Building Amendment (Registration and Other Matters) Act 2021 (Vic)
Building Amendment (Registration and Other Matters) Act 2021
No. 40 of 2021
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendments relating to registration of builder subcontractors and licensing of building employees
Division 1—Amendment of the Building Act 1993
3Purposes
4Definitions
5Further limitations on the issue of building permits
6Specification of builders in relation to specific building work
7Change of builder on building permit
8Suspension of building permit
9Restrictions on owner-builder
10Prescribed temporary structures—special provisions
11Offence for owner-builder to sell building without report or insurance
12Representation in relation to registration
13New section 169AA inserted
14Offence to carry out certain types of building work unless registered or licensed
15New section 169EB inserted
16Offence for person to carry out work under a major domestic building contract
17Offence to engage an unregistered subcontractor
18Offence to direct or require a person to carry out certain building work
19Who may apply for registration?
20Application for registration—general
21Registration
22Additional requirements for registration—bodies corporate—general
23Additional requirements for applicant who is member of partnership
24Personal probity requirements
25Financial probity requirements
26Issue of certificate of registration
27Issue of registration card
28Conditions on registration
29Period of registration
30Heading to Subdivision 3 of Division 1A of Part 11
31Annual fee, proof of insurance and training plan report
32Natural person may apply for a licence
33Applications to be licensed
34Grant of licence other than provisional licence
35Section 187G substituted
36Conditions of licence
37Period of licence granted under this Part
38Issue or return of licence certificate
39Heading to Subdivision 3 in Part 11A amended
40Periodic licence fee, statement and training plan report
41Authority staff
42General regulation-making powers
43General transitional and savings provisions—Building Amendment (Registration of Building Trades and Other Matters) Act 2018
44Transitional regulations
45New sections 282 and 283 inserted
Division 2—Amendment of the Domestic Building Contracts Act 1995
46Person must not enter into contract unless registered
Part 3—Other amendments to the Building Act 1993
47Accreditation of building products
48Section 14A repealed
49Section 15 substituted
49ALimitation on time when building action may be brought
50Occupier or registered mortgagee may carry out work
51General regulation-making powers
52New section 281 inserted
52ANew section 284 inserted
53Statute law revision amendments
Part 4—Repeal of this Act
54Repeal of this Act
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Endnotes
1 General information
Building Amendment (Registration and Other Matters) Act 2021
No. 40 of 2021
[Assented to 19 October 2021]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Building Act 1993—
(i)to provide further in relation to the registration of builders who may only carry out certain building work as subcontractors; and
(ii)to provide further in relation to the licensing of building employees; and
(iii)to make other miscellaneous and consequential amendments; and
(b)to amend the Domestic Building Contracts Act 1995 to make consequential amendments.
2Commencement
(1)This Part and Part 2, sections 49A to 53 and Part 4 come into operation on the day after the day on which the Act receives the Royal Assent.
(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision referred to in subsection (2) does not come into operation before 3 August 2022, it comes into operation on that day.
Part 2—Amendments relating to registration of builder subcontractors and licensing of building employees
Division 1—Amendment of the Building Act 1993
3Purposes
In section 1(d) of the Building Act 1993, after "practitioners" insert ", building employees".
4Definitions
(1)In section 3(1) of the Building Act 1993 insert the following definitions—
"class of licence means a licence in a class of building employee;
class of registration means registration in a class of building practitioner;
provisionally registered builder subcontractor means a person who is provisionally registered in the category of builder in a class of builder under section 171(1)(ac) and the registration authorises the person to carry out a type of building work prescribed for the purposes of section 169EA;
Note
A registration under section 171(1)(ac) is subject to a condition that the registered person must not carry out building work other than as a subcontractor (unless the cost of the work is less than the amount prescribed for the purposes of section 24B(2) or the building work is not domestic building work and does not require a building permit) or as an employee—see section 171H.
registered builder subcontractor means a person who is registered in the category of builder in a class of builder under section 171(1)(ab) and the registration authorises the person to carry out a type of building work prescribed for the purposes of section 169EA;
Note
A registration under section 171(1)(ab) is subject to a condition that the registered person must not carry out building work other than as a subcontractor (unless the cost of the work is less than the amount prescribed for the purposes of section 24B(2) or the building work is not domestic building work and does not require a building permit) or as an employee—see section 171H.
training plan—see sections 171H(1B) and 187H(1B);".
(2)In section 3(1) of the Building Act 1993—
(a)for the definition of provisional registration substitute—
"provisional registration, except in Part 12A, means registration granted under section 171(1)(ac);".
(b)for the definition of registered building practitioner substitute—
"registered building practitioner means a building practitioner registered under Part 11 including the following persons unless the contrary intention appears—
(a)a provisionally registered builder subcontractor;
(b)a registered builder subcontractor;".
5Further limitations on the issue of building permits
(1)In section 24A(1)(a) of the Building Act 1993—
(a)for "a builder" substitute "a person";
(b)after "24B" insert "as the builder".
(2)For section 24A(1)(b) of the Building Act 1993 substitute—
"(b)the person is named in the building permit as the builder; and".
6Specification of builders in relation to specific building work
(1)In section 24B(3) of the Building Act 1993—
(a)for paragraph (a) substitute—
"(a)a registered building practitioner other than a provisionally registered builder subcontractor or a registered builder subcontractor; or";
(b)paragraph (ab) is repealed.
