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Building Amendment Bill 2010
Introduction Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of this Bill. The main purposes of the
Bill are to amend the Building Act 1993 to increase the
maximum penalties for certain offences and provide for further
offences that may be subject to plumbing infringement notices
and to allow for regulations to prescribe registration or licensing
in a class or classes of plumbing work or specialised plumbing
work as a perquisite for registration or licensing in a class or
classes of specialised plumbing work and to provide that the
Victorian Managed Insurance Authority is a designated insurer in
relation to domestic building work. The Bill also makes a statute
law revision amendment to the House Contracts Guarantee
(HIH) Act 2001.
Clause 2 sets out when the provisions of the Bill come into operation.
Sections 1, 2 and 54 come into operation on the day after the Bill
receives Royal Assent. All other provisions of the Bill come into
operation on a day or days to be proclaimed, but must commence
by 1 March 2011.
PART 2--AMENDMENTS TO THE BUILDING ACT 1993
Clause 3 amends section 16(1) of the Building Act 1993 to increase the
maximum penalty for where a person carries out building work
without a building permit that has been issued and is in force, or
not in accordance with the Building Act 1993, the Building
Regulations 2006 or the permit. The penalty is increased from
100 penalty units for a natural person and 500 penalty units for a
body corporate to 500 penalty units for a natural person and
2500 penalty units for a body corporate.
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Clause 4 amends section 25A(1) and (2) of the Building Act 1993 to
increase the maximum penalties for failing to notify the relevant
building surveyor of changes in the engagement of a registered
building practitioner or insured architect from 10 penalty units to
50 penalty units.
Clause 5 amends section 25B of the Building Act 1993 to increase the
maximum penalty for breaching restrictions on an owner of a
building or land from carrying out domestic building work if the
cost of the work is estimated to be more than $12 000 from
50 penalty units to 120 penalty units.
Clause 6 amends section 30(1) and (1A) of the Building Act 1993 to
increase the maximum penalties for a failure by a relevant
building surveyor to give the relevant council a copy of the
permit issued, including any plans or documentation lodged with
the application (section 30(1)) and any other prescribed
documentation relating to the application for the building permit
(section 30(1A)). The maximum penalties will be increased from
10 penalty units to 50 penalty units.
Clause 7 amends section 33(1) and (2) of the Building Act 1993 to
increase the maximum penalties for where a person who is in
charge of the carrying out of building work or who is carrying
out building work fails to notify the relevant building surveyor
after completion of building work at each mandatory notification
stage of that work (section 33(1)) or for failing to stop building
work on completion of a mandatory notification stage if directed
to do so by the relevant building surveyor (section 33(2)).
The maximum penalties will be increased from 10 penalty units
to 120 penalty units.
Clause 8 amends section 39(1) and (2) of the Building Act 1993 to
increase the maximum penalties for where a person occupies a
building (section 39(1)) or part of a building (section 39(2))
without an occupancy permit if an occupancy permit has been
issued for the building or that part of the building. The maximum
penalties will be increased from 100 penalty units for a natural
person and 500 penalty units for a body corporate to 120 penalty
units for a natural person and 600 penalty units for a body
corporate.
Clause 9 amends section 40(1) of the Building Act 1993 to increase the
maximum penalty for a person occupying a building in
contravention of the occupancy permit from 100 penalty units for
a natural person and 500 units for a body corporate to
120 penalty units for a natural person and 600 penalty units for a
body corporate.
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Clause 10 amends section 49 of the Building Act 1993 to increase the
maximum penalty for where a person conducts public
entertainment at a place of public entertainment without an
occupancy permit which permits its use for the entertainment.
The penalty is increased from 100 penalty units for a natural
person and 500 penalty units for a body corporate to 240 penalty
units for a natural person and 1500 penalty units for a body
corporate.
Clause 11 amends section 50 of the Building Act 1993 to increase the
maximum penalty for where an owner or occupier for fee or
reward permits a place of public entertainment to be used for the
purpose of providing public entertainment without an occupancy
permit. The penalty is increased from 100 penalty units for a
natural person and 500 penalty units for a body corporate to
240 penalty units for a natural person and 1500 penalty units for
a body corporate.
