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Building Amendment (Registration of Building
Trades and Other Matters) Act 2018
No. of 2018
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
3 Principal Act 3
Part 2--Amendment of Building Act 1993--Registration of
building trades 4
Division 1--Definitions 4
4 Definitions 4
Division 2--Amendments relating to registration of builders 5
5 Specification of builders in relation to specific building work 5
6 Restrictions on owner-builder 5
7 Prescribed temporary structures--special provisions 5
8 Offence for owner-builder to sell building without report or
insurance 6
9 Representation in relation to registration 6
10 New section 169EA inserted 6
11 Offence for person to carry out certain domestic building work
unless registered 7
12 New sections 169FA and 169FB inserted 8
13 Who may apply for registration? 11
14 Registration 12
15 Issue of certificate of registration 13
16 Period of registration 13
17 Renewal of registration 13
18 Consequences of suspension of registration 13
19 Assessment of levy 13
20 Building surveyor may rely on certificate by other registered
building practitioner 14
i
Clause Page
Division 3--Amendments relating to the licensing of building
employees 14
21 New Part 11A inserted--Licensing of building employees 14
22 Functions of the Authority 34
23 Certificate of Registrar 35
Division 4--General amendments relating to the registration of
building trades 35
24 General regulation-making powers 35
Part 3--Amendment of Building Act 1993--Swimming pools and
spas 37
25 Definitions 37
26 Building regulations with respect to swimming pools and spas 38
27 Appeals--Building regulations 41
28 New section 216D inserted 42
29 Additional regulation-making powers 44
Part 4--Other amendments to the Building Act 1993 45
30 Definitions 45
31 Specification of builders in relation to specific building work 46
32 New section 25AA inserted 46
33 Notice of ending of engagement of builder 47
34 Notice to relevant building surveyor of subsequent engagement
of builder 47
35 Change of builder on building permit 47
36 Suspension of building permit 48
37 Certificate of consent 48
38 Repeal of section 36 48
39 Orders to owners, occupiers or builders 48
40 Actions by private building surveyors 49
41 Building orders--general 49
42 Application for registration--general 50
43 New section 171GA inserted 50
44 Issue of replacement certificate of registration or registration
card 51
45 Meaning of disciplinary action 51
46 Grounds for disciplinary action 51
47 New section 179B inserted 52
48 Immediate suspension of registration 53
49 Show cause notice 54
50 Disciplinary or other action by Authority on giving of
undertaking 55
51 Taking disciplinary action after show cause notice 57
52 Applying for internal review 57
53 New section 188AA inserted 57
ii
Clause Page
54 Delegation of Minister's functions 58
55 Minister may require Authority to act as building surveyor 58
56 New section 192B inserted 59
57 VBA inspector's identification 62
58 Directions and recommendations in relation to building
surveyors 62
59 Renewal of licence or registration 62
60 Enforcement staff 63
61 Grounds on which disciplinary action may be taken 63
62 Authorised person's identification 63
63 Production of identification 64
64 Power of entry--inspections required or authorised for the
purposes of this Act or regulations 64
65 Entering for monitoring and other purposes 65
66 Entry in emergency 66
67 Form and content of warrant 66
68 Form and content of search warrants 67
69 Seizure of things not mentioned in the warrant 67
70 Retention and return of seized documents or things 68
71 Taking samples 68
72 Injunctions 69
73 New sections 275 and 276 inserted 69
74 Amendment to Part 1 of Schedule 1 to the Principal Act--
Building regulations--Regulation-making powers 75
75 Statute law revision and other amendments 75
Part 5--Amendment of other Acts 77
Division 1--Amendment of the Oaths and Affirmations Act 2018 77
76 Amendment of the Oaths and Affirmations Act 2018 77
Division 2--Amendment of the Domestic Building Contracts
Act 1995 77
77 Cancellation of breach of dispute resolution order notice 77
Division 3--Amendment of the Sale of Land Act 1962 77
78 Matters relating to land use to be disclosed in section 32
statement 77
Part 6--Amendment of the Local Government Act 1989 78
79 New Part 8B inserted 78
iii
Clause Page
Part 7--Repeal of amending Act 88
80 Repeal of amending Act 88
═════════════
Endnotes 89
1 General information 89
iv
Building Amendment (Registration of
Building Trades and Other Matters)
Act 2018
No. of 2018
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The purposes of this Act are--
(a) to amend the Building Act 1993--
(i) to make it an offence for persons to
carry out certain types of building work
without being registered or licensed to
do so; and
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Building Amendment (Registration of Building Trades and Other Matters)
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Part 1--Preliminary
(ii) to provide for the provisional
registration of builders and the
licensing of building employees who
carry out certain building work and
related offences; and
(iii) to make provision in relation to certain
wall cladding products; and
(iv) to clarify the grounds for discipline
of registered building practitioners
in relation to breaches of dispute
resolution orders; and
(v) to provide further for the regulation
of swimming pools and spas; and
(vi) to make consequential and other
miscellaneous amendments; and
(b) to amend the Local Government Act 1989
to provide for--
(i) Councils to enter into agreements to
rectify cladding on buildings; and
(ii) Councils to declare and levy a cladding
charge to fund the rectification; and
(c) to make consequential amendments to the
Domestic Building Contracts Act 1995;
and
(d) to make minor amendments to the Oaths
and Affirmations Act 2018 and the Sale
of Land 1962.
2 Commencement
(1) This Part and sections 30, 38 to 41, 45 to 56,
58, 64 to 72, 73, 75 and Part 5 come into
operation on the day after the day on which
this Act receives the Royal Assent.
(2) Part 6 comes into operation on 30 October 2018.
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Part 1--Preliminary
(3) Subject to subsection (4), the remaining
provisions of Part 4 come into operation
on a day or days to be proclaimed.
(4) If a provision referred to in subsection (3) does
not come into operation before 1 July 2019, it
comes into operation on that day.
(5) Subject to subsection (6), Part 3 comes into
operation on a day or days to be proclaimed.
(6) If a provision referred to in subsection (5) does
not come into operation before 1 December 2019,
it comes into operation on that day.
(7) Subject to subsection (8), Part 2 comes into
operation on a day or days to be proclaimed.
(8) If a provision referred to in subsection (7) does
not come into operation before 1 September 2020,
it comes into operation on that day.
3 Principal Act
In this Act, the Building Act 1993 is called the
Principal Act.
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Part 2--Amendment of Building Act 1993--Registration of building trades
Part 2--Amendment of Building Act 1993--
Registration of building trades
Division 1--Definitions
4 Definitions
(1) In section 3(1) of the Principal Act insert the
following definition--
"subcontractor means a person who enters into a
contract with a builder to carry out all or part
of the building work that is to be carried out
by the builder under another contract;".
(2) In section 3(1) of the Principal Act, in the
definition of Victorian Managed Insurance
Authority, for "1996." substitute "1996;".
(3) In section 3(1) of the Principal Act, in the
definition of registered building practitioner,
after "Part 11" insert "including a building
practitioner that is provisionally registered under
that Part unless the contrary intention appears".
(4) In section 3(1) of the Principal Act insert the
following definitions--
"licensed building employee means a person
who holds a licence, including a provisional
licence, under Part 11A;
provisional licence means a licence granted under
section 187G;
provisional registration means registration
granted under section 171(1)(ab);
training contract has the same meaning as in
section 1.1.3(1) of the Education and
Training Reform Act 2006;
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Part 2--Amendment of Building Act 1993--Registration of building trades
Victorian Registration and Qualifications
Authority means the Victorian Registration
and Qualifications Authority established
under section 4.2.1 of the Education and
Training Reform Act 2006.".
Division 2--Amendments relating
to registration of builders
5 Specification of builders in relation to specific
building work
(1) In section 24B(3)(a) of the Principal Act, after
"practitioner" insert "other than a provisionally
registered building practitioner".
(2) After section 24B(3)(a) of the Principal Act
insert--
"(ab) a provisionally registered building
practitioner if their registration authorises
the carrying out of all of the building work
under the proposed permit; or".
(3) In section 24B(4)(b) of the Principal Act, after
"registered" insert ", other than provisionally
registered,".
6 Restrictions on owner-builder
(1) In section 25B(1)(b) of the Principal Act, after
"registration" insert ", other than a provisional
registration,".
(2) In section 25B(1A) of the Principal Act, after
"registered" insert ", other than provisionally
registered,".
7 Prescribed temporary structures--special
provisions
In section 57(1)(b) of the Principal Act, after
"practitioners" insert "other than provisionally
registered building practitioners".
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8 Offence for owner-builder to sell building without
report or insurance
In section 137B(1)(a)(i) of the Principal Act, after
"practitioner" insert "other than a provisionally
registered building practitioner".
9 Representation in relation to registration
At the end of section 169 of the Principal Act
insert--
"(2) A person who is provisionally registered
under this Part in a class of builder must
not represent or imply that the person is
registered under section 171(1)(a) in that
class of builder.
Penalty: 500 penalty units, in the case of a
natural person;
2500 penalty units, in the case of a
body corporate.".
10 New section 169EA inserted
After section 169E of the Principal Act insert--
"169EA Offence to carry out certain types of
building work unless registered or
licensed
(1) A person must not carry out a type of
building work that is prescribed for the
purposes of this section unless the person--
(a) is registered under this Part and that
registration authorises the carrying out
of that building work; or
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Part 2--Amendment of Building Act 1993--Registration of building trades
(b) is licensed under Part 11A and that
licence authorises the carrying out of
that building work and the person is
carrying out the building work in the
course of the person's employment.
Penalty: 500 penalty units, in the case of a
natural person;
2500 penalty units, in the case of a
body corporate.
(2) A person does not commit an offence under
subsection (1)(b) if the person is employed
under a training contract to carry out a type
of building work referred to in subsection (1)
by an employer who has been approved
under section 5.5.7 of the Education and
Training Reform Act 2006 by the Victorian
Registration and Qualifications Authority to
employ that person under the training
contract.".
11 Offence for person to carry out certain domestic
building work unless registered
(1) In the heading to section 169F of the Principal
Act, after "certain" insert "domestic".
(2) In section 169F(1) of the Principal Act, for
"building work" substitute "domestic building
work".
(3) At the foot of section 169F(2) of the Principal Act
insert--
"Note
See section 169EA(1) for an offence against a person
carrying out building work prescribed for the purposes of
that section if the person is not registered under Part 11 or
licensed under Part 11A to carry out that building work.".
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12 New sections 169FA and 169FB inserted
After section 169F of the Principal Act insert--
"169FA Offence to engage an unregistered
subcontractor
(1) A person must not engage another
person as a subcontractor (the proposed
subcontractor) to carry out building work
if the building work is or includes building
work of a type prescribed for the purposes
of section 169EA (the relevant building
work), unless the proposed subcontractor
is registered under this Part and that
registration authorises the carrying out
of the relevant building work.