(2)For section 24B(4)(b) of the Building Act 1993 substitute—
"(b)be registered under Part 11, other than provisionally registered or registered as a builder subcontractor, and the registration authorises the carrying out of that work.".
7Change of builder on building permit
In section 25AC of the Building Act 1993, for "that the builder complies with the relevant requirements of section 24A" substitute "of the relevant requirements of sections 24A and 24B".
8Suspension of building permit
In section 25AE(2) of the Building Act 1993, for "section 24A" substitute "sections 24A and 24B".
9Restrictions on owner-builder
(1)For section 25B(1)(b) of the Building Act 1993 substitute—
"(b)is a builder whose registration under Part 11 authorises the carrying out of that work, other than a provisionally registered builder subcontractor or a registered builder subcontractor; or".
(2)In section 25B(1A) of the Building Act 1993, after "provisionally registered" insert "or as a builder subcontractor".
10Prescribed temporary structures—special provisions
For section 57(1)(b) of the Building Act 1993 substitute—
"(b)the erection of the temporary structure is carried out by a registered building practitioner or a licensed building employee.".
11Offence for owner-builder to sell building without report or insurance
In section 137B(1)(a)(i) of the Building Act 1993, for "other than a provisionally registered building practitioner" substitute "(other than a provisionally registered builder subcontractor or a registered builder subcontractor)".
12Representation in relation to registration
In section 169(2) of the Building Act 1993, for "171(1)(a)" substitute "171(1)(a) or (ab)".
13New section 169AA inserted
After section 169 of the Building Act 1993 insert—
"169AA Certain registered builders must not act as head builders
(1)A provisionally registered builder subcontractor must not enter into a contract with the owner of a building or land for the carrying out of building work at that building or on that land if the cost of the building work exceeds the amount prescribed for the purposes of section 24B(2) and the building work is either—
(a)domestic building work; or
(b)building work that requires a building permit.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(2)A registered builder subcontractor must not enter into a contract with the owner of a building or land for the carrying out of building work at that building or on that land if the cost of the building work exceeds the amount prescribed for the purposes of section 24B(2) and the building work is either—
(a)domestic building work; or
(b)building work that requires a building permit.
Penalty:500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(3)For the purposes of this section, if the owner of the building or land and the builder have agreed that building work is to be carried out in stages under a series of separate contracts, the initial agreement and subsequent contracts are considered to be a single contract.
(4)For the purposes of this section—
cost of the building work includes any increase to the contract price resulting from a variation to the building work.".
14Offence to carry out certain types of building work unless registered or licensed
(1)In section 169EA(1) of the Building Act 1993, after "this section" insert "(the relevant building work)".
(2)In section 169EA(2) of the Building Act 1993—
(a)for "subsection (1)(b)" substitute "subsection (1)";
(b)for "a type of building work referred to in subsection (1)" substitute "relevant building work".
(3)After section 169EA(2) of the Building Act 1993 insert—
"(3)A person does not commit an offence under subsection (1) if the person applies for a registration under section 171(1)(ab) or a licence under section 187F, which authorises the carrying out of the relevant building work, before the person completes a training contract referred to in subsection (2) to carry out that relevant building work, during the period beginning after the completion of the training contract and ending on whichever of the following days occurs latest—
(a)the day on which the Authority determines the person's application for the registration or licence;
(b)if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;
(c)if applicable, the day on which VCAT makes a decision in relation to that determination.
(4)A person is exempt from an offence against subsection (1) in relation to the carrying out of relevant building work if—
(a)the person has been granted an exemption by the Authority under section 169EB in relation to the carrying out of the relevant building work; and
(b)the person carries out the relevant building work while employed by a builder registered under section 171(1)(a) or a registered builder subcontractor, whose registration authorises the carrying out of the relevant building work and who is the employing builder referred to in the exemption including an exemption as varied by the Authority; and
(c)at the time of carrying out the relevant building work the exemption is in force. ".
(4)Insert the following note at the foot of section 169EA of the Building Act 1993—
"Note
See also transitional provisions in section 282(1) and (2) which provide that in certain circumstances the offence against section 169EA does not apply to a person who is not registered or licensed to carry out relevant building work.".
15New section 169EB inserted
After section 169EA of the Building Act 1993 insert—
"169EB Authority may grant exemption from offence against section 169EA(1)
(1)A natural person may apply to the Authority for an exemption from an offence against section 169EA(1) in relation to the carrying out of a type of building work prescribed for the purposes of that section (the relevant building work).
(2)An application under subsection (1) must—
(a)be in writing in a form approved by the Authority; and
(b)state the relevant building work that the exemption applies to; and
(c)be accompanied by the appropriate application fee—
(i)determined in accordance with the guidelines under Division 1 of Part 12; or
(ii)prescribed by the regulations; and
(d)include or be accompanied by the following—
(i)a recent photograph of the applicant that is of a size and form specified by the Authority;
(ii)a statement by the applicant that the applicant intends to carry out the relevant building work while employed by a builder registered under section 171(1)(a) or a registered builder subcontractor, whose registration authorises the carrying out of the relevant building work (the employing builder); and
(e)include a statement by the employing builder that the employing builder intends to employ the applicant during the period of the exemption; and
(f)include evidence that the applicant—
(i)holds, or is enrolled in a course to obtain, the prescribed qualification for registration under section 171(1)(ab) in a class of builder that authorises the carrying out of the relevant building work; or
(ii)holds, or is enrolled in a course to obtain, the prescribed qualification for a licence under section 187F(1) in a class of building employee that authorises the carrying out of the relevant building work; and
(g)include a statement by the applicant that the person does not have the prescribed experience for registration under section 171(1)(ab) or a licence under section 187F(1), which would authorise the carrying out of the relevant building work; and
(h)include any other information required by the Authority; and
(i)include the prescribed information (if any).