Clause 12 amends section 51 of the Building Act 1993 to increase the
maximum penalty for where an owner or occupier allows a place
of public entertainment (other than a prescribed temporary
structure) to be used for the purpose of providing public
entertainment in contravention of the occupancy permit.
The penalty is increased from 100 penalty units for a natural
person and 500 penalty units for a body corporate to 240 penalty
units for a natural person and 1500 penalty units for a body
corporate.
Clause 13 amends section 52 of the Building Act 1993 to increase the
maximum penalty for where an owner, occupier, lessee or a hirer
of a prescribed temporary structure permits the structure to be
used as a place of public entertainment in contravention of the
occupancy permit. The penalty is increased from 100 penalty
units for a natural person and 500 penalty units for a body
corporate to 240 penalty units for a natural person and
1500 penalty units for a body corporate.
Clause 14 amends section 61(1) and (2) of the Building Act 1993 to
increase the maximum penalties, for where an owner of a
building (section 61(1)) or a prescribed temporary structure
(section 61(2)) does not notify others of the occupancy permit,
from 10 penalty units to 120 penalty units.
Clause 15 amends sections 73(1) and (1A) of the Building Act 1993 to
increase the maximum penalties, for failure by the relevant
building surveyor to give copies of permits and documents
(section 73(1)) and any other prescribed documentation
(section 73(1A)) to the relevant council, from 10 penalty units to
50 penalty units.
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Clause 16 amends section 78(2) of the Building Act 1993 to increase the
maximum penalty for a person who appoints a private building
surveyor to complete any functions of a private building surveyor
under section 76 when not permitted to do so. The penalty is
increased from 100 penalty units for a natural person and
500 penalty units for a body corporate to 240 penalty units for a
natural person and 1500 penalty units for a body corporate.
Clause 17 amends section 79(1) and (2A) of the Building Act 1993 to
increase the maximum penalties for a private building surveyor
accepting an appointment to carry out any functions of a private
building surveyor under section 76 of the Building Act 1993
when not permitted from 100 penalty units to 500 penalty units.
Clause 18 amends section 82(2) of the Building Act 1993 to increase the
maximum penalty for failure by a private building surveyor
whose appointment was terminated, the private or municipal
building surveyor to whom the functions are to be transferred and
the person who appointed the private building surveyor whose
appointment was terminated to comply with the direction of the
Commission. The penalty is increased from 100 penalty units for
a natural person and 500 penalty units for a body corporate to
500 penalty units for a natural person and 2500 penalty units for
a body corporate.
Clause 19 amends section 88(1) and (2) of the Building Act 1993 to
increase the maximum penalties for where an owner, who is
required to carry out protection work in respect of an adjoining
owner, carries out building work before certain requirements are
met (section 88(1)) or fails to carry out protection work
(section 88(2)). The penalties are increased from 100 penalty
units for a natural person and 500 penalty units for a body
corporate to 500 penalty units for a natural person and
2500 penalty units for a body corporate.
Clause 20 amends section 89(3) of the Building Act 1993 to increase the
maximum penalty for where the owner fails to carry out
emergency protection work from 100 penalty units for a natural
person and 500 penalty units for a body corporate to 500 penalty
units for a natural person and 2500 penalty units for a body
corporate.
Clause 21 amends section 93(1), (3), (4) and (5) of the Building Act 1993.
· Subclause (1) amends section 93(1) and (4) to increase
the maximum penalties for where a person fails to
arrange insurance (section 93(1)) or renew or extend
insurance (section 93(4)) for protection work from
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100 penalty units for a natural person and 500 penalty
units for a body corporate to 500 penalty units for a
natural person and 2500 penalty units for a body
corporate.
· Subclause (2) amends section 93(3) and (5) to increase
the maximum penalties for where a person fails to lodge
with an adjoining owner a copy of the contract of
insurance before the commencement of the protection
work (section 93(3)) or fails to lodge with adjoining
owner a copy of a document evidencing the renewal or
extension of the contract of insurance as soon as
practical after the renewal or extension (section 93(5)).
The maximum penalties will be increased from
10 penalty units for a natural person and 50 penalty
units for a body corporate to 50 penalty units for a
natural person and 120 penalty units for a body
corporate.
