Victorian Current Acts Victorian Current ActsSchedule 3—Membership and procedure of boards
Part 1—Membership
Parts 10, 11 and 12
1 Term of Appointment
(1) Subject to this clause, a member of a Board holds office for a period, not exceeding 3 years, specified in the instrument of his or her appointment.
(2) A member of a Board is eligible for re‑appointment.
(3) The instrument of appointment of a member of a Board may specify terms and conditions of appointment not inconsistent with this Act or the regulations.
(4) A member of a Board appointed by the Minister can be removed from office by the Minister.
Sch. 3 cl. 2 amended by No. 3/2020 s. 39.
2 Remuneration and allowances
A member of a Board (including a chairperson or deputy chairperson) is entitled to receive—
(a) remuneration; and
(b) travelling or other allowances—
from time to time fixed by the Minister in respect of that member.
3 Vacancies
(1) A member of a Board may resign from membership by letter signed by the member and delivered to the Minister.
(2) The office of a member of a Board becomes vacant if the member—
(a) becomes bankrupt [10] ; or
(b) is convicted in Victoria of an offence punishable on first conviction with imprisonment for a term of 12 months or more or is elsewhere convicted of an offence which, if committed in Victoria, would be so punishable; or
(c) ceases to hold a position or qualification which made the member eligible for appointment as a member.
Sch. 3 cl. 4 amended by No. 46/1998 s. 7(Sch. 1), substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 21.4), 80/2006 s. 26(Sch. item 6).
4 Application of Public Administration Act 2004
The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a Board in respect of the office of member.
5 Acting members
(1) If a member of a Board is unable to perform the duties of his or her office, the Minister may appoint a person to act in the place of the member during that period of inability.
(2) An acting appointment is to be for any term and on any conditions determined by the Minister.
(3) The Minister may at any time terminate an acting appointment.
(4) An acting member of a Board has all the functions of the member for whom he or she is acting.
(5) An acting member of a Board is entitled to receive any remuneration or travelling or other allowances fixed from time to time by the Minister in respect of that acting member.
(6) The provisions of this Schedule (except clause 2) applying to members of a Board also apply to acting members.
Sch. 3 cl. 5A inserted by No. 43/2024 s. 43.
5A Deputy chairperson may perform the functions of the chairperson
Despite clause 5, if the chairperson of the Building Appeals Board is absent or unable to act as chairperson, the deputy chairperson of the Building Appeals Board must carry out all the duties and may exercise all the powers of the chairperson while the chairperson is absent or unable to act as chairperson.
6 Pecuniary interests
(1) If a member of a Board has a direct or an indirect pecuniary interest in a matter which is about to be or is being considered by the Board, the member must as soon as possible after the relevant facts come to his or her knowledge disclose the nature of the interests—
(a) to the Minister, in the case of the chairperson; or
(b) to the chairperson, in the case of any other member.
(2) A member who has disclosed a pecuniary interest in a matter under subclause (1) must not be present while the Board is considering or deciding the matter and must not take part or further part in that consideration or decision.
(3) An act or decision of a Board is not invalid merely because a member contravenes subclause (1) or (2).
(4) Subclause (3) does not prevent a member of a Board being removed from office because he or she has contravened subclause (1) or (2).
(5) For the purposes of this clause, a member of a Board must not be taken to have a pecuniary interest in a matter merely because the member is engaged in the building industry or in any matter connected with that industry.
(6) Without limiting what is a pecuniary interest in a matter for the purposes of this clause, a person must be taken to have a pecuniary interest in a matter relating to a building or building work if the person—
(a) is or was involved in designing the building; or
(b) has assisted in preparing or making an application for a building permit or occupancy permit for the building or work; or
(c) is the relevant building surveyor in respect of an application for a permit for that building or building work.
7 Membership of Board not office or place of profit
A member of a Board must not, in respect of the office of member, be taken to hold an office or place of profit under the Crown which would—
(a) prevent the member sitting or voting as a member of the Legislative Council or Legislative Assembly; or
(b) make void the member's election to the Legislative Council or Legislative Assembly; or
(c) prevent the member continuing to be a member of the Legislative Council or Legislative Assembly; or
(d) subject the member to liability to a penalty under the Constitution Act 1975 .
