(a) a written statement of any witness on whose evidence the applicant relies; and

(b) any other material including experts reports the applicant intends to rely upon at the hearing.

1. The respondent and party joined are each required by 21 May 2020 to give to each other party and the Tribunal:

(a) a written statement of any witness on whose evidence they rely; and

(b) any other material including experts reports they intend to rely upon at the hearing.

1. The applicant is required by 28 May 2020 to give to each other party and the Tribunal:

(a) any material in reply to the material given to it; and

(b) a written outline of submissions (not exceeding 10 pages).

1. The applicant is to liaise with each other party to prepare and file with the Tribunal an agreed index of documents for the hearing by 4 June 2020, and the party joined is to liaise with each other party to prepare and file with the Tribunal by 4 June 2020 an itinerary for the view . If there is no agreement the itinerary or index will be settled by the Tribunal at the final directions hearing.
2. The respondent and party joined are required by 9 June 2020 to give each other party and the Tribunal a written outline of submissions (not exceeding 10 pages).
3. The matter is listed for a final directions hearing at 10:00am on 12 June 2020.
4. If a party intends to rely on authorities, the party is required to prepare a list of authorities and a double sided paper copy of each authority (to be placed in a binder if the authorities exceed 10 in number). The list and copies of the authorities are to be provided by that party to each other party and to the Tribunal by 12 June 2020. One copy is to be provided to each party and 2 copies are to be provided to the Tribunal.
5. Any request to participate in the hearing or to have a witness give evidence by telephone must be made in writing to the Tribunal by 12 June 2020.
6. The matter is listed for hearing commencing at 9:30am on site with a view on 29 June 2020 and thereafter at 10:00am on 30 June 2020 to 3 July 2020.
7. If the matter is listed for hearing, a hearing fee in an amount to be advised by the Tribunal is payable by applicant within 7 days of the date of the listing.

1. This application is 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).
2. 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.
3. As it appeared that a decision on that issue may dispose of the application without the need for a full hearing on the merits, the Tribunal ordered that the question should be heard and determined as a preliminary question. Neither the respondent nor the party joined (Owners) opposed this course. Directions for the filing and service of submissions were made accordingly.
4. The question was whether on the proper construction of section 35(3) of COLA, as in force on 22 March 2019, 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.
5. The hearing of the preliminary question took place on 13 March 2020. At the conclusion of the hearing we informed the parties that we would give our decision later that afternoon. We did so, as follows:

(a) We are satisfied that the preliminary question should be answered 'No".

(b) We are satisfied also 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:

(i) first, the respondent was not required to consider the issue whether the 10 year period had expired before deciding to make a rectification order; and

(ii) second, the issue whether the 10 year period had expired does not arise on the merits review by the Tribunal of the respondent's decision to make the rectification order.

1. We informed the parties that reasons for our decision would follow. These are our reasons.

1. The following facts are uncontroversial.
2. On 15 March 2007, a Building Commencement Notice was issued for the works.
3. On 18 September 2008, the respondent issued a Certificate of Occupation and Use for the premises (certificate of occupancy).
4. On 7 September 2018, the respondent issued a Notice of Intention to Make a Rectification Order pursuant to section 34 of COLA (section 34 notice). The section 34 notice invited the applicant to make a submission in relation to the proposed rectification order within five working days of receipt of the notice.
5. The applicant did not make a submission within the stated period. However, Martin Crncevic, on behalf of the applicant, met with Adam Pascoe, on behalf of the respondent, on 19 October 2018 and indicated that the applicant intended to contact the owners corporation with a view to settling a program of works to address the alleged defects raised in the section 34 notice. Mr Pascoe informed Mr Crncevic that if the applicant provided an email setting out the outcome of any agreement with the owners corporation by no later than 4 pm on 26 October 2018, the respondent would consider the reply to have been made within the response period set out in the section 34 notice. The respondent confirmed his position by email on 22 October 2018.
6. On 29 November 2018, the respondent granted an extension until 14 December 2018 for the applicant to provide a program of works.
7. The applicant failed to do so at any time prior to 22 March 2019, citing various reasons for the delay.
8. On 22 March 2019, the respondent made a rectification order pursuant to section 38 of COLA.
9. Paragraph 22 of the rectification order stated:

I believe on reasonable grounds that Victory Homes Pty Limited did not provide a construction service in accordance with the Building Act. I am satisfied that the defects listed below, when taken individually and collectively, demonstrate that the construction of the premises fails to comply with the standards stipulated in the BCA and therefore, is a breach of section 42 of the Building Act. The BCA in force at the time of construction was the BCA 2006 Vol.1.

1. The rectification order listed five kinds of defects at various locations throughout the premises - failed cavity and flashing systems, brick facade cracking, planter box failures, lift shaft water ingress and corrosion to balcony edge beams - and referenced non-compliance with the following provisions of BCA 2006: Part B1 Structural provisions, clause BP1.1; Part F1 Damp and Weatherproofing, clauses FP1.3 and FP1.4.
2. The applicant filed this application for review of the decision on 15 April 2019.

