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Building Legislation Amendment Bill 2014

Introduction Print

EXPLANATORY MEMORANDUM

General

The Building Legislation Amendment Bill 2014 (the Bill) will amend the Building Act 1993, the Architects Act 1991, the Domestic Building Contracts Act 1995 and other Acts to implement the Government's Victorian Domestic Building Consumer Protection Reform Strategy and make several other reforms to building-related legislation. The Bill also repeals the House Contracts Guarantee Act 1987.

The key reforms proposed by the Bill are to—

Facilitate the registration of corporations and partnerships

The Bill will enable corporations to register as building practitioners, and enable partnerships that are domestic builders or building surveyors to hold themselves out as a building practitioner if at least one of the members of a partnership is registered in their capacity as a member of a partnership.

Introduce new personal and financial probity requirements for applicants for registration

The Bill will give the Victorian Building Authority (the VBA) discretion to register an applicant for registration as a building practitioner following an examination of a range of personal and financial probity matters.

Improve discipline of building practitioners

The Bill will enable the VBA to issue a show cause notice to a registered building practitioner if the VBA reasonably believes a ground exists for taking disciplinary action. Applicants who are dissatisfied with the outcomes of a show cause process can seek

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internal review or review by the Victorian Civil and Administrative Tribunal (VCAT). A demerit point scheme for building practitioners will also be established.

Improve information provision for consumers

The Bill will require building surveyors to give information to consumers about the role of building surveyors.

Make further improvements to the governance arrangements for building regulation

The Bill will abolish the Building Practitioners Board (BPB), Building Appeals Board (BAB), Architects Registration Board of Victoria (ARBV), Building Regulations Advisory Committee (BRAC), Building Advisory Council and Plumbing Advisory Council. The functions exercised by these bodies will be transferred to the VBA, VCAT, the Technical Accreditation Committee (TAC) and other advisory bodies.

Establish a new Domestic Building Consumer Protection Fund to replace existing insurance

The Bill will establish a new Domestic Building Consumer Protection Fund to be operated by the VBA, and set out requirements for claims and coverage. All persons who want to enter into contracts to undertake domestic building work will be required to be registered and to be eligible to participate in the fund.

Give building surveyors improved powers to direct people with respect to building work

The Bill will strengthen powers to give directions with respect to building work and ensure various orders made by building surveyors can be exercised more appropriately.

Improve responsiveness to consumer needs by ensuring business continuity of private building surveyors

The Bill will establish a power for the VBA to appoint a manager of a private building surveying business where the private building surveyor has ceased to function and has failed to make alternative arrangements. Examples where a manager may be appointed are where the building surveyor has died, been suspended or become insolvent. This will enable the completion of the private building surveyor's work.

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Strengthen information-gathering and entry powers for authorised persons

The Bill will introduce a new framework of entry and information-gathering powers for authorised persons modelled on the powers contained in the Australian Consumer Law and Fair Trading Act 2012.

Reform the process of collecting building permit levy

The Bill will improve collection processes for the building permit levy. Building permits will only be able to be issued after a building permit number has been issued by the VBA. A building permit number will only be issued after the applicant has paid building permit levy. Building permit levy will also be able to be assessed on unauthorised work and work where the cost of building work has increased.

Improve conciliation of domestic building disputes

The Bill will establish a new conciliation framework for domestic building disputes that will give the parties to the dispute greater incentives to resolve disputes earlier and more cost effectively.

Enable the issue of rectification orders

The Bill will enable the issue of rectification orders to domestic builders and consumers as a means of resolving matters in contention in a domestic building dispute.

Clarify responsibilities for local government administration of certain parts of the Building Act

The Bill specifies the provisions of the Building Act 1993 that local councils are responsible for administering.

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the main purposes of the Bill, which are to amend the Building Act 1993, the Architects Act 1991 and the Domestic Building Contracts Act 1995, and to repeal the House Contracts Guarantee Act 1987.

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The Bill amends the Architects Act 1991 (the Architects Act) to—

abolish the ARBV and provide for its functions to be carried out by the VBA; and

improve generally the operation of that Act.

The Bill amends the Building Act 1993 (the Building Act) to—

improve the regulation of building practitioners; and

abolish the BPB and provide for its functions to be carried out by the VBA; and

abolish the BAB and to provide for its relevant proceedings to be dealt with by the VBA or VCAT; and

provide for the establishment and operation of the Domestic Building Consumer Protection Fund; and

make changes to the building permit system including the building permit levy; and

provide further in relation to the functions, conduct and appointment of building surveyors; and

enhance enforcement powers including powers of entry and information-gathering powers; and

abolish the Building Advisory Council, the Plumbing Advisory Council and the BRAC and provide for the establishment of the Technical Accreditation Committee and Ministerial advisory committees; and

improve generally the operation of the Building Act.

The Bill amends the Domestic Building Contracts Act 1995 (the DBCA) to provide for new processes for the conciliation of domestic building disputes and rectification of domestic building work and to transfer functions under that Act from the Director of Consumer Affairs Victoria to the VBA.

The Bill repeals the House Contracts Guarantee Act 1987.

Clause 2 provides for the commencement of the Bill once enacted. The Bill, except for clause 198, will come into operation on a day or days to be proclaimed. Clause 198, makes amendments to the note to new section 231O(2) and substitutes new section 232G. These amendments are consequential on changes in terminology

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relating to members of the police force resulting from the Victoria Police Act 2013. Clause 198 will come into operation on the later of the commencement of Part 3 of the Bill or the day on which section 278 of the Victoria Police Act 2013 commences. If a provision of the Bill (except clause 198) is not proclaimed before 1 July 2016, it will come into operation on that day.

PART 2—REGULATION OF ARCHITECTS

Clause 3 amends section 1 of the Architects Act to remove a reference to the establishment of the ARBV from the purposes of the Building Act.

Clause 4 amends section 3 of the Architects Act to insert new definitions related to the transfer of functions from the ARBV to the VBA.

Clause 5 amends a number of sections of the Architects Act to substitute references to the ARBV with references to the VBA. Subclause (5) replaces a reference to "member of the Board" with a reference to "Commissioner" restricting the ability of VBA Commissioners to sit on Tribunals constituted under the Building Act. In addition, subclause (7)(a)(i) makes a statute law revision amendment to correct a typographical error.

Clause 6 amends section 9(2) of the Architects Act to require that applications for registration must be accompanied by an authorisation signed by the applicant for a police record check to be conducted.

Clause 7 inserts section 10A into the Architects Act to enable the VBA to arrange a police record check on an applicant.

Clause 8 inserts section 11A into the Architects Act to clarify that, without derogating from any provision about suspension of registration, registration lasts until it is cancelled under the Architects Act.

Clause 9 is a statute law amendment to section 14 of the Architects Act to correct a grammatical error.

Clause 10 inserts section 14A into the Architects Act to provide that, without derogating from any provision about suspension of approval, approval of a partnership or company lasts until it is cancelled under the Architects Act.

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Clause 11 substitutes Division 3 of Part 3 of the Architects Act relating to annual fees and proof of insurance.

New section 15 relates to annual fees.

Subsections (1) and (2) provide that annual fees must be paid to the VBA by the anniversary of the relevant registration or approval. This improves flexibility of renewals by no longer requiring payment of fees by 1 July each year.

Subsections (3) and (4) require the VBA to suspend a registration of an architect or approved company or partnership where the annual fee is not paid. The power is currently expressed to be discretionary.

Subsection (5) gives the VBA discretion to revoke a suspension imposed under subsection (3) or (4) if the person who is suspended gives the VBA a satisfactory explanation for their failure to pay fees, and pays the relevant annual fee along with any prescribed additional fee.

New section 15A requires an architect to provide proof by each anniversary of registration that the architect is covered by the required insurance. Subsection (2) imposes a new obligation on architects to notify the VBA of any material change to their required insurance coverage.

Clause 12 amends various sections of the Architects Act to replace references to the Registrar with references to the Registrar of Architects. This is to distinguish the position from the Registrar of the Victorian Building Authority.

Clause 13 repeals section 29 of the Architects Act which imposed requirements on ARBV members investigating a matter under the Architects Act. This reflects that Commissioners of the VBA, being responsible for the strategic direction of the VBA, will not be involved in day-to-day investigations.

Clause 14 replaces references to "the Victorian Civil and Administrative Tribunal" with references to VCAT in a number of sections.

Clause 15 substitutes new Parts 6 and 7 of the Architects Act.

Part 6—Administration—Victorian Building Authority

New section 45 sets out the functions of the VBA under the Architects Act. These functions include the administration of

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registrations and approvals and the discipline of architects, and advising the Minister on the carrying out of functions under the Architects Act.

New section 46 sets out the powers of the VBA under the Architects Act. The powers are the same as those in current section 46.

New section 47 requires the Registrar of Architects appointed by the VBA to keep the Register of Architects.

Part 7—Financial Provisions

New section 48 specifies what money must be paid into the Architects account of the VBA Fund, which is established under section 205 of the Building Act.

New section 49 specifies what money must be paid out of the Architects account. Any surplus money may be paid out, at the VBA's discretion, for the purpose of the advancement of architectural education.

Clause 16 substitutes section 64 of the Architects Act to provide that in proceedings before a Tribunal no proof is required with respect to any resolution or determination of the Tribunal, or the appointment of any member of the Tribunal, unless evidence is given to the contrary.

Clause 17 makes amendments to section 69 of the Architects Act reflecting the transfer of functions from the ARBV to the VBA and the changes in terminology associated with that change.

Clause 18 inserts transitional provisions into the Architects Act to address matters arising from the Bill.

Subclauses (1) and (3) insert Division headings into Part 10.

Subclause (2) repeals old transitional provisions that are no longer required.

Clause 19 inserts new Division 3 of Part 10 in the Architects Act, dealing with transitional matters arising from the Bill.

Subdivision 1—Preliminary

New section 79 inserts definitions. The commencement day of the transitional provisions is the day on which Part 2 of the Bill comes into operation. The former Registrar means the person

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who was the Registrar appointed under section 57(1) of the Architects Act.

New section 80 provides that the Division does not take away from the Interpretation of Legislation Act 1984.

Subdivision 2—Governance

New section 81 provides for the replacement of the ARBV by the VBA and the transfer of the rights and obligations of the ARBV to the VBA.

New section 82 provides that the former Registrar is to be the first Registrar of Architects with the same terms and conditions for the same term.

New section 83 provides for the transfer of officers of the ARBV to the VBA. The officers will maintain the same terms and entitlements.

New section 84 provides that an immunity that a former member of the ARBV is entitled to under section 56 of the Architects Act continues with respect to anything done before the commencement day.

New section 85 provides for the transfer of funds from the ARBV to the Architects account of the VBA Fund.

New section 86 provides for decisions and actions of the ARBV to be taken to be decisions and actions of the VBA in relation to any period on or after the commencement day.

New section 87 provides for the continued operation of any Tribunal established under the Architects Act before the commencement day.

Subsection (2) provides that a decision of that Tribunal will be taken to be a decision of the VBA.

New section 88 provides that a reference to the ARBV in any document is taken to be a reference to the VBA in relation to any period on and after the commencement day.

Subdivision 3—Other transitional provisions

New section 89 provides for the annual fees of registered architects and approved partnerships and companies to be prorated if their anniversary of registration is less than 12 months after the commencement day.

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PART 3—REGULATION OF BUILDING WORK AND BUILDING PRACTITIONERS

Division 1—Amendments to the Building Act 1993

Clause 20 substitutes, amends and repeals existing definitions and inserts new definitions into section 3(1) of the Building Act. The substituted definitions reflect the abolition of the BAB and the transfer of appeal and dispute resolution functions to the VBA and VCAT. The new definitions relate to the introduction of registration of corporations and partnerships, as well as the establishment of a new consumer protection scheme and codes of conduct for building surveyors.

Clause 21 repeals section 6 of the Building Act. Section 6 enabled the Minister to determine to bring certain classes of building practitioner under the Building Act. The section is now spent.

Clause 22 amends a number of sections of the Building Act by substituting references to the BAB (which is to be abolished) with references to Part 11 of the Building Act, to be inserted by clause 58, under which the VBA and VCAT will exercise review and dispute resolution functions. Among other things, Part 11 deals with modifications of the building regulations and determinations with respect to protection work by the VBA, a function that is currently performed by the BAB.

Clause 23 amends sections 14 and 15 of the Building Act to replace references to the BRAC with references to the TAC, reflecting the transfer of the BRAC's functions to the TAC by the Bill.

Clause 24 substitutes section 16 of the Building Act. It is intended to clarify that the section creates 2 distinct offences in respect of building work that is not exempted from the requirement to have a building permit.

New subsection (1) makes it an offence to carry out building work unless a building permit in respect of the work has been issued and is in force.

New subsection (2) makes it an offence for a person to carry out building work unless the work is carried out in accordance with the Building Act, the building regulations and the permit.

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Penalties for both offences remain the same. The penalties are 500 penalty units for natural persons and 2500 penalty units for bodies corporate.

Clause 25 inserts new sections 17A and 17B into the Building Act.

Section 17A(1) makes it an offence for a municipal building surveyor to accept an application for a building permit relating to domestic building work without first having given the applicant for a building permit an information statement.

Section 17A(2) provides that the information must not be given to the applicant via an agent who is a building practitioner or an officer, employee or agent of a building practitioner.

Section 17B relates to the details of the information statement.

Subsection (1) provides that the VBA may approve the content and form of the information statement for the purposes of sections 17A and 78A.

Subsection (2) provides that the information statement will contain information on the role and function of the relevant building surveyor.

Subsection (3) provides that the VBA must publish an approved information statement on its website.

Clause 26 makes consequential amendments to the notes at the foot of section 18 of the Building Act to reflect changes to the location of the building permit levy provisions made by clause 74.

Clause 27 amends various sections of the Building Act to reflect—

the changing of the name of "VicUrban" to the "Urban Renewal Authority Victoria" and to the short title of the Urban Renewal Authority Victoria Act 2003; and

changing the terminology of "value" of building work to "cost" of that work to reflect the building permit levy provisions; and

changes to the location of the building permit levy provisions made by clause 74.

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Clause 28 inserts a new section 18C into the Building Act.

Currently, under section 18B, a relevant building surveyor must, under certain circumstances, give a notice to the Commissioner of State Revenue about an application for a building permit that relates to the carrying out of building work on land in respect of which there is GAIC recording within the meaning of the Planning and Environment Act 1987, if the application is not an excluded event under section 201RB of that Act and none of the circumstances of section 201SA of that Act apply.

The new section 18C will require the relevant building surveyor to give a notice to the Commissioner of State Revenue if the relevant building surveyor receives a notice from the Authority under the new section 211J(1)(b) stating that the estimated cost of building work relating to the application has increased, and as a result of this increase in cost, the building work is no longer an excluded event. Excluded events include when the relevant building work is below a certain monetary threshold.

Clause 29 amends section 24(3) of the Building Act to clarify that references to "the Authority" are references to the Urban Renewal Authority Victoria.

Clause 30 amends section 24A of the Building Act.

Subclause (1) amends section 24(A)(1)(a) to reflect the changes in the location of the registration provisions in the Building Act.

Subclause (2) substitutes section 24A(2)(a). In addition to existing requirements, it also requires that for domestic building work the relevant building surveyor must not issue a building permit unless satisfied that the work is to be carried out by a builder who is a party to the major domestic building contract. The amendment aims to ensure that the builder covered by the insurance policy and the builder who is a party to the contract are the same.

Subclause (3) amends section 24A(3) to—

increase the threshold for which domestic building work must be undertaken by a registered building practitioner, an insured architect or under a certificate of consent; and

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reflect changes to the location of registration provisions and building permit levy provisions in the Building Act.

Subclause (4) inserts new subsection (4) to provide that the threshold is $16 000, or another prescribed amount.

Clause 31 amends section 25A of the Building Act by requiring that, in the circumstances as outlined by the section, as well as being required to give the relevant building surveyor notice of termination of engagement, or notice of engagement, as the case may be, the persons specified in the section must also give the relevant building surveyor, within the times specified in the section, any additional prescribed information. Subclause (5) provides for a penalty of 250 penalty units for offences against the section by a body corporate. This is 5 times the current penalty for individuals.

Clause 32 amends section 25B of the Building Act to—

increase the threshold for which a certificate of consent is required. The new threshold will be $16 000 or another prescribed amount; and

reflect changes to the location of building permit levy and registration provisions in the Building Act.

Clause 33 amends sections 25C, 25D, 25E, 25H and 25I of the Building Act as a consequence of the transfer of the function of issuing certificates of consent to owner-builders from the BPB to the VBA. Subclause (2) repeals section 25E(2), which is now spent. Subclause (6) removes a statutory requirement for the VBA to consult CAV regarding information statements for owner-builders. This is not intended to restrict informal consultation by the VBA with CAV.

Clause 34 repeals section 25J of the Building Act. This reflects that the section is being relocated to Part 11 as section 165A, to be inserted by clause 58.

Clause 35 amends section 30 of the Building Act.

Subclause (1) substitutes subsection (1). New subsection (1) will require the relevant building surveyor to give additional documents to the relevant council and the VBA within 7 days after issuing a building permit. In particular, subsection (1)(b)(i) requires that for domestic building work copies of extracts

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from the contract must be given that clearly identify the parties, their signatures and the contract price for the building work. Subsection (1)(b)(ii) requires a copy of the certificate of an insurer that provides evidence that the builder is covered by the required insurance. The aim of this provision is to ensure that the builder who is a party to the contract and the builder who is covered by the insurance is the same person and that the building permit levy is calculated on the contract price. A corporate penalty of 5 times the existing penalty for natural persons is also imposed.

Subclause (2) imposes a corporate penalty of 5 times the existing penalty for natural persons with respect to section 30(1A).


Section 30A enables the VBA to approve a checklist of documents required to be lodged under section 30 of the Building Act and to provide for the relevant building surveyor to certify on that form that all those documents have been given to the relevant council. An approved checklist must be published on the Authority's website.

Section 30B requires the relevant building surveyor to make the required certification and to give the form (as certified) to the relevant council together with the other required documents. A penalty of 10 penalty units for natural persons and 50 penalty units for bodies corporate will apply.

Clause 37 amends section 32A of the Building Act. Subclauses (1) and (2) make amendments reflecting the renaming of "VicUrban" as the "Urban Renewal Authority Victoria". Subclause (3) amends section 32A(3)(d) to reflect changes to the location of the building permit levy provisions made by clause 74.

Clause 38 inserts a new heading before section 33 in Part 4 of the Building Act.

Clause 39 amends section 33(1) of the Building Act to reflect the definition of person in charge of the building work inserted by clause 20(2).

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Clause 40 substitutes section 37 of the Building Act with a new Division 2 of Part 4 relating to directions as to work (new sections 37 to 37H).

New section 37(1) provides that after inspecting building work, the relevant building surveyor or a person acting on behalf of the relevant building surveyor may direct one or more of the persons listed to comply with one or more things in subsection (2). The persons listed are the person in charge of the building work, the person who the relevant building surveyor reasonably believes is in charge of building work or a person the relevant building surveyor reasonably believes directs or controls either of those persons.

New section 37(2) details what a direction under subsection (1) may require a person to do. The things that may be directed to be done in new section 37(2)(a) are to carrying out building work, including protection work, so that the work is made compliant with the Building Act, the building regulations or the building permit. The things that may be directed to be done in new section 37(2)(b) are to stop any further work that may prevent the relevant building surveyor from being satisfied that a direction under section 37(2)(a) has been complied with, due to that work being unable to be adequately inspected.

New section 37A sets out the requirements regarding contents of directions, time for compliance, extension of time and oral and written directions.

New section 37B provides that a direction must be complied with within the time for compliance, or if no time for compliance is specified within a reasonable time.

New section 37C allows for a person to ask for an extension of time for compliance and enables a relevant building surveyor to grant that extension of time.

New section 37D provides that a direction may be stayed where the building work that is the subject of the direction is a domestic building dispute accepted for conciliation under the DBCA.

New section 37E provides that a direction may be revoked if—

the relevant building surveyor considers that the person subject to the direction is not able to comply with the direction; or

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the building work is the subject of a domestic building work dispute for which a rectification order has been issued, or which has been resolved by conciliation or determined by VCAT.

New section 37F requires the relevant building surveyor to provide copies of directions and notices in writing to relevant owners in relation to directions, and extensions of time, stays or revocations of those directions. There are 3 offences and a failure to comply attracts penalties of 10 penalty units for natural persons and 50 penalty units for bodies corporate with respect to each offence.

New section 37G requires the relevant building surveyor to notify the VBA, relevant local council and owner in writing within 7 days of becoming aware of non-compliance with a direction.

New section 37H provides that a relevant building surveyor may issue a building notice under Part 8 of the Building Act if a person fails to comply with a direction within the required time. Notices under Part 8 are given to owners of buildings, land or places of public entertainment.

Clause 41 inserts a new Division heading before section 38 in Part 4 of the Building Act.

Clause 42 amends various sections of the Building Act to substitute penalties that are payable. Penalties by bodies corporate will be 5 times the existing penalties that are applicable. The existing penalties are 50 penalty units and will continue to apply to natural persons.

Clause 43 inserts a new Division heading before section 76 in Part 6 of the Building Act.


New section 78A deals with the giving of information statements by private building surveyors.

Subsection (1) makes it an offence for a private building surveyor to accept an appointment to carry out a function of a relevant building surveyor relating to domestic building work without first having given the applicant for a building permit an information statement. The applicable penalty is 10 penalty

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units for a natural person and 50 penalty units for a body corporate.

Subsection (2) provides that the information statement must not be given to the applicant via an agent who is a building practitioner or an officer, employee or agent of a building practitioner.

New section 78B deals with the appointment of natural persons performing the work of private building surveyors who are partnerships and corporations.

Subsection (1) requires that if a corporation is appointed as the relevant building surveyor it must appoint at least one natural person, but no more than the prescribed number, registered in the appropriate class to perform the functions of the relevant building surveyor.

Subsections (2) and (3) require that if a private building surveyor registered in the capacity as a member of a partnership is appointed as the relevant building surveyor, the private building surveyor must appoint at least one natural person, but no more than the prescribed number of natural persons, registered in the appropriate class to perform the functions of the relevant building surveyor. At least one of the persons appointed by the private building surveyor must be a member of that partnership who is registered as a building surveyor in that capacity.

Subsection (4) provides that the names of the natural persons so appointed must be provided within the prescribed period to the person who appointed the relevant building surveyor and to the VBA.

Subsection (5) defines the prescribed number of natural persons as 3 (unless another number is prescribed in regulations) and the prescribed period which is the longer of the period prescribed in the regulations (if any) or 7 days.


Subclause (1) amends the heading to the section to clarify that the section deals with circumstances in which a private building surveyor must not act. The section currently states that a private building surveyor "may" not act in these circumstances.

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Subclause (2) amends section 79(1) and (2A) to insert a penalty for bodies corporate that is 5 times the existing penalty.

Subclause (3) specifies the prescribed period for the purposes of section 79(1)(b). It is specified as the period prescribed by the regulations or if a period is not prescribed, one year, reflecting current regulation 1504 of the Building Regulations 2006.

Clause 46 inserts new Divisions 2 and 3 into Part 6 of the Building Act. Division 2 deals with delegations by private building surveyors. Division 3 deals with circumstances in which a private building surveyor must terminate his or her appointment.

Division 2—Delegation of functions of private building surveyors

New section 80A enables a private building surveyor to delegate functions under section 76.

Subsection (1) allows a private building surveyor to delegate their functions to another registered building surveyor.

Subsection (2) provides that the period of delegation must not exceed the prescribed time in the prescribed period unless the Authority has given written consent. This is to prevent delegations being used to effectively terminate the appointment.

Subsection (3) provides that the prescribed time is 3 months if no other time is prescribed while the prescribed period is 12 months if no other period is prescribed.

New section 80B sets out what an instrument of delegation must contain.

New section 80C sets out the persons and bodies to whom a private building surveyor must give notice of a delegation. Notice must be given within 7 days.

Division 3—Termination of appointment by private building surveyor

New section 80D sets out the circumstances in which a private building surveyor must terminate an appointment to avoid a conflict of interest arising.

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Subsection (1) requires a private building surveyor to terminate an appointment if the private building surveyor or a related person—

prepares any design work relating to the building or building work; or

is employed by a person or body who prepared the design work relating to the building or building work; or

obtains an interest in the person or body who prepared the design work relating to the building or building work; or

obtains an interest in the building or building work or the person or body undertaking the building work.

Subsection (2) enables the VBA to exempt the private building surveyor from these requirements.

Subsection (3) is an offence provision that requires notice to be given to affected persons and the VBA.

Subsection (4) defines related person.

Clause 47 inserts a new heading for new Division 4 before section 81 of the Building Act.

Clause 48 amends section 81(1) of the Building Act. Section 81(1) provides that the appointment of a private building surveyor cannot be terminated without the consent of the VBA. An exception currently exists for building work that is terminated. The amendment extends this exception to new Division 3, dealing with when a conflict of interest arises and a private building surveyor terminates their appointment.

Clause 49 inserts new Divisions 5, 6 and 7 of Part 6 into the Building Act. The new divisions relate to the transfer of functions of a private building surveyor, the appointment of a manager to a private building surveyor's business and general matters respectively.

Division 5—Transfer of functions of private building surveyors

New section 83 gives the VBA the power to direct an employer of a private building surveyor to transfer the work of an employee private building surveyor who has ceased performing the functions of a private building surveyor in circumstances

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similar to those in section 83B to another private building surveyor employed by the body corporate so that consumers are not left without a relevant building surveyor to complete the work.

Division 6—Appointment by VBA of manager of business of private building surveyor


New section 83A defines what constitutes expenses in connection with the appointment of a manager.

Subdivision 2—Appointment of manager

New section 83B sets out the circumstances in which a manager may be appointed to a private building surveyor's business. These circumstances include where a private building surveyor requests an appointment, has had their registration suspended or cancelled, dies, is in prison, become a represented person, becomes insolvent under administration or an externally administered body corporate, or otherwise ceases to carry out the functions of a private building surveyor. Subsection (2) limits the manager's functions to the private building surveyor's functions under the Building Act. Subsection (3) provides that a manager is eligible for reappointment.

New section 83C requires the VBA to appoint a manager who is a natural person and who is either registered as a building surveyor (unlimited) or a member of staff of the VBA who has the qualifications and experience required for registration as a building surveyor (unlimited).

New section 83D sets out what an instrument appointing a manager must include. This includes details of the manager and the conditions under which they are appointed. The instrument may also specify reporting requirements.

New section 83E provides for conditions to be imposed on the appointment of a manager, both by the VBA and by the regulations. Written notice of variations must be given to the manager.

New section 83F specifies who a notice appointing a manager must be served on. This includes the private building surveyor, each local council in whose district a private building surveyor was carrying out work and anyone else the VBA reasonably

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believes should be served with a notice. Subsection (2) specifies the contents of any such notice.

New section 83G provides that, after service of the notice, a private building surveyor and any partner, officer, employee or agent of that surveyor must not participate in the business except under the supervision of the manager. A penalty of 60 penalty units applies.

Subdivision 3—Management of business

New section 83H sets out the powers that a manager of private building surveyor's business may exercise. Subsection (2) requires that a manager must obtain the consent of a client of a private building surveyor before exercising a power in relation to a client's business.

New section 83I sets out a manager's powers in relation to access to a building or land, the manager's responsibilities in relation to taking possession of a document or thing from the building or land, and identification requirements for the manager.

New section 83J provides that the acts of a manager are to be taken to be those of the private building surveyor.

Subsection (1) provides that an act done by a manager of a private building surveyor's business is, for the purposes of proceedings or transactions that rely on that act, taken to have been done by the private building surveyor.

Subsection (2) provides that subsection (1) does not subject a private building surveyor, or partner, officer, employee or agent of that private building surveyor, to any personal liability from any act done by the manager.

New section 83K provides that no liability attaches to the VBA, a manager or a person acting at the direction of the manager in respect of anything done or omitted to be done in good faith in the carrying out of functions under the Division, or in the reasonable belief that the Building Act or omission was in the carrying out of a function under the Division.

New section 83L provides, in subsection (1), that the expenses of a manager are payable by the VBA from the Building account.

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Subsection (2) provides that the VBA may recover an amount paid as expenses as a debt from the private building surveyor.

Subsection (3) provides for money recovered under the section to be paid into the Building account.

New section 83M enables regulations to be made about the accounts to be kept by the manager, and the purposes for which money in those accounts may be expended.

New section 83N requires that a manager must maintain records and accounts of the private building surveyor's business separately from both the records and accounts before the manager's appointment and from the records and accounts of any other private building surveyor's business including, if applicable, the manager's own business. The records and accounts must also be maintained in a manner prescribed by regulation.

New section 83O details what reports a manager must give to the VBA.

New section 83P requires a manager to cooperate with the legal personal representative of a deceased private building surveyor for the winding up of the estate.

Subsection (3) provides that, subject to the other provisions in the section, and subject to the terms of appointment, if the manager was appointed before the death of the private building surveyor, the manager's appointment is not affected by the death.

Subdivision 4—Termination of appointment

New section 83Q sets out the circumstances in which the manager's appointment terminates, including determination by the VBA.

Subsections (3) and (4) set out the manager's rights and responsibilities in relation to transferring documents.

Subsection (5) requires the VBA to serve notice of the termination on all persons originally served with a notice of appointment.

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Subdivision 5—General

New section 83R provides, in subsection (1), that a manager must not disclose information obtained as a result of being manager, except so far as is necessary for exercising the manager's powers or other functions, and as specifically permitted by subsection (2). A penalty of 60 penalty units applies.

Subsection (2) permits disclosure to courts and tribunals, other persons acting judicially, the Authority, an employee of the Authority and certain other persons.

New section 83S makes it an offence to hinder, obstruct or delay a manager carrying out a function under the Division, without reasonable excuse. A penalty of 60 penalty units applies.

New section 83T enables VCAT to give directions in relation to any matter affecting the management or the manager powers, duties or functions under the Division. Those directions may be given on application by the manager, a private building surveyor, or any other person affected by the management.

Division 7—General

New section 83U requires the VBA to notify relevant councils about any appointment (of which the VBA is aware) or termination of a private building surveyor under Part 6.

New section 83V requires the VBA to notify relevant councils of the appointment of a manager of a private building surveyor's business as well as the termination of that appointment.

New section 83W enables an owner to recover money paid to a private building surveyor or their employer. This reflects that the private building surveyor is often employed by a corporation. Subsection (2) specifies the circumstances in which this money may be recovered. These circumstances are that the private building surveyor has ceased performing the functions of a private building surveyor for a reason specified in new section 83(1) before completion of those functions for which the private building surveyor was engaged and those functions were not transferred to another private building surveyor or to a manager appointed under new section 83B.

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New section 83X provides that work done by a private building surveyor is taken to be work done by a second building surveyor after the transfer of the functions of the private building surveyor to the second building surveyor. This section re-enacts section 83 of the Building Act.

Clause 50 amends section 112 of the Building Act to substitute subsection (5) and insert new subsection (6). The amendments will enable a municipal building surveyor or private building surveyor to exempt some work from a building order to stop building work if they consider that it would be—

in the interests of the safety or security of the building, land or place; or

in the interests of the safety and health of any member of the public; or

to prevent a nuisance to members of the public or occupiers of nearby properties.