(3)The Authority may grant an exemption referred to under subsection (1) if—
(a)the application complies with subsection (2); and
(b)the Authority is satisfied that the statements and evidence provided in or with the application are true and correct; and
(c)the applicant has provided any other information required by the Authority.
(4)In deciding whether to grant an exemption under subsection (3), the Authority may take into account any matters that it thinks fit, including any particular circumstances that apply in relation to the exemption application.
(5)The Authority may grant an exemption under subsection (3) for a period of no more than 3 years.
(6)A person granted an exemption under subsection (3) may apply to the Authority to vary the exemption to change the details of the employing builder.
(7)The same requirements for an application for an exemption under subsection (1) apply to an application to vary an exemption under subsection (6), except the requirement under subsection (2)(d)(i).
(8)The Authority may vary an exemption under subsection (3) to change the details of the employing builder if—
(a)the application for the variation complies with subsection (7); and
(b)the Authority is satisfied that the statement by the new employing builder provided in the application is true and correct.
(9)An exemption granted under subsection (3), including as varied under subsection (8), ceases to have any force—
(a)for any part of the period of the exemption during which the person granted the exemption—
(i)is not employed by the employing builder; or
(ii)has ceased to be enrolled in a relevant course referred to in subsection (2)(f) without completing that course; and
(b)immediately after the period of the exemption expires.".
16Offence for person to carry out work under a major domestic building contract
(1)In the heading to section 169F of the Building Act 1993, for "certain domestic building work unless registered" substitute "work under a major domestic building contract".
(2)In section 169F(1) of the Building Act 1993, after "builder" insert "or a licensed building employee".
(3)In section 169F(2) of the Building Act 1993—
(a)in paragraphs (a) and (b), for "registered builder" substitute "builder registered under section 171(1)(a) whose registration authorises the carrying out of that work";
(b)in paragraph (c)—
(i)for "of a registered builder" substitute "of a builder registered under section 171(1)(a), whose registration authorises the carrying out of that work,";
(ii)for "the registered builder." substitute "the registered builder; or";
(c)after paragraph (c) insert—
"(d)the unregistered person carries out that work as a subcontractor or employee of a subcontractor referred to in paragraph (c), in accordance with a subcontract with that subcontractor, or in the course of the person's employment with that subcontractor (as the case applies).".
(4)Insert the following definition in section 169F(5) of the Building Act 1993—
"licensed building employee means a person who carries out building work under a major domestic building contract and whose licence authorises the carrying out of that building work;".
17Offence to engage an unregistered subcontractor
Insert the following note at the foot of section 169FA of the Building Act 1993—
"Note
See also the transitional provision in section 282(3) which provides that in certain circumstances section 169FA does not apply to a person who engages a person as a subcontractor to carry out relevant building work who is not registered to carry out that work.".
18Offence to direct or require a person to carry out certain building work
(1)After section 169FB(2) of the Building Act 1993 insert—
"(2A)A person does not commit an offence under subsection (1) if—
(a)the directed person has been granted an exemption under section 169EB in relation to carrying out the relevant building work and the exemption is in force; and
(b)the person is the employing builder (within the meaning of section 169EB) or a person acting on behalf of that employing builder.".
(2)Insert the following note at the foot of section 169FB of the Building Act 1993—
"Note
See also the transitional provision in section 282(4) which provides that in certain circumstances section 169FB does not apply to a person who directs a person to carry out relevant building work who is not registered or licensed to carry out that building work.".
19Who may apply for registration?
(1)For section 170(1) of the Building Act 1993 substitute—
"(1)An application for registration as a building practitioner, including as a registered builder subcontractor or a provisionally registered builder subcontractor, may be made by—
(a)a natural person; or
(b)a body corporate.".
(2)For section 170(2) of the Building Act 1993 substitute—
"(2)An application for registration as a builder subcontractor or for provisional registration—
(a)may only be made in respect of a class of builder that authorises the carrying out of a type of building work prescribed for the purposes of section 169EA; and
(b)in the case of provisional registration, must be made—
(i)within 12 months after that type of building work is prescribed; or
(ii)if the Authority considers that exceptional circumstances apply in respect of the application, within any longer period determined by the Authority, which must not in total exceed 24 months after that type of building work is prescribed.
(3)The Authority must refuse an application for provisional registration—
(a)that is not made within the period of time allowed under subsection (2); or
(b)in a class of builder, if the person has previously been granted a provisional registration in that class of builder.".
20Application for registration—general
After section 170A(c) of the Building Act 1993 insert—
"(ca)in the case of an application in the category of a builder, state whether the registration is sought under section 171(1)(a), (ab) or (ac); and".
21Registration
(1)In section 171(1)(a) of the Building Act 1993—
(a)for "provisional registration" substitute "registration under paragraph (ab) or (ac)";
(b)in subparagraph (i), after "qualification" insert "and prescribed experience";
(c)in subparagraph (ii), before "certificate" insert "knowledge,".
