Construction Industry Training Fund Regulations 2021

The central concept is the levy on building or construction work, which is imposed by the Act and calculated on the value of that work, subject to a $100,000 exemption threshold prescribed by regulation 5. The regulations do not set the levy rate; that is in the parent Act. They define which work is in scope and which work is excluded.

Project owner is the entity liable for the levy. The Act defines it; the regulations impose recordkeeping duties and information requirements on project owners (regulations 6 and 11). Project owners must also accompany levy payments with information determined by the board (regulation 6(1)). The board may require that information be given by statutory declaration (regulation 6(4)).

Sectors are a core concept. The tripartite division into housing, commercial, and civil (regulation 4) determines whether the mining/petroleum exclusions apply, because those exclusions only operate if the work is not carried out in the housing or commercial sectors. This creates a boundary problem: the same physical work may or may not attract the levy depending on which sector it is classified into. For example, earthworks for a mine access road in a remote area fall within the civil sector and are excluded from levy under regulation 15(1)(d). But earthworks for a housing estate road are within the housing sector and are not excluded.

Prescribed employee and employer associations (Schedules 1 and 2) are another key concept. These are 15 employer bodies and 5 employee bodies that have statutory consultative rights and whose employees, members, or officers are the only pool from which the Minister may nominate board members for employer and employee representative seats. This is a closed list; no other industry group, such as an independent builders’ cooperative or a new trade association, can have its members appointed unless the regulations are amended. Schedule 1 includes union bodies: the Australian Workers’ Union (SA), Australian Manufacturing Workers’ Union (SA), Electrical Trades Union (SA), Construction, Forestry and Maritime Employees Union, and SA Unions. Schedule 2 includes employer groups like the Master Builders Association, Housing Industry Association, Property Council, Civil Contractors Federation, and others.

Exclusions for mining and petroleum work (regulation 15) are detailed and technical. The regulations specify that certain earthworks, excavation, pipeline fabrication and repair, haul roads, airstrip maintenance, environmental clean-up, mine back-filling, and repair of plant directly associated with mineral or petroleum exploration or production do not constitute building or construction work. The effect is to exempt the resource sector from funding the training levy on those specific activities, but only if the work is not in the housing or commercial sectors. This creates an incentive for resource companies to structure projects to stay within the civil sector to avoid the levy, or to ensure that any housing or commercial elements on site (such as accommodation villages) are kept separate or treated as part of the housing sector and therefore levy-liable.

Maintenance (regulation 14) is explicitly brought within the definition of building or construction work for levy purposes, except for the mining/petroleum exclusions. Routine maintenance of a commercial building’s roof or an industrial plant’s structure will attract the levy, even though it is not new construction. This broadens the levy base significantly.

Records must be kept for five years from commencement of the work, not from completion. This means a project that takes three years to build requires records to be retained for eight years from start. The records must include the date work commenced, the value, site address, and brief details. This imposes a storage and retrieval burden, especially for smaller project owners.

Penalties under the regulations come in two forms. The board may impose administrative penalties for late levy payment up to $5,000 (regulation 7). Additionally, breach of any regulation is an offence punishable by court-imposed fine up to $2,500 (regulation 12). The same non-compliance could theoretically attract both a board penalty and a prosecution, though the Act likely prevents double jeopardy. The $2,500 maximum is modest but may be supplemented by the unpaid levy and any court-ordered costs.

Forms and information are entirely at the board’s discretion. Regulation 6(1) says levy payments must be accompanied by information “determined by the Board” in a “manner and form determined by the Board.” Regulation 6(3) extends that to any application or notification. This gives the board unconstrained power to redesign forms and demand new information at any time, creating regulatory uncertainty for project owners who must constantly monitor board requirements.

Project owners are the primary duty holders. Anyone who commissions building or construction work in South Australia with a value exceeding $100,000 becomes liable to pay the levy, submit information, and keep records. This includes developers, homeowners building or substantially renovating, businesses constructing commercial premises, government agencies building infrastructure, and mining companies when they carry out work in the housing or commercial sectors on their sites. The levy is a direct cost added to the project budget.

