Building and Development Certifiers Act 2018

The Act casts a wide net. Registered individuals (natural persons) and registered body corporates (companies with at least one suitably qualified registered director—see s 41) are the primary regulated population. Any person who wishes to issue complying development certificates, construction certificates, occupation certificates, strata certificates, swimming-pool compliance certificates or perform principal certifier functions must hold current registration in the correct class (s 5).

Local councils are exempt from the registration requirement when they perform certification work themselves (s 5(2)), but they remain subject to several indirect obligations. They must ensure that prescribed classes of certification work are carried out only by registered individuals (s 112), and council employees who perform certification work must still comply with the conflict-of-interest, insurance, notification and disciplinary provisions (s 37). Councils may also be engaged by private applicants to act as principal certifier, in which case a written contract is mandatory (s 31(1)(a)).

Directors of registered body corporates bear personal statutory duties. Each registered director must ensure the company maintains compliant management systems, allocates work only to appropriately registered individuals, and keeps clients informed of who is actually performing the work (s 38). Directors must also report suspected grounds for disciplinary action against the company, fellow directors or employed certifiers (s 39). Failure attracts 300 penalty unit fines.

Accreditation authorities—bodies corporate approved by the Secretary under Part 6—are both beneficiaries and regulatees. Once approved they may grant accreditations for regulated work, monitor compliance, investigate complaints and impose disciplinary sanctions, but they themselves are subject to strict conditions of approval, audit requirements, record-keeping obligations and potential suspension or cancellation (ss 66–78).

Applicants for registration or approval, close associates (defined by cross-reference to the Home Building Act 1989), insurers, and persons who commission certification work are all brought into the regulatory web through information-gathering powers (s 9), notification duties and conflict rules. The Secretary is the central administrator, investigator, disciplinarian and register-keeper; the Civil and Administrative Tribunal hears administrative reviews of most adverse decisions (ss 24, 49, 83).

Finally, the public is an intended beneficiary. The objects in s 3 expressly recognise that certification is an important public function. The register (s 102), warning-notice power (s 103) and disciplinary transparency provisions are designed to give the community reliable information about who is authorised and whether they have been sanctioned.

Duties of registered certifiers are both negative and positive. Negative duties include the prohibition on performing certification work while unregistered or suspended (s 5), the ban on conflicted work (s 28), the prohibition on lending registration certificates (s 22), and the offence of seeking or accepting benefits to act impartially (s 42). Positive duties encompass the obligation to hold adequate insurance (s 26), to notify the Secretary, clients and employers of prescribed events within tight timeframes (ss 33–35), to return certificates when registration is cancelled or suspended (s 36), and to comply with every condition of registration, suspension or cancellation (s 20). Registered directors of body corporates owe additional oversight duties (ss 38–41).

Accreditation authorities must exercise all functions strictly in accordance with their approved accreditation scheme (s 67), act only through notified individuals (s 68), act in the public interest (s 69), supply information and undergo audits when required (ss 70–72), publish information (s 73) and keep prescribed records (s 74). Breach of these conditions can attract fines of up to 2,000 penalty units (s 80).

Rights are largely procedural. Applicants and registrants enjoy merits review by the Tribunal of refusal, suspension, cancellation, condition imposition and variation decisions (ss 24, 49, 83). Show-cause procedures precede most disciplinary action (s 47), although urgent suspension is available where significant harm is imminent (s 47A). Certifiers may apply for exemptions from conflict rules (s 28(3)) or for voluntary surrender or suspension (s 23). Accreditation authorities may surrender approval (subject to 180-day notice—s 82) and may seek Tribunal review of adverse Secretary decisions. All parties benefit from the statutory protection against liability for compliant third-party information provision (s 9(3)) and from the certificate-evidence provisions (s 117) that ease proof of registration status in proceedings.

The Act also creates positive rights for the public: the freely accessible register (s 102), the Secretary’s power to issue warning notices (s 103), and the ability of any person to complain and trigger an investigation (s 106).

Penalties are graduated and frequently corporate-specific. The most serious offences—knowingly issuing a false certificate (s 44) or improperly influencing a certifier (s 42)—carry 10,000 penalty units or two years imprisonment, or both. Lending a registration certificate (s 22) attracts 600/300 penalty units and mandatory cancellation. Performing work while unregistered or making false representations about registration status (s 5(3)) is punishable by 1,000/300 penalty units. Lesser notification failures attract 10–50 penalty units (ss 33–35).

Disciplinary penalties under Part 4 are administrative rather than criminal. The Secretary may impose fines up to $220,000 (body corporate) or $110,000 (individual), add training conditions, suspend or cancel registration, or disqualify permanently (s 48). Non-payment of a disciplinary fine automatically suspends registration until paid (s 50).

