Building and Construction Industry Training Levy Regulation 2001

This regulation is a subordinate instrument made under the Building and Construction Industry Training Levy Act 1999 (the Act). It does two specific things, and only two things. First, it defines who qualifies as a "qualified valuer" for the purposes of section 15 of the Act. That section deals with valuations of building and construction work for calculating the levy payable. Second, it declares what constitutes "approved training" for the purposes of section 28(4) of the Act, which is the definition used in provisions dealing with exemptions, grants or refunds related to training expenditure. The regulation does not set the levy rate, collect the levy, or establish any enforcement mechanisms; those are in the principal Act. It is a pure definitional instrument that narrows the field of professionals whose valuations are accepted for levy purposes, and extends the concept of approved training to any course delivered by any registered training organisation (RTO) operating under the national vocational education framework. The effect is to create two gateways. The valuation gateway prescribes a closed list of professionals: accredited valuers, architects, engineers on the National Professional Engineers Register (in four practice areas), and corporate members of the Australian Institute of Quantity Surveyors. The training gateway is, by contrast, almost infinitely open: any RTO can deliver any training, and it will be accepted as approved training under the Act. There is no requirement that the training be related to building or construction, or that it meet any minimum standard beyond the RTO's existing regulatory obligations. This asymmetry is striking. One definition tightly controls who can certify project value; the other definition effectively cedes all content control to a third party (the national VET regulator) and to the market choices of RTOs. The practical consequence is that a builder or developer can claim training credit for a broad range of courses, but must rely on a small pool of professionals to have the levy base properly assessed. The regulation has been amended three times since 2001, most recently in August 2024 to insert the approved training definition. Prior to 2024, the regulation only dealt with the qualified valuer definition.

The regulation establishes two key concepts, each with a distinct structure.

Qualified valuer (section 3). This is a person who falls into any of four categories. First, an "accredited valuer", which in turn means someone registered, licensed or approved under a Commonwealth or State law to carry out property valuations, or accredited as a certified practising valuer by the Australian Property Institute Incorporated. This captures both government-licensed valuers and industry accredited professionals. Second, an architect registered under the Architects Act 2004 of the ACT or a corresponding State law. This is a narrow professional group, subject to statutory regulation. Third, an engineer registered on the National Professional Engineers Register (NPER) administered by Engineers Australia, in one of four general practice areas: building services, civil, electrical, or structural. This excludes other engineering disciplines (mechanical, chemical, environmental, etc.) and also excludes engineers who are not on the NPER even if they hold other qualifications or state registration. Fourth, a quantity surveyor who is a corporate member of the Australian Institute of Quantity Surveyors. This is a professional body membership standard, not a statutory licence. Importantly, there is no requirement that the person be independent of the party commissioning the valuation, nor that they hold professional indemnity insurance. The regulation does not specify what methodology the valuer must use, nor that the valuation be current or performed within any particular timeframe. The definition is purely about who the person is, not what they do.

Approved training (section 4). This is declared to be "any training delivered by a registered training organisation". The term "registered training organisation" (RTO) is not defined in this regulation, but takes its meaning from the national VET framework as applied in the ACT, typically under the National Vocational Education and Training Regulator Act 2011 (Cth) or corresponding state laws. An RTO is an organisation registered to deliver nationally recognised training and issue Australian Qualifications Framework qualifications. The regulation does not impose any additional condition: the training need not be relevant to the building industry, need not be accredited in any specific way beyond being deliverable by an RTO, and need not lead to a qualification. A one hour course on workplace health and safety delivered by an RTO would qualify; a four year apprenticeship would also qualify. The effect is to delegate the definition of approved training entirely to the regulatory status of the provider, not to the content or quality of the training. This creates a very broad category that could include training in completely unrelated fields (hospitality, retail, information technology) if delivered by an RTO. Whether this was intended or is an unintended over breadth is not stated in the regulation, but the text is unambiguous. The explanatory statement for the 2024 amendment is not provided, so we cannot attribute purpose, but the mechanical effect is to minimise administrative discretion and maximise coverage.