Clause 51 inserts a new heading and inserts new subsections (3) and (4) in section 125 of the Building Act requiring a relevant building surveyor to notify the relevant council and the VBA of any failure to comply with an emergency order or building order or notice. The notification must occur within 24 hours for an emergency order or 7 days for building notices and building orders, unless a longer period is prescribed.

Clause 52 substitutes section 127 of the Building Act and inserts new section 127A into the Building Act to extend immunities under current section 127 to cover Commissioners and persons employed or engaged by the VBA in relation to functions under the DBCA, Architects Act and regulations made under those Acts. New section 127A provides an immunity for members of, or persons appointed by, public authorities (other than councils) in relation to the Building Act.

Clause 53 amends section 135(5) of the Building Act to replace a reference to the BPB with a reference to the VBA.

Clause 54 makes section 137AA of the Building Act (which deals with the insurers who can provide the required insurance) subject to section 137AAB, inserted by clause 55.

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Clause 55 inserts new section 137AAB into the Building Act, establishing that after the relevant appointed day the Victorian Managed Insurance Authority ("VMIA") is the sole insurer of domestic building work undertaken by registered builders or by owner builders; i.e. all new domestic building insurance policies taken out after that day must be issued by VMIA. The Minister may appoint different days on which this occurs for different classes of matter.

This provision will cease to have effect when the domestic building consumer protection fund is established under new Part 9A of the Building Act, to be inserted by clause 150 of the Bill, and comes into operation.

Clause 56 amends section 137A of the Building Act relating to insurance.

New subsection (5) enables the VBA to certify in relation to domestic building insurance that—

a rectification order relating to domestic building work has not been complied with and the domestic building contract has been completed or terminated; or

the registration of a domestic builder has been suspended or cancelled; or

the builder, or in the case of a registered building practitioner that is a body corporate, a director, is permanently incapacitated.

New subsection (6) specifies when the VBA can make a certification under subsection (5).

New subsection (7) defines what constitutes a prescribed time and a qualified person.

Clause 57 amends section 137B of the Building Act.

Subclause (1) amends section 137B(1)(c) of the Building Act to replace a reference to the DBCA with a reference to section 173C of the Building Act. Section 173C is inserted by clause 58 and replaces section 68 of the DBCA, which is repealed by clause 177.

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Subclause (2) inserts new subsections (5B) and (5C) in section 137B. New subsection (5B) enables the VBA to certify in relation to domestic building insurance that—

the registration of an owner builder that is a registered domestic builder has been suspended or cancelled; or

if the owner builder is a registered building practitioner, then the owner builder, or in the case of an owner builder that is a body corporate, a director who is a registered building practitioner, is permanently incapacitated and hence the owner builder is unable to complete or rectify the building work within the prescribed time.

New subsection (5C) specifies when the VBA can make a certification under subsection (5).

Subclause (3) substitutes a reference to Part 11 with a reference to Part 10, reflecting the relocation of registration provisions.

Subclause (4) defines prescribed time and qualified person in subsection 137B(7) for the purpose of new subsection (5B).

Clause 58 substitutes Parts 10 and 11 of the Building Act.

New Part 10 of the Building Act establishes a new framework for the regulation of building practitioners.

Division 1—Offences

New section 138 makes it an offence for unregistered persons to use certain titles or hold out as being qualified unless they are registered in the appropriate category or class. Subsection (2) prohibits a person using the title "registered building practitioner" or holding out that they are registered unless they are in fact registered. It is similar to current section 176(1), (1A)(b), (1A)(c) and (6). Corporate penalties of 5 times the existing penalties applicable to natural persons have been added. The penalties for misuse of titles have been brought into line with penalties attaching to other forms of holding out.

New section 139 makes it an offence for persons who are not registered as a building surveyor or building inspector to carry out work as a building surveyor or building inspector respectively. It replicates current section 176(1A)(a), (2) and

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(2AA). Corporate penalties of 5 times the existing penalties applicable to natural persons have been added.

New section 140 makes it an offence for persons to carry out work under a major domestic building contract unless registered in the appropriate class. It replicates current section 176(2A). A corporate penalty of 5 times the existing penalties applicable to natural persons has been added.

New section 141 makes it an offence for bodies corporate to carry out work as a building practitioner under a major domestic building contract unless at least one director is registered in the relevant category. A penalty of 2500 penalty units reflects similar penalties applicable under the Division.

New section 142 makes it an offence for bodies corporate to carry out work as a building surveyor unless the company has at least one director who is registered in the relevant class. Subsection (2) defines what is considered to be work for the purposes of the section. A penalty of 2500 penalty units reflects similar penalties applicable under the Division.

New section 143 enables partnerships to hold out that they are building practitioners and to undertake work if at least one member of the partnership is registered in that capacity. It is similar to current section 176(3). With respect to building surveyors and domestic builders, the partner must be registered as an individual in their capacity as a member of a partnership (as opposed to being able to be registered as an individual). This is to ensure that additional probity checks can be imposed where a partnership seeks to practise as a domestic builder or a building surveyor.

New section 144 provides an exception for bodies corporate from new sections 138(1) and (3) and 139(3) if at least one director is registered in the appropriate category or class. This exemption does not apply to domestic builders and building surveyors, reflecting that corporations in these categories must be registered in their own right.

New section 145 exempts certain classes of officials from the application of sections 138 to 142. It is similar to current section 176(5).

New section 146 exempts building practitioners from being registered in certain classes of work if the class in which they

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are registered also includes the work included in the other class. It is similar to current section 176(7).

Division 2—Registration

Subdivision 1—Application for registration

New section 147 states who may apply for registration. An applicant for registration may be a natural person, a natural person in their capacity as a member of a partnership or a corporation.

New section 147A sets out the basic requirements for applications for registration.

New section 147B sets out additional requirements for registration with respect to classes of registration for surveyors. It is similar to current section 169(2A).

New section 147C empowers the VBA to ask for additional information and documents that it reasonably requires to determine the application. The VBA may refuse to register an applicant if the applicant does not comply with a request for further information within a reasonable time. This section is similar to current section 169(3).

Subdivision 2—Criteria for registration

New section 148 sets out the mandatory registration criteria for natural persons. The VBA must not register a person unless it is satisfied that these criteria have been met.

New section 148A sets out the requirements for mandatory registration criteria for persons who apply in their capacity as a member of a partnership. The VBA must not register a person in their capacity as a member of a partnership unless it is satisfied that these criteria have been met.

New section 148B sets out the requirements for mandatory registration criteria for bodies corporate. The VBA must not register a body corporate unless it is satisfied that these criteria have been met.

New section 148C sets out the other criteria for registration that the VBA considers when determining applications.

Subsection (1) provides that the VBA must have regard to certain personal and financial probity matters and prescribed criteria.

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Subsection (2) requires the VBA to consider other registrations under Part 10 and other directorships an applicant holds.

Subsection (3) enables regulations to be made to require the VBA to consider whether the applicant is a successor body corporate to a body corporate who has contravened this Act or the DBCA, or has failed to perform its obligations under a major domestic building contract, or a related contract (for example, a contract with a supplier). The regulations will be able to prescribe the tests the VBA will be able to apply to determine when a body corporate is a successor body to another body corporate. For example, the regulations may set out whether a relationship of control exists between the two bodies. This is intended to address attempts to register phoenix companies.

Subsection (4) requires the VBA to consider the suitability of other members of a partnership to which the applicant who is seeking registration in their capacity as a member of a partnership belongs.

Subsection (5) requires the VBA to consider the suitability of directors of a body corporate that is an applicant.

Subsection (6) enables the VBA to consider the suitability of other officers of a body corporate, or a related body corporate.

Subsection (7) requires the VBA to consider the outcomes of performance audits in relation to an applicant, other members of a partnership and other officers of a body corporate or a related body corporate.

New section 148D sets out a range of personal probity criteria that the VBA is to consider when determining a registration application. The criteria for personal probity are similar to the grounds on which a licence for plumbing work may be refused under section 221S(1) of the Building Act.

New section 148E sets out financial probity criteria that the VBA is to consider when determining a registration application.

New section 148F sets out who is considered to be an excluded person. Excluded persons are ineligible to apply for a registration. This typically results from disqualification by a disciplinary body. Subsection (2) defines terms that are used in subsection (1).

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New section 148G gives the VBA the power to organise police record checks, and financial and other checks to determine whether a person meets criteria for registration. It is similar to current section 169A.

Subdivision 3—Registration

New section 149 gives the VBA discretion to register a person as a building practitioner if the person is suitable to be registered in a particular category or class.

New section 149A enables the VBA to impose conditions on registrations. The VBA must impose prescribed conditions, and may impose any other conditions it considers appropriate.

New section 149B imposes a maximum time on registration of 5 years. It replaces section 171 of the Building Act, which provides that registration lasts until it is cancelled.

New section 149C requires the VBA to issue a certificate to a building practitioner. The certificate must contain the practitioner's name and class of registration, state that it is current for a specified period and otherwise be in accordance with the regulations. This is similar to current section 172(1) and (6).

New section 149D enables the Registrar of the VBA to issue a duplicate building practitioner certificate provided the appropriate fee is paid and the Registrar is satisfied the original certificate is lost or destroyed. This is similar to current section 172(7).

Subdivision 4—Annual fee and proof of insurance

New section 150 requires a registered building practitioner to pay an annual fee to the VBA and provide proof of insurance coverage on the anniversary of that practitioner's registration. This is similar to current section 172(2).

Subdivision 5—Renewal of registration

New section 151 enables the VBA to renew the registration of a building practitioner. The same processes apply to renewals as they do to new registration. The VBA may consider how many demerit points an applicant for renewal has accrued, along with any other renewal criteria that may be prescribed.

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Other renewal criteria may, for example, include whether the applicant can demonstrate competence through successful completion of continuing professional development.

Subdivision 6—Directions of VBA

New section 152 enables the VBA to give directions to registered building practitioners or classes of registered building practitioners. These directions relate to the way the practitioners carry out practice.

Subdivision 7—Code of conduct for building surveyors

New section 153 enables the VBA to approve a code of conduct for building surveyors. The code will set out the expected standard of professional conduct of building surveyors. A code may make provision for different classes of building surveyor.

New section 153A provides that a code of conduct may be prepared by the VBA, or alternatively approved by the VBA after being prepared and submitted by an organisation representing building surveyors. The VBA must consult with the relevant organisations on any changes it makes to an industry-submitted code.

New section 153B requires codes of conduct to be published in the Government Gazette.

New section 153C provides that a code of conduct comes into effect on the later of publication in the Government Gazette or a date specified in the code of conduct.

New section 153D requires a building surveyor to comply with any applicable code of conduct approved under the Subdivision. Failure to comply will constitute grounds for disciplinary action.

Subdivision 8—Register of Building Practitioners

New section 154 requires the VBA to keep a Register of Building Practitioners. Subsection (2) requires that the Register must include the names, categories and classes of building practitioners, and be in the form and contain the information required by the regulations.

New section 154A requires a registered building practitioner to notify the VBA of any change to the information required for registration without delay after the change occurs. A penalty of

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10 penalty units applies reflecting current section 172A of the Building Act. A corporate penalty of 5 times the existing penalties applicable to natural persons has been added. The Registrar must update the Register if it receives notification of any change of information under this section.

New section 154B permits the Registrar of the VBA to issue evidentiary certificates specifying whether a person is registered, their class of registration and whether a building practitioner's certificate has been registered.

Division 3—Disciplinary proceedings and action


New section 155 defines what is meant by disciplinary action. The sanctions available range from reprimanding a building practitioner through to cancellation of a building practitioner's registration and disqualification for a period of up to 3 years.

New section 155A ensures that disciplinary proceedings can be taken against building practitioners whose registration is already suspended.

Subsection (1) ensures that the provisions relating to disciplinary proceedings and action can be applied to a building practitioner whose registration is suspended (for example, as a result of an immediate suspension).

Subsection (2) restricts the VBA from giving a show cause notice to a building practitioner more than 3 years after a period of suspension ends if the suspension is related to that matter.

Subdivision 2—Grounds for disciplinary action

New section 156 outlines the various grounds for which the VBA may take disciplinary action against a building practitioner.

New section 156A deems contraventions of the Building Act, the regulations, the DBCA, and the Domestic Building Contracts Regulations by a body corporate or partnership to be contraventions by any director or partner who is a registered building practitioner for the purposes of disciplinary action under section 156. Disciplinary action is civil in nature. This is similar to current section 179B of the Building Act.

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Subdivision 3—Mandatory cancellation or suspension of registration

New section 157 provides that the VBA must immediately cancel a builder's registration if the building practitioner no longer meets the mandatory criteria for registration. The mandatory criteria for registration are set out at new sections 148, 148A and 148B. Subsection (2) provides that a notice under the section must be by written notice given to a building practitioner. Subsection (3) details the contents of a notice.

New section 157A gives bodies corporate a grace period of 28 days (or a longer prescribed period) from cancellation of registration if it no longer has a director who is a registered building practitioner. This is to enable the body corporate to appoint another suitably qualified director.

Subdivision 4—Immediate suspension of registration

New section 158 sets out the grounds for immediate suspension of a building practitioner's registration.

New section 158A provides for the immediate suspension of registration.

Subsection (1) provides that the VBA may suspend a building practitioner's registration if the VBA reasonably believes that a ground for immediate suspension exists and it is necessary in the public interest to immediately suspend the registration.

Subsection (2) sets out that a notice must be given if the VBA considers the practitioner has ceased to be covered by the required insurance.

Subsection (3) enables the suspension to cover all building work, specified building work or a class of specified building work.

Subsection (4) sets out the contents of the notice.

New section 158B specifies the period of suspension.

Subsection (1) sets out that a suspension given under section 158A takes effect on the day notice is given to the building practitioner and continues until the earlier of the day the suspension is revoked by the VBA or VCAT.

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Subsection (2) requires the VBA to revoke a suspension imposed on the basis that a person was charged with an offence referred to in section 148D if the person is found not guilty of that offence.

Subsection (3) requires the VBA to revoke a suspension imposed where the builder was not covered by the required insurance if it is satisfied the building practitioner is covered by the required insurance, and the insurance cover.

Subdivision 5—Imposition of conditions relating to risk of bankruptcy or insolvency

New section 159 empowers the VBA to impose conditions on a building practitioner's registration to reduce the risk of bankruptcy and insolvency if it is satisfied that there is a substantial risk the builder may become bankrupt or insolvent. Subsection (2) details the conditions that may be imposed in relation to a building practitioner. Subsection (3) specifies rights of review.

Subdivision 6—Ability to practise

New section 160 empowers the VBA to cancel or suspend a building practitioner's registration if the VBA is satisfied the building practitioner is incapable of practising because of physical or mental infirmity. This is similar to current section 180(1) of the Building Act.

Subsection (2) enables the VBA to cancel registration or suspend registration for up to 3 years.

Subsection (3) enables the VBA to renew suspensions.

Subsection (4) specifies rights of review.

New section 160A sets out when a suspension under section 160 may be revoked.

Subsection (1) enables a building practitioner whose registration is suspended to apply to the VBA for a revocation of the suspension.

Subsection (2) empowers the VBA to determine the form of applications.

Subsection (3) requires the VBA to consider any application, unless it considers the application to be frivolous, vexatious or lacking in substance.

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Subsection (4) enables the VBA to revoke a suspension.

Subsection (5) requires the VBA to give written notice to the building practitioner of a decision under subsection (4).

Subdivision 7—Show cause process

New section 161(1) requires the VBA to give a show cause notice where it reasonably believes that a ground for taking disciplinary action exists against a building practitioner and it proposes to take that action.

Subsection (2) specifies the contents of a show cause notice.

Subsection (3) requires a show cause period to be at least 14 days after a notice is given.

New section 161A enables a registered building practitioner to make oral and written representations to the VBA regarding a show cause notice provided the representations are made during the show cause period. The VBA must keep a record of oral representations made to it.

New section 161B requires the VBA to make a decision about whether a ground exists to take disciplinary action within 28 days of the end of the show cause process.

New section 161C requires the VBA to take no further action with respect to a show cause process if it no longer believes a ground exists to take disciplinary action against a registered building practitioner. The VBA must give written notice to the registered building practitioner as soon as practicable after deciding to take no further action.

New section 161D enables the VBA to accept an undertaking from a building practitioner to rectify or complete work, or pay a sum of money to the owner to enable the owner to rectify or complete work. The VBA may defer taking disciplinary action for a specified period.

New section 161E(1) and (2) empowers the VBA to take disciplinary action if it still believes a ground to take disciplinary action exists. The VBA may take the proposed action, or where an undertaking has been given and complied with, take action it considers to be less serious.

Subsection (3) requires the VBA to give a written notice to the registered building practitioner of its decision.

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Subsection (4) specifies the contents of the notice.

Subsection (5) states when a decision to take disciplinary action takes effect.

Subdivision 8—General provisions relating to disciplinary action

New section 162 deals with who the VBA must give notice of a decision to. Subsection (1) requires the VBA to give notice of a decision to take disciplinary action to certain affected people including VCAT, an insurer or a complainant. Subsection (2) provides that if the building practitioner was a member of a professional association or is employed, the VBA must give notice to that professional association or employer. This section is similar to current section 182(1) and (3) of the Building Act.

New section 162A requires a person whose registration as a building practitioner is cancelled or suspended to give notice to any person who has a contract with the person relating to his or her work as a building practitioner. This is similar to current section 182(4) of the Building Act. The penalty has been increased from 10 penalty units to 50 penalty units reflecting the importance of this notice as a consumer protection. Corporate penalties of 5 times the existing penalties applicable to natural persons have been added.

New section 162B provides that complaints made to the VBA are privileged and that a person is not liable for loss, damage or injury caused by the making of a complaint or the giving of documents, information or evidence.

New section 162C provides that where a person's registration as a building practitioner is suspended, they are taken not to be registered for the purposes of all building work, specified building work or a specified class of building work, in accordance with the terms of the suspension.

New section 162D enables the VBA to revoke a suspension. Subsection (1) provides that the VBA may revoke a suspension imposed for disciplinary reasons if satisfied there is good reason to do so. Subsection (2) provides that the VBA must give written notification to the registered building practitioner of a decision to revoke a suspension.

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New section 162E gives the VBA the power to recover any money owing to it by way of a fine in a court of competent jurisdiction as a debt due to the VBA.

Subdivision 9—Register of Disciplinary Action

New section 163 requires the Registrar of the VBA to keep a Register of Disciplinary Action. The Register must comply with requirements about form and content set out in the regulations. It must also contain certain information including the details of a person and a summary of the disciplinary or criminal proceedings to which the entry relates.

New section 163A(1) requires the Registrar of the VBA to include the relevant information relating to criminal or disciplinary sanctions on the Register of Disciplinary Action after the prescribed period. Subsection (2) requires information about a disciplinary sanction to remain on the Register of Disciplinary Action for at least 5 years after the sanction ceases to have effect. Subsection (3) provides that information about a criminal sanction is to remain on the Register for 5 years after the sanction was imposed. Subsection (4) defines prescribed period, to be the end of any appeal period.

New section 163B requires the VBA to publish the Register of Disciplinary Action on an Internet site operated by the VBA.

New section 163C ensures that the VBA, any Commissioner and members of staff of the VBA are not liable for the publication of the Register of Disciplinary Action. This is intended to clarify that the publication of the Register is privileged.

Part 11—Reviews, disputes and other proceedings

Division 1—Review of decisions relating to building work

Subdivision 1—Review by VBA

New Part 11 deals with reviews, disputes and other proceedings.

New section 164 enables a person to make an application to the VBA for review of certain decisions relating to building and occupancy permits.

Subsection (1) relates to decisions related to the issue, amendment and cancellation of permits.

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Subsection (2) relates to reviews of requirements by a reporting authority or relevant building surveyor for more information or amendments to a permit application.

Subsection (3) relates to a failure or refusal to make a determination, give an approval or exercise discretion, and any determination or approval or exercise of discretion with respect to permits.

Subsection (4) specifies who has standing to apply for a review.

Subsection (5) enables certain prescribed reporting authorities to apply to the VBA if a permit does not implement a reporting authority's recommendations.

Subsection (6) ensures that where the decision-maker was the VBA, a person has a right to seek review of the decision by VCAT.

New section 164A enables a person to make an application to the VBA for review of certain decisions relating to approvals for temporary occupation. Subsection (2) ensures that where the decision-maker was the VBA, a person has a right to seek review of the decision by VCAT.

New section 164B enables a person to make an application to the VBA for review of certain decisions relating to protection work. Subsection (2) ensures that where the decision-maker was the VBA, a person has a right to seek review of the decision by VCAT.

New section 164C enables a person to make an application to the VBA for review of certain decisions relating to the making, amendment and cancellation of building notices, building orders and emergency orders. Subsection (4) ensures that where the decision-maker was the VBA, a person has a right to seek review of the decision by VCAT.

New section 164D enables a person to make an application to the VBA for a review of a failure or refusal to make a determination, give an approval or exercise discretion, and any determination or approval or exercise of discretion, under the building regulations.

Subsection (2) ensures that where the decision-maker was the VBA, a person has a right to seek review of the decision by VCAT.

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New section 164E ensures that the VBA's powers and procedures in relation to reviews in sections 164 to 164I are construed as being additional to any other powers of review. This is similar to section 145 of the current Act.

New section 164F provides for the effect of decisions under review.

Subsection (1) provides that most decisions do not take effect until the end of the prescribed period if there is no application for review, or until the decision is affirmed on review.

Subsection (2) provides that decisions under sections 164 (relating to building permits) and 164A (relating to temporary occupation of buildings) are not stayed unless the VBA otherwise directs.

Subsection (3) provides that an application for review relating to an emergency order under section 164C does not stay the operation of the emergency order. This section is similar to section 146 of the current Act.

Subsection (4) specifies the prescribed period for the purposes of subsection (1)(a).

New section 164G enables a party to an application for a review to request the VBA to undertake a fast track review by beginning to hear or otherwise deal with an application within 2 business days.

Subsection (2) requires an application to be in writing and accompanied by the prescribed fee.

Subsection (3) enables the VBA to grant or refuse the request and require a party to an application to bear the costs of other parties and pay additional fees. This section is similar to section 147 of the current Act.

New section 164H provides that a review is in the nature of a re-hearing and permits the VBA to consider matters not raised before the decision under review was made. This section is similar to section 148 of the current Act.

New section 164I deals with the actions the VBA can take on review.

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Subsection (1) specifies what the VBA can determine. The VBA can affirm the decision or set it aside, either substituting its own decision or remitting the matter back to the original decision-maker.

Subsection (2) ensures that the VBA has all the powers of the original decision-maker.

Subsection (3) provides that a decision or report of a relevant reporting authority is taken to be part of a decision on a building permit in certain circumstances.

Subsection (4) empowers the VBA to make any ancillary or incidental orders it considers appropriate to give effect to its determination. This section is similar to section 149 of the current Act.

Subdivision 2—Review by VCAT

New section 165 confers jurisdiction on VCAT in relation to reviews of certain decisions made by the VBA under Subdivision 1 of Division 1 of Part 11, as well as failures to make those decisions.

New section 165A confers jurisdiction on VCAT to review decisions of the VBA related to certificates of consent under Division 3A of Part 3. This replaces section 25J of the Building Act, which is repealed by clause 34.

New section 165B confers jurisdiction on VCAT to review decisions of the VBA relating to the termination of appointments of private building surveyors. The BAB exercises a similar jurisdiction under current section 140(1).

New section 165C confers jurisdiction on VCAT to review decisions of the VBA relating to failure or refusal to consent to the appointment of a new private building surveyor. The BAB exercises a similar jurisdiction under current section 140(2).

New section 165D enables a private building surveyor or another person whose interests are adversely affected by the appointment of a manager to seek review by VCAT of the appointment or the conditions of appointment.

Subsection (2) requires an application to be made within 7 days of a notice of appointment being served under section 83F.

Subsection (3) sets out the orders that VCAT may make.

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New section 165E enables owners and adjoining owners to seek a review by VCAT of a declaration of emergency protection work made by the VBA under section 89(1). The BAB exercises a similar jurisdiction under current section 151.

New section 165F confers jurisdiction on VCAT to review decisions relating to the reassessment of building permit levy and the imposition of penalty levy.

New section 165G specifies the effect of decisions under review. As a general rule decisions are stayed until the later of the end of the application period or, if an application is made for a review, the decision is affirmed on review. Decisions reviewable under sections 164 and 164A relating to building and occupancy permits, and under section 165D relating to the appointment of a manager, are not stayed unless VCAT otherwise directs. Emergency orders are not stayed. Except for reviews under section 165 of decisions referred to in sections 164(5) and 164B (which have an application period of 14 days), the period for which an application for review can be made is 30 days, unless there is another prescribed period. This reflects a similar approach to the effect of decisions under current section 146.

Division 2—Review of decisions relating to building practitioners


New section 166 defines terms used in Division 2, which relates to reviews of decisions relating to building practitioners. The definition reviewable decision specifies what decisions of the VBA are reviewable.

Subdivision 2—Internal review

New section 167 enables a person who is directly affected by a reviewable decision made by a delegate of the VBA (other than a Commissioner or the chief executive officer) to seek an internal review of that decision. An application for review must be made within 28 days, unless it involves a decision imposed for a breach of a rectification order by a builder, in which case it is made before the disciplinary action ceases to have effect. A decision is stayed if an application is made for internal review, except where the decision is to immediately suspend or cancel registration.

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New section 167A specifies who cannot conduct an internal review. The person conducting the internal review must be decided by a person appointed by the VBA. The VBA, the original decision-maker, a person who was involved in matters that gave rise to the original decision and persons who are less senior to the decision-maker or a person involved in matters are all precluded from deciding the review.

New section 167B specifies what an internal reviewer is to have regard to when conducting the review. With respect to decisions imposed for a breach of a rectification order, the reviewer may consider whether the work was rectified or completed, compensation was paid or an insurer was reimbursed. The reviewer must also give an affected person a reasonable opportunity to make written and oral representations to the reviewer.

New section 167C specifies what decisions a reviewer can make with respect to reviewable decisions. This decision is a review decision. Subsections (2) to (4) detail the effect of the review decision for the purpose of applications to VCAT for review.

New section 167D requires the VBA to give notice to the affected person of the review decision. Subsection (2) details the contents of the notice. Subsection (3) specifies that if a notice is not given within the review period, the reviewer is taken to have affirmed the original decision. Subsection (4) specifies that the review period for the purposes of subsection (3) is 28 days or such longer period as may be prescribed.

Subdivision 3—Review by VCAT

New section 168 provides that an affected person may apply to VCAT for a review of a reviewable decision if they are dissatisfied with the review decision, they are not eligible for internal review, they have not been notified of the process for conducting an internal review within 14 days after making an application for internal review or the VBA has advised the affected person that the VBA does not intend to conduct an internal review.

Subsections (4) and (5) provide for time limits for seeking review. These time limits will be 14 days after the end of the review period (if an application for review has been made) and 28 days in any other case. An exception will apply for

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decisions imposed for a breach of a rectification order, which will be able to be reviewed at any time before any disciplinary action ceases to have effect.

New section 168A specifies the powers VCAT has with respect to reviewable decisions and review decisions. With respect to decisions imposed for a breach of a rectification order, VCAT may consider the same matters that may be considered by a reviewer under section 167B(2). VCAT also has the discretion to stay a decision pending the outcome of its review, except for decisions to immediately cancel or suspend registration.

Division 3 of this Part is inserted by clause 159.

Division 4—Disputes and other proceedings—VBA powers

Subdivision 1—Right to refer disputes to VBA

New section 170 enables disputes between a relevant building surveyor and an owner relating to the exercise of the building surveyor's powers under section 36 of the Building Act to be referred to the VBA. If the VBA is acting as the relevant building surveyor, it is referred instead to VCAT. This is similar to current section 150, and reflects the abolition of the BAB.

New section 170A enables disputes between owners and adjoining owners about how and when to undertake emergency protection work required under a declaration made under section 89(1) to be referred to the VBA. Currently such disputes must be referred to the BAB. VCAT is able to review VBA declarations under this section (see new section 165E).

New section 170B enables disputes between an owner required to carry out protection work and adjoining owners about contracts of insurance or the amount of insurance to be referred to the VBA. This is similar to current section 152, and reflects the abolition of the BAB.

New section 170C enables disputes between an owner required to carry out protection work and adjoining owners about how and when a survey is to be undertaken or the adequacy of a survey undertaken to be referred to the VBA. This is similar to current section 153, and reflects the abolition of the BAB.

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New section 170D enables disputes between an owner required to carry out protection work and adjoining owners about the adjoining owner's costs of supervising the protection work to be referred to the VBA. This is similar to current section 154, and reflects the abolition of the BAB.

New section 170E enables disputes between an owner required to undertake protection work and adjoining owners about other matters arising under Part 7 to be referred to the VBA. This is similar to current section 155, and reflects the abolition of the BAB.

New section 170F enables disputes about a relevant building surveyor's estimate of the cost of building work for the purposes of assessing building permit levy to be referred to the VBA. This is similar to current section 156, and reflects the abolition of the BAB. Under subsection (2), if the VBA is a party to the dispute, the dispute may be referred to VCAT.

New section 170G enables disputes between any of an owner, a person carrying out building work or a relevant building surveyor about the application of, or compliance with, the building regulations to be referred to the VBA. This is similar to current section 157, and reflects the abolition of the BAB. Under subsection (3), if the VBA is a party to the dispute, the dispute may be referred to VCAT.

New section 170H enables disputes between owners of buildings with a party wall about the construction or cost of construction of that party wall to be referred to the VBA. This is similar to current section 158, and reflects the abolition of the BAB.

Subdivision 2—Right to bring other proceedings to VBA

New section 171 allows an owner of an adjoining property who suffers inconvenience, loss or damage during the carrying out of protection work to apply to the VBA for a determination of the amount of compensation they are entitled to for that inconvenience, loss or damage. This is similar to current section 159, and reflects the abolition of the BAB.

New section 171A allows an owner, a purchaser of a lot under an off-the-plan contract of sale or a relevant building surveyor to seek a determination by the VBA that the design or an element of a building complies with the Building Act, the

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building regulations or any other document applied by the building regulations. This is similar to current section 160A, and reflects the abolition of the BAB.

New section 171B allows the people specified in subsection (2) of that section to apply to the VBA for a determination that a provision of the building regulations either does not apply to the building or land specified in the application, or applies with specified modifications or variations. The persons who may apply include the owner, a purchaser and a municipal building surveyor. The section does not apply to modifications to an access provision of the building regulations as defined in section 171C. This is similar to current section 160, and reflects the abolition of the BAB.

New section 171C enables the persons specified in subsection (2) to apply to the VBA for a disapplication, modification or variation of an access provision of the building regulations (these are the requirements in the Access Code that are to be inserted in the Building Code of Australia Volume One) on the ground that compliance would impose unjustifiable hardship on the applicant. Persons who may apply include the owner, a purchaser and a lessee. Subsection (4) lists the factors the VBA must take into account when making a decision under this section. This is similar to current section 160B, and reflects the abolition of the BAB.

Subdivision 3—VBA's powers in disputes and other proceedings

New section 172 requires the VBA to consider and determine matters referred and applications made to it under Division 4 of Part 11 or under any other Act. In determining a matter, the VBA is to be able to make any order it considers appropriate in the circumstances. This is similar to current section 161, and reflects the abolition of the BAB.

New sections 172A to 172E apply to applications under section 171B relating to modifications and variations of the building regulations.