Penalty: 500 penalty units, in the case of a
natural person;
2500 penalty units, in the case of a
body corporate.
(2) Subsection (1) does not apply to a person
if the person took reasonable steps to
ensure that the proposed subcontractor was
registered to carry out the relevant building
work, including any of the following steps--
(a) the person provided a written statement
to the proposed subcontractor setting
out--
(i) the requirement that the proposed
contractor be a registered builder
and that the registration must
authorise the carrying out of the
relevant building work; and
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(ii) the requirement that any person
engaged by the proposed
subcontractor to carry out the
relevant building work be so
registered;
(b) the person inspected the certificate
of registration of the proposed
subcontractor at the time of engaging
the proposed subcontractor and the
certificate of registration appeared to
authorise the proposed subcontractor to
carry out the relevant building work;
(c) the person, at the time of engaging
the proposed subcontractor, checked
whether the proposed subcontractor
was listed on the Register of Building
Practitioners;
(d) the contract between the person and
the subcontractor contains a clause
requiring the subcontractor--
(i) to be a registered builder and that
the registration must authorise
the carrying out of the relevant
building work; and
(ii) to ensure that any person engaged
by the subcontractor to carry out
the relevant building work is so
registered.
169FB Offence to direct or require a person to
carry out certain building work
(1) A person must not direct or require another
person (the directed person) to carry out a
type of building work prescribed for the
purposes of section 169EA (the relevant
building work) unless the directed person--
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(a) is registered under this Part and that
registration authorises the carrying
out of the relevant building work; or
(b) is licensed under Part 11A and that
licence authorises the carrying out
of the relevant building work and the
person is carrying out the building
work in the course of the person's
employment.
Penalty: 500 penalty units, in the case of a
natural person;
2500 penalty units, the case of a
body corporate.
(2) A person does not commit an offence under
subsection (1) if--
(a) the directed person is employed by
a person under a training contract to
carry out the relevant building work
and the employer has been approved
under section 5.5.7 of the Education
and Training Reform Act 2006
by the Victorian Registration and
Qualifications Authority to employ
the directed person under the training
contract; and
(b) the person directing the directed person
is that employer or a person acting on
behalf of that employer.
(3) Subsection (1) does not apply to a person if
the person took reasonable steps to ensure
that the directed person was registered under
Part 11 or licensed under this Part to carry
out the relevant building work, including any
of the following steps--
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(a) the person provided a written statement
to the directed person setting out the
requirement that the directed person--
(i) be a registered builder whose
registration authorises the carrying
out of the relevant building work;
or
(ii) be a licensed building employee
whose licence authorises the
carrying out of the relevant
building work;
(b) the person inspected the certificate of
registration or the licence certificate of
the directed person before directing or
requiring the directed person to carry
out the relevant building work and the
certificate of registration or the licence
certificate appeared to authorise the
directed person to carry out that
relevant building work;
(c) the person, before directing or
requiring the directed person to
carry out the relevant building
work, checked whether the directed
person was listed on the Register of
Building Practitioners or the Register
of Building Employees.".
13 Who may apply for registration?
(1) In section 170 of the Principal Act, after
"registration" insert ", including provisional
registration,".
(2) At the end of section 170 of the Principal Act
insert--
"(2) An application for provisional registration
may only be made in respect of a class of
builder that authorises the carrying out of
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a type of building work prescribed for the
purposes of section 169EA.".
14 Registration
(1) In section 171(1)(a) of the Principal Act, for
"if the applicant" substitute "in the case of
registration other than provisional registration,
if the applicant".
(2) After section 171(1)(a) of the Principal Act
insert--
"(ab) in the case of provisional registration in a
class of builder that authorises the carrying
out of a type of building work prescribed
for the purposes of section 169EA--
(i) if the applicant is a natural person, the
applicant has the prescribed knowledge
or experience to carry out that type of
building work; and
(ii) if the applicant is a body corporate, a
nominee director of the body corporate
referred to in section 171B(2)(a) or (b)
has the prescribed knowledge or
experience to carry out that type of
building work; and".
(3) After section 171(1) of the Principal Act insert--
"(1A) If the applicant is a body corporate that has
applied for registration in a class of builder
and a nominee director of the body corporate
referred to in section 171B(2)(a) or (b) is
provisionally registered as a builder in that
class, the body corporate can only be granted
provisional registration in that class.".
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15 Issue of certificate of registration
After section 171G(2)(b) of the Principal Act
insert--
'(ba) have the word "Provisional" prominently
displayed on it if the registration is
provisional; and'.
16 Period of registration
For section 171I(1) of the Principal Act
substitute--
"(1) Registration under this Part lasts--
(a) in the case of provisional registration,
for 5 years; or
(b) in any other case, for a period of
up to 5 years as determined by the
Authority.".
17 Renewal of registration
(1) In the heading to section 173 of the Principal
Act omit "and surrender".
(2) In section 173(1) of the Principal Act, after
"registration" insert ", other than provisional
registration,".
18 Consequences of suspension of registration
In section 183C(2) of the Principal Act, after
"practitioner" insert ", other than a provisionally
registered building practitioner,".
19 Assessment of levy
In section 205LH(2)(a) of the Principal Act, after
"practitioner" insert ", other than a provisionally
registered building practitioner,".
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20 Building surveyor may rely on certificate by other
registered building practitioner
After section 238(2) of the Principal Act insert--
"(3) In this section a registered building
practitioner does not include a provisionally
registered building practitioner.".
Division 3--Amendments relating to the
licensing of building employees
21 New Part 11A inserted--Licensing of building
employees
After Part 11 of the Principal Act insert--
'Part 11A--Licensing of building
employees
Division 1--Building employee licence
Subdivision 1--Application to
be licensed
187A Natural person may apply for a licence
A natural person may apply to the Authority
to be licensed as a building employee in a
class of building employee that authorises
the carrying out of a type of building
work prescribed for the purposes of
section 169EA.
Note
Note, that in section 169EA(1) there is an offence against
a person for carrying out building work prescribed for the
purposes of that section if the person is not registered under
Part 11 or licensed under this Part to carry out that building
work.
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187B Application to be licensed
An application to be licensed must--
(a) be made to the Authority; and
(b) be in writing in a form approved by the
Authority; and
(c) state each class of licence sought; and
(d) be accompanied by a recent photograph
of the applicant that is of a size and
form specified by the Authority; and
(e) be accompanied by the prescribed
information (if any); and
(f) be accompanied by the appropriate
application fee determined--
(i) in accordance with the guidelines
under Division 1 of Part 12; or
(ii) prescribed by the regulations.
187C Authority may conduct inquiries and
require further information
(1) In considering an application for a licence
under this Division, the Authority may--
(a) conduct any inquiries in relation to
the application that the Authority
thinks fit; and
(b) require an applicant to provide
further information in relation to
the application.
(2) The Authority may specify how any
information provided to it under this
Division is to be verified and, without
limiting the scope of this power, may
require that the information be provided
in the form of, or be verified by, a
statutory declaration.
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(3) The Authority may refuse an application
for a licence if the applicant--
(a) fails to comply with a requirement
under subsection (1)(b) within a
reasonable time after the requirement
is made; or
(b) provides information that is not verified
as required by the Authority under
subsection (2).
187D Consent to disclosure of information
(1) In considering an application for a licence,
the Authority may ask the applicant to
provide any consent to disclosure of
information that the Authority requires to
perform, or to have performed, a check
on the applicant or on any information
included with the applicant's application.
(2) The Authority may refuse to consider an
application for registration if the applicant
fails to comply with a request under
subsection (1) within 14 days after the
request is made.
187E Change to information in application
(1) An applicant for a licence must--
(a) give the Authority notice of any
material change during the relevant
period to the information provided
to the Authority by the applicant
in support of the application for a
licence; and
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(b) provide the notice referred to in
paragraph (a) within 14 days after
becoming aware of the change.
Penalty: 60 penalty units, in the case of a
natural person;
300 penalty units, in the case of a
body corporate.
(2) In this section--
material change includes any change
prescribed by the regulations;
relevant period means the period between
the making of an application for a
licence and the determination of
the application by the Authority.
Subdivision 2--Licensing
187F Licensing
(1) The Authority must license an applicant as a
building employee in a class of licence if the
Authority is satisfied that--
(a) the applicant either--
(i) holds the prescribed qualification
for the class of licence; or
(ii) holds a qualification that the
Authority considers is, either
alone or together with any further
certificate, authority, experience
or examination, equivalent to a
prescribed qualification; and
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(b) the applicant has paid the appropriate
application fee determined--
(i) in accordance with the guidelines
under Division 1 of Part 12; or
(ii) prescribed by the regulations; and
(c) the applicant meets any other
prescribed requirements.
(2) The Authority must refuse an application for
a licence if it is not satisfied of the matters
specified in subsection (1).
(3) The Authority is not required to conduct a
hearing to determine whether to grant a
licence or refuse to grant a licence.
187G Authority may provisionally license an
applicant
If the Authority refuses to grant a licence
in a class to an applicant under section 187F
solely on the ground that the Authority is
not satisfied that the applicant meets the
requirements in section 187F(1)(a), the
Authority may provisionally license the
applicant as a building employee in that
class of licence if the Authority is satisfied
that the applicant has the prescribed
knowledge or experience to carry out the
type of building work that is authorised
to be carried out by that class of licence.
187H Conditions of licence
(1) The Authority--
(a) must impose on a licence any
prescribed conditions; and
(b) may impose on a licence any other
conditions that the Authority
considers appropriate for the licence.
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(2) A person must comply with any conditions
imposed on the person's licence.
Penalty: 50 penalty units.
187I Period of licence granted under this Part
(1) A licence granted under section 187F lasts
until cancelled under this Part.
(2) A provisional licence lasts for a period of
5 years.
(3) Subsection (1) and (2) do not take away
from any provision about the suspension
or cancellation of a licence.
187J Issue or return of licence certificate
(1) If the Authority licenses a person as a
building employee, it must issue a licence
certificate to that person.
(2) The licence certificate must--
(a) be in a form approved by the Authority;
and
(b) specify the licence number of the
licensed building employee; and
(c) have the word "Provisional"
prominently displayed on it if
the licence is provisional; and
(d) contain a recent photograph of the
person that is of a size and form
specified by the Authority; and
(e) contain the prescribed information.
(3) The Authority may ask a person who holds
a licence under this Part for the return of the
licence certificate--
(a) for the purpose of altering the details on
the licence certificate; or
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(b) if the licence is suspended or cancelled;
or
(c) for any purpose authorised by this Act
or the regulations.