The regulation affects a range of parties in the ACT building and construction industry.

First, builders and contractors who are liable for the training levy under the Act. They must ensure that any valuation of building work used to calculate the levy is performed by a person who meets the qualified valuer definition. If they use an in house estimator or a non listed professional, the valuation might be rejected, leading to potential disputes or default assessments by the Commissioner. They also need to understand what training expenditure counts for exemptions or rebates. The very broad approved training definition works in their favour: almost any training delivered by an RTO will qualify, so they can claim credit for a wide array of staff development. This reduces the effective cost of the levy for firms that invest in training, but may also create an incentive to direct spending towards RTO delivered courses over other forms of training (on the job, in house, or non RTO providers) to capture the regulatory benefit.

Second, professional valuers, architects, engineers and quantity surveyors. The regulation creates a closed shop for valuations. Only those who meet one of the four categories can provide valuations that will be accepted under the Act. Those who are not on the NPER, not corporate members of AIQS, not registered architects or not accredited valuers are effectively excluded from this market. This benefits the listed groups by restricting supply, potentially increasing their fees. But it also creates concentration risk: if too few such professionals operate in the ACT, builders may face delays or higher costs. The regulation does not address what happens if no qualified valuer is available within a reasonable time or cost; presumably the Commissioner would make a determination under the Act.

Third, building owners and homeowners who commission residential or commercial building work. They are indirectly affected because the levy is typically passed on in the contract price. The valuation definition influences the cost base; the training definition may affect the net levy burden. Homeowners are unlikely to need a qualified valuer themselves; the builder or developer will arrange that.

Fourth, registered training organisations. They are the sole gatekeepers for approved training. Any RTO can offer any training and it will be approved. This gives RTOs a market advantage over non RTO training providers (like private consultants, industry associations not registered as RTOs, or universities offering non VET courses). It may encourage firms to choose RTOs for training even where a non RTO provider offers a better or cheaper course, simply to secure the levy benefit. This entrenches the national VET system as the preferred training pathway, but may reduce flexibility and innovation in training delivery.

The regulation itself does not impose duties or create rights; those arise from the Act. However, the regulation defines conditions that trigger duties and rights under the Act.

Right to have levy assessed on a valuation by a qualified valuer. Under section 15 of the Act, the value of building and construction work may be determined by a valuation by a qualified valuer. This regulation specifies who is a qualified valuer. A person who arranges a valuation by a person meeting the definition has a right to have that valuation used as the levy base, unless the Commissioner rejects it on other grounds (e.g., fraud or error). Conversely, if a valuation is done by someone not meeting the definition, the Commissioner may disregard it and use a default assessment.

Right to claim credit for approved training. Under section 28 of the Act, definitions relevant to exemptions, grants or refunds reference approved training. The regulation declares that any training by an RTO is approved. This gives a right to claim a reduction in levy liability for expenditure on such training, subject to the Act's other conditions (e.g., demonstrating the expenditure was incurred). The breadth of the definition means that a building company can likely claim credit for a wide range of staff training, not limited to construction specific courses.

No duty to use a qualified valuer. The Act does not appear to mandate that every project must have a valuation by a qualified valuer; it only provides that if a valuation is used, it must be by a qualified valuer. A builder might self assess the value or use the contract price without relying on a valuer, and the Commissioner may then determine the levy on another basis. The regulation does not change that.

Duty to keep records. While not in this regulation, the Act likely imposes record keeping obligations. If a person intends to rely on a valuation by a qualified valuer or on approved training expenditure, they will need to maintain evidence that the valuer met the definition (e.g., registration certificates, membership evidence) and that the training provider was an RTO at the time (e.g., RTO code, scope of registration). The regulation creates evidentiary requirements by defining the categories.