Trade contractors and subcontractors may not be directly liable for the levy (the Act imposes it on the project owner), but they may indirectly bear the cost if the owner passes it down through lower contract prices. They also may need to provide information to the project owner to enable compliance, such as the date work started and the value of their component.

The construction industry board and its staff are affected because the regulations confer broad administrative discretion: they set the forms, information requirements, and exemptions from recordkeeping. The board also has power to impose penalties for late levy payment without going to court. This puts the board in a quasi-enforcement role.

Mining and petroleum companies are heavily affected by the exclusions in regulation 15. They can avoid levy liability on a wide range of activities, but only if they ensure those activities are not in the housing or commercial sectors. For example, if a mining company builds a permanent residential village for workers (with cooking and bathing facilities) on the mine site, that falls within the housing sector and is not excluded. The company becomes liable for levy on that construction. Similarly, if it builds a commercial office block on site, the commercial sector applies and the exclusion does not. The regulations create a strong incentive to classify site accommodation as temporary or to contract out the housing and commercial work to separate project owners.

The prescribed employee and employer associations listed in Schedules 1 and 2 are directly affected because they gain statutory rights to be consulted before board appointments and are the only sources of eligible nominees. This gives them ongoing influence over board composition and, by extension, the administration of the levy and training expenditure. Associations not on the list have no such rights.

Homeowners are affected if they undertake building work valued over $100,000. That covers many new homes and substantial renovations. They must register as project owners, pay the levy, and keep records for five years. For a homeowner doing a one-off build, this compliance burden is significant.

Small builders and developers with multiple projects under $100,000 each are affected only if the aggregate value in a period exceeds $100,000. The regulations do not clarify whether the threshold applies per project or per financial year; that depends on the Act. But the risk is that multiple small projects may be aggregated, bringing a small builder unexpectedly into levy liability.

The South Australian Minister responsible for industrial relations is affected because regulation 4A restricts ministerial discretion in board appointments. The Minister must consult prescribed associations and can only nominate persons connected to them. This reduces the Minister’s ability to appoint independent experts or representatives from non-listed groups.

Legal and accounting advisers need to understand the regulations to advise clients on levy liability, recordkeeping, and penalty exposure, especially the interaction between the mining exclusions and the housing/commercial sector definitions.

Duty to pay levy: Project owners whose building or construction work exceeds $100,000 in value must pay the levy imposed by the Act. The regulations do not set the rate or due date; those are in the Act or board determinations. However, regulation 7 empowers the board to impose penalties if the levy is unpaid on time, creating an effective deadline.

Duty to accompany levy payment with information: Regulation 6(1) requires the levy payment to be accompanied by information “determined by the Board” in a “manner and form determined by the Board.” This is an open-ended duty. The project owner must actively find out what information the board currently requires, as it can change without amendment to the regulations.

Duty to keep records: Regulation 11 imposes a five-year recordkeeping obligation on project owners from the commencement of the work. The records must include copies of all forms submitted to or received from the board relating to levy payment or refund, the date work commenced, the value of the work, the site address, and brief details describing the type of work. Failure to keep these records can be an offence under regulation 12.

Duty to comply with board requests: Regulation 6(3) gives the board power to require information in a specified manner and form for any application or notification. Regulation 6(4) allows the board to require the information to be by statutory declaration. Project owners have no right to refuse or to use an alternative format unless the board grants an exemption.

Right to exemption from recordkeeping: Regulation 11(2) permits the board to exempt a person from keeping any of the prescribed records, either generally or for specified work or work of a kind, for a specified period. This is discretionary. The project owner must request it and the board may impose conditions.

Right to adjustment of amount paid: Regulation 9 prescribes $50,000 for the purposes of section 27 of the Act. This is the threshold for adjusting levy amounts already paid. The Act allows adjustments if the value of work changes. The regulation sets the monetary threshold for when an adjustment can be triggered.

Right to notice of variation: Regulation 8 prescribes $50,000 for the purposes of section 26 of the Act, which deals with variations to building or construction work. If the variation to the value of work is at least $50,000, the project owner may need to give notice and adjust the levy.

Right to be consulted on board appointments: The prescribed employee and employer associations (Schedules 1 and 2) have a right under regulation 4A to be consulted by the Minister before nominations are made. They also have the right to have their employees, members, or officers considered for appointment.