Enforcement tools are extensive. Authorised officers (Departmental employees, Fair Trading investigators or prescribed classes—s 87) may enter premises without warrant during business hours (s 94), require production of records (s 98), seize evidence, direct persons to open up work (s 98(2)(c)), and compel answers to questions (s 92). Obstruction or failure to comply with a direction carries 1,000/200 penalty units (ss 100–101). Search warrants are available on reasonable suspicion (s 96) and may be executed with police assistance.

The Secretary may accept written undertakings (s 104), issue warning notices after investigation and opportunity to respond (s 103), and seek injunctions from the Land and Environment Court without showing damage or giving an undertaking as to damages (s 105). Penalty notices are available for prescribed offences (s 118). Proceedings may be brought in the Local Court or the Land and Environment Court (summary jurisdiction) up to three years after the offence (s 119).

The Act is deliberately parasitic on the EP&A Act. Section 4(3) imports undefined terms from that Act, certification work is defined by reference to s 6.5 of the EP&A Act, and several offences (e.g. false certificates) cross-reference ss 4.31 and 6.32 of the EP&A Act to prevent double jeopardy where the Land and Environment Court has already declined to declare a certificate invalid (s 44(2)).

Part 4 of the Strata Schemes Development Act 2015 and Division 5 of Part 2 of the Swimming Pools Act 1992 are expressly included within the definition of certification legislation (s 4(1)). The Home Building Act 1989 supplies the definition of "close associate" used for fit-and-proper-person assessments (s 7(2)(g)).

The Act sits alongside the Fair Trading Act 1987; investigators under that Act may be appointed as authorised officers (s 87(b)) and s 47A(7) expressly preserves the Secretary’s powers under s 79A of the Fair Trading Act. Administrative review lies under the Administrative Decisions Review Act 1997 (ss 24, 49, 83). Privacy and health records legislation continue to govern information sharing (s 108(5)).

The Interpretation Act 1987 applies to undefined terms (note to s 4). The Crimes Act 1900 Part 5A creates offences for false or misleading applications (note to s 8(2)). The Fines Act 1996 governs penalty notices (s 118(3)), but disciplinary action is preserved notwithstanding s 22A(1) of that Act (s 118(4)).

Transitional provisions in Schedule 1 map pre-2018 accreditations under the repealed Building Professionals Act 2005 into the new registration classes and treat prior offences and disciplinary findings as relevant under the new Act (cll 3, 6, 7).

The most significant statutory amendment was the insertion of s 47A in 2023 (Better Regulation and Customer Service Legislation Amendment Act 2023 No 44). It permits immediate suspension when a show-cause notice has been issued, the Secretary reasonably believes the certifier has engaged in conduct warranting suspension or cancellation, the conduct is likely to continue, and there is a danger of significant harm, loss or damage unless urgent action is taken. The power is exercisable for an initial 60 days (extendable) and is not subject to a prior hearing. The amendment reflects concern that the ordinary show-cause process could allow a certifier to continue issuing certificates while posing an imminent risk to public safety—particularly after high-profile cladding and compliance failures.

Amendments in 2024 (noted at s 4 and s 5) updated cross-references and slightly widened the exemption category for councils. The 2019 amendments refined definitions and identification-card provisions.

The 2020 bushfire-relief amendments (via the Better Regulation and Customer Service Legislation Amendment (Bushfire Relief) Act 2020) clarified that the Secretary’s power to waive, reduce or refund fees (s 120(2)(f)) extends to events occurring during the 2019–2020 bushfire period, even under the repealed 2005 Act. This was a temporary equity measure.

The overall trend has been toward faster protective action, greater transparency, and alignment with contemporary risk-based regulation.

Because the legislation is relatively recent and many disputes are resolved through Tribunal review rather than superior-court litigation, reported case law remains limited. Tribunal decisions have explored the meaning of "fit and proper person" (drawing on s 7(2) factors such as convictions within the previous ten years, ICAC findings, bankruptcy and close-associate influence). The Tribunal has emphasised that the test is protective rather than punitive and that even spent convictions may be relevant where they bear on honesty or competence.

Controversies have centred on perceived conflicts of interest. Media and parliamentary scrutiny has highlighted cases in which certifiers issued certificates for developments in which they or their close associates held pecuniary interests (see the broad definition in ss 29–30). The statutory "reasonable person" test has been criticised as insufficiently bright-line; stakeholders have called for automatic prohibition lists (e.g. any financial interest above a threshold).