Clause 22 amends section 95(2) of the Building Act 1993 to increase the
maximum penalty, for where an owner fails to give notice to an
adjoining owner prior to entry to an adjoining property, from
10 penalty units to 50 penalty units for a natural person and
120 penalty units for a body corporate.
Clause 23 amends section 101(1) and (2) of the Building Act 1993 to
increase the maximum penalties for where an owner fails to give
documents relating to protection work to the adjoining owner or
relevant building surveyor (section 101(l)) or where the relevant
building surveyor fails to give documents relating to the
protection work to the relevant council (section 101(2)).
The penalties are increased from 10 penalty units to 50 penalty
units.
Clause 24 amends section 118(1) and (2) of the Building Act 1993 to
increase the maximum penalty for where a person contravenes an
emergency order or building order from 100 penalty units for a
natural person and 500 penalty units for a body corporate to
500 penalty units for a natural person and 2500 penalty units for
a body corporate.
Clause 25 amends section 120(1) of the Building Act 1993 to increase the
maximum penalty, for where an owner fails to notify the relevant
building surveyor of the completion of work required by an
emergency order or building order, from 10 penalty units to
50 penalty units.
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Clause 26 amends section 125(1) of the Building Act 1993 to increase the
maximum penalty, for where a relevant building surveyor fails to
give a copy of an emergency order, building notice or building
order to the relevant council within 7 days after the making of the
order or notice, from 10 penalty units to 50 penalty units.
Clause 27 amends section 136(1) and (2) of the Building Act 1993 to
increase the maximum penalties for a building practitioner
carrying out work as a building practitioner without the required
insurance (section 136(1)) or a builder carrying out domestic
building work under a major domestic building contract
(section 136(2)) without the required insurance. The penalties
are increased from 100 penalty units for a natural person and
500 penalty units for a body corporate to 500 penalty units for a
natural person and 2500 penalty units for a body corporate.
Clause 28 amends section 137 of the Building Act 1993 to increase the
maximum penalty, for where a building practitioner claims to be
insured when not insured, from 100 penalty units for a natural
person and 500 penalty units for a body corporate to 500 penalty
units for a natural person and 2500 penalty units for a body
corporate.
Clause 29 amends section 137AA of the Building Act 1993 to provide that
the Victorian Managed Insurance Authority is a designated
insurer in relation to domestic building work.
Clause 30 amends section 137E of the Building Act 1993 to increase the
maximum penalty for where a person has entered into a contract
for the sale of land when not permitted from 100 penalty units to
120 penalty units.
Clause 31 amends the offences under section 176 of the Building Act 1993.
· Subclause (1) substitutes section 176(1) of the Building
Act 1993 by splitting the provision into sections 176(1)
and (1A). Proposed new section 176(1) sets out the
titles that a person who is not registered in the
appropriate category or class must not take or use.
The current penalty under section 176(1) is 50 penalty
units. The maximum penalty proposed under new
section 176(1) is 120 penalty units. Proposed new
section 176(1A) prohibits a person who is not registered
in the appropriate category from doing certain things.
As the provisions of proposed 176(1A) are currently
contained in section 176(1) the maximum penalty is
currently 50 penalty units. The maximum penalty
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proposed under new section 176(1A) is 500 penalty
units.
· Subclause (2) amends section 176(2), (2AA) and (2A)
of the Building Act 1993 to increase the maximum
penalties. The current penalties under section 176(2)
and (2A) are 100 penalty units. The current penalty
under section 176(2AA) is 50 penalty units.
The maximum penalties will be increased to 500 penalty
units.
· Subclause (3) inserts a reference to new subsection (1A)
into section 176(3), (4) and (5) of the Building
Act 1993.
· Subclause (4) amends section 176(7)(c) of the Building
Act 1993 to insert a reference to new subsection (1A).
Clause 32 amends section 221D(1) of the Building Act 1993 to increase the
maximum penalty, for where a person carries out plumbing work
of a particular class or type when not licensed or registered, from
50 penalty units to 500 penalty units.
Clause 33 amends section 221E(1) of the Building Act 1993 to increase the
maximum penalty, for where a person carries out a particular
class or type of plumbing work or specialised plumbing work that
requires a compliance certificate when they are not licensed,
from 50 penalty units to 500 penalty units.