Right to apply for exemption from levy: Regulation 5 sets the exemption threshold at $100,000. Projects below that are not subject to levy. But there is no provision in these regulations for hardship or other exemptions; that would be in the Act.

Right to apply for refund: Not explicitly addressed in these regulations, but the Act likely provides for refunds of overpaid levy. The regulations require applications for the benefit of section 24(4) of the Act to be made to the board (regulation 6(2)).

Duty not to breach regulations: Regulation 12 creates a general offence for persons who breach or fail to comply with any regulation. This is a broad catch-all that applies to project owners and possibly contractors or any person involved. The maximum penalty is $2,500.

Administrative penalties for late levy payment (regulation 7): The board may impose a penalty if a project owner fails to pay a levy due under the Act in accordance with the Act’s requirements. The penalty is capped at $500 if the unpaid levy is $500 or less; $2,500 if the unpaid levy exceeds $500 but is $10,000 or less; and $5,000 if the unpaid levy exceeds $10,000. These penalties are calculated by reference to the quantum of unpaid levy, not the period of delay or degree of fault. The board imposes them by its own decision, not through court proceedings. The regulations do not prescribe any hearing or review process before the penalty is imposed, which raises natural justice concerns. The project owner would have to challenge the penalty in court or under the Act’s review provisions.

Criminal offence for breach of regulations (regulation 12): A person who breaches or fails to comply with any provision of the regulations is guilty of an offence with a maximum penalty of $2,500. This is a relatively low fine but applies to any regulatory requirement: failure to keep records, failure to provide information in the correct form, failure to include the required information with a levy payment. Each day of non-compliance could potentially constitute a separate offence, though the regulation is silent on that.

Prosecution for Part 4 offences (regulation 10): Regulation 10 provides that an offence under Part 4 of the Act is of a prescribed kind for the purposes of section 36(1)(b) of the Act. Part 4 of the Act deals with offences and enforcement. The effect is to enable certain enforcement mechanisms, such as the power of inspectors to lay charges, board officers to gather evidence, or limitation periods. The source does not reproduce Part 4 of the Act, but the regulation modifies the enforcement framework.

Board discretion on forms (regulation 6): While not a penalty, the board’s power to reject information that is not in the required manner or form could effectively prevent a project owner from paying the levy or applying for a refund, potentially triggering late payment penalties. If the board requires a statutory declaration and the project owner provides an unsworn statement, the board may treat the payment as incomplete, creating a risk of penalty.

Recordkeeping failure consequences: A failure to keep the records listed in regulation 11(1) for five years could lead to prosecution under regulation 12, a $2,500 fine, and potentially difficulty proving the value of work in a dispute over levy liability or in claiming a refund. The records are also likely needed for audit purposes by the board.

Interaction with Act penalties: The regulations do not replace penalties under the Act. The Act likely provides for recovery of unpaid levy, interest, and additional fines. Regulation 7 penalties are additional to the levy itself, not in substitution. A project owner who fails to pay levy could face both the board’s administrative penalty and court proceedings for the unpaid levy plus costs.

No criminal liability for board nominees: The regulations do not impose personal liability on board members or association representatives. The offence provisions target persons failing to comply with regulatory duties, such as project owners and possibly their officers.

Enforcement responsibility: The regulations do not designate a specific enforcement body. The board appears to have the power to impose administrative penalties and likely can appoint inspectors or delegate enforcement under the Act. The police or industrial inspectors could prosecute the regulation 12 offence.

Parent Act (Construction Industry Training Fund Act 1993): These regulations are made under and subject to the Act. The regulations fill in details such as sector definitions, exemption thresholds, prescribed associations, and penalty caps. The Act imposes the levy and sets its rate; the regulations define its scope. If there is a conflict, the Act prevails. The regulations also reference specific sections of the Act (sections 3(3), 5(1aa), 23(1), 23(4)(c), 24(4), 25(1)(b), 26, 27, 36(1)(b), 37(2)(d), 37(2)(g), and Schedule 1 clauses). Any amendment to those sections may require consequential amendments to these regulations.

