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BUILDING AND PLANNING LEGISLATION AMENDMENT (GOVERNANCE AND OTHER MATTERS) BILL 2013

    Building and Planning Legislation
   Amendment (Governance and Other
            Matters) Bill 2013

                        Introduction Print


              EXPLANATORY MEMORANDUM


                                 General
The Building and Planning Legislation Amendment (Governance and
Other Matters) Bill 2013 will amend the Building Act 1993, the Architects
Act 1991 and the Planning and Environment Amendment (General) Act
2013. It is the first stage in a program of planned reform to the building
system that will deliver strong governance and regulation across the entire
building industry. The Building Act 1993 will be amended to establish a
new regulator for the building and plumbing industries--the Victorian
Building Authority (the Authority). The Authority will replace the Building
Commission (BC) and the Plumbing Industry Commission (PIC). It will
integrate the functions of the BC and the PIC to create a more effective and
accountable governance regime. Further reforms in a later Bill will see the
Authority also replace the Architects Registration Board of Victoria (ARBV),
the Building Practitioners Board (BPB) and the Building Appeals Board
(BAB). This Bill amends the Architects Act 1991 to transfer the head of
power to make regulations to the Governor in Council, and to provide for the
ARBV to advise the Minister on the carrying out of its functions and powers
under the Architects Act 1991 and any other matter referred to it by the
Minister. The amendments to the Planning and Environment Amendment
(General) Act 2013 are unrelated to the amendments to the Building Act
1993 and the Architects Act 1991 and provide for an additional circumstance
when a determining referral authority is to be a party to a proceeding for
review before the Victorian Civil and Administrative Tribunal (VCAT) and
also change the information requirements that apply to a recommending
referral authority when it is a party to a review proceeding before VCAT.




571327                               1      BILL LA INTRODUCTION 7/4/2013

 


 

The key reforms in the Bill are to-- Establish the Victorian Building Authority The Bill establishes the Authority as the new integrated regulator and single point of governance for the building and plumbing industries. The Authority will integrate the existing functions of the BC and PIC and establish the framework for the integration of the ARBV, BPB and BAB in a later Bill. Establish a governing body for the Authority The Bill will establish a statutory board as the governing body of the Authority. The board will be constituted by at least five Commissioners--the Chief Commissioner (chairperson), the Deputy Chief Commissioner (deputy chairperson) and at least three other Commissioners. Each Commissioner will be appointed by the Governor in Council on the recommendation of the Minister. Provide for the appointment of a chief executive officer and staff of the Authority The Bill provides for the appointment of the chief executive officer (CEO) of the Authority. The CEO will be responsible for the day to day management of the Authority. The Bill also provides for the appointment and engagement of Registrars and other staff. Establish the Victorian Building Authority Fund The Bill establishes the Victorian Building Authority Fund and contains the financial and accounting provisions concerning the Authority. Add a new member to the Building Advisory Council The Bill adds to the membership of the Building Advisory Council a member nominated by the Building Designers Association of Victoria Inc. Align practitioner appeals for building practitioners with plumbers and architects The Bill substitutes the forum for review of certain decisions of the Building Practitioners Board (BPB) from the Building Appeals Board (BAB) to VCAT. This aligns the approach for practitioner appeals for builders, plumbers and architects. 2

 


 

Align disciplinary powers of the Building Practitioners Board with those for plumbers and architects The Bill will grant the BPB additional powers to strengthen the disciplinary regime for building practitioners. This aligns the disciplinary regimes for building practitioners, plumbers and architects. Strengthen registration requirements for building practitioners and plumbers The Bill will strengthen requirements for applications for the registration of building practitioners and the licensing and registration of plumbers by requiring these applications to be accompanied by a written consent to a police record check. This will improve the information upon which decisions are made to register or license or refuse to register or license building practitioners and plumbers. In addition, the Bill re-enacts those sections of the Building Act 1993 that provide for the building permit levy and the functions of building surveyors that are carried out by the Authority. These re-enactments are the result of the substitution of the new governance Division (Division 2) in Part 12. Clause Notes PART 1--PRELIMINARY Clause 1 sets out the purpose of the Bill, which is to amend the Building Act 1993, the Architects Act 1991 and the Planning and Environment Amendment (General) Act 2013. The Bill amends the Building Act 1993 to-- establish the Victorian Building Authority; and improve generally the regulation of building practitioners and plumbers. The Bill amends the Architects Act 1991 to-- require the Architects Registration Board of Victoria to provide advice to the Minister; and to simplify the process of making regulations. 3

 


 

The Bill amends the Planning and Environment Amendment (General) Act 2013 to-- amend the Planning and Environment Amendment (General) Act 2013 to make further provision in relation to the parties to a proceeding for review under the Planning and Environment Act 1987. Clause 2 provides for the commencement of the Bill once enacted. The Act is to commence on 1 July 2013. PART 2--AMENDMENTS TO BUILDING ACT 1993 Division 1--Amendments to governance provisions Clause 3 inserts new definitions into section 3(1) of the Building Act 1993. The new definitions are-- Authority, which means the Victorian Building Authority; Chief Commissioner, which means the person appointed to the VBA Board as Chief Commissioner; chief executive officer, which means the chief executive officer of the Victorian Building Authority; VBA Board, which means the Victorian Building Authority Board. This clause also substitutes a new definition of Commissioner, which means a Commissioner appointed to the Board of the Victorian Building Authority, including the Chief Commissioner and the Deputy Chief Commissioner. Clause 4 substitutes a new Division 2 of Part 12 of the Building Act 1993, entitled "Victorian Building Authority". This Division provides for the establishment of the Authority, its governing board and the functions and powers and certain administrative procedures of the Authority to improve the effectiveness, transparency and accountability of the Authority. It provides for the appointment and engagement of officers and staff of the Authority and empowers the Authority to delegate its functions. Division 2 also establishes the Victorian Building Authority Fund and contains financial and accounting provisions concerning the Authority. New sections 193 to 205F provide this framework. 4