(2)For section 171(1)(ab) of the Building Act 1993 substitute—
"(ab)in the case of registration as a builder in a class of builder that authorises the carrying out of a type of building work prescribed for the purposes of section 169EA, if the applicant is a natural person—
(i)the applicant holds—
(A)the prescribed qualification for the registration; or
(B)(unless the regulations otherwise provide in relation to a particular class) holds a qualification that the Authority considers is, either alone or together with any further knowledge, certificate, authority, experience or examination, equivalent to the prescribed qualification; and
(ii)the applicant has any prescribed experience for the registration; and
(iii)the applicant has or holds any prescribed prerequisite for the registration; and
Note
A registration under this paragraph is subject to a condition that the registered person must not carry out building work other than as a subcontractor (unless the cost of the work is less than the amount prescribed for the purposes of section 24B(2) or the building work is not domestic building work and does not require a building permit) or as an employee—see section 171H.".
(3)After section 171(1)(ab) of the Building Act 1993 insert—
"(ac)in the case of provisional registration as a builder in a class of builder that authorises the carrying out of a type of building work prescribed for the purposes of section 169EA, if the applicant is a natural person—
(i)the applicant holds—
(A)the prescribed qualification for the registration; or
(B)(unless the regulations otherwise provide in relation to a particular class) a qualification that the Authority considers is, either alone or together with any further knowledge, certificate, authority, experience or examination, equivalent to the prescribed qualification; or
(C)the prescribed knowledge for registration; and
(ii)the applicant has any prescribed experience for the registration; and
(iii)the applicant has or holds any prescribed prerequisite for the registration; and
Note
A registration under this paragraph is subject to a condition that the provisionally registered person must not carry out building work other than as a subcontractor (unless the cost of the work is less than the amount prescribed for the purposes of section 24B(2) or the building work is not domestic building work and does not require a building permit) or as an employee—see section 171H.".
(4)For section 171(1)(b) of the Building Act 1993 substitute—
"(b)if the applicant is a body corporate—
(i)in the case of an applicant for provisional registration, the requirements in sections 171A(2)(b) and 171B have been met; or
(ii)in any other case, the requirements in sections 171A and 171B have been met; and".
(5)In section 171(1)(d) of the Building Act 1993, after "applicant" insert ", other than an applicant for provisional registration,".
(6)For section 171(1A) of the Building Act 1993 substitute—
"(1A)If the applicant is a body corporate that has applied for registration in a class of builder and a nominee director of the body corporate referred to in section 171B(2)(a) or (b) is—
(a)registered as a provisional builder subcontractor in that class, the body corporate can only be granted registration as a provisional builder subcontractor in that class; or
(b)registered as a builder subcontractor in that class, the body corporate can only be granted registration as a builder subcontractor in that class.".
(7)After section 171(2) of the Building Act 1993 insert—
"(2A)If the Authority determines to refuse an application for registration under subsection (1)(ab) solely on the ground that the applicant does not meet the requirements in that subsection, the Authority may, with the consent of the applicant, determine the application as if it were an application made under section 170 for a provisional registration.".
22Additional requirements for registration—bodies corporate—general
In section 171A(2)(a) of the Building Act 1993, before "is a fit" insert "except in the case of a provisional registration,".
23Additional requirements for applicant who is member of partnership
In section 171C(2)(a) of the Building Act 1993, before "is a fit" insert "except in the case of a provisional registration,".
24Personal probity requirements
(1)In section 171D of the Building Act 1993, for "this Part" substitute "an application for registration under section 171(1)(a)".
(2)At the end of section 171D of the Building Act 1993 insert—
"(2)For the purposes of an application for registration as a builder subcontractor under section 171(1)(ab), the probity requirements are whether, in the last 5 years, any of the matters in subsection (1) apply to the applicant.".
25Financial probity requirements
(1)In section 171E(1) of the Building Act 1993, for "this Part" substitute "an application for registration under section 171(1)(a)".
(2)After section 171E(1) of the Building Act 1993 insert—
"(1A)For the purposes of an application by a person for registration as a builder subcontractor under section 171(1)(ab), the financial probity requirements are—
(a)whether any of the matters in subsection (1)(d) and (f)(ii) to (v) apply to the applicant or, if the applicant is a body corporate, any director of the body corporate; and
(b)whether the applicant is a director of a body corporate that has outstanding any judgment debt or unpaid amount referred to in paragraph (f)(ii) to (v); and
(c)whether the applicant was a director of a body corporate that had outstanding any judgment debt or unpaid amount referred to in paragraph (f)(ii) to (v) at the time the applicant was a director.".
26Issue of certificate of registration
For section 171G(2)(ba) of the Building Act 1993 substitute—
"(ba)specify the category of building practitioner and class of building practitioner (if applicable) and, in the case of a builder, whether the registration is for a provisionally registered builder subcontractor or a registered builder subcontractor; and
(bb)specify the expiry date of the registration; and".
27Issue of registration card
After section 171GA(2)(a) of the Building Act 1993 insert—
"(ab)specify the category of building practitioner and class of building practitioner (if applicable) and, in the case of a builder, whether the registration is for a provisionally registered builder subcontractor or a registered builder subcontractor; and
(ac)specify the expiry date of the registration; and".
28Conditions on registration
After section 171H(1) of the Building Act 1993 insert—
"(1A)It is a condition of a provisional registration and registration of a builder subcontractor that the person holding the registration must not carry out any building work of a type prescribed for the purposes of section 169EA other than—
(a)as a subcontractor unless—
(i)the cost of the building work does not exceed the amount prescribed for the purposes of section 24B(2); or
(ii)the building work is not domestic building work and does not require a building permit; or
(b)as an employee.
