Page 4319 - Week 12 - Thursday, 24 October 2019
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provisions to give effect to director liability in relation to disciplinary and rectification powers and for amounts owed by their licensed corporation.
The Licensing Act and operational acts provide sanctions and penalties for contraventions of requirements for carrying out construction services. In some circumstances, such as for occupational discipline and rectification orders, actions may be taken against former licensees as well as current licensees. It is difficult for an individual to avoid their liabilities.
Unfortunately, however, as recent matters have shown, some corporations have responded to rectification orders or civil cases brought by owners by winding up the corporation. While an advantage of the corporate form is to limit personal and corporate liability, it is anathema to the principles of corporations law to use a corporate vehicle for personal gain, only to end that vehicle in order to avoid liabilities or remedies that other parties are entitled to under the law. The provisions prevent the actions of directors undermining the intent and the operations of the building regulatory system. The amendments extend the power to make rectification orders and to take occupational discipline to directors. They also make directors liable for any financial penalties and costs that are owed to the territory if they become overdue.
Occupational discipline and rectification actions can be taken in relation to a director concurrently with the actions in relation to the corporation or separately. The provisions do not affect the time in which an action can be taken or review and appeal rights but, importantly, actions may be taken in relation to a director regardless of whether the corporation still exists.
Another important provision of the bill is the introduction of powers for enforceable undertakings in relation to rectifying construction work. The bill includes provisions in the Construction Occupations (Licensing) Act for licensees to enter into enforceable rectification undertakings for rectification works. These provisions are similar to those in other ACT laws such as the Environmental Protection Act or the Work Health and Safety Act. The main difference is that rectification undertakings must include actions that will result in the rectification of non-compliant work. The powers are also linked to the rectification order powers in part 4 of the Licensing Act.
A submission in relation to a notice of intention to issue a rectification order may include a rectification undertaking. A failure to comply with an enforceable undertaking following a notice of intention process would be taken as a failure to comply with a rectification order and would trigger the power for the registrar to issue a rectification order or to authorise another person to do the rectification work without having to issue a further notice of intention.
The registrar may also apply to the Magistrates Court for an order in relation to the enforceable undertaking. The bill introduces an offence for failing to comply with a court order, with a maximum penalty of 2,000 penalty units. This is the same penalty as for the existing offence for intentionally failing to comply with a rectification order. If necessary or desirable to protect the public or if not complied with, details of
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