Petroleum and Geothermal Energy Act 2000, Petroleum (Submerged Lands) Act 1982, Mining Act 1971, Opal Mining Act 1995: Regulation 15 refers to operations under these Acts to define the scope of mining and petroleum exclusions. Work associated with operations under these Acts does not constitute building or construction work for levy purposes if it falls within the specific categories listed and is not in the housing or commercial sectors. This means that a project owner undertaking work under a mining licence may need to cross-reference the definitions in those Acts to determine whether the work qualifies for exclusion. The regulations do not incorporate those Acts fully; they refer to “any operation under” them, which may include activities not specifically regulated by the mining Acts but broadly associated with them.

Oaths Act 1936: Regulation 6(4) allows the board to require that information be furnished by statutory declaration under Part 3 of the Oaths Act 1936. This imports the formal requirements for statutory declarations, including the penalties for false declarations under that Act. A person who makes a false statutory declaration in compliance with a board request may be prosecuted under the Oaths Act, not just under these regulations.

Legislation Revision and Publication Act 2002: The legislative history notes that regulation 2 was omitted under this Act. This is a standard housekeeping reference: the Act allows for minor corrections and omissions by the Parliamentary Counsel. It does not affect the substantive operation of the regulations.

Work Health and Safety laws: While not directly referenced, the construction work subject to the levy will also be subject to state and national work health and safety legislation. The records required by regulation 11 (date of commencement, site address, type of work) may overlap with records required under WHS laws, but the training fund regulations impose a separate five-year retention period from commencement.

Industrial relations and workplace laws: The prescribed employee and employer associations listed in Schedules 1 and 2 are trade unions and employer associations registered under federal or state industrial laws. Their roles under these regulations (consultation on board nominations) add a regulatory function to their industrial roles. The list is not exhaustive of all industrial associations; for example, the Australian Workers’ Union is listed but not the CFMEU’s Construction Division? Actually the CFMEU is listed as “Construction, Forestry and Maritime Employees Union (Manufacturing Division and Maritime Union of Australia Division, South Australian Branch)” - not its construction division. This suggests careful drafting to include only specific divisions.

Taxation and financial reporting: The levy is a cost on construction projects and may be deductible for income tax purposes, but that is governed by federal tax law. The regulations do not address GST. The legislative history shows that GST references were deleted from regulation 3 by the 2024 amendment. Previously, the regulations defined “GST” and “GST law” but those definitions were removed effective 1 January 2025. This may reflect a simplification or a change in how the levy is calculated (possibly moving from a GST-inclusive to GST-exclusive basis or vice versa). The effect is unclear from the text alone.

Other state training levy laws: South Australia’s Construction Industry Training Fund Act is similar to schemes in other states such as Victoria’s Building and Construction Industry Security of Payment Act? No, that’s different. Other states have training fund levies too (e.g., NSW has a training levy under the Building and Construction Industry Training Levy Act 1999). The SA regulations stand alone; there is no mutual recognition or harmonisation with interstate schemes. A project owner undertaking work across state borders must comply with each state’s regime separately.

The Construction Industry Training Fund Regulations 2021 (No. 113 of 2021) commenced on 1 September 2021, revoking the earlier 2008 regulations. The original 2021 version defined sectors, set the exemption threshold at $100,000, prescribed penalties for late payment, required five-year recordkeeping, excluded plant and equipment for mineral/oil/gas exploration from levy calculation, brought maintenance work within scope, and provided mining/petroleum exclusions. It did not include any provisions on board composition or prescribe employee or employer associations.

The significant amendment is the Construction Industry Training Fund Variation Regulations 2024 (No. 97 of 2024), which commenced partly on 31 October 2024 and partly on 1 January 2025. The key changes:

• Insertion of regulation 4A (Board composition): Effective from 31 October 2024. This new provision introduced the requirement for the Minister to consult prescribed employer and employee associations before nominating board members, and limited nominations to persons who are employees, members, or officers of those associations. This was a substantial structural change, transforming the board from a potentially more independent body to one whose members are necessarily drawn from a closed list of industry associations.