 


 

The new Division also replaces existing provisions which relate to-- the Authority's supervision of building surveyors (current section 198 of the Building Act 1993) and its own special powers as building surveyor (current section 199), and the payment of the building permit levy (current section 201). New sections 205G to 205R of the Building Act 1993 re-enact these provisions with the amendments necessary to reflect the abolition of the Building Commission and the creation of the Authority. New section 193 establishes the Victorian Building Authority. New section 194 provides that the Authority is a body corporate with perpetual succession and grants the Authority all of the characteristics of a body corporate, including an official seal, the power to sue and be sued, the power to acquire, hold and dispose of real and personal property and the power to do and suffer all things that a body corporate may do and suffer. Subsection (2) provides for the official seal of the Authority to be kept in the custody the Authority directs and only used with the authorisation of the Authority. Subsection (3) directs that persons acting judicially must take notice of the official seal of the Authority and requires such persons to presume that this seal was affixed with the authorisation of the Authority. New section 195 makes the Authority accountable to the Minister responsible for administering the Building Act 1993. This section is the same as the provisions which currently apply to the Building Commission (section 195) and the Plumbing Industry Commission (section 221ZZU). New subsection (1) subjects the Authority to the direction and control of the Minister. Subsection (2) provides that the Minister, when giving a direction under subsection (1), may have regard to any advice of the Building Advisory Council or the Plumbing Advisory Council. 5

 


 

Subsection (3) requires the Authority to give the Minister any information and assistance that the Minister requires and the Authority is able to give. New section 196 re-enacts the matters related to gas safety set out in current section 221ZZVA of the Building Act 1993. This provision requires the Authority to comply with certain written directions given by the Minister administering the Gas Industry Act 1994 in relation to gas safety. New section 197 states the functions of the Authority. The functions of the Authority are those statutory functions formerly carried out by the Building Commission (current section 196) and the Plumbing Industry Commission (current section 221ZZV). The Authority's functions include-- monitoring and enforcement of compliance with the Building Act 1993; administering the scheme for the registration and licensing of plumbers; developing national building and plumbing standards; monitoring the collection of building permit levy; administering the Victorian Building Authority Fund; advising the Minister in relation to its functions. New section 198 gives the Authority general powers to carry out its functions. These powers are equivalent to those granted to the Building Commission in current section 196AA(1) and to the Plumbing Industry Commission in current section 221ZZW(1). The power to receive gifts or donations (contained in current section 196AA(2) for the Building Commission and current section 221ZZW(3) for the Plumbing Industry Commission) is not given to the Authority. New section 199 enables the Authority to delegate its functions to any person. The term function is defined in section 3(1) of the Building Act 1993 to include any power, authority and duty. This section consolidates the powers of delegation contained in current sections 197 and 221ZZW(2) of the Building Act 1993 in favour of the Authority. 6

 


 

The Authority may not delegate the delegation power itself or its powers under the following sections-- new section 205L (re-enacting current section 198(1)) which relates to the Authority's power to refer matters concerning a registered building surveyors, to the Building Practitioners Board; and new section 205M (re-enacting current section 198(2) to (6)) which relate to the Authority's power to issue directions to a building surveyor in respect of carrying out his or her functions, and to make a recommendation to a person who appointed a building surveyor to take certain specified action. New Subdivision 2 of Division 2 of Part 12 of the Building Act 1993 is entitled "VBA Board and staff of the Authority" (comprising new sections 200 to 204). This new Subdivision provides for the establishment of the Victorian Building Authority Board (VBA Board), its constitution, the appointment process for its members and its functions and procedures. This Subdivision also provides for the appointment and engagement of a chief executive officer and the staff of the Authority. New section 200 provides for the VBA Board. Subsection (1) establishes the VBA Board as the governing body of the Authority. Subsection (2) provides for the composition of the board, which is the Chief Commissioner, who is to be the chairperson of the board, a Deputy Chief Commissioner, who is to be the deputy chairperson of the board and at least three other Commissioners. Subsection (3) provides for the functions of the Board-- the Board is responsible for the governance and strategic management of the Authority, and may carry out the functions of the Authority. Subsection (4) provides that all acts and things done with the authority of the VBA Board are taken to have been done by the Authority. New section 201 provides for the appointment of the Commissioners to the VBA Board. Subsection (1) requires that each Commissioner is appointed by the Governor in Council on the recommendation of the Minister. 7

 


 