1. The applicant's primary submission was that the respondent was precluded from making the rectification order by the expiry of the 10 year period for the following reasons. First, the 'act that caused the contravention happened, or ended', for the purposes of section 35(3), on the day or days when the specific building work that contravened section 42 of the Building Act was carried out.[1] In this case, the relevant 'act' must have happened, or ended, after 15 March 2007, when the building commencement notice was issued and before 18 September 2008, when the certificate of occupancy was issued. The 10 year period therefore ended on an unspecified day before 18 September 2018. Second, the 'day the registrar proposes to make the order', for the purposes of section 35(3), was the day on which the registrar made the order. In this case, that day was 22 March 2019. As this was more than 10 years after the 'act that caused the contravention happened, or ended', the order was not validly made.
2. The applicant acknowledged that its submissions were contrary to a decision of the Tribunal, constituted by the then Appeal President and two senior members, in Koundouris v Construction Occupations Registrar & Ors[2] (Koundouris) but submitted that the decision was wrong and that we should not follow it.[3]
3. The respondent's primary submission was that the 10 year period commenced at completion of the building work, which should be taken as the day on which the certificate of occupancy was issued, and that the 'day the registrar proposes to make the order' was the day the respondent issued the section 34 notice, not the day the respondent made the rectification order. The respondent submitted that the issues had been correctly decided in Koundouris, which in any event should be followed as a matter of comity.[4] Further, upon receiving the section 34 notice, the onus was on the applicant to make a submission to the registrar that the contravention had occurred more than 10 years earlier. As the applicant had not done so the respondent was not precluded from issuing the rectification order.[5] The respondent did not expand on the implications this may have for the utility of the Tribunal deciding the issues raised by the preliminary question.
4. The Owners submitted that, applying the reasoning in Koundouris, 'the act that caused the contravention' should be broadly defined as the construction of the premises and not any individual act or omission during the process of construction.[6] Accordingly, the 10 year period commenced on the day the certificate of occupancy was issued. Applying Koundouris, the relevant day for the purpose of determining whether the 10 year period had expired was the day the registrar issued the section 34 notice, not the day the registrar made the rectification order.[7]
5. The Owners was the only party to address squarely the implications of the applicant's failure to make a submission to the registrar about the expiry of the 10 year period. The Owners' submissions were succinct and to the point. It is convenient to reproduce them here.
   1. The Owners adopt paragraphs [18] - [19] of the Respondent's Submissions, to the effect that the operation of s 35(3) is conditional on the receipt of a submission by the Registrar.
   2. The Owners contend that the expression 'if a submission is made' in s 35(3) necessarily refers to the submission invited by s 34(2)(c). That submission must be made within the time fixed by the Registrar, being not less than 5 working days after the day the licensee receives the s 34 notice.
   3. This interpretation is reinforced by s 35(1)(c), which requires the Registrar to consider any submissions 'made within the time mentioned in the notice'.
   4. Accordingly, even on merits review by the Tribunal, s 35(3) only has effect if a submission is made within the time stated in the notice.
   5. If such a submission was received (and in time) the Tribunal on review would decide for itself whether it is satisfied (by that submission) that the act that caused the contravention occurred more than 10 years earlier.
   6. If no submission was received, then s 35(3) simply has no operation.
   7. If the applicant failed to make such a submission to the Registrar, then it will not matter when the 10 year period began or ended, because the condition 'if a submission is made' in s 35(3) is not satisfied.

1. The preliminary question required us to decide when, in the circumstances of this case, did the 10-year period mentioned in section 35(3) of COLA commence and end.
2. However, the real issue, that became apparent only during the hearing, was whether the answer to the preliminary question, whatever it may be, could have any relevance to the outcome of the present application.
3. The applicant confirmed that it had not made a submission to the registrar about the time at which the act that caused the contraventions had occurred and conceded, properly, that in those circumstances section 35(3) did not require the respondent to consider the issue when making the decision to issue the rectification order. However, the applicant submitted that, on a merits review of the respondent's decision, the Tribunal stood in the shoes of the respondent and must consider the applicant's current submissions in relation to the timing of the contravention and decide the issue for itself. According to the applicant, "the issue is not whether the original decision maker was satisfied about the time that had elapsed, but whether the Tribunal is so satisfied".[8]
4. In oral submissions, the respondent appeared to accept the applicant's position that the Tribunal was required to decide for itself whether the respondent's decision to make the rectification order was precluded by section 35(3) because of the expiry of the 10 year period.
5. Although pressed to do so, neither the applicant nor the respondent was able to explain how that result could obtain by reference to the text of section 35.
6. The Owners' submissions on this issue have been reproduced earlier. The submissions are correct and we accept them. We explain our reasons below.

Why the answer to the preliminary question does not matter to the outcome of this application

1. The question whether the expiry of the 10 year period is relevant to the outcome of the present application involves the construction of section 35 of COLA, as in force on 22 March 2018.[9] Section 35 provided at the time:[10]

(a) the registrar has given an entity notice under section 34; and

(b) the entity provided the construction service, or part of the construction service, to which the notice relates; and

(c) after considering any submissions made within the time mentioned in the notice, the registrar is satisfied -

(i) the entity is contravening, or has contravened, this Act or any other operational Act; and

(ii) it is appropriate to make a rectification order in relation to the entity.

(2) The registrar may make an order under section 38 (Rectification orders) in relation to the entity.

(3) However, the registrar may not make an order under section 38 in relation to an entity if a submission is made that satisfies the registrar that the act that caused the contravention happened, or ended, more than 10 years before the day the registrar proposes to make the order.