New section 172A specifies the consultation the VBA is to undertake before making a determination on an application under section 171B. The VBA is required to consult an authority that would be a reporting authority and the relevant building surveyor if the matter relates to a building permit.

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The VBA must also take into account any recommendation of the Heritage Council if the building is on the Heritage Register. The VBA may consult a municipal building surveyor or any other person. If the VBA consults any other person, it must make available a copy of any report or information received on the application of any party to the proceedings. This is similar to current section 162(1) and (1A), and reflects the abolition of the BAB.

New section 172B restricts when the VBA may make a determination disapplying, modifying or varying the application of the building regulations. The section also empowers the VBA to impose conditions on a determination making a modification or a variation. Where a condition is that a person is required to enter into an agreement with a reporting authority or council, the section empowers those bodies to enter into an agreement. This is similar to current section 162(2) to (5), and reflects the abolition of the BAB.

New section 172C specifies the form and content of agreements that the VBA may require an owner to enter into with a reporting authority or council. This is similar to current section 163, and reflects the abolition of the BAB. However, the requirement that the agreement be under seal has been replaced by a requirement that the agreement be signed by both parties.

New section 172D provides for the variation and termination of agreements by the parties to the agreement with the approval of the VBA. This is similar to current section 164, and reflects the abolition of the BAB.

New section 172E provides for the lodging and recording of agreements with the VBA and on the Register established under the Transfer of Land Act 1958.

Subsection (2) requires the Registrar of Titles to make the necessary recordings in the Register.

Subsection (3) provides that upon registration, the burden of any covenant in the agreement runs with the land, and any covenant may be enforced as a restrictive covenant.

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This is similar to current section 165, and reflects the abolition of the BAB. It should be noted that the repeal of current section 165(4) (which is not replicated in new section 172E) does not affect its operation (see section 14(2)(d) of the Interpretation of Legislation Act 1984).

Division 5—Disputes and other proceedings—VCAT jurisdiction

New section 173 confers jurisdiction on VCAT to determine any matter on the application of a person who is entitled under this Act (other than Division 1 or 2 of Part 11) or any other Act to have that matter reviewed by VCAT.

New section 173A allows a person affected by a decision under section 97(1)(b) to apply to VCAT for a review of that decision or a failure to make that decision.

New section 173B is similar to section 170G. It enables disputes between the VBA and an owner, a person carrying out building work or a relevant building surveyor about the application of the building regulations to be referred to VCAT.

New section 173C enables a person to apply to VCAT to have a building exempted from the requirements of section 137B, which requires owner-builders to obtain insurance and a report on the building before selling it, as well as including certain warranties in the contract of sale. Subsection (2) provides that VCAT can grant an exemption if it is satisfied that there are exceptional circumstances or if full compliance with section 137B would be impossible or cause undue hardship. This re-enacts current section 68 of the DBCA, which is repealed by clause 177.

Division 6—Procedure of VBA under Part 11

New section 174 applies the procedures contained in Schedule 3A, inserted by clause 108, to the VBA.

New section 174A requires the VBA to keep a register of its proceedings and determinations under Part 11.


Subclause (1) amends subsection (2A) of that section to replace a reference to Part 11 with a reference to Part 10.

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Subclause (2) substitutes section 188(5) to require the VBA to have regard to guidelines issued under subsection (1)(a) in determining fees under Division 2 of Part 10. This reflects the abolition of the BPB and the movement of registration provisions into Part 10.

Clause 60 substitutes references to Part 11 with references to Part 10 in sections 191, 192 and 221 of the Building Act, reflecting changes in the location of the registration provisions.

Clause 61 amends section 195(2) of the Building Act to replace references to the Building Advisory Council and Plumbing Advisory Council with a reference to advisory committees, reflecting the new approach to advisory committees in the Bill.

Clause 62 amends section 197 of the Building Act to clarify the functions of the VBA. These include registration of building practitioners, the promotion of competence among building practitioners, and to carry out functions under the Architects Act and the DBCA.

Clause 63 substitutes section 199 of the Building Act, which is the VBA's power of delegation. The VBA may delegate all its functions except—

the power of delegation; and

the powers to direct municipal building surveyors under section 205M and the power to issue a notice to gather evidence under section 227H, which can only be delegated to the chief executive officer of the VBA.

Clause 64 substitutes section 202 of the Building Act to provide that Schedule 3, which governs the procedures of boards, applies to the VBA Board. Schedule 3 to the Building Act is amended by clause 107.

Clause 65 substitutes section 203(6) of the Building Act. Section 203(6) imposes restrictions on who can be appointed as chief executive officer of the VBA. The amendment provides that a Commissioner, a member of the TAC or a member of an advisory committee cannot be appointed as chief executive officer. This reflects the reforms to governance arrangements made by the Bill.

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Clause 66 substitutes section 204(1) of the Building Act. It provides for the appointment or engagement of a Registrar of the VBA, a Registrar of Architects and as many other persons as are required to enable the VBA to carry out its functions. This substitution reflects that the VBA will take over responsibility for the regulation of architects, as well as the abolition of the BPB and BAB.

Clause 67 amends section 205(2) of the Building Act to provide that the VBA Fund includes the Architects account. Subsection (2) inserts a note referencing sections 48 and 49 of the Architects Act for further detail regarding payments into and out of the Architects account.

Clause 68 amends section 205A of the Building Act.

Subclause (1) substitutes section 205A(1)(b) to (e). New paragraph (b) excludes from the amounts required to be paid into the Building account those amounts required by section 48(b) of the Architects Act to be paid into the Architects account. This is in addition to the exclusion applying to amounts required to be paid into the Plumbing account which currently exists under section 205A(1)(b). New paragraph (c) provides that any amount received by the relevant building surveyor on account of the building permit levy and any amounts received by the VBA under Subdivision 2 or 3 of Division 4A of Part 12 (which are the divisions which govern payment to the VBA of the building permit levy, penalty levy and any costs of levy assessment) are paid into the Building account. New paragraphs (d) and (e) provide that any amounts paid to the VBA in fees or fines under the DBCA are paid into the Building account.

References which relate to fees or fines received on behalf of the BAB and the BPB are to be repealed, reflecting the abolition of these bodies.

Subclause (2) amends section 205A(1)(g) to enable Parliament to appropriate money for a specific account in the Building account.

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Subclause (3) inserts a reference to the building regulations in section 205A(1)(h), reflecting that money may be payable into the Building account (or an account in the Building account) pursuant to other legislation including the building regulations or other authorisation.

Subclause (4) substitutes a reference to "section 210(1)" in place of "section 205G(1)" in section 205A(2), reflecting the change in the number of the section dealing with payment of the building permit levy.

Subclause (5) substitutes a reference to the VBA for the existing reference to the BPB in section 205A(3).

Subclause (6) substitutes section 205A(4) to specify what money must be credited to the domestic building dispute account.

Clause 69 amends section 205B of the Building Act.

Subclause (1) amends section 205B(1)(c)(ii) by removing the power to pay out of the Building account the remuneration and allowances of the BAB, the BPB, the Building Advisory Council and the BRAC and substituting the ability pay the remuneration and allowances of the TAC, and any advisory committee other than an advisory committee established for the purposes of advising the Minister on matters relating to the plumbing industry.

Subclause (2) inserts new paragraph (ca) into section 205B(1) allowing for the costs and expenses of VCAT in relation to proceedings under the Building Act to be met from the Building account.

Subclause (3) substitutes new paragraph (d) in section 205B(1), specifying that money may be paid out of the Building account for functions relating to the administration of the DBCA and disputes arising under the DBCA.

Subclause (4) substitutes section 205B(2), providing that money must not be paid out of the Building account for any purpose for which money is required to be paid out of the Plumbing account or the Architects account.

Subclause (5) substitutes section 205B(5) to provide that money may be paid out of the domestic building dispute account for the purposes specified in new section 205B(1)(d).

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Clause 70 substitutes section 205D(c) of the Building Act to remove the reference to the Plumbing Advisory Council and replace it with a reference to the payment out of the Plumbing account for the advisory committees which may be established for the purposes of advising the Minister on matters relating to the plumbing industry.

Clause 71 repeals Subdivision 4 of Division 2 of Part 12 of the Building Act, being the Subdivision which currently provides for the payment of the building permit levy to the relevant building surveyor. New Division 4A of Part 12, inserted by clause 74, now contains the levy provisions.

Clause 72 repeals section 205L of the Building Act which provides for referral of matters relating to registered building surveyors to the BPB.

Clause 73 substitutes new Divisions 3 and 4 of Part 12 of the Building Act. New Division 3 provides for the replacement of the Building Advisory Council and the Plumbing Advisory Council with the ability for the Minister to establish advisory committees as and when such committees are required. New Division 4 provides for the replacement of the BRAC with a new TAC.

Division 3—Advisory committees

New section 206 provides the Minister with the general power to establish committees to advise on any matter the Minister refers to the committee. The section also provides that Schedule 3 of the Building Act, which deals with the membership and procedure of boards, applies to the formation and operation of advisory committees established under this Division.

Division 4—Technical Accreditation Committee

New section 207 establishes the TAC. This committee is to take the place of the BRAC and is to be the body responsible for the accreditation of building products, construction methods and other technical building matters.

New section 208 specifies the composition of the committee, which is to include the Chief Commissioner (or nominee) as the chairperson, a person with experience in the building industry as deputy chairperson and at least one Australian lawyer of at

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least 5 years standing. The remainder of the committee will comprise as many other persons as are deemed necessary by the Minister for the committee to be able to properly perform its functions. The section also provides that Schedule 3 of the Building Act, which deals with the membership and procedure of boards, applies to the formation and operation of the TAC.

New section 209 specifies the functions to be performed by the TAC, which involve the accreditation of building products, construction methods, designs, components or systems connected with building work, and any other function conferred on the committee by the Building Act or any other Act.

Clause 74 inserts new Division 4A into Part 12 of the Building Act which re-enacts Subdivision 4 of Division 2 of Part 12 and establishes new processes for reassessing building permit levy and assessing levy on unauthorised work.

Division 4A—Building permit levy

Subdivision 1—Building permit levy

New section 210 replicates existing section 205G(1), (2) and (5), specifying the amount of building permit levy that is to be paid and the accounts of the VBA Fund into which the levy is deposited. The existing minimum threshold for building permit levy of $10 000 for the cost of the building work is also maintained.

New section 211 requires the building permit levy to be paid prior to the permit being issued. Subsection (2) provides that the relevant building surveyor may consider the permit application prior to the payment of the levy. This is similar to current section 205G(3) and (4).

New section 211A stipulates the requirements of a building permit application relevant to calculating the building permit levy. The application must specify the contract price for the building work (including costs of labour and materials) if there is a contract, or if not, must contain enough information to enable the relevant building surveyor to estimate the cost of the building work. These requirements are in addition to any other requirements applicable to permit applications under the Building Act or regulations (for example under Division 2 of Part 3 of the Building Act).

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New section 211B stipulates the circumstances in which a relevant building surveyor must refuse to issue a building permit. These circumstances are where the levy is not paid within 90 days of notification of the levy amount by the relevant building surveyor, where the surveyor considers the contract price for the building work is substantially lower that the price that would ordinarily be paid for the kind of work proposed and where the application does not provide the relevant building surveyor with sufficient information to calculate the amount of the levy or otherwise contains false or misleading statements regarding the cost of the building work.

New section 211C provides that the relevant building surveyor must estimate the cost of the building work having regard to the information provided by the applicant and, without delay, notify the applicant of the estimate of the cost of the building work and the amount of levy payable. This section also provides a note to indicate that the VBA may, at a later stage, reassess the levy after the permit is issued.

New section 211D imposes a range of other obligations a relevant building surveyor must observe in the performance of their function with respect to the building permit levy. These obligations include forwarding on levy amounts to the VBA, keeping proper records of levy amounts received and forwarded to the VBA, making those records available for inspection by the VBA and providing periodic returns to the VBA regarding levy handling. Subsection (2) provides the VBA may exempt the relevant building surveyor from the requirement to provide such returns where the building surveyor will receive no levy for the particular period.

New section 211E provides that the VBA may, in a court of competent jurisdiction, recover from a relevant building surveyor (or their employer) any levy amounts unpaid by that building surveyor as a debt due to the VBA.

New section 211F provides that an owner must notify the VBA in writing of any increase to the final cost of building work occurring after the issue of the permit where the increase is in excess of $15 625 (or other prescribed amount) if they are aware of this increase. Building work worth $15 625 gives rise to a building permit levy liability of $20.

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Subdivision 2—Assessments of levy by the VBA after permit issued

New section 211G provides that the VBA may reassess the amount of the building permit levy required, after the issue of the permit, in a range of circumstances including where there has been a variation to the building work resulting in increased cost of the building work, where there has been an error estimating the cost of the building work, or where the assessment was made on the basis of false or misleading information. Subsection (3) provides that any reassessment must be made within 5 years of the date the permit was issued.

New section 211H provides that in undertaking a reassessment of a building permit levy, the VBA is required to consider the information provided in the original application, and any other information provided by the owner, the relevant building surveyor or that the VBA considerers relevant regarding the cost of the building work.

New section 211I provides that if, on reassessment, the amount of levy that ought to have been paid is more that what was actually paid, in certain circumstances the VBA may impose a levy up to twice the amount of the difference between what was paid and what ought to have been paid. Subsection (2) provides that penalty levy may not be imposed if there was an honest belief by the owner that the cost of building work had not increased.

New section 211J provides that if the VBA reassesses the building permit levy and finds that an amount of levy is owing, the VBA must give notice of the reassessment, any penalty levy and the right to seek review by VCAT to the owner, and notice of the revised cost of the building work to the relevant building surveyor.

Subsection (2) provides that any notice of reassessment of the building permit levy issued by the VBA must state that the owner has a right to apply to VCAT for a review of the reassessment and any penalty levy imposed.

New section 211K specifies that any person who receives a notice of reassessment must pay the amount of the reassessed building permit levy and any penalty levy, less any amount already paid, within 14 days of receiving the notice.

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New section 211L provides that the VBA may recover from a person any levy amounts and any penalty levy required to be paid by that person in a court of competent jurisdiction as a debt due to the VBA.

Subdivision 3—Assessments of levy by the VBA for unauthorised building work

New section 211M provides that where a person has undertaken building work without a permit (that is in contravention of section 16(1) of the Building Act), the VBA must assess an amount of building permit levy payable in respect of that work. Where the VBA believes on reasonable grounds that the person has undertaken building work without a permit, the VBA may assess an amount of building permit levy payable in respect of that work, but must do so no later than 5 years after the date the contravention of section 16(1) occurred. A time limit of 5 years applies for assessments of levies under this section.

New section 211N details the mechanics of how the building permit levy is assessed on building work undertaken without a permit, and includes powers for the VBA to appoint a registered building practitioner to inspect the work and report to the VBA their assessment of the cost of the building work. The VBA must also take into account any information provided by the owner, and may otherwise inform itself as appropriate.

New section 211O provides that the VBA, for building work undertaken without a permit, may impose a penalty levy of up to twice the amount of levy that ought to have been paid. Subsection (2) provides that the penalty levy may not be imposed if the VBA is satisfied that the owner honestly and reasonably believed that a permit was not required for the work.

New section 211P provides that, where building work is undertaken without a permit, the VBA may recover from the person required to pay the levy the reasonable costs of assessing the value of the building work necessary to determine the levy required. Subsection (2) makes it clear that recovery of such costs are separate to and cannot be used as a set off against any penalty levy imposed by the VBA.

New section 211Q provides that the VBA, where it has determined that work undertaken without a permit should be subject to a building permit levy, must provide to the owner notice of the assessed levy, any penalty levy imposed and any

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costs charged by the VBA. Subsection (2) provides that such a notice must state the owner has a right to appeal to VCAT for a review of the levy assessment, any penalty levy imposed and any costs charged by the VBA.

New section 211R provides that a person in receipt of an assessment from the VBA must pay the assessed permit levy, any penalty levy and any costs imposed by the VBA within 14 days of being given the notice.

New section 211S provides that the VBA may recover from a person any amounts of building permit levy, penalty levy or costs required to be paid by that person under new section 211R in a court of competent jurisdiction as a debt due to the VBA.

Clause 75 amends section 212 of the Building Act, which addresses councils' responsibilities to administer the Building Act.

Subclause (1) makes it clear that the only section in the Building Act which modifies the council's responsibility for administering Parts 3, 4, 5, 7 and 8 of the Building Act is section 192 dealing with alpine resorts.

Subclause (2) inserts new section 212(1A) which clarifies that a council is still responsible for administering Parts 3, 4, 5, 7 and 8 for building work in its municipal district whether or not a private building surveyor is appointed as the relevant building surveyor.

Clause 76 amends section 216B of the Building Act to provide that a municipal building surveyor must not delegate those functions provided for under section 227H of the Building Act (this section relates to when a municipal building surveyor is acting as an authorised person and exercising the power to require a person to provide information, produce documents or give evidence regarding a contravention of the Building Act). It also changes the reference to "Part 11" in sections 216B(1) and (2) to "Part 10" reflecting the change in numbering of the Part dealing with the regulation of building practitioners.

Clause 77 substitutes section 216C(4) of the Building Act. Section 216C(4) applies certain provisions of Part 6 (which regulates the activities of private building surveyors) to municipal building surveyors when those municipal building surveyors are acting outside their municipal district.

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These provisions regulate matters such as addressing conflicts of interest and the termination of a private building surveyor's appointment.


Subsection (1) provides for the change in the location in the Building Act of the provisions dealing with the building permit levy.

Subsection (2) replaces the reference to the BAB in 217(3)(b) with a reference to the VBA or VCAT, being the new review bodies.

Subsection (3) changes the reference to "Part 10" to "Part 11" reflecting the change in numbering of the part dealing with the reviews and dispute resolution.

Clause 79 substitutes section 221ZV(5) of the Building Act to replace references to certain clauses of Schedule 3 (dealing with issues such as the conduct of proceedings, determinations and costs of proceedings before the BAB) with references to equivalent clauses in new Schedule 3A (which deals with proceedings before the VBA). These changes are a consequence of the replacement of the BAB by the VBA as the body primarily responsible for review and dispute resolution under the Building Act, and the replacement of Part 3 of Schedule 3 with new Schedule 3A as the Schedule which governs how proceedings before the VBA are conducted under Part 11.

Clause 80 amends several provisions in the Building Act, and one provision of Schedule 6 to the Building Act, to replace existing references to the "Victorian Civil and Administrative Tribunal" with the acronym "VCAT".

Clause 81 substitutes section 221ZZQ(1) of the Building Act to replace references to certain clauses of Schedule 3 (dealing with issues like conduct of proceedings, determinations and costs of proceedings before the BAB) with references to equivalent clauses in new Schedule 3A (which deals with proceedings before the VBA). These changes are a consequence of the replacement of Part 3 of Schedule 3 with new Schedule 3A as the Schedule which governs how proceedings before the VBA under new Part 11 are conducted.

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Clause 82 replaces the reference to the Plumbing Industry Commissioner with "Authority" in the definition of authorised officer in section 221ZZZDA of the Building Act for the purpose of issuing plumbing infringements.

Clause 83 substitutes section 221ZZZI of the Building Act to replace references to certain clauses of Schedule 3 (dealing with issues like conduct of proceedings, determinations and costs of proceedings before the BAB) with references to equivalent clauses in new Schedule 3A (which deals with proceedings before the VBA). These changes are a consequence of the replacement of Part 3 of Schedule 3 with new Schedule 3A as the Schedule which governs how proceedings before the VBA under Part 11 are conducted.

Clause 84 substitutes section 221ZZZN of the Building Act to replace references to certain clauses of Schedule 3 (dealing with the conduct of panels performing the functions of the BAB) with references to equivalent clauses in new Schedule 3A. These changes are a consequence of the replacement of Part 3 of Schedule 3 with new Schedule 3A as the Schedule which governs how proceedings before the VBA under Part 11 are conducted.

Clause 85 repeals section 221ZZZV(3) of the Building Act which provides for a maximum penalty to apply to regulations. Section 262(f) provides the same maximum penalty under regulations, rendering this subsection redundant.

Clause 86 inserts new Division 1C into Part 13 of the Building Act, dealing with the power of the VBA, municipal building surveyors and Energy Safe Victoria to obtain information and documents under the Building Act. The provisions reflect similar provisions in Division 4 of Part 6.2 of the Australian Consumer Law and Fair Trading Act 2012.

New section 227F defines who is an authorised person for the purposes of exercising powers under the Division. The authorised persons are the VBA, a municipal building surveyor when carrying out the functions of a municipal building surveyor and Energy Safe Victoria in respect of matters relating to Part 12A of the Building Act or regulations made under that Part. This reflects that under section 241, the VBA, councils and Energy Safe Victoria are the bodies

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authorised to commence proceedings in respect of offences under the Building Act.

New section 227G enables authorised persons to gather information to assist in monitoring compliance with the Building Act and regulations. The information is not admissible in any proceedings except those for refusing to comply with a notice under the section.

Subsection (1) provides that an authorised person may require, by written notice, a person believed to be capable of providing information or producing documents that may assist an authorised person in monitoring compliance with the Building Act (or regulations made under the Building Act) or in assessing a building practitioner's fitness to practise to provide that information or produce those documents. A person may also be required to appear before an authorised person to give information (either orally or in writing), and produce those documents.

Subsection (2) makes it an offence to refuse, or fail, to comply with a notice, to the extent that a person is capable of complying with the notice, knowingly provide false or misleading information, or obstruct or hinder an authorised person. A penalty of 20 penalty units for individuals and 100 penalty units for bodies corporate applies.

Subsection (3) provides that a person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the person. However, subsection (4) provides that a person's answer to a question asked in a notice under section 227G, or the provision of any information or production of a document in compliance with a notice under section 227G, is not admissible evidence against the person in proceedings other than proceedings under section 227G.

Subsection (5) provides that an authorised person may make copies of, or take extracts from, documents produced to an authorised person under section 227G, and may retain possession of them.

Subsection (6) provides that section 227I, which deals with an authorised person's powers in relation to documents, does not apply to documents produced under section 227G.

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New section 227H provides that an authorised person may require, by written notice, a person believed to be capable of providing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of the Building Act or that may assist in assessing a building practitioner's fitness to practise, to provide that information or produce those documents. A person may also be required to appear before an authorised person to give information (either orally or in writing), and produce those documents. Subsection (2) provides that a person may be required to give evidence on oath or affirmation. The authorised person or a person specified to be acting on an authorised person's behalf may administer the oath or affirmation.

Subsection (3) makes it an offence for a person to refuse, or fail, to comply with a notice under section 227H, to the extent that the person is capable of complying with the notice, knowingly provide false or misleading information or obstruct or hinder an authorised person. The offence has a penalty of 60 penalty units for an individual and 300 penalty units for a body corporate.

Subsection (4) provides that a person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the person. However, subsection (5) provides that a person's answer to a question asked in a notice under section 227H, or the provision of any information or production of a document in compliance with a section 227H notice, is not admissible evidence against the person in criminal proceedings other than proceedings under section 227H, or in the case of a body corporate, in any criminal proceedings other than proceedings under the Building Act.

Delegation of the powers of the VBA under this section will be limited to the chief executive officer, while municipal building surveyors and Energy Safe Victoria will not be able to delegate powers. Section 216B(1) and (2), amended by clause 76, section 199, substituted by clause 63, and section 10 of the Energy Safe Victoria Act 2005, amended by clause 113, restrict the ability to delegate powers under this section.

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New section 227I provides that an authorised person may do the following—

inspect and copy (or take extracts of) documents produced to an authorised person under this Division;

seize the documents if considered necessary for obtaining evidence for the purposes of proceedings against a person or to prevent their concealment, loss or destruction;

secure seized documents against interference;

retain possession of seized documents.

New section 227J requires an authorised person to give a certified copy of a seized document to the person from whom the document was seized as soon as practicable after the seizure. A certified copy of a seized document must be received in evidence as evidence of equal validity to the original.

New section 227K requires an authorised person to take reasonable steps to ensure that documents seized under this Division are returned within 3 months after their seizure.

Subsection (2) provides that documents are only required to be returned if the authorised person is satisfied that—

the document is not required (or is no longer required) for the purpose for which it was seized; and

the continued retention of the document is not necessary to prevent the document being used in a way that would justify its seizure as evidence; and

no dispute over ownership of the documents exists for which an application under section 227L would be the appropriate resolution.

Subsection (3) provides that the section does not apply if the Magistrates' Court has extended the period for retention under section 227M.

Subsection (4) clarifies that nothing in the section prevents the return of documents if the authorised person considers there is not reason for the continued retention of those documents.

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Subsection (5) defines who is a relevant person in relation to a document for the purposes of the section.

New section 227L enables a person from whom a document was seized or a person claiming to be the owner of that document to apply to the Magistrates' Court for an order for the return of the document. A copy of the application is entitled to be served on the authorised person, and the authorised person is entitled to appear before the Court. The magistrate may order the return of the document if satisfied that the document is not required for the purpose for which it was seized and the continued retention of the document is not necessary to prevent the document being used in a way that would justify its seizure as evidence.

New section 227M allows an authorised person to apply to the Magistrates' Court for 3 month extensions of the period for which an authorised person may retain a seized document, with a maximum retention period of 12 months.

Subsection (2) provides that the Magistrates' Court may order an extension if satisfied that—

the extension is in the interests of justice; and

the total retention period does not exceed 12 months; and

retention of the document is necessary for the purposes of an investigation or to enable evidence to be obtained for a proceeding.

Subsection (3) makes it clear that the Magistrates' Court must consider the interests of the owner of the seized document or thing when considering an application under this clause.

New section 227N empowers an authorised person to apply to a court for an order directing a person to comply with section 227G or 227H.

Subsection (1) provides that if an authorised person is satisfied that a person has, without reasonable excuse, failed to comply with an information-gathering requirement under sections 227G or 227H, an authorised person may apply to a court for an order directing the person to comply with the requirement.

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However, subsection (1) is subject to subsection (2) which states that an authorised person or an authorised person cannot certify a failure to a court if the person to whom the failure relates has been charged with an offence against sections 227G(2) or 227H(3). These are offences for refusing or failing to comply with notices or requirements of an authorised person.

Subsection (3) enables the court to order the person to comply with the requirement within the time specified in the order and make any other orders it considers appropriate.

Subsection (4) provides that if proceedings are brought under this clause in relation to a failure to comply with a requirement a person cannot be charged with an offence under sections 227G(2) or 227H(3) in respect of that failure.

Clause 87 substitutes Division 2 and inserts new Division 2A of Part 13 of the Building Act, dealing with inspection powers and related provisions. The provisions mostly reflect similar provisions in Part 6.4 of the Australian Consumer Law and Fair Trading Act 2012.

Subdivision 1—Authorised persons

New section 228 defines an authorised person, an authorising person and a prescribed authorised person for the purposes of new Division 2 and related matters.

Persons who are authorised persons under the Division are similar to the persons authorised under current section 228(1) of the Building Act. A definition of authorising person is included, being a municipal building surveyor, private building surveyor, or a Minister, public authority or person authorised to carry out work or other functions under the Building Act or the Authority who or which have authorised persons to exercise a power under Division 2. These authorising persons can authorise applications for search warrants. A prescribed authorised person, who is a person authorised by the VBA, municipal building surveyors when acting in their municipal district and Energy Safe Victoria, can exercise a broader range of powers under the Division, reflecting that the VBA, councils and Energy Safe Victoria have roles in prosecuting offences in accordance with section 241 of the Building Act.

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New section 228A deals with authorisation of persons.

Subsection (1) enables municipal building surveyors, private building surveyors, and Ministers, public authorities and persons authorised to carry out work or other functions under the Building Act, to appoint a person to exercise powers on their behalf.

Subsection (2) enables the VBA to authorise staff to be authorised persons to exercise powers under the Division.

Subsections (3), (4), (5) and (6) provide that a municipal building surveyor, Energy Safe Victoria and the VBA must not appoint certain persons as an authorised person unless satisfied that the person is appropriately qualified or has successfully completed appropriate training. This reflects that these persons can act as prescribed authorised persons.

New section 228B requires a person who authorised another person to exercise inspection powers to provide an identity card to that person.

Subsection (1) provides that an authorising person must issue identification to each authorised person they authorise.

Subsection (2) provides that an identity card must contain a photograph of that authorised person and the person's name.

Subsection (3) provides that an authorised person must produce his or her identification before exercising any power under the Building Act or the regulations and at any time during the exercise of a power under the Building Act or the regulations, if requested to do so. It is an offence, attracting a maximum penalty of 1 penalty unit, for an authorised person not to comply with this provision.

Subdivision 2—Requirements to produce information or documents under a court order

New section 229 provides that a prescribed authorised person may seek a court order to obtain information and documents. Unlike the powers in new Division 1C, there are no restrictions on the use of information gathered under this section because the Magistrates' Court can oversee the exercise of powers.

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Subsections (1) and (2) provide that a prescribed authorised person may, with the written approval of an authorising person (the VBA, municipal building surveyor or Energy Safe Victoria), apply to the Magistrates' Court for an order requiring a person who the authorised person reasonably believes may have contravened this Bill or the regulations to answer questions, provide information or produce documents in relation to the alleged contravention.

Subsection (3) provides that the Magistrates' Court may grant an order sought under subsection (1) if it is satisfied there are reasonable grounds to believe that a person or persons may have contravened this Bill or the regulations.

Subsection (4) provides that the Magistrates' Court, when making an order, must specify a day on which the order ceases to have effect.

Subsection (5) provides that if an order does not specify a day on which it ceases to have effect, it ceases to have effect 28 days after the making of the order.

New section 229A sets out what a prescribed authorised person may do with documents produced to the prescribed authorised person under an order made under section 229. A prescribed authorised person may inspect, copy, seize, secure or retain possession of any documents provided. However, a prescribed authorised person may also seize documents if he or she believes it is necessary for the purpose of obtaining evidence for the purpose of any proceedings under the Building Act or regulations.

New section 229B provides that a prescribed authorised person must, as soon as practicable after executing an order under this Subdivision, notify the Magistrates' Court in writing of the listed information.

Subsection (2) provides that the Magistrates' Court may direct a prescribed authorised person to bring before the Court any document seized under section 229A(1)(c).

Subsections (3) and (4) provide that the Magistrates' Court may direct that a document brought before it under subsection (2) is to be returned to its owner if this is consistent with the interests

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of justice. Such a direction may be subject to any condition imposed by the Court.

Subdivision 3—Requirements to produce information or documents

New section 230 enables an authorised person (excluding prescribed authorised persons) to require a person to give information or produce documents for the purpose of determining compliance with the Building Act or the regulations. The authorised person can make copies or take extracts from documents that are produced.

Subdivision 4—General inspection powers

New section 231 enables authorised persons to enter land or buildings for the purposes of conducting an inspection authorised under the Building Act. It reflects current sections 229, 230 and 231E(2) of the Building Act.

Subsection (1) authorises entry for the purposes of inspecting any of the following—

a building;

a place of public entertainment;

any equipment, installation, service, records or reports relating to the building or place of public entertainment;

building work or plumbing work.

This provision is limited to where another provision of the Building Act or the regulations authorises or requires entry for the purpose of an inspection. For example, Part 4 of the Building Act sets out requirements for inspections of building work.

Subsection (2) details when an inspection can be made. Inspections of residences may only be made between 8 a.m. and 6 p.m. or with consent. Inspections of other land and buildings may be made at any reasonable time.