(1B)It is a condition of a provisional registration that the person holding the registration must comply with the requirements of a training plan (if any) during the period of that registration.
(1C)For the purposes of subsection (1B) the Authority may prepare a training plan which must—
(a)contain any requirements determined by the Authority; and
(b)contain the prescribed requirements (if any); and
(c)be in a form approved by the Authority.".
29Period of registration
After section 171I(2) of the Building Act 1993 insert—
"(3)If a person who holds a provisional registration applies for registration under section 171(1)(a) or (ab) before the provisional registration expires, the period of the provisional registration is extended to whichever of the following days occurs latest—
(a)the day on which the Authority determines the person's application for the registration;
(b)if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;
(c)if applicable, the day on which VCAT makes a decision in relation to that determination.".
30Heading to Subdivision 3 of Division 1A of Part 11
In the heading to Subdivision 3 of Division 1A of Part 11 of the Building Act 1993, for "and proof of insurance" substitute ", proof of insurance and training plan report".
31Annual fee, proof of insurance and training plan report
(1)In the heading to section 172 of the Building Act 1993, for "and proof of insurance" substitute ", proof of insurance and training plan report".
(2)In section 172(1)(b) of the Building Act 1993, for "the applicant" substitute "the building practitioner".
(3)In section 172(1)(b)(ii) of the Building Act 1993, for "insurance." substitute "insurance; and".
(4)After section 172(1)(b) of the Building Act 1993 insert—
"(c)in the case of a builder who holds provisional registration, report to the Authority on the builder's progress in complying with a training plan (if applicable), the compliance with which is a condition of the registration under section 171H(1B).".
32Natural person may apply for a licence
(1)In section 187A of the Building Act 1993—
(a)for "A natural" substitute "Subject to subsection (3), a natural";
(b)after "licensed" insert ", including provisionally licensed,".
(2)At the end of section 187A of the Building Act1993 insert—
"(2)An application for a provisional licence must be made—
(a)within 12 months after that type of building work is prescribed; or
(b)if the Authority considers that exceptional circumstances apply in respect of the application, within any longer period determined by the Authority, which must not in total exceed 24 months after that type of building work is prescribed.
(3)The Authority must refuse an application for a provisional licence—
(a)that is not made within the period of time allowed under subsection (2); or
(b)in a class of building employee if the person has previously been granted a provisional licence in that class of building employee.".
33Applications to be licensed
After section 187B(c) of the Building Act 1993 insert—
"(ca)state if the application is for a licence under section 187F or a provisional licence under section 187G; and".
34Grant of licence other than provisional licence
(1)For the heading to section 187F of the Building Act 1993 substitute—
"Grant of licence other than provisional licence".
(2)In section 187F(1) of the Building Act 1993, for "class of licence" (where first occurring) substitute "class of building employee".
(3)For section 187F(1)(a) of the Building Act 1993 substitute—
"(a)the applicant holds—
(i)the prescribed qualification for the licence; or
(ii)(unless the regulations otherwise provide in relation to a particular class) a qualification that the Authority considers is, either alone or together with any further knowledge, certificate, authority, experience or examination, equivalent to the prescribed qualification; and
(ab)the applicant has any prescribed experience for the licence; and
(ac)the applicant has or holds any prescribed prerequisite for the licence; and".
(4)After section 187F(2) of the Building Act 1993 insert—
"(2A)If the Authority determines to refuse an application for a licence under this section solely on the ground that the applicant does not meet the requirements in subsection (1), the Authority may, with the consent of the applicant, determine the application as if it were an application made for a provisional licence under section 187A.".
35Section 187G substituted
For section 187G of the Building Act 1993 substitute—
"187G Grant of provisional licence
(1)The Authority must grant a provisional licence to an applicant as a building employee in a class of building employee if the Authority is satisfied that—
(a)the applicant holds—
(i)the prescribed qualification for the licence; or
(ii)(unless the regulations otherwise provide in relation to a particular class) a qualification that the Authority considers is, either alone or together with any further knowledge, certificate, authority, experience or examination, equivalent to the prescribed qualification; or
(iii)the prescribed knowledge for the licence; and
(b)the applicant has any prescribed experience for the licence; and
(c)the applicant has or holds any prescribed prerequisite for the licence; and
(d)the applicant has paid the appropriate application fee—
(i)determined in accordance with the guidelines under Division 1 of Part 12; or
(ii)prescribed by the regulations; and
(e)the applicant meets any other prescribed requirements.
(2)The Authority must not grant a provisional licence under subsection (1) if it is not satisfied of the matters specified in that subsection.
(3)The Authority is not required to conduct a hearing to determine whether to grant a provisional licence or refuse to grant a provisional licence.".
36Conditions of licence
After section 187H(1) of the Building Act 1993 insert—
"(1A)It is a condition of a licence that the person holding the licence must not carry out any building work of a type prescribed for the purposes of section 169EA as a subcontractor unless the person holds a registration under Part 11 to carry out that type of building work.
(1B)It is a condition of a provisional licence that the person holding the licence must comply with the requirements of a training plan during the period of that licence.
(1C)For the purposes of subsection (1B), the Authority may prepare a training plan which must—
(a)contain any requirements determined by the Authority; and
(b)contain the prescribed requirements (if any); and
(c)be in a form approved by the Authority.".
