Building (Further Amendment) Act 1997 (Vic)
Building (Further Amendment) Act 1997
Act No. 34/1997
TABLE OF PROVISIONS
Section Page
1. Purpose 1 2. Commencement 1 3. Principal Act 2 4. Definitions 2 5. New section 26 substituted 2 26. Prescribed places of public entertainment 3 6. Lodgement of documents relating to permits 3 7. Occupation to accord with permit 3 8. Temporary occupation of buildings 3 9. Lodgement of documents relating to permits 3 10. Expenses of adjoining owner 4 11. New section 160A inserted 4 160A. Application for determination in respect of building
design 4
12. Inquiry into conduct 6 13. Costs 6 14. New section 186A inserted 6 186A. Delegation 6 15. Building Practitioners Board procedure on inquiries 6 16. Powers of Commission as building surveyor 7 17. Building permit levy 7 18. Change of name 8 19. Application of Act to Crown 8 20. Repeal of section 218 9 21. Change concerning insurance orders for plumbers 9 22. Powers of compliance auditors 9 23. New Division 1A inserted in Part 13 10 Division 1A—Performance audits 10 227A. Performance auditors 10 227B. Functions of performance auditor 11 227C. Powers of performance auditors 11 227D. Building practitioner must give information to
performance auditor 12
24. Authorised persons 12
i
Section Page
25. New section 229 substituted 13 229. Power of entry—inspections of building or plumbing work 13 26. New sections 231 to 232 substituted 13 231. Powers of entry—enforcement 13 231A. Occupier to be given copy of consent 14 231B. Search warrant 14 231C. Announcement before entry 16 231D. Copy of warrant to be given to occupier 16 231E. Powers of authorised persons on entry 17 231F. Powers of authorised person to require information or
documents 17 231G. Copying of documents 18 231H. Protection against self-incrimination 19 232. Entry in emergency 19
27. New section 234A inserted 19 234A. Confidentiality 19 28. Regulations 20 29. Amendment of Part 2 of Schedule 1 20 30. Statute law revision—Building Act 21 31. Amendment of Sale of Land Act 1962 21 32. Statute law revision—Building (Amendment) Act 1995 22 33. Statute law revision 22
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NOTES 23
ii
Victoria
No. 34 of 1997
Building (Further Amendment) Act
1997†
[Assented to 3 June 1997]
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to further amend the Building Act 1993 to improve the administration and operation of that Act.
2. Commencement
(1) Section 1 and this section come into operation on
the day on which this Act receives the Royal
Assent.
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 3 (2) Section 32 is deemed to have come into operation on 31 October 1995.
(3) Subject to sub-section (4), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.(4) If a provision referred to in sub-section (3) does
not come into operation before 1 July 1998, it
comes into operation on that day.
3. Principal Act
Act No.
In this Act the Building Act 1993 is called the 126/1993. Principal Act. Reprinted to
Act No.
93/1995.
Further
amended by
Acts Nos
2/1996 and
39/1996.
4. Definitions
In section 3(1) of the Principal Act insert— ' "Building Code of Australia" means the
Building Code of Australia 1996 published by the Australian Building Codes Board—
(a)
as amended or remade from time to time; and
(b)
as amended by the Victoria Appendix 1996 to that Code published by that Board as that Appendix is amended or remade from time to time;'.
5. New section 26 substituted
For section 26 of the Principal Act substitute—
Building (Further Amendment) Act 1997
| s. 6 | Act No. 34/1997 |
"26. Prescribed places of public entertainment
An application for a building permit for a place of public entertainment prescribed or in a class prescribed for the purposes of this section must be made to the Commission.".
6. Lodgement of documents relating to permits
(1) After section 30(1) of the Principal Act insert—
"(1A) In addition to the requirements of sub-
section (1), the relevant building surveyor,
within the relevant prescribed time, must
give to the relevant council a copy of any
other prescribed documents relating to the
application for the building permit or the
permit.Penalty: 10 penalty units.".
(2) In section 30(2) of the Principal Act after "sub-
section (1)" insert "or (1A)".
7. Occupation to accord with permit
(1) In section 40 of the Principal Act for "A person"
substitute "(1) A person".
(2) At the end of section 40 of the Principal Act
insert—
"(2) Sub-section (1) does not apply to a person
who occupies a building in accordance with
an approval given under Division 3.".
8. Temporary occupation of buildings
In section 64(1) of the Principal Act for "Despite anything to the contrary in section 40, a person" substitute "A person".