Subsection (3) imposes a requirement on the authorised person to inform the occupier of the residence, or land on which the residence is located, of the purpose of the entry before the entry occurs or consent to enter is obtained.

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Subsection (4) requires an authorised person to give at least 24 hours notice before entering a land or building without consent.

Subsection (5) specifies that an authorised person who exercises a power of entry may inspect and take photographs or make sketches of the building or land or building work or plumbing work concerned. In addition, new section 232 enables an authorised person to obtain information and documents.

New section 231A enables a prescribed authorised person to enter a land or building without consent or a search warrant in certain circumstances.

Subsection (1) sets out that a prescribed authorised person may enter and search any building or land for the purposes of monitoring compliance with the Building Act or the regulations, or an order made by a court or tribunal under the Building Act or the regulations, at which the prescribed authorised person believes on reasonable grounds a person is conducting a business relating to the plumbing or building industry, or a person is keeping a record or document that is required to be kept under the Building Act and may indicate compliance.

Subsection (2) provides that a prescribed authorised person may enter and search premises under subsection (1) with the assistance of any person necessary to provide technical assistance to the authorised person.

Subsection (3) sets out the powers of a prescribed authorised person under this clause, including certain powers to examine, seize and secure things found on the building or land, take and keep samples, and require the production of documents for examination and copying.

Subsection (4) provides that a power under this clause must not be exercised in any part of the building or land that is used for residential purposes and can only be exercised between the hours of 8 a.m. to 6 p.m., or when the building or land are open for business.

Subsection (5) provides that if an authorised person exercises a power of entry under this clause in the absence of the owner or occupier the authorised person must leave a notice setting out certain details about the entry and the procedure for contacting an authorised person for further details of the entry.

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New section 231B enables a prescribed authorised person to use electronic equipment found at the building or land when acting under section 231A.

Subsection (1) provides that if a prescribed authorised person finds an information storage device and equipment to access the device and the prescribed authorised person believes on reasonable grounds that information stored on that device may be relevant to whether the Building Act or the regulations have been complied with, the prescribed authorised person may operate that device, or require the occupier of the building or land or the occupier's employee to operate the device, so as to access the information.

Subsection (2) provides that if a prescribed authorised person believes that an information storage device at the building or land is used in the transmission of information relevant to determine compliance with the Building Act or the regulations, the prescribed authorised person may put the information into documentary form and seize those documents, copy the information to another storage device or, if it is not practicable to put the information in a documentary form or copy the information, seize the information storage device and the equipment that enables the information to be accessed.

Subsection (3) provides that a prescribed authorised person must not operate or seize equipment under this section unless the authorised person believes on reasonable grounds that the operation can be carried out without damage to the equipment.

New section 231C provides that an authorised person may enter or search a building or land with the consent of the occupier of the building or land.

Subsection (1) provides that if an authorised person has reasonable grounds for suspecting that a person has contravened the Building Act or the regulations, the authorised person may, with the occupier's consent, enter and search the building or land and exercise a power referred to in subsections (2) and (3).

Subsection (2) provides that, when entering a building or land with the consent of an occupier, an authorised person may seize any thing the authorised person finds on the building or land, and examine, take and keep samples of any goods the authorised person finds on the building or land, if the authorised person believes on reasonable grounds that the goods are

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connected with the alleged contravention. In the case of any document on the building or land, an authorised person may do any of the following—

require the document to be produced for examination;

examine, make copies or take extracts from the document (or arrange for copies to be made or extracts taken);

remove the document for as long as reasonably necessary to make copies or take extracts.

Subsection (3) provides that an authorised person may make any still or moving image or audiovisual recording if the authorised person reasonably believes it is necessary to do so for the purpose of establishing the alleged contravention.

Subsection (4) limits the ability to seize things, take samples of things and remove documents to prescribed authorised persons.

New section 231D provides that an authorised person must not enter and search a building or land under section 231C unless, before the occupier has consented to the entry and search, the authorised person has informed the occupier of the purpose of the search and that the occupier may refuse to consent to the entry and search or to the seizure of anything found during the search, as well as the taking of any sample of goods or any copy or extract from a document found during the search. An occupier must also be informed that anything seized or taken with consent may be used as evidence.

New section 231E provides that before an authorised person enters and searches a building or land under section 231C, the authorised person must ask the occupier to sign an acknowledgement.

Subsection (2) sets out what an acknowledgement for the purposes of subsection (1) must contain. The acknowledgement must state the following—

the purpose of the search; and

that the occupier may refuse to give consent to the entry and search, the seizure of anything, the taking of any sample of goods or any copy or extract from a document; and

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that anything seized or taken with the occupier's consent may be used as evidence.

The acknowledgement must also state that the occupier has consented to the entry and search, and the date and time of that consent.

Subsection (3) provides that if the occupier consents to the authorised person seizing or taking anything from the building or land during the search, before seizing or taking the thing, the authorised person must ask the occupier to sign an acknowledgement.

Subsection (4) provides that an acknowledgement for the purposes of subsection (3) must state that the occupier has consented to the seizure or taking of the thing, and the date and time of that consent.

Subsection (5) provides that the authorised person must give a copy of a signed acknowledgement to the occupier before leaving the building or land.

Subsection (6) provides that if, in any proceeding, a signed acknowledgement is not produced to the court or tribunal, it is to be presumed until the contrary is proved that the occupier did not consent to the entry and search or to the seizure or taking of the thing.

New section 231F enables an authorised person to apply to the Magistrates' Court for a search warrant in relation to a particular building or land.

Subsection (1) enables an authorised person to apply to the Magistrates' Court for the issue of a search warrant if the authorised person believes on reasonable grounds that there is, or may be within the next 72 hours, evidence in the building or on the land that a person may have contravened the Building Act or the regulations.

Subsection (2) requires that an application for a search warrant have the written approval of any authorising person.

Subsection (3) enables a magistrate to issue such a search warrant in accordance with the Magistrates' Court Act 1989 if satisfied by the evidence.

New section 231G sets out the form and content of a search warrant issued under section 231F(3).

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Subsection (1) provides that a search warrant may authorise an authorised person named in the warrant to enter a specified building or land, by force if necessary and do any of the following—

in relation to particular things named or described in the warrant, search for, seize, secure against interference, examine, inspect and take and keep samples of the thing;

in the case of a document, require the document to be produced for inspection, examine, make copies or take extracts from the document or remove the document in order to make copies or take extracts;

make a still or moving image or audiovisual recording of any thing of a particular kind named or described in the warrant.

Subsection (2) provides that a search warrant may authorise any other another person, in addition to an authorised person, to execute the warrant.

Subsection (3) sets out particular things that must be stated in the search warrant, including its purposes, any conditions to which the warrant is subject, whether entry is authorised for a specified time or any time of the day or night, and the day on which the warrant ceases to have effect.

Subsection (4) limits the ability to use force, seize things, take samples of things and remove documents to prescribed authorised persons.

Subsection (5) provides that a search warrant issued under the Bill must be issued in accordance with the Magistrates' Court Act 1989 and the rules that apply to search warrants under that Act extend and apply to a search warrant issued under section 231F(3).

New section 231H provides that a search warrant issued under section 231F(3) authorises a prescribed authorised person named in the warrant to seize or take a sample of things not described in the warrant if—

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the prescribed authorised person believes on reasonable grounds that the thing is of a kind that could have been included in a search warrant issued under new Subdivision 4; and

in the case of seizure, that seizing the thing is necessary in order to prevent its concealment, loss, or destruction or its use in the contravention of the Building Act.

New section 231I provides that before executing a search warrant under section 231F(3), the authorised person named in the warrant must announce that he or she is authorised by the warrant to enter the building or land, and if the authorised person has been unable to obtain unforced entry, must give any person at the building or land an opportunity to allow entry. However, an authorised person is not required to comply with these requirements if the authorised person believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the search warrant is not frustrated.

New section 231J provides that an authorised person, when executing a search warrant, must identify himself or herself to the occupier of the building or land and provide the occupier with a copy of the warrant, or if the occupier is not present, any other person who is present at the building or land, and give that person a copy of the warrant.

New section 231K enables a prescribed authorised person executing a search warrant authorising the seizure of any thing to issue an embargo notice if the thing cannot, or cannot readily, by physically seized and removed.

Subsections (2) and (3) set out how the embargo notice is to be issued, and that the notice must be in the prescribed form.

Subsection (4) provides that it is an offence to which a maximum penalty of 60 penalty units applies, for a person who knows that an embargo notice relates to a thing, to sell, lease, move without consent, transfer or otherwise deal with that thing.

Subsection (5) provides that it is a defence to a prosecution for an offence against subsection (4) to prove that the accused

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moved the thing for the purposes of protecting and preserving it.

Subsection (6) provides that despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void.

New section 231L enables a prescribed authorised person, for the purpose of monitoring compliance with section 231K(4), to apply to the Magistrates' Court for an order requiring the owner of the thing to which the embargo notice relates, or the occupier of the building or land where the thing is kept, to answer questions or produce documents at a time and place specified by the prescribed authorised person for the purpose of monitoring compliance with the embargo notice.

Subsection (2) provides that an application must be made with the written approval of any authorising person.

Subsection (3) allows the Magistrates' Court to make such an order.

New section 231M enables a prescribed authorised person to apply to the Magistrates' Court for a search warrant permitting entry to the building or land where a thing subject to an embargo notice is being kept for the purpose of monitoring compliance with section 231K(4).

Subsection (2) provides that an application must be made with the written approval of any authorising person.

Subsection (3) allows the Magistrates' Court to issue the search warrant in accordance with the Magistrates' Court Act 1989 if satisfied by the evidence.

New section 231N sets out the required form and content of search warrants issued under section 231M(3).

Subsection (1) provides that a search warrant issued under section 231M(3) may authorise a prescribed authorised person named in the warrant to enter the specified building or land, if necessary by force.

Subsection (2) provides that a search warrant issued under section 231M(3) may authorise a prescribed authorised person to search for, seize and secure against interference the thing named in the warrant.

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Subsection (3) provides that a search warrant in relation to an embargo notice may authorise any other another person, in addition to the prescribed authorised person, to execute the warrant.

Subsection (4) states that the requirements for announcement before entry under section 231I and providing details of the warrant under section 231J extend to search warrants issued under section 231M(3).

Subsection (5) states that except as provided by the Building Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants issued under section 231M(3).

New section 231O provides authorised persons with certain emergency entry powers.

Subsection (1) enables an authorised person to enter and search any building or land at any time, if the authorised person reasonably believes that—

the safety of the public or the occupants is at risk; or

an emergency order under Part 8 applies to the building or land; or

an emergency plumbing order under section 221ZZF applies to the building or land. This reflects current section 232.

Subsection (2) provides that an authorised person may receive assistance in exercising powers under subsection (1) from any other person necessary to provide the authorised person with technical assistance.

Subsection (3) provides that if, during an emergency entry an authorised person reasonably believes that a thing in the building or on the land present a threat of imminent injury or death, the authorised person may seize the thing; secure the thing against interference; require the occupier to remove the thing; and examine, take and keep samples of the thing.

Subsection (4) provides that the authorised person may undertake certain actions in relation to documents on the building or land if the authorised person reasonably believes

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that it is necessary to do so, including—examine, copy or take extracts from the document (or arrange for this to be done); or remove the document in order to make copies or take extracts. An authorised person may also make any still or moving image or audiovisual recording.

Subsection (5) provides that if an authorised person exercises a power of entry under this section, in the absence of the owner or occupier, the authorised person must leave a notice setting out certain details about the entry and the procedure for contacting the authorised person for further details of the entry.

Subsection (6) limits the ability to seize things, take samples of things and remove documents to prescribed authorised persons.

New section 231P allows an authorised person to enter and inspect any part of a building or land that is, at the time of entry and inspection, open to the public.

Subdivision 5—Miscellaneous provisions

New section 232 provides than an authorised person who has exercised a power of entry under Subdivision 4 may require the occupier of a building or land, to give information, produce documents and give reasonable assistance to the authorised person.

New section 232A provides that if a prescribed authorised person retains possession of a document seized from a person, the authorised person must provide that person with a certified copy of that document as soon as practicable after the seizure and that a certified copy is to be received in all courts and tribunals as evidence of equal validity to the original.

New section 232B requires a prescribed authorised person to take reasonable steps to ensure that documents or things seized under this Division are returned within 3 months after their seizure.

Subsection (2) provides that documents or things are only required to be returned if the prescribed authorised person is satisfied that the document or thing is not required (or is no longer required) for the purpose for which it was seized; the continued retention of the document or thing is not necessary to prevent the document or thing being used in a way that would justify its seizure as evidence; and no dispute over ownership of

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the documents or things exists for which an application under section 232C would be the appropriate resolution.

Subsection (3) provides that the section does not apply if the Magistrates' Court has extended the period for retention under section 232D.

Subsection (4) clarifies that the section is not intended to affect any lien or other security over a thing.

Subsection (5) clarifies that nothing in the section prevents the return of documents or things if the prescribed authorised person considers there is no reason for the continued retention of those documents or things.

Subsection (6) defines who is a relevant person in relation to a document or thing for the purposes of the section.

New section 232C enables a person from whom a document or thing was seized or a person claiming to be the owner of that document or thing to apply to the Magistrates' Court for an order for the return of the document or thing. A copy of the application must be served on the authorised person, and the authorised person is entitled to appear before the Court. The Magistrates' Court may order the return of the documents or things if satisfied that the document or thing is not required for the purpose for which it was seized and the continued retention of the document or thing is not necessary to prevent the document or thing being used in a way that would justify its seizure as evidence.

New section 232D enables a prescribed authorised person to apply to the Magistrates' Court for an order to extend the period for which an authorised person may retain a seized item. The order for an extension must not exceed 3 months.

Subsection (2) requires that an application for such an order must be made within 3 months of the seizure or if an extension has been granted under this clause, before the end of the period of the extension.

Subsection (3) allows the Magistrates' Court to make such an order if it is satisfied that it is in the interests of justice, the total period of retention does not exceed 12 months and retention of the document or thing is necessary for the purposes of an investigation or to enable evidence of a contravention to be obtained.

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Subsection (4) provides that notice of the application must be sent to the owner of the seized document or thing at least 7 days prior to the hearing of an application.

New section 232E provides that it is an offence for a person, without reasonable excuse, to refuse or fail to comply with a requirement of an authorised person under Division 2. A penalty of 60 penalty units applies.

New section 232F specifies what protection against self-incrimination applies for natural persons under Division 2.

Subsection (1) provides that it is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person may be required to do under Division 2 on the ground of self-incrimination.

Subsection (2) provides that despite the protection against self-incrimination afforded in subsection (1) a person cannot rely on the protection against self-incrimination in relation to the production of documents that the person may be required to produce.

New section 232G enables authorised persons to request the assistance of a member of the police force to assist the person to take any action authorised by Division 2.

New section 232H provides for the taking of samples by prescribed authorised persons.

Subsection (1) provides that if a prescribed authorised person proposes to take a sample, the authorised person must advise the person in possession of the sample why the sample is being taken.

Subsection (2) provides that, on request, the prescribed authorised person must give part of the sample to the person from whom it was taken.

Subsection (3) provides if a sample is taken, the prescribed authorised person must return the sample within 28 days after the sample was taken if the sample is not required for the purpose of proceedings under the Building Act.

New section 232I requires an authorised person who has exercised a power of entry to provide a report to the person who authorised them within 7 days after the entry, setting out relevant details, including the time and place of the entry, the

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purpose of the entry, a description of activity while on the building or land and the time of departure. The persons to whom entry must be reported are—

the VBA, in the case of an authorised person who is authorised by the VBA or who is a plumbing inspector or a compliance auditor appointed under Part 12A; and

to the authorising person, in the case of an authorised person who is authorised under section 228A(1).

New section 232J requires a person who is required to receive a report under section 232I to keep a register containing the particulars of all matters reported to that person, as well as similar particulars where that person themselves effects entry.

Subsections (2) and (3) empower the VBA to request to inspect registers kept under this section.

Subsection (4) clarifies that the VBA is not required to comply with subsection (1)(b) (reflecting that the VBA itself cannot effect entry).

New section 232K provides that it is an offence to impersonate an authorised person. A penalty of 60 penalty units applies.

New section 232L provides that it is an offence attracting a maximum penalty of 20 penalty units for an authorised person to disclose any information obtained in exercising his or her powers as an authorised person to any other person.

Subsection (2) provides that the offence under subsection (1) does not apply to information disclosed in the following circumstances—in the carrying out of an authorised person's functions; in connection with the enforcement of the Building Act or regulations, to give information permitted or required under the Building Act or any other Act or the regulations, for the purpose of legal proceedings arising under the Building Act or the regulations; or with the consent of the Minister.

New section 232M empowers an authorised person to certify a failure to comply with a requirement to the court in certain circumstances.

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Subsection (1) provides that if an authorised person is satisfied that a person has, without reasonable excuse, failed to comply with an information-gathering requirement under section 232(1), an authorised person may apply to a court for an order directing the person to comply with the requirement.

However, subsection (1) is subject to subsection (2) which states that an authorised person cannot certify a failure to a court if the person to whom the failure relates has been charged with an offence against section 232E. This is the offence of refusing or failing to comply with a requirement of an authorised person.

Subsection (3) enables the court to order the person to comply with the requirement within the time specified in the order and make any other orders it considers appropriate.

Subsection (4) provides that if proceedings are brought under this clause in relation to a failure to comply with a requirement a person cannot be charged with an offence under section 232E in respect of that failure.

Division 2A—Complaints

New section 233 provides that any person may complain to certain persons about the exercise of a power by an authorised person.

Subsection (1) provides that a person may complain to the Secretary of the Department of Transport, Planning and Local Infrastructure about the exercise of information-gathering powers by the VBA under new Division 1C of Part 13 or by a person authorised by the VBA under new Division 2 of Part 13.

Subsection (2) provides that a person may complain to a council about the exercise of information-gathering powers by a municipal building surveyor who is carrying out the functions of a municipal building surveyor or a person authorised by that surveyor under new Division 1C or Division 2.

Subsection (3) provides that a person may complain to a public authority which is authorised or required by this Act or the regulations to carry out any work or inspection or any other function about the exercise of inspection powers under new Division 2 by persons authorised by that public authority.

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Subsection (4) provides that a person may complain to the VBA about the exercise of inspection powers under new Division 2 by an authorised person who is—

a private building surveyor or a municipal building surveyor carrying out a function in accordance with section 216C; or

a person who is authorised or required by this Act or the regulations to carry out any work or inspection or any other function; or

a plumbing inspector appointed under Part 12A; or

a compliance auditor appointed under Part 12A; or

a person authorised under section 228A(1) to act on behalf of a person or body other than a municipal building surveyor or public authority.

Subsection (5) provides that the person to whom a complaint is made must investigate and provide a written report in relation to each complaint.

Clause 88 replaces section 237 of the Building Act, to remove the provisions relating to the service of documents on the BPB and the BAB.

Clause 89 substitutes new section 239 of the Building Act, which provides that in certain proceedings involving the VBA or Registrar, no proof is required (unless evidence is given to the contrary) about the constitution of the of the Building Act VBA, determinations of the VBA, the appointment of the Registrar and Commissioners and the presence of a quorum at a VBA Board meeting. Existing section 239 has been re-enacted as new section 154B.

Clause 90 omits the word "appeal" from section 240 of the Building Act, reflecting that the terminology used for such matters is "application for review".

Clause 91 makes various amendments to the Building Act to reflect the abolition of the BPB and the transfer of its functions to the VBA.

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Subsection (1) repeals section 241(2) of the Building Act, which enables the BPB to authorise people to prosecute certain offences and recover money. The BPB's functions are to be transferred to the VBA.

Subsection (2) amends section 241(2B) to enable the VBA to recover money owing under Part 10.

Subsection (3) replaces a reference to Part 11 with a reference to Part 10.

Subsection (4) amends section 241A(2) to require the VBA, rather than the BPB to comply with a direction of a court that a person is ineligible for registration.

Clause 92 inserts sections 241AB and 241AC into the Building Act, relating to additional penalties for corporations and partnerships.

New section 241AB provides that, if an officer of an unregistered body corporate that is a domestic builder is found guilty of carrying out domestic building work in contravention of the Building Act or the regulations, a court may direct the VBA that, in addition to the other penalties imposed, the officer is ineligible to apply for registration for not more than 3 years.

New section 241AC provides that, if a court finds one or more members of a partnership guilty of carrying out domestic building work in contravention of the Building Act or the regulations, a court may direct the VBA that, in addition to the other penalties imposed, each member of the partnership is ineligible to apply for registration for not more than 3 years.

Clause 93 substitutes section 241B of the Building Act. It provides that a report of non-compliance given to the VBA under section 48M of the DBCA is evidence in proceedings against the builder under the Building Act or the regulations. The report details the inspector's opinion that there has been a failure to comply with the Building Act or the regulations with respect to any domestic building work. The new section covers all builders, unlike the former section which only covered unregistered builders.

Clause 94 substitutes section 242(2) of the Building Act. The new subsection omits a reference to the BPB.

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Clause 95 inserts new sections 243 and 243A to 243E into the Building Act.

New sections 243 and 243A introduce provisions addressing directors' liability modelled on COAG principles contained in the publication Personal Liability for Corporate Fault: Guidelines for applying the COAG Principles that was endorsed by COAG on 25 July 2012 and published on the COAG website.

New section 243 provides that if a body corporate commits an offence, an officer of the body corporate also commits the offence if the officer—

authorised or permitted the commission of the offence by the body corporate; or

was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.

The accessorial liability provision applies to the following offences—

section 25A(1), (2) and (3), relating to notice to building surveyors of changes;

section 25B, relating to who can operate as an owner-builder;

section 30(1) and (1A), relating to the requirement of a relevant building surveyor to give documents to council;

section 30B, inserted by clause 36, relating to certification of returns of documents under section 30 by building surveyors;

section 33(1), relating to notifications of mandatory inspection stages;

section 37F(1), (2) and (3), inserted by clause 40, relating to requirements imposed on a relevant building surveyor about the giving of directions;

section 61(1) and (2), relating to notifications of occupancy permits;

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section 73(1) and (1A), relating to a requirement on relevant building surveyors to give documents to the council;

section 78A(1), inserted by clause 44, relating to the giving of information statements by private building surveyors;

section 80D(3), inserted by clause 46, relating to private building surveyors giving notice of termination of their appointment;

section 83G, inserted by clause 49, relating to participation in a business under management;

section 83R(1), inserted by clause 49, relating to a requirement imposed on managers to keep information confidential;

section 83S, inserted by clause 49, relating to obstruction of a manager;

section 93(3) and (5), relating to lodging copies of insurance;

section 95(2), relating to the giving of notice before effecting entry to undertake protection work;

section 96, relating to the obstruction by adjoining owners and occupiers of persons undertaking protection work;

section 101(1) and (2), relating to lodgement of plans for protection works;

section 120(1), relating to notification of completion of required work required by an emergency order or building order;

section 125(1), relating to notification of the giving of an emergency order, building order or building notice;

section 137B(2), relating to an owner-builder selling a house without a report or insurance;

section 154A(1), inserted by clause 58, relating to changes to information by registered building practitioners;

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section 162A, inserted by clause 58, relating to the giving of notice by building practitioners to customers if their registration is suspended or cancelled;

section 221ZLA(2), relating to the giving of compliance certificates to owners by building practitioners;

section 221ZZC(1), relating to compliance with plumbing orders;

section 227D(1), relating to compliance with requirements of compliance auditors;

section 227G(2), inserted by clause 86, relating to non-compliance with requests for information and the production of documents;

section 227H(3), inserted by clause 86, relating to non-compliance with requests for information, the production of documents and the giving of evidence;

section 231K(4), inserted by clause 87, relating to non-compliance with embargo notices;

section 232E, inserted by clause 87, relating to refusals to comply with requirements in relation to inspection;

section 232K, inserted by clause 87, relating to impersonation of an authorised person;

section 232L(1), inserted by clause 87, relating to divulging of confidential information;

section 244, relating to the obstruction or hindering of authorised persons;

section 248(1), relating to agents acting without authority;

section 250(4), relating to compliance by an occupier of land with an order for the owner to carry out certain work.

The accessorial liability provision applies to the following other new offences—

section 23A(2), inserted by clause 124, relating to the issue of a building permit that does not specify a building permit number (see clause 136);

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section 137B(2), inserted by clause 149, relating to the selling of buildings by owner-builders without the required insurance (see clause 163);

section 137EA(2), inserted by clause 150, relating to the selling of buildings by owner-builders without the required fund coverage (see clause 163);

section 137F, inserted by clause 150, related to the sale of land on which a home is being constructed (see clause 163).

New section 243A provides a Type 1 directors' liability provision. The clause imposes liability on officers where the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.

The Type 1 directors' liability provision applies to the following existing offences—

section 16(1) and (2), inserted by clause 24, relating to undertaking work without a permit or in a manner not in accordance with the Building Act, regulations and permit;

section 33(2), relating to a failure to stop carrying out building work when directed to do so by a relevant building surveyor;

section 39(1) and (2), relating to occupation of buildings and parts of buildings where an occupancy permit is required but has not been issued;

section 40(1), relating to occupation of buildings in a manner inconsistent with a building permit or occupancy permit;

section 49, relating to conducting public entertainment in a building without an occupancy permit permitting its use for entertainment;

section 50, relating to permitting public entertainment in a building without an occupancy permit permitting its use for entertainment;

section 51, relating to the conduct of public entertainment in a manner inconsistent with a building permit or occupancy permit;

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section 52, relating to the use of a temporary structure in a manner inconsistent with an occupancy permit;

section 78(2), relating to the appointment of a surveyor where another has already been appointed to act;

section 79(1) and (2A), relating to circumstances in which a private building surveyor must not act because of a conflict;

section 80D(1), inserted by clause 46, relating to a private building surveyor continuing to act where a conflict of interest has arisen;

section 82(2), relating to compliance with the VBA directions in relation to surveying;

section 83(3), inserted by clause 49, relating to compliance with a direction to transfer work to another building surveyor;

section 88(1) and (2), relating to carrying out work before protection requirements are met;

section 89(3), relating to non-compliance with a declaration by the VBA when carrying out emergency protection work;

section 93(1) and (4), relating to insurance coverage;

section 118(1) and (2), relating to non-compliance with emergency orders and building orders;

section 136(1) and (2), relating to undertaking of building work and domestic building work without insurance;

section 137, relating to claiming to be insured when there is no insurance;

section 138(1), (2) and (3), inserted by clause 58, relating to taking certain titles when not appropriately registered and holding out as being qualified or registered;

section 139(1), (2) and (3), inserted by clause 58, relating to carrying out work as a building surveyor without being appropriately registered;

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section 140, inserted by clause 58, relating to carrying out unregistered domestic building work under a major domestic building contract;

section 141, inserted by clause 58, relating to ensuring domestic builder bodies corporate have at least one registered director;

section 142(1), inserted by clause 58, relating to ensuring building surveyor bodies corporate have at least one registered director;

section 221ZZG(1) and (2), relating to non-compliance with emergency plumbing orders;

section 245(1) and (2), inserted by clause 97, relating to receipts of payments by registered building practitioners and attempts to pay to influence compliance;

section 246(1) and (2), inserted by clause 97, relating to the giving of false or misleading information or documents.

The Type 1 directors' liability provision applies to the following new offences—

section 137D, inserted by clause 150, relating to the carrying out of domestic building work without the required fund coverage (see clause 163);

section 137DA, inserted by clause 150, relating to the carrying out of domestic building work without the required fund coverage (see clause 163);

section 23A(1), inserted by clause 124, relating to the issue of a building permit before the VBA has issued a building permit number (see clause 136).

New section 243B imposes liability on the directors of bodies corporate to pay penalties incurred by the body corporate where the body corporate is found guilty of an offence or has a fine imposed as a result of disciplinary action under section 161E referred to in section 155(1)(e), but does not pay the penalty. The liability to pay the penalty attaches to any person who was a director at the time the offence, act or omission occurred, as well as any person who was a director at the time the penalty was imposed.

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New section 243C imputes liability to principals (corporations and employers) for the acts of officers, employees and agents. This clause is modelled on section 196 of the Australian Consumer Law and Fair Trading Act 2012.

Subsection (1) provides that, if it is necessary to establish a body corporate's state of mind for the purposes of a proceeding under the Building Act in respect of conduct to which the Building Act applies, it is sufficient to show that an officer, employee or agent of the body corporate engaged in that conduct within the scope of their actual or apparent authority, and the officer, employee or agent had the state of mind.

Subsection (2) imputes liability for the conduct of certain classes of people to the body corporate. Conduct by an officer, employee or agent of a body corporate acting within their actual or apparent authority is taken to be conduct engaged in by the body corporate. Similarly, conduct of any other person is taken to be conduct of the body corporate where that person acts at the direction of an officer, employee or agent of the body corporate, or with the consent or agreement of that officer, employee or agent where the officer, employee or agent has actual or apparent authority to give the direction, consent or agreement.

Subsection (3) establishes the state of mind for a person other than a body corporate who is a principal. To establish the state of mind of the principal it is sufficient to show that an employee or agent of the principal engaged in conduct within the scope of the employee or agent's actual or apparent authority, and that the employee or agent had the state of mind.

Subsection (4) imputes liability for the conduct of certain classes of people to a principal. Conduct by an employee or agent of the principal acting within their actual or apparent authority is taken to be conduct of the principal. The conduct of any other person is taken to be conduct of the principal where that person acts at the direction of an employee or agent of the principal, or with the consent or agreement of that employee or agent where the employee or agent has actual or apparent authority to give the direction, consent or agreement.

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Subsection (5) provides that, for the purposes of section 243C, a reference to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose.

New section 243D deems bodies corporate who are building surveyors to have committed an offence or be liable for disciplinary action where their appointee commits a contravention.

New section 243E requires a body corporate building surveyor to notify the VBA of the name of the natural person who carried out specified work for the body corporate in its capacity as a building surveyor. This is to enable the natural person who is the building surveyor to be disciplined in the event of non-compliance with the Building Act and regulations.

Clause 96 amends section 244 of the Building Act to provide that it is an offence to hinder or obstruct an authorised person who is exercising a power under the Building Act. The maximum penalty for this offence has been increased to 60 penalty units to bring it into line with the Australian Consumer Law and Fair Trading Act 2012.

Clause 97 substitutes new sections 245 and 246 of the Building Act.

New section 245 redrafts the current section to improve its clarity without making substantive changes. The section relates to benefits obtained by registered building practitioners and offers of such benefits where the purpose of the benefit is to influence the carrying out of functions under the Building Act.

New section 246 provides for offences, attracting a maximum penalty of 60 penalty units for natural persons and 300 penalty units for bodies corporate, for the making of false or misleading statements, the giving of false or misleading information or the production of false or misleading documents. Currently, the scope of section 246 is limited to making false or misleading statements and giving false or misleading information.

Clause 98 amends section 248(1) of the Building Act relating to the appointment of agents to omit a reference to the word "appeal" (as the Building Act now provides for applications for review) and insert "representation".

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Clause 99 provides for consequential amendments to the wording of section 253 of the Building Act in relation to injunctions due to the VBA and VCAT assuming certain functions of the BAB.

Clause 100 substitutes sections 259A and 259B and inserts section 259C of the Building Act.

