Prosecutions and injunctions

The BPC may issue charges against a person or body corporate for breaches of the Building Act 1993 (the Act) and the Domestic Building Contracts Act 1995 (DBCA). A prosecution by us is a criminal proceeding that is heard in the Magistrates’ Court of Victoria but may be heard in the County Court of Victoria depending on the offence(s) and circumstances.

The BPC has the power to seek an injunction in various circumstances, including where a person has engaged in conduct in contravention of the Act. An injunction is a Court order that requires a party to do something, or to refrain from doing something. We may seek an injunction at the same time as the prosecution of an offence or separately (including instances where no offence is prosecuted).

Overview of our approach

The Act provides a discipline framework as a foundational approach for the BPC to address non-compliances by registered or licensed practitioners. The BPC can also, in certain circumstances, use powers such as Directions to Fix or Rectification Notices to require a practitioner to address non-compliant work directly. The Compliance and Enforcement Policy Framework sets out these frameworks and tools.

Prosecutions are also available to the BPC to address non-compliance, where it is in the public interest to address a non-compliance and to send a message to practitioners around conduct and non-compliances that will not be tolerated.

A prosecution can result in a significant fine, conviction, or other penalties.

The BPC can commence prosecution in several circumstances, including:

• work by practitioners who have failed to obtain and operate under a licence or registration
• serious indictable offences, where a person knowingly breaks the laws concerning building permit requirements, for their commercial benefit
• exploitative or predatory conduct, serious patterns of conduct, or blatant disregard for compliance requirements set by parties such as the Relevant Building Surveyor
  
• significant breaches of the requirement to build in compliance with the building permit.

In other cases, such as for an instrument escalated to the BPC by the Relevant Building Surveyor, the BPC may seek an injunction to make the person take measures to fix the non-compliance.

These actions are taken to deliver on our objective to promote responsiveness and diligence by practitioners, and a safe, compliant built environment for consumers.

Where a practitioner responds positively to initial actions or requests of the BPC to address the non-compliance, these actions may not be necessary.

Our approach to prosecutions and injunctions is set out in the Prosecutions Policy.

What to do if you receive a summons and charge sheet

In the initial phase of our prosecution process, you will be served a summons and charge sheet, which will set out the alleged offence(s) you have committed. These documents also detail the court in which the matter will be heard, as well as the date and time of that hearing.

You will also be provided with a ‘Brief of evidence’, which contains all the documents and statements we will rely on during the prosecution process.

If you have been served a summons and charge sheet, we can only provide you with limited assistance and cannot provide you with legal advice.

Instead, we encourage you to obtain independent legal advice. For more information and to find a lawyer, visit the Law Institute of Victoria website.

Prosecutions and indictable offences

An ‘indictable offence’ is a serious criminal offence that carries significant penalties.

Section 16B of the Building Act 1993 (Vic) lists the two indictable offences in the Act. These are the only offences in the Act where a court may impose imprisonment, at its discretion.

In Victoria, indictable offences are prosecuted by the Director of Public Prosecutions (DPP), who provides an independent and professional prosecution service to the community of Victoria.

For a regulatory breach to be prosecuted as an indictable offence, regulators such as the BPC must refer a case to the DPP.

Our prosecutions policy sets out our criteria for considering a referral to the DPP, and how we interact with the DPP.

Due to the significant consequences of a guilty finding for an indictable offence, the BPC only considers referrals to the DPP where the circumstances of the alleged offending are serious. As an example, an unauthorised demolition (by intent) designed to result in a significant increase in the value of the land.

Under the Act, the BPC does not have the power to impose imprisonment. The BPC has disciplinary powers that serve a different purpose to criminal prosecution. The most serious actions that can be imposed in discipline relate to suspending or revoking a practitioner's licence or registration. This can serve a discipline and public protection objective, separate from what can be imposed under a prosecution in court.

For more information, read about the BPC's approach to discipline and how it can work alongside other measures, such as prosecution.