9. Lodgement of documents relating to permits
(1) After section 73(1) of the Principal Act insert—
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 10 "(1A) In addition to the requirements of sub-
section (1), the relevant building surveyor,
within the relevant prescribed time, must
give to the relevant council a copy of any
other prescribed documents relating to the
application for the occupancy permit or
temporary approval or the permit or
approval.
Penalty: 10 penalty units.".
(2) In section 73(2) of the Principal Act after "sub- section (1)" insert "or (1A)".
10. Expenses of adjoining owner
In section 97(1) of the Principal Act before
"supervising" insert "assessing proposedprotection work and in".
11. New section 160A inserted
After section 160 of the Principal Act insert—
"160A. Application for determination in respect of
building design
(1) An application may be made to the Building Appeals Board for a determination that a particular design of a building or an element of a building complies with this Act, the building regulations or any document applied, adopted or incorporated in the building regulations.
(2) The application may be made by—
(a) the owner of the building or land; or
(b)
the purchaser under a contract of sale of a lot of a kind referred to in section 9AA(1) of the Sale of Land Act 1962; or
(c) the relevant building surveyor; or
Building (Further Amendment) Act 1997
Act No. 34/1997
(d) the Commission.".
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 12
12. Inquiry into conduct
In section 179(2)(d) of the Principal Act for "20 penalty units" substitute "50 penalty units".
13. Costs
In section 181 of the Principal Act for "must pay" substitute "may pay".
14. New section 186A inserted
After section 186 of the Principal Act insert—
"186A. Delegation
The Building Practitioners Board may, by instrument, delegate the Board's functions under section 172(3) and (4) to the
chairperson or a member of the Board.".
15. Building Practitioners Board procedure on inquiries
For section 187(2) of the Principal Act
substitute—"(2) Clause 8 of Schedule 3 applies to the
Building Practitioners Board—
(a)
only in respect of its functions under Division 2 of this Part; and
(b)
as if that clause requires that one of the members of the panel is to be the member of the Board appointed in respect of the category of registered building practitioner to which the person who is the subject of the Board's inquiry belongs; and
(c)
otherwise in the same way as it applies to the Building Appeals Board.".
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| s. 16 | Act No. 34/1997 |
16. Powers of Commission as building surveyor
In section 199(1)(a) of the Principal Act for
"referred" substitute "made".
17. Building permit levy
(1) In section 201(1A) of the Principal Act for
"$3000" substitute "$10 000".
(2) For section 201(7) of the Principal Act
substitute—
"(7) A relevant building surveyor must in
accordance with the regulations—
(a) keep records of—
(i) amounts received by the building surveyor on account of the levy; and
(ii) amounts of levy forwarded to the surveyor; and
(b) make those records available to be inspected by or on behalf of the Commission; and (c) pay the amounts received by the Administration Fund; and
(d)
give to the Commission periodic returns setting out—
(i) whether or not the building of levy in the return period; and
(ii) if an amount has been received, the amounts received and the
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 18 amounts forwarded to the
Commission; and
(iii) any other prescribed information.
(7A) On the application of a relevant building
surveyor, the Commission may exempt the building surveyor from the requirements of sub-section (7)(d) for a specified period if
the Commission is satisfied that due to
illness or other reasonable cause the building
surveyor will not be in receipt of any amount
of levy during that period.
(7B) An application and an exemption under sub- section (7A) must be in writing.".
18. Change of name
In sections 207(2)(e) and 210(2)(i) of the
Principal Act for "Building Owners and Managers
Association of Australia Limited Victoria
Division" substitute "Property Council ofAustralia, Victoria Division".
19. Application of Act to Crown
(1) In section 217(1) of the Principal Act for "Parts 2, 7, 9, 10, 11 and 12A" substitute "Parts 2, 3, 4, 5, 7, 9, 10, 11, and 12A and section 201".
(2) For section 217(2A) of the Principal Act
substitute—
"(2A) Despite anything to the contrary in this Act, a provision of this Act applies to a lessee or licensee of Crown land even if the provision does not bind the Crown.".
(3) For section 217(5) of the Principal Act
substitute—
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| s. 20 | Act No. 34/1997 |
"(5) Nothing in sub-sections (1) to (3) makes the Crown liable to pay any fee or charge except the building permit levy and the fees payable under Part 10.".
20. Repeal of section 218
Section 218 of the Principal Act is repealed.
21. Change concerning insurance orders for plumbers
After section 221ZQ(5) of the Principal Act insert—
"(5A) The order of the Minister under this section published in the Government Gazette on 28 February 1997 is revoked and is deemed
never to have been made.
