows—
construction occupations registrar means the Australian Capital
Territory Construction Occupations Registrar under the Construction
Occupations (Licensing) Act 2004.
Section 7
—Infringement notice offences—provides that The
Magistrates Court
Act 1930, part 3.8 applies to an offence
against a provision of the building legislation mentioned in the regulation at
schedule 1, column 2.
Section 8
—Infringement notice penalties—provides that the penalties
for an offence under a relevant infringement notice for an individual is
prescribed in schedule 1, column 4, of the regulation and that the respective
penalty for a corporation in that circumstance is 5 times the amount prescribed
in column 4. For example if schedule 1, column 4, prescribes and amount of
$1000, the amount payable by an individual under the notice is $1000 and the
amount payable by a corporation is 5 x $1000 = $5000.
The section also
prescribes that the cost of service a relevant reminder notice under the
Magistrates Court Act 1930, for a relevant infringement notice offence is
$34. That is the amount payable by the person to whom the reminder notice is
issued.
Section 9
—Contents of infringement notices—other
information—provides for additional information, other than the
offence and penalty, which must be provided in a relevant infringement notice.
The additional information is as follows—
for an infringement
notice served on a company registered under the Corporations Act
2001 (Commonwealth)—the company’s ACN;
for an
infringement notice served on a person who is a partner in a
partnership—the partnership’s name.
The requirement is
additional to the requirement under the Magistrates Court
Act
1930, s 121 (1) (c).
It is intended that the term ACN
means, for a company registered under the Corporations Act 2001
(Commonwealth), the Australian company number assigned to the company under that
Act.
Section 10
—Contents of infringement notices—identifying
authorised person—provides that the infringement notice must fully
identify the authorised person. Such identification could be by stating the
authorised person’s full name or the person’s surname and initials,
or by stating a unique number given, for the regulation, to the authorised
person by the administering authority.
Section 11
—Contents of reminder notices—identifying authorised
person—provides that a reminder notice must fully identify the
authorised person. Such identification could be by stating the
authorised person’s full name or the person’s surname and initials,
or by stating a unique number given, for the regulation, to the authorised
person by the administering authority.
Section 12
—Authorised people for infringement notice
offences—prescribes who may serve a relevant infringement notice and a
relevant reminder notice under the regulation. An inspector is so
prescribed, as defined in the section.
The section also defines the key
terms used in the section.
It is intended that an authorised person who
is an inspector because they are a deputy registrar appointed
under the Construction Occupations (Licensing) Act 2004, section 106, for
the construction occupation of builder is not restricted to
issuing infringement notices under the regulation only to entities licensed in
the occupation of “builder”. It is intended that such an authorised
person can also issue such notices to an entity licensed as a building surveyor,
for example.
It is intended that an authorised person who is an
inspector because they are a deputy registrar appointed under the
Construction Occupations (Licensing) Act 2004, section 106, for the
construction occupation of building surveyor is not restricted to
issuing infringement notices under the regulation only to entities licensed in
the occupation of “building surveyor”.
It is intended that an
authorised person who is an inspector because they are a deputy
registrar appointed under the Construction Occupations (Licensing) Act
2004, section 106, without a limitation on the appointment in respect of a
particular occupation is taken to be so appointed in respect of the occupations
that include the above-mentioned building surveyor and
builder occupations.
It is intended that an authorised
person who is an inspector because they are a deputy registrar
appointed under the Construction Occupations (Licensing) Act 2004,
section 106, for construction occupations that include building
surveyor or builder is taken to be so appointed in respect
of the occupations of the above-mentioned building surveyor and
builder occupations.
Schedule 1— The
infringement notice penalty amounts prescribed in the regulation schedule1,
column 4, are intended to represent 20% of the respective maximum penalty
provided for the offence for an individual (except dor Part 1.2), which reflects
general legal policy in the absence of compelling reasons to depart from that
magnitude of penalty.
The infringement notice penalty for the offence
prescribed at Part 1.2 of schedule 1, being section 49 of the Building
General (Regulation) 2008, is $1000 for an individual, which corresponds
with the respective full maximum penalty for the relevant offence. This penalty
level is a departure from the principle that infringement notice penalties
should be set at 20% of the maximum penalty for the offence. The departure is
considered necessary for the following reasons:
• An infringement
notice penalty of 20% of the maximum would be $200, which is considered
manifestly inadequate to deter against the commission of the
offence;
• The offence prescribed by Part 1.2, being section 49 of
the Building (General) Regulation 2008, is only intended to be contained
in the Regulation as an interim measure. The offence mirrors the offence at
section 50B (2) (b) (i) of the Building Legislation Amendment Act 2007,
except that the section 49 offence provides more detail in the offence grounds.
It is intended that the section 49 offence is more suited to infringement
notices than the section 50B (2) (b) (i) offence, and the Government intends to
remove the offence from the Regulation and place it in the Act proper, at which
point the maximum penalty in the Act will be 50 penalty units, with an
infringement notice of 20% of this figure (i.e. $1000);
• The
offence can only apply to a surveyor, and not the public at large. After
consultation with the relevant industry, the industry has expressed its strong
support for inspectors being given the option to pursue alleged breaches of the
section by way of infringement notice instead of a court based prosecution.