Clause 34 amends section 221F(1) of the Building Act 1993 to increase the
maximum penalty, for where a person carries out any class or
type of specialised plumbing work when not licensed or
registered, from 120 penalty units to 500 penalty units.
Clause 35 amends section 221FA of the Building Act 1993 to increase the
maximum penalty where a licensed or registered plumber carries
out any plumbing work or specialised plumbing work that does
not comply with Part 12A of the Building Act 1993 or the
Plumbing Regulations 2008 from 50 penalty units to 500 penalty
units.
Clause 36 amends section 221I(1), (2) and (3) of the Building Act 1993 to
increase the maximum penalties for where a person uses the title
of "plumber", "plumbing practitioner", "licensed plumber",
"licensed plumbing practitioner", "registered plumber" or
"registered plumbing practitioner" when not licensed or
registered to carry out at least one class or type of plumbing
work. The penalties are increased from 50 penalty units to
120 penalty units.
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Clause 37 amends section 221J(1), (2) and (3) of the Building Act 1993 to
increase the maximum penalties, for where a person uses the title
of "drainer", "licensed drainer" or "registered drainer" when not
licensed or registered to do so, from 50 penalty units to
120 penalty units.
Clause 38 amends section 221K(1), (2) and (3) of the Building Act 1993 to
increase the maximum penalties, for where a person uses the title
of "gasfitter", "licensed gasfitter" or "registered gasfitter" when
not licensed or registered to do so, from 50 penalty units to
120 penalty units.
Clause 39 substitutes section 221N(1)(a) of the Building Act 1993.
This amendment will enable the regulations or a declaration by
the Minister under section 221ZZZU of the Building Act 1993 to
prescribe or declare the class or classes of plumbing work or
specialised plumbing work that a person must be licensed in prior
to being licensed to carry out a particular class of specialised
plumbing work. Currently only the class or classes of plumbing
work and not specialised plumbing work may be prescribed.
Currently a declaration can only specify the qualifications,
knowledge or experience that a person must have to be licensed
to undertake the specialised work included in the declaration.
Clause 40 substitutes section 221OA(1)(a) of the Building Act 1993.
This amendment will enable the regulations or a declaration by
the Minister under section 221ZZZU of the Building Act 1993 to
prescribe or declare the class or classes of plumbing work or
specialised plumbing work that a person must registered in to be
registered to carry out a particular class of specialised plumbing
work. Currently only a class of plumbing work can be prescribed
as a prerequisite to registration in a specialised class.
Clause 41 amends section 221ZH(2) and (2B) of the Building Act 1993 to
increase the maximum penalties for where a licensed plumber
fails to provide a compliance certificate to the person for whom
the work was carried out and to notify the Commission that the
compliance certificate has been given. The current penalties
under section 221ZH(2) and (2B) are 10 penalty units for a first
offence, 15 penalty units for a second offence and 25 penalty
units for a third or subsequent offence. The Bill proposes to
remove the graduated penalties and set penalties of 60 penalty
units.
Clause 42 amends section 221ZI(1) and (2) of the Building Act 1993 to
increase the maximum penalties for where a licensed plumber
signs an incomplete or incorrect compliance certificate from
10 penalty units to 120 penalty units.
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Clause 43 amends section 221ZO(2) of the Building Act 1993 to increase
the maximum penalty for where a licensed plumber fails to give a
plan of a sanitary drain to a water authority after any
construction, installation or alteration of a sanitary drain or to
indicate on the compliance certificate that the plan has been
given to the authority. The penalty is increased from 20 penalty
units to 120 penalty units.
Clause 44 amends section 221ZR of the Building Act 1993 to increase the
maximum penalty for where a licensed plumber carries out
plumbing work without being covered by the required insurance
from 100 penalty units to 500 penalty units.
Clause 45 amends section 221ZS of the Building Act 1993 to increase the
maximum penalty, for where a person who is not covered by the
required insurance carries out or offers to carry out plumbing
work and claims to be insured when uninsured, from 100 penalty
units to 500 penalty units.
