Following our previous insight “An Australian First: the ACT Property Developers Bill 2023 – It’s hard to believe this is real”, the ACT Legislative Assembly Standing Committee on Planning, Transport, and City Services (“Committee”) has released its report on 5 April 2024 (“Report”) after concluding its inquiry into the Property Developers Bill 2023 (Bill).
The Report presents the Committee’s findings, and recommendations, and an acknowledgement of potential unintended consequences of the Bill on residential property development in the ACT.
Despite these concerns, the Committee has recommended that the Legislative Assembly pass the Bill after considering the Report. Unfortunately, this does not offer any relief for property developers and their potential liability under the Bill. It also perpetuates the uncertainty surrounding the impact of the Bill on residential development in the ACT.
The Legislative Assembly is required to provide a response to the Report by 5 August 2024.
Findings of the Committee
The Committee’s findings relate to exemptions from the licensing and personal liability provisions of the Bill:
- Not-for Profit organisations planning to own and rent their developments for at least 10 years should be exempt.
- The ACT Government should consult extensively with different sectors of the property industry when developing regulations to exempt certain entities from the scheme, ensuring certainty for entities undertaking long-term residential developments.
Recommendations of the Committee
The Committee also made the following recommendations for amendments to the Bill:
- The Bill should mandate that the relevant Legislative Assembly committee conduct an inquiry as part of a 5 year review of the legislation’s operation.
- The legislative review should consider extending the Code of Conduct (referred to as a code of practice for property developers in the Bill) to all property developers, including government agencies.
- Rectification orders should not be retrospective to align with the ACT Government’s policy position.
- Clear administrative arrangements for implementing the scheme should be established before the Bill’s commencement.
- The appointment of the Registrar should be made by Cabinet or pursuant to statute, and not by the Director-General.
- Review of the Registrar’s decisions should initially be undertaken by ACAT before appeals are directed to the ACT Supreme Court, unless a clear policy rationale for bypassing ACAT is provided.
Scrutiny Report
The Standing Committee on Justice and Community Safety (“Scrutiny Committee”) also raised several concerns:
- The inclusion of a “Henry VIII clause” in Part 13 of the Bill, allowing regulations to amend the Bill and other Territory laws.
- The Bill’s exclusion of the application of s.47(6) of the Legislation Act 2001 (ACT), which means regulations or instruments under the Bill incorporating laws, Australian Standards and other instruments would not require notification on the notification register for review.
The Scrutiny Committee has requested that the Minister for Sustainable Building and Construction to explain the rationale behind the inclusion of the Henry VIII clause, including potential limitations on its impact and consideration of alternatives. They also seek an explanation for the exclusion of notification requirements for all incorporated instruments including Australian Standards.
Where to from here
The Legislative Assembly’s response to the Report is due by 5 August 2024. Following the response, the Bill will be debated in the Legislative Assembly, allowing for potential changes that require a majority vote.
Despite the serious considerations raised in the Report, given the origin and support for the Bill in its current form from the ACT Greens and ALP, it is unlikely that any of the recommendations will be implemented.
We will continue to monitor the progress of the Bill and related documents.