(4) A person who holds a licence under this
Part must return the licence certificate to
the Authority as soon as is practicable after
being asked to do so by the Authority under
subsection (3).
Penalty: 10 penalty units.
187K Issue of replacement licence certificate
The Authority may issue a replacement
licence certificate at the request of a licensed
building employee if the licensed building
employee--
(a) pays the appropriate fee (if any)--
(i) determined in accordance with
the guidelines under Division 1
of Part 12; or
(ii) prescribed by the regulations; and
(b) satisfies the Authority that the licence
certificate issued has been lost,
damaged or destroyed.
Subdivision 3--Periodic licence fee
and statement
187L Periodic licence fee and statement
A licensed building employee must, at
the end of each prescribed period after
the granting of a licence to the licensed
building employee under this Part--
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(a) pay to the Victorian Building Authority
Fund the appropriate fee determined--
(i) in accordance with the guidelines
under Division 1 of Part 12; or
(ii) prescribed by the regulations; and
(b) provide to the Authority a statement in
respect of the period up to the date that
the fee is paid that--
(i) is in a form approved by the
Authority; and
(ii) contains any information required
by the Authority; and
(iii) is signed by the licensed building
employee; and
(iv) is accompanied by any documents
required by the Authority.
187M Surrender of licence
A licensed building employee may, with
the consent of the Authority, surrender
the licensed building employee's licence.
Subdivision 4--General
187N Register of Building Employees
(1) The Authority must keep a Register of
Building Employees.
(2) The Register must--
(a) be in the form (if any) and contain
the information (if any) required by
the regulations; and
(b) include the names and classes of
licence of persons licensed under
this Part.
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187O Licensed building employee to produce
licence certificate for inspection
A licensed building employee must produce
their licence certificate for inspection if
asked to do so by--
(a) the owner or occupier of any land or
building on which building work is
being carried out by the licensed
building employee; or
(b) a private building surveyor in relation
to any land or building on which
building work is being carried out by
the licensed building employee; or
(c) a VBA inspector; or
(d) a plumbing inspector; or
(e) a compliance auditor; or
(f) a municipal building surveyor or a
person authorised by a municipal
building surveyor; or
(g) an Energy Safe inspector.
Penalty: 10 penalty units.
Division 2--Disciplinary proceedings
and actions
Subdivision 1--Preliminary
187P Meaning of disciplinary action
In this Division, disciplinary action in
relation to a licensed building employee
means one or more of the following--
(a) a reprimand or a warning given to
the licensed building employee;
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(b) the imposition of a penalty of not
more than 10 penalty units unless--
(i) a charge has been filed in the
Magistrates' Court in relation
to the matter; or
(ii) the matter has been dealt with
by a court exercising its criminal
jurisdiction; or
(iii) the matter has been dealt with
by the issue of an infringement
notice;
(c) a requirement for the licensed building
employee to successfully complete a
specified course of training within a
specified period;
(d) the variation of a condition
(other than a prescribed condition),
or the imposition of a condition, on
the licence;
(e) the suspension of the licence for not
more than 3 years;
(f) the cancellation of the licence.
187Q Division applies to suspended building
employees
(1) Subject to subsection (2), this Division
applies to a person whose licence is
suspended but who was licensed at the
time the conduct that forms the ground
for disciplinary action occurred as if the
person were a licensed building employee.
(2) The Authority must not give a show cause
notice under Subdivision 3 in relation
to a matter to a person whose licence is
suspended after the end of the 3-year period
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immediately following the suspension if the
suspension relates to that matter.
Subdivision 2--Grounds for
disciplinary action
187R Grounds for disciplinary action
(1) Each of the following is a ground for
which disciplinary action may be taken
against a licensed building employee--
(a) the licensed building employee has
contravened--
(i) this Act or the regulations under
this Act; or
(ii) a prescribed Act or law or a
prescribed provision of a
prescribed Act or law;
(b) the licensed building employee has
obtained the licence on the basis of
information or a document that was
false or misleading;
(c) the licensed building employee has
been guilty of, or was a party to,
any negligence or incompetence in
connection with the carrying out of
any building work;
(d) the licensed building employee has
failed to comply with a condition of
the licence;
(e) the licensed building employee has
not completed the relevant prescribed
continuing professional development
requirements (if any);
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(f) the licensed building employee has
not--
(i) paid a fee or other amount
required to be paid under this
Act or the regulations; or
(ii) provided a periodic statement
required to be provided under
this Part.
(2) The Authority may make inquiries to
determine whether a ground exists for
taking disciplinary action under this
Division.
Subdivision 3--Show cause process
187S Show cause notice
(1) If the Authority reasonably believes a
ground for taking disciplinary action against
a licensed building employee exists and
proposes to take that action, the Authority
must give the licensed building employee
a notice under this section (a show cause
notice).
(2) The show cause notice must state the
following--
(a) that the Authority proposes to take
disciplinary action;
(b) the disciplinary action proposed to
be taken;
(c) the licence in relation to which the
proposed action is to be taken;
(d) the ground for the proposed action;
(e) an outline of the facts and
circumstances forming the basis for
the ground for the proposed action;
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(f) an invitation to the licensed building
employee to show within a stated
period (the show cause period) why the
proposed action should not be taken.
(3) The show cause period must be a period
ending at least 14 days after the show
cause notice is given to the licensed building
employee.
(4) The Authority, at the request of the licensed
building employee, may extend the show
cause period stated in the show cause notice
and in that case the extended period becomes
the show cause period.
187T Representations about show cause notice
(1) The licensed building employee may--
(a) make written representations about
the show cause notice to the Authority
within the show cause period; or
(b) make oral representations about the
show cause notice to the Authority
at the time within the show cause
period, and at the place, agreed by the
Authority and the licensed building
employee.
(2) The Authority must keep a record of
oral representations made to it under
subsection (1)(b).
187U Decision about whether to take
disciplinary action
Within 28 days after the show cause period
ends, the Authority must decide whether a
ground exists to take disciplinary action
against the licensed building employee.
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187V Ending show cause process without
further action
If the Authority no longer believes a ground
exists to take disciplinary action against the
licensed building employee, the Authority--
(a) must take no further action about the
show cause notice; and
(b) must, as soon as practicable after
making its decision, give notice to the
licensed building employee that no
further action will be taken about the
show cause notice.
187W Disciplinary or other action by Authority
on giving of undertaking
If the Authority believes a ground exists to
take disciplinary action against the licensed
building employee, the Authority may--
(a) accept an undertaking from the licensed
building employee under section 234B;
and
(b) do any of the following--
(i) defer taking the proposed
disciplinary action for a
specified period;
(ii) take disciplinary action that
the Authority considers to be
less serious than the proposed
disciplinary action;
(iii) take no further action.
187X Taking disciplinary action after show
cause notice
(1) If the Authority believes a ground exists to
take disciplinary action against the licensed
building employee, the Authority may--
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(a) take the disciplinary action proposed
in the show cause notice; or
(b) on the basis of representations made
or new evidence received, take
disciplinary action that the Authority
considers to be less serious than the
disciplinary action referred to in
paragraph (a).
(2) The Authority must, as soon as practicable
after making its decision, give a written
notice about the decision to the licensed
building employee.
(3) The notice must state the following--
(a) the decision;
(b) the reasons for the decision;
(c) that the licensed building employee
may apply under Division 3 for review
of the decision within 28 days.
(4) The decision takes effect on the later of--
(a) the day the notice is given to the
licensed building employee; or
(b) the day stated in the notice.
Subdivision 4--General provisions
relating to disciplinary action
187Y Notice of decisions
(1) The Authority must give notice of a decision
under this Division in relation to a licensed
building employee to any person who made
a complaint to the Authority about the matter
to which the decision relates.
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(2) If the Authority is aware that a licensed
building employee is employed by a
particular person, the Authority must
cause notice of any decision concerning
the employee made under this Division
to be given to that employer without delay
after the decision takes effect.
187Z Complaint privileged
A person is not liable in any way for any
loss, damage or injury suffered by another
person solely because the first person in
good faith--
(a) lodged a complaint with the Authority
in relation to a licensed building
employee; or
(b) produced or gave a document or
any information or evidence to the
Authority in relation to a matter
that constitutes or may constitute
a contravention of--
(i) this Act or the regulations; or
(ii) a prescribed Act or law or a
prescribed provision of a
prescribed Act or law.
187ZA Consequences of suspension of licence
While the licence of a person is suspended,
the person is taken not to be licensed under
this Part.
187ZB Revocation of suspension
(1) The Authority may at any time revoke a
suspension under Subdivision 3 if satisfied
that it is appropriate to do so.
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(2) The Authority must, without delay, give
written notice of the revocation to the
licensed building employee.
Division 3--Review of decisions relating
to licensed employees
Subdivision 1--Preliminary
187ZC Definitions
In this Division--
affected person means a person directly
affected by a reviewable decision;
review decision has the meaning set out
in section 187ZG;
reviewable decision means any of the
following decisions under this Act--
(a) a decision to refuse to grant a
licence under this Part;
(b) a decision to take any form of
disciplinary action within the
meaning of section 187P;
reviewer means a person deciding an internal
review under this Division.
Subdivision 2--Internal review
187ZD Applying for internal review
(1) This section applies if a reviewable decision
is made by a delegate of the Authority other
than a Commissioner or the chief executive
officer of the Authority.
(2) A person who is directly affected by a
reviewable decision may apply to the
Authority for an internal review of the
decision.
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(3) Subject to subsection (4), the application
must be made within 28 days after the day
the affected person is given notice of
the reviewable decision.
(4) The Authority may, at any time, extend the
time for applying for an internal review.
(5) An application for an internal review must be
in writing and state fully the grounds of the
application.
(6) An application for an internal review stays
the operation of the decision.
187ZE Persons who may conduct an internal
review
(1) The Authority must appoint an employee of
the Authority to conduct an internal review.
(2) An internal review must not be conducted
by--
(a) the person who made the reviewable
decision; or
(b) a person who was involved in the
matters that gave rise to the reviewable
decision; or
(c) a person who holds a less senior
position than a person referred to
in paragraph (a) or (b).
187ZF Internal review
(1) The reviewer must conduct the internal
review on--
(a) the material before the Authority that
led to the reviewable decision; and
(b) the reasons for the reviewable decision;
and
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(c) any other material that was not
available at the time of the reviewable
decision that the reviewer is satisfied is
relevant.
(2) For the review, the reviewer must give the
affected person a reasonable opportunity to
make written or oral representations to the
reviewer.
187ZG Review decisions
(1) The reviewer must make a decision
(the review decision) to--
(a) affirm the reviewable decision; or
(b) amend the reviewable decision; or
(c) substitute another decision for the
reviewable decision.