New section 259A prohibits Commissioners, employees of the VBA, or members of the Technical Accreditation Committee or an advisory committee or members of former bodies such as the BPB and the BAB from making improper use of information gained by virtue of the person's position. A penalty of 60 penalty units applies, reflecting penalties for similar offences.

New section 259B enables the VBA to enter into information sharing arrangements.

Subsection (1) provides that the VBA may enter into, or approve of, an information sharing arrangement with a relevant agency for the purposes of sharing or exchanging information held by the VBA and the relevant agency.

Subsection (2) places limits of the information to which an information sharing arrangement may relate.

Subsection (3) provides that, under an information sharing arrangement, the VBA and the relevant agency are authorised to request and receive information from, and disclose information to, each other, but only to the extent reasonably necessary to assist in the exercise of theVBA's functions under the Building Act, the DBCA, the Architects Act or the functions of the relevant agency.

Subsection (4) clarifies that, without limiting subsection (3), the VBA may refer to, or receive from, a building regulator or law enforcement agency, any matter (including any complaint) with respect to building work, plumbing work or architectural services to a relevant agency. The VBA may conduct a joint investigation into such a matter with a building regulator or law enforcement agency.

Subsection (5) clarifies that, despite any other Act or law of Victoria, any building regulator or law enforcement agency is authorised to refer a matter referred to in subsection (4) to the

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VBA or to conduct a joint investigation into the matter with the VBA.

Subsection (6) ensures that section 259B does not limit the powers of the VBA under the Building Act; the operation of another Act that authorises or requires a relevant agency to disclose information; or the giving of information to a court or tribunal, pursuant to a court or tribunal order, to law enforcement agencies, or with the authority of the Secretary or the person concerned.

Subsection (7) defines the terms building regulator, law enforcement agency, plumbing work, relevant agency and Secretary for the purposes of section 259B.

New section 259C provides that a certificate purporting to be signed by the Registrar of the VBA is evidence of a decision of the VBA or predecessor bodies as defined in section 259C(2).

Clause 101 makes amendments to section 261 of the Building Act to facilitate the making of regulations regarding conditions prerequisite to registration, the operation of the demerit point scheme, and the procedures of the VBA, the TAC and other advisory committees. It also changes terminology from references to appeals to applications for review. The first regulations made under the new powers will be exempt from consultation and regulatory impact statement requirements under the Subordinate Legislation Act 1994.

Clause 102 inserts notes pointing users to sections 243 and 243A of the Building Act related to directors' liability for certain offences committed by bodies corporate.

Clause 103 replaces the word "deemed" with the word "taken" in certain sections and clauses of the Building Act, reflecting current drafting style.

Clause 104 repeals spent transitional provisions.

Subclause (1) repeals sections 264, 265, 266 and 268 of the Building Act as well as Schedule 6 to the Building Act. These provisions relate to the incorporation of plumbing into the Building Act, as well as changes to the BAB, the BPB and the Building Commission. These provisions are now spent.

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Subclause (2) repeals clauses 4, 6, 9, 16, 18(2), 20, 23 and 24 of Schedule 4 to the Building Act. These provisions related to matters in progress at the time the Building Act commenced operation in 1993 and are now spent.

Subclause (3) repeals clauses 4, 5, 13 and 19 of Schedule 7 to the Building Act. These are spent clauses relating to the establishment of the VBA.

Any residual effect of the repealed provisions will be saved by section 14 of the Interpretation of Legislation Act 1984.

Clause 105 inserts new section 273 into the Building Act which provides that Schedule 8 to the Building Act has effect. Schedule 8 contains transitional and savings provisions.

Clause 106 amends clause 6(3) and (4) of Schedule 2 to the Building Act, which relates to appeals arising from the failure of a reporting authority to inform the relevant building surveyor or an applicant of the reporting authority's decision with respect to an application for a building permit. The amendment reflects the transfer of review jurisdiction from the BAB to the VBA.

Clause 107 amends Schedule 3 to the Building Act relating to the membership and procedure of Boards.

Subclause (1) repeals clause 8. Clause 8 enables the BAB to sit in panels. This will be replaced by Schedule 3A, to be inserted by clause 108.

Subclause (2) repeals clauses 10(1) and (7). Clause 10(1) relates to the procedure of the BAB when sitting in panels. This is to be replaced by Schedule 3A. Clause 10(7) relates to ex-officio members on boards. Members of relevant bodies will not be appointed on an ex-officio basis, requiring individuals to be named instead. This will render clause 10(7) redundant.

Subclause (3) substitutes clause 11(1). This provides a new procedure for the authentication of documents in light of the abolition of the BAB.

Subclause (4) repeals Part 3 of Schedule 3 to the Building Act. This relates to proceedings before the BAB and is replaced by new Schedule 3A.

Clause 108 inserts new Schedule 3A to the Building Act, which applies to proceedings before the VBA under Part 11. It allows the VBA

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to appoint a panel for the purposes of any proceedings under Part 11 and provides for the membership of the panel and for various procedures of a panel. The decision of a panel is taken to be the decision of the VBA. This Schedule largely replicates Part 3 of current Schedule 3.

Clause 109 inserts Schedule 8 to the Building Act, which contains transitional provisions relating to the abolition of the BPB, the BAB and advisory bodies, as well as other matters.

Part 1—Preliminary

Clause 1 inserts definitions for various terms used in the Schedule. In particular, the definition of relevant commencement day means—

in relation to Parts 2, 3, 4, 5, 6 and 10 of the Schedule, the day on which Part 3 of this Bill (which make various amendments to the Building Act) comes into operation; and

in relation to Part 7 of the Schedule, the day on which Part 4 of this Bill (which establishes the new building permit number system) comes into operation; and

in relation to Part 8 of the Schedule, the day on which Part 5 of this Bill (which establishes the new Domestic Building Consumer Protection Scheme) comes into operation; and

in relation to Part 9 of the Schedule, the day on which Part 6 of this Bill (which establishes the new conciliation and rectification framework) comes into operation.

Clause 2 is a general transitional provision intended to ensure that the Interpretation of Legislation Act 1984 is not limited and that the old provisions that continue to apply include subordinate legislation.

Part 2—BPB and Building Practitioners

Part 2 of the transitional provisions provides for the winding up of the BPB's affairs.

Clause 3 is a table listing provisions of the current Act relating to the BPB that will be re-enacted by the Bill.

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Clause 4 abolishes the BPB, with members of the BPB and its subcommittees going out of office. However, if the BPB is expressed to continue for certain purposes, it can do so until those purposes are complete utilising its old procedures.

Clause 5 enables the BPB to continue any proceedings that commenced and determine applications for review received before the commencement day in accordance with the old provisions and provides for the VBA's costs, including the costs for the BPB to be paid out of the Building account.

Clause 6 substitutes the VBA for the BPB as party in any proceeding against the members of the BPB in that capacity.

Clause 7 provides that any decision or action taken under the Building Act by the BPB is to be taken to have been done by the VBA so far as it relates to any period after the commencement day.

Clause 8 provides for the VBA to have issued any certificate of consent issued by the BPB for the period after the commencement day.

Clause 9 provides that the BPB's register of certificates of consent forms part of the VBA's register of certificates of consent.

Clause 10 provides that on and from the commencement day a reference to the BPB in any other 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 VBA.

Clause 11 provides for transitional arrangements related to the new 5 year maximum term for registration. It provides for the expiry of the practitioner's registration on the anniversary of that registration. For the purposes of renewal, the building practitioner is taken to have the necessary qualifications, skills, knowledge and experience.

Clause 12 provides for transitional arrangements for bodies corporate who are domestic builders. It provides that if the body corporate held a certificate of eligibility to hold the required insurance and had at least one registered director, it would be taken to be registered under the Building Act.

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The transitional registration would last until the date of expiry of the registration of the first director of the corporation.

Clause 13 provides for transitional arrangements for bodies corporate that are building surveyors. It provides that while applications for registration may be made from the commencement day, all bodies corporate applicants will only be able to commence operating as a relevant building surveyor 12 months after the commencement day.

Clause 14 enables bodies corporate who are currently eligible to hold themselves out as being registered by virtue of having a registered director to continue to do so for a period of 12 months after the commencement day. The exemption does not apply to bodies corporate that are building surveyors or domestic builders, reflecting that there are different transitional arrangements for those bodies.

Part 3—BAB and VCAT and Proceedings

Part 3 of the transitional provisions provides for the winding up of the BAB's affairs.

Clause 15 defines what constitutes a proceeding for the purposes of the Part.

Clause 16 is a table listing provisions of the current Act relating to the BAB that will be re-enacted by the Bill.

Clause 17 abolishes the BAB, with members of the BAB going out of office. However, if the BAB is expressed to continue for certain purposes, it can do so until those purposes are complete utilising its old procedures.

Clause 18 enables the BAB to continue any proceedings that commenced before the commencement day in accordance with the old provisions. With the exception of decisions or actions that review a decision of the VBA which have effect as if they were decisions of VCAT, decisions of the BAB are taken to be decisions of the VBA. Decisions in relation to the Building and Construction Industry Security of Payment Act 2002 have effect as if they were decisions of VCAT under that Act.

Clause 19 substitutes the VBA as a party in any proceeding against the members of the BAB in that capacity.

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Clause 20 provides that any decision or action taken under the Building Act by the BAB before the commencement day is to be taken to have been done by the VBA so far as it relates to any period after the commencement day. An exception to this is decisions by the BAB on review of the VBA's decisions, which have effect as if they were taken by VCAT. Also decisions of the BAB in relation to the Building and Construction Industry Security of Payment Act 2002 have effect as if they were decisions of VCAT under that Act.

Clause 21 provides that on and from the commencement day a reference to the BAB in any other 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 VBA.

Clause 22 allows the VBA's costs under the Part, including costs relating to the BAB to be paid out of the Building account of the VBA Fund.

Clause 23 provides that exemptions under section 68 of the DBCA are taken to have been made or granted under section 173C of the Building Act. It also provides that applications for such exemptions may be determined by VCAT under section 173C.

Part 4—Advisory Bodies

Part 4 of the transitional provisions provides for the abolition of advisory bodies.

Clause 24 provides that each former advisory body (the Building Advisory Council, Plumbing Advisory Council and BRAC) is abolished and its members go out of office.

Clause 25 provides that accreditations of the BRAC before the commencement day are taken to be accreditations of the TAC on and after that day.

Clause 26 provides that applications for accreditation made to the BRAC before the commencement day are taken to be applications to the TAC and may be determined by the TAC.

Clause 27 provides that on and from the commencement day a reference to the BRAC in any Act, subordinate instrument or

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other document, as far as it relates to any period after the commencement day, is taken to be a reference to the TAC.

Part 5—Building Surveyors and Building Permits and Enforcement Powers

Part 5 deals with transitional matters arising from changes to the building permit system and requirements on building surveyors.

Clause 28 provides that certain provisions of the Building Act have been re-enacted as new provisions of that Act.

Clause 29 clarifies that the amendments to section 24A relating to applications for permits for domestic building work made by clause 30 only apply in respect of new applications for building permits.

Clause 30 clarifies that the new obligations inserted by clause 35 with respect to lodgement of documents under section 30 of the Building Act only apply to building permits issued after the relevant commencement date.

Clause 31 clarifies that the new obligation to certify the completeness of returns imposed by clause 36 only applies to building permits issued on or after the relevant commencement date.

Clause 32 clarifies that section 80D inserted by clause 46, dealing with terminations of a private building surveyor's appointment, only applies where the conflicts described in section 80D(1) arise on or after the commencement day.

Clause 33 clarifies that the new powers to recover money from private building surveyors in section 83W inserted by clause 49 applies in relation to private building surveyors appointed before, on or after the commencement day.

Clause 34 provides that the amendment to section 112 of the Building Act made by clause 50, applies to a building order made before, on or after the commencement day. This will enable part of the work to be exempted from the scope of the order. This clause also clarifies that section 125(3), relating to requirements to notify the relevant council and the VBA of failures to comply with an emergency order, building order or building notice only applies to notices or orders issued on or after the commencement day.

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Clause 35 clarifies that section 211F of the Building Act, inserted by clause 74, requiring notification of increased costs of building work, only applies to permits issued on or after the commencement day.

Clause 36 clarifies that the VBA's power to reassess building permit levy inserted at clause 74 only applies to permits issued on or after the commencement day.

Clause 37 provides that the VBA's power to assess building permit levy on unauthorised work inserted at clause 74 applies to building work carried out within 5 years before the commencement day or on or after the commencement day.

Part 6—Directors' Liability

Part 6 deals with transitional matters arising from the imposition of new directors' liability provisions.

Clause 38 clarifies that new sections 243 and 243A, to be inserted by clause 95, apply directors' liability only to offences specified in those sections alleged to have been committed on or after the commencement day.

Part 7—Building Permit Numbers and Related Matters

Part 7 deals with transitional matters arising from the establishment of the building permit number scheme.

Clause 39 ensures that section 18AA, requiring building surveyors to apply for a building permit number, only applies to building permit applications accepted on or after the commencement day.

Clause 40 ensures that section 25AD, requiring building surveyors to give information, only applies in relation to building permits issued on or after the commencement day.

Clause 41 addresses matters arising from the new building permit number system.

Subclause (1) clarifies that the provisions dealing with the building permit number system apply only to building permit applications accepted on or after the commencement day.

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Subclause (2) provides that the repeal of sections 211D and 211E, which require the building surveyor to keep records of levy received and to forward such levy and for the VBA to recover such levy, continue in force in relation to building permit applications accepted before the commencement day, along with exemptions granted under section 211D(2) before that day.

Subclause (3) ensures that record-keeping requirements for the building permit levy contained in section 211D(1)(a) continue for a period of 3 years after the surveyor receives an amount of building permit levy.

Part 8—Domestic Building Consumer Protection Scheme

Part 8 deals with transitional matters arising from the establishment of the domestic building consumer protection scheme.

Clause 42 is a table listing provisions of the current Act relating to domestic building work that will be re-enacted by the Bill.

Clause 43 is a transitional provision for owner-builders of homes who obtained the required insurance before the relevant commencement day. These owner-builders do not have to obtain fund coverage for the same building work.

Clause 44 provides that the VBA may manage claims on the domestic building insurance on behalf of the VMIA on and from the appointed day under section 137C, inserted by clause 150. The clause also allows the VBA and the VMIA to make the necessary arrangements, and prohibits claims on the VBA in relation to the insurance.

Part 9—House Contracts Guarantee Act 1987

Part 9 deals with transitional matters arising from the repeal of the House Contracts Guarantee Act 1987.

Clause 45 enables claims to be paid from the Consolidated Fund, and requires money that was to have been paid into the Domestic Building (HIH) Indemnity Fund to be paid into the Consolidated Fund.

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Part 10—General

Part 10 enables regulations on transitional matters to be made.

Clause 46 enables temporary regulations to be made dealing with unforeseen transitional matters. These regulations may have a retrospective effect, but only to the date that this Bill receives Royal Assent. Such regulations have effect despite anything to the contrary in any other Act except the Charter of Human Rights and Responsibilities Act 2006. Regulations made under the clause that expire on or before 1 July 2015 will be exempt from the consultation and regulatory impact statement requirements of the Subordinate Legislation Act 1994. The clause is repealed on 1 July 2017.

Division 2—Consequential amendments to other Acts

Clause 110 amends notes contained in sections 42(2) and 43 of the Building and Construction Industry Security of Payment Act 2002 to clarify that an applicant can apply to VCAT to seek review of decisions of the VBA pursuant to section 50A(1), to be inserted by clause 111.

Clause 111 amends the Building and Construction Industry Security of Payment Act 2002 to confer jurisdiction on VCAT to review certain decisions relating to the appointment of adjudicators. The BAB exercises a similar jurisdiction under current section 144A.

Clause 112 amends the Casino Control Act 1991.

Subsection (1) substitutes section 128E(2)(b) to require the VBA and VCAT to hold closed hearings on matters affecting the Melbourne casino site or the temporary casino site. This is a consequence of the replacement of the BAB by the VBA and VCAT as the bodies responsible for reviews and dispute resolution under the Building Act.

Subsection (2) repeals section 128E(3). That subsection refers to section 151 of that Act, which has been repealed.

Clause 113 amends section 10 of the Energy Safe Victoria Act 2005 to restrict the ability to delegate the information gathering power under section 227H of the Building Act, as inserted by clause 86.

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Clause 114 amends various sections of the Equal Opportunity Act 2010 to replace references to section 160B of the Building Act (dealing with modifications of the building regulations for people with disabilities) with references to section 171C. See clause 58.

Clause 115 amends section 117AB of the Gas Safety Act 1997 to replace a reference to a Commissioner of the VBA with the VBA itself. This relates to the ability to serve an infringement notice under the Gas Safety Act 1997. The VBA's function under section 117AB will be delegable under section 199 of the Building Act.

Clause 116 amends the Planning and Environment Act 1987.

Subsection (1) substitutes section 62(4) of that Act to reflect the relocation of appeal provisions to Part 11 of the Building Act, as well as the abolition of the BAB.

Subsection (2) amends section 201RG(2) to reflect changes to the location of building permit levy provisions.

Clause 117 amends section 3 of the Residential Tenancies Act 1997 by repealing the definition of Building Appeals Board and inserting a definition of Victorian Building Authority, reflecting the transfer of dispute resolution functions from the BAB to the VBA.

Clause 118 amends the Residential Tenancies Act 1997 to transfer jurisdiction to hear disputes regarding the regulation of caravan parks and movable dwellings from the BAB to the VBA, reflecting that the BAB is being abolished.

Clause 119 makes a consequential amendment to section 50(1) of the Urban Renewal Authority Victoria Act 2003 to reflect changes to the location of building permit levy provisions.

PART 4—BUILDING PERMIT NUMBER PROVISIONS


Clause 120 inserts a new definition for building permit number into section 3(1) of the Building Act.

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Clause 121 amends sections 18 and 18A of the Building Act.

Subclause (1) amends the first note at the foot of section 18 of the Building Act to provide that the VBA, under new section 211D, is to calculate the amount of the building permit levy payable, rather than the relevant building surveyor. This reflects that it is intended that the building permit number system for the building permit levy will be introduced later than other reforms to the building permit levy. See clause 74.

Subclause (2) amends section 18A(2)(a)(iii) to remove references to subsections (b) and (c) in section 211B, to be substituted by clause 132. This relates to a requirement for the relevant building surveyor to notify the Urban Renewal Authority Victoria of certain refusals of applications for permits.

Clause 122 inserts new section 18AA of the Building Act, which requires a relevant building surveyor to apply for a building permit number after accepting a building permit application.

Subsection (1) requires the relevant building surveyor, on accepting an application for a building permit, to apply for a building permit number.

Subsection (2) requires that an application must be in a form approved by the VBA, must include an estimate of the cost of building work and must include the information set out in Part 1 of new Schedule 2A. The information specified in Part 1 of Schedule 2A covers details such as the identity of the applicant, the identity of the registered building practitioner, the person who is to be in charge of the building work, and other details relevant to the proposed building work.

Subsection (3) enables the relevant building surveyor to consider an application for a building permit pending the issue of a building permit number by the VBA.

Clause 123 amends the heading to Division 3 of Part 3 of the Building Act to include the words "and other matters" at the end of the heading. This reflects that the Division will now also deal with matters not directly related to a decision on a permit application such as offences relating to building permit numbers.

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Clause 124 inserts new section 23A into the Building Act which creates 2 new offences relating to the issue of a building permit.

Subsection (1) makes it an offence for the relevant building surveyor to issue a building permit without being first issued a building permit number by the VBA. A penalty of 500 penalty units applies for individuals while a penalty of 2500 penalty units applies for bodies corporate.

Subsection (2) makes it an offence for a relevant building surveyor to issue a building permit which does not specify the building permit number issued by the VBA for that specific building permit, and any other details required to be included under the regulations. This is intended to ensure that the document that is the building permit includes the building permit number. A penalty of 10 penalty units applies for individuals while a penalty of 50 penalty units applies for bodies corporate.

Clause 125 substitutes section 25A and inserts new sections 25AB, 25AC and 25AD into the Building Act.

New section 25A is a re-enactment of current section 25A(1) of the Building Act. It provides that, where the engagement of a building practitioner (or insured architect) ends after the issue of the building permit, both the building/land owner and the building practitioner (or insured architect) must within 14 days of the ending of that engagement, provide written notice to the relevant building surveyor.

New section 25AB provides that, where a building practitioner or insured architect is engaged after the issue of a building permit, both the owner of the building and the building practitioner (or insured architect) must within 14 days of the engagement, each provide written notice to the relevant building surveyor of certain details. The owner must provide details of the registration of the building practitioner or architect and any other prescribed details. Where the engagement is of a building practitioner, the building practitioner must also provide details of their registration, insurance coverage and any other prescribed details. Where the engagement is of an insured architect, the insured architect must provide details of their registration and any other prescribed information.

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New section 25AC provides that where a permit has been issued for building work, the building practitioner engaged to carry out that building work must provide written notice to the relevant building surveyor when the engagement of the person specified in the permit as the person in charge of the building work is terminated. The relevant building surveyor is also to be notified of the subsequent engagement of a new person to be the person in charge of the building work, including details of that person's registration, and any other prescribed details. In addition, the building practitioner is to provide written notice to the relevant building surveyor of any change to the commencement date or completion date of the building work. Notice must be given within 14 days.

New section 25AD requires the relevant building surveyor to notify the VBA, within 5 days (or longer prescribed period), of the events and related information set out in Part 2 of new Schedule 2A. This information relates to changes to key persons involved in the building work, changes to relevant permits or certificates and changes to proposed commencement or completion dates of the building work.

Clause 126 inserts new Division 3AA of Part 3 of the Building Act which deals with the issue of a building permit number by the VBA.

New section 25BA requires the VBA to issue a building permit number in certain circumstances.

Subsection (1) requires the VBA to issue a building permit number to a relevant building surveyor if the applicant has paid to the VBA the required levy (as calculated pursuant to section 211D) and has also provided the Authority with the information required under section 18AA. This includes the cost of the building work and the information specified in Part 1 of new Schedule 2A and covers details like the identity of the applicant, the identity of the registered building practitioner, the person who is to be in charge of the building work, and other details relevant to the proposed building work.

Subsection (2) provides that the VBA may issue the building permit number in the prescribed manner (if any).

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New section 25BB provides that the VBA may refuse to issue a building permit number if it believes that the contract price for the building work specified in the application for the permit was incorrect, or if there is no contract for the work, the estimate of the cost of the building work provided by the relevant building surveyor is incorrect.

New section 25BC requires the VBA, within the longer of any prescribed period or 5 days after receiving all necessary information and the building permit levy, to make a decision as to whether or not to issue a building permit number.

Subsection (2) provides that if the VBA does not make the decision required under subsection (1), the VBA is taken to have refused to issue the building permit number.

New section 25BD provides that the VBA must notify the applicant in writing of its decision not to issue a building permit number, the reasons for that decision, and of the applicant's right to appeal to VCAT for a review of that decision.

Subsection (2) provides that the notice requirement provided for in subsection one is not applicable if the VBA is taken to have refused the application pursuant to section 25BC(2).

Subsection (3) requires the VBA to give a copy of the notice issued under subsection (1) to the relevant building surveyor.

New section 25BE provides that once the building permit number has been issued, the VBA must without delay provide the relevant council with the building permit number and all information received by the VBA pursuant to section 18AA (being the information of the cost of building work and information in Part 1 of new Schedule 2A).

Clause 127 amends section 80 of the Building Act. Section 80 provides that a private building surveyor must notify the relevant council of their appointment within 7 days of that appointment. This will be replaced by an obligation on the relevant building surveyor to notify the VBA of their appointment. The VBA will then notify councils.

Clause 128 inserts new section 165AA in the Building Act which provides an unsuccessful applicant for a building permit number the ability to apply to VCAT for a review of the VBA's refusal to issue the building permit number.

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Clause 129 substitutes section 197(j) of the Building Act, which currently provides that a function of the VBA is to monitor the building permit levy collection system. New subsection (j) provides that a function of the VBA is to calculate and collect the building permit levy (rather than just monitoring the system). This change reflects the shift from the system of building surveyors collecting and providing the levy to the VBA after the permit is issued, to one where the permit cannot be issued by the building surveyor until the levy is paid directly to the VBA.

Clause 130 substitutes section 205A(1)(c) of the Building Act to provide that any building permit levy, penalty levy, and any costs of levy assessment, received by the VBA pursuant to Subdivisions 1, 2 or 3 of new Division 4A of Part 12 (being the divisions governing the payment of the building levy), are paid into the Building account of the VBA Fund.

Clause 131 substitutes section 211 of the Building Act. It will provide that the applicant for a building permit must pay to the VBA the amount of the building permit levy, as calculated by the VBA, before the building permit is issued.

Clause 132 substitutes sections 211B, 211C and 211D of the Building Act, and repeals section 211E.

New section 211B provides that a relevant building surveyor must refuse an application for a building permit if the relevant building surveyor considers the contract price for the building work is substantially lower than the price that would ordinarily be paid for the kind of work proposed. The relevant building surveyor must also refuse the application if it does not comply with section 211A(1)(b) (which requires sufficient information to be provided to the relevant building practitioner to estimate the cost of the building work) or contains a false or misleading statement about a material particular regarding the cost of the building work.

New section 211C provides that the relevant building surveyor must estimate the cost of the proposed building work having regard to the information provided by the applicant pursuant to section 211A(1)(a) or (b), and without delay give the applicant written notice of the building surveyor's estimated cost of the building work.

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New section 211D provides that the VBA must calculate the amount of the building permit levy payable by the applicant without delay, and provide the applicant with written notice of the amount. The VBA must also provide the relevant building surveyor with a copy of that notice.

Clause 133 substitutes section 211G(3) of the Building Act to provide that the limitation on reassessments of building permit levy can only occur up to 5 years after the issue of the building permit number.

Clause 134 substitutes a reference to section "211D" for "211C" in section 211I(1) of the Building Act. This substitution reflects the obligation of the VBA to calculate the building permit levy in section 211D (rather than by the relevant building surveyor in section 211C).

Clause 135 substitutes a reference to section "211D" for "211C" in section 211J(1) of the Building Act. This substitution reflects the obligation of the VBA to calculate the building permit levy in section 211D (rather than section 211C).

Clause 136 inserts references to sections 23A(1) and (2) as being sections to which the director's liability applies in new sections 243 and 243A of the Building Act respectively. See clause 95.

Clause 137 inserts new Schedule 2A to the Building Act setting out the information that must be provided to the VBA by the relevant building surveyor in relation to building permits.

Part 1 deals with information that must be provided pursuant to section 18AA(2)(c) prior to the issuing of a building permit.

Part 2 deals with information that must be provided pursuant to section 25AD after a building permit has been issued.

These provisions replace the current periodic reporting by building surveyors under section 205J(1)(d) and will provide more contemporaneous information to the VBA regarding building permits and building activity.

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Division 2—Amendments of the Victorian Civil and Administrative Tribunal Act 1998

Clause 138 inserts a new Part 2AC into Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) dealing with the costs of proceedings at VCAT.

Subclause (1) of new clause 4K operates in relation to proceedings commenced under section 165AA of the Building Act, which is the section which provides the ability to seek review at VCAT of a decision by the VBA to refuse to issue a building permit number. New clause 4K gives VCAT the ability to order the VBA to pay the costs of the applicant if the review relates either to a decision of the VBA that is taken to be a refusal to issue a building permit number, or if VCAT is satisfied that the VBA did not have reasonable grounds for refusing to issue the building permit number.

Subclause (2) of clause 4K provides that the power in subclause (1) is additional to VCAT's power to order costs under section 109(2) of the VCAT Act, which is VCAT's general power to award costs. The ability of VCAT to suspend a proceeding pending payment of costs (pursuant to section 109(6) of the VCAT Act) applies to an order under new clause 4K as if the order were made under section 109(2).

PART 5—DOMESTIC BUILDING CONSUMER PROTECTION SCHEME


Clause 139 inserts a new paragraph (ab) into section 1 of the Building Act that adds provision of a domestic building consumer protection scheme to the list of purposes of the Building Act.

Clause 140 inserts new definitions in section 3(1) of the Building Act which relate to the operation of the new domestic building consumer protection scheme, and revises an existing definition.

Clause 141 inserts a new paragraph (ab) into section 4(1) of the Building Act that adds protection of consumers through the provision of a domestic building consumer protection scheme to the list of objectives of the Building Act.

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Clause 142 substitutes section 24A(2)(a)(ii) of the Building Act (inserted by clause 30) to require that a building surveyor must not issue a building permit for domestic building work costing over $16 000 unless the surveyor is satisfied that the work is covered by the Domestic Building Consumer Protection Fund, or is covered by the required insurance.

Clause 143 substitutes section 25AB(3)(b)(ii) of the Building Act (inserted by clause 125) to require a building practitioner or architect, or the building owner, to provide the building surveyor with details of the building practitioner's registration and coverage by the Domestic Building Consumer Protection Fund or insurance.

Clause 144 amends section 25E of the Building Act to insert new subsection (2) that enables the VBA to refuse to issue a certificate of consent to an intending owner-builder if the VBA is satisfied that the intending owner-builder or a member of their immediate family has previously failed to obtain the necessary insurance or fund cover before selling a home. Current section 25E(2) is repealed by clause 33.

Clause 145 substitutes section 30(1)(b)(ii) of the Building Act (inserted by clause 35) to require the building surveyor to give the VBA and the municipal council written evidence of the building practitioner's coverage by the Domestic Building Consumer Protection Fund or insurance.

Clause 146 amends section 135 of the Building Act to remove a reference to section 137D (which is to be repealed by clause 148) and subsection (6)(c), which removes a reference to required insurance in a domestic building context. This insurance will be replaced by the Domestic Building Consumer Protection Fund.

Clause 147 amends section 136 of the Building Act so that requirements to hold insurance do not apply to the carrying out of domestic building work, as this insurance will be replaced by the Domestic Building Consumer Protection Fund.

Clause 148 repeals various sections in Division 3 of Part 9 of the Building Act relating to insurance. The effect of clauses 146 to 148 is to abolish the requirements relating to domestic building insurance, which will be replaced by the Domestic Building Consumer Protection Fund when clause 150 comes into

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operation, while retaining the requirements for some builders to have other types of insurance cover in particular circumstances.

As provided by the Interpretation of Legislation Act 1984, the repeal of the provisions relating to domestic building insurance will not affect the rights or obligations of any party with respect to domestic building insurance policies taken out before the Domestic Building Consumer Protection Fund comes into operation.

Clause 149 amends section 137B of the Building Act so that this section continues to apply to a building other than a home.

Clause 150 inserts a new Part 9A of the Building Act that establishes the domestic building consumer protection scheme. Many of the provisions in Part 9A relating to the scheme and the Domestic Building Consumer Protection Fund reflect the current requirements of the domestic building insurance scheme as set out in the Ministerial Order published on 23 May 2003 with other provisions establishing additional consumer protection features.

Division 1—Preliminary

New section 137C (noting that the existing section 137C is repealed by clause 148) establishes definitions required for the purposes of this new Part 9A, and also continues the existing exclusion of the current or proposed principal place of residence for the purposes of determining whether the number of homes that a person is building makes that person a developer. A developer is defined as a person for whom 3 or more homes are being built on one site or under one contract.

New section 137CA provides that this Part applies only to domestic building work which costs more than $16 000 or another value prescribed by regulation, and hence coverage by the Domestic Building Consumer Protection Fund is not required for domestic building work that costs less than this.