1. Section 35(1)(c) identifies two matters about which the registrar must be satisfied before he is authorised by section 35(2) to make an order under section 38. The registrar is required by subsection (1)(c) to consider any submission about the making of the order made within the time stated in the section 34 notice. In the absence of a submission, or a submission made within the stated time, the registrar is not excused from determining, on the information then available, whether the registrar is satisfied that the conditions in subsection (1)(c) have been met: namely, whether a relevant contravention has occurred and, if so, whether it is appropriate to make a rectification order. On a merits review of the registrar's decision to make a rectification order, the tribunal is required to decide for itself whether the conditions in section 35(1)(c) have been met. It is uncontroversial that, in doing so, the tribunal must have regard to information available at the time of the merits review, notwithstanding that the information may not have been available to the original decision maker, although the task is not at large.[11]
2. Section 35(3) is in a different category. The section operates as an exception to the circumstances in which the registrar, in the exercise of the discretion conferred by section 35(2), may make a rectification order under section 38. If the conditions referred to in section 35(3) are met, the registrar does not have power to make a rectification order. No discretion is involved. That is the plain meaning of the section, which commences with the words "However, the registrar may not make an order...".
3. 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). No party expressly submitted otherwise. To the extent that the argument that the word 'submission' appearing in section 35(3) encompasses any submission whenever made is implicit in the position advanced by the applicant and respondent, we do not think that such an interpretation is to be preferred given the context.
4. In M70/2011 v Minister for Immigration and Citizenship[12] French CJ said at [57]:

The term "jurisdictional fact" applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be a "complex of elements". When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.

1. If a submission is made to the registrar within the stated time, the jurisdictional fact - in the sense explained in M70/2011 - on which the registrar's power to make a rectification order is conditioned, is that the registrar is not satisfied by the submission that the act that caused the contravention happened, or ended, more than 10 years before the relevant day.
2. If the registrar makes a rectification order in those circumstances, the registrar's decision to do so is reviewable, apart from any other grounds that may be available, on the ground that the registrar should have been satisfied by the submission. On a merits review of the registrar's failure to be satisfied by the submission, the question whether the act that caused the contravention happened, or ended, more than 10 years before the relevant day, is not at large - in the sense that the tribunal must have regard to information available at the time of the merits review, notwithstanding that the information was not provided in the submission to the registrar. We agree with the Owners' submission that, on a merits review of this aspect of the registrar's decision, the tribunal would be required to decide for itself whether it was satisfied by the submission made to the registrar.
3. However, if a submission is not made to the registrar, or not made within time, the registrar is not required to consider the issue. 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.
4. In those circumstances, an issue with respect to any limitation on the registrar's power to make a rectification order arising from the operation of the time limit in section 35(3) cannot arise on a merits review of the registrar's decision to make the order.
5. The answer to the preliminary question therefore can serve no purpose in respect to how the present application should be determined.

The wider importance of issues of statutory construction raised by the preliminary question

1. In other circumstances, we would have declined to answer the separate question because the answer lacked utility. However, 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, we considered that it would be both useful and appropriate to provide an answer to the preliminary question.
2. 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 requires us 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 requires us to identify the 'day the registrar proposes to make the order', which is purely a question of statutory construction.
3. It follows from our earlier reasons that, if the applicant wished to raise an issue with respect to the expiry of the 10 year period, it was required to make a submission to the registrar that included sufficient verifiable information to satisfy the registrar (or the tribunal on a merits review, if the submission did not satisfy the registrar) that the act that caused the contravention happened, or ended, more than 10 years before the relevant date. The applicant did not make such a submission and did not seek to tender evidence going to the issue at the hearing (which, in light of our earlier conclusions, would have been impermissible in any event). The only 'evidence' therefore was the inference we were invited to draw from the date of issue of the certificate of occupancy - namely, that the act that caused the contravention, which the applicant characterised as carrying out non-compliant work, must have happened, or ended, before that day.

Consideration - when did the 'act that caused the contravention' happen or end?

1. The provisions of Part 4 of COLA are engaged where a licensee has provided a 'construction service' otherwise than in accordance with COLA or an operational Act. 'Construction service' is defined in section 6 to mean the doing or supervision of work in a 'construction occupation'. Section 7 provides that 'builder' is a 'construction occupation'. Section 8 defines 'builder' to mean an entity that provides, or proposes to provide a 'building service' and 'building service' to mean the doing or supervising of 'building work'. 'Building work' has the meaning given by section 6 of the Building Act 2004 (Building Act) - namely work in relation to the erection, alteration or demolition of a building.
2. The Building Act is an operational Act for the purposes of sections 34 and 35 of COLA.[13]
3. The Building Code of Australia (BCA or building code) is a statutory instrument in force under section 136 of the Building Act.[14]
4. The applicant is a 'builder' who provided a 'building service' - namely the doing or supervision of building work in relation to the erection of a building.
5. The respondent made the rectification order on the basis that work done as part of a construction service - namely the construction of the premises[15] - failed to comply with the standards stipulated in BCA 2006 in breach of section 42 of the Building Act.
6. The relevant 'contravention' for the purpose of applying section 35(3) of COLA, therefore, was a contravention of section 42 of the Building Act by carrying out building work in relation to the erection of a building, otherwise than in accordance with the requirements of BCA 2006 Vol. 1 clauses BP1.1, FP1.3 and FP1.4.
7. At the relevant time clause BP1.1 provided that:

(a) A building or structure, to the degree necessary, must -

(iii) minimise local damage and loss of amenity through excessive deformation, vibration or degradation; and

by resisting the actions to which it may reasonably be subjected.