(5B) The order of the Minister under this section
published in the Government Gazette on 6 under this section on 28 February 1997 and to have taken effect on 24 March 1997, despite anything to the contrary in this section or in the order. (5C) Any reference in any document (other than this Act) to the order of the Minister under this section published in the Government
Gazette on 28 February 1997 is deemed to be a reference to the order referred to in sub- section (5B), unless a contrary intention expressly appears.".
22. Powers of compliance auditors
(1) At the beginning of section 221ZZZA of the
Principal Act insert—
"(1) In carrying out his or her functions under this
Part, a compliance auditor may—
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 23
(a) enter any residence or the land on which a residence is situated between the hours of 8 am and 6 pm; and (b) enter any other building or land at any reasonable time. (2) A compliance auditor must give the occupier (if any) of a building or land not less than 24 hours notice, or such other notice as may be agreed with the occupier, before the
compliance auditor enters the building or
land under sub-section (1).".
(2) In section 221ZZZA of the Principal Act before "A compliance auditor" insert "(3)".
23. New Division 1A inserted in Part 13
After Division 1 of Part 13 of the Principal Act insert—
"Division 1A—Performance audits
227A. Performance auditors
(1) The Commission may appoint performance auditors for the purposes of this Division.
(2) The Commission must give every person that
it appoints as a performance auditor an
identity card that displays a photograph of
the person and states the person's name and
the fact that he or she is authorised to
conduct performance audits for the
Commission.
(3) A performance auditor to whom an identity
card has been issued must when on duty
produce that card on demand.
Penalty: 1 penalty unit.
Building (Further Amendment) Act 1997
| s. 23 | Act No. 34/1997 |
227B. Functions of performance auditor
(1) The function of a performance auditor is to
examine work carried out by registered
building practitioners—
(a) to ensure that the work has been competently carried out and does not pose any risk of injury or damage to any person; and (b) to ensure that this Act and the building regulations have been complied with. (2) The Commission is to determine in its absolute discretion which work is to be examined by a performance auditor.
227C. Powers of performance auditors
(1) In carrying out his or her functions under this Division, a performance auditor may—
(a)
enter any residence or the land on which a residence is situated between the hours of 8 am and 6 pm; and
(b)
enter any other building or land at any reasonable time.
(2) A performance auditor must give the
occupier (if any) of a building or land not
less than 24 hours notice, or such other
notice as may be agreed with the occupier,
before the performance auditor enters the
building or land under sub-section (1).(3) In carrying out his or her functions under this Division, a performance auditor may—
(a)
require a person who is, or was, a registered building practitioner to
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 24 produce any document that relates to
any work that the auditor is examining;
and
(b) make copies of any document that relates to any work that the auditor is examining; and (c) require a person who is, or was, a registered building practitioner to supply any other information or document that relates to any work that
the auditor is examining; and(d) report to the Commission, or a person authorised by the Commission, the results of any examination he or she conducts.
227D. Building practitioner must give information to performance auditor
(1) A person must comply with any requirement made by a performance auditor under section 227C(3)(a) or (c).
Penalty: 50 penalty units.
(2) However, a person need not answer any question put to him or her under section 227C(3)(c) if the answer might incriminate
him or her.".
24. Authorised persons
(1) In section 228(2) of the Principal Act omit "of
entry".
(2) For section 228(3) of the Principal Act
substitute—
"(3) The person or body who or which authorises
a person under sub-section (2) must give an
identity card to that authorised person.
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| s. 25 | Act No. 34/1997 |
(4) The identity card must display a photograph of the authorised person to whom it is issued and state the person's name and the fact that he or she is an authorised person.
(5) An authorised person to whom an identity
card has been issued must when on duty
produce that card on demand.
Penalty: 1 penalty unit.".
25. New section 229 substituted
For section 229 of the Principal Act substitute—
"229. Power of entry—inspections of building or
plumbing work
For the purpose of carrying out any inspection of building work or plumbing work authorised or required by this Act or the regulations, an authorised person may—
(a)
enter any residence or the land on which a residence is situated between the hours of 8 am and 6 pm; and
(b)
enter any other building or land at any reasonable time.".
26. New sections 231 to 232 substituted
For sections 231 and 232 of the Principal Act substitute—
"231. Powers of entry—enforcement
(1) If an authorised person has reasonable
grounds for suspecting that there is on any building or land a particular thing that may be evidence of the commission of an offence
against this Act or the regulations, the
authorised person, with any assistants the
authorised person considers necessary,
may—
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 26 (a) enter the building or land; and
(b) search for the thing.