(2) If the review decision affirms the reviewable
decision, for the purpose of an application
for review by VCAT, the reviewable
decision is taken to be the review decision.
(3) If the review decision amends the reviewable
decision, the reviewable decision as
amended is taken to be the review decision.
(4) If the review decision substitutes another
decision for the reviewable decision, the
substituted decision is taken to be the review
decision.
187ZH Notice of review decision
(1) The Authority must, as soon as practicable
after the review decision is made, give the
affected person notice (the review notice)
of the review decision.
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(2) The review notice must state the following--
(a) the reasons for the decision;
(b) that the affected person may apply to
VCAT for review of the decision under
this Division.
(3) If the Authority does not give the review
notice within the review period the reviewer
is taken to have made a review decision
affirming the reviewable decision.
(4) In this section--
review period means the longer of--
(a) the relevant period prescribed by
the regulations (if any); or
(b) the period ending 28 days after
the application is made.
Subdivision 3--Review by VCAT
187ZI Application for review by VCAT of
reviewable decision
(1) An affected person who has applied for an
internal review of a reviewable decision
under Subdivision 2 and is dissatisfied with
the review decision may apply to VCAT for
review of the review decision.
(2) An affected person who was not eligible to
apply for an internal review of a reviewable
decision may apply to VCAT for review of
the reviewable decision.
(3) An affected person may apply to VCAT
(without applying for internal review) for
review of a reviewable decision to suspend
or cancel a licence.
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(4) An application for review of a reviewable
decision or review decision must be made
within--
(a) in the case of an application under
subsection (1), 14 days after the end of
the review period for internal review; or
(b) in any other case, 28 days after the
reviewable decision or review decision
is made.
187ZJ Proceedings and decision
(1) After hearing the matter, VCAT may--
(a) affirm the review decision or
reviewable decision; or
(b) amend the review decision or
reviewable decision; or
(c) substitute another decision for the
review decision or reviewable decision.
(2) An application for review stays the operation
of the decision.'.
22 Functions of the Authority
(1) In section 197(ab) of the Principal Act, after
"practitioners" insert "and the scheme under
Part 11A for the licensing of building employees".
(2) In section 197(ac) of the Principal Act, after
"practitioners" insert "and licensed building
employees".
(3) In section 197(f)(ii) of the Principal Act, after
"practitioners" insert "and licensed building
employees".
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23 Certificate of Registrar
At the end of section 239 of the Principal Act
insert--
"(2) A certificate of the Registrar of the Victorian
Building Authority specifying that a person
is or is not recorded in the Register of
Building Employees or the class of licence
of a person or that a licence certificate
has been issued in respect of a person is
evidence and, in the absence of evidence to
the contrary, proof of the matters stated in
the certificate.".
Division 4--General amendments relating to
the registration of building trades
24 General regulation-making powers
(1) After section 261(1)(eb) of the Principal Act
insert--
"(ec) prescribing classes of building employee;".
(2) For section 261(1)(f) of the Principal Act
substitute--
"(f) the qualifications for registration in a
category or class of the Register of Building
Practitioners or the Register of Building
Employees--
(i) including but not limited to degrees,
diplomas, certificates, accreditations,
authorities, examinations and periods
of training or experience; and
(ii) whether the qualification, training or
experience was obtained or completed
inside or outside Victoria;".
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(3) In section 261(1)(g) of the Principal Act, after
"Building Practitioners" insert "and the Register
of Building Employees".
(4) In section 261(1)(hb) of the Principal Act,
for "domestic building work" substitute
"building work".
(5) After section 261(1)(hb) of the Principal Act
insert--
"(hc) specifying the building work that a class of
licence as a building employee authorises a
person to carry out;".
(6) For section 261(1)(i) of the Principal Act
substitute--
"(i) the form and divisions of the Register of
Building Practitioners and the Register of
Building Employees and the information
to be included in those Registers;".
(7) In section 261(1)(s) of the Principal Act, after
"registration" insert "and licence certificates".
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Part 3--Amendment of Building Act 1993--Swimming pools and spas
Part 3--Amendment of Building Act 1993--
Swimming pools and spas
25 Definitions
In section 3(1) of the Principal Act insert the
following definitions--
"certificate of pool and spa barrier compliance
means a certificate that certifies that the
barrier of a swimming pool or spa complies
with this Act and the building regulations;
certificate of pool and spa barrier
non-compliance means a certificate
that certifies that the barrier of a swimming
pool or spa does not comply with this Act
and the building regulations;
swimming pool and spa inspector means any
of the following persons who have been
engaged by an owner of land to inspect a
swimming pool or spa barrier located on
that land for compliance with this Act and
the building regulations--
(a) a registered building surveyor;
(b) a registered building inspector;
(c) any other registered building
practitioner whose registration
authorises the carrying out of
inspections of swimming pools
and spas including the barriers
associated with those swimming
pools and spas;
swimming pool and spa register means a register
of swimming pools and spas established by a
council under section 216D;".
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26 Building regulations with respect to swimming pools
and spas
(1) In section 15A(1)(b)(ii) of the Principal Act, for
"services." substitute "services; and".
(2) After section 15A(1)(b) of the Principal Act
insert--
"(c) requirements relating to the safety of
swimming pools and spas, including
signage.".
(3) After section 15A(2) of the Principal Act insert--
"(3) In addition to the regulations that may be
made under subsection (1), the Governor in
Council may make regulations for or with
respect to--
(a) the registration of swimming pools
and spas by councils for the purposes
of a swimming pool and spa register
including--
(i) the requirement for owners of
land on which swimming pools
and spas are located to register
those swimming pools and spas
with the relevant council; and
(ii) the procedures for applying for
registration and the renewal of
registration of swimming pools
and spas; and
(iii) the procedures for the registration
and the renewal of the registration
of swimming pools and spas by
councils; and
(iv) the information to be recorded in
swimming pool and spa registers
by councils; and
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(v) the procedures for maintenance by
councils of swimming pool and
spa registers; and
(b) the requirements on owners of land to
arrange for mandatory inspections of
swimming pool and spa barriers on the
land for compliance with this Act and
the building regulations, including the
frequency and circumstances of those
inspections; and
(c) the issuing of certificates of pool and
spa barrier compliance and certificates
of pool and spa barrier non-compliance,
and the performance of related
functions, by--
(i) swimming pool and spa
inspectors; or
(ii) relevant building surveyors; or
(iii) municipal building surveyors
when carrying out functions
under Part 8 or when acting as
authorised persons within the
meaning of section 228; and
(d) the lodgement with the relevant council
of certificates of pool and spa barrier
compliance and certificates of pool and
spa barrier non-compliance in relation
to swimming pools and spas on certain
land; and
(e) the requirements on owners of land to
assess and report to councils on the
compliance of swimming pool or spa
barriers on the land with this Act and
the building regulations and the
frequency and circumstances of
such assessment and reporting and
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lodgement of those reports with the
relevant council; and
(f) the procedures to be taken by councils
in relation to swimming pool or spa
barriers that do not comply with this
Act and the building regulations and
the requirements on owners of land on
which these non-compliant swimming
pools and spa barriers are located; and
(g) the requirements on owners of land
on which swimming pools or spas are
located to provide information and
documents to the relevant council or
any other specified person or body; and
(h) prescribing fees payable for--
(i) applications to the relevant
council for the registration and
the renewal of the registration
of swimming pools and spas
and periodical registration fees
relating to swimming pools and
spas; and
(ii) fees for searches by councils for
information relating to swimming
pools and spas located in their
municipal districts; and
(iii) the inspection of swimming
pool and spa barriers and the
issue of certificates of pool
and spa barrier compliance
and certificates of pool and spa
barrier non-compliance; and
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(iv) the lodgement of certificates of
pool and spa barrier compliance
and certificates of pool and spa
barrier non-compliance with
councils; and
(v) the lodgement of reports with
councils by owners of land
relating to whether swimming
pool or spa barriers located on
the land comply with this Act
and the building regulations; and
(i) forms for the purposes of this
subsection.
(4) Regulations for or with respect to any fees
referred to in subsection (3)(h) may provide
for any of the following--
(a) maximum fees;
(b) differential fees;
(c) the reduction, waiver or refund, in
whole or in part, of fees in specified
circumstances.
(5) Regulations made under subsection (3) may
impose penalties not exceeding 20 penalty
units for a contravention of those regulations.
(6) Nothing in this section affects the operation
of section 261 or 262.".
27 Appeals--Building regulations
At the end of section 144 of the Principal Act
insert--
"(2) The owner of land on which a swimming
pool or spa is located may appeal to
the Building Appeals Board against a
determination by the relevant council of
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Part 3--Amendment of Building Act 1993--Swimming pools and spas
the date of construction of the swimming
pool or spa.".
28 New section 216D inserted
After section 216C of the Principal Act insert--
"216D Register of swimming pools and spas
(1) This section applies to a swimming pool
or spa that is appurtenant to a Class 1, 2, 3
or 10 building or a Class 4 part of a building.
(2) Each council must establish and maintain a
register of swimming pools and spas located
in the municipal district of the council.
(3) The register must contain the prescribed
information relating to any swimming pool
or spa--
(a) that is registered with the council; or
(b) any other swimming pool or spa located
in the municipal district of the council
of which the council is aware.
(4) The register must be maintained in the form
and manner prescribed by the regulations.
(5) A council must submit, on request, all or
any part of the information recorded in the
register in the prescribed manner to--
(a) the Authority for the purposes of its
function under subsection (6) or for
the performance of any other function
of the Authority if the information is
necessary for the performance of that
function; and
(b) any other prescribed person, agency or
body if the information is necessary for
the performance of any function of that
person, agency or body.
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(6) The Authority may publish information on
its website regarding the number and types
of swimming pools and spas that are located
in any municipal district, but must not
disclose details of any owner, or the specific
location, of a swimming pool or spa.
(7) The following persons, in accordance
with the regulations (if any), may inspect a
register kept by a council during normal
office hours--
(a) an owner of land in the municipal
district of the council on which a
swimming pool or spa is located, but
only in relation to any information
recorded in the register relating to that
swimming pool or spa;
(b) an occupier of land in the municipal
district of the council on which a
swimming pool or spa is located, but
only in relation to any information
recorded in the register relating to that
swimming pool or spa;
(c) a swimming pool and spa inspector
in relation to a swimming pool or spa
barrier located in the municipal district
of the council, which the inspector has
been engaged to inspect;
(d) a prescribed person, agency or body
if the inspection of the information is
necessary for the performance of any
function of the person, agency or body.
(8) Subject to this section, a council must
ensure that no information in the register
is published or made available to any other
person, agency or body.".