• Substitution of Schedule 1 (prescribed employee associations): Effective 31 October 2024. The original Schedule 1 had been in place since 2021 (possibly listing different unions). The 2024 amendment substituted a new list containing the Australian Workers’ Union (SA), Australian Manufacturing Workers’ Union (SA), Electrical Trades Union (SA), CFMEU (Manufacturing and Maritime divisions, SA), and SA Unions.

• Insertion of Schedule 2 (prescribed employer associations): Effective 31 October 2024. Previously no such schedule existed. The new Schedule lists 15 employer bodies: Air Conditioning and Mechanical Contractors’ Association, Association of Wall & Ceiling Industries, Brick and Block Careers, Australian Glass and Window Association, Civil Contractors Federation, Concrete Institute of Australia, Housing Industry Association, Master Landscapers, Master Builders Association, Master Painters Australia, Master Plumbers, NECA SA/NT, Property Council, Swimming Pool and Spa Association, and Urban Development Institute of Australia (SA).

• Deletion of regulation 2 (commencement): Omitted under the Legislation Revision and Publication Act 2002, effective 31 October 2024. This is a technical removal of a spent provision.

• Deletion of GST definitions from regulation 3: Effective 1 January 2025. The definitions of “GST” and “GST law” were removed. These had been used to define the value of building or construction work for levy purposes, likely to exclude GST from the calculation. Their deletion may mean the levy is now calculated on the GST-inclusive value, or that the Act contains its own GST definitions. The explanatory note does not clarify the rationale.

• Amendment of regulation 5 (exemptions): Effective 1 January 2025. The exact amendment is not specified in the table, but the regulation was amended. The current text shows $100,000 remained, so the amendment likely removed references to GST or updated cross-references.

• Deletion of regulation 13(3) and regulation 16: Effective 1 January 2025. Regulation 13(3) previously set out an exclusion for GST (since the levy was calculated excluding GST). Its deletion is consistent with removing GST references. Regulation 16 is omitted; its content is unknown but may have dealt with transitional matters now spent.

The amendments show a shift from a purely operational set of rules to one that also controls the governance of the board, centralising influence in prescribed associations. The removal of GST definitions suggests a simplification or a policy change on how the levy base is calculated.

The regulations themselves have no litigation history noted in the source. There are no reported cases cited either in the regulations or in the legislative history. This is typical for subordinate legislation that is rarely challenged directly.

However, disputes under the Construction Industry Training Fund Act 1993 have likely arisen in South Australian courts and tribunals, particularly over the meaning of “building or construction work”, the application of exclusions for mining and petroleum, and the liability of project owners who fail to register or pay. The regulations define key terms such as sectors and exclusions, so any interpretive contest will turn on these definitions.

For example, the line between the housing sector and commercial sector can be contentious. A boarding house with shared cooking and bathing facilities may not fit the housing sector definition in regulation 4(a) because it lacks “cooking and bathing facilities” in each dwelling unit and is arguably intended for temporary accommodation. If such a building is classified as commercial, the mining/petroleum exclusions may not apply even if the building is on a mine site. A mining company that builds a worker accommodation block with shared facilities might argue it is not “long term residential” but the board might argue it is. Cases on similar definitions under other states’ training levies exist but are not binding.

The exclusions in regulation 15 are fact-specific. The list includes “earthworks associated with the construction or maintenance of a temporary water supply or temporary access track for a purpose associated with mineral or petroleum exploration activity.” Disputes can arise over what is “temporary”, what is “associated with exploration activity”, and whether earthworks for an access track that is later used for production still qualify.

The board’s power to impose penalties under regulation 7 without a hearing could be challenged on administrative law grounds, such as failure to afford procedural fairness. If the board imposes a $5,000 penalty without giving the project owner an opportunity to be heard, a court might find the penalty invalid.

Regulation 4A (board composition) has not been litigated yet, but it could be challenged by an association not on the prescribed lists arguing that it is being excluded from the consulting process unreasonably or in breach of industrial relations principles. However, the regulation explicitly creates a closed list; a court would likely uphold it as within the regulation-making power.

No cases are identified in the source, so this is speculation based on the text. The regulations are recent (2021, amended 2024), so litigation may be forthcoming as industry participants test the boundaries of the mining exclusions and board composition restrictions.