37Period of licence granted under this Part
After section 187I(3) of the Building Act 1993 insert—
"(4)If a person who holds a provisional licence applies for a licence under section 187F before the provisional licence expires, the period of the provisional licence is extended to whichever of the following days occurs latest—
(a)the day on which the Authority determines the person's application for the licence;
(b)if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;
(c)if applicable, the day on which VCAT makes a decision in relation to that determination.".
38Issue or return of licence certificate
For section 187J(2)(c) of the Building Act 1993 substitute—
"(c)specify the class of building employee relating to the licence and if the licence is a provisional licence; and".
39Heading to Subdivision 3 in Part 11A amended
In the heading to Subdivision 3 in Part 11A of the Building Act 1993, for "and statement" substitute ", statement and training plan report".
40Periodic licence fee, statement and training plan report
(1)In the heading to section 187L of the Building Act 1993, for "and statement" substitute ", statement and training plan report".
(2)In section 187L(b)(iv) of the Building Act 1993, for "Authority." substitute "Authority; and".
(3)After section 187L(b) of the Building Act 1993 insert—
"(c)in the case of a building employee who holds a provisional licence, report to the Authority on the building employee's progress in complying with a training plan.".
41Authority staff
In section 204(2) of the Building Act 1993, for "The Authority" substitute "To assist in the performance of any of its functions, the Authority".
42General regulation-making powers
(1)In section 261(1)(eb) of the Building Act 1993, before "building" insert "registered".
(2)In section 261(1)(ec) of the Building Act 1993, before "building" insert "licensed".
(3)For section 261(1)(f) of the Building Act 1993 substitute—
"(f)the qualifications for registration in a category or class of building practitioner or for a licence in a class of building employee—
(i)including but not limited to degrees, diplomas, certificates, accreditations, authorities, examinations, assessments and periods of training or experience; and
(ii)whether the qualification, training or experience was obtained or completed inside or outside Victoria;".
(4)For section 261(1)(g) of the Building Act 1993 substitute—
"(g)examinations or assessments for registration in the different categories or classes of building practitioner and for granting licences in the different classes of building employee, including the determination of the subjects to be examined or assessed, the conduct of examinations and assessments and eligibility for an examination or assessment;".
(5)For section 261(1)(h) of the Building Act 1993 substitute—
"(h)the conditions prerequisite to registration in a category or class of building practitioner or to granting a licence in a class of building employee, including but not limited to conditions as to age, training, experience and authority to practise and carry out building work;".
(6)For section 261(1)(ha) of the Building Act 1993 substitute—
"(ha)specifying the work that a category or class of a registered building surveyor or registered building inspector is authorised to carry out by that registration;".
(7)For section 261(1)(hb) of the Building Act 1993 substitute—
"(hb)specifying the building work that a category or class of a registered builder (including a provisionally registered builder) is authorised to carry out by that registration;".
(8)For section 261(1)(hc) of the Building Act 1993 substitute—
"(hc)specifying the building work that a class of licensed building employee (including a provisionally licensed building employee) is authorised to carry out by the licence;".
43General transitional and savings provisions—Building Amendment (Registration of Building Trades and Other Matters) Act 2018
(1)Section 275(1), (2), (3) and (4) of the Building Act 1993 are repealed.
(2)In section 275(9) of the Building Act 1993—
(a)in the definition of amending Act, for "2018;" substitute "2018.";
(b)the definitions of relevant building work and unregistered person are repealed.
44Transitional regulations
In section 276(6) of the Building Act 1993, for "2022" substitute "2027".
45New sections 282 and 283 inserted
At the end of Part 14 of the Building Act 1993 insert—
"282 Transitional and savings provisions relating to the Building Amendment (Registration and Other Matters) Act 2021
(1)Section 169EA, as amended by section 14 of the amending Act, does not apply to a person who carries out relevant building work or any aspect of that building work under a contract to carry out that building work, including a subcontract, if the person entered into that contract before that building work was prescribed for the purposes of section 169EA.
(2)Section 169EA, as amended by section 14 of the amending Act, does not apply to a person who carries out, as a subcontractor or as an employee, relevant building work during the following periods—
(a)the allowed period after the relevant building work is prescribed for the purposes of section 169EA;
(b)if the person applies for registration as a builder (under section 171(1)(ab) as substituted by section 21(2) of the amending Act or under section 171(1)(ac) as inserted by section 21(3) of the amending Act) or for a licence as a building employee (under section 187F as amended by section 34 of the amending Act or under section 187G as substituted by section 35 of the amending Act) to carry out the relevant building work during the allowed period, but the Authority does not grant the registration or licence during that period, the allowed period as extended to whichever of the following days occurs latest—
(i)the day on which the Authority determines the person's application for the registration or licence;
(ii)if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;
(iii)if applicable, the day on which VCAT makes a decision in relation to that determination.
(3)Section 169FA does not apply to a person who engages an unregistered person as a subcontractor to carry out relevant building work during the following periods—
(a)the allowed period after the relevant building work is prescribed for the purposes of section 169EA;
(b)if the person to be engaged as a subcontractor applies for registration as a builder (under section 171(1)(ab) as substituted by section 21(2) of the amending Act or under section 171(1)(ac) as inserted by section 21(3) of the amending Act) to carry out the relevant building work during the allowed period, but the Authority does not grant the registration during that period, the allowed period as extended to whichever of the following days occurs latest—
(i)the day on which the Authority determines the person's application for the registration;
(ii)if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;
(iii)if applicable, the day on which VCAT makes a decision in relation to that determination.