Subsection (2) requires the Commissioners to have skills, experience and knowledge in specified relevant areas. A Commissioner does not represent, and is not nominated by, any sector of the building or plumbing industries, as is the case with the membership of some other bodies established under the Building Act 1993--for example, the Building Advisory Council (section 207), the Building Regulations Advisory Committee (section 210) and the Plumbing Advisory Council (new section 211B). Subsections (3) and (4) provide that the Minister must recommend persons nominated by the Minister responsible for administering the Domestic Building Contracts Act 1995 and the Minister responsible for administering the Victorian Managed Insurance Authority Act 1996. These nominations will ensure the board will include appropriately qualified Commissioners with expertise in consumer and insurance matters. Subsection (5) preserves certain superannuation entitlements of persons appointed as Commissioner. New section 202 applies to the VBA Board certain provisions of Schedule 3 to the Building Act 1993. Part 1 of Schedule 3 contains provisions relating to the appointment of the Commissioners. For example, the term of an appointment cannot exceed 3 years, but a Commissioner may be re-appointed. An appointment can be subject to terms and conditions. A Commissioner's position becomes vacant in some circumstances (for example, if the Commissioner becomes bankrupt or is convicted of certain offences). Acting Commissioners can be appointed. A Commissioner with a direct or indirect pecuniary interest in a matter to be considered by the VBA Board must disclose this interest to the Minister and must not take part in the Board's consideration of the matter. Schedule 3 also applies most provisions of the Public Administration Act 2004 to the Commissioners: provisions applied include those relating to values and employment principles for the public sector and governance principles for public entities. Clauses 9, 10 and 11 of Part 2 of Schedule 3 to the Building Act 1993 provide that decisions of the VBA Board are not invalidated because certain matters have occurred such as a vacancy in its membership and outline what constitutes a quorum and who is to chair meetings. It also provides that the 8

 


 

procedures of the Board are at its discretion (subject to the Building Act 1993 and regulations). New section 203 provides for the chief executive officer of the Authority. Subsection (1) empowers the Authority, with the approval of the Minister, to appoint a person as the chief executive officer. Subsection (2) provides that the chief executive officer has responsibility for the day to day management of the Authority. Subsection (3) provides that the chief executive officer holds office on the terms and conditions determined by the Authority with the approval of the Minister. Subsection (4) prohibits the chief executive officer from engaging in external paid employment, without the Authority's permission. Subsection (5) preserves certain superannuation entitlements of the person appointed as chief executive officer. Subsection (6) limits who may hold the office of chief executive officer of the Authority by excluding a person who is a Commissioner, or a member of the Building Appeals Board, the Building Practitioners Board, the Building Advisory Council, the Building Regulations Advisory Committee or the Plumbing Advisory Council. Subsection (7) empowers the Authority, with the approval of the Minister, to remove the chief executive officer from office. New section 204 empowers the Authority to appoint or engage staff. Subsection (1)(a) enables the Authority to appoint a Registrar of the Victorian Building Authority. Subsection (1)(b) and (c) re-enact, in favour of the Authority, the Building Commission's power to appoint a Registrar of the Building Appeals Board and a Registrar of the Building Practitioners Board under current section 205(1)(a) and (b) of the Building Act 1993. Subsection 1(d) re-enacts, in favour of the Authority, the corresponding general power of the Building Commission (under current section 205(1)(c)) and the Plumbing Industry Commission (under current section 221ZZX(b)) to engage as 9

 


 

many other persons as are required to enable the Authority to carry out its functions. Subsection (2) provides flexibility for the Authority to engage persons as employees, contractors or consultants or to second staff from the public service. Certain superannuation entitlements of persons employed by the Authority are preserved in subsection (3). New Subdivision 3 of Division 2 of Part 12 of the Building Act 1993 is entitled "Victorian Building Authority Fund" and provides for the structure of the fund and for payments into and out of the fund. New section 205 establishes the Victorian Building Authority Fund. This fund will replace the Building Administration Fund established under current section 200 of the Building Act 1993 and the plumbing fund established under current section 221ZZZR. Subsection (1) requires the Authority to establish and administer the Victorian Building Authority Fund. Subsection (2) requires the Victorian Building Authority Fund to be divided into two major accounts, the Building account and the Plumbing account. Subsection (3) creates four subsidiary accounts of the Building account, namely-- building general account; building permit levy account; domestic building account; the domestic building dispute account. With the exception of the domestic building (HIH) indemnity account, which has been wound up, these four sub-accounts reflect those now operating under current section 200(2). The structure of the new Victorian Building Authority Fund created under new section 205 enables the Authority to be financed through mechanisms now existing for the Building Commission and the Plumbing Industry Commission (including through the payment of building permit levies, practitioner registration and licence fees, owner-builder certification fees, 10

 


 