1. At the relevant time clause FP1.3 provided that:

A drainage system for the disposal of surface water must -

(a) convey surface water to an appropriate outfall; and

(b) avoid the entry of water into a building; and

1. At the relevant time clause FP1.4 provided that:

A roof and external wall (including openings around windows and doors) must prevent the penetration of water that could cause -

(a) unhealthy or dangerous conditions, or loss of amenity for occupants; and

(b) undue dampness or deterioration of building elements.

1. What, in those circumstances, was the 'act' that caused the contravention?
2. The applicant submitted that, on the proper construction of section 42 of the Building Act, the relevant 'act' was carrying out non-compliant building work and the decision in Koundouris, to the effect that completion of the building was the relevant 'act', was incorrect and not supported by the language of the section.[16]
3. The respondent submitted that Koundouris had "adequately and comprehensively dealt with these precise issues" and should be followed.[17] The relevant 'act', therefore, was the ending of construction of the building.[18]
4. The Owners submitted that the reasoning in Koundouris should be followed, so that the relevant 'act' was the construction of the apartments and not any individual act or omission in the process of construction.
5. It is appropriate to commence our analysis of the first issue by putting to rest the controversy concerning the status of the Tribunal's decision in Koundouris.[19]

1. Koundouris concerned a merits review of a decision to issue a rectification order in respect to defects caused by a contravention of section 37 of the Building Act 1972 (repealed) (1972 Act). The text of section 37 was similar, but not identical, to section 42 of the current Building Act. The registrar contended that section 37 required all building work to be carried out in compliance with the BCA.[20] The notice issued under section 34 of COLA referred to the registrar's belief that the construction of the waterproofing, drainage, roofing and external facade, failed to comply with the approved plans and standards stipulated in the BCA.[21] The question whether section 37 of the 1972 Act required all building work to comply with the BCA, or whether, as the builder contended, section 37 was concerned only with whether particular materials and their use complied with the BCA, required the Tribunal to consider the context provided by the offence provisions of the 1972 Act - sections 40A and 41A - which made it an offence to carry out building work without reasonable excuse except in accordance with the building code, and to carry out work otherwise than in compliance with section 37.[22] The equivalent provisions in the current Building Act are sections 49 and 51 and, while having broadly similar objects, are expressed in different language.
2. The statutory context within which Koundouris was decided also was different with respect to the examples at the end of section 35(3) of COLA. An example in an Act is part of the Act and may extend, but not limit, the meaning of the Act.[23] The text of section 35(3), as in force at the time relevant to the decision in Koundouris,[24] was identical to the current section but included an example of a contravention that has since been removed and replaced by different examples.[25]
3. The Tribunal decided that the 'act that caused the contravention' in that case was as follows:[26]

The Tribunal accepts the submission that it is the ending of the construction of the building which is 'the act' which constitutes the relevant contravention of the applicant builder in the present circumstances. It also finds that the 'act that caused the contravention' must be interpreted against the context in section 34 and section 35 of a rectification order being made where a licensee has provided a construction service in contravention of a defined Act. This context requires consideration of the nature of the construction service that has been provided, so that in appropriate circumstances, it would be reasonable to regard the construction service provided by a builder as including all activities going to make up the construction of a completed building. [Emphasis added]

1. The Tribunal found support for this interpretation in the example given at the end of section 35(3), which provided:

A builder built a house without a building approval. The registrar is satisfied that the building of the house started 12 years ago and finished 9 years ago. The registrar may make a rectification order in relation to the construction service of building the house.

1. The Tribunal reasoned that, in the example, the 'act that caused the contravention' was the completion of the building in contravention of COLA or an operative Act.[27]
2. That example no longer appears at the end of section 35(3). The current examples relate to circumstances in which the registrar may or may not issue a rectification order, but do not shed light on the issue whether completion of building work should be considered as the 'act that caused the contravention'.
3. The references to "in the present circumstances" and "in appropriate circumstances" in the passage reproduced earlier, make it apparent that Koundouris does not stand for the proposition that the ending of construction will be the 'act that caused the contravention' in all cases.
4. Further, while we accept that it may be instructive to have regard to how the Tribunal approached the issue in that case, the 'act' in question was one that caused the contravention of an operative Act that has since been repealed and replaced by new legislation. The Tribunal's decision that, in the circumstances, the ending of the building work was the relevant 'act that caused the contravention', must be seen in the context of the Tribunal's acceptance of the proposition that building work that was not carried out in compliance with the BCA was a breach of section 37 of 1972 Act.
5. Whether that is also true of section 42 of the current Building Act is an issue that remains to be determined. Unless the contravention is properly identified, we do not see how it is possible to properly identify the 'act that caused the contravention'. We consider that issue next.