Part 2—General procedure
8 Building Appeals Board may sit in panels
(1) For the purposes of performing any of its functions, the Building Appeals Board may be constituted by one or more panels of its members.
(2) The chairperson of the Building Appeals Board may determine which and how many of its members are to constitute a panel and what proceedings or classes of proceedings are to be allocated to each panel.
(3) If a panel of two or more members includes the chairperson of the Building Appeals Board, he or she is the chairperson of the panel.
(4) If a panel of two or more members includes the deputy chairperson but not the chairperson of the Building Appeals Board, the deputy chairperson is the chairperson of the panel.
(5) If a panel of two or more members does not include the chairperson or deputy chairperson of the Building Appeals Board, the members of the panel may elect the chairperson of the panel.
(6) If, after a proceeding has commenced before a panel of two or more members, a member of the panel becomes unavailable—
(a) if the parties to the proceeding agree, the proceeding may be continued and completed before the remaining members of the panel; and
(b) if the member who is unavailable is the chairperson of the panel another chairperson of the panel must be chosen in accordance with this clause.
(7) If the parties do not agree to continue a proceeding under subclause (6) the chairperson of the Building Appeals Board must arrange for the matter to be reconsidered by another panel, and that other panel may have regard to the earlier proceedings.
(8) The chairperson of the Building Appeals Board must arrange for records to be kept of the proceedings and decisions of each panel of the Board.
(9) Except where this Schedule otherwise expressly provides, a provision of this Part or Part 3 applying to a Board applies to a panel.
9 Decisions not affected by certain matters
An act or decision of a Board is not invalid only because—
(a) of a defect or irregularity in the appointment of a member or acting member; or
(b) of a vacancy in its membership; or
(c) the occasion for the appointment of an acting member has ceased to exist.
10 Meetings
(1) Subclauses (2), (3) and (5) do not apply to the Building Appeals Board when constituted by a panel.
(2) At a meeting of a Board a quorum is half the number of the members currently holding office and, if this would not be a whole number, the next highest whole number.
(3) The functions of a Board may be performed at a meeting at which there is a quorum.
(4) At a meeting a decision of a Board is the decision of the majority of the members present and voting at the meeting and if voting is equal, the person presiding at the meeting has a casting vote as well as a deliberative vote.
(5) The person who is to preside at a meeting of a Board is—
(a) the chairperson, if present; or
(b) the deputy chairperson (if any), if the chairperson is not present; or
(c) a person elected by the members present, if the chairperson is not present and either there is no deputy chairperson or the deputy chairperson is not present.
(6) Subject to this Act and the regulations, the procedure of a Board is in its discretion.
Sch. 3 cl. 10(7) inserted by No. 96/2004 s. 22.
(7) If a member of a Board holds 2 or more positions on the Board ex officio—
(a) he or she is only entitled to exercise a single deliberative vote at meetings of the Board, regardless of how many of those positions he or she holds on the Board; and
(b) for the purposes of determining the total number of members of the Board currently holding office for the purposes of determining whether a quorum of the members is present, all the ex officio positions held by the member are to be counted as one member.
11 Authentication of documents
(1) A document required or authorised to be prepared by a Board must be taken to be authenticated by the Board if—
(a) in the case of a document of a panel of the Building Appeals Board, it is signed by the Registrar of the Building Appeals Board and either the chairperson of the panel or the chairperson of the Building Appeals Board; or
(b) in any other case, it is signed by the chairperson or deputy chairperson of the Board and the Registrar of the Board or another person employed for the purposes of this Act and designated by the Board for that purpose.
(2) The production of a document purporting to be a copy of a record of an act or decision of a Board and purporting to be signed by the Registrar is evidence and, in the absence of evidence to the contrary, is proof that a decision in those terms was duly made by the Board or that the stated act was duly done by the Board.
Part 3—Proceedings before the Building Appeals Board
12 Additional powers of Board
This Part is in addition to and does not take away from any other provision of this Act.
13 How to commence a proceeding
(1) A person may commence a proceeding before the Building Appeals Board by serving on the Board an application, a notice of appeal or a notice of referral of a matter to the Board, as appropriate.
(2) A document commencing a proceeding—
(a) must specify—
(i) the nature of the proceeding; and
(ii) the grounds for commencing the proceeding; and
(iii) the relief sought; and
(b) must be in accordance with the regulations (if any).