certain appeals, prosecutions, interest income, fines and penalties). New section 205A provides for payments into the Building account of the Victorian Building Authority Fund. Subsection (1) specifies what money must be paid into the Building account. Money to be paid into the Building account includes money received or recovered under the Act by the Minister or the Authority, building permit levy, fees and fines received or recovered by the Building Practitioners Board and income earned from investment. Subsection (1) re-enacts current section 200(6), except that it excludes money that is to be paid into the Plumbing account. Subsection (2) re-enacts current section 200(3) to require amounts of building permit levy payable under new section 205G(1) to be credited to the building permit levy account of the new Building account. Subsection (3) re-enacts current section 200(3A)(a) to require fees and fines recovered by the Building Practitioners Board to be credited to the domestic building account of the new Building account. Current section 200(3A)(b) is not retained because, upon the commencement of the Bill, once enacted, this payment becomes redundant as the Building Appeals Board will no longer have jurisdiction to hear matters relating to practitioner registrations and discipline (this jurisdiction is transferred to the Victorian Civil and Administrative Tribunal under clause 11 of the Bill, which inserts new section 182A). Subsection (4) re-enacts current section 200(3D) to require amounts received on account of the building permit levy payable under new section 205G(2) to be credited to the domestic building dispute account of the new Building account. Subsection (5) re-enacts current section 200(4) to require other amounts paid into the Building account to be credited to the building general account. New section 205B provides for payments out of the Building account. Subsection (1) re-enacts current section 200(7). Payments to be made out of the Building account include amounts required for the Authority to carry out its functions, amounts authorised by the Minister and the costs and expenses of administering or enforcing the Building Act 1993 (including all necessary remuneration). 11

 


 

Subsection (2) provides that subsection (1) does not apply to amounts required to be paid out of the Plumbing account under new section 205D. Subsection (3) provides for the payments that are to be made from the subsidiary accounts of the Building account. New subsection 3(a) re-enacts current section 200(5)(a) in authorising payments from the building general account or the building permit levy account as the Authority considers appropriate. New subsection (3)(b) re-enacts current section 200(5)(b) by providing for payments from the domestic building account. New subsection (3)(b) is to be read in conjunction with new subsection (4) (which re-enacts current section 200(7A)). New subsection (3)(c) re-enacts current section 200(5)(e) in authorising payments from the domestic building dispute account. New subsection (3)(c) is to be read in conjunction with new subsection (5) (which re-enacts current section 200(7E)). New section 205C provides for payments into the Plumbing account of the Victorian Building Authority Fund. The Plumbing account replaces the plumbing fund established under current section 221ZZZR. Paragraph (a) of new section 205C re-enacts current section 221ZZZR(2) in providing for money received or recovered by the Authority under Part 12A of the Building Act 1993 to be paid into the new Plumbing account. Paragraphs (b) and (c) replicate for the Plumbing account the provisions of new section 205A(1)(f) and (g) in providing for payment into the Plumbing account of any income from the investment of the Plumbing account and money appropriated by Parliament for the Plumbing account. New section 205D provides for payments out of the Plumbing account. This section re-enacts and amends current section 221ZZZR(3) by providing for payment out of the Plumbing account of all money required to meet the Authority's costs and expenses in administering and enforcing Part 12A (including remunerating members of the Plumbing Advisory Council) and to refund certain licence and registration and related fees. 12

 


 

New section 205E authorises the Authority to invest any part of the Victorian Building Authority Fund not immediately required for the purposes of the Fund with the approval of the Treasurer. This provision re-enacts equivalent powers to invest under current sections 200(8) and 221ZZZR(4). New section 205F authorises the Authority to engage an agent in administering the Victorian Building Authority Fund. This section re-enacts and amends current section 200(9). New Subdivision 4 of Division 2 of Part 12 is entitled "Building permit levy". This Subdivision re-enacts current section 201 of the Building Act 1993. New section 205G requires the payment of building permit levy. Subsection (1) re-enacts current section 201(1) in requiring the payment of a building permit levy of 0·064 cents in every dollar of the cost of building work for which a building permit is sought. Subsection (2) re-enacts current section 201(1C) in requiring the payment of a further building permit levy of 0·064 cents in the dollar of the cost of building work for which a building permit is sought. Notes to subsections (1) and (2) have been inserted to clarify how payments made under this section are to be accounted for by the Authority, by linking to the relevant provisions relating to the Victorian Building Authority Fund. Subsection (3) re-enacts current section 201(2) in providing that the building permit levy must be paid by the person applying for the building permit before the permit is granted. Subsection (4) re-enacts current section 201(3) in providing that consideration of an application for a building permit may proceed pending payment of the building permit levy. Subsection (5) re-enacts current section 201(1B) in providing that a building permit levy is not payable if the cost of building work for which the building permit is sought is $10 000 or less. In this section and the other building permit levy provisions, the cost of building work includes the cost of labour and materials. New section 205H provides for how the building permit levy is paid in the context of the building permit process. Subsection (1) re-enacts current section 201(4) in providing that an application 13

 


 

for a building permit must include the contract price for the building work or sufficient information to enable the relevant building surveyor to estimate the cost of the building work. Subsection (2) should be read in conjunction with new section 205G(4). Subsection (2) permits the relevant building surveyor to consider the building permit application pending payment of the levy. Subsection (3) re-enacts current section 201(6) in providing that a building permit can be refused if the building permit levy is not paid in time or if the application contains false information or information that is insufficient to enable the relevant building surveyor to estimate the cost of the building work. Subsection (4) re-enacts part of current section 201(4) in clarifying that the information required to be included in an application for a building permit is in addition to other information required for such applications. New section 205I re-enacts current section 201(5) in providing for the relevant building surveyor to estimate the cost of the building work and notify the applicant of the estimate and the levy. New section 205J provides for other things that the relevant building surveyor must do. Subsection (1) re-enacts current section 201(7) in requiring the relevant building surveyor to pay levy amounts to the Authority and to keep records relating to the levy, make the records available for inspection and provide the Authority with periodic returns. Subsections (2) and (3) re-enact current section 201(7A) and (7B) in enabling the Authority to exempt a relevant building surveyor from the requirement to provide periodic returns. New section 205K re-enacts current section 201(8) in authorising the Authority to recover building permit levy money payable to the Victorian Building Authority Fund in a court of competent jurisdiction as a debt due to the Authority. Subsections (9), (10) and (11) of current section 201 are not re-enacted because they are redundant. New Subdivision 5 of Division 2 of Part 12 of the Building Act 1993 is entitled "Specific powers of Authority relating to building surveyors". This Subdivision re-enacts current sections 198 and 199. 14