1. Section 42, as in force when the building commencement notice was issued,[28] provided as follows:[29]

(1) Building work must not be carried out except in accordance with the following requirements:

(a) the material used in the building work must comply with the standards under the building code for the materials in buildings of the kind being built or altered;

(b) the way the materials are used in the building work must comply with their acceptable use under the building code for buildings of the kind being built or altered;

(c) the building work must be carried out in a proper and skilful way;

(ii) if the building work involves handling asbestos or disturbing friable asbestos - in accordance with approved plans that comply with this Act in relation to the asbestos;

(e) the building work required to be done by a licensed builder must be carried out by or under the supervision of the builder mentioned in the building commencement notice;

(f) the building licensee in charge of the building work must take -

(i) all the safety precautions stated in or with the application for the building approval; and

(ii) any other safety precaution that a certifier or building inspector may require the building licensee to take under section 46.

(2) The regulations may prescribe considerations to be taken into account to decide whether building work is carried out in a proper and skilful way.

1. Section 42 mentions the 'building code' only in connection with materials used, and how the materials are used, in the building work. The section does not say in terms that building work must not be carried out except in compliance with the building code, or that building work must result in a building that complies with the building code. It is not permissible to read those words into the section. Nor is it permissible to treat the section as having that meaning if the text is incapable of supplying the meaning.
2. Does it have that meaning? To answer the question, it is necessary to understand the scheme in force under the Building Act by which all aspects of building work - from building approval to the issuing of a certificate occupancy - are regulated by reference to the building code. This supplies the statutory context within which the meaning of section 42 must be worked out.
3. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) the plurality said at [47]: [30]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

1. A similar approach to 'working out the meaning of an Act' is required by Chapter 14 of the Legislation Act 2001. Section 139 requires the interpretation that would best achieve the purpose of the Act to be preferred to any other interpretation, whether or not the Act's purpose is expressly stated. Section 140 requires the provisions of the Act to be read in the context of the Act as a whole.[31]

1. In undertaking the following analysis, it must be kept in mind that wherever the Building Act refers to 'the Act', the reference includes the statutory instruments made or in force under the Act - relevantly, the building code.[32]
2. An owner of land may apply to a certifier for building approval for building work to be carried out on the land.[33] A certifier is prohibited from considering an application for building approval unless the plans accompanying the application comply with requirements prescribed under the regulations.[34] The prescribed requirements include that plans must contain sufficient information and detail to allow: (a) the certifier to work out if a building erected or altered in accordance with the plans would contravene the Act; (b) a competent builder to carry out the building work in accordance with the plans and the Act; and (c) a certifier to work out if the building work, if carried out, complies with the plans and the Act.[35] The certifier must issue the building approval if satisfied on reasonable grounds that the plans meet the approval requirements under section 29.[36] The approval requirements include that, if the plans are for the erection or alteration of a building, the building as erected or altered will comply with the Act.[37]
3. Building work must not be carried out except in accordance with the requirements in section 42 (reproduced earlier). In deciding whether building work has been done in a proper way a relevant consideration, among other things, is whether the building work contravenes the Act.[38] In deciding whether building work has been done in a skilful way, consideration must be taken of whether the work has been carried out to completion with enough care so that it does not have to be redone to adequately serve its intended purpose or comply with the Act.[39]
4. It is an offence for a person to carry out building work otherwise than in a way that will, or is likely to result, in a building that complies with the building code.[40] It is an offence to begin or carry out building work except in compliance with section 42.[41]
5. A builder warrants that residential building work has been, or will be, carried out, among other things, in accordance with the Act, and in a proper and skilful way and in accordance with the approved plans.[42]
6. A certifier must, as soon as practicable, notify the registrar of any contravention of the Act that comes to the certifier's attention.[43] A building inspector may inspect building work for which building approval has been issued to decide whether the building work is being, or has been, carried out in accordance with the Act.[44]
7. If building work appears to have been completed and the certifier is satisfied on reasonable grounds, among other things, that the work has been completed in accordance with the Act and substantially in accordance with the approved plans, the certifier must give the registrar, among other things, a certificate to that effect.[45] If building work has been completed in accordance with the prescribed requirement for the work, the registrar must, on application by the owner, issue a certificate that the building work has been completed in accordance with the requirements and the building as erected is fit for occupation and use as a building of the class stated in the approved plans for the building work.[46] The prescribed requirements in relation to building work include the requirements of the Act or the approved plans for the work.[47]
8. The evident purpose of these provisions is to ensure that building work relating to the erection or alteration of a building is carried out only if it is approved, and in such a way as to result in a building completed substantially in accordance with the approved plans, and which complies with relevant provisions of the building code applicable to that class of building.