Insurance availability and cost have been perennial complaints. Section 26 and the regulations made under s 27 have been tightened, but industry submissions to reviews have argued that the required run-off cover for former certifiers is commercially unavailable or prohibitively expensive, leading some practitioners to surrender registration rather than renew.

The shift from the old Building Professionals Board to direct Secretary oversight has raised independence concerns. Because the Secretary also administers the EP&A Act, critics argue there is a structural conflict when the same department both promotes development and disciplines certifiers who refuse to certify non-compliant work. The creation of approved external accreditation authorities in Part 6 was partly intended to mitigate this, yet the Secretary retains power to direct which authority regulates existing accreditations (s 56(4)) and may exercise accreditation functions directly (s 110).

No High Court or Court of Appeal decisions have yet settled the outer boundaries of "certification work" or the precise content of the public-interest duty. Future litigation is likely to focus on whether a certifier’s duty to act "impartially" (s 42) survives contractual pressure from a client who is also the developer, and on the lawfulness of s 47A urgent suspensions where the underlying show-cause grounds are later not substantiated.

Most practitioners underestimate the breadth of the conflict-of-interest rules. Section 29 captures not only direct financial interests but also family, employment or business relationships with any person obtaining the benefit of the certification work, anyone with a pecuniary interest in the development, anyone who provided non-certification professional services, or even a councillor or council employee if the work is outside the council’s own engagement. The "reasonable person would conclude" test is objective and does not require actual bias; many certifiers discover too late that a sibling’s architectural practice on the same site creates a prohibited conflict.

The notification obligations in s 35 are deceptively broad. A certifier must notify the Secretary within seven days of any investigation in another Australian jurisdiction, not merely a finding of guilt. "Relevant offence" includes fraud or dishonesty offences anywhere in Australia and any offence prescribed by regulation; the 10-year look-back in the suitability test (s 7(2)(a)) means ancient convictions can still ground refusal or cancellation years later.

Body-corporate structures create hidden traps. A registered body corporate that loses its last suitably qualified director must immediately cease certification work (s 41). Even a three-month grace period is unavailable unless the company first notifies the Secretary after regaining a qualified director. Directors’ personal reporting duty under s 39 is triggered by a mere reasonable suspicion that another director or employee has engaged in conduct that could ground disciplinary action; failure to report is itself 300 penalty units.

Insurance "adequate" under s 26 is not satisfied merely by holding a policy; the certifier must be able to demonstrate compliance to the Secretary on demand (s 26(3)). Run-off cover for past work is mandatory under most regulatory formulations, yet many policies lapse on surrender of registration. The Secretary’s power to recover unpaid disciplinary fines by automatic suspension (s 50) means a certifier who disputes the quantum can find themselves unable to practise while the debt remains unpaid.

Finally, the three-year limitation period (s 119(5)) combined with the broad definition of certification legislation means historical conduct can be revisited long after the relevant project has been completed. Because disciplinary action does not preclude criminal prosecution (s 51), the same facts can generate both a Tribunal reviewable fine and a criminal prosecution carrying imprisonment.

Compliance begins with rigorous pre-engagement checks. Before accepting any appointment, a certifier must confirm that the proposed work falls within their registered class, that no conflict exists under the s 29–30 tests, and that a compliant written contract is in place (s 31). A conflict register and ethical wall procedures should be maintained for corporate practices.

Insurance must be verified annually and evidence supplied to the Secretary on request. Policies should be reviewed against the current regulation to ensure they cover all certification functions, include run-off cover, and meet minimum limits and insurer solvency requirements.

Notification systems are critical. Automated diary entries should flag the seven-day and fourteen-day obligations in s 35. Directors of registered body corporates must implement management systems that allocate work only to correctly registered individuals and that log the identity of the actual certifier for each job (s 38(c)).

Continuing professional development should track both the statutory code of conduct and any conditions imposed on registration. Where a complaint or show-cause notice is received, immediate legal advice is prudent; the s 47 response is the last practical opportunity to influence the Secretary’s view before a decision is made. If urgent suspension under s 47A is threatened, the certifier should focus on evidence that the alleged conduct has ceased and that no ongoing risk exists.

Accreditation authorities must embed the mandatory elements of s 79 into their schemes, maintain independent review panels, and keep audit-ready records. They must treat the Secretary’s information requests (ss 70–72) as non-negotiable and respond within the stipulated time.

All parties should monitor the public register (s 102) and the Secretary’s guideline publications. Because regulations can alter classes of registration, insurance minima, prescribed offences and even the content of the code of conduct without amending the Act itself, annual regulatory horizon scanning is essential. Finally, a culture of impartiality—documenting all decisions by reference to statutory criteria rather than client pressure—remains the best defence against both disciplinary action and criminal prosecution under ss 42 and 44.