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Part 3--Amendment of Building Act 1993--Swimming pools and spas
29 Additional regulation-making powers
(1) In the heading to section 262 of the Principal Act,
after "Additional" insert "regulation-making".
(2) In section 262(e) of the Principal Act, after
"exempt" insert "any persons or classes of
person or".
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Part 4--Other amendments to the
Building Act 1993
30 Definitions
In section 3(1) of the Principal Act insert the
following definitions--
"certificate of registration means the certificate of
registration issued to a building practitioner
under section 171G;
destructive testing, in relation to a building
material or product used or to be used in the
construction of a building, means testing of
that material or product that will or is likely
to cause the destruction of that material or
product;
external wall cladding product means any
product or material that is, or could
be, used on or in the external wall of
a building (including an attachment or
ancillary element), but excluding any
product or material that the regulations
state is not an external wall cladding
product;
high risk external wall cladding product means
an external wall cladding product that is the
subject of a declaration prohibiting its use
under section 192B;
prescribed testing authority means--
(a) an organisation accredited by the
National Association of Testing
Authorities ACN 004 379 748 to
conduct the destructive testing of
building materials or products; and
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(b) any other person or body prescribed in
the regulations to conduct destructive
testing of building materials or
products;
registration card means the registration card
issued to a building practitioner under
section 171GA;".
31 Specification of builders in relation to specific
building work
In section 24B(3)(c) of the Principal Act, for
"insured architect" substitute "architect registered
under the Architects Act 1991".
32 New section 25AA inserted
After section 25 of the Principal Act insert--
"25AA A person may notify relevant building
surveyor if becomes owner of land subject
to building permit
(1) If a person becomes the owner of land that
is subject to a building permit that has been
suspended under section 25AE(1)(d) and
the remaining building work under the
building permit is to be carried out by an
owner-builder, the person may notify the
relevant building surveyor that the person
is the new owner of the land.
(2) A notice under subsection (1) must include
the following information--
(a) a request that the new owner under
subsection (1) be named as the builder
on the building permit;
(b) if a certificate of consent has been
issued to a person to carry out the
remaining building work under the
building permit, a copy of the
certificate of consent;
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(c) the name and address of the new owner
and any person issued with a certificate
of consent to carry out the remaining
building work under the building
permit if that person is not the new
owner;
(d) any information or documents
requested to be provided by the
relevant building surveyor in order for
the relevant building surveyor to decide
whether the new owner may be named
as the builder on the building permit;
(e) any other prescribed information.".
33 Notice of ending of engagement of builder
In section 25A(1)(a) of the Principal Act, for
"insured architect" substitute "architect registered
under the Architects Act 1991".
34 Notice to relevant building surveyor of subsequent
engagement of builder
In section 25AB(1) of the Principal Act--
(a) in paragraph (a), after "building work" insert
"and whether or not the building permit is
suspended";
(b) in paragraph (b), for "insured architect"
substitute "architect registered under the
Architects Act 1991".
35 Change of builder on building permit
In section 25AC of the Principal Act, for
"section 25AB" substitute "section 25AB
or 25AA(2)".
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36 Suspension of building permit
For section 25AE(1)(d) of the Principal Act
substitute--
"(d) if the builder named on the building permit
is the owner of land to which the building
permit relates, the owner ceases to own the
land; or".
37 Certificate of consent
(1) In section 25G(1)(b)(ii) of the Principal Act, for
"period." substitute "period; or".
(2) After section 25G(1)(b)(ii) of the Principal Act
insert--
"(iii) on the day on which the owner of the land
to which the certificate relates ceases to
own the land.".
38 Repeal of section 36
Section 36 of the Principal Act is repealed.
39 Orders to owners, occupiers or builders
(1) In section 104(3) of the Principal Act, after
"tested" insert "(other than destructively tested)".
(2) After section 104(3) of the Principal Act insert--
"(4) An emergency order may require the
owner of a building or a place of public
entertainment that is a building, or a
builder, to, in accordance with the
regulations (if any), arrange for, within
a specified time, a specified building
product or material used in that building
to be subjected to destructive testing
conducted by a prescribed testing authority
if the municipal building surveyor believes
on reasonable grounds that the use of the
building product or material is connected
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with a contravention of this Act or the
regulations.
(5) An owner or builder referred to in subsection
(4) must provide the results of the destructive
testing of the building product or material to
the municipal building surveyor or another
person authorised by the municipal building
surveyor to receive the results within the
time specified in the emergency order.".
40 Actions by private building surveyors
At the end of section 107 of the Principal Act
insert--
"(2) The power for a private building surveyor
to serve a building notice or make a building
order in respect of a building, land or place
under subsection (1) continues after a
certificate of final inspection has been issued
under Part 4, or an occupancy permit or
temporary approval has been issued under
Part 5, in relation to the building, land or
place.".
41 Building orders--general
(1) In section 111(7) of the Principal Act, after
"tested" insert "(other than destructively tested)".
(2) After section 111(7) of the Principal Act insert--
"(8) A building order may require the owner of a
building or a place of public entertainment
that is a building, or a builder, to, in
accordance with the regulations (if any),
arrange for, within a specified time, a
specified building product or material used
in that building to be subjected to destructive
testing conducted by a prescribed testing
authority if the relevant building surveyor
believes on reasonable grounds that the
use of the building product or material is
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connected with a contravention of this Act
or the regulations.
(9) An owner or builder referred to in subsection
(8) must provide the results of the destructive
testing of the building product or material
to the relevant building surveyor or another
person authorised by the relevant building
surveyor to receive the results within the
time specified in the building order.".
42 Application for registration--general
After section 170A(d) of the Principal Act
insert--
"(da) if the applicant is a natural person, be
accompanied by a recent photograph of
the applicant that is of a size and form
specified by the Authority; and".
43 New section 171GA inserted
After section 171G of the Principal Act insert--
"171GA Issue of registration card
(1) If the Authority grants registration as a
building practitioner to a natural person, it
must issue a registration card to that person.
(2) The registration card must--
(a) be in a form approved by the Authority;
and
(b) specify the registration number of the
building practitioner; and
(c) include a recent photograph of the
building practitioner that is of a size
and form specified by the Authority;
and
(d) include any other prescribed
information.".
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44 Issue of replacement certificate of registration or
registration card
(1) In the heading to section 171J of the Principal
Act, after "registration" insert "or registration
card".
(2) In section 171J of the Principal Act, after
"registration" (where twice occurring) insert
"or registration card".
45 Meaning of disciplinary action
For section 178(h) of the Principal Act
substitute--
"(h) disqualify the practitioner for a specified
period of up to 3 years from being
registered in any category or class of
building practitioner.".
46 Grounds for disciplinary action
(1) After section 179(1)(c) of the Principal Act
insert--
"(ca) the practitioner has failed to comply with a
Ministerial direction under section 188AA;".
(2) After section 179(1)(da) of the Principal Act
insert--
"(db) the practitioner has been issued with a
breach of dispute resolution order notice
under section 49U(5) of the Domestic
Building Contracts Act 1995 for failure
to comply with a dispute resolution order
under that Act and the chief dispute
resolution officer has given written notice
to the Authority accordingly;".
(3) In section 179(1)(g) of the Principal Act, for
"no longer" substitute "not".
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(4) After section 179(3) of the Principal Act insert--
"(4) For the avoidance of doubt, a disciplinary
action on the ground set out in subsection
(1)(da) or (db) may be commenced together
with or separately to any disciplinary action
relating to the building work that is the
subject of the dispute resolution order.
(5) If the breach of dispute resolution order
notice referred to in subsection (1)(db) is
cancelled by the chief dispute resolution
officer under section 49V of the Domestic
Building Contracts Act 1995--
(a) the ground for disciplinary action under
subsection (1)(db) ceases to exist; and
(b) any suspension or partial suspension
imposed by the Authority or VCAT in
relation to that ground is terminated.
(6) A disciplinary action relating to the
building work that is the subject of the
dispute resolution order referred to in
subsection (5) is not terminated by reason
of the cancellation of the breach of dispute
resolution order notice.
(7) In this section--
chief dispute resolution officer has the same
meaning as in the Domestic Building
Contracts Act 1995.".
47 New section 179B inserted
After section 179A of the Principal Act insert--
"179B Mandatory cancellation of registration if
practitioner is not a fit and proper person
(1) If the Authority or VCAT makes a finding
in the course of disciplinary proceedings
that a registered building practitioner is
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not a fit and proper person, the Authority
or VCAT must cancel the registered building
practitioner's registration.
(2) A cancellation under subsection (1)--
(a) may be limited to cancellation of
the registered building practitioner's
registration in a specific category or
class; or
(b) may relate to cancellation of all
categories or classes of registration
of the practitioner.
(3) The Authority or VCAT may take other
disciplinary action in accordance with
section 179 in addition to a cancellation
of registration under subsection (1).".
48 Immediate suspension of registration
(1) After section 180A(2) of the Principal Act
insert--
"(2A) The Authority must, by written notice
given to a registered building practitioner,
immediately suspend the registration of
the registered building practitioner if the
Authority considers it is in the interests of
the public to do so pending the show cause
process.
(2B) For the purpose of subsection (2A),
matters that the Authority may have regard
to in deciding whether it is in the interests
of the public to immediately suspend the
registration of a registered building
practitioner include the following--
(a) whether the registered building
practitioner is performing, has
performed or has allowed others
under the practitioner's control to
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perform building work that poses a
serious risk to neighbouring properties;
(b) whether the registered building
practitioner is performing, has
performed or has allowed others
under the practitioner's control to
perform building work that poses a
risk to the health and safety of persons;
(c) whether the registered building
practitioner has been the subject of
multiple adverse disciplinary actions
by the Authority.".
(2) In section 180A(6) of the Principal Act, for
"this section" substitute "subsection (1)".
49 Show cause notice
(1) In section 182(1) of the Principal Act, for "If"
substitute "Subject to subsection (6), if".
(2) After section 182(1) of the Principal Act insert--
"(1A) In the case of disciplinary action on the
ground set out in section 179(1)(db), the
Authority must give a show cause notice
by the later of the following--
(a) within 28 days of receiving the breach
of dispute resolution order notice from
the chief dispute resolution officer;
(b) within the prescribed period.".
(3) After section 182(4) of the Principal Act insert--
"(5) In the case of a show cause notice issued in
relation to disciplinary action on the ground
under section 179(1)(db), the disciplinary
action proposed to be taken must include a
suspension under section 178(1)(f).
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(6) The Authority is not required to give
the registered building practitioner a
show cause notice if--
(a) the Authority has issued a notice
of immediate suspension under
section 180A(2); and
(b) the Authority does not propose to
take any other disciplinary action.".