(3) The person who serves a document commencing a proceeding must without delay serve a copy of that document on—
(a) the decision-maker, if the proceeding is an appeal; and
(b) in the case of a matter referred to the Building Appeals Board, any other person with a right to refer that matter to the Board; and
Sch. 3 cl. 13(3)(c) substituted by Nos 21/2017 s. 95(16), 7/2017 s. 296(4).
(c) in the case of an application for a modification of a provision of the building regulations that relates to a building or land on the Heritage Register under the Heritage Act 2017 , the Heritage Council; and
(d) any other party concerned.
14 Parties to a proceeding
A person who, under clause 13, is entitled to be served with a copy of a document commencing a proceeding before the Building Appeals Board is a party to that proceeding.
15 Conducting a proceeding
(1) The Building Appeals Board must give the parties to the proceeding reasonable opportunity to make—
(a) oral submissions at a hearing; or
(b) written submissions in the case of a proceeding that is not a hearing.
Sch. 3 cl. 15(2) amended by Nos 69/2009 s. 54(Sch. Pt 2 item 7.1), 21/2017 s. 95(17).
(2) Sections 14, 15, 16 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 , as in force immediately before their repeal, apply to the Building Appeals Board in relation to a proceeding as if the Board were a Board appointed by the Governor in Council.
(3) The Building Appeals Board—
(a) may proceed by accepting written submissions or by conducting a hearing; and
Sch. 3 cl. 15(3)(b) amended by No. 21/2017 s. 95(18).
(b) may inform itself in any manner it thinks fit; and
(c) is bound by the rules of natural justice; and
(d) is not bound by any rule or practice as to evidence; and
(e) may conduct a proceeding in private if it considers it in the public interest or the interest of justice to do so, but must otherwise hold its hearing in public; and
(f) must proceed with as little formality and technicality and with as much expedition as the requirements of this Act and the regulations and the proper consideration of the matter before it permit; and
(g) may proceed with the hearing in the absence of a party to the proceeding if it is satisfied that the party has been given reasonable notice of the date, time and place of the hearing; and
(h) may at any time adjourn the proceeding; and
(i) may deal with proceedings or classes of proceedings together if it is satisfied that they relate to the same parties, the same building, land or building work or the same or related subject-matter; and
(j) may seek the independent advice of a person to assist it in dealing with the proceeding.
(4) A party to a proceeding may appear at a hearing before the Building Appeals Board or do anything else in relation to a proceeding before that Board either personally or through an agent.
(5) The Board must disclose to each party to a proceeding any advice it receives under subclause (3)(j) and give each party a reasonable opportunity to make submissions about that advice before determining the proceeding.
16 Determinations and reasons
(1) A determination of the Building Appeals Board must be in writing.
(2) The determination may include any order as to costs that the Building Appeals Board, on the application of a party to the proceeding, considers is just.
(3) The determination may include any other incidental order or direction that the Building Appeals Board considers is necessary.
(4) The Building Appeals Board must without delay cause a copy of its determination in any proceeding to be served on each party to the proceeding.
(5) Within one month after being served with a copy of the Building Appeals Board's determination, or within any further time allowed by the Board, a party to a proceeding may request the Board to give to the party written reasons for its determination.
(6) The Building Appeals Board must comply with a request received under subclause (5) without delay after receiving it.
(7) The Building Appeals Board may make public any of its determinations in any manner it thinks fit.
(8) The Building Appeals Board is not bound by its earlier determinations.
17 Costs
Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs.
18 Correction of errors
(1) On its own initiative or at the request of a party to a proceeding, the Building Appeals Board or a panel of the Board may make a determination correcting an earlier determination in which there is—
(a) a clerical error or accidental slip or omission; or
(b) an evident material miscalculation of figures; or
(c) an evident material mistake in the description of a person, property or thing.
(2) The powers of the Board under subclause (1) may also be exercised on behalf of the Board by—
(a) the chairperson of a panel of two or more members; or
(b) the chairperson of the Building Appeals Board, if the relevant panel or the chairperson of the panel is unavailable.
19 Enforcement of determination
A determination of the Building Appeals Board may be enforced as if it were a
judgment or order of a court of competent jurisdiction.