Division 2—Requirement to be covered by fund

Subdivision 1—Domestic builders

New section 137D provides that it is an offence for a domestic builder to carry out domestic building work under a major domestic building contract without the required coverage by the Domestic Building Consumer Protection Fund. This replicates

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the effect of current section 136(2) which makes it an offence to carry out such work without domestic building insurance cover.

New section 137DA provides that it is an offence for a builder to claim to have required coverage from the Domestic Building Consumer Protection Fund if the builder does not have that coverage. This replicates the effect of the current section 137 which makes it an offence to claim to have the required domestic building insurance cover if the builder does not have it.

Subdivision 2—Owner-builders

New section 137E provides that Subdivision 2 of Division 2 of Part 9A applies to homes constructed by an owner-builder (who may be a registered domestic builder constructing a home that they own and may subsequently sell, or a person not registered as a domestic builder who has obtained a certificate of consent for the construction of a home), and also applies to the sale of a home constructed under a major domestic building contract for a developer which was exempt from the need to have coverage by the Domestic Building Consumer Protection Fund for its construction.

New section 137EA provides that it is an offence for an owner-builder, or a mortgagee in possession, executor or administrator to sell a home they have constructed and which is still within the required consumer protection coverage period (as established by other provisions of Part 9A) unless the owner-builder obtains coverage from the Domestic Building Consumer Protection Fund before the sale. This replicates the effects of current sections 137B(2), (3), (5AA), (5AAB) and (6) which make it an offence to sell such a home without having domestic building insurance cover for it.

New section 137EB authorises a developer to apply for exemption from the requirement for the builder of homes for the developer to have Domestic Building Consumer Protection Fund coverage for the construction of those homes, while also providing that if such an exemption is provided, the requirements relating to coverage by the Domestic Building Consumer Protection Fund will apply to the sale of any of those homes as though the developer were an owner-builder. This is similar in effect to current section 137B(4) and (5).

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New section 137EC establishes that certain warranties are taken to be included in any contract of sale of a home constructed by an owner-builder or developer as set out in the preceding provisions, and that these warranties extend to future purchasers of the home. This replicates the effect of current section 137C that includes these warranties in the contract of sale of such a home.

Subdivision 3—Sale of homes before completion

New section 137F provides that a contract of sale of the land on which a home will be completely constructed before the contract of sale is finalised cannot be entered into unless the home is being constructed under a major domestic building contract or the contract of sale is itself a major domestic building contract. This ensures that the coverage requirements of the domestic building consumer protection scheme will extend to that home. It is similar to current section 137E.

Division 3—Domestic building consumer protection fund


New section 137G establishes certain limits on coverage by the Domestic Building Consumer Protection Fund. These limits include that—

the home must be constructed in Victoria; and

coverage does not extend to—

work done by a demolisher;

the Director of Housing;

work done on a multi-storey residential building (defined in Part 9A as a building of more than 3 storeys and comprising 2 or more separate dwellings); or

any other person or circumstances prescribed to be excluded from coverage.

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Subdivision 2—Fund coverage in relation to domestic building contracts

New section 137H provides that coverage by the Domestic Building Consumer Protection Fund under Subdivision 2 only applies to work done under a major domestic building contract with a contract price of $16 000 (or a greater prescribed amount) or more.

New section 137HA provides that losses are claimable from the Domestic Building Consumer Protection Fund (subject to limitations set out in section 137HC) if the loss results from: non-completion of domestic building work; breach of a warranty implied into the major domestic building contract, or failure to maintain a standard or quality of work specified in that contract; contravention by the builder of certain provisions of consumer protection law; non-payment of the deposit or a progress payment under the contract and costs of storage and alternative accommodation.

This section also extends the coverage to losses arising from the actions of sub-contractors, and provides that losses are covered to the extent that the costs of rectification or completion have increased during the time between when the loss was incurred and when the work is rectified or completed.

New section 137HB establishes the circumstances in which a claim may be made on the Domestic Building Consumer Protection Fund, namely: that the builder is dead, disappeared or insolvent; or that the VBA has certified that a rectification order has not been complied with and the domestic building contract has been completed or terminated; or that the VBA has certified that the builder has been deregistered or suspended so that the builder cannot undertake completion or rectification work; or that the VBA has certified that the builder (including the registered director of a corporate builder) is permanently incapacitated and has not made arrangements for another person to undertake the work.

In addition to these new VBA certifications, the section also extends coverage by the Domestic Building Consumer Protection Fund to losses relating to building work for which the builder did not obtain the required coverage. These circumstances do not currently apply to losses under the domestic building insurance scheme.

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New section 137HC establishes that certain losses cannot be claimed from the Domestic Building Consumer Protection Fund, namely: money paid to the builder that exceeds the statutory amounts to which the builder is entitled at various stages of work; fines or penalties relating to delay by the builder; or losses occurring before the builder commenced work. These provisions replicate the effect of exclusions from domestic building insurance cover.

New section 137HD establishes that the maximum loss claimable for non-completion is 20 per cent of the contract price. This replicates the existing restriction on domestic building insurance cover and reflects the statutory limitations on progress payments that a builder may claim under a domestic building contract.

New section 137HE establishes the periods within which losses for defective work may be claimed, namely 2 years after completion for non-structural defects and 6 years for structural defects. This replicates the existing time constraints under domestic building insurance.

New section 137HF establishes that a claim may be made on the Domestic Building Consumer Protection Fund, subject to the limitations set out in the preceding sections, by the home owner, or any person who becomes entitled to the statutory warranties relating to the home construction, or the owner for the time being of the home or land on which the domestic building work was carried out.

New section 137HG provides that a developer is not entitled to claim from the Domestic Building Consumer Protection Fund for losses arising from non-completion, but that this does not affect the rights of any purchaser of the home from that developer (subject to other restrictions on claims relating to a home that was known not to be completed at the time of purchase).

Subdivision 3—Fund coverage of domestic building work by owner-builders on sale of home

New section 137I provides that Subdivision 3 of Division 3 of Part 9A, which relates to coverage by the Domestic Building Consumer Protection Fund of homes constructed by owner-builders, only applies if the home is one for which coverage is required (as established under section 137EA), and the value of

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building work carried out on the site before the sale was more than $16 000 or the prescribed amount.

New section 137IA provides that the Domestic Building Consumer Protection Fund covers losses with respect to the sale of a home for which coverage is required that: arise from the breach of a statutory warranty in relation to a home built by an owner-builder; or are removal, storage and accommodation costs necessarily incurred as a consequence of a breach of such a warranty.

New section 137IB provides that a claim can be made if: the owner-builder is dead, has disappeared or has become insolvent; or the VBA certifies that if the owner-builder is a registered building practitioner, his or her registration has been cancelled or suspended so that he or she is unable to undertake rectification work; or the VBA certifies that a natural person who is either an owner-builder and a registered building practitioner, or a director of an owner-builder that is both a body corporate and a registered building practitioner, is permanently incapacitated and has not made alternative arrangements for the work to be undertaken.

As in the case of claims relating to a home constructed under a major domestic building contract, and in addition to the new VBA certification provisions enabling a claim to be made, this section also exceeds the provisions of the domestic building insurance scheme by enabling a claim to be made even if the owner-builder failed to meet his or her obligation to obtain coverage from the Domestic Building Consumer Protection Fund.

New section 137IC provides that a claim in relation to work undertaken by an owner-builder cannot be made if it relates to a warranty that building products were new when it was evident that they were not, nor if the claim relates to work that was known by the claimant to be defective before purchase.

New section 137ID establishes that a claim relating to defective work by an owner-builder can only be made within 2 years after completion of the work in the case of a non-structural defect, or 6 years in the case of a structural defect.

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New section 137IE provides that, subject to the limits on claims established in other provisions, a claim relating to building work undertaken by an owner-builder can be made by the purchaser of the home or any subsequent purchaser; or any person who becomes entitled to the benefit of a statutory warranty relating to the building work; or by an owners corporation if the claim relates to common property.

Subdivision 4—Additional exclusions and limitations on coverage

New section 137J provides that Subdivision 4, which establishes other limitations on claims, applies in addition to Subdivisions 2 and 3, which cover claims relating to work undertaken under a major domestic building contract and work undertaken by an owner-builder respectively.

New section 137JA provides that the maximum loss, including costs, for which a claim may be made is $300 000 or the prescribed amount. A limit of $200 000 currently applies under domestic building insurance cover.

New section 137JB provides that a claim cannot be made with respect to work relating to landscaping, paving, retaining structures, driveways or fencing, unless those works are structural or integral; or require a building permit; or could result in water penetration; or could adversely affect health or safety; or the claim relates to non-completion and the builder or owner-builder is unable to complete them.

New section 137JC provides that claims cannot be made for fair wear and tear or a failure to maintain the work.

New section 137JD limits the amount payable for a claim relating to contravention of a provision of consumer protection law to the cost of rectification of the work.

New section 137JE establishes amounts that are compulsorily deducted from any payment by the Domestic Building Consumer Protection Fund. Such amounts are commonly referred to as excesses, deductibles or retentions, and replicate those currently provided under the domestic building insurance scheme.

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New section 137JF provides that excesses, deductibles or retentions do not apply with respect to claims for non-completion; nor where the loss arose between the earlier of the date of the building contract and the date of the building permit and 3 months after the completion date (i.e. the loss arose during, or shortly after, construction); nor in the case of construction by an owner-builder, if the loss arose between the date of purchase and 3 months after the completion of the work, if the work was completed less than 3 months before the purchase.

New section 137JG limits claims on the Domestic Building Consumer Protection Fund in prescribed circumstances.

Subdivision 5—Claims against the fund

New section 137K establishes that the Minister (i.e. the Minister administering this section) may approve claims procedures submitted by the fund manager (i.e. the manager of the Domestic Building Consumer Protection Fund, which is VMIA until 1 July 2016 or any earlier date agreed by the Ministers responsible for the VMIA and the VBA, and the VBA after that date). The fund manager must comply with these procedures. They take effect on the later of the specified date or the date of publication.

New section 137KA provides that a claim must be made in accordance with the published procedures. The section also provides that a claim may be made against the Domestic Building Consumer Protection Fund even if a claim for the same loss has been made against another person (such as the builder).

New section 137KB provides that the fund manager may refuse to accept a claim that is made more than 180 days, or another prescribed period, after the claimant became aware or ought to have become aware that a circumstance in which a claim could be made had arisen.

New section 137KC provides that once the fund manager accepts a claim, they must pay the assessed amount to the claimant or the claimant's nominee (for example, to another builder who is undertaking rectification work). The section also provides that the fund manager will be taken to have accepted a claim if they do not determine the claim within 90 days, or

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another prescribed period, subject to any extension of time agreed with the claimant or determined by VCAT.

New section 137KD provides that a claim cannot be refused because of actions by the builder or owner-builder, but that the fund manager can recover from the builder or owner-builder any losses arising from such actions.

New section 137KE provides that notice of a defect given to the fund manager by a claimant or potential claimant is taken to be notice of every related defect.

New section 137KF provides that the fund manager has a right of subrogation with respect to amounts paid by the Domestic Building Consumer Protection Fund to a claimant. This entitles the fund manager to take action against another party responsible for the claimant's original loss (such as the builder) for recovery of these amounts.

New section 137KG provides that the fund manager may place requirements on a claimant, such as notifying the fund manager before any non-urgent rectification work is undertaken or allowing access to the site. The section also provides that failure by a claimant to comply with such requirements does not affect the liability for the claim, unless the claimant's failure increased the loss.

New section 137KH provides that Part 9A does not override other rights under a domestic building contract or at common law or under the DBCA or the Building Act that a person may have with respect to domestic building work.

New section 137KI provides that the fund manager may reduce the amount payable under a claim having regard to any other remedies obtained by the claimant in respect of the same loss, such as a recovery against the builder, and if the fund manager has overpaid the claimant having regard to such a recovery, the fund manager may recover the amount of overpayment from the claimant.

Subdivision 6—Fund coverage

New section 137L provides that a registered domestic builder may apply, in accordance with regulations, to the fund manager for coverage by the Domestic Building Consumer Protection Fund of domestic building work required to be covered.

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New section 137LA provides that an owner-builder may apply to the fund manager for coverage of domestic building work undertaken by the owner-builder and in respect of which a certificate of consent has been issued, unless the owner-builder is a registered domestic builder or a registered architect.

New section 137LB provides that regulations may be made determining how the fund manager is to determine the amount of required fund coverage that a builder or owner-builder must have before undertaking domestic building work or selling a home.

New section 137LC provides that the fund manager may determine the extent of fund coverage provided to a registered domestic builder who has applied for coverage, and that this extent must be determined in accordance with any criteria or rules prescribed in regulations.

New section 137LD provides that a builder or owner-builder must pay to the fund manager the coverage charge determined in accordance with the regulations.

New section 137LE provides that the fund manager must give the builder, on request, a certificate of fund coverage, including the prescribed information, detailing the builder's coverage limits. The fund manager must also give the builder information about the unused fund coverage limits applying to the builder on request.

New section 137LF provides that the fund manager must give an owner-builder who is provided with fund coverage a certificate that includes prescribed information.

New section 137LG provides that if a builder or owner-builder carries out domestic building work for which fund coverage is required without obtaining that coverage from the fund manager, the fund manager may recover as a debt the amount of the charge that would have been payable for that value of work, as well as penalty interest.

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Subdivision 7—Establishment of domestic building consumer protection fund

New section 137M provides that the Domestic Building Consumer Protection Fund is to be established by the VBA.

New section 137MA provides that the VMIA is the fund manager until 1 July 2016 or an earlier date agreed between the Ministers responsible for the VMIA and the VBA, when the VBA becomes the fund manager. This section also requires the fund manager to manage the fund prudently having regard to its long-term viability. It also provides that the fund manager's own assets are not available to meet claims on the Domestic Building Consumer Protection Fund.

New section 137MB requires certain amounts to be paid into the Domestic Building Consumer Protection Fund.

New section 137MC similarly requires certain amounts to be paid out of the Domestic Building Consumer Protection Fund.

New section 137MD authorises the fund manager to invest the assets of the Domestic Building Consumer Protection Fund not immediately required to meet its costs in a manner approved by the Treasurer.

New section 137ME provides for the VBA to borrow money from VMIA while VMIA is the fund manager. This will provide for the Domestic Building Consumer Protection Fund to meet its operating costs while it is building up balances from collection of coverage charges.

New section 137MF provides that the Domestic Building Consumer Protection Fund has a statutory guarantee, ensuring that consumers will be fully protected at all times.

New section 137MG requires that the Auditor-General audit the financial statements of the Domestic Building Consumer Protection Fund, and that a copy of the audit report be provided to Parliament by the Minister.

Division 4—General

New section 137N provides that while the VMIA is the fund manager, it must provide the VBA with any information it requires relating to the Domestic Building Consumer Protection Fund and that the VBA must provide the VMIA with any information it requires relating to registered builders, including

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with respect to registration and disciplinary action. This will ensure that both the VMIA and the VBA have full access to information held by the other that is necessary for them to fulfil their respective responsibilities.

The section also provides that after the VBA becomes the fund manager, it will have full internal access to such information, but may still seek advice from the VMIA regarding the operation of the Domestic Building Consumer Protection Fund, and the VMIA may provide that advice.

New section 137NA provides that the VBA must report to the Minister from time to time on the administration of the Domestic Building Consumer Protection Fund.

New section 137NB provides that the VBA must include details of the administration, and a copy of the audited financial statements of, the Domestic Building Consumer Protection Fund in the VBA's annual report.

New section 137NC provides that the Governor in Council may make regulations with respect to matters prescribed in Part 9A or otherwise necessary for the operation of the Domestic Building Consumer Protection Fund.

Clause 151 inserts a new paragraph (ea) in section 148E of the Building Act, which covers financial probity criteria that must be considered by the VBA in determining whether or not to register a building practitioner. The effect of the new subsection is that a practitioner's history with respect to coverage by the Domestic Building Consumer Protection Fund for domestic building work must be taken into consideration.

Clause 152 substitutes section 150(b) of the Building Act to provide that an applicant for registration with VBA as a building practitioner must provide written proof that they are covered by any required insurance. From 1 July 2015 this will not include domestic building insurance, but may still include other types of insurance.

Clause 153 amends section 156(i) of the Building Act to provide that if a builder obtains coverage under the Domestic Building Consumer Protection Fund by the provision of false or misleading information, this will be grounds for the VBA to take disciplinary action against a domestic builder.

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Clause 154 amends section 158(1)(d) of the Building Act to provide that failure to have the required fund coverage is grounds for immediate suspension of the registration of a domestic builder.

Clause 155 substitutes section 158A(2) of the Building Act to provide that the VBA must immediately by written notice suspend the registration of a domestic builder if the VBA reasonably believes that the builder does not have the required insurance or required fund coverage.

Clause 156 amends section 158B(3) of the Building Act to provide that if the VBA has suspended the registration of a domestic builder on the grounds that the VBA reasonably believed that the builder did not have the required insurance or required fund coverage, but the builder gives the VBA written proof that the builder does, the VBA must revoke the suspension.

Clause 157 inserts a new paragraph (ba) in section 162(1) of the Building Act requiring the VBA to notify the fund manager of disciplinary action taken against a builder, if the fund manager referred the matter to the VBA. This provision is necessary while the VMIA is the fund manager, but will not be relevant after the VBA becomes the fund manager.

Clause 158 amends section 167B(2)(c) of the Building Act to provide that the VBA may take into consideration whether a builder has ever reimbursed the Domestic Building Consumer Protection Fund or entered into arrangements with the fund manager for any amounts paid. This replaces the current provisions relating to similar arrangements with an insurer with respect to amounts paid out under domestic building insurance.

Clause 159 inserts a new Division 3 in Part 11 of the Building Act relating to disputes involving the Domestic Building Consumer Protection Fund.

New section 169 provides that VCAT has jurisdiction to hear and determine disputes relating to claims on the Domestic Building Consumer Protection Fund and the fund manager's decisions with respect to claims. VCAT may make any order it considers appropriate to resolve the dispute.

New section 169A provides that a person may apply to VCAT to review any failure or refusal to determine a claim.

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New section 169B provides that either the claimant or the fund manager may apply to VCAT for an extension of time to determine a claim. The section further provides that such an application for an extension of time can only be made on the basis that the applicant needs the additional time to gather evidence to establish entitlement (or lack of it) to make the claim, or to establish the quantum of the claim.

New section 169C provides that VCAT may review the fund manager's decisions with respect to anything arising from the management of the Domestic Building Consumer Protection Fund, other than a claim (VCAT's powers in relation to claims are set out in the preceding sections). Any persons whose interests are affected may apply. However, the jurisdiction specifically excludes the fund manager's decisions to provide, renew or extend coverage to a builder or to refuse to do so, or decisions relating to the coverage charge, or relating to conditions relating to the provision of coverage to the builder.

The section also provides that a request for review by VCAT must be made within 28 days of the person receiving notice of the decision or, if the decision includes a direction that must be complied with within 27 days, the request must be made before the date by which the direction must be complied with.

Clause 160 amends section 173(1) of the Building Act (inserted by clause 58) to confer jurisdiction on VCAT in relation to Division 3 of Part 10 (relating to disciplinary proceedings). The clause also makes a consequential amendment to section 173C relating to the numbering of the revised section making it an offence for an owner-builder to sell a home without the required fund coverage.

Clause 161 inserts a new paragraph (ca) in section 197 of the Building Act which provides that one of the functions of the VBA is to administer the domestic building consumer protection scheme, and to be fund manager of the Domestic Building Consumer Protection Fund as required by the Building Act, that is from 1 July 2016 or any earlier date agreed in accordance with the Building Act.

Clause 162 amends section 217(1) of the Building Act to provide that the new Part 9A relating to the Domestic Building Consumer

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Protection Fund binds the Crown and applies to statutory authorities.

Clause 163 amends new sections 243(2) and 243A(2) of the Building Act to provide that certain offences under this Part are subject to the directors' liability provisions of sections 243 and 243A of the Building Act, as amended by this Bill. See clause 95.


Subdivision 1—Amendments to the Domestic Building Contracts Act 1995

Clause 164 inserts definitions into section 3(1) of the DBCA relating to the Domestic Building Consumer Protection Fund.

Clause 165 amends section 31(1)(l) of the DBCA to provide that a major domestic building contract must include details of coverage of the contract work by the Domestic Building Consumer Protection Fund. This replaces the current requirement that the contract must include details of insurance cover.

Clause 166 substitutes new section 49I of the DBCA, to be inserted by clause 174, to provide that the VBA must inform the manager of the Domestic Building Consumer Protection Fund when a rectification order is issued to a builder. This provision is required while VMIA is the manager of the Fund.

Clause 167 substitutes section 49P(3) of the DBCA, to be inserted by clause 174, to require that the VBA informs the manager of the Domestic Building Consumer Protection Fund when a rectification order issued to a builder is amended or cancelled.

Clause 168 amends section 55 of the DBCA by inserting additional subsections (2) and (3). Section 55 provides who can ask VCAT to resolve a domestic building dispute.

New subsection (2) provides that an application may be made to VCAT for the resolution of a domestic building dispute even if a party has made a claim on the domestic building consumer protection fund in relation to a matter that is the subject of the dispute.

New subsection (3) provides that a building owner who is entitled to make a claim on the domestic building consumer

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protection fund in respect of a loss and who makes an application to VCAT in respect of that loss without first making that claim is not to be taken to have failed to mitigate that loss in the proceeding before VCAT.

Clause 169 amends section 68 of the DBCA to be inserted by clause 177, to clarify that a builder can still refer a matter to VCAT under that section even where a consumer has made a claim on the Domestic Building Consumer Protection Fund.

Subdivision 2—Amendments to other Acts

Clause 170 amends new section 32B of the Sale of Land Act 1962 proposed to be inserted by the Sale of Land Amendment Bill 2014 to require that particulars of any coverage by the Domestic Building Consumer Protection Fund must be provided to a purchaser of a residence.

Clause 171 inserts a new section 6(eb) in the Victorian Managed Insurance Authority Act 1996 that empowers VMIA to carry out the functions conferred on it by these amendments to the Building Act 1993, and in particular the responsibilities of the fund manager as set out in the new Part 9A and elsewhere in the Building Act.

PART 6—DOMESTIC BUILDING WORK DISPUTES—CONCILIATION AND RECTIFICATION

Division 1—Domestic building work disputes—conciliation and rectification

Clause 172 amends the definitions in section 3(1) of the DBCA.

Subclause (1) inserts new definitions into section 3(1) of the DBCA, for the purposes of the new procedures for conciliation and rectification of domestic building work disputes set out in new Part 4 (which deals with Domestic Building Work Disputes) to be substituted by clause 174 for Parts 3A and Part 4 of the DBCA.

Subclause (2) repeals the definitions of determination, Director and Tribunal in section 3(1) of the DBCA.

Clause 173 repeals section 6(a) of the DBCA and inserts new subsection (2) into section 6 of that Act. New subsection 6(2) provides that

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the DBCA or a provision of the Building Act does not apply to any work that the regulations state is not building work to which the Building Act or that provision applies. This enables greater flexibility in exempting work from the scope of the DBCA.

Clause 174 substitutes new Part 4 dealing with Domestic Building Work Disputes for Parts 3A and 4 of the DBCA.

Division 1—Preliminary

New section 44(1) defines what constitutes a domestic building work dispute and a domestic building work matter.

Subsection (1) provides that a domestic building work dispute is a dispute or claim in relation to a domestic building work matter arising between a building owner and—

a builder; or

a building practitioner (as defined in the Building Act); or

a subcontractor; or

architect;

in relation to a domestic building work matter.

Subsection (2) provides that the term domestic building work matter in section 44 means—

an alleged breach of a warranty set out in section 8 of the DBCA; or

an alleged failure to maintain the standard or quality of building work specified in a domestic building contract; or

an alleged failure to complete the domestic building work required by a domestic building contract or failure to complete that work within the time specified by the contract; or

an alleged failure to pay money for domestic building work performed under a domestic building contract.

Subsection (3) clarifies that a reference to a building owner includes a reference to a building owner who is the owner, for the time being, of the building or land in respect of which a

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domestic building contract was made or domestic building work carried out.

Division 2—Referral of domestic building work disputes

New section 45 provides for the referral of domestic building work disputes to the VBA.

Subsection (1) provides that a party to a domestic building work dispute may refer the dispute to the VBA.

Subsection (2) sets out the requirements for an application to refer a domestic building work dispute to the VBA.

Subsection (3) provides that a domestic building work dispute must be referred to the VBA—

within 10 years of the date of issue of the occupancy permit under the Building Act in respect of the domestic building work (whether or not the permit is subsequently cancelled or varied); or

where an occupancy permit is not issued, within 10 years of the date of issue under Part 4 of the Building Act of the certificate of final inspection for the building work; or

where there is no occupancy permit or certificate of final inspection, within 10 years of the date of practical completion; or

if a date of practical completion cannot be ascertained, within the later of 10 years of the date specified in the contract as the completion date, 10 years of the date a building permit was issued or 11 years after the domestic building contract was entered into.

Subsection (4) creates rebuttable presumptions as to when a date of practical completion occurs.

Subsection (5) provides that a party may not refer a domestic building work dispute to the VBA if proceedings have commenced in VCAT or a court.

Subsection (6) defines what constitutes the date of practical completion. It is similar to the date of practical completion for the Domestic Building Consumer Protection Scheme, inserted by clause 150.

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New section 45A provides that the VBA must conduct an initial assessment upon receiving a referral under section 45.

Subsection (1) provides that the VBA must assess whether—

the dispute is a domestic building work dispute; and

the referral was made within the required time; and

the dispute is suitable or not suitable for conciliation; and

proceedings in respect of the matter in dispute have commenced in VCAT or a court.

Subsection (2) provides that for the purposes of section 45A, a domestic building work dispute is suitable for conciliation if it is reasonably likely to be settled by conciliation.

New section 45B provides for the powers of the VBA when assessing an application to refer a domestic building work dispute.

Subsection (1) authorises the VBA to—

make any inquiries or obtain any information it considers necessary; and

ask the referring party to provide further information or documents relating to the dispute; and

require the referring party to provide evidence that the party has taken reasonable steps to resolve the dispute with the other party.

Subsection (2) provides that the VBA may fix a time for compliance with a request or requirement made under subsection (1) and may extend that time at the request of the referring party.

Subsection (3) provides that the VBA may ask any other party to the domestic building work dispute to participate in the conciliation if the VBA considers that it is appropriate to do so.

New section 45C enables the VBA to accept or reject a referral.

Subsection (1) provides that after assessing a referral, the VBA may—

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accept the dispute and refer it to a domestic building dispute conciliator for conciliation; or

reject the referral if the VBA considers that a circumstance set out in section 45C(2) exists.

Subsection (2) provides that a referral may be rejected by the VBA if—

it does not comply with section 45(2); or

it is not made within the required time; or

the referring party has not provided any information or documents or evidence requested or required by the VBA under section 45B or has not provided them within the time required by the VBA; or

the referring party has failed, without reasonable excuse, to take reasonable steps to seek to resolve the dispute before the referral; or

all issues arising out of the dispute have been or are being adjudicated by a court or by VCAT; or

there is no reasonable prospect of the dispute being settled by conciliation or for any other reason; or

the referral—

is frivolous or otherwise lacking in substance; or

is vexatious; or

was not made in good faith; or

the dispute has been resolved.

New section 45D sets out how the VBA may deal with a referral of a domestic building work dispute where more than one matter in dispute is referred.

Subsection (1) provides that if more than one matter in dispute is referred, the VBA may sever from the referral any matter that it would reject under section 45C if it were the only matter that had been referred.

Subsection (2) provides that where a referral relates to more than one matter or the matter referred relates to more than one circumstance, the VBA may separate the referral into two or more referrals if—

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its inquiries into some of the matters have not been completed and it is convenient to separate them; or

if it is in the public interest to do so.

Subsection (3) provides that where the VBA accepts more than one referral in relation to the same or related domestic building work, the VBA may decide to deal with the referrals together as if they were one referral.

New section 45E provides that the VBA must give written notice of a decision under sections 45C or 45D to each party to a referred dispute within 10 business days after making the decision.

If the VBA decides to accept a dispute for conciliation, subsection (2) requires that the notice must—

include an outline of the reasons for the dispute stated by the referring party; and

state that the dispute has been referred to a domestic building dispute conciliator.

Subsection (3) provides that if the VBA decides to reject a referral or any matter referred, the notice must include the reasons for that decision.

Subsection (4) provides that if the VBA decides to sever any matter from a referral, the notice is required to include the reasons for the Authority's decision.

New section 45F deals with withdrawals of referrals.

Subsection (1) provides that a party who referred a dispute may seek to withdraw the referral or any matter referred by giving notice to the VBA before the dispute is finally dealt with under Part 4 of the DBCA.

Subsection (2) provides that the VBA may—

accept the withdrawal; or

refuse to accept the withdrawal if it considers that the dispute has disclosed evidence of a contravention of the Building Act, regulations made under the Building Act, the DBCA or the regulations made under the DBCA.

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Subsection (3) requires that the VBA give written notice to each party to a referred dispute of a decision accepting or refusing to a withdrawal under section 45F within 10 business days after making the decision.

New section 45G requires the VBA to issue a certificate of conciliation where it assesses a domestic building work dispute or a matter as not suitable for conciliation.

Subsection (1) provides that where the VBA assesses a dispute or matter as not suitable for conciliation it must issue a certificate of conciliation certifying that—

the dispute or matter was referred under section 45; and

that the VBA has assessed the dispute or matter as not suitable for conciliation.

Subsection (2) provides that the certificate of conciliation may specify the VBA's reasons for assessing the dispute as not suitable for conciliation including, if applicable that a named party to the dispute was not willing to participate in the conciliation.

Subsection (3) requires that the VBA give a copy of the certificate of conciliation as soon as practicable to each party to the dispute.

Subsection (4) enables a party to a domestic building work dispute to apply to VCAT for review of a failure to issue a certificate of conciliation under the section.

Division 3—Conciliation of domestic building work disputes

Division 3 of Part 4 contains provisions that provide for the conciliation of domestic building work disputes.

New section 46 gives the VBA the power to appoint or authorise a person to be a domestic building conciliator.

New section 46A provides that if the VBA assesses a domestic building work dispute as suitable for conciliation, it must refer the dispute for conciliation to a person appointed or authorised by the VBA to conduct conciliations under the Division.

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New section 46B deals with how conciliation is conducted.

Subsection (1) provides that a domestic building dispute conciliator may conduct a conciliation conference—

at a place that is reasonably convenient for the parties, which may be the building site at which the domestic building work that is the subject of the dispute is being or was carried out or elsewhere; or

by post or teleconference or by other electronic communication.

Subsection (2) provides that the domestic building dispute conciliator must give written notice of the conciliation conference to—

each party to the dispute; and

to any inspector appointed under Division 5 of the DBCA to inquire into the dispute for the purposes of the conciliation.

Subsection (3) specifies that the notice must—

specify the date and time of the conference; and

if the conference is to be conducted in particular place, that place; and

if the conference is to be held by post, the address to which written communications are to be sent; and

if the conference is to be held by electronic communication, the method by which the conference is to be conducted.

New section 46C addresses statements made during conciliation.