50 Disciplinary or other action by Authority on giving
of undertaking
(1) In section 182D of the Principal Act, after
"practitioner" insert "(other than the ground
under section 179(1)(db))".
(2) At the end of section 182D of the Principal Act
insert--
"(2) Despite subsection (1), if the Authority
believes that the ground under section
179(1)(db) exists to take disciplinary action
against the registered building practitioner,
and if the registered building practitioner
demonstrates that there may be exceptional
circumstances in relation to any failure by
the practitioner to seek review of the breach
of dispute resolution order notice within
the time limit fixed under section 66 of the
Domestic Building Contracts Act 1995,
the Authority may--
(a) accept an undertaking from the
practitioner under section 234B that
the practitioner will--
(i) make an application to VCAT as
soon as possible for extension of
the time limit to apply for review
of the decision to issue a breach
of dispute resolution order notice;
and
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(ii) inform the Authority--
(A) when the application has
been made; and
(B) as to the outcome of the
application; and
(C) as to the date of any hearing
relating to the application;
and
(b) defer taking the proposed disciplinary
action for a specified period, which
may be extended by the Authority if
the practitioner's application to VCAT
is successful.
(3) For the avoidance of doubt--
(a) the Authority cannot accept an
undertaking from the registered
building practitioner in relation
to subsection (2) other than the
undertaking specified in
subsection (2)(a); and
(b) if the practitioner fails to comply with
the undertaking, or if VCAT rejects
the application for an extension of time,
the Authority must proceed with the
proposed disciplinary action on the
ground under section 179(1)(db) that
was deferred under subsection (2)(b);
and
(c) any exceptional circumstances referred
to in subsection (2) cannot be taken into
account by the Authority in deciding
on the disciplinary action to be taken
against the practitioner.".
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51 Taking disciplinary action after show cause notice
(1) In section 182E(1) of the Principal Act, for "If"
substitute "Subject to subsection (1A), if".
(2) After section 182E(1) of the Principal Act
insert--
"(1A) If the Authority believes the ground set
out in section 178(1)(db) exists to take
disciplinary action against the registered
building practitioner, the Authority must
take the disciplinary action proposed in the
show cause notice.".
52 Applying for internal review
For section 185(3A) of the Principal Act
substitute--
"(3A) An application for an internal review of
a reviewable decision made in relation to
a ground for disciplinary action under
section 178(1)(da) or (db) may be made
at any time before any disciplinary action
imposed by the reviewable decision ceases
to have effect.".
53 New section 188AA inserted
After section 188 of the Principal Act insert--
"188AA Ministerial directions to building
surveyors
(1) The Minister may from time to time issue
directions relating to the functions of
municipal building surveyors and private
building surveyors under this Act or the
regulations that are not inconsistent with
this Act or the regulations.
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(2) A direction issued under subsection(1) must
be published in the Government Gazette.
(3) A municipal building surveyor or private
building surveyor must comply with any
relevant direction issued under subsection (1)
in carrying out a function under this Act or
the regulations.".
54 Delegation of Minister's functions
In section 189(2) of the Principal Act, after
"192A(1)" insert "or 192B(1)".
55 Minister may require Authority to act as building
surveyor
For section 190(1) of the Principal Act
substitute--
"(1) If the Minister is of the opinion that it is
in the public interest to do so, the Minister
may declare any or all of the functions of a
municipal building surveyor under this Act
and the regulations are to be carried out by
the Authority1 in relation to the following--
(a) specified building work or a class
of building work situated within
a municipal district or part of that
district;
(b) a specified building or class of
building situated within a municipal
district or part of that district;
(c) specified land or a class of land
situated within a municipal district
or part of that district.".
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56 New section 192B inserted
After section 192A of the Principal Act insert--
"192B Declaration prohibiting use of high risk
external wall cladding products
(1) The Minister may, by notice published in the
Government Gazette, declare that an external
wall cladding product is prohibited from
being used by any person in the course of
carrying out any building work in connection
with the construction of a building.
(2) A declaration under subsection (1) does not
apply in relation to the use of an external
wall cladding product under a permit in
respect of which the application for the
permit was made to the relevant building
surveyor before the declaration took effect.
(3) The Minister may make a declaration under
subsection (1) if the Minister is satisfied that
use of the external wall cladding product is
or will likely cause--
(a) occupants of the building to be at risk
of death or serious injury; or
(b) occupants of neighbouring buildings to
be at risk of death or serious injury; or
(c) members of the public to be at risk of
death or serious injury; or
(d) property to be at risk of severe damage.
(4) A risk referred to in subsection (3) may arise
from the use of the external wall cladding
product in particular circumstances or
because of a certain event including a fire.
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(5) A declaration under this section may apply in
relation to--
(a) a specified use, a class of use or all uses
of the external wall cladding product;
or
(b) a specified building or a specified class
of building; or
(c) specified persons or a specified class of
persons.
(6) A declaration under this section may be
subject to conditions.
(7) A declaration under this section must
include the Minister's reasons for making
the declaration.
(8) At least 48 hours before publishing a
declaration under this section in the
Government Gazette, the Minister must
publish a notice on the Internet that--
(a) includes a draft of the proposed
declaration; and
(b) a statement that the Minister intends
to make the declaration in no less than
48 hours after the publication of the
notice--
unless the Minister believes that the risk of
using the external wall cladding product is so
serious that in the interests of public safety
the declaration must be made immediately.
(9) A declaration under this section takes effect
on the later of the following--
(a) the date the declaration is published in
the Government Gazette;
(b) any later date specified in the
declaration.
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(10) Before a declaration is made under this
section, the Minister may publish a draft
of the proposed declaration on the Internet
that includes--
(a) the Minister's reasons for deciding to
make the declaration; and
(b) a statement that submissions may be
made by any person within 28 days
after the publication of the draft.
(11) A person may make a submission to the
Minister on the proposed declaration within
28 days after the publication of the draft of
the proposed declaration.
(12) The Minister must consider any submission
on the proposed declaration received within
28 days after the draft of the proposed
declaration is published.
(13) The Minister may amend a declaration and in
that case the procedures in this section apply
as if the amendment were a declaration made
under subsection (1).
(14) The Minister must ensure that a current
version of any amended declaration is
published on the Internet for as long as
the declaration is in force.
(15) The Minister may, by a notice published
in the Government Gazette, revoke a
declaration under this section.
(16) A revocation under subsection (15) takes
effect on the day that the notice under
subsection (15) is published in the
Government Gazette.".
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57 VBA inspector's identification
(1) In section 204B(c) of the Principal Act, for
"Authority." substitute "Authority; and".
(2) After section 204B(c) of the Principal Act
insert--
"(d) state that the VBA inspector is an authorised
person within the meaning of section 228.".
58 Directions and recommendations in relation to
building surveyors
(1) In section 205M(4) of the Principal Act--
(a) for "Before giving" substitute "Subject to
subsection (4B), before giving";
(b) for "14 days" substitute "7 days".
(2) In section 205M(4A) of the Principal Act,
for "14 day" substitute "7 day".
(3) After section 205M(4A) of the Principal
Act insert--
"(4B) If the Authority believes on reasonable
grounds that a high risk external wall
cladding product has been used in
connection with any building work
relating to a function of a municipal
building surveyor or private building
surveyor, the Authority does not have
to give the building surveyor a notice
under subsection (4).".
59 Renewal of licence or registration
After section 221ZD(2) of the Principal Act
insert--
"(2A) Despite subsection (1), the Authority
may refuse to renew the licence or the
registration of a person if the Authority is
satisfied that the person has not complied
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with any prescribed continuing professional
development requirements.".
60 Enforcement staff
(1) In section 221ZZY(3)(c) and (4)(c) of the
Principal Act, for "Authority." substitute
"Authority; and".
(2) After section 221ZZY(3)(c) of the Principal
Act insert--
"(d) state that the plumbing inspector is an
authorised person within the meaning
of section 228.".
(3) After section 221ZZY(4)(c) of the Principal
Act insert--
"(d) state that the compliance auditor is an
authorised person within the meaning of
section 228.".
61 Grounds on which disciplinary action may be taken
After section 221ZZZG(1)(d) of the Principal Act
insert--
"(da) he or she has not complied with any
prescribed continuing professional
development requirements;".
62 Authorised person's identification
(1) In section 228B(1), (2) and (3) of the
Principal Act, for "identification" substitute
"documentation that complies with
subsection (4)".
(2) In section 228B(4) of the Principal Act, for
"An identification issued to a person under this
section must" substitute "For the purposes of
subsections (1), (2), (3) and (7) the documentation
must".
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(3) In section 228B(4)(a) of the Principal Act,
after "person" insert "unless the person has
been issued with a registration card".
(4) After section 228B(4) of the Principal Act
insert--
"(5) The identification of an authorised person
who is acting on behalf of a municipal
building surveyor, Energy Safe Victoria,
a relevant building surveyor or the chief
officer is--
(a) documentation that complies with
subsection (4); and
(b) if the authorised person has been issued
with a registration card, that card.
(6) The identification of a municipal building
surveyor or a relevant building surveyor
when exercising a power as an authorised
person under this Division is a registration
card.
(7) The identification of the chief officer when
exercising a power as an authorised person
under this Division must be in the form
of documentation that complies with
subsection (4).".
63 Production of identification
Section 228C(3) of the Principal Act is repealed.
64 Power of entry--inspections required or authorised
for the purposes of this Act or regulations
(1) After section 228D(6)(a) of the Principal Act
insert--
"(ab) for the purposes of an inspection under
paragraph (a), cause any building work
(including any building product or material)
to be demolished, opened or cut into or
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tested if reasonably required to facilitate
the inspection; and".
(2) After section 228D(7) of the Principal Act
insert--
"(7A) For the purposes of subsection (6)(ab)--
(a) testing of building work may include
the destructive testing of any building
product or material used in the building
work if the authorised person believes
on reasonable grounds that the use of
the building product or material is
connected with a contravention of this
Act or the regulations; and
(b) the authorised person--
(i) may conduct testing, in
accordance with the regulations
(if any), of a building product or
material used in the building work
at the location of the building
work being inspected; or
(ii) may take a sample of the building
product or material and arrange
for destructive testing of that
sample to be conducted by a
prescribed testing authority.".
65 Entering for monitoring and other purposes
After section 228E(4)(d) of the Principal Act
insert--
"(da) conduct, in accordance with the regulations
(if any), destructive testing on a building
product or material examined in or on the
building or land, if the authorised person
believes on reasonable grounds that the
use of the building product or material is
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connected with a contravention of this Act
or the regulations;
(db) arrange, in accordance with the regulations
(if any), for destructive testing to be
conducted by a prescribed testing authority
on any building product or material seized
or sampled from the building or land;".
