South Australian Numbered Acts South Australian Numbered ActsAfter section 56A insert:
56B—Building Rules assessment audits
(1) In this
section—
"building assessment auditor" means—
(a) a
person of a class prescribed by the regulations; or
(b) a
person employed or engaged by a body prescribed by the regulations who holds
qualifications prescribed by the regulations.
(2) Any council or
private certifier undertaking the assessment of proposed developments against
the provisions of the Building Rules under this Part must have its, his or her
activities in relation to such assessments audited by a
building assessment auditor in accordance with the requirements of this
section.
(3) The purposes of an
audit under this section are—
(a) to
check whether the processes and procedures associated with the assessment of
proposed developments against the provisions of the Building Rules, and with
the granting of any relevant building rules consents or the provision of
certificates of compliance with the provisions of the Building Rules, have
been undertaken in accordance with the requirements of this Act (including
requirements prescribed by the regulations) and, in particular, whether the
matters prescribed by the regulations have been satisfied; and
(b) to
the extent that the auditor thinks that it is appropriate to do so—to
allow an auditor to check technical aspects of assessments of proposed
developments against the provisions of the Building Rules; and
(c) to
examine and, if appropriate, report on any other aspect of the work of the
council or the private certifier prescribed by the regulations for the
purposes of this section.
(4) The first audit
under this section must be completed as follows:
(a) in
relation to a council—within the prescribed period after the
commencement of this section;
(b) in
relation to a private certifier—
(i)
if the private certifier is carrying on business as a
private certifier on the commencement of this section—within the
prescribed period after the commencement of this section;
(ii)
if the private certifier commences business as a private
certifier after the commencement of this section—within the prescribed
period after the date on which the private certifier commences business.
(5) Thereafter, a
council or private certifier must ensure that an audit is completed at least
once in every prescribed period.
(6) A private
certifier must, when renewing any registration as a private certifier under
the regulations (including in a case where the private certifier is only
required to pay an annual registration fee and lodge an annual return),
provide, in a manner determined by the Minister, evidence of compliance with
this section (insofar as may be relevant).
(7) It will be grounds
for the cancellation of the registration of a private certifier if—
(a) the
private certifier has not complied with subsection (6); or
(b) the
registration authority considers that the private certifier has not adequately
addressed any matter identified by an auditor during the course of an audit
under this section.
(8) An audit conducted
under this section will relate to an antecedent period, not exceeding the
prescribed period, determined to be appropriate by the auditor.
(9) An audit under
this section may be conducted by—
(a)
analysing processes and procedures that have been employed by the council or
private certifier to ensure compliance with the requirements of this Act; and
(b)
examining random or selective samples of documents or other records to check
on processes and procedures or to ascertain any other relevant matter; and
(c)
conducting interviews of persons who may be able to provide information
relevant to the audit; and
(d)
taking such other steps or making such other inquiries as the auditor thinks
fit.
(10) An auditor must,
before finalising a report for the purposes of this section, give a copy of
the report to the council or private certifier and allow a reasonable time for
the council or private certifier to provide a response with a view to
correcting any error of fact.
(11) An auditor must
report to the Minister any contravention or failure on the part of a council
or private certifier (as the case may be) to comply with the requirements of
this Act (including those prescribed by the regulations) or the Building Rules
in a significant respect or to a significant degree in undertaking the
assessment of proposed developments against the provisions of the Building
Rules under this Part identified by the auditor during the course of an audit.
(12) If an auditor
provides a report to the Minister under subsection (11), the Minister
may, after taking such action as the Minister thinks fit—
(a) make
recommendations to the council or private certifier (as the case may be);
(b) if
the Minister considers that the council or private certifier (as the case may
be) has contravened or failed to comply with the requirements of this Act
(including those prescribed by the regulations) or the Building Rules in a
significant respect or to a significant degree, give directions to the council
or private certifier to rectify the matter, or to take specified action with a
view to preventing a recurrence of any act, failure or irregularity;
(c) in
the case of a private certifier—disqualify the person from acting as a
private certifier by notice in the Gazette.
(13) The Minister may,
in taking action under subsection (12), if the Minister thinks fit,
appoint an investigator or investigators to carry out an investigation under
section 45A as if a ground had been made out for the purposes of
subsection (1) of that section (and may then act under
subsection (12)(a), (b) or (c) on the basis of a report presented to the
Minister at the conclusion of the investigation).
(14) The Minister
must, before taking action under subsection (12), give the council or
private certifier a reasonable opportunity to make submissions in relation to
the matter.
(15) If—
(a) the
Minister makes a recommendation to a council or private certifier under
subsection (12)(a); and
(b) the
Minister subsequently considers that the council or private certifier has not,
within a reasonable period, taken appropriate action in view of the
recommendation,
the Minister may, after consultation with the council or private certifier,
give directions to the council or private certifier.
(16) A council or
private certifier must comply with a direction under subsection (12) or
(15).
Maximum penalty: Division 4 fine.
(17) No action in
defamation lies in respect of the contents of a report under this section.
(18) An auditor must,
in acting under this section, take into account any guidelines issued by the
Minister for the purposes of this section.
(19) A person must not
act as a building assessment auditor in relation to a particular council or
private certifier if he or she is disqualified from so acting under the
regulations.
(20) A regulation
cannot be made for the purposes of this section unless the Minister has given
the LGA notice of the proposal to make a regulation under this section and
given consideration to any submission made by the LGA within a period (of
between 3 and 6 weeks) specified by the Minister.
(21) Nothing in this
section limits or affects the operation of—
(a)
section 45A; or
(b)
Chapter 13 Part 3 of the Local Government Act 1999 ,
(but subject to any direction under this or any other provision, including
under the Local Government Act 1999 , a council is not prevented from
acting under this Act on account of a failure to ensure that an audit is
conducted in accordance with the requirements of this section).
(22) Nothing in this
section limits or affects any other provision made by or under this Act with
respect to the registration or activities of private certifiers.