Clause 46 amends section 221ZZG(1) and (2) of the Building Act 1993 to
increase the maximum penalties for where an owner or occupier
of any land or building fails to comply with any emergency
plumbing order (section 221ZZG(1)) or a person who occupies or
uses any land or building in contravention of an emergency
plumbing order (section 221ZZG(2)). The penalties are
increased from 120 penalty units for a natural person and
360 penalty units for a body corporate to 240 penalty units for a
natural person and 1500 penalty units for a body corporate.
Clause 47 substitutes section 221ZZZU(3) of the Building Act 1993 which
sets out what the Minister must specify in making a declaration
specifying work to be specialised plumbing work.
This amendment makes the declaration consistent with the
proposed amendments to sections 221N and 221OA of the
Building Act 1993 (see clauses 39 and 40) to enable regulations
to prescribe the class or classes of plumbing work or specialised
plumbing that a person must be registered or licensed in to be
registered or licensed to carry out a particular class of specialised
plumbing work.
Clause 48 inserts new section 221ZZZV(1)(ea) of the Building Act 1993.
This will provide a specific power under that Act to make
regulations to prescribe the class or classes of plumbing work or
specialised plumbing work required to be eligible to be licensed
or registered in a particular class of specialised plumbing work.
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Clause 49 amends section 245(1) and (2) of the Building Act 1993.
· Subclause (1) amends section 245(1) to increase the
maximum penalty for where a registered building
practitioner asks for, receives or obtains, or offers or
agrees to ask for or receive or obtain, any property or
benefit of any kind to influence or affect the way that he
or she undertakes any function under the Building Act
1993 or regulations or that he or she will not carry out
those functions. The maximum penalty will be
increased from 100 penalty units to 500 penalty units.
· Subclause (2) amends section 245(2) of the Building
Act 1993 to increase the maximum penalty for where a
person influences or affects the way a registered
building practitioner carries out or will not carry out his
or her functions by giving or removing any property or
benefit. The penalty will be increased from 100 penalty
units for a natural person and 500 penalty units for a
body corporate to 500 penalty units for a natural person
and 2500 penalty units for a body corporate.
Clause 50 amends section 246 of the Building Act 1993 to increase the
maximum penalty, for where a person knowingly makes a false
or misleading statement or provides false or misleading
information to a person or body carrying out any function under
the Building Act 1993 or the Building Regulations 2006, from
10 penalty units to 120 penalty units.
Clause 51 amends section 248(1) of the Building Act 1993 to increase the
maximum penalty, for where a person acts on behalf of an owner
of any building or land for the purpose of making an application,
appeal or referral under the Building Act 1993 or the Building
Regulations 2006 without the written authority of the owner,
from 5 penalty units to 120 penalty units.
Clause 52 amends section 250(4) of the Building Act 1993 to increase the
maximum penalty for where an occupier of the building or land
does not comply with an order of the Magistrates' Court requiring
the occupier of the building or land to permit the owner and any
other person to enter the building or land to carry out any work or
do anything that has been required under the Building Act 1993
or the Building Regulations 2006. The maximum penalty will be
increased from 10 penalty units to 120 penalty units.
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Clause 53 amends Schedule 5 of the Building Act 1993 to substitute a
reference to "section 221ZH" with a reference to "section
221ZH(2)" and to insert section 221ZI(1) as a further offence that
is subject to an infringement notice. The infringement penalty
for section 221ZI(1) will be set at 3 penalty units.
PART 3--AMENDMENT AND REPEAL OF ACTS
Clause 54 amends section 14(2) of the House Contracts Guarantee (HIH)
Act 2001 to substitute the reference in section 201(1B) of the
Building Act 1993 (which section 14(2) amends) to "or (1A)"
with ", (1A)". This is a statue law revision amendment.
Since section 201(1B) was inserted by section 13 of the House
Contracts Guarantee (HIH) Act 2001, section 201(1B) has
been amended by section 14(1) of the Domestic Building
Contracts (Conciliation and Dispute Resolution) Act 2002,
and this statute law revision is necessary in order for the
amendment to be made by section 14(2) to work.
Clause 55 provides for the automatic repeal of this amending Act on
1 March 2012. The repeal of this Act does not affect the
continuing operation of the amendments made by this Act
(see section 15(1) of the Interpretation of Legislation
Act 1984).
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