 


 

New section 205L re-enacts current section 198(1) of the Building Act 1993 in enabling the Authority to refer certain matters concerning a registered building surveyor to the Building Practitioners Board. New section 205M re-enacts and amends current section 198(2) to (6). Subsection (1) provides that the Authority may issue directions to a building surveyor in respect of the carrying out of his or her functions under the Act or regulations and subsection (2) provides that the Authority must not vary a time limit prescribed in the Building Act 1993 or regulations when giving a direction under subsection (1). Subsection (3) permits the Authority to make recommendations to the person who appointed a building surveyor. New subsection (4) requires the Authority to give a building surveyor an opportunity to make a submission on a matter on which the Authority intends to issue a direction or recommendation and new subsection (5) requires the Authority to give a copy of any direction or recommendation made under new section 205M to the building surveyor concerned. New section 205N re-enacts current section 199(1) in providing that the Authority may carry out the functions of a municipal building surveyor in relation to an application for a building permit made to the Authority, a matter referred to the Authority under Part 8 and certain places of public entertainment. This section recognises that the Authority may also carry out functions of a municipal building surveyor under Division 1 of Part 12. New section 205O re-enacts current section 199(2), (3) and (4) in providing for the effect of the Authority carrying out functions of a municipal building surveyor under new section 205N or under Division 1 of Part 12. New section 205P re-enacts current section 199(5) in providing that the Authority is and may carry out the functions of the relevant building surveyor in relation to occupancy permits for certain places of public entertainment. New section 205Q re-enacts current section 199(6) in precluding a building surveyor from carrying out any function in relation to building work or a building or land if the function is being 15

 


 

carried out by the Authority under Division 1 of Part 12 or new sections 205N or 205P. New section 205R re-enacts current section 199(7) in providing that the Minister's guidelines under section 188 apply in relation to the fees for certain applications made to the Authority. Clause 5 changes the membership of the Building Advisory Council (BAC) by amending current section 207(2) to-- replace the Building Commissioner and the Plumbing Industry Commissioner as members of the BAC with the Chief Commissioner of the Authority (or a Commissioner nominated by the Chief Commissioner); and provide that the BAC is to have an additional member nominated by the Building Designers Association of Victoria Inc. Clause 6 inserts a new Division 4A into Part 12 of the Building Act 1993, entitled "Plumbing Advisory Council". This new Division re-enacts Division 9A of Part 12A. For consistency, the name Plumbing Advisory Council is used rather than Plumbing Industry Advisory Council. New section 211A makes clear that the Plumbing Advisory Council (PAC) continues the Plumbing Industry Advisory Council. Relocating this Division to Part 12 ensures that key governance bodies are located together in the Building Act 1993. New section 211B alters the membership of the PAC by replacing the Building Commissioner and the Plumbing Industry Commissioner with the Chief Commissioner of the Authority or another Commissioner nominated by the Chief Commissioner. New section 211C describes the advisory functions of the PAC. Clause 7 inserts new sections 259B and 259C into the Building Act 1993 to replace current sections 196A and 221ZZZS. New section 259B empowers the Authority to provide information to the Director of Consumer Affairs Victoria about a domestic building dispute if the Authority considers the provision of the information will assist in the resolution of the dispute. New section 259C empowers the Authority to disclose information relating to cooling tower systems to the Secretary to the Department of Health. 16

 


 

Division 2--Building practitioner registration and plumber licensing and registration This Division of the Bill makes amendments relating not to governance but to the regulatory schemes for the registration of building practitioners and the licensing and registration of plumbers. It commences the reforms designed to streamline and strengthen the regulatory system. Clause 8 inserts new section 25J into Division 3A of Part 3 of the Building Act 1993, re-enacting section 143(1A). New section 25J provides that a person to whom a decision of the Building Practitioners Board under Division 3A of Part 3 applies may apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of that decision or a failure of the Board to make a decision. The provision is relocated because these appeals are currently made to the Building Appeals Board and current section 143 is located in Part 10 of the Building Act 1993, which is concerned with the jurisdiction of that Board. Clause 9 inserts new section 169A and new paragraph (cb) into current section 169(2) of the Building Act 1993. The new provisions require a person applying to the Building Practitioners Board for registration as a building practitioner to include in the application a signed authorisation for the conduct of a police record check, and empower the Board to arrange for the police record check to be conducted in connection with its consideration of the application. Clause 10 amends current section 179(2) of the Building Act 1993 to broaden the disciplinary measures available to the Building Practitioners Board as a result of an inquiry into the conduct of a registered building practitioner. New paragraph (c) of section 179(2) empowers the Board to require a registered building practitioner to give an undertaking to do a specified thing, including to complete or rectify specified building work, in addition to the existing power to require a building practitioner not to do a specified thing. New paragraph (ca) empowers the Board to fix a period in which a registered building practitioner is to complete a specified course of training. New paragraph (da) empowers the Board to impose a condition or limitation on a building practitioner's registration. 17