(4)Section 169FB, as amended by section 18(1) of the amending Act, does not apply to a person who directs or requires a person to carry out relevant building work during the following periods—
(a)the allowed period after the relevant building work is prescribed for the purposes of section 169EA;
(b)if the person directed or required to carry out the relevant building work applies for registration as a builder (under section 171(1)(ab) as substituted by section 21(2) of the amending Act or under section 171(1)(ac) as inserted by section 21(3) of the amending Act) or for a licence as a building employee (under section 187F as amended by section 34 of the amending Act or under section 187G as substituted by section 35 of the amending Act) to carry out the relevant building work during the allowed period, but the Authority does not grant the registration or licence during that period, the allowed period as extended to whichever of the following days occurs latest—
(i)the day on which the Authority determines the person's application for the registration or licence;
(ii)if applicable, the day on which the Authority makes a reviewable decision in relation to that determination;
(iii)if applicable, the day on which VCAT makes a decision in relation to that determination.
(5)The amendments made to section 169F by section 16 of the amending Act apply only to offences alleged to have been committed on or after the commencement of that section.
(6)For the purposes of subsection (5), if an offence is alleged to have been committed between 2 dates and section 16 of the amending Act commences on a date between those 2 dates, the offence is alleged to have been committed before the commencement of that section.
(7)In this section—
allowed period means the period allowed within which an application may be made—
(a)in the case of a provisional registration, under section 170(2)(b) as inserted by section 19(2) of the amending Act; or
(b)in the case of a provisional licence, under section 187A(2) as inserted by section 32(2) of the amending Act;
amending Act means the Building Amendment (Registration and Other Matters) Act 2021;
old amending Act means the Building Amendment (Registration of Building Trades and Other Matters) Act 2018;
relevant building work means a type of building work prescribed for the purposes of section 169EA;
unregistered person means a person who does not hold a registration under Part 11 that authorises the carrying out of the relevant building work.
(8)In this section—
(a)a reference to section 169EA means a reference to section 169EA as inserted by section 10 of the old amending Act; and
(b)a reference to section 169FA means a reference to section 169FA as inserted by section 12 of the old amending Act; and
(c)a reference to section 169FB means a reference to section 169FB as inserted by section 12 of the old amending Act; and
(d)a reference to section 171(1)(ab) means a reference to section 171(1)(ab) as inserted by section 14(2) of the old amending Act; and
(e)a reference to section 187F means a reference to section 187F as inserted by section 21 of the old amending Act; and
(f)a reference to section 187G means a reference to section 187G as inserted by section 21 of the old amending Act.
283Transitional regulations
(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Building Amendment (Registration and Other Matters) Act 2021, including any repeals and amendments made as a result of the enactment of that Act.
(2)Regulations under this section may—
(a)have a retrospective effect to a day that is not before the day on which the Building Amendment (Registration and Other Matters) Act 2021 receives the Royal Assent; and
(b)be of limited or general application; and
(c)differ according to time, place or circumstance; and
(d)leave any matter or thing to be decided by a specified person or class of person.
(3)To the extent to which any provision of the regulations under this section takes effect from a date that is earlier than the date of its making, the provision does not operate so as—
(a)to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its making; or
(b)to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its making.
(4)Regulations under this section have effect despite anything to the contrary in any Act (other than the Building Amendment (Registration and Other Matters) Act 2021 or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument.
(5)The following are not required for any proposed statutory rule that is to be made under this section—
(a)consultation under section 6 of the Subordinate Legislation Act 1994;
(b)the preparation of a regulatory impact statement under section 7 of the Subordinate Legislation Act 1994.
(6)This section is repealed on 1 September 2027.".
Division 2—Amendment of the Domestic Building Contracts Act 1995
46Person must not enter into contract unless registered
In section 29(5) of the Domestic Building Contracts Act 1995, for the definition of registered building practitioner substitute—
"registered building practitioner has the same meaning as in section 3(1) of the Building Act 1993 but does not include a person who holds a provisional registration or who is a registered builder subcontractor within the meaning of that Act.".
Part 3—Other amendments to the Building Act 1993
47Accreditation of building products
(1)In section 14(1) of the Building Act 1993—
(a)after "building work" insert "(a building product)";
(b)after "this section" insert "(a prescribed person or body)".
(2)After section 14(1) of the Building Act 1993 insert—
"(1A)A person may apply, in accordance with the regulations, to the Building Regulations Advisory Committee or a prescribed person or body to have a building product accredited.
(1B)The Building Regulations Advisory Committee or the prescribed person or body (as the case requires) may accredit the building product in accordance with the regulations and, on accrediting the building product, must issue a certificate of accreditation in the prescribed form to the holder of the accreditation.".
(3)In section 14(3) of the Building Act 1993, after "the regulations" insert "on receiving an application for a renewal of the accreditation by the holder of the accreditation that is in accordance with the regulations".
(4)After section 14(4) of the Building Act 1993 insert—
"(5)The Building Regulations Advisory Committee or the prescribed person or body may, in accordance with the regulations, vary the accreditation in respect of any one or more of the prescribed matters, on receiving an application to vary the accreditation from the holder of the accreditation, which is in accordance with the regulations.".
48Section 14A repealed
Section 14A of the Building Act 1993 is repealed.