No right of review specific to this regulation. The regulation itself does not create appeal rights; any disputes about whether a person is a qualified valuer or training is approved would be dealt with under the Act's review mechanisms (likely objection and appeal to the ACT Civil and Administrative Tribunal or Supreme Court). The regulation may be challenged as to whether the definition is consistent with the Act, but that is a matter of statutory interpretation.

There are no penalties in this regulation. The regulation is a definitional instrument; offences and penalties are in the principal Act (Building and Construction Industry Training Levy Act 1999) and in the Legislation Act 2001 generally. However, the regulation indirectly engages penalty provisions.

Under the Legislation Act 2001, section 133, the value of a penalty unit at the republication date is $160 for an individual and $810 for a corporation. Any offence in the Act that carries a penalty in penalty units will be calculated at these rates. While the Act is not reproduced here, common offences in training levy legislation include failing to provide information, making false or misleading statements, and failing to pay levy. The regulation's definitions become relevant because a false claim that a person is a qualified valuer could amount to an offence if made in a return or valuation document. For example, if a builder submits a valuation purportedly done by an "engineer" who is not on the NPER in the required practice areas, that could be a false statement. Similarly, claiming training expenses for a course delivered by a provider that is not an RTO could lead to penalty.

Enforcement would be carried out by the ACT Revenue Office or the agency responsible for the levy. They would have powers to audit, request documents, and issue assessments. The wide approved training definition reduces enforcement complexity: the only question is whether the provider was an RTO at the time of training. That is an objective fact ascertainable from the national register. However, the broadness also invites abuse: a builder could arrange for an RTO to deliver minimal training and claim the maximum credit, effectively reducing levy liability to near zero. The government may respond with anti avoidance rules or by amending the Act to add conditions, but those are not in this regulation.

The regulation itself cannot be enforced independently; it is purely interpretive. Non compliance with the regulation (e.g., a person acting as a valuer without meeting the definition) is not an offence unless the Act makes it an offence to provide a valuation when not qualified. The Act's section 15 may not create such an offence; it may only provide that such a valuation is not recognised. So the practical effect is evidentiary and administrative, not penal.

The regulation interacts with several other legislative instruments.

Building and Construction Industry Training Levy Act 1999 (the principal Act). The regulation is made under this Act and defines two terms used in it: qualified valuer (section 15) and approved training (section 28(4)). Any changes to the Act's definitions would automatically affect the regulation's scope. For example, if the Act were amended to require that approved training be specifically related to building and construction, the current regulation would become inconsistent and would need amendment. The regulation cannot override the Act.

Architects Act 2004 (ACT). The regulation incorporates the definition of "architect registered under the Architects Act 2004" into the qualified valuer definition. This means that any amendment to the Architects Act affecting registration criteria will automatically affect who qualifies as a valuer for levy purposes. Similarly, corresponding State laws are referenced, so interstate registered architects are included. This creates a dynamic interface: if a state deregisters an architect, they cease to be a qualified valuer under this regulation.

National Vocational Education and Training Regulator Act 2011 (Cth) and corresponding state laws. The approved training definition relies on the concept of a "registered training organisation". That status is governed by the national VET regulatory framework. An RTO's registration can be suspended or cancelled, which would immediately affect whether its training qualifies. Builders and the administering agency need to monitor the national register.

Legislation Act 2001 (ACT). This is the overarching ACT legislation law. It governs the making, amendment, and republication of subordinate laws. The penalty unit values are set under this Act. The regulation's endnotes show editorial changes made under Part 11.3. The regulation is interpreted in accordance with the Legislation Act.

National Professional Engineers Register (NPER). The regulation references the NPER administered by Engineers Australia. This is not a statutory register but a professional body register. Its rules about who qualifies for registration and in which practice areas will directly affect who is a qualified valuer. If Engineers Australia changes the practice area categories (e.g., renames "building services" to "mechanical" or merges categories), the regulation's text would become ambiguous. The regulation does not incorporate the NPER rules by reference; it just names the register. So a court would need to interpret what "registered on the National Professional Engineers Register" means at the relevant time, possibly receiving evidence of Engineers Australia's current register.