 


 

Clause 11 inserts new Division 2A into Part 11 of the Building Act 1993 entitled "Review of decisions". New section 182A re-enacts current section 143(1), (2) and (3) in providing that certain appeals in relation to decisions of the Building Practitioners Board concerning the registration, conduct and ability to practise of building practitioners (and certain failures or refusals to decide) may be made to the Victorian Civil and Administrative Tribunal rather than the Building Appeals Board. Clause 12 amends current section 221T(2) of Part 12A of the Building Act 1993 and inserts new section 221VA. The new provisions require a person applying to the Authority to be a licensed or registered plumber to include in the application a signed authorisation for the conduct of a police record check, and empower the Authority to arrange for a police record check to be conducted in connection with its consideration of the application. PART 3--AMENDMENTS TO ARCHITECTS ACT 1991 Part 3 of the Bill is the first step in the integration of the regulation of architects into the Victorian Building Authority. Further integration will occur after the Authority is established. Clause 13 inserts new subsection (2) in section 46 of the Architects Act 1991 requiring the Architects Registration Board of Victoria to advise the Minster on the carrying out of the Board's functions under the Architects Act 1991 and on any other matter referred to it by the Minister. Clause 14 amends section 69(1) of the Architects Act 1991 to enable the Governor in Council, rather than the Architects Registration Board of Victoria (with the approval of the Governor in Council), to make regulations under the Architects Act 1991. PART 4--TRANSITIONAL AND SAVINGS PROVISIONS AND CONSEQUENTIAL AMENDMENTS Division 1--Transitional and savings provisions Clause 15 inserts new section 272 in the Building Act 1993, which provides that the transitional and savings provisions in new Schedule 7 have effect. 18

 


 

Clause 16 inserts new Schedule 7 into the Building Act 1993 entitled "Transitional and savings provisions relating to the Building and Planning Legislation Amendment (Governance and Other Matters) Act 2013". SCHEDULE 7--TRANSITIONAL AND SAVINGS PROVISIONS RELATING TO THE BUILDING AND PLANNING LEGISLATION AMENDMENT (GOVERNANCE AND OTHER MATTERS) ACT 2013 PART 1--PRELIMINARY Clause 1 provides for the meaning of various terms used in Schedule 7. The terms defined include "commencement day" which means the day on which the Building and Planning Legislation Amendment (Governance and Other Matters) Act 2013 comes into operation (namely, 1 July 2013). PART 2--BUILDING COMMISSION Clause 2 provides for a number of transitional and savings matters to occur on the commencement day. Paragraph (a) of clause 2 provides that the Building Commission is abolished and the Building Commissioner goes out of office. Paragraph (b) provides that the Authority becomes the successor in law of the Building Commission. Paragraph (c) provides that all rights, assets, liabilities and obligations of the Building Commission become rights, assets, liabilities and obligations of the Authority. Paragraph (d) substitutes the Authority for the Building Commission as party in any proceeding, contract, agreement or arrangement. Paragraph (e) provides that the Authority can continue and complete any continuing matter or thing commenced by or against or in relation to the Building Commission. Paragraph (f) provides that any matter or thing done under enactment or subordinate instrument by the Building Commission is to be taken to have been done by the Authority so far as it relates to any period after the commencement day. 19

 


 

Clause 3 provides that on and from the commencement day a reference to the Building Commission in any Act, subordinate instrument, agreement or other document, as far as it relates to any period after the commencement day, is taken to be a reference to the Authority. Clause 4 provides that, on and from the commencement day, the Building Advisory Council is taken to be the same body as before the commencement day, despite its change in membership. Clause 5 provides that, on and from the commencement day, the Building Regulations Advisory Committee is taken to be the same body as it was after the commencement day, despite its change in membership. Clause 6 provides, in subclauses (1) and (2), that persons appointed or employed by the Building Commission, and whose appointments or employment were in force immediately before the commencement day, are taken, on and from the commencement day, to be appointed or engaged by the Victorian Building Authority, on the same terms and conditions, and with the same accrued and accruing entitlements, as applied to those persons immediately before the commencement day. Subclause (3)(a) provides that the service of such a staff member is taken to be continuous. Subclauses (3)(b) and (4) provide that such a staff member can still resign or be dismissed in accordance with his or her terms of appointment or employment, and is not entitled to any payment by reason only of ceasing to be appointed or employed by the Building Commission. Clause 7 continues the immunity provided by section 127 of the Building Act 1993 to the Commissioner of the Building Commission and persons appointed, employed or engaged by the Building Commission, in respect of anything done before the commencement day. Clause 8 provides that, on the commencement day, funds standing to the credit of the Building Administration Fund and its subsidiary accounts are credited to the new Building account and its subsidiary accounts. Clause 9 provides that the new disciplinary measures granted to the Building Practitioners Board by amendments made to section 179 of the Building Act 1993 do not apply to decisions of the Board on an inquiry commenced before the commencement day. 20

 


 