(2) An authorised officer must not enter a
building or land under this section except—
(a)
with the written consent of the occupier of the building or land; or
(b) under the authority of a search warrant.
231A. Occupier to be given copy of consent
(1) An occupier who consents in writing to entry
and search of his or her building or land
under section 231 must be given a copy of
the signed consent immediately.
(2) If, in any proceeding, a written consent is not
produced to the court, it must be presumed,
until the contrary is proved, that the occupier
did not consent to the entry and search.
231B. Search warrant
(1) An authorised person may apply to a
magistrate for the issue of a search warrant in relation to a particular building or land if the authorised officer believes on reasonable
grounds that there is, or may be within the
next 72 hours, on the building or land a
particular thing that may be evidence of the
commission of an offence against this Act orthe regulations.
(2) A magistrate may issue a search warrant
under this section if the magistrate is
satisfied by the evidence on oath, whether
oral or by affidavit, that there are reasonable
grounds for suspecting that there is, or may
be within the next 72 hours, on a building or
land a
Building (Further Amendment) Act 1997
| s. 26 | Act No. 34/1997 |
particular thing that may be evidence of the
commission of an offence against this Act orthe regulations.
(3) The search warrant may authorise an
authorised person named in the warrant and
any assistants the authorised personconsiders necessary—
(a)
to enter the building or land, or the part of building or land, named or described in the warrant; and
(b)
to search for a thing named or described in the warrant.
(4) In addition to any other requirement, a
search warrant issued under this section must
state—
(a) the offence suspected; and
(b) the building or land to be searched; and
(c)
a description of the thing for which the search is to be made; and
(d)
any conditions to which the warrant is subject; and
(e)
whether entry is authorised to be made at any time or during stated hours; and
(f)
a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.
(5) A search warrant must be issued in
accordance with the Magistrates' Court Act
1989 and in the form prescribed under that
Act.
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 26 (6) The rules to be observed with respect to
search warrants mentioned in the apply to warrants under this section.
231C. Announcement before entry
(1) Before executing a search warrant, the
authorised person named in the warrant or a person assisting the authorised person must announce that he or she is authorised by the warrant to enter the building or land and give
any person at the building or land an
opportunity to allow entry to the building or
land.(2) The authorised person or a person assisting the authorised person need not comply with sub-section (1) if he or she believes on
reasonable grounds that immediate entry to the building or land is required to ensure—
(a) the safety of any person; or
(b)
that the effective execution of the search warrant is not frustrated.
231D. Copy of warrant to be given to occupier
If the occupier or another person who apparently represents the occupier is present at a building or land when a search warrant is being executed, the authorised person must—
(a)
identify himself or herself to that person by producing his or her identity card for inspection by that person; and
(b)
give to that person a copy of the execution copy of the warrant.
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| s. 26 | Act No. 34/1997 |
231E. Powers of authorised persons on entry
(1) An authorised person who exercises a power
of entry of a building or land under section
231 or 231B may if the thing searched for is
found during the search—
(a) inspect and take photographs (including video recordings), or make sketches, of the building or land or the thing; and (b) inspect, and make copies of, or take extracts from, the thing if it is a document. (2) An authorised person who exercises a power
of entry of a building or land under section
229 may inspect and take photographs
(including video recordings), or make
sketches of the building or land or the
building work or plumbing work concerned.
231F. Powers of authorised person to require
information or documents
(1) An authorised person who exercises a power
of entry of a building or land under this reasonably necessary to determine compliance with this Act or the regulations, require a person at the building or land—
(a)
to give information to the authorised person; and
(b)
to produce documents to the authorised person; and
(c)
to give reasonable assistance to the authorised person.
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 26 (2) An authorised person who has reasonable
grounds to believe that an offence has been committed under this Act or the regulations may, to the extent that it is reasonably
necessary to determine compliance with thisAct or the regulations, require a person—
(a)
to give information to the authorised person in relation to the carrying out of building work or the work of a building practitioner; and
(b)
to produce documents to the authorised person relating to building work or the work of a building practitioner.
(3) A person must not refuse or fail, without
reasonable excuse, to comply with a
requirement made under sub-section (1) or
(2).Penalty: 50 penalty units.
(4) A person must not—
(a)
give information that the person knows to be false or misleading in a material particular; or
(b)
produce a document that the person knows to be false or misleading in a material particular without indicating
the respect in which it is false or
misleading and, if practicable,
providing correct information.