The mining/petroleum exclusions are narrower than they first appear. Regulation 15(1) excludes specified work only if it is “not carried out in the housing sector or the commercial sector of the building and construction industry.” That means if a mining company builds a permanent residential village (housing sector) or a commercial office block (commercial sector) on the mine site, the exclusions do not apply, and the full levy is payable. The definition of housing sector excludes “temporary accommodation (such as a motel, hostel or holiday apartment)” but permanent camp accommodation with cooking and bathing facilities may still be housing. Leaflet drops from industry groups might mislead resource companies into thinking all mine-site work is exempt; it is not.

Maintenance work is in scope. Regulation 14 specifically brings maintenance work on buildings and structures within the definition of building or construction work. A project owner cannot avoid the levy by labelling work as “maintenance” rather than “construction.” The only relief is if the maintenance falls within the mining/petroleum exclusions in regulation 15, and even then only if not in housing or commercial. The phrase “building or structure” is broad: fixing a roof on a shopping centre, repainting a factory, or replacing windows in an office block all appear to attract the levy if the project owner’s total work in the period exceeds $100,000.

The five-year recordkeeping clock starts at commencement of work, not completion. Regulation 11(1) says “for a period of 5 years from the commencement of that work.” If a large project takes three years to complete, the project owner must keep records for eight years from start to finish plus two more years after completion? Actually the period is five years from commencement, so records must be kept for the entire five-year period from start, even if the work is ongoing. After the five-year anniversary of commencement, the owner may destroy records, even if the work is not yet finished. That creates a loophole: owners could destroy records while the project is still incomplete, potentially making it difficult for the board to verify levy compliance. However, the board may have power under the Act to require longer retention. Also, the practical risk is low because most projects are shorter than five years. For projects lasting longer than five years, the owner can destroy the start records early, but could rely on later records.

The board’s discretion on forms and information is unlimited. Regulation 6(1) and (3) allow the board to determine the information required, the manner, and the form. The regulations do not set any criteria or limits. The board could change forms monthly, require extensive technical details, or demand information that is difficult to obtain. There is no requirement for the board to be reasonable or to give reasons. The only remedy is to challenge the board’s decision administratively or judicially, which is costly. Project owners should regularly check the board’s website for updates.

Prescribed associations lists cannot be challenged by non-listed associations. Schedule 2 includes 15 employer bodies, some of which are quite niche (e.g., Swimming Pool and Spa Association of Australia Ltd, Landscape Association of South Australia). Other industry groups, such as a local chamber of commerce or a small builders’ cooperative, have no right to be consulted or to have their members appointed to the board. This could be seen as entrenching incumbency and limiting competition in representation. New entrants to the industry or non-traditional construction methods may have no voice on the board.

The $100,000 exemption threshold may apply per project, per financial year, or per project owner depending on the Act. The regulations do not clarify aggregation. A project owner who does five projects each worth $30,000 (total $150,000) in a year may be under the threshold per project but over it if aggregated. The Act’s provisions would determine this. If aggregation applies, the project owner would need to ensure they do not unintentionally cross the threshold.

The penalty for breach of regulations is only $2,500, but that is per offence, and each day may be a separate offence. Repeated non-compliance could accumulate fines. Also, the board’s penalty for late levy payment under regulation 7 is separate from the fine under regulation 12. A project owner who is one day late paying the levy could face both a board penalty (up to $5,000) and a criminal prosecution (up to $2,500). The regulations do not prevent double punishment.

The definitions of sectors rely on intended use. The housing sector definition says “intended to be used predominantly for long term residential purposes.” The intended use at design stage may be different from actual use. A building designed as student accommodation (temporary, not housing) that later becomes permanent housing could be reclassified. This creates uncertainty for project owners at the planning stage. They must determine the sector now, but the board may retrospectively reclassify based on actual use.

Regulation 15(2) defines “petroleum” to include “any other regulated resource within the meaning of the Petroleum and Geothermal Energy Act 2000.” This catch-all means work associated with resources like geothermal energy or any substance regulated under that Act is also excluded. Project owners must check the current definitions in the petroleum Act, which may change without amendment to these regulations.