49Section 15 substituted
For section 15 of the Building Act 1993 substitute—
"15 Building surveyor must not refuse to approve building work on certain grounds
The relevant building surveyor must not refuse to approve building work on the ground that any building product, construction method, design, component or system connected with the building work is unsatisfactory if the building product, construction method, design, component or system complies with—
(a)an accreditation given by the Building Regulations Advisory Committee or a person or body referred to in section 14(1), which is in force; or
(b)a certification or an approval given under any other accreditation system or process prescribed by the regulations, which is in force.".
49ALimitation on time when building action may be brought
(1)In section 134(2) of the Building Act 1993, for "12 years" substitute "15 years".
(2)For section 134(2)(b) of the Building Act 1993 substitute—
"(b)the building action has become or becomes prohibited on or after 16 July 2019 but before 1 December 2023 by this section as in force at any time before the commencement of section 49A of the Building Amendment (Registration and Other Matters) Act 2021.".
50Occupier or registered mortgagee may carry out work
(1)For section 251(2A) of the Building Act 1993 substitute—
"(2A)An occupier cannot recover from the owner, or deduct from or set off against any rent due or to become due to the owner, any expenses incurred by the carrying out, in respect of an essential safety measure, of repairs or maintenance work or an installation referred to in section 41(2)(b)(ii) of the Retail Leases Act 2003, if the occupier has agreed to bear the expenses under—
(a)a retail premises lease to which that Act applies; or
(b)any other lease of a premises or an area in a retail shopping centre other than a premises or an area in a retail shopping centre that is used, or is intended for use, as a residence.".
(2)For section 251(6) of the Building Act 1993 substitute—
"(6)This section applies despite any covenant or agreement to the contrary, other than an agreement about the cost of the carrying out, in respect of an essential safety measure, of repairs or maintenance work or an installation referred to in section 41(2)(b)(ii) of the Retail Leases Act 2003 under—
(a)a retail premises lease to which that Act applies; or
(b)any other lease of a premises or an area in a retail shopping centre other than a premises or an area in a retail shopping centre that is used, or is intended for use, as a residence.".
(3)In section 251(7) of the Building Act 1993, in the definition of retail premises, for "2003." substitute "2003;".
(4)Insert the following definition in section 251(7) of the Building Act 1993—
"retail shopping centre has the same meaning as in the Retail Leases Act 2003.".
51General regulation-making powers
After section 261(1)(ba) of the Building Act 1993 insert—
"(bb)the accreditation of building products, construction methods, designs, components or systems connected with building work including, but not limited to—
(i)applications for those accreditations, the issuing of certificates of those accreditations and the renewal, variation and revocation of those accreditations; and
(ii)the keeping and maintaining of a register of those accreditations;".
52New section 281 inserted
After section 280 of the Building Act 1993 insert—
"281 Transitional and savings provisions relating to the Building Amendment (Registration and Other Matters) Act 2021
(1)On the substitution of section 251(2A) by section 50 of the amending Act—
(a)a lease of the type described in section 251(2A)(b) is taken to include a lease of that type that was in force immediately before and on the commencement day; and
(b)the rights of an occupier under section 251(2) that relate to expenses incurred by the occupier under section 251(1) in carrying out work or doing a thing relating to the installation, repairs or maintenance work in respect of an essential safety measure, immediately before the commencement day, are not affected by the occupier having agreed to bear such expenses under a lease referred to in paragraph (a).
(2)In this section—
amending Act means the Building Amendment (Registration and Other Matters) Act 2021;
commencement day means the day on which section 50 of the amending Act comes into operation.".
52ANew section 284 inserted
After section 283 of the Building Act 1993 insert—
"284 Transitional and saving provision relating to the Building Amendment (Registration and Other Matters) Act 2021
(1)Any right to take a cladding building action that expired under section 134(2) as in force immediately before the commencement of section 49A of the amending Act is taken for all purposes never to have expired and continues until it expires under section 134(2) as amended by section 49A of the amending Act.
(2)In this section—
amending Act means the Building Amendment (Registration and Other Matters) Act 2021.".
53Statute law revision amendments
(1)In section 140(1) of the Building Act 1993, for "refusal" substitute "refusal,".
(2)In section 182(5) of the Building Act 1993, for "section 178(1)(f)" substitute "section 178(f)".
(3)In section 182E(1A) of the Building Act 1993, for "section 178(1)(db)" substitute "section 179(1)(db)".
(4)In section 205LC(2) of the Building Act 1993, for "or (1A)(a)." substitute "or (1A)(a)".
(5)In section 211(bb) of the Building Act 1993, for "of regulations" substitute "or regulations".
(6)In section 228B(3) of the Building Act 1993—
(a)for "chief officer within the meaning of the Metropolitan Fire Brigades Act 1958" substitute "Fire Rescue Commissioner within the meaning of the Fire Rescue Victoria Act 1958";
(b)for "chief officer must" substitute "Fire Rescue Commissioner must".
(7)In section 234(2) of the Building Act 1993—
(a)for "the Metropolitan Fire and Emergency Services Board established under the Metropolitan Fire Brigades Act 1958" substitute "Fire Rescue Victoria established under the Fire Rescue Victoria Act 1958";
(b)for "chief officer" (where twice occurring) substitute "Fire Rescue Commissioner".
Part 4—Repeal of this Act
54Repeal of this Act
This Act is repealed on 3 August 2023.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 4 August 2021
Legislative Council: 5 October 2021
The long title for the Bill for this Act was "A Bill for an Act to amend the Building Act 1993 and the Domestic Building Contracts Act 1995 and for other purposes."
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