66 Entry in emergency
(1) In section 228J(3)(d) of the Principal Act, for
"thing." substitute "thing;".
(2) After section 228J(3)(d) of the Principal Act
insert--
"(e) conduct, in accordance with the regulations
(if any), destructive testing on a building
product or material examined in or on the
building or land, if the authorised person
believes on reasonable grounds that the
use of the building product or material is
connected with a contravention of this Act
or the regulations;
(f) arrange, in accordance with the regulations
(if any), for destructive testing to be
conducted by a prescribed testing authority
on a building product or material seized or
sampled from the building or land.".
67 Form and content of warrant
(1) In section 228L(1)(d)(ii)(B) of the Principal Act,
for "document." substitute "document; or".
(2) After section 228L(1)(d) of the Principal Act
insert--
"(e) to conduct, in accordance with the
regulations (if any), destructive testing on a
building product or material examined in or
on the building or land, if the authorised
person believes on reasonable grounds that
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the use of the building product or material is
connected with a contravention of this Act or
the regulations; or
(f) to arrange, in accordance with the
regulations (if any), for destructive testing
to be conducted by a prescribed testing
authority on a building product or material
sampled from the building or land, if the
authorised person believes on reasonable
grounds that the use of the building product
or material is connected with a contravention
of this Act or the regulations.".
68 Form and content of search warrants
(1) In section 228N(1)(a)(iv) of the Principal Act, for
"thing;" substitute "thing; or".
(2) After section 228N(1)(a)(iv) of the Principal Act
insert--
"(v) conduct, in accordance with the regulations
(if any), destructive testing on a building
product or material examined in or on the
building or land; or
(vi) arrange, in accordance with the regulations
(if any), for destructive testing to be
conducted by a prescribed testing authority
on a building product or material seized or
sampled from the building or land;".
69 Seizure of things not mentioned in the warrant
At the end of section 228O of the Principal Act
insert--
"(2) If a thing seized or sampled by an authorised
person under subsection (1) is a building
product or material, the authorised person
may--
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(a) conduct, in accordance with the
regulations (if any), destructive
testing on the building product or
material; or
(b) arrange, in accordance with the
regulations (if any), for destructive
testing to be conducted on the building
product or material by a prescribed
testing authority.".
70 Retention and return of seized documents or things
For section 229C(3) of the Principal Act
substitute--
"(3) This section does not apply to--
(a) a sample taken by an authorised
person in the exercise of a power
under this Division; or
(b) a thing seized by an authorised
person, and subjected to destructive
testing, in the exercise of a power
under this Division.".
71 Taking samples
After section 229E(3) of the Principal Act
insert--
"(4) Subsection (3) does not apply to a sample
taken by an authorised person, and subjected
to destructive testing, in the exercise of a
power under this Division.".
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Part 4--Other amendments to the Building Act 1993
72 Injunctions
After section 234E(6)(b) of the Principal Act
insert--
"(ba) in accordance with the regulations (if any)--
(i) carry out testing, including the
destructive testing, of a building
product or material used in the
construction of a building and to
provide the results of such testing
to the applicant; or
(ii) arrange for the testing (including the
destructive testing) of that building
product or material by a prescribed
testing authority and for that authority
to provide the results of such testing
to the applicant;".
73 New sections 275 and 276 inserted
After section 274 of the Principal Act insert--
"275 General transitional and savings
provisions--Building Amendment
(Registration of Building Trades
and Other Matters) Act 2018
(1) Section 169EA as inserted by section 10 of
the amending Act does not apply to a person
who carries out a type of building work
prescribed for the purposes of section 169EA
under a contract to carry out that building
work, including a subcontract, if the person
entered into that contract before that building
work was prescribed.
(2) Section 169EA as inserted by section 10 of
the amending Act does not apply to a person
who carries out, as a subcontractor or as an
employee, a type of building work prescribed
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for the purposes of section 169EA during the
following periods--
(a) the period of 12 months after the
relevant building work is prescribed;
(b) if the person applies for registration as
a builder or for a licence as a building
employee to carry out the relevant
building work during that 12 month
period but the Authority does not grant
the registration or licence during that
period, the longer of the following
periods of time--
(i) before the Authority decides
to grant or not to grant the
registration or the licence;
(ii) if the person applies for an
internal review under Part 11
or 11A of the Authority's decision
to refuse to grant the registration
or licence, before the Authority
makes a review decision in
relation to the reviewable
decision;
(iii) if the person applies to VCAT for
review of the Authority's decision
to refuse to grant the registration
or licence or the review decision,
before VCAT makes a decision in
relation to the reviewable decision
or the review decision.
(3) Section 169FA as inserted by section 12 of
the amending Act does not apply to a person
who engages an unregistered person as a
subcontractor to carry out a type of building
work prescribed for the purposes of section
169EA during the following periods--
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(a) the period of 12 months after the
relevant building work is prescribed;
(b) if the person to be engaged as a
subcontractor applies for registration
as a builder to carry out the relevant
building work during that 12 month
period but the Authority does not grant
the registration during that period, the
longer of the following periods of
time--
(i) before the Authority decides
to grant or not to grant the
registration;
(ii) if the person applies for an
internal review under Part 11 of
the Authority's decision to refuse
to grant the registration, before the
Authority makes a review decision
in relation to the reviewable
decision;
(iii) if the person applies to VCAT for
review of the Authority's decision
to refuse to grant the registration
or the review decision, before
VCAT makes a decision in
relation to the reviewable decision
or the review decision.
(4) Section 169FB as inserted by section 12 of
the amending Act does not apply to a person
who directs or requires a person to carry out
a type of building work prescribed for the
purposes of section 169EA during the
following periods--
(a) the period of 12 months after the
relevant building work is prescribed;
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(b) if the person directed or required to
carry out the relevant building work
applies for registration as a builder or
for a licence as a building employee
to carry out the relevant building
work during that 12 month period
but the Authority does not grant the
registration or licence during that
period, the longer of the following
periods of time--
(i) before the Authority decides
to grant or not to grant the
registration or licence;
(ii) if the person applies for an
internal review under Part 11
or Part 11A of the Authority's
decision to refuse to grant the
registration or licence, before
the Authority makes a review
decision in relation to the
reviewable decision;
(iii) if the person applies to VCAT for
review of the Authority's decision
to refuse to grant the registration
or licence or the review decision,
before VCAT makes a decision in
relation to the reviewable decision
or the review decision.
(5) Section 25AA(1) as inserted by section 32
of the amending Act applies in relation to
land that is the subject of a building permit
issued between 1 July 2018 and immediately
before the day on which section 32 comes
into operation as well as to a building permit
issued on or after that day.
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(6) A registration card issued by the Authority
to a registered building practitioner who is a
natural person immediately before the day
on which section 43 of the amending Act
comes into operation and which contains the
following information, is taken on and after
that day to be a registration card issued under
section 171GA--
(a) the name of the building practitioner;
(b) the registration number of the building
practitioner;
(c) a recent photo of the building
practitioner.
(7) Section 179(1)(db) as inserted by
section 46(2) of the amending Act only
applies in relation to a breach of dispute
resolution order notice issued on or after
the day on which section 46(2) comes into
operation.
(8) Section 179B as inserted by section 47 of
the amending Act only applies in relation to
a finding in respect of which a show cause
notice is issued to the building practitioner
on or after the day on which section 47
comes into operation.
(9) In this section--
amending Act means the Building
Amendment (Registration of
Building Trades and Other Matters)
Act 2018;
relevant building work means a type of
building work prescribed for the
purposes of section 169EA;
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unregistered person means a person who
does not hold a registration under
Part 11 that authorises the carrying
out of the relevant building work.
276 Transitional regulations
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the enactment of the amending Act,
including any repeals and amendments made
as a result of the enactment of that Act.
(2) Regulations under this section may--
(a) have a retrospective effect to a day
that is not before the day on which
the amending Act receives the Royal
Assent; and
(b) be of limited or general application; and
(c) differ according to time, place or
circumstance; and
(d) leave any matter or thing to be decided
by a specified person or class of person.
(3) To the extent to which any provision of the
regulations takes effect from a date that is
earlier than the date of its making, the
provision does not operate so as--
(a) to affect, in a manner prejudicial to
any person (other than the State or an
authority of the State), the rights of that
person existing before the date of its
making; or
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(b) to impose liabilities on any person
(other than the State or an authority of
the State) in respect of anything done or
omitted to be done before the date of its
making.
(4) Regulations under this section have effect
despite anything to the contrary in any Act
(other than this Act or the Charter of
Human Rights and Responsibilities
Act 2006) or in any subordinate instrument.
(5) Sections 6 and 7 of the Subordinate
Legislation Act 1994 do not apply to
any regulations made under this section.
(6) This section expires on 1 September 2022.
(7) In this section--
amending Act means the Building
Amendment (Registration of
Building Trades and Other Matters)
Act 2018.".
74 Amendment to Part 1 of Schedule 1 to the Principal
Act--Building regulations--Regulation-making
powers
For item 6 of Part 1 of Schedule 1 to the Principal
Act substitute--
"6. The use and testing (including the
destructive testing) of specified
building products and materials.".
75 Statute law revision and other amendments
(1) In section 150 of the Principal Act, for "36"
substitute "228D(6)(ab)".
(2) In section 239 of the Principal Act,
for "building practitioner's certificate"
substitute "certificate of registration".
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Part 4--Other amendments to the Building Act 1993
(3) For section 261(1)(s) of the Principal Act
substitute--
"(s) certificates of registration;".
76
Building Amendment (Registration of Building Trades and Other Matters)
Act 2018
No. of 2018
Part 5--Amendment of other Acts
Part 5--Amendment of other Acts
Division 1--Amendment of the Oaths
and Affirmations Act 2018
76 Amendment of the Oaths and Affirmations Act 2018
Item 16 of Schedule 2 to the Oaths and
Affirmation Act 2018 is repealed.
Division 2--Amendment of the Domestic
Building Contracts Act 1995
77 Cancellation of breach of dispute resolution order
notice
After section 49V(3) of the Domestic Building
Contracts Act 1995 insert--
"(4) The chief dispute resolution officer must
give the Authority notice in writing of
the cancellation of the breach of dispute
resolution order notice.".
Division 3--Amendment of the Sale
of Land Act 1962
78 Matters relating to land use to be disclosed in
section 32 statement
For section 32C(b) of the Sale of Land Act 1962
substitute--
"(b) if the land is in an area that is designated as
a bushfire prone area under section 192A of
the Building Act 1993, a statement that the
land is in such an area;".