Clause 10 provides that appeals lodged with the Building Appeals Board under current section 143 before the commencement day continue before the Building Appeals Board if, before the commencement day, the Board has accepted a written submission or begun to conduct an oral hearing. Other appeals commenced before the commencement day may, on application by the appellant, be referred by the Building Appeals Board to VCAT. PART 3--PLUMBING INDUSTRY COMMISSION Clause 11 provides that a number of things are to occur on the commencement day. Paragraph (a) provides that the Plumbing Industry Commission is abolished and the Plumbing Industry Commissioner goes out of office. Paragraph (b) provides that the Authority becomes the successor in law of the Plumbing Industry Commission. Paragraph (c) provides that all rights, assets, liabilities and obligations of the Plumbing Industry Commission become rights, assets, liabilities and obligations of the Authority. Paragraph (d) substitutes the Authority for the Plumbing Industry Commission as party in any proceeding, contract, agreement or arrangement commenced or made by or against or in relation to the Plumbing Industry Commission. Paragraph (e) provides that the Authority can continue and complete any continuing matter or thing commenced by or against or in relation to the Plumbing Industry Commission. Paragraph (f) provides that any matter or thing done before the commencement day under enactment or subordinate instrument by the Plumbing Industry Commission is to be taken to have been done by the Authority so far as it relates to any period after the commencement day. Clause 12 provides that, on and from the commencement day, a reference to the Authority will replace references to the Plumbing Industry Commission in any Act, subordinate instrument, agreement or other document as far as it relates to any period after the commencement day. 21

 


 

Clause 13 provides, in subclause (1), that, on and from the commencement day, the Plumbing Advisory Council is taken to be the same body as it was before the commencement day, despite its change in name and membership. Subclause (2) provides that, on and from the commencement day, references to the Plumbing Industry Advisory Council in any Act, subordinate instrument, agreement or other document, as far as it relates to any period after the commencement day, are taken to be references to the Plumbing Advisory Council. Clause 14 makes provision for what is to occur on the commencement day in relation to the current Registrar of the Plumbing Industry Commission. Paragraph (a) provides that the position of Registrar is abolished and the person occupying the position goes out of office (but is taken to be appointed or engaged by the Authority in accordance with clause 16 of Schedule 7). Paragraph (b) empowers the Registrar to continue and complete any matter or thing commenced before the commencement day. Paragraph (c) provides that any matter or thing done by the Registrar before the commencement day is taken, so far as it relates to any period after the commencement day, to have been done by the new Registrar of the Authority. Clause 15 provides that, on and from the commencement day, a reference to the Registrar of the Plumbing Industry Commission in any Act, subordinate instrument, agreement or other document is taken to be a reference to the new Registrar of the Authority. Clause 16 provides, in subclauses (1) and (2), that persons appointed or employed by the Plumbing Industry Commission before the commencement day, and whose appointments or employment were in force immediately before the commencement day, are taken, on and from the commencement day, to be appointed or engaged by the Victorian Building Authority on the same terms and conditions, and with the same accrued and accruing entitlements, as applied to those persons immediately before the commencement day. Subclause (3)(a) provides that the service of such a staff member is taken to be continuous. Subclauses (3)(b) and (4) provide that such a staff member can still resign or be dismissed in accordance with his or her terms of appointment or employment, and is not entitled to any payment by reason only of ceasing to be appointed or employed by the Plumbing Industry Commission. 22

 


 

Clause 17 continues the immunity contained in current section 127 for the Commissioner of the Plumbing Industry Commission and persons appointed or engaged by the Plumbing Industry Commission in respect of anything done before the commencement day. Clause 18 provides that, on the commencement day, funds standing to the credit of the current plumbing fund are credited to the Plumbing account of the new Victorian Building Authority Fund. PART 4--MISCELLANEOUS Clause 19 makes special provision for the appointment of the first chief executive office of the Authority. The first chief executive officer will be appointed by the Minister on terms approved by the Minister after consultation with the Minister for Finance and the Minister for Consumer Affairs. The first chief executive officer has the same functions and the same accountability to the VBA Board as if appointed under new section 203. Clause 20 authorises the Registrar of Titles to make any amendment to the Register under the provisions of the Transfer of Land Act 1958 that are necessary because of this Bill. Division 2--Consequential amendments to Building Act 1993 Clause 17 amends section 3 of the Building Act 1993 by repealing the current definition of Commission and amending the definition of relevant building surveyor to reflect the repeal of current section 199(5) and its replacement by new section 205P. Clause 18 inserts notes at the foot of section 18 of the Building Act 1993 drawing attention to the requirement on persons applying for building permits to pay the building permit levy and to include in permit applications information relating to the calculation of the building permit levy. Clause 19 updates a number of cross references in sections 18A, 24A, 25B, 32A and 217 of the Building Act 1993 to building permit levy provisions. 23

 


 