1. The following definitions and references are sourced from BCA 2006 Vol. 1, which is relevant to the present case. In each case it is necessary to have regard to the building code as in force at the time the approved plans for the building work were approved.[48] The meaning of the building code is to be worked out in accordance with the requirements of Chapter 14 of the Legislation Act 2001.[49] The position at common law is not dissimilar.[50]
2. A 'Building Solution' will comply with the building code if it satisfies the 'Performance Requirements'.[51] Compliance with the 'Performance Requirements' can be achieved only by complying with the 'Deemed-to-Satisfy Provisions' or formulating an 'Alternative Solution' which complies with the 'Performance Requirements' or is shown to be at least equivalent to the 'Deemed-to-Satisfy Provisions' or a combination of both.[52]
3. Subject to any variations applicable to the Territory in a relevant Appendix,[53] Class 2 - 9 buildings must be so designed and constructed that they comply with the relevant provisions of Sections A to J (inclusive) of the building code.[54]
4. A reference to a building in the building code is a reference to an entire building or part of a building, as the case requires.[55]
5. Every part of a building must be constructed in an appropriate manner to achieve the requirements of the building code, using materials that are fit for the purpose for which they are intended.[56]

The meaning of section 42

1. We concluded earlier that the one of the purposes of the Building Act is to ensure that building work relating to the erection or alteration of a building will result in a building that complies with provisions of the building code applicable to a building of that class. Section 42 is the only provision in the Act that states how that result must be achieved. It does so by prohibiting building work from being 'carried out' except in accordance with the requirements in subclauses (a) to (f). Building work must comply with all of the requirements. Non-compliance may give rise to an offence under section 49 or 51.
2. The premise on which section 42 operates, is that building work carried out in accordance with the requirements of the section will produce a result that complies with the provisions of the building code relevant to the class of building being erected or altered. Section 42(1)(a) and (b) requires the materials used and the way the materials are used to comply with the building code. Section 42(1)(c) sets a standard of proper and skilful performance of building work that is measured, among other things, against compliance with the building code. Section 42(1)(d) requires the work to be carried out in accordance with approved plans. The approval requirements mentioned earlier include that a building erected or altered in accordance with the plans will comply with the building code and that the plans include sufficient information and detail to enable a competent builder to achieve that result.
3. In that context, the expression 'carried out' must refer to the doing of everything that is necessary for a licensee providing a construction service to achieve the result required by section 42 - building work that complies with the provisions of the building code applicable to the work.
4. That meaning is consistent with the ordinary meaning given to 'carry out' by dictionaries in common use. The Macquarie Dictionary (on-line) meaning is "to accomplish or complete (a plan, scheme, etc.)".[57] The Cambridge Dictionary (on-line) meaning is "to perform or complete a job or activity; to fulfil". [58] The Collins Dictionary (on-line) give the following meanings: "(1) to perform or cause to be implemented; (2) to bring to completion; accomplish".[59] Other dictionaries give similar meanings.[60]
5. In a different context, Hill J said in Commissioner of Taxation v Executors of the Estate of Subrahmanyam: "The expression 'carry out' and other versions of it is apt to cover the doing of all things that may be necessary to give effect to a plan of conduct".[61]
6. Whether or not a licensee has carried out building work in a way that achieves the result required by section 42 can be determined only when the building work is completed. The nature of the building work 'carried out' as part of the construction service provided by a licensee will determine the result that completion of the 'building work' in accordance with section 42 is required to achieve in terms of compliance with the building code. In Koundouris, the Tribunal referred at [40] to the need to consider, in each case, the nature of the construction service that has been provided. A plumber who installs a stormwater collection and disposal system for a building, must do so such that the completed system complies with the performance requirements of the building code applicable to the system. On the other hand, a builder who erects a new building, or alters an existing building, must do so in such a way that the completed building complies with the performance requirements of the building code applicable to that class of building.

What was the 'act that caused the contravention' in this case and when did the 'act' happen or end?

1. Clauses BP1.1, FP1.3 and FP1.4 of BCA 2006 were mandatory performance requirements of BCA 2006 that applied to the construction of the premises in this case.
2. If the respondent's assessment of the condition of the building and the causes of the defects is correct (about which we express no view) the building fails to comply with performance requirements of the building code applicable to that class of building. Whether that was caused by building work that was carried out otherwise than in accordance with the requirement to use appropriate materials, or to use the materials in an appropriate way, or to carry out the work in a proper and skilful way, or in accordance with approved plans, does not matter. Defects often have multiple causes. It is not necessary for the registrar to elect among the various possible causes that may arise under section 42 before the registrar can be satisfied, on reasonable grounds, that a contravention of section 42 has occurred. The point, as we see it, is that if building work has been carried out in compliance with the requirements of section 42, the result should be a building that complies with relevant provisions of the building code. Absent some extraordinary and unforeseeable causal event, the fact that a building does not comply is sufficient grounds for the registrar to be satisfied that a contravention of section 42 has occurred for the purposes of issuing a notice under section 34 of COLA.
3. The example that appears after section 38(1) of COLA, supports that interpretation. It is sufficient for the order to state that "rectified work must comply with [a stated performance requirement] of the Building Code of Australia" to satisfy the requirement in section 38(1)(a) for the order to require the entity to "take stated action to rectify work done as part of the construction service".
4. Where the building work involves the erection or alteration of a building, we have concluded earlier that whether or not the building work has been carried out in accordance with section 42 - in particular, whether the building complies with performance requirements of the building code applicable to a building of that class - must be assessed at the completion of the building work.
5. What does 'completion' mean in that context?
6. Under the Building Act, when a certifier is satisfied on reasonable grounds that building work has been completed in accordance with the Act and substantially in accordance with the approved plans, the certifier must give a certificate to that effect to the registrar. Necessarily, the certifier must be satisfied on reasonable grounds that the building work complies with the BCA in all relevant respects.[62] The issuing of a certificate of completion has certain statutory consequences, including that it satisfies one of the pre-conditions for the registrar to issue a certificate of occupancy.
7. 'Completion' in that sense depends on a certifier reaching the requisite state of satisfaction on reasonable grounds. It does not mean that the building work is actually complete. Actual 'completion' requires first, that the building work must in fact have been carried out substantially in accordance with the approved plans, and second, that the building work must in fact have been carried out so as to comply with relevant provisions of the building code.
8. Whether building work has been 'completed' in that sense is a question of fact and degree which will depend on the particular circumstances. The circumstance that a certifier has issued a certificate of completion, or that the registrar has issued a certificate of occupancy and use does not determine the issue. Nor does the existence of such circumstances preclude the registrar from having a contrary belief on reasonable grounds, or being satisfied about a matter mentioned in Part 4 of COLA in relation to a construction service.[63]
9. As the Court of Appeal said in Koundouris v The Owners - Units Plan No 1917:[64]