77
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Part 6--Amendment of the Local Government Act 1989
Part 6--Amendment of the Local
Government Act 1989
79 New Part 8B inserted
Before Part 9 of the Local Government Act 1989
insert--
"Part 8B--Cladding rectification
agreements
185H Definitions
In this Part--
building has the same meaning as it has in
the Owners Corporations Act 2006;
cladding rectification agreement means an
agreement entered into in accordance
with section 185I;
cladding rectification charge means a
charge declared under section 185L;
common property has the same meaning
as it has in the Owners Corporations
Act 2006;
existing mortgagee, in respect of rateable
land to which a cladding rectification
agreement will apply, means any
holder of a mortgage for that land,
whether registered or unregistered;
lot has the same meaning as it has in the
Subdivision Act 1988;
owners corporation has the same meaning
as it has in the Owners Corporations
Act 2006.
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185I Cladding rectification agreement
(1) Subject to section 185J, a Council may enter
into a cladding rectification agreement in
respect of rateable land with an existing
building on it, to fund works that rectify
cladding on buildings with--
(a) the owner of the rateable land or, in the
case of rateable land that is managed by
an owners corporation, the owners
corporation; and
(b) a lending body, unless the Council is
the lending body; and
(c) any other person that the other parties
to the agreement agree should be a
party to the agreement and agrees to
be a party to the agreement.
(2) Sections 185J(1)(b) and 185M(1) and (2)
do not apply to a cladding rectification
agreement in respect of rateable land that
is used for a residential purpose.
(3) The Minister administering the Building
Act 1993 must publish a notice in the
Government Gazette specifying the type
of works that may be funded by a cladding
rectification agreement.
(4) A Council must not enter into a cladding
rectification agreement to fund works unless
the works are of a type specified in a notice
published under subsection (3).
(5) A cladding rectification agreement must--
(a) be in writing; and
(b) outline the works to be undertaken on
the rateable land; and
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(c) provide for the lending body to advance
specified funds to conduct the works;
and
(d) provide for the Council to levy a
cladding rectification charge on the
rateable land; and
(e) provide for the Council to use the
money received under the cladding
rectification charge--
(i) to repay the lending body the
principal amount advanced plus
any agreed interest accrued since
that advance; and
(ii) for any agreed administrative
charge to be retained by the
Council.
185J Conditions to be met before entering into
cladding rectification agreement
(1) Before entering into a cladding rectification
agreement, the owner of the rateable land or,
in the case of rateable land managed by an
owners corporation, the owner of each lot on
the rateable land--
(a) must give the Council details in writing
of--
(i) all taxes, rates and charges
owing on the rateable land or
lot (including the total amount
owing in respect of each tax,
rate or charge) imposed by or
under an Act; and
(ii) all registered and unregistered
mortgages over the rateable land
or lot; and
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(iii) if a relevant mortgage is held
against 2 or more properties
including the rateable land or lot,
the proportion of the debt secured
by the mortgage that applies to the
rateable land or lot calculated in
accordance with subsection (3);
and
(b) subject to section 185M, may obtain
the written agreement of an occupier
to pay the cladding rectification
charge that will apply in respect of
their occupancy.
(2) For the purposes of satisfying itself of the
matters required in subsection (1)(a), a
Council must give written notice to each
owner or, in the case of rateable land
managed by an owners corporation, each
owner of a lot on the rateable land--
(a) that the Council requires the details
specified in subsection (1)(a); and
(b) stating that the owner has 60 days
from the date of giving the notice
to provide the details.
(3) For the purposes of subsection (1)(a)(iii),
the proportion of the debt secured by the
mortgage that applies to the rateable land
or lot must be calculated by distributing
the debt between all the properties against
which the mortgage is held in proportion to
the relative capital improved values of the
properties in respect of the current financial
year (as at the time of entering into the
agreement).
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(4) A Council must not enter into a cladding
rectification agreement unless the Council is
satisfied that the total amount of taxes, rates,
charges and mortgages owing on the rateable
land when added to the total value of the
cladding rectification charge is an amount
that does not exceed the capital improved
value of the land after the completion of any
works that would be undertaken as part of
the cladding rectification agreement.
(5) A Council must not enter into a cladding
rectification agreement in respect of
rateable land that is managed by an owners
corporation unless the Council is satisfied
that, for each separate lot on the rateable
land, the total amount of taxes, rates,
charges and mortgages owing for that lot
when added to the cladding rectification
charge owing in respect of that lot does not
exceed the capital improved value of that
separate lot after the completion of any
works that would be undertaken as part of
the cladding rectification agreement.
(6) If a person who receives a notice under
subsection (2) fails to provide the required
details within the time specified in the
notice, the Council can be taken to be
satisfied of the matters required in respect
of subsection (4) or (5) (whichever is
applicable) in relation to the rateable
land or relevant lot on the rateable land
(whichever is applicable).
(7) The owner of rateable land, or owner of a lot
on rateable land (whichever is applicable)
must advise, in writing, at least 28 days
before a cladding rectification agreement is
entered into, any existing mortgagee in
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Part 6--Amendment of the Local Government Act 1989
respect of the rateable land to which the
agreement will apply--
(a) that the rateable land or lot (as the case
may be) is intended to be subject to a
cladding rectification agreement; and
(b) of the details of all cladding
rectification charges that are expected
to be declared by a Council in respect
of the rateable land or lot (as the case
may be) under the cladding rectification
agreement.
(8) If a Council is not satisfied of the matters
set out in subsection (4), the Council may
enter into a cladding rectification agreement
if all the existing mortgagees of the rateable
land agree in writing to the proposed
cladding rectification charge.
(9) If a Council is not satisfied of the matters
set out in subsection (5) in relation to one
or more lots on rateable land, the Council
may enter into a cladding rectification
agreement if all the existing mortgagees
of those lots agree in writing to the cladding
rectification charge.
185K Cladding rectification agreements with
owners corporations
(1) If a proposed cladding rectification
agreement is in respect of rateable land that
is managed by an owners corporation--
(a) the owners corporation must not enter
into the agreement without the written
consent of the owners of no less than
75 per cent of the total lots affected by
the owners corporation in respect of the
land; and
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(b) the owners corporation must, before
entering into the agreement--
(i) give to the Council in writing the
names and postal addresses of all
of the owners of the lots affected
by the owners corporation in
respect of the land; and
(ii) specify to the Council which of
the owners consented to entering
the agreement.
(2) If an owners corporation enters into a
cladding rectification agreement--
(a) the agreement is taken not to
be a mortgage or charge of
common property for the purposes
of section 17 of the Owners
Corporations Act 2006; and
(b) works undertaken under the agreement
are taken not to be upgrading works
for which the owners corporation
can levy a fee under section 53 of the
Owners Corporations Act 2006; and
(c) the agreement is taken not to be a
maintenance plan for the purposes of
the Owners Corporations Act 2006;
and
(d) any levying and collection of the
cladding rectification charge by the
Council under the agreement is taken
not to be a maintenance fund for the
purposes of the Owners Corporations
Act 2006.
(3) A cladding rectification charge declared
and levied in respect of rateable land that
is managed by an owners corporation--
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Part 6--Amendment of the Local Government Act 1989
(a) does not apply to the part of the land
that is common property; and
(b) must be apportioned based on the
separate lots or occupancies on the
land.
(4) An owners corporation is not liable for any
failure by an owner or any occupier to pay a
cladding rectification charge.
185L Cladding rectification charge
(1) After entering into a cladding rectification
agreement a Council must, in accordance
with the conditions of that agreement,
declare a cladding rectification charge in
respect of the rateable land that is the subject
of the cladding rectification agreement.
(2) Subject to the provisions of the cladding
rectification agreement, the cladding
rectification charge may be varied to provide
for any of the following--
(a) a variation in the works;
(b) a variation in the cost of the works;
(c) an additional penalty interest in the
event of a failure to pay the charge
in accordance with the cladding
rectification agreement.
(3) This Act applies to a cladding rectification
charge as if it were a service charge.
(4) A Council may, by instrument of delegation,
delegate to the Chief Executive Officer the
power to declare and levy a cladding
rectification charge.
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(5) A cladding rectification charge must not
exceed the expected value of the rateable
land after the works are completed, unless
all the existing mortgagees agree.
(6) A cladding rectification charge must
be expressed to be repayable in equal
instalments over a period of no less
than 10 years.
185M Liability of occupier to pay cladding
rectification charge
(1) Despite any provision of any existing
lease or agreement between an owner of a
rateable land which is subject to a cladding
rectification charge and an occupier, the
occupier is not liable to pay any part of
the cladding rectification charge unless
the occupier of the rateable property has
specifically agreed in writing to pay the
cladding rectification charge.
(2) If an occupier has agreed in writing to
pay a cladding rectification charge and
the occupier fails to do so by the due date,
the occupier is liable to pay any penalty
interest accruing as a result of that failure.
(3) An owner must not require an occupier
to assume liability to pay any part of a
cladding rectification charge as a condition
of a residential tenancy agreement and an
occupier is not liable to pay the charge
merely by signing a residential tenancy
agreement that contains such a condition.
185N Liability of Council to recover cladding
rectification charge
(1) Subject to subsections (2) and (3), a Council
must use its best endeavours to recover a
cladding rectification charge in accordance
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Part 6--Amendment of the Local Government Act 1989
with any requirements imposed on it by this
Act and the cladding rectification agreement.
(2) Neither a Council nor an owners corporation
(if applicable) is liable for any failure by an
owner or any occupier to pay a cladding
rectification charge.
(3) A failure by an owner or any occupier under
subsection (2) does not make the Council or
owners corporation (if applicable) liable
to pay the outstanding amount under the
cladding rectification charge to the lending
body.".
87
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Act 2018
No. of 2018
Part 7--Repeal of amending Act
Part 7--Repeal of amending Act
80 Repeal of amending Act
This Act is repealed on 1 September 2021.
Note
The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the Interpretation of Legislation Act 1984).
═════════════
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Building Amendment (Registration of Building Trades and Other Matters)
Act 2018
No. of 2018
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend
the Building Act 1993 to make it an offence for persons to carry out
certain types of building work without being registered or licensed to
do so, to provide for the provisional registration of builders and the
licensing of building employees who carry out certain building work
and related offences, to prohibit the use of certain wall cladding products,
to amend certain disciplinary requirements for building practitioners,
to provide further for the regulation of swimming pools and spas, to
amend the Local Government Act 1989 to provide for agreements
to rectify defective cladding on buildings and charges to fund the
rectification, to make minor and consequential amendments to the
Oaths and Affirmations Act 2018, the Domestic Building Contracts
Act 1995 and the Sale of Land Act 1962 and for other purposes."
1
S. 190(1): See note 5.
By Authority. Government Printer for the State of Victoria.
89
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