The regulation has been amended three times since its original making in 2001. The original regulation only contained sections 1 and 3 (the qualified valuer definition). Section 2 (commencement) was omitted under the Legislation Act 2001, section 89(4), as a standard editorial change in republications.

Amendment by Statute Law Amendment Act 2003 (A2003-41). This amendment, effective 9 October 2003, changed the heading of section 3 and made amendments to the text of section 3. The original regulation identified the heading as "Qualified valuer" and the amendment substituted a new heading. The exact changes to the text are not detailed, but it appears to have refined the categories. The 2003 amendment likely aligned the regulation with changes to the principal Act or updated professional body references.

Amendment by Architects Act 2004 (A2004-20). This Act, effective 1 July 2004, amended section 3 to update the reference to architects from the previous Architects Act 1997 (or earlier) to the new Architects Act 2004. This was a consequential amendment following the new regulatory regime for architects in the ACT. The reference to "corresponding State law" was likely unchanged but the ACT reference was updated.

Amendment by Building and Construction Industry Training Levy Amendment Regulation 2024 (No 1) (SL2024-16). The most significant amendment, effective 7 August 2024, inserted a new section 4 defining "approved training". Prior to this, the regulation did not contain an approved training definition, meaning that term was either defined in the Act itself or left undefined (perhaps using the ordinary meaning of training). The new definition is extremely broad: any training by an RTO is approved. This appears to be a deliberate policy choice to expand the scope of training that qualifies for levy exemptions, reducing administrative disputes about what constitutes training. The amendment history shows no preceding definition, so this is a new provision. The reason for insertion is not stated in the regulation, but it likely responds to industry requests for clarity or to align with national VET definitions. The note on the republication says the act is made under the Building and Construction Industry Training Levy Act 1999, and the amendment was notified on 6 August 2024, commencing the next day.

The regulation has been republished five times (R1 through R5), reflecting these amendments and editorial changes. The current effective date is 7 August 2024.

The regulation text does not record any litigation specific to this regulation, and none is known from publicly available case law in the ACT. This is not surprising for a definitional subordinate instrument. Challenges would likely arise indirectly through disputes about levy assessments. For example, a taxpayer might argue that a valuation was not performed by a qualified valuer, or that training was not approved. The regulation's definitions would be central to such disputes. The broadness of the approved training definition (since 2024) makes challenges to that definition unlikely, because it is hard to argue that any training by an RTO is not approved when the regulation says exactly that. The qualified valuer definition is more specific and could be litigated. Possible issues: whether a particular person falls within one of the categories (e.g., whether an engineer registered on NPER in "civil" includes geotechnical engineers; whether a quantity surveyor who is a corporate member of AIQS but not practicing as a quantity surveyor is still covered; whether an accredited valuer from a state that does not regulate valuations is valid). The reference to "National Professional Engineers Register" may raise questions if Engineers Australia changes its register structure. Also, the regulation does not require the valuer to be independent, so a builder's in house engineer could qualify, raising potential conflicts of interest. No cases have yet tested these points in the ACT context. The absence of litigation may indicate that the definitions work satisfactorily in practice, or that the levy amounts are too small to justify court action. Alternatively, disputes may be resolved internally by the Commissioner without reported decisions. The endnotes show no modification notes or pending challenges. For a deep dive, the significant observation is that the regulation has been stable for over two decades with only minor amendments, suggesting the qualified valuer definition is broadly accepted.

Several aspects of this regulation could catch out practitioners who do not read the definitions carefully.

The NPER practice area limitation. Section 3(1)(c) lists only four practice areas: building services, civil, electrical, and structural. An engineer registered on the NPER in "mechanical", "chemical", "environmental", or "fire safety" does not qualify, even if they have extensive experience in building valuations. The register includes many practice areas; only those four are accepted. A builder who uses a mechanical engineer to value a project with air conditioning or fire services work might have the valuation rejected.