Accordingly, the mere fact that the building was "completed" for statutory purposes and was subject to a certificate of occupancy does not necessarily mean that the builder has complied with all legal requirements for actual completion of the building. In the present case, the inescapable fact is that the building was never actually completed by Mr Koundouris. He built a building which did not comply with the warranties and, for the next eight years or so, continued to carry out building work trying to complete the building. This Further Building Work was a continuation of the building work.

As noted, we do not accept that these building works must be treated as isolated items of work. The attempted repair works constitutes a continuing course of conduct in which the builder repeatedly undertook building works in failed attempts to rectify a systemic problem with the construction of the building, the systemic problem being that the original building work did not comply with the requirements of the building code to ensure that water ingress to internal areas so as to prevent damage, was prevented, and the continuing systemic problem being that the building works by way of repairs did not deal with the underlying causes of the water ingress (non-existence or failure of the waterproofing membrane system and no movement control joints).

1. It is apparent that a licensee's statutory obligations with respect to compliance with section 42 and the building code do not come to an end simply because the licensee has finished carrying out the non-compliant work. The work remains non-compliant and therefore not actually 'complete'. Where building work has been carried out otherwise than in accordance with the requirements of section 42, a licensee is under a continuing obligation to carry out building work in accordance with the requirements of the section to achieve compliance with relevant provisions of the building code applicable to the work, at least until the day on which a certificate of occupancy is issued. Failure to do so may render the licensee liable to prosecution under section 49 or 51. After a certificate of occupancy is issued the licensee may be compelled to do so by a rectification order issued under section 38 of COLA.
2. 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.
3. For the purposes of answering the preliminary question in this case, we find that the act that caused the contravention ended on 18 September 2018 when the respondent issued the certificate of occupancy.

Consideration - when was the 'the day the registrar proposes to make the order'?

1. The applicant's submission is that the relevant day was 22 March 2019, when the respondent made the rectification order. The respondent's and the Owners' submission is that the relevant day was 7 September 2018, when the respondent issued the section 34 notice. If the applicant is correct, the respondent was out of time and the order was not validly made. If the respondent and Owners are correct, the order was validly made.
2. There are two reasons why the applicant's submission should be rejected.
3. First, the ordinary meaning of 'propose' militates against the applicant's construction of the section. The Macquarie Dictionary[65] includes the following meanings for 'propose':

verb (t) 1. to put forward (a matter, subject, case, etc.) for consideration, acceptance, or action: to propose a new method, to propose a toast.

2. to put forward or suggest as something to be done: he proposes that a messenger be sent.

4. to put before oneself as something to be done; to design; to intend

1. The heading to section 34 is 'Intention to make rectification order' and is part of the Act.[66] The section applies if the registrar believes on reasonable grounds that it may be appropriate to make a rectification order.[67] The notice must give details of the rectification order that may be made, explain why the registrar intends to make the order and invite submissions about the making of the order.[68]
2. In short, the function of the section 34 notice is to inform the entity of action the registrar proposes to take - namely, to issue a rectification order - and the reasons for the proposed action and to give the entity an opportunity to provide submissions in relation to the proposed order. Importantly, section 34(2)(b) makes it clear that the registrar must have formed an intention to make the proposed order when the registrar gives the section 34 notice. The fact that the intention is not final is irrelevant.
3. Second, treating the day on which the registrar actually makes the order as the day on which the registrar 'proposes' to make the order produces an unworkable result.
4. Section 35 authorises the registrar to make an order if the registrar is satisfied, after considering any submissions made within the time stated in the section 34 notice, that it is appropriate to make a rectification order.[69] The relevant decision therefore is made at that time. The applicant's submissions accept this.[70] However, the applicant submits that the time at which the registrar makes that decision should be taken to be immediately before the registrar actually makes the order - in effect, as the registrar's pen hovers over the piece of paper before signing the document. The rationale for this, so the submission goes, is that it remains open for the registrar to "change his/her mind" at any time before the registrar actually makes the order. [71]
5. The argument overlooks that, for an occasion to arise for the registrar to "change his/her mind", the registrar must already have decided that it is appropriate to make a rectification order. One could never know in advance when the day on which the decision is made may arrive, or after the event, the day on which the decision was actually made. No inference about the timing of the registrar's decision can be made on the basis that the registrar made the order on a particular day by signing it. The physical act of signing the document simply gives effect to a decision already made.
6. The practical consequence of the applicant's argument is that a licensee in receipt of a section 34 notice could never know in advance the day on which the registrar proposes to make the order. Unless the 10 year period has expired already at the date of the section 34 notice, the 'day on which the registrar proposes to make the order' is, and necessarily must remain, unknown to the licensee. How, in those circumstances, can a licensee sensibly make a submission that is capable of satisfying the registrar (or the tribunal on a merits review if the registrar is not satisfied) that the act that cause the contravention happened, or ended, more than 10 years before the relevant day? The licensee's submission would be like the arrow in Longfellow's poem:[72]

1. 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.
2. 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 we have found was 18 September 2008.
3. The preliminary question, therefore, should be answered 'No'.