Subsection (1) provides that evidence of anything said or done by the parties or the domestic building dispute conciliator during the conciliation is not admissible in any proceeding before VCAT under Part 5 of the DBCA or in any other legal proceedings unless all the parties to the dispute agree in writing to the giving of the evidence.

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Subsection (2) provides that subsection (1) does not apply to—

any written communication from the domestic building dispute conciliator to any of the parties to the dispute; or

anything said or done by an inspector under Division 5; or

any report produced for the purpose of the conciliation by an inspector under Division 5.

Subsection (3) provides that nothing in the section prevents the use of any information or document disclosed in a conciliation for the purposes of—

determining whether to make a rectification order under Part 4; or

any disciplinary proceedings under Part 10 of the Building Act in respect of a breach of the DBCA or the Building Act or the regulations made under that Act.

A note states that clause 12B(3) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 places limits on the power of VCAT to request information that is inadmissible by virtue of section 46C. Clause 12B(3) is inserted into Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 by clause 192 of this Bill.

New section 46D provides for the VBA to give a draft certificate of conciliation to the parties where a domestic building work dispute has not been resolved by conciliation. It applies where the VBA has assessed a domestic building work dispute as suitable for conciliation and the dispute was not resolved.

Subsection (2) provides that the VBA must give each party to the dispute a draft of the proposed certificate of conciliation—

that states that the dispute was not resolved by conciliation; and

at the VBA's discretion, may state the reasons why the dispute was not resolved.

Subsection (3) provides that the VBA must advise each party that submissions may be made to the VBA in relation to the contents of the draft certificate within the period (being not less than 10 business days) specified by the VBA.

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New section 46E deals with certificates of conciliation in respect of domestic building work disputes where a dispute is accepted for conciliation.

Subsection (1) provides that the VBA must issue a certificate of conciliation after considering any submissions received within the time required under section 46D if it is satisfied that the domestic building work dispute has not been resolved.

Subsection (2) requires that the certificate of conciliation must state that—

the VBA had received a referral of a domestic building work dispute; and

the VBA had accepted the dispute for conciliation; and

the dispute was not resolved by conciliation.

Subsection (3) provides that the certificate of conciliation may include a statement of the reasons why the dispute was not resolved which may include that an identified party did not participate in the conciliation in good faith.

Subsection (4) requires that the VBA give a copy of the certificate of conciliation as soon as practicable to each party to the domestic building work dispute.

Subsection (5) enables a party to a domestic building work dispute to apply to VCAT for review of a failure to issue a certificate of conciliation under the section.

New section 46F provides for a written record of agreement to be prepared where a domestic building work dispute is resolved by conciliation. It applies if a domestic building work dispute is resolved by conciliation.

Subsection (2) provides that the domestic building dispute conciliator must prepare a written record of agreement setting out the terms of the agreement for the resolution of the dispute, including—

the action, if any, to be taken by each party to the dispute, which may include the making of a payment; and

the time within which the action is to be taken.

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Subsection (3) provides that the VBA must—

keep the record of agreement; and

give a copy of the record of agreement to each party to the dispute.

Subsection (4) provides that a party to the dispute may give notice in writing to the VBA of any error or omission within 5 business days after receiving a copy of the record of agreement.

Subsection (5) provides that the VBA may make any corrections to the record of agreement it considers appropriate to rectify an error or omission and must give written notice to each party to the dispute of each correction.

Subsection (6) provides that a record of agreement is evidence of the terms of the agreement for the resolution of the domestic building work dispute to which it relates.

New section 46G deals with notice to the VBA of a failure to comply with a conciliated agreement.

Subsection (1) provides that a party to a domestic building work dispute may give written notice to the VBA if an action in a record of agreement for the dispute has not been taken within the time specified in the record of agreement.

Subsection (2) requires that the notice must state the extent of any partial compliance with the required action.

New section 46H deals with VBA notices of non-compliance.

Subsection (1) provides that if, on receiving a notice under section 46G, the VBA is satisfied that the action was not taken within the required time, the VBA must give written notice of that non-compliance to each party to the domestic building work dispute.

Subsection (2) provides that the notice under subsection (1) must state the extent of any partial compliance with the required action.

New section 46I provides an immunity for domestic building conciliators.

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Subsection (1) provides that a domestic building dispute conciliator is not personally liable for anything done or omitted to be done in good faith—

in the exercise of a power or the discharge of a duty under the Division; or

in the reasonable belief that the Building Act or omission was in the exercise of a power or the discharge of a duty under the Division.

Subsection (2) provides that any liability resulting from an act or omission that, but for subsection (1) would attach to a domestic building dispute conciliator, attaches instead to the VBA.

Division 4—Requirement to stop domestic building work

Division 4 of Part 4 of the DBCA authorises the VBA to issue a requirement to stop domestic building work in certain circumstances.

New Division 4 deals with requirements to stop building work. New section 47 provides that Division 4 applies if a domestic building work dispute is referred to the VBA under Division 2 of Part 4.

New section 47A(1) provides that at any time after the referral, the VBA may, by written notice given to the builder require the builder to stop—

all domestic building work under the domestic building contract; or

the domestic building work under the domestic building contract that is specified in the notice.

Subsection (2) provides that the notice may be given if the VBA considers that—

there is a reasonable possibility that evidence relevant to the matters in dispute may be lost if the domestic building work were to continue; or

it is appropriate for any other reason to give the notice.

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Subsection (3) provides that a requirement to stop work has effect for the period not exceeding 30 days, specified in the notice.

New section 47B(1) provides that if the VBA considers that it is appropriate to do so, it may, by written notice given to the builder, extend the period that the requirement has effect for a further period not exceeding 30 days.

Subsection (2) provides that a notice under subsection (1) may vary requirements in the first notice issued under this Division.

Subsection (3) provides that the VBA may cancel the requirement to stop work at any time by written notice given to the builder.

New section 47C(1) provides that the VBA must give a copy of each notice issued under this Division to all parties to the domestic building work dispute.

Subsection (2) provides that a notice under this Division takes effect on being given to the domestic builder.

Subsection (3) provides that the requirement to stop work in the notice under this Division ceases to have effect on the issuing of a certificate of conciliation under section 45G in respect of the domestic building work dispute.

Subsection (4) ensures that the period in which work must be stopped is excluded from the time within which the domestic building work must be completed under the major domestic building contract.

New section 47D provides that a builder must comply with a requirement to stop work in a notice to the builder under Division 4. Failure to comply with the requirement of a notice is an offence with a penalty of 60 penalty units in the case of a natural person and a penalty of 300 penalty units for a body corporate.

Division 5—Inspection of domestic building work

Division 5 of Part 4 of the DBCA provides for the inspection of domestic building work.

New section 48 provides that the VBA may appoint—

an architect registered under the Architects Act 1991; or

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a building surveyor, building inspector or engineer registered under the Building Act; or

a person recognised by the Minister under section 28 of the House Contracts Guarantee Act 1987 by order in force immediately before the commencement of section 166 of the DBCA—

as an inspector for the purpose set out in section 48A.

New section 48A lists the purposes for which an inspector may be appointed under section 48. The VBA may appoint an inspector—

for the purpose of determining whether a dispute is suitable for conciliation under Division 3; or

for the purpose of the conciliation of a domestic building work dispute under Division 3; or

for the purpose of resolving a domestic building work dispute that has been referred to the VBA but is not accepted for conciliation; or

at the request of a party to a domestic building contract under section 48C; or

for a purpose specified in Division 6.

New section 48B provides that the VBA may direct an inspector appointed under section 48 to inquire into a domestic building work dispute.

Subsection (2) provides that the direction must be in writing and may require the inspector—

to examine if the domestic building work performed by the builder is defective or incomplete; and

if the inspector believes that the domestic building work is defective or incomplete, to estimate the number of business days required to rectify or complete the work.

New section 48C authorises a party to a domestic building contract to ask the VBA to appoint an inspector to examine building work performed under the contract under certain circumstances.

Subsection (1) provides that the section applies if a domestic building work dispute arises—

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that has not been referred to the VBA under Division 2 of Part 4 of the DBCA; or

that was referred to the VBA under Division 2 and the referral—

was rejected by the VBA; or

was withdrawn; or

was not resolved through conciliation.

Subsection (2) provides that a party to the domestic building work contract may ask the VBA to examine whether the domestic building work performed under the contract is defective or incomplete.

Subsection (3) provides that a request under subsection (2) must be accompanied by the prescribed fee (if any).

New section 48D provides entry powers for inspectors.

Subsection (1) provides that an inspector who is appointed under Division 5 to examine particular domestic building work may enter the building site at which work is being carried out at any reasonable time and may inspect any part of the building site.

Subsection (2) qualifies subsection (1) by providing that if the building site where the work is being carried out is still being used as a residence while the work is being carried out, an inspector may only enter the building site—

between the hours of 8 a.m. and 6 p.m.; and

after giving the occupier of the residence at least 24 hours notice that the inspector intends to enter the building site.

Subsection (3) provides that subsection (2) does not apply if the inspector enters the building site with the written consent of the occupier.

New section 48E deals with inspectors' powers to examine work.

Subsection (1) provides that an inspector may cause any domestic building work to be demolished, opened or cut into if this is reasonably required to facilitate an examination.

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Subsection (2) provides that an inspector may take photographs (including video recordings) or make sketches of the building site or the domestic building work being examined.

New section 48F empowers inspectors to require the production of documents.

Subsection (1) provides that an inspector who enters a building site under section 48D may, to the extent reasonably necessary to determine whether domestic building work is defective or incomplete, require a person at the building or land—

to give information to the inspector, orally or in writing; and

to produce documents to the inspector; and

to give reasonable assistance to the inspector.

Subsection (2) provides that if a person produces a document to an inspector in accordance with a requirement under the section, the inspector may make copies of, or take extracts from the document.

New section 48G makes it an offence to refuse or fail to comply with a requirement of an inspector. A penalty of 60 penalty units applies, reflecting penalties for similar offences in the Building Act.

New section 48H specifies what protection against self-incrimination applies for natural persons under Division 5.

Subsection (1) provides that it is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person may be required to do under Division 5 on the ground of self-incrimination.

Subsection (2) provides that despite the protection against self-incrimination afforded in subsection (1) a person cannot rely on the protection against self-incrimination in relation to the production of documents that the person may be required to produce.

New section 48I makes it an offence to hinder or obstruct an inspector without reasonable excuse. A penalty of 60 penalty units for individuals, and 300 penalty units for bodies corporate

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applies, reflecting penalties for similar offences in the Building Act.

New section 48J empowers inspectors to conduct tests and seek expert advice.

Subsection (1) provides that the section is subject to section 48K.

Subsection (2) provides that in conducting an examination, an inspector may—

conduct any test reasonably required to facilitate the carrying out of the examination; and

obtain expert advice.

Subsection (3) provides that no costs are payable for a test or obtaining advice if the inspector was appointed for the purpose of the conciliation of a domestic building work dispute under Division 3.

New section 48K applies where an inspector is appointed at the request of a party to a domestic building contract under section 48C.

Subsection (2) provides that the inspector must notify the VBA if the inspector considers a test or expert advice is needed for the purpose of an examination of domestic building work.

Subsection (3) provides that the VBA must—

give written notice of the inspector's opinion to the requesting party; and

ask the party to agree to the conduct of the test or the obtaining of the expert advice.

Subsection (4) provides that the VBA must also give written notice to each party to the domestic building contract that if a rectification order is issued in relation to the domestic building work, the order may require a party to the contract to pay the costs of conducting the test or obtaining the expert advice.

New section 48L provides for what happens if a requesting party does not agree to the conduct of tests or the obtaining of expert advice.

Subsection (1) provides that if a party who requested that the VBA appoint an inspector under section 48C refuses to agree to

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the conduct of a test or the obtaining of expert advice, the VBA may—

dismiss the matter and discontinue the examination; or

determine to continue the examination.

Subsection (2) provides that if the VBA determines under subsection (1) to continue an inquiry, the VBA must pay the costs of conducting tests or of obtaining expert advice for the inquiry.

New section 48M provides that the party who requested that the VBA appoint an inspector is liable for the costs of making good any damage caused by any tests conducted under section 48J that are agreed to by that party if the inspector concludes, after receiving the results of the tests or the expert advice, that the domestic building work is not defective or incomplete.

New section 48N provides for the reporting of the results of an examination conducted by an inspector.

Subsection (1) provides that after conducting an examination, the inspector must report the results of the examination to the parties to the dispute, or if the inspector is appointed under section 48C, the parties to the contract.

Subsection (2) provides that the report must be in writing in a form approved by the VBA.

Subsection (3) provides that in preparing the report, an inspector may have regard to any direction given under section 37 of the Building Act in relation to the work that is the subject of the report. See clause 40.

Subsection (4) provides that the inspector must give a copy of the report to each party to the dispute and to the VBA.

Subsection (5) provides that, subject to subsection (6), the inspector is not required to report under the section if—

the examination was for the purposes of a conciliation; and

a record of agreement was made as a result of the conciliation.

Subsection (6) provides that the VBA may direct an inspector to prepare a report under the section if the VBA has been given

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notice under section 46G of non-compliance with an action required in a record of agreement.

Subsection (7) provides that a party to a dispute may make a written submission to the VBA in relation to the report within the prescribed period after the report is given to the party under the section.

Subsection (8) provides that the prescribed period is the longer of the period prescribed by the regulations or 5 business days.

New section 48O sets out the required contents for a report under section 48N if the building work is defective or incomplete.

Subsection (1) provides that the section applies, if as a result of an examination, the inspector considers that the building work examined is defective or incomplete.

Subsection (2) provides that the report must—

specify the work that is defective or incomplete, including—

any defects that may adversely affect—

the health or safety of people who may use the building to which the work relates; or

the amenity of that building; or

any other defects in the building work that are incidental to, but not the subject of, the dispute; and

if required by the VBA, include an estimate of the number of business days required to rectify or complete the building work.

Subsection (3) provides that in the report the inspector may—

specify the cause of the defective or incomplete building work; and

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recommend a preferred method by which the defective or incomplete work may be rectified or completed.

Subsection (4) provides that in making a recommendation under subsection (3), the inspector must have regard to—

the relevant domestic building contract, including the plans and specifications set out in the contract; and

any other matters that the inspector considers relevant.

New section 48P provides for inspectors to report contraventions of building legislation to the VBA.

Subsection (1) provides that if, as a result of an examination the inspector is of the opinion that there has been a failure to comply with the Building Act (or any regulations made under the Building Act) with respect to any domestic building work, the inspector must—

state that opinion to the parties to the dispute; and

report the alleged breach in writing to the VBA.

Subsection (2) provides that the VBA may refer details of the alleged breach to the relevant council responsible for enforcing the Building Act in relation to the domestic building work.

New section 48Q provides for inspectors to report health and safety matters to the VBA.

Subsection (1) provides that the section applies if an inspection report identifies any matter that may adversely affect the health and safety of people using the building to which domestic building work relates.

Subsection (2) provides that the VBA may refer the matter to the relevant council responsible for enforcing the Building Act in relation to that domestic building work.

New section 48R provides that the carrying out by a builder of recommendations contained in an inspection report under section 48O(3) does not absolve the builder from completing the domestic building contract in accordance with the plans and specifications set out in the contract.

New section 48S deals with admissibility of inspection reports and other evidence.

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Subsection (1) provides that a report of an inspector under section 48N is admissible in evidence in proceedings before VCAT.

Subsection (2) provides that if an inspector conducts an examination under Division 5 of Part 4, VCAT may call the inspector to give evidence during any proceedings before VCAT.

Division 6—Rectification of domestic building work

Division 6 of Part 4 sets out provisions for the rectification of domestic building work.

Subdivision 1—Issue of rectification order

New section 49 deals with the issuing of rectification orders.

Subsection (1) provides that the VBA may issue a rectification order to a person who is a party to a domestic building work dispute if the parties have not resolved the dispute.

Subsection (2) provides that if the VBA receives an inspection report under Division 5 of Part 4 in relation to a domestic building work dispute, it must not issue a rectification order earlier than 10 business days after the last of the parties to the dispute is given a copy of the inspector's report in relation to the dispute.

Subsection (3) provides that despite subsection (1), the VBA may issue a rectification order even if a record of agreement exists in relation to the domestic building work dispute.

Subsection (4) provides that the VBA may issue a rectification order to more than one person.

Subsection (5) provides that if a rectification order places a requirement on more than one person, each person is jointly and severally liable to comply with the order.

Subsection (6) provides that the VBA may decide not to issue a rectification order to a person if it considers that it would be unfair or unreasonable in the circumstances to issue the order to that person.

Subsection (7) requires the Authority to serve a copy of the rectification order on each person to whom it is issued.

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Subsection (8) provides that, subject to subsections (9) and (10), a rectification order takes effect, in relation to a person, immediately on being served on that person.

Subsection (9) provides that subsection (8) does not apply to a rectification order referred to in section 49E (one with a requirement to pay money out of the domestic building conciliation trust fund).

Subsection (10) provides that if an application for review is made under section 63 within the period set out in that section, the order is stayed pending the outcome of the review.

New section 49A provides that the persons who are taken to carry out domestic building work for the purposes of the Division are—

the builder carrying out the work; and

if the builder carrying out the work is a body corporate—

any officer of the body corporate; and

any related body corporate; and

any body corporate owned, managed or effectively controlled by an officer of the body corporate; and

if the builder carrying out the work is a partnership, any member of that partnership.

New section 49B lists matters to be considered by the VBA before issuing a rectification order. In determining whether to issue a rectification order, the VBA must consider the following matters—

any change in the nature of the domestic building work dispute or the circumstances of the parties since the copy of the inspection report was given to the VBA;

the conduct of the parties during the conciliation (if applicable);

any direction given under section 37 of the Building Act in relation to the work that is the subject of the dispute;

any other matter the VBA considers relevant.

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New section 49C deals with the contents of rectification orders.

Subsection (1) provides that a rectification order may require a person to whom it is issued to—

take any action or the action specified in the order to do one or more of the following things—

rectify any defective domestic building work;

rectify any damage caused in the carrying out of the domestic building work or by the defective domestic building work;

complete the domestic building work under the domestic building work contract;

refrain from doing anything that would prevent or restrict another party to the domestic building work dispute from satisfying a term or condition of the contract;

refrain from doing anything that would prevent or restrict another party carrying out domestic building work to meet the requirements of a warranty set out in section 8 of the DBCA.

Subsection (2) provides that a rectification order may specify conditions to be complied with by a party to the domestic building work dispute before another party is required to comply with the order, including conditions related to—

the payment of money; and

access to the building site.

Subsection (3) provides that a rectification order under subsection (1)(a) must specify the period within which the requirements of the rectification or completion work must be complied with.

Subsection (4) provides that the period specified in the rectification order must be a period that the VBA considers reasonable for the rectification or completion of the work to be carried out.

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New section 49D addresses requirements for the payment of money.

Subsection (1) provides that a rectification order may require a party to the domestic building work dispute—

to pay the costs of rectifying any defective domestic building work or damage or completing the domestic building work; or

to pay an amount of money for costs relating to the rectification of defective domestic building work or damage or the completion of work to be paid into the domestic building conciliation trust fund; or

if the rectification order includes a finding of a kind set out in section 49F(1), to pay an amount of money to the domestic building conciliation trust fund or to any person.

Subsection (2) provides that if the VBA considers that the domestic building work carried out under the domestic building contract is so defective that it would not be appropriate to allow the builder to rectify or complete the work, the rectification order may require the builder to pay the reasonable cost of that work to be carried out by another builder appointed by the building owner.

Subsection (3) provides that if a rectification order requires a building owner to pay an amount into the domestic building conciliation trust fund—

the period specified in the order for the carrying out of works commences on the day on which the required money is paid into the trust fund; and

the VBA must give written notice to the builder without delay after the payment is made.

New section 49E enables payments to be made out of the domestic building conciliation trust fund.

Subsection (1) provides that a rectification order may require an amount to be paid out of the domestic building conciliation trust fund on compliance with the order or part of the order.

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Subsection (2) provides that in determining whether a rectification order or part of an order has been complied with, the VBA may rely on a statement by the party who paid the amount into the domestic building conciliation trust fund that the rectification order or the part of the rectification order has been complied with.

Subsection (3) provides that if the VBA proposes to pay an amount out of the domestic building conciliation trust fund in accordance with subsection (1), the VBA must give written notice to the parties to the domestic building dispute of the intention to pay the amount out of the fund.

Subsection (4) provides that the notice must state that a party to the domestic building work dispute may apply to VCAT within 14 days after receiving the notice for review of the decision to pay the money out of the domestic building conciliation trust fund.

Subsection (5) provides that the party to the dispute who paid money into the domestic building conciliation trust fund may give written consent to the payment of the amount out of that fund.

Subsection (6) provides that the VBA may pay the money out of the domestic building conciliation trust fund on the first to occur of the Authority receiving the written consent of the party who paid the amount into the trust account or the end of the prescribed period.

Subsection (7) defines prescribed period as the later of the period for making an application for review of the decision to pay the amount from the trust fund, or if an application for review of the decision is made within that period, the period until a determination affirming a decision is made.

New section 49F provides that rectification orders may include findings.

Subsection (1) provides that a rectification order may include a finding by the VBA that the domestic building work that is the subject of the domestic building work dispute is not incomplete or defective.

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Subsection (2) provides that a rectification order may include a finding that the domestic building work is so defective that rectification is not appropriate.

Subsection (3) provides that a finding referred to in subsections (1) or (2) in a rectification order—

is evidence in any proceedings by the builder for the recovery of money from a party to the domestic building work dispute; and

may be taken into account in any proceedings in VCAT or a court in determining costs or damages.

New section 49G provides that a rectification order may require a payment for costs or advice.

Subsection (1) provides that a rectification order may require a party who requested the appointment of an inspector under section 48C to pay to the VBA the cost of conducting any test or obtaining any expert advice agreed to by the party under section 48K.

Subsection (2) provides that the VBA may recover any costs referred to in subsection (1) in any court of competent jurisdiction as a debt due to the VBA.

Subsection (3) provides that the VBA must pay any costs recovered under section 49G into the domestic building conciliation trust fund.

New section 49H provides that the rectification or completion of domestic building work in compliance with a rectification order does not absolve the builder from completing the domestic building contract in accordance with the plans and specifications set out in the contract.

New section 49I provides that if a rectification order is issued to a builder, the VBA must notify the insurer who provided the builder with the required insurance under the Building Act of the rectification order.

Subdivision 2—Amendment or cancellation of rectification orders

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New section 49J empowers the VBA to amend or cancel rectification orders.

Subsection (1) provides that the VBA may, at any time, of its own volition, amend or cancel a rectification order.

Subsection (2) provides that in making a decision under subsection (1), the VBA may consider any of the following—

any matters that may affect the estimation of a reasonable period for the rectification or completion work to be carried out;

any change in the nature of the dispute or the circumstances of the parties since the inspector gave a copy of the inspection report to the VBA under Division 5;

the conduct of the parties;

any other matter that the VBA considers relevant.

New section 49K enables rectification orders to be cancelled if there is a failure to pay the required amount.

Subsection (1) provides that the section applies if—

a building owner fails to pay an amount into the domestic building conciliation trust fund or to any person in accordance with a rectification order; and

no person has made an application to VCAT for review of the decision to issue the rectification order.

Subsection (2) provides that at the end of the period for applying for a review of the decision to issue the rectification order, the VBA must—

give written notice to each party to the domestic building work dispute to which the rectification order relates of the failure to comply with the requirement to pay the amount; and

cancel the order.

New section 49L deals with requests to amend or cancel rectification orders.

Subsection (1) provides that a party to a domestic building work dispute may, in writing, ask the VBA to amend or cancel a

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rectification order relating to the domestic building work that is the subject of the dispute.

Subsection (2) provides that a request may only be made on the ground that there has been a substantial change in the nature of the dispute or the circumstances of the parties since the inspector gave a copy of the inspection report to the VBA under Division 5.

Subsection (3) provides that a request under the section must be made within 10 business days after the rectification order is given to the party.

Subsection (4) provides that the party making the request must give written notice of the request to each other party to the dispute within 2 business days after making the request.

New section 49M sets out the powers of the VBA in considering whether to amend or cancel a rectification order.

Subsection (1) provides that for the purpose of determining whether to amend or cancel a rectification order, the VBA may—

make any inquiries or obtain any information it considers necessary; and

ask any party to the dispute to provide any information or documents that it considers necessary.

Subsection (2) provides that the VBA may fix a period for compliance with a request or requirement under subsection (1) and may extend that period at the request of any party.

New section 49N addresses decisions of the VBA on receiving a request under section 49L.

Subsection (1) provides that the VBA must consider a request under section 49L and, within 5 business days after receiving the request, determine—

to amend or cancel the rectification order; or

refuse to amend or cancel the rectification order.

Subsection (2) provides that if the VBA does not make a determination within 5 business days after the request, it is

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taken to have refused to amend or cancel the rectification order (as the case requires).

New section 49O specifies the matters the VBA considers when determining requests under section 49L.

Subsection (1) provides that in determining a request made under section 49L, the VBA—

must consider the extent to which any defective or incomplete domestic building work specified in the rectification order has been rectified or completed; and

may consider any of the following matters—

any matters that may affect the estimation of a reasonable period of time for the rectification or completion work to be carried out;

any change in the nature of the dispute or the circumstances of the parties since the inspector gave a copy of the inspection report to the VBA under Division 5;

the conduct of the parties;

any other matter the VBA considers relevant.

Subsection (2) provides that the VBA may require any party to the domestic building work dispute to provide the VBA with any information the VBA requires for the purpose of considering the matter under subsection (1).

New section 49P deals with the notice the VBA must give of a decision.

Subsection (1) provides that the VBA must give written notice of a decision under section 49J or 49N to the parties to the domestic building work dispute within 2 business days after making the decision.

Subsection (2) provides that if the VBA amends a rectification order under section 49J, 49N or 49T, the VBA must give a copy of the amended order to each party to the domestic building dispute without delay.

Subsection (3) provides that if the VBA amends or cancels a rectification order issued to a builder, the VBA must notify the

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insurer who provided the builder with the required insurance under the Building Act of the amendment or cancellation.

Subdivision 3—Compliance with a rectification order

New section 49Q deals with the notice that a party to a domestic building work dispute must give if they comply with the rectification order.

Subsection (1) provides that a party to a domestic building work dispute who has rectified or completed domestic building work in accordance with a rectification order must give written notice to the VBA and the other parties to the dispute of the carrying out of the that work.

Subsection (2) provides that the notice must be given within 2 business days after the domestic building work is carried out.

Subsection (3) provides that the VBA may appoint an inspector to examine the domestic building work for which notice has been given under section 49Q to confirm whether it complies with the rectification order.

New section 49R deals with the notice that a party to a domestic building work dispute must give if another party fails comply with the rectification order.

Subsection (1) provides that a party to a domestic building work dispute that is the subject of a rectification order may give written notice to the VBA and another party to the dispute that the other party has failed to rectify the defective domestic building work or complete the domestic building work in accordance with the order.

Subsection (2) provides that a notice under subsection (1) must be given—

within 5 business days after the party is given notice under section 49Q in relation to the domestic building work; or

if no notice is received under section 49Q by the end of 5 business days after the end of the period specified in the rectification order for the carrying out of the rectification or completion work, within 5 business days after the end of that first 5 business day period.

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New section 49S enables the VBA to appoint inspectors to examine work required to be carried out under a rectification order.

Subsection (1) provides that if a party to a domestic building work dispute gives notice to the VBA under section 49R, the VBA must appoint an inspector to examine the work required to be carried out under the rectification order.

Subsection (2) provides that the inspector must prepare a written report stating whether or not the rectification order has been complied with.

Subsection (3) provides that the inspector must give a copy of the written report to the VBA and each party to the domestic building work dispute.

New section 49T provides that on receiving a report under section 49S, the VBA may amend the rectification order to extend the period for compliance with the order if it is satisfied that the failure to comply with the order was due to factors outside the control of the party required to comply with the order.

New section 49U specifies what happens if there is a breach of a rectification order notice.

Subsection (1) provides that, subject to section 49T, the VBA must issue a breach of rectification order notice if it receives an inspection report under section 49S that states that a party has failed to comply with a rectification order.

Subsection (2) provides that the VBA must serve a copy of the notice on each party to the domestic building work dispute without delay after it is issued.

Subsection (3) provides that a breach of rectification order notice must state that the party required to comply with the rectification order may apply to VCAT for a review of the decision to issue the notice and the time within which the application may be made.

Subsection (4) provides that a breach of rectification order notice takes effect in relation to a party immediately upon being served on that party.

New section 49V provides for the cancellation of breach of rectification order notices.

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Subsection (1) provides that the VBA may cancel a breach of rectification order notice if the parties to the domestic building work dispute to which the rectification order applies have notified the VBA of the settlement of the dispute.

Subsection (2) provides that the notice to the VBA must be signed by each party to the dispute.

Subsection (3) provides that the VBA must give each party to the domestic building work dispute written notice of the cancellation of the breach of rectification order notice.

New section 49W provides that a building owner may, by written notice to the VBA and the builder, end a domestic building contract for domestic building work that is the subject of a rectification order if—

a copy of a breach notice has been served on the building owner in relation to a failure by the builder; and

the period within which the builder could apply to VCAT for a review of the decision to issue the notice has ended and an application for review has not been made; and

the building owner has complied with any conditions required to be complied with by the building owner before the builder is required to comply with the rectification order.

New section 49X specifies the circumstances in which a builder may end a domestic building contract.

Subsection (1) provides that a builder may, by written notice to the VBA and the building owner, end a domestic building contract for domestic building work that is the subject of a rectification order if—

the period within which the building owner could apply to VCAT for a review of the decision to make the rectification order has ended without an application being made; and

the date by which the rectification order was required to be complied with has passed; and

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the builder has complied with any requirement placed on the builder by the order; and

the rectification order included a finding that the building work was not defective or incomplete; and

the building owner fails to pay an amount in accordance with a rectification order within the time required by the order.

Subsection (2) provides that if a builder ends a domestic building contract under the section, the builder is released from any further performance of the contract.

Division 7—Agreements to pay money into and out of the domestic building conciliation trust fund

Division 7 of Part 4 provides for an agreement to pay money into and out of the domestic building conciliation trust fund.

New section 50 deals with payments into and out of the domestic building trust fund.

Subsection (1) provides that the parties to a domestic building work dispute may agree that a party is to pay an amount into the domestic building conciliation trust fund.

Subsection (2) provides that the agreement must—

be in writing; and

set out the conditions for payment of the money into and out of the domestic building conciliation trust fund.

Subsection (3) provides that the agreement must not be inconsistent with any rectification order issued in respect of the work that is the subject of the dispute.

Subsection (4) provides that the agreement may provide that the amount is not to be paid out of the domestic building conciliation trust fund unless one of the following persons has stated in writing that the domestic building work that is the subject of the dispute has been satisfactorily carried out—

the building owner;

the builder;

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the VBA;

an inspector appointed by the VBA.

Subsection (5) provides that the VBA may rely on a statement made in accordance with subsection (4) in paying the amount out of the domestic building conciliation trust fund.

Division 8—Powers of the VBA in relation to domestic building work proceedings

Division 8 sets out the powers of the VBA in relation to domestic building work proceedings.

New section 51 deals with the VBA's powers to institute and defend proceedings.