Penalty: 50 penalty units.
231G. Copying of documents
If a person produces a document to an authorised person in accordance with a
Building (Further Amendment) Act 1997
| s. 27 | Act No. 34/1997 |
requirement under section 231F, the
authorised person may make copies of, ortake extracts from, the document.
231H. Protection against self-incrimination
A person may refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under this Division if the giving of the information, the production of the document or the doing of that other thing would tend to incriminate the person.
232. Entry in emergency authorised person may enter a building or land without a search warrant at any time if the safety of the public or the occupants is at risk or an emergency order under Part 8 or an emergency plumbing order under section 221ZZF applies to the building or land.".
27. New section 234A inserted
After section 234 of the Principal Act insert—
"234A. Confidentiality
(1) An authorised person must not, except to the extent necessary—
(a)
to carry out functions or to exercise powers under this Act or the regulations; or
(b)
in connection with the administration or enforcement of this Act or the regulations; or
(c)
to give any information the authorised person is authorised, permitted or
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 28 required to give under this Act or any other Act or the regulations under this Act—
give to any other person, whether directly or
indirectly, any information gained in the
exercise of the powers as an authorised
person.
Penalty: 20 penalty units.(2) Sub-section (1) does not prevent the giving of information—
(a)
for the purpose of any legal proceedings arising out of this Act or the regulations, or of any report of those proceedings; or
(b) with the consent of the Minister.".
28. Regulations
In section 261(a) of the Principal Act after
"approvals" (where secondly occurring) insert
"and the matters to be complied with by the
relevant building surveyor before a permit orapproval can be issued".
29. Amendment of Part 2 of Schedule 1
(1) Clause 1 of Part 2 of Schedule 1 of the Principal Act is repealed.
(2) In clause 3(1) of Part 2 of Schedule 1 of the
Principal Act for "section 6(2) of the Subordinate of the Subordinate Legislation Act 1994
". (3) In clause 4 (1) of Part 2 of Schedule 1 of the
Principal Act for "Section 6(2) of the
Subordinate Legislation Act 1962" substitute
"Section 23(2) of the Subordinate Legislation
Act 1994".
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| s. 30 | Act No. 34/1997 |
(4) In clause 4(2) of Part 2 of Schedule 1 of the Principal Act—
(a) Legislation Act 1962" substitute "Section
for "Section 6A of the Subordinate 1994"; and
(b) paragraph (a) is repealed.
30. Statute law revision—Building Act
In the Principal Act—
(a)
in section 210(2)(h) for "by Housing" substitute "by the Housing";
(b)
in section 221N(1)(b)(i) for "section 221ZZU" substitute "section 221ZZZU";
(c)
in section 221ZZZP(a) and (b) for "registratration" substitute "registration";
(d) section 264 is repealed;
(e)
Clause 11 of Schedule 4 of the Principal Act is repealed;
(f) Schedule 5 is repealed.
31. Amendment of Sale of Land Act 1962
For section 32(1A) of the Sale of Land Act 1962 substitute—
"(1A) A vendor under a contract for the sale of
land on which there is a residence must give
to the purchaser before the purchaser signs
the contract, a statement signed by thevendor giving particulars of—
(a)
any building permit under the Building Act 1993 in the preceding 7 years in relation to a building on the land; and
(b)
in the case of a residence to which Part 2 of the House Contracts Guarantee
Building (Further Amendment) Act 1997
Act No. 34/1997 s. 32 Act 1987 applies which was
constructed by an owner-builder within
the meaning of that Act within the
preceding 7 years, any guarantee under
that Act applying to that residence; and
(c) in the case of a residence to which section 137B of the Building Act 1993 applies which was constructed within the preceding 6 years and 6 months, any required insurance under that Act applying to that residence.".
32. Statute law revision—Building (Amendment) Act 1995
In section 8 of the Building (Amendment) Act
1995 for "insert" substitute "substitute".
33. Statute law revision
(1) In section 11 of the Domestic Building
Contracts and Tribunal (Amendment) Act
1996, for "Building Act 1995" substitute
"Building Act 1993".(2) The Domestic Building Contracts and Tribunal
(Amendment) Act 1996 is deemed to have been
enacted as amended by sub-section (1).
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Building (Further Amendment) Act 1997
| Notes | Act No. 34/1997 |
NOTES
†
Minister's second reading speech—
Legislative Assembly: 10 April 1997
Legislative Council: 30 April 1997
The long title for the Bill for this Act was "to further amend the Building
Act 1993 and for other purposes."
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