[1] Applicant's submissions, paragraph 20

[2] [2015] ACAT 92

[3] Applicant's submissions, paragraphs 17, 27, 43

[4] Respondent's submissions, paragraphs 8-15

[5] Respondent's submissions, paragraphs 18-19

[8] Applicant's reply submissions, paragraph 12

[9] See Republication No 52 (effective: 22 November 2018 - 9 December 2019). Part 4 Division 1 of COLA, including section 35, was amended significantly by Part 5 of the Building and Construction Legislation Amendment Act 2019, the relevant parts of which commenced on 10 December 2019

[10] Omitting the notes that appear immediately after subsection (1)(c)(ii), the examples following subsection (3) and the subsequent note

[11] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 421-422, 429-430; Shi v Migration Agents Registration Authority [2008] HCA 31 at [35]- [38], [98], [140]-[141]; Frugtniet v Australian Securities Investment Commission [2019] HCA 16 at [14]- [15]

[12] [2011] HCA 32 at [57]

[14] Legislation Act 2001 section 104(1) provides that a reference in an ACT law to a law includes a reference to the statutory instruments made or in force under the law. Section 104(2) provides that, in subsection (1), a reference to the statutory instrument made or in force under the law include a reference to any law or instrument applied, adopted or incorporated (with or without change) under the law. The BCA is an instrument falling into the latter category pursuant to section 136 of the Building Act.

[15] Attachment AP-01 to the statement of Adam Pascoe, dated 27 September 2019

[16] Applicant's submissions, paragraphs 16, 21, 22

[17] Respondent's submissions, paragraph 8

[18] Respondent's submissions, paragraph 17

[19] [2015] ACAT 92

[23] Legislation Act 2001 sections 126, 132

[24] Republication No 27 (Effective: 09/07/13 - 26/08/13)

[25] An example in an Act is part of the Act and may extend, but does not limit, the meaning of the Act, or the particular provision to which it relates - Legislation Act 2001 section 132

[28] See Republication No 9 (effective: 2 September 2006 - 30 March 2008)

[29] Omitting only the note appearing at the end of subsection 1(c)

[30] [2009] HCA 41. See also Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55 at [39]; Sztal v Minister for Immigration and Border Protection & Anor [2017] HCA 34 at [14]

[31] See also sections 141 to 143, which permit certain materials not forming part of the Act to be considered and refers to considerations to which the Court may have regard in determining whether such materials should be considered and the weight that should be given to them

[32] Legislation Act 2001 section 104

[33] section 26

[34] section 27

[35] Building Regulation 2004 (repealed) section 14

[38] Building Regulation 2004 (repealed) section 18(g)

[39] Building Regulation 2004 (repealed) section 19

[49] Legislation Act 2001 section 4 states that the Act applies to all Acts and statutory instruments. See also fn. 14

[50] The Owners - Strata Plan No 69312 v Rockdale City Council & Anor; Owners of SP 69312 v Allianz Aust Insurance [2012] NSWSC 1244 at [30], [53]-[62], [93]-[94]; Owners Corporation No. 1 of PS613436T v L.U. Simon Builders Pty Ltd [2019] VCAT 286 at [34] - [38]

[53] Pursuant to s 136(2) of the Building Act, the Minister may make an ACT Appendix to the BCA. Pursuant to s 136(3), the Appendix is a disallowable instrument, which is a 'statutory instrument' within the meaning of section 13 of the Legislation Act 2001.

[57] https://www.macquariedictionary.com.au

[58] https://dictionary.cambridge.org/dictionary/english/carry-out-something

[59] https://www.collinsdictionary.com/dictionary/english/carry-out

[60] See also the Merriam-Webster Dictionary (https://www.merriam-webster.com/dictionary/carryout): "(1) to bring to a successful issue: complete, accomplish // carried out the assignment; (2) to put into execution // carry out a plan; (3) to continue to an end or stopping point" and the Macmillan Dictionary (https://www.macmillandictionary.com/dictionary/british/carry-out): "to do a particular piece of work, research etc: The building work was carried out by a local contractor. An investigation is being carried out by the prison governor."

[61] [2001] FCA 1836 at [42]

[62] section 48

[64] [2017] ACTCA 36 at [12]

[65] https://www.macquariedictionary.com.au

[66] section 126(2)(a) of the Legislation Act 2001

[67] section 34(1)(b)

[68] section 34(2)

[69] section 35(1)(c)

[70] Applicant's submissions, paragraph 29

[71] Applicant's submissions, paragraph 29

[72] Henry Wadsworth Longfellow, 'The Arrow and the Song'