Quantity surveyors must be corporate members of AIQS. Not all quantity surveyors are covered. Associate members, affiliate members, or those who are members of other quantity surveying bodies (like the Royal Institution of Chartered Surveyors) do not qualify unless they also hold AIQS corporate membership. The regulation does not recognise RICS or other international bodies.

Approved training is any training by an RTO. There is no link to the building industry. A building company could claim training expenditure for staff attending a barista course at an RTO, and it would be approved. This creates a potential loophole: the levy, which is ostensibly to fund training in the building industry, can be offset by training in unrelated fields. Whether this was intended is unclear, but the text is clear. The government may later tighten this, but as of 2024, it is wide open.

No grandfathering for professionals. If a valuer, architect, engineer or quantity surveyor meets the definition today but later loses their accreditation or membership (e.g., due to non payment of fees or disciplinary action), they cease to be a qualified valuer. A valuation performed after loss of status would be invalid. There is no transitional period in the regulation.

No requirement for independence or insurance. The regulation does not require the qualified valuer to be independent of the party commissioning the work. A builder could employ a qualified engineer on staff and have that engineer value the project, potentially inflating or deflating the value for levy purposes. This creates a conflict of interest risk. The Act may have separate provisions about valuations needing to be at market value or arm's length, but the regulation itself does not address this.

The definition of "accredited valuer" is circular. It includes "accredited as a certified practising valuer by the Australian Property Institute Incorporated". But the term "accredited" in the definition is used both as a defined term and as an element of the definition. This could cause confusion if the API changes its accreditation terminology.

Compliance with this regulation is essentially compliance with the definitions used under the Building and Construction Industry Training Levy Act 1999. There are two main compliance streams: valuation compliance and training compliance.

Valuation compliance: If a builder or developer intends to rely on a valuation of building work to determine the levy amount, they must ensure the valuer meets the qualified valuer definition at the time the valuation is made. Steps to verify: (1) Obtain a statutory declaration or certificate from the valuer stating their qualification and the basis for meeting the definition. (2) For accredited valuers, request evidence of current registration, licence, or approval under Commonwealth or State law, or evidence of API certified practising valuer accreditation. (3) For architects, confirm registration under the Architects Act 2004 or a corresponding state law; check the relevant register online. (4) For engineers, obtain evidence of current registration on the NPER and that the practice area listed is one of the four specified (building services, civil, electrical, structural). Engineers Australia maintains an online register. (5) For quantity surveyors, obtain evidence of corporate membership of AIQS (not associate or affiliate). (6) Retain copies of this evidence with the valuation report. (7) If the valuation is done by a company, ensure the named individual valuer meets the definition; company qualifications are insufficient. (8) If using a valuation for levy purposes, ensure it is current; a valuation from two years ago may not be accepted for a current project. The regulation does not specify recency, but the Act may.

Training compliance: If claiming a reduction in levy liability for training expenditure, the taxpayer must ensure the training was delivered by an RTO at the time of delivery. Steps to verify: (1) Confirm the provider's RTO status via the national register on training.gov.au. (2) Keep records of the training, including the RTO's name and RTO code, the course description, the participant names, and evidence of payment. (3) Note that any training by an RTO qualifies; no further analysis of relevance is needed. (4) Be cautious if the training is delivered by a provider that claims to be an RTO but is not on the register; check the register at the time of training, not at the time of the claim. (5) For training delivered before the regulation commenced (7 August 2024), the old definition (if any) in the Act applies; the regulation is not retrospective unless stated. The regulation endnotes do not indicate retrospectivity, so training before 7 August 2024 should be evaluated under the Act's previous definition, which is not reproduced here. (6) If the training is provided by a non RTO (e.g., a university offering a non VET course, or a private consultant), it does not qualify under this regulation, even if excellent.