Clause 20 amends section 127 of the Building Act 1993 so that it grants immunity to the Commissioners and staff of the Authority rather than the Building Commission. Clause 21 repeals section 143 of the Building Act 1993. This section currently directs appeals against decisions of the Building Practitioners Board to the Building Appeals Board. These appeals are now to VCAT (see clauses 8 and 11 of the Bill). Clause 22 amends sections 166, 184 and 210 of the Building Act 1993 relating to the membership of the Building Appeals Board, the Building Practitioners Board and the Building Regulations Advisory Council, replacing references to the Building Commissioner with references to the Chief Commissioner and other Commissioners of the Authority. Clause 23 replaces references to the Building Administration Fund with references to the new Victorian Building Authority Fund (in sections 172 and 261 of the Building Act 1993). Clause 24 amends section 174A(6)(b) of the Building Act 1993 by replacing a reference to the Building Appeals Board (as the review body for certain decisions of the Building Practitioners Registration Board) with a reference to VCAT, which is the new appeal body for those decisions (see new section 182A inserted by clause 11 of the Bill). Clause 25 amends section 227A of the Building Act 1993, which provides for the appointment of performance auditors, by replacing references to the Building Commission and staff with the Authority and its staff. Clause 26 makes a number of amendments to Part 12A of the Building Act 1993. Subclause (1) amends section 221A by removing any reference to Part 12A operating separately from the rest of the Building Act 1993. This amendment reflects the integration of the functions of the Building Commission and the Plumbing Industry Commission by means of the creation of the Victorian Building Authority. 24

 


 

Subclause (2) repeals the definition of Commission in section 221B(1), reflecting the abolition of the Plumbing Industry Commission. Subclause (3) amends section 221ZZY by linking the appointment of plumbing inspectors and compliance auditors to the Authority's staffing provision (new section 204) and replacing references to the Plumbing Industry Commission with references to the Authority. Clause 27 amends sections 221B and 237 of the Building Act 1993 by replacing references to the Registrar of the Plumbing Industry Commission with references to the Registrar of the Authority. Section 221B is a definitions section and section 237 provides for the service of documents. Clause 28 repeals Divisions 9 and 9A of Part 12A of the Building Act 1993. These provisions currently provide for the establishment, constitution, accountability, functions and powers of the Plumbing Industry Commission and the Plumbing Industry Advisory Council. The Plumbing Advisory Council provisions are now located in new Division 4A of Part 12, as inserted by clause 6 of the Bill. Clause 29 repeals section 221ZZZR of the Building Act 1993 which currently establishes and makes provision in relation to the plumbing fund, which is being replaced by the Plumbing account of the Victorian Building Authority Fund. Clause 30 repeals section 221ZZZS of the Building Act 1993. This power of the Plumbing Industry Commission to disclose cooling tower information to the Secretary to the Department of Health is now a power of the Authority under new section 259C. Clause 31 amends section 228(1) of the Building Act 1993 so that the Authority, rather than the Building Commission or the Plumbing Industry Commission, may be an authorised person under the Building Act 1993. This clause also makes statute law revision amendments to section 228(1). Clause 32 amends sections 241 and 242 of the Building Act 1993 in relation to who may prosecute or bring other proceedings. Subclauses (1), (2) and (3) replace references to the abolished Commissions in section 241 with references to the Authority. Subclause (4) replaces sections 242(2) and 242(3) with a single, 25

 


 

simpler provision that recognises the integration of the functions of the abolished Commissions into the Authority. New section 242(2) provides that all penalties recovered under that section must be paid into the Victorian Building Authority Fund. Clause 33 amends section 259A of the Building Act 1993, extending the prohibition of the improper use of information to members and former members of the Authority and staff and former staff of the Authority. The Plumbing Advisory Council will be referred to by its new name. Clause 34 provides for further consequential amendments to the Building Act 1993 in accordance with Schedule 1 to the Bill. Schedule 1 to the Bill replaces references to either of the abolished Commissions with references to the Authority. Division 3--Consequential amendments to other Acts Clause 35 provides for consequential amendments to other Acts. Schedule 2 to the Bill amends various Acts by replacing references to either of the abolished Commissions (or their Commissioners) and the Building Administration Fund with references to the Authority (or its Commissioners) and the new Victorian Building Authority Fund. These amendments include the repeal of section 46(2)(b) of the House Contracts Guarantee Act 1987, which refers to the domestic building (HIH) indemnity account of the Building Administration Fund which is not being carried over to the new Victorian Building Authority Fund. PART 5--AMENDMENT TO PLANNING AND ENVIRONMENT AMENDMENT (GENERAL) ACT 2013 Clause 36 amends the Planning and Environment Amendment (General) Act 2013 and is not related to the reforms of the building regulatory system in this Bill. This clause substitutes section 33 in the Planning and Environment Amendment (General) Act 2013, which amends section 83 of the Planning and Environment Act 1987. New section 33 provides for an additional circumstance when a determining referral authority is to be a party to a proceeding for review before VCAT. New section 33 also amends the 26

 


 

information requirements that apply to a recommending referral authority when it is a party to a review proceeding before VCAT. Existing section 33 is one of several sections in the Planning and Environment Amendment (General) Act 2013 that amend the Planning and Environment Act 1987 to provide for two kinds of referral authority: a determining referral authority and a recommending referral authority. It was intended that a determining referral authority would be a party to a proceeding for review of a refusal to grant a planning permit in specified circumstances and of a permit condition if that condition was required by the authority. However existing section 33 provides that a determining referral authority is only a party to a proceeding relating to a refusal. Existing section 33 also requires a recommending referral authority to lodge a statement of grounds on which it intends to rely when it is a party to a review proceeding, which was not intended. New section 33 makes changes so that a determining referral authority will also be a party to a review proceeding of a permit condition that the authority has required, and it removes the requirement for a recommending referral authority to lodge a statement of grounds. PART 6--REPEAL OF AMENDING ACT Clause 37 provides for the automatic repeal of this amending Act on 1 July 2014. The repeal of this Act does not affect in any way the continuing operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984). 27

 


 

 


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