Subsection (1) provides that if a building owner is involved in a domestic building work dispute, the VBA may institute proceedings on behalf of, or defend proceedings brought against the building owner if the VBA is satisfied—

that the building owner has a good cause of action or a good defence to an action relating to the dispute; and

that it is in the public interest to institute or defend proceedings on behalf of the building owner.

Subsection (2) provides that the VBA must not institute or defend proceedings on behalf of a building owner unless the building owner has given written consent.

Subsection (3) provides that after consent has been given under subsection (2), the VBA may institute or continue with a proceeding or defence on behalf of a building owner even if the building owner withdraws the consent.

Section 51A deals with settlement, costs and other matters relating to proceedings under this section.

Subsection (1) provides that if the VBA institutes or defends proceedings under section 51—

the VBA may settle the proceedings with or without obtaining judgement in the proceedings; and

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if a judgement is obtained in the proceedings in favour of the building owner, the VBA may take any steps that are necessary to enforce the judgement; and

subject to subsections (2) and (3), an amount (other than an amount in respect of costs) recovered in the proceedings is payable to the building owner; and

an amount in respect of costs recovered in the proceedings is payable to the VBA; and

subject to subsection (2), the building owner is liable to pay an amount (not being an amount of costs) awarded against the building owner in the proceedings; and

the VBA is liable to pay the costs of or incidental to the proceedings that are payable by the building owner.

Subsection (2) provides that if the VBA institutes or defends or continues proceedings on behalf of a building owner after the building owner withdraws the consent to the proceedings, the VBA must compensate the building owner for—

any loss suffered as the result of the loss of any settlement offer made to the building owner; and

out-of-pocket expenses incurred by the building owner during the proceedings after the revocation of consent; and

any amount awarded against the building owner in the proceedings.

Subsection (3) provides that if the VBA institutes or defends proceedings on behalf of a building owner after the building owner withdraws the consent to the proceedings or defence, any amount recovered in the proceedings (not being an amount for costs) that exceeds the amount payable to the building owner under subsection (2) may be applied to the payment of the costs incidental to the proceedings for which the VBA is liable or that are incurred by the VBA in relation to the proceedings.

Subsection (4) provides that if, in proceedings instituted or defended on behalf of the building owner under section 51—

a party to the proceedings files a counterclaim; or

the building owner is entitled to file a counterclaim, and the counterclaim is not or would not be related to the

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proceedings and to the interests of the building owner in the dispute, the VBA may apply to the court or VCAT hearing the proceedings for an order that the counterclaim not be heard in the course of those proceedings.

Subsection (5) provides that if the court or VCAT makes an order under subsection (4), the court or VCAT may make any ancillary or consequential provisions that it thinks just.

Subsection (6) provides that any amount recovered by the VBA (other than an amount payable to the building owner) as referred to in the section is to be paid into the domestic building dispute account.

Subsection (7) provides that any amount to be applied by the VBA under the section is payable out of the domestic building dispute account.

Division 8—Domestic building conciliation trust fund

Division 9 of Part 4 provides for the establishment of the domestic building conciliation trust fund.

Section 52 establishes the domestic building conciliation trust fund.

Subsection (1) provides that the VBA must establish and maintain a trust fund to be called the domestic building conciliation trust fund.

Subsection (2) provides that the VBA must establish an account with an ADI for the investment of the domestic building conciliation trust fund.

Subsection (3) provides that there may be paid into the domestic building conciliation trust fund all the amounts required or permitted to be paid into the fund under the DBCA.

Subsection (4) provides that there may be paid out of the domestic building conciliation trust fund all amounts required or permitted to be paid from the fund in accordance with the DBCA.

Subsection (5) provides that the proceeds of the investment of the domestic building conciliation trust fund are to be paid into the domestic building dispute account.

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Clause 175 amends section 53(2)(bb) and (bc) of the DBCA to substitute "domestic building dispute account" for "Domestic Builders Fund".

Clause 176 inserts new section 56 into the DBCA.

Subsection (1) provides that section 56 applies to a domestic building work dispute that was referred to the VBA under Division 2 of Part 4 of the DBCA.

Subsection (2) provides that a party to the dispute, or the VBA on behalf of a party to the dispute, must not make an application to VCAT in relation to the dispute unless—

the VBA has issued a certificate of conciliation certifying that the dispute was not suitable for, or was not resolved by, conciliation under Division 3 of Part 4; or

the VBA has issued to the party a notice of non-compliance relating to the dispute.

Subsection (3) provides that an application to VCAT to commence proceedings in relation to a domestic building work dispute must be accompanied by a copy of the certificate of conciliation or the notice of non-compliance (as the case requires).

Subsection (4) provides that the section does not apply to proceedings in the nature of an injunction.

Clause 177 inserts new Subdivision 3 into Division 2 of Part 5 of the DBCA dealing with matters relating to rectification orders, and repeals Subdivision 4.

New section 63(1) provides that a person who is required to comply with a rectification order may apply to VCAT for review of the decision to issue the rectification order.

Subsection (2) provides that an application under subsection (1) must be made within 20 business days after the later of—

the day on which the applicant was given a copy of the rectification order; or

if under the Victorian Civil and Administrative Tribunal Act 1998 the applicant requests a statement of reasons, the day on which the applicant receives that

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statement of reasons or the applicant is informed under section 46(5) of that Act that a statement of reasons will not be given.

Subsection (3) provides that an application under subsection (1) must be made on the ground that—

the description in the rectification order of the domestic building work that is defective or incomplete is incorrect; or

the period specified in the rectification order for carrying out the rectification or completion work is insufficient to enable the work to be rectified or completed; or

a requirement in the rectification order to take a specific action or refrain from taking an action is unreasonable.

New section 64 provides that if, with leave of VCAT, a party withdraws an application for review of a rectification order made under section 63, the rectification order takes effect and for that purpose any period for which the order is stayed is to be disregarded in calculating the period for compliance with the order.

New section 65(1) provides that a party to a domestic building work dispute may apply to VCAT to review a decision by the VBA under section 49E to pay money out of the domestic building conciliation trust fund.

Subsection (2) provides that an application under subsection (1) must be made within 14 days after the party received written notice of the VBA's decision under section 49E.

New section 66(1) provides that a builder may apply to VCAT to review a decision of the VBA to issue a breach of rectification order notice under Part 4.

Subsection (2) provides that an application under subsection (1) must be made within 20 business days after the later of—

the day on which the applicant was served with a copy of the notice; or

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if under the Victorian Civil and Administrative Tribunal Act 1998 the applicant requests a statement of reasons, the day on which the applicant receives the statement of reasons or the applicant is informed under section 46(5) of that Act that a statement of reasons will not be given.

Subsection (3) provides that an application under subsection (1) must be made on the ground that the assessment made in the inspection report on which the notice was based that the rectification order has not been complied with—

was not correct; or

is no longer correct because the rectification order has since been complied with.

Subsection (4) provides that in addition to the parties, the building owner may make submissions to the proceedings on the application for review in relation to—

whether there has been a breach of the rectification order; and

the nature of the breach of the rectification order.

Subsection (5) provides that if an application for review is made under the section, any disciplinary action against the builder under the Building Act as a result of the breach of the rectification order is stayed pending the outcome of the review.

New section 67 applies if a building owner ends a domestic building contract in accordance with Division 6 of Part 4.

Subsection (2) provides that the building owner may apply to VCAT for an order against the builder.

Subsection (3) provides that VCAT—

must consider—

the domestic building contract including any plans and specifications set out in it; and

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any inspection report provided to the VBA under Division 6 of Part 4 in respect of the work to which the contract applies; and

may make any order it considers fair in the circumstances.

Subsection (4) provides that, without limiting subsection (3)(b), VCAT may order the builder to pay a sum of money to the building owner in one or more of the following circumstances—

if the money is found to be owing to the building owner by the builder;

by way of damages;

by way of restitution;

to refund money paid under the domestic building contract, including any money paid by the building owner in excess of the requirements of the contract.

Subsection (5) provides that an order under section 67 must provide for a builder to receive a reasonable price for work carried out under the domestic building contract, not being more than the builder would be entitled to recover under the contract.

New section 68 applies if a builder ends a domestic building contract in accordance with Division 6 of Part 4.

Subsection (2) provides that the builder may apply to VCAT for an order against the building owner.

Subsection (3) provides that VCAT may make any order it considers fair in the circumstances.

Subsection (4) provides that, without limiting subsection (3), VCAT may order the building owner to pay money to the builder—

for work performed under the contract; and

by way of damages for loss of work as a result of the termination of the contract.

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Existing section 68 has been re-enacted as section 173C of the Building Act (see clause 58).

Clause 178 inserts new Part 5A into the DBCA relating to remedies and legal proceedings. Part 5A replicates the remedies and orders available to the Director of Consumer Affairs Victoria under Part 8.2 of the Australian Consumer Law and Fair Trading Act 2012, which are currently applied by section 124A of the DBCA. Clause 181 repeals section 124A. This reflects the transfer of all functions relating to domestic building to the VBA.

New section 69 is an interpretative provision.

Subsection (1) provides that an authorised person for the purposes of exercising applied information-gathering and inspection powers is a person authorised by the VBA under section 228A(2) of the Building Act.

Subsection (2) sets out what a reference to "a person involved in a contravention of this Act" means for the purposes of Part 5A of the DBCA.

New section 70(1) provides that the VBA may accept a written undertaking given by a person in connection with a matter in relation to which the VBA has a power or function under the DBCA.

Subsection (2) provides that with the consent of the VBA, a person may vary or withdraw an undertaking at any time.

Subsection (3) provides that the VBA, with the consent of the person who gave the undertaking, may apply to the Magistrates' Court for an order directing the person to comply with the undertaking.

Subsection (4) provides that the Magistrates' Court may make an order directing a person to comply with an undertaking on an application under subsection (3).

Subsection (5) provides that if the VBA considers that the person who gave the undertaking has breached any of its terms, the VBA may apply to the Magistrates' Court for an order under subsection (6).

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Subsection (6) provides that if the Magistrates' Court is satisfied that the person has breached a term of the undertaking, the Court may make any or all of the following orders—orders directing the person to comply with the term of the undertaking; orders directing the person to pay to the State an amount (not exceeding the financial benefit obtained) that is reasonably attributable to the breach; orders directing the person to compensate another person for loss, injury or damage suffered as a result of the breach; and any other orders the Court considers appropriate.

Subsection (7) provides that if a body corporate is found to have breached an undertaking, each officer of the body corporate may be found liable for the breach, and the Magistrates' Court may make orders against each officer of the body corporate. It should be noted that undertakings are civil in nature.

New section 71 provides that the VBA must give a copy of an undertaking under section 70 of the DBCA to the person who made the undertaking.

New section 72 provides that the VBA must maintain a register of undertakings. The register must include the name and address of the person who has given an undertaking, as well as the date, and a copy, of the undertaking. The register may be inspected, without charge, by any person at any reasonable time.

New section 73(1) allows the Minister administering the DBCA, the VBA or any other person to apply to the Supreme Court, County Court or Magistrates' Court for the grant of an injunction restraining a person who has—contravened; attempted or conspired to contravene; aided, abetted, counselled or procured a person to contravene; induced or attempted to induce a person to contravene; or been directly or indirectly knowingly concerned in or party to the contravention of a provision of the DBCA.

Subsection (2) sets out what the Court needs to consider in deciding whether to grant an injunction under this section.

Subsection (3) allows for an application for an injunction under this section to be made without the party to whom the proposed injunction will apply being present in Court or having been notified of the application.

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New section 74(1) allows the Minister administering the DBCA, the VBA or any other person to apply to the Supreme Court or the County Court for the grant of an injunction requiring a person who has: contravened; attempted or conspired to contravene; aided, abetted, counselled or procured a person to contravene; induced or attempted to induce a person to contravene; or been directly or indirectly knowingly concerned in or party to the contravention of a provision of the DBCA.

Subsection (2) sets out what the Court needs to consider in deciding whether to grant an injunction under this section.

Subsection (3) provides that, without limiting subsection (1), an injunction under section 74 may require a person to: institute a training program for the person's employees (in relation to compliance with the DBCA); refund money to purchasers; transfer property to purchasers; disclose information about the person's business activities or associates; honour a promise made in the course of misleading or deceptive conduct or false representations; and destroy or dispose of certain goods.

Subsection (4) provides that only the Supreme Court may grant an injunction under this section requiring a person to transfer an interest in land.

Subsection (5) allows for an application for an injunction under this section to be made without the party to whom the proposed injunction will apply being present in Court or having been notified of the application.

New section 75 sets out the power of particular Courts to grant interim injunctions.

Subsection (1) provides that the Supreme Court, County Court or Magistrates' Court may grant an interim injunction pending determination of an application under section 73, if, in the opinion of the Court, it is desirable to do so.

Subsection (2) provides that the Supreme Court or County Court may grant an interim injunction pending determination of an application under section 74.

Subsection (3) allows for an application for an interim injunction under this section to be made without the party who the proposed injunction will apply to being present in Court.

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New section 76 enables a court to rescind or vary injunctions granted by it under sections 73 or 74 or interim injunctions granted under section 75.

New section 77 provides for the granting of cease trading injunctions.

Subsection (1) enables the Minister or the VBA to apply to the Supreme Court for an injunction restraining a person from carrying on the business of carrying out domestic building work if the person is or has been engaging in certain conduct that would result in a contravention of the DBCA.

Subsection (2) empowers the Supreme Court to grant the injunction if the Court is satisfied that the person is or has been engaging in the conduct and there is an imminent danger of substantial damage to any person as a result of the conduct, or if the Court determines it to be appropriate, by consent of all parties, irrespective of whether the person was engaging in the conduct.

Subsection (3) provides for an injunction to be granted for a specified time and subject to specified terms and conditions.

New section 78 empowers the Supreme Court to grant interim cease trading injunctions pending determination of an application under section 77 in circumstances where the Court believes it is desirable to do so and it appears that the person intends to engage in the contravening conduct and there is an imminent danger of substantial damage to any person as a result.

New section 79 enables the Supreme Court to vary or rescind injunctions granted under sections 77 and 78.

New section 80 sets out requirements in relation to undertakings as to damages or costs.

Subsection (1) provides that a court must accept an undertaking given by the Minister or the VBA in relation to an application under sections 73, 74 or 75 of the DBCA on behalf of a person that would otherwise be required to give an undertaking.

Subsection (2) provides that if in the course of an application for an injunction under sections 73 or 74 of the DBCA, an interim injunction was granted, the Court must not as a

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condition of granting that injunction, require any undertaking to be given as to damages or costs.

New section 81(1) provides that a court may, on the application of the VBA, make a non-punitive corrective advertising order in relation to a person if the court is satisfied that the person has contravened or been involved in a contravention of the DBCA.

Subsection (2) provides that a corrective advertising order means an order that requires a person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to or requires the person to publish, at the person's expense and in the way specified by the order, an advertisement in the terms specified in, or determined in accordance with, the order.

Subsection (3) provides this section does not limit a court's powers under any other provision of the DBCA.

New section 82(1) provides that a court may, on the application of the VBA, make a "punitive" adverse publicity order in relation to a person found guilty of an offence under the DBCA.

Subsection (2) provides that an adverse publicity order means an order that requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to, or requires the person to publish, at the person's expense and in the way specified by the order, an advertisement in the terms specified in, or determined in accordance with, the order.

Subsection (3) provides this section does not limit a court's powers under any other provision of the DBCA.

New section 83(1) allows a court, in the course of a prescribed proceeding against a person (the relevant person) under the DBCA, to make one of the following orders—

an order prohibiting the making of a payment in total or partial discharge of a debt owed to the relevant person or an associate;

an order prohibiting the relevant person from parting with possession of, or transferring or encumbering, any of that person's money or property;

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an order prohibiting a person who is holding assets on behalf of the relevant person from disposing of those assets;

an order prohibiting an authorised deposit taking institution at which the relevant person holds an account from transferring, or allowing any person to withdraw, money from that account;

an order prohibiting the taking or sending by a person of money of the relevant person or of an associate of the relevant person to a place outside Victoria;

an order prohibiting the taking, sending or transfer by a person of other property of the relevant person or an associate of the relevant person to a place outside Victoria.

Subsection (2) allows the Minister administering the DBCA, the VBA or another party who is a party to the prescribed proceedings to make an application for an order under this section.

Subsection (3) provides that, subject to subsection (4), an order under section 83 may be expressed to operate for a specific period or until proceedings under any other provision of Part 5A in relation to which the order was made are concluded.

Subsection (4) provides that an order made under this section on an ex parte application, that is without the relevant person being present in court or notified of the court proceedings, must not operate for more than 30 days.

Subsection (5) provides that it is an offence for a person not to comply with an order by a court under section 83. This offence attracts a maximum penalty of 240 penalty units for a natural person or 1200 penalty units for a body corporate.

Subsection (6) provides that this section does not affect the powers the court has apart from under this section.

Subsection (7) explains the meaning of the term "associate of another person".

Subsection (8) sets out which proceedings to which this section applies.

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New section 84 sets out evidence requirements in relation to proceedings under the DBCA. It provides that the production by the prosecutor of the certificate of an analyst is proof of the facts stated in the certificate. The defendant may give written notice 14 days before the hearing that he or she requires the analyst be called as a witness.

New section 85 provides that, in proceedings under sections 86 and 87 findings of fact by a court made in certain proceedings under the DBCA is evidence of that fact and may be proved by production of a document under the seal of the court from which the finding appears.

New section 86(1) allows the court to make any order it considers fair in relation to a proceeding for an offence under the DBCA if the court finds that the person against whom the proceedings were brought has contravened a provision of the DBCA and another person has suffered or may suffer loss or damage as a result.

Subsection (2) provides a non-exhaustive list of orders the court may make.

Subsection (3) provides that, in proceedings under section 73, 75 or 87, if the court or VCAT finds that a party to proceedings has contravened the provisions of the DBCA and that another person has suffered or is likely to suffer loss or damage as a result, the court or VCAT may make any order against the party that might be made against the accused under subsection (1).

Subsection (4) provides that the court may also make an order under section 86 against a person involved in a contravention of a provision of the DBCA.

New section 87(1) allows a person who suffers loss, injury or damage because of a contravention of the DBCA to recover the amount of the loss or damage suffered by proceedings against any person who contravened or was involved in contravening the DBCA.

Subsection (2) states that a proceeding under section 87 may be brought before VCAT or any court of competent jurisdiction.

Subsection (3) provides a person may not recover in a proceeding before VCAT an amount for any personal injury suffered unless the total amount of the claim is the prescribed amount or less.

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Subsection (4) provides that a proceeding under this section must not be commenced more than 6 years after the date on which the cause of action accrued. A note to this section provides that subsection (4) is subject to Part IIA of the Limitation of Actions Act 1958.

Subsection (5) provides that the prescribed amount is $10 000 or another greater amount fixed by regulations.

New section 88 allows a court to make a compensation order in addition to any other penalty it may fix if a person is found guilty of an offence against the DBCA and if, in the opinion of the court, another person was humiliated or distressed by the conduct constituting the offence. The court may order payment of an amount of up to $10 000, or if a greater amount is prescribed, that prescribed amount.

Clause 179 creates Division 1 of Part 6 and inserts new sections 121A and 121B into the DBCA.

New section 121A specifies the functions that the VBA has under the DBCA.

New section 121B provides that the VBA may do anything necessary or convenient to carry out its functions.

Clause 180 provides for the creation of Divisions 2 and 3 in Part 6 of the DBCA.

Clause 181 repeals section 123A of the DBCA, substitutes sections 124 and 124A.

Section 123A enabled the Director to provide information to the VBA to assist in the resolution of disputes. With the proposed information sharing power to be inserted by clause 100, this provision will become unnecessary.

Section 124A applied provisions of the Australian Consumer Law and Fair Trading Act 2012. With the transfer of enforcement of the DBCA to the VBA, the continued application of these provisions will cease and be replaced by the application of provisions from the Building Act.

New section 124 applies sections 227G, 239 and 243B and Divisions 2 (except Subdivision 3) and 2A of Part 13 of the Building Act to the DBCA. The powers will be exercisable by

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the VBA or persons authorised by the VBA. The provisions are—

Section 227G is a power to gather information to monitor compliance.

Section 239 enables certain authorised persons to go before a court and certify a failure to comply with certain requirements.

Section 243B specifies when conduct of officers, employees and agents is deemed to be that of a body corporate or other principal.

Division 2 of Part 13 contains the Building Act's inspection powers.

New section 124A provides that it is an offence for a person to make a false or misleading statement or to provide any false or misleading information or document to the VBA. A penalty of 60 penalty units in the case of a natural person or 300 penalty units in the case of a body corporate applies.

Clause 182 makes a number of consequential amendments to the DBCA relating to infringement notices.

Subclause (1) substitutes subsection 125(1) of the DBCA. Substituted subsection 125(1) provides that an authorised person may serve an infringement notice on any person that the authorised officer has reason to believe has committed an offence listed in column 1 of Schedule 2.

Subclause (2) substitutes "Authority" for "Director" in section 125(3) of the DBCA.

Subclause (3) inserts new subsection (5) into section 125 of the DBCA. Section 125(5) provides that an authorised person means a person authorised by the VBA under section 228A(2) of the Building Act.

Clause 183 inserts new sections 129, 129A and 129B into the DBCA.

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New section 129 provides that proceedings for any offence against the DBCA or the regulations may be brought by—

the VBA; or

any person authorised by the VBA.

New section 129A provides that if a body corporate commits an offence, an officer of the body corporate also commits the offence if the officer—

authorised or permitted the commission of the offence by the body corporate; or

was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.

The accessorial liability provision applies to the following existing offences—

section 11(1), relating to demanding a deposit greater than the limit;

section 12(2), relating to ensuring domestic building work is clearly distinguished in any contract;

section 13(1) and (2), relating to entry into cost plus contracts;

section 19(1), relating to the provision of access to the building site for the building owner;

section 21(1), relating to prime cost items and provisional sums in contracts that are below reasonable costs;

section 22, relating to the inclusion of details of prime cost items and provisional sums in a schedule to a contract;

section 23, relating to the provision of evidence relating to prime cost items and provisional sums;

section 25, requiring a copy of a contract to be given;

section 26(1), relating to the supply of relevant reports;

section 30(2) and (6), relating to the obtaining and provision of foundation data by a builder;

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section 31(1), relating to the general contents of a domestic building contract;

section 32(1) and (2), relating to allowances for delays in time estimates;

section 33(2), relating to a requirement that a contract contains a warning if the price is likely to vary;

section 36(2), relating to the provision of other documents by a builder;

section 40(2) and (3), relating to limits on progress payments;

section 43(2) and (3), relating to the display of plans for display homes and construction of similar homes;

section 47D, inserted by clause 174, relating to compliance with stop work orders;

section 48G, inserted by clause 174, relating to obstruction of inspectors;

section 48I, inserted by clause 174, relating to hindering or obstructing an inspector;

section 124A(1) and (2), inserted by clause 181, relating to making false or misleading statements and giving false or misleading documents.

New section 129B provides a Type 1 directors' liability provision. The clause imposes liability on officers where the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.

The Type 1 directors' liability provision applies to the following offences—

section 15(2), relating to cost escalation clauses;

section 16(1), relating to seeking more than the contract price;

section 29, relating to entering into domestic building contracts without registration;

section 83(5), inserted by clause 178, relating to contraventions of orders prohibiting the payment of money or transfer of property.

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Clause 184 inserts new section 133A into the DBCA to provide for rules for the service of notices, orders, determinations and other documents under the DBCA.

Clause 185 inserts notes pointing users to the provisions addressing directors' liability at sections 129A and 129B of the DBCA.

Clause 186 replaces references to "the Tribunal" with references to VCAT in various sections of the DBCA.

Clause 187 substitutes references to the Director with references to the VBA in various sections of the DBCA.

Clause 188 inserts new section 136 into the DBCA. New section 136 provides that Schedule 1 has effect.

Clause 189 inserts new Schedule 1 to the DBCA. Schedule 1 sets out transitional provisions.

Clause 1 provides that in Schedule 1 commencement day means the day on which Part 6 of the Bill comes into operation.

Clause 2(1) provides that on the commencement day—

the Domestic Builders Fund is abolished; and

all money standing to the credit of the Domestic Builders Fund is to be paid into the domestic building dispute account.

Clause 2(2) provides that on and from the commencement day, any reference in any Act or instrument to the Domestic Builders Fund is taken to be a reference to the domestic building dispute account in relation to any period on or after that day.

Clause 3 provides that any details, form, contract or term published or approved by the Director under section 122 or 123 before the commencement day are taken on and after the commencement day to have been published or approved by the VBA in relation to any period on or after that day.

Clause 4 provides that Part 3A, as in force before its repeal continues to apply in respect of any complaint made to the Director under Part 3A before the commencement day.

Clause 5 provides that Part 4, as in force before its repeal, continues to apply in respect of any examination commenced by an inspector—

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before the commencement day; or

after the commencement day as a result of a request under section 43F as continued by clause 4.

Clause 6 clarifies that new sections 129A and 129B, to be inserted by clause 183, apply directors' liability only to offences specified in those sections alleged to have been committed on or after the commencement day.

Clause 7 enables temporary regulations to be made dealing with unforeseen transitional matters. These regulations may have a retrospective effect, but only to the date that this Bill receives Royal Assent. Such regulations have effect despite anything to the contrary in any other Act except the Charter of Human Rights and Responsibilities Act 2006. Regulations made under the clause that expire on or before 1 July 2015 will be exempt from the consultation and regulatory impact statement requirements of the Subordinate Legislation Act 1994. The clause is repealed on 1 July 2017.

Clause 190 amends Schedule 2 to the DBCA, which specifies which offences are infringeable, by repealing the items relating to sections 67, 88(5) and 111. These sections have been repealed.


Clause 191 amends Schedule 1 to the Australian Consumer Law and Fair Trading Act 2012 to omit a reference to the DBCA from the list of Consumer Acts set out in that Schedule. This will mean that the DBCA will cease being a Consumer Act.

Clause 192 amends the Victorian Civil and Administrative Tribunal Act 1998 by substituting a new Part 6 of Schedule 1 to that Act.

New clause 12 provides for definitions in the Part.

New clause 12A enables VCAT to refer matters to the VBA for investigation. The VBA may investigate the matters and, if it does so, must report back to VCAT.

New clause 12B enables VCAT to request information from the VBA about domestic building disputes. This power does not apply to information that is inadmissible because of section 46C of the DBCA.

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New clause 12C provides that, despite section 109 of the Victorian Civil and Administrative Tribunal Act 1998, VCAT may make an award of costs against an unsuccessful party to the dispute if—

the party applied to VCAT to resolve the dispute without first referring it to the VBA; or

the dispute had been accepted by the VBA and referred for conciliation and the party—

refused to participate in the conciliation; or

did not participate in the conciliation in good faith; or

the VBA has issued a notice of non-compliance under section 46H of the DBCA and VCAT has ordered the party to comply with it.

Subclause (3) provides that VCAT must have regard to any certificate of conciliation in determining a matter referred to in clause 12C(2)(b).

Subclause (4) provides that VCAT must have regard to any notice of non-compliance in determining a matter referred to in clause 12C(2)(c).

Subclause (5) provides that in addition to the Certificate of Conciliation or notice of non-compliance, VCAT may have regard to an inspection report and any other matter that it considers relevant in determining whether a party has participated in good faith.

New clause 12D deals with costs where a party applies to VCAT for a review of a decision to issue a rectification order and the application is subsequently withdrawn.

Subclause (2) provides that despite section 109 of the Victorian Civil and Administrative Tribunal Act 1998, VCAT must award costs against the party that withdrew the application unless it determines that it would be unfair to do so.

New clause 12E applies in relation to an application to review a decision to issue a rectification order or a breach of rectification order notice under Part 4 of the DBCA.

Subclause (2) provides that, without limiting section 109 of the Victorian Civil and Administrative Tribunal Act 1998,

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VCAT may order a party to pay the reasonable costs involved in the preparation of an inspection report on which the decision to issue the order or notice was based including the costs of any tests made or expert advice obtained by the inspector.

New clause 12F deals with costs with respect to reviews of decisions to issue a rectification order.

Subclause (1) provides that clause 12F applies despite section 109 of the Victorian Civil and Administrative Tribunal Act 1998.

Subclause (2) provides that the clause applies to an application to review a decision to issue a rectification order.

Subclause (3) provides that if the applicant is the builder, VCAT may award costs against the builder if the determination of the Tribunal was to—

affirm the decision to issue the rectification order; or

vary the rectification order to increase the requirements for rectification or completion of building work.

Subclause (4) provides that if the applicant is the building owner, VCAT may award costs against the building owner if the determination of VCAT was to—

affirm the decision to issue the rectification order, including a rectification order that includes a finding referred to in section 49F(1) of the DBCA; or

amend the rectification order to decrease the requirements for rectification or completion of the building work.

Subclause (5) provides that in determining whether to award costs under the clause, VCAT—

must consider whether the application was vexatious, frivolous or lacking in substance; and

may consider—

any certificate of conciliation relating to the domestic building work dispute to which the rectification order relates; and

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any inspector's report on which the decision to issue the rectification order was based; and

any other matter that VCAT considers relevant.

PART 7—REPEAL OF HOUSE CONTRACTS GUARANTEE ACT 1987

Clause 193 repeals the House Contracts Guarantee Act 1987. The major provisions of that Act relate to the former house contracts guarantee scheme managed by Housing Guarantee Fund Limited and subsequently transferred to VMIA, and the management of the State HIH indemnity scheme for losses insured under the former HIH Group's domestic building insurance policies, which was also undertaken by Housing Guarantee Fund Limited and subsequently transferred to VMIA. The repeal will become effective on or before 1 July 2016.

Both the housing guarantee scheme and the HIH indemnity scheme are spent, in that the time limits for claims under the schemes are long expired and all outstanding claims known to VMIA are finalised. The fund established under this Act to support the housing guarantee scheme has been closed, and that to support the HIH indemnity scheme will soon be closed.

In the unlikely event that a claimant subsequently establishes through the courts an entitlement to further payment under either scheme, new Schedule 8 of the Building Act provides for such a payment to be made from the Consolidated Fund. That Schedule also provides that further distributions from the HIH Group liquidator to the State are to be paid directly into the Consolidated Fund.

Clause 194 amends the DBCA to remove redundant references to the House Contracts Guarantee Act 1987 or matters relating to the operation of that Act.

Clause 195 amends the Victorian Civil and Administrative Tribunal Act 1998 to repeal Part 11 of Schedule 1 of that Act, which currently comprises redundant provisions relating to the operation of the House Contracts Guarantee Act 1987.

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Clause 196 amends the Victorian Managed Insurance Authority Act 1996 to remove redundant references to the House Contracts Guarantee Act 1987.

PART 8—CONSEQUENTIAL AND REPEAL OF AMENDING ACT

Clause 197 amends section 208(1)(c) of the Building Act to replace a reference to the member of the TAC being an Australian Lawyer (inserted by clause 73). This reflects Victoria's adoption of the Legal Profession Uniform Law.

Clause 198 amends the note to new section 231O(2) of the Building Act and substitutes new section 232G of the Building Act (both inserted by clause 87 of the Bill) so that terminology in those sections changes to "police officer" rather than "member of the police force". These changes are consequential to changes in terminology relating to members of the police force in the Victoria Police Act 2013 (see notes to clause 2).

Clause 199 provides for the automatic repeal of this amending Act on 1 July 2017. The repeal of this Act does not affect in any way the continuing operation of the amendments and repeals made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984).

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