The first step for any person or entity that commissions building or construction work in South Australia is to determine whether the project is subject to the levy. That requires assessing the value of the work. If the total value does not exceed $100,000, no levy is payable, though it is prudent to keep a record of that assessment in case the board later challenges it. If the value exceeds $100,000, the project owner must register or notify the board (the Act likely requires registration).

The project owner should classify the work into the appropriate sector: housing, commercial, or civil, using the definitions in regulation 4. If the work is in the housing or commercial sectors, the levy is payable and the mining/petroleum exclusions in regulation 15 do not apply. If the work is in the civil sector and is associated with mining, petroleum, or geothermal operations, the project owner should carefully review regulation 15 to see if the specific work falls within one of the listed categories (earthworks, excavation, pipeline fabrication, haul roads, airstrip maintenance, environmental clean-up, mine back-filling, or repair of exploration/production plant). If it does, and the work is not also in the housing or commercial sectors, then that work is excluded from levy. The project owner should document the basis for claiming exclusion, including the nature of the work, the sector classification, and the relevant mining or petroleum operation, to evidence compliance on audit.

For work that is subject to the levy, the project owner must pay the levy in accordance with the Act, accompanied by any information the board requires (regulation 6(1)). The board’s current information requirements and forms must be obtained from the board directly or its website. The information must be provided in the manner and form the board determines, and the board may require a statutory declaration (regulation 6(4)). If the project owner is applying for a refund or adjustment under section 24(4) of the Act, that application must be made to the board in the manner and form the board determines (regulation 6(2) and (3)).

Recordkeeping is mandatory. The project owner must keep, for five years from the date the building or construction work commenced, copies of all forms submitted to or received from the board relating to levy payment or refund, the date the work commenced, the value of the work, the site address, and brief details describing the type of work (regulation 11(1)). These records should be retained in a secure and accessible format. If the project owner wishes to be exempt from keeping any of these records, they must apply in writing to the board, specifying the work or kind of work and the period of exemption sought (regulation 11(2)). The board has discretion to grant or refuse.

If the project value changes after the levy has been paid, the project owner should determine whether the variation amounts to at least $50,000 (regulation 8). If so, a notice of variation may need to be given to the board, and an adjustment of the amount paid may be required. Regulation 9 sets the threshold for adjustment at $50,000. The project owner should follow the board’s procedure for notifying variations and applying for refund or additional payment.

Payments of levy must be made on time. If the levy is unpaid by the due date, the board may impose an administrative penalty under regulation 7. The penalty is calculated by reference to the amount of unpaid levy: up to $500 for unpaid levy of $500 or less, up to $2,500 for unpaid levy between $500 and $10,000, and up to $5,000 for unpaid levy exceeding $10,000. To avoid penalties, the project owner should have systems to ensure timely payment. If a penalty is imposed, the project owner may challenge it through internal review or court proceedings, but the regulations do not provide a specific review mechanism.

The project owner must also ensure that any contractors or subcontractors they engage do not inadvertently cause non-compliance. For example, if a subcontractor starts work before the project owner has paid the levy, the project owner may still be liable for the levy and any penalty. The project owner should include contractual obligations for subcontractors to provide information needed for levy compliance.

If the project owner is an organisation with ongoing construction activities, they should appoint a responsible officer to monitor board announcements of changes to forms, information requirements, or thresholds. The board’s power to change forms at any time (regulation 6) means that what was acceptable last month may now be rejected. The project owner should check the board’s official communications before submitting any payment or application.

Finally, the project owner should be aware of the potential for aggregation. If they are undertaking multiple projects in the same financial year or period, they should check whether the Act aggregates their value. If so, each project owner must track the cumulative value to determine when the $100,000 exemption is exceeded and levy liability begins. Keeping a running total of project values and dates will assist.

For prescribed associations listed in Schedules 1 and 2, compliance means ensuring that their members or officers are available and willing to be nominated for board positions, and that they engage with the Minister when consulted. Non-listed associations cannot compel consultation, but they may seek to have their names added to the schedules through an amendment to the regulations, which would require a variation regulation.

Given the board’s broad discretion and the technical definitions of sectors and exclusions, project owners with complex or high-value projects should obtain legal advice specific to their circumstances. The regulations are detailed but silent on many procedural aspects; the board’s published policies and forms fill the